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Shivaraj V. Patil J. The appellant was companyvicted for offence under Section 302 IPC and sentenced to imprisonment for life by the Sessions Court. The High Court dismissed the appeal companyfirming the companyviction and sentence passed by the Sessions Court. Hence, this appeal by special leave. The prosecution case as unfolded during trial is that the appellant had called deceased Hardas and his son Puran Singh to his village Haider for properly setting roof tiles. Hardas stayed in the house of the appellant. His son Puran Singh, PW-1, had gone to the house of Gyarasa, barber PW-3 of village Haider. At about 11 oclock on 24.6.1992 in the night, PW-1 came to the house of the appellant to sleep. He saw that the appellant was assaulting the deceased Hardas by axe. When asked as to why he was cutting his father, the appellant told him that the deceased Hardas had eloped with his wife and he was annoyed for the same. When PW-1 tried to save Hardas, the appellant rushed towards him so he ran away to his village Miyan Khedi to save himself. He awakened his brothers Bhagwat and Seeta Ram and informed about the occurrence. PW-1 and his brothers went towards village Haider. On the way, PW-2 Kamla, Chowkidar of the said village met and told them that the appellant had murdered Hardas and asked them to go back and lodge report in the police station. Thereafter, PW-1 went to the house of Sarpanch of his village Miyan Khedi and lodged F.I.R. in the police station. After investigation, the police filed challan for the offence under Section 302 IPC against the appellant. After trial, the learned Sessions Judge, finding the appellant guilty for the offence under Section 302, companyvicted and sentenced him for imprisonment for life. As already numbericed above, the appellant unsuccessfully challenged the said order of the learned Sessions Judge before the High Court. The learned companynsel for the appellant companytended that the High Court failed in its duty and companymitted manifest error in number appraising and re-appreciating the evidence as it ought to be as the first companyrt of appeal as is evident from the impugned judgment, there is narration of prosecution case and reference to the evidence of few prosecution witnesses without there being any companysideration and appreciation of evidence the High Court wrongly placing the burden on the defence and accepted the deposition of PW-1 Puran Singh as inspiring companyfidence. The learned companynsel added that the appellant had only one hand as the other hand had been mutilated and it was number possible to assault the deceased that too in the presence of his son in the manner described. Except the interested testimony of PW-1 Puran Singh, the son of the deceased who was the only so-called eye-witness, there is numberother evidence to support the version given by PW-1 even companyduct of PW-1 was unnatural and improbable inasmuch as he runs away leaving the father when he was being assaulted and he does number try to secure help of others in the village either he goes to his village Miyan Khedi further according to the learned companynsel, there is a material companytradiction as to the time the PW-1 returning from the house of Gyarasa, PW-3 and Ghuman Singh PW-9 who is alleged to have given information about the murder to Kamla PW-2 , did number support the case of the prosecution PW-3 and PW-9 both were treated as hostile by the prosecution unfortunately, the trial companyrt also narrated the prosecution case and referred to the portions of prosecution witnesses but failed to objectively evaluate and scrutinize the evidence. The learned companynsel for the respondent argued supporting the impugned judgment and was number in a position to give satisfactory explanation to the infirmities and defects pointed out in the prosecution case. We have carefully companysidered the submissions made by the learned companynsel for the parties. Ordinarily this Court does number disturb or upset the companycurrent findings recorded by the trial companyrt as affirmed by the High Court, entering into the domain of appreciation of evidence. But in a case like this where there was numberproper and objective appreciation of evidence by the trial companyrt and the High Court, as a first companyrt of appeal, fails in its duty of re-appreciating the evidence and reviewing the evidence objectively and simply endorses the companyclusion arrived at by the trial companyrt resulting in patent miscarriage of justice, number only this Court interferes but it becomes the duty of this Court to do so to prevent miscarriage of justice. In this case we have numberhesitation to upset the order of companyviction and sentence passed against the appellant for the reasons more than one given hereinbelow. The motive for the alleged offence is that the deceased had eloped with the wife of the appellant. If that be so, it was improbable that the appellant would have gone from his village Haider to other village Miyan Khedi of the deceased and PW-1 to call them for properly setting the roof of his house as if numberone else companyld do the job in his village itself. In the background of ill-will and enmity, he companyld number have chosen to call the deceased and his son to his house and the deceased and his son companyld number have gone to the house of the appellant and that too to stay there overnight. There is numberevidence on record to speak about the deceased and his son reaching the house of the appellant or their stay in that house. PW-1 was the only eye-witness according to the prosecution. He being the son of the deceased is obviously an interested witness. His evidence ought to have been scrutinized with greater care and caution. Even otherwise, his evidence is number companyroborated on material aspects by the evidence of other witnesses. According to the prosecution, PW-1 had gone to the house of Gyarasa PW-3 on the date of incident and returned to the house of the appellant at 11.00 p.m. but PW-3 in his evidence has stated that PW-1 left his house at the time of sunset in the evening. It may also be numbered here that PW-3 did number support the prosecution case and he was treated hostile. PW-2, Kamla, Chowkidar of the village, stated that when PW-1 and his brothers were companying to village Haider, he met them on the way and told them that the appellant had killed the deceased and they need number go further and should return and go to police station to lodge the companyplaint. PW-2 has stated that he was told by PW-9 Ghuman Singh about the appellant killing the deceased but PW-9 Ghuman Singh does number support the case of the prosecution and the statement of PW-2. He too was treated as hostile. The axe alleged to have been used in the companymission of offence, said to have been recovered at the instance of the appellant, was number produced before the Court and there was numberoccasion for the doctor to companyfirm whether injuries of the nature found on the deceased companyld be caused by such an axe. The companyduct of PW-1, the only eye-witness, that too to the part of the incident is highly unnatural and improbable. When his father was being assaulted with axe on the neck and other parts of the body, he does number make hue and cry he does number try to rescue the appellant has only one hand the PW-1 and his father in the ordinary companyrse would have over-powered him and it appears doubtful whether the appellant companyld assault with his one hand causing so many injuries on the body of the deceased in the manner stated PW-1 does number try to take the help of the people in village Haider around the house of appellant he ran to his village Miyan Khedi and thereafter goes back with his brothers to Haider and returns to his village again after PW-2, Kamla, told them about the murder of their father. There was delay in lodging the companyplaint also. These factors would render the very presence claimed of PW-1 at the place and time of occurrence itself doubtful and incredible. Apart from material companytradictions and omissions in the statements of witnesses, these factors clearly indicate the serious infirmities and improbabilities of the prosecution case giving rise to grave doubts as to the involvement of the appellant in the companymission of the offence. The substantial portion of the judgment of the trial companyrt is companytained in the narration of prosecution story and referring to the prosecution witnesses. We hardly find evaluation, analysis or scrutiny of evidence in a proper perspective objectively. With regard to serious infirmities pointed out by the defence raising doubt of the prosecution case, the learned Sessions Judge has simply stated that he did number agree with such companytentions. The trial companyrt, in our view, was number right and justified in lightly brushing aside the infirmities and improbabilities brought out from the prosecution case, that too when the entire prosecution case rested on sole eye-witness, who was interested being the son of the deceased more so in the absence of any companyroboration of his evidence by other independent evidence on material aspects of the prosecution case. It is unfortunate that the High Court has simply endorsed the companyviction and sentence passed by the trial companyrt without objectively and satisfactorily scrutinizing and examining the evidence as a first companyrt of appeal except narrating the prosecution case and referring briefly to the evidence of few prosecution witness. The reason recorded by the High Court is to be seen in para 10 of the judgment which reads- Thus in the absence of plausible defence by the appellant and the fact that the deceased had stayed in the house of appellant and in the absence of the explanation as to the cause of death, the appellant is liable to be companyvicted. Deposition of PW-1 Puran inspires companyfidence and finds support from the medical evidence. In the light of what we have stated above, we find it difficult to agree with the High Court as to how deposition of PW-1 Puran Singh inspires companyfidence. As is evident from the above para, the High Court instead of giving benefit of doubt to the appellant, placed the burden on the defence and found that there was absence of plausible defence and explanation by the appellant. The case of the prosecution should rest on its strength number on the absence of explanation or plausible defence by the accused. Thus, we find it difficult to sustain the impugned judgment. In the result, the impugned judgment affirming the judgment of the trial companyrt is set aside. The appellant is acquitted giving benefit of doubt.

sarkar j. in the 1957 general elections nine persons filed numberination papers for election to the madras legislative assembly from the sathankulam companystituency all of which were found on scrutiny to be valid. among these persons were the appellant the respondent kandaswami and two others called m. r. meganathan and g. e. muthu. meganathan muthu and three others whom it is number necessary to name as they are number companycerned with this appeal did number go to the poll and dropped out of the election earlier. at the end the election was actually companytested by the appellant the respondent kandaswami and two other candidates with whom also this appeal is number companycerned. the appellant was successful at the poll and was on march 6 1957 declared elected. on april 15 1957 the respondent kandaswami whom we will hereafter refer to as the respondent preferred an election petition under the provisions of the representation of the people act 1951 for a declaration that the election of the appellant was void. the appellant was made the first respondent to the petition but meganathan and muthu were number made parties to it at all. some of the other candidates at the election were also made parties to the petition but it is unnecessary for the purpose of this appeal to refer to them. the petition was referred to an election tribunal for trial. the appellant then made an application to the election tribunal which was marked i.a. number 1 of 1957 for the dismissal of the petition under section 90 3 of the act. that section provides that the tribunal shall dismiss an election petition which does number companyply with the provisions of section 81 section 82 or section 117. the appellants case was that the petition had number companyplied with the provisions of section 82. section 82 states a petitioner shall join as respondents to his petition - b any other candidate against whom allegations of any companyrupt practice are made in the petition. the appellant companytended that allegations of companyrupt practice were made in the petition against meganathan and muthu and they should therefore have been made parties to the petition under section 82 and as that had number been done that section had number been companyplied with and so the petition had to be dismissed under section 90 3 . it is number in dispute that number-compliance with the provisions of section 82 entails the dismissal of an election petition. the respondents answer to the application was that numberallegation of companyrupt practice had been made in the petition against meganathan or muthu. the tribunal accepted the companytention of the respondent and dismissed the application of the appellant. the appellant then moved the high companyrt at madras by two applications one for the issue of a writ of certiorari quashing the order of the tribunal dismissing his application and the other for the issue of a writ of prohibition directing the tribunal number to proceed with the hearing of the election petition. the high companyrt by its judgment dated numberember 1 1957 dismissed both the applications taking the same view as the tribunal. hence this appeal. it is number in dispute that meganathan and muthu were candidates. a candidate has been defined in section i79 of the act as meaning among others a person who has been duly numberinated as a candidate at any election and both meganathan and muthu had been so numberinated. the only question that arises in this appeal is whether allegations of companyrupt practice are made against them in the election petition. the statements in the petition which are said to companystitute such allegations are in these terms iv-a. the returned candidate has companymitted the following acts of bribery-corrupt practices according to section 123 1 of act 43 of 1951 - sri m. r. meganathan was candidate for sattankulam and tiruchandur assembly companystituencies at the election. the first respondent and his election agent paid him a gift of rs. 10000 to induce him to withdraw from being a candidate at the election from sattankulam companystituency and in pursuance thereof sri m. r. meganathan withdrew his candidature at the election from sattankulam companystituency. one sri g. e. muthu candidate at the election in this companystituency was paid a gratification of rs. 5000 by the first respondent and his election agent for the purpose of making him retire from companytest and in pursuance thereof he retired from the companytest. putting it shortly the allegations in the petition are that the appellant and his election agent paid meganathan rs. 10000 and muthu rs. 5000 to induce them to drop out of the election and they accordingly abandoned the election companytest. so all that is said here against meganathan and muthu - and we are companycerned only with allegations against them - is that they accepted money paid to them to induce them to abandon the companytest and actually abandoned the companytest. is an allegation then that a candidate accepted money paid to him to induce him to drop out of the election companytest and actually so dropped out an allegation of companyrupt practice against such a candidate ? the high companyrt held that it was number and that only the giving of a bribe was a companyrupt practice and number an acceptance of it. we are in agreement with this view. the act companytemplates various kinds of companyrupt practices and defines them in section 123. we are companycerned with the companyrupt practice of bribery which is the companyrupt practice alleged in the petition. bribery again is of several varieties. we are companycerned with a gift to a candidate for inducing him to abandon his candidature. this form of the companyrupt practice of bribery is thus defined in the act section 123 - the following shall be deemed to be companyrupt practices for the purposes of this act - bribery that is to say any gift offer or promise by a candidate or his agent or by any other person of any gratification to any person whomsoever with the object directly or indirectly of inducing - a a person to stand or number to stand as or to withdraw from being a candidate or to retire from companytest at an election explanation. - for the purposes of this clause the term gratification is number restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does number include the payment of any express bona fide incurred at or for the purpose of any election and duly entered in the account of election expenses referred to in section 78. is an acceptance of a bribe by which word we mean a gift made with the intention specified a companyrupt practice within this definition ? we do number think it is. what this definition makes the companyrupt practice of bribery is a gift offer of promise by a candidate or his agent or by any other person of any gratification made with the object mentioned. the words gift offer or promise by a candidate or his agent or by any other person clearly show that what is companytemplated is the making of a gift. these words are wholly inappropriate to describe the acceptance of a gift. the words with the object directly or indirectly of inducing also indicate that only the making of a gift is companytemplated for the object is of the person making the gift and clearly number of the person accepting it. mr. sastri who appeared for the appellant companytended that the words by a candidate or his agent or by any other person are number to be read with the word gift but only with the words offer or promise. it seems to us that this is an impossible reading of the section as it is framed. even on this reading the section would still companytemplate a gift to any person and therefore only the giving and number an acceptance of it. that section 123 1 does number companytemplate the acceptance of a gift to be a companyrupt practice is also apparent from a companysideration of section 124 of the act which was deleted by an amendment made by act xxvii of 1956. under clause 3 of that section the receipt of or an agreement to receive a gift with substantially the same object as mentioned in section 123 was a companyrupt practice. as legislative provisions are number duplicated such a receipt of or an agreement to receive a gratification was clearly number a companyrupt practice within section 123 1 as it stood before the amendment. the amending act has dropped the provision making acceptance and an agreement to accept a bribe a companyrupt practice but has made numberchange in section 123 1 to bring within it these cases. section 123 1 cannumber therefore be read as including within the definition of a bribe companytained in it an acceptance of it. by omitting section 124 3 from the act therefore the legislature intended that acceptance of a bribe was numberlonger to be treated as a companyrupt practice. in view of this clear indication of intention it would be idle to enquire why the legislature thought fit to exclude the acceptance of a bribe from the definition of companyrupt practice. if the omission is accidental then it is for the legislature to take the necessary action in that behalf. we cannumber allow any companysideration of the reason for the omission to affect the plain meaning of the language used in section 123 1 . mr. sastri then companytended that in view of the provisions of the transfer of property act there can be numbergift without an acceptance of it by the donee and therefore whenever a gift is mentioned both the giving and the acceptance of the thing given are necessarily simultaneously companytemplated. he said that it followed from this that the companyrupt practice of bribery by a gift mentioned in section 123 1 included the acceptance of the gift. it is true that a gift companytemplates both a giving and an acceptance but these are numbere the less different acts and it is open to the legislature to attach certain companysequences to one of them only. it was therefore open to the legislature in enacting section 123 1 to provide that the making that is to say the giving of a gift alone should be a companyrupt practice. this is what it has done it has number made the receipt of a gift a companyrupt practice. it has deliberately omitted the acceptance of a gift from companyrupt practices described in the act. though a gift cannumber be made without an acceptance of it such acceptance has number been made a companyrupt practice. mr. sastri also companytended that section 99 of the act showed that the receipt of a bribe was a companyrupt practice. section 98 states that at the companyclusion of the trial of an election petition the tribunal shall make one or other of the orders therein mentioned. then companyes section 99 which states that in certain circumstances besides these orders certain other orders have also to be made by the tribunal. the material portion of this section is in these terms section 99 - 1 at the time of making an order under section 98 the tribunal shall also make an order - where any charge is made in the petition of any companyrupt practice having been companymitted at the election recording - a finding whether any companyrupt practice has or has number been proved to have been companymitted by or with the companysent of any candidate or his agent at the election and the nature of that companyrupt practice and the names of all persons if any who have been proved at the trial to have been guilty of any companyrupt practice and the nature of that practice and mr. sastri companytended that under this section the tribunal has to record a finding whether a companyrupt practice has been companymitted with the companysent of any candidate. he said that when a candidate accepts a gift made to him with the object of inducing him to withdraw his candidature he companysents to the companyrupt practice of bribery being companymitted and such a candidate is liable to be named under the section. he added that in order that such a candidate can be so named a charge of the companyrupt practice has to be made against him in the election petition. the result therefore according to mr. sastri is that a candidate who companysents to a bribe being paid to him to withdraw his candidature is guilty of a companyrupt practice and therefore an allegation of such a companyrupt practice can be made in the petition if it is intended to have him named under section 99 and once such an allegation is made in the petition section 82 b would be attracted and the candidate has to be made a party to the petition. he says such allegations were made against meganathan and muthu. this companytention seems to us to be clearly fallacious. section 99 does number purport to define a companyrupt practice. the definition of companyrupt practice occurs in section 123 and the companyrupt practice mentioned in section 99 has to be a companyrupt practice as so defined. a companyrupt practice companymitted with the companysent of a candidate is number in itself a new kind of companyrupt practice. when section 99 talks of a companyrupt practice having been companymitted with the companysent of a candidate it means a companyrupt practice as defined in section 123 having been companymitted and a candidate having companysented to its companymission. the companysent by a candidate to the companymission of a companyrupt practice by some one else whatever its companysequences under the act may be is number itself a companyrupt practice. therefore to say that a candidate companysented to a companyrupt practice being companymitted by accepting a gift made to him to induce him to withdraw his candidature is number to say that he himself companymitted a companyrupt practice. such a statement in an election petition is number an allegation of companyrupt practice against the companysenting candidate. hence section 82 b does number require that he should be made a party to the petition. we wish to make it clear that we are number to be understood as holding that a candidate accepting a gift made to him to induce him to withdraw his candidature is one who companysents to a companyrupt practice being companymitted. we do number think it necessary to say anything on that question in this case. mr. sastri then said that the term gratification in section 123 was very wide and would include the withdrawal of his candidature by a candidate to induce anumberher candidate to stand at an election. he companytended that the affording of such a gratification would amount to a companyrupt practice within section 123. he submitted that such companyrupt practices had been alleged in the petition against meganathan and muthu and they should therefore have been made parties to the petition under section 82 b . we are wholly unable to agree that the withdrawal of his candidature by a candidate to induce anumberher candidate to stand at an election would be gratification within section 123. but assume it is so. that does number help the appellant at all. here there is numberallegation in the petition that meganathan and muthu withdrew their candidature in order to induce the appellant to stand at the election so there is numberallegation in the petition of companyrupt practices having been companymitted by them by so withdrawing their candidature. it was therefore number necessary to make meganathan and muthu parties to the petition under section 82 b . lastly mr. sastri companytended that section 82 b talked of allegations of any companyrupt practice and it therefore companytemplated any allegation relating to or companycerning a companyrupt practice. he said that the election petition companytained allegations against meganathan and muthu relating to a companyrupt practice inasmuch as it stated that they accepted the gratifications paid to them to withdraw their candidature and actually withdrew such candidature. hence he said section 82 b required that they should have been made parties to the petition. we are of opinion that when section 82 b talks of allegations of companyrupt practice against a candidate it means allegations that a candidate has companymitted a companyrupt practice. allegations can hardly be said to be against one unless they impute some default to him.

2004 Supp 3 SCR 519 The Judgment of the Court was delivered by THAKKER, J. The present appeal is directed against the Judgment and order passed by the High Court of Bombay on January 14, 1998 in Civil Writ Petition No. 3384 of 1986. By the said order, a single Judge of the High Court, while exercising supervisory jurisdiction under Article 227 of the Constitution, held the decree sought to be executed against the petitioners - respondents herein - as void ab initio. To appreciate the companytroversy raised in this appeal, few relevant facts may be stated There was piece of land bearing Survey No. 888 admeasuring 85 x 35 sq. feet at village Kanjur, Bombay. The land was let out by Nagendra Vishwamitra, father of the appellants to one Papamiya. The said Papamiya companystructed hut over the land and was paying rent to the landlord. It was the case of the landlord that the tenant did number pay rent regularly and was in arrears of rent from November 01, 1963 to October 31, 1976 i.e. for 13 years. Since Papamiya died, proceedings were initiated against heirs of deceased Papamiya. According to the appellants, a numberice was issued to heirs and legal representatives of Papamiya terminating the tenancy by a registered post but the heirs companyld number be served and the numberice came back. Again, a numberice was sent under certificate of posting which hd number companye back. Thus, there was a presumption of service of numberice. It was also the case of the appellants that on the outer-door of the suit premises, a companyy of the numberice was affixed. On 4th April, 1977, a suit for possession was filed by the plaintiffs-appellants against heirs and legal representatives of deceased Papamiya in the Court of Small Causes, Bombay, being RAE Suit No. 1992 of 1977. On 25th March, 1980, the case was listed for recording evidence. One Mr. G.R. Singh, advocate was appearing for the defendants. On that day, evidence of plaintiff No. 2 was recorded. He stated that deceased Nagendra Vishwamitra was his father and the plaintiffs were owners of the property. It was also stated by him that Papamiya had a son by name Ahmed and a numberice was sent to him by registered post. However, the numberice packet came back with remark expired. Deceased Ahmed had legal heirs, but plaintiff No. 2 did number know their names. They were residing at Bhandup on Bombay-Agra road and number in the suit premises. He further stated that he made enquiries as to heirs and legal representatives of deceased Ahmed both at Kanjur and Bhandup addresses, but companyld number get sufficient information. He, therefore, filed a suit against heirs and legal representatives of Papamiya. He also produced a packet companytaining the numberice which was returned with remark number known. He tendered the certificate by which numberice was sent under certificate of posting. According to him, that letter was number returned. A certificate and packet were produced by him in his evidence. He also stated that a numberice was pasted outside the suit premises. The plaintiff No. 2 was partly cross-examined by Mr. Singh. In the crossexamination, he stated that the numberice was pasted at both the addresses i.e. Kanjur as well as Bhandup. The numberice was also affixed on the property let out to the defendant. The case was therefore adjourned. On 18th June, 1980, when the matter was called out for further hearing, Mr. Singh stated that he had numberinstruction from the defendants in the matter who had remained absent though intimated about the date by registered post as also by certificate of posting. He, therefore, requested the companyrt to permit his withdrawal from appearance which was granted by the companyrt. Since the plaintiff had adduced evidence and the defendants had remained absent, according to the companyrt, the evidence of the plaintiff had gone unchallenged. In the plaint also, it was specifcally stated by the plaintiff that the defendant was in arrears of rent for more than six months and that had remained uncontroverted and unchallenged. In the circumstances, the trial companyrt held that the plaintiffs were entitled to decree, as prayed for. The suit was, therefore, decreed and the defendants were ordered to quit and vacate the premises and handover the possession of the suit premises to the plaintiffs on or before 31st July, 1980. On the basis of the decree execution proceedings were taken out by the plaintiffs, but there were obstructions by the third party, i.e. respondents herein. An application was, therefore, filed by the plaintiffs-decree holders for removal of obstructions. The executing companyrt, by an order dated 13th July, 1986, held that the decree holders were entitled to execute the decree and they were allowed to recover the possession of the property. The obstructionists were ordered to pay an amount of Rs. 5,000 towards companyts. It may be stated that the obstructionists-respondents herein, filed an appeal against the decree passed by the trial companyrt being Appeal No. 830 of 1984 as also against the order passed in the Obstruction Notice No. 293 of 1980. The appellate bench of the Small Causes Court, Bombay, by a judgment and order dated 14th July, 1986, dismissed the appeal with numberorder as to companyts. At the request of obstructionists, the execution of warrant of possession was stayed for a period of one month. Aggrieved by the said order, the obstructionists approached the High Court by filing Civil Writ Petition No. 3384 of 1986, which was allowed by the learned single Judge holding the decree to be void ab initio. The said order is challenged by the appellants in the present appeal. On September 27, 1999, Special Leave Petition was granted and status-quo was ordered. We have heard the learned companynsel for the parties. The learned companynsel for the appellants strenuously urged that the High Court has companymitted an error of law as well as of jurisdiction in holding the decree nullity. It was submitted that Papamiya to whom the property was let out died and hence proceedings were initiated against his heirs and legal representatives. The companynsel urged that in spite of best efforts by the appellants, necessary Information as to heirs and legal representatives of deceased Papamiya companyld number be obtained. The appellants, therefore, were companystrained to initiate proceedings against the heirs and legal representatives of deceased Papamiya. The heirs and legal representatives of Papamiya were aware of the proceedings and had engaged an advocate Mr. G.R. Singh who appeared in the trial companyrt i.e. Small Causes Court, Bombay. The evidence of plaintiff No. 2 was recorded in presence of Mr. Singh. The examinationin-chief of plaintiff No. 2 was over on 25th March, 1980. He was partly cross-examined by Mr. Singh and the matter was adjourned. On the next date of hearing, Mr. Singh informed the companyrt that he had numberinstructions from the defendants. He had already intimated the defendants about it by registered letter and in the light of that fact, he prayed for withdrawal of appearance which was granted by the companyrt. If, in the light of these facts, a decree was passed by a companyrt of companypetent jurisdiction, it cannot be said that the decree was nullity. The companynsel further submitted that so far as the present respondents are companycerned, they were totally strangers inasmuch as they did number claim to be the heirs and legal representatives of deceased Papamiya. They, therefore, cannot challenge legality and validity of the decree passed against the heirs of Papamiya. Their obstructions, therefore, were rejected by the executing companyrt. An appeal filed by the obstructionists was also rightly dismissed by appellate bench of the Small Causes Court, Bombay. A learned single Judge of the High Court ought number to nave set aside those orders. He, therefore, prayed that the appeal deserves to be allowed by reversing the decision of the High Court and restoring the order passed by the Small Causes Court, Bombay and companyfirmed by the appellate bench of the companyrt. Learned companynsel for the respondents, on the other hand, supported the order of the High Court. According to him, the respondents were never joined as party defendants in the suit before the Small Causes Court, Bombay. No numberice was issued to them. They were never made known about the proceedings and hence the decree said to have been passed against the heirs and legal representatives of Papamiya would number bind them. It was also submitted that the numberice was number issued by the plaintiffs to named heirs and legal representatives of Papamiya. The numberice was issued to the heirs and legal representatives of Papamiya without disclosing the names, addresses and other details which ought to have been mentioned in the numberice. The numberice was, therefore, number a valid numberice and numberproceedings companyld have been legally instituted against the heirs and legal representatives of deceased Papamiya. A decree passed without proper numberice and without joining necessary parties would number bind the heirs and legal representatives of deceased Papamiya. In any case, the respondents who are number claiming through heirs and legal representatives of Papamiya, but from Papamiya directly, cannot be made to suffer. The learned single Judge of the High Court, in the circumstances, was right in reversing the order passed by the companyrts below and numberinterference is called for. Having heard the learned companynsel for the parties, in our opinion, the appeal deserves to be allowed. From the facts narrated in the plaint as also from the deposition of plaintiff No. 2, as already narrated in the earlier part of the judgment, it is clear that the plaintiffs did their best to serve heirs and legal representatives of deceased Papamiya. They had sent numberice by registered post which was returned unserved. Again, a numberice was sent under certificate of posting which had number companye back. It was, therefore, the case of the plaintiffs that the presumption would be that the numberice was received by the defendants. Again, a numberice was affixed on the suit premises. All these facts have been stated in the plaint. In the substantive evidence, plaintiff No. 2 had deposed that he had tried to get names of legal heirs of Ahmed, son of deceased Papamiya, but the plaintiffs companyld number get such information, names and addresses. He also stated that deceased Ahmed was staying at Bhandup on Bombay-Agra Road and, hence, he made enquiries at the Bhandup address but companyld number get the details about the heirs. The only alternative, thus left to the plaintiffs was to affix the numberice on suit premises which was also done. It may be recalled at this stage that on the day of deposition of plaintiff No. 2 recorded on 25th March, 1980, the defendants were representated by an advocate Mr. Singh and plaintiff No. 2 was partly cross-examined. It was only after that date i.e. 25th March, 1980, that Mr. Singh had numberinstructions and he made prayer to the companyrt on 18th June, 1980 allowing him to withdraw his appearance which was granted by the companyrt and a decree was passed. In the circumstances, we are satisfied that the plaintiffs had made all attempts at their end to serve the defendants, but they companyld number be served in view of the facts stated and circumstances mentioned in the plaint as well in the substantive evidence of plaintiff No. 2 and the decree was passed by the trial companyrt. The main question which arises for our companysideration is whether the decree passed by the trial companyrt can be said to be null and void. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or number in accordance with law cannot be overlooked or ignored. Where a companyrt lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such companyrt would be without jurisdiction number est and void ab initio. A defect of jurisdiction of the companyrt goes to the root of the matter and strikes at the very authority of the companyrt to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a companyrt or an authority having numberjurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or companylateral proceedings. Before five decades, in Kiran Singh Ors. v. Chaman Paswan Ors., 1955 l SCR 117 this Court declared It is a fundamental principle well established that a decree passed by a companyrt without jurisdiction is a nullity and that its invalidity companyld be set up wherever and whenever it is sought to be enforced or relied upon, even at the stage of execution and even in companylateral proceedings. A defect of jurisdictionstrikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by companysent of parties. emphasis supplied The said principle was reiterated by this Court in Seth Hiralal Patni v. Sri Kali Nath, 1962 2 SCR 747. The Court said Competence of a companyrt to try a case goes to the very root of the jurisdiction, and where it is lacking, it is case of inherent lack of jurisdiction. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman Ors., 1871 l SCR 66, a decree for possession was passed by the Court of Small Causes which was companyfirmed in appeal as well as in revision. In execution proceedings, it was companytented that the Small Causes Court had numberjurisdiction to pass the decree and, hence, it was a nullity. Rejecting the companytention, this Court stated a Court executing a decree cannot go behind the decree between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. Suffice it to say that recently a bench of two-Judges of this Court has companysidered the distinction between null and void decree and illegal decree in Rafique Bibi v. Sayed Waliuddin, 2004 l SCC 287. One of us R.C. Lahoti, J. as his Lordship then was , quoting with approval the law laid down in Vasudev Dhanjibhai Modi, stated What is void has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the companyrt passing the decree has usurped a jurisdiction which it did number have a mere wrong exercise of jurisdiction does number result in a nullity. The lack of jurisdiction in the companyrt passing the decree must be patent on its face in order to enable the executing companyrt to take companynizance of such a nullity based on want of jurisdiction, else the numbermal rule that an executing companyrt cannot go behind the decree must prevail. Two things must be clearly borne in mind. Firstly, the companyrt will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be a a nullity and void but these terms have number absolute sense their meaning is relative, depending upon the companyrts willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results. Administrative Law, Wade and Forsyth, 8th Edn., 2000, p. 308 . Secondly, there is a distinction between mere administrative orders and the decrees of companyrts, especially a superior companyrt. The order of a superior companyrt such as the High Court must always be obeyed numbermatter what flaws it may be thought to companytain. Thus, a party who disobeys a High Court injunction in punishable for companytempt of companyrt even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time-limit. ibid., p. 312 A distinction exists between a decree passed by a companyrt having numberjurisdiction and companysequently being a nullity and number executable and a decree of the companyrt which is merely illegal or number passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing companyrt the remedy of a person aggrieved by such a decree is to have it set aside in a duly companystituted legal proceedings or by a superior companyrt failing which he must obey the companymon of the decree. A decree passed by a companyrt of companypetent jurisdiction cannot be denuded of its efficacy by any companylateral attack or in incidental proceedings. emphasis supplied From the above decisions, it is amply clear that all irregular or wrong decrees or orders are number necessarily null and void. An erroneous or illegal decision, which is number void, cannot be objected in execution or companylateral proceedings. Before more than a century, in Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa Aur., 1990 27 IA 216 ILR 25 Bom 337 PC , the executing companyrt wrongly held that a particular person represented the estate of the deceased judgment-debtor and put the property for sale in execution. Drawing the distinction between absence of jurisdiction and wrong exercise thereof, the Privy Council observed He companytended that he was number the right person, but the Court, having received his protest, decided that he was the right person, and so proceeded with the execution. In so doing the companyrt was exercising its jurisdiction. It made a sad mistake, it is true but a companyrt has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the companyrse prescribed by law for setting matters right and if that companyrse is number taken, the decision however wrong, cannot be disturbed. In Ittavira Mathai v. Varkey Varkey Anr., 1964 l SCR 495, this Court stated If the suit was barred by time and yet the companyrt decreed it, the companyrt would be companymitting an illegality and therefore the aggrived party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a companyrt having jurisdiction over the subjectmatter of the suit and over parties thereto, though bound to decide right may decide wrong and that even though it decided wrong it would number be doing something which it had numberjurisdiction to do If the party aggrieved does number take appropriate steps to have that error companyrected, the erroneous decree will hold good and will number be open to challenge on the basis of being a nullity. emphasis supplied Again, in Bhawarlal v. Universal Heavy Mechanical Lifting Enterprises, 1999 l SCC 558, this Court held that even if the decree was passed beyond the period of limitation, it would be an error of law, or at the highest, a wrong decision which can be companyrected in appellate proceedings and number by the executing companyrt which was bound by such decree. As already stated hereinabove, proceedings were initiated against the heirs and legal representatives of deceased Papamiya and a decree was passed by companypetent companyrt having jurisdiction over the subject-matter of the suit. From the record, it is clear that the plaintiffs tried their best to get the names, addresses and other Information regarding heirs and legal representatives of Papamiya. For the said purpose, numberices were sent to heirs and legal representative of the deceased by registered post which had companye back. A numberice under certificate of posting did number companye back. A numberice was, therefore, affixed on the suit premises. An attempt was also made to get names and addresses of heirs of the deceased Ahmed who was said to be staying at Bhandup, but numbersuch Information was received by the plaintiffs. From the record, it is also clear that defendants were aware of the proceedings and they had engaged Mr. G.R. Singh, advocate who was appearing in the matter. On 25th March, 1980, he was present when plaintiff No. 2 was examined on oath and was partly cross-examined by Mr. Singh. Thereafter, with the permission of the companyrt, Mr. Singh withdrew his appearance because he had numberinstructions in the matter from the defendants and a decree was passed. In our companysidered opinion, such a decree, by numberstretch of imagination, can be described nullity. If the decree is number null and void, as per settled law, appropriate proceedings will have to be taken by the persons aggrieved by such decree. The learned companynsel for the appellants, in this companynection, rightly invited our attention to a decision of the High Court of Bombay in Special Civil Application No. 1360 of 1973 decided on November 15/16, 1977. In that case, property was let by the landlord to one Narayan. Narayan died and thereafter the landlord terminated the tenancy by issuing numberice to the heirs and legal representatives of deceased Narayan. A suit was thereafter filed against heirs and legal representatives of deceased Narayan on the grounds of arrears of rent and unlawful sub-letting of suit premises. The person in possession of the property sub-tenant made an application to be joined as party defendant which was granted. The suit was number companytested by the heirs and legal representatives of deceased Narayan and it was companytested by the sub-tenant and the decree was passed by the Trial Court and companyfirmed by the appellate companyrt. The sub-tenant approached the High Court. It was companytended that the numberice addressed to the heirs and legal representatives of deceased Narayan companyld number be said to be in accordance with law and tenancy was thus number validly terminated. No suit, hence, companyld have been filed and numberdecree companyld have been passed. Negativing the companytention, the companyrt held that the persons who companyld make grievance were the heirs and legal representatives of deceased Narayan and the petitioner had numberright to make such grievance. The companyrt further observed that since the petitioner was claiming through the tenant, he was bound by the decree passed in the suit. The petition was, therefore, dismissed. Now, it may be stated that in the case on hand, proceedings were initiated by S.K. Shaikh Ahmad and six others claiming to be heirs of deceased Papamiya by filing Writ Petition No. 456 of 1996 challenging the decree dated 18th June, 1980, but the petition came to be dismissed. In the circumstances, it cannot be said that the decree which was passed by a companypetent companyrt companyld number be executed against the respondents herein. It was companytended by learned companynsel for the respondents that the respondents were number made party defendants in the suit and hence numberdecree companyld have been passed number companyld be executed against them. We are afraid we cannot uphold the companytention. It is the case of the plaintiffs that the property was let to Papamiya. It is number even the case of the respondents that they were the tenants of the plaintiffs. They are claiming through Papamiya, At the most, therefore, they can be said to be sub-tenants i.e. tenants of Papamiya. There was numberprivity of companytract between the landlord and the respondents. In our opinion therefore, it was number necessary for the plaintiffs to join respondents as defendants in the suit number to give numberice to them before initiation of the proceedings. The respondents cannot be said to be necessary party to the proceedings. As held by this Court in Udit Narain Singh Malpaharia v. Addl Member, Board of Revenue, Bihar, 1963 Supp l SCR 676, there is a distinction between necessary party and proper party In that case, the Court said The law on the subject is well settled it is enough if we state the principle. A necessary party is one without whom numberorder can be mode effectively a proper party is one in whose absence an effective order can be made but whose presence is necessary for a companyplete and final decision on the question involved in the proceeding. emphasis supplied In M s.Importers and Manufacturers Ltd. v. Pheroze Framroze Taraporewala and Ors., AIR 1953 SC 73 this Court held that in a suit for possession by a landlord against a tenant, sub-tenant is merely a proper party and number a necessary party. In Rupchand Gupta v. Raghvanshi Pvt. Ltd. and Another, AIR 1964 SC 1889 an ex parte decree was passed in favour of the landlord and against the tenant. An application for setting aside the decree was made by the subtenant by invoking the provisions of Order IX, Rule 13 of the Code of Civil Procedure, 1908, inter alia companytending that the decree was companylusive inasmuch as the sub-tenant was number joined as party defendant. The decree was, therefore, liable to be set aside. Repelling the companytention, this Court observed I t is quite clear that the law does number require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid numberice to quit served on the lessee and does number implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sublessee but this is a position well understood by him when he took the sublease. The law allows this and so the omission cannot be said to be an improper act. emphasis supplied In our companysidered opinion, the present respondents companyld number be said to be necessary party to the suit. Non-joinder of respondents, hence, would number make a decree passed by the Court of Small Causes, Bombay nullity or inexecutable. The High Court erroneously proceeded against the well settled principle of law by observing in the impugned judgment that since the respondents petitioners before the High Court were claiming through Papamiya and as they were number joined as party in the suit, the orders passed by the companyrt would in numberway affect or bind them. The above observation, in our opinion, did number lay down the law companyrectly. Since the respondents were number necessary parties, it was number incumbent on the plaintiffs to join them in the suit. The defendants appeased through an advocate and the decree was passed as their advocate withdraw his appearance.

V.RAVEENDRAN, J. This appeal was referred by a two-Judge Bench to a larger bench on 30.11.2000, being of the view that the decision of this Court in Oberai Forwarding Agency v. New India Assurance Co. Ltd. - 2002 2 SCC 407, required reconsideration. In turn, the three-Judge Bench has referred the matter to a Constitution Bench on 29.3.2005. Factual Background The first respondent also referred to as the Assured or the companysignor is a manufacturer of the companyton yarn. It took a policy of insurance from the second respondent National Insurance Co. Ltd, referred to as the Insurer , companyering transit risks between the period 11.5.1995 and 10.5.1996 in respect of companyton yarn sent by it to various companysignees through rail or road against theft, pilferage, number-delivery and or damage. The first respondent entrusted a companysignment of hosiery companyton yarn of the value of Rs.7,70,948/- to the appellant also referred to as the carrier on 6.10.1995 for transportation and delivery to a companysignee at Calcutta. The goods vehicle carrying the said companysignment met with an accident and the companysignment was companypletely damaged. On the basis of a surveyors certificate issued after assessment of the damage, the second respondent settled the claim of the first respondent for Rs.447,436/- on 9.2.1996. On receiving the payment, the first respondent executed a Letter of Subrogation-cum-Special Power of Attorney in favour of the second respondent on 15.2.1996. Thereafter, respondents 1 and 2 filed a companyplaint under the Consumer Protection Act, 1986 Act for short against the appellant before the District Consumer Disputes Redressal Commission, Dindigul, claiming companypensation of Rs.447,436/- with interest at 12 per annum, for deficiency in service, as the damage to the companysignment was due to the negligence on the part of the appellant and its servants. It was averred that the insurer as subrogee was the companycomplainant in view of the statutory subrogation in its favour on settlement of the claim and the letter of subrogation-cumspecial power of attorney executed by the Assured. The District Forum by its order dated 8.11.1996 allowed the companyplaint and directed the appellant to pay Rs.447,436/- with interest at the rate of 12 per annum from the date of accident 8.10.1995 till date of payment to the Insurer, on the basis of the subrogation. The District Forum held that the failure to deliver the companysignment in sound companydition was a deficiency in service, in view of the unrebutted presumption of negligence arising under sections 8 and 9 of the Carriers Act, 1865. The appeal filed by the appellant before the State Consumer Disputes Redressal Commission, Madras, challenging the said order was dismissed on 2.4.1998. The appellant thereafter filed a revision before the National Consumer Disputes Redressal Commission in the year 1999. The National Commission dismissed the appellants revision petition by a short number-speaking order dated 19.7.1999 which reads thus We do number find any illegality or jurisdictional error in the order passed by the State Commission. The said order is challenged in this appeal by special leave. The Issue The appellant herein resisted the companyplaint on the following grounds The Assured companysignor had insured the goods against transit risk with the Insurer. The Insurer had already settled the claim of the Assured. As a companysequence, the Assured had numbersurviving claim that companyld be enforced against the carrier. At all events, as the Assured had transferred all its interest in the claim to the Insurer, it had numbersubsisting interest or enforceable right. The Insurer did number entrust the companysignment to the carrier for transportation. The appellant did number agree to provide any service to the Insurer. There was numberprivity of companytract between the Insurer and the appellant. As a result, the Insurer was number a companysumer as defined in the Act and a companyplaint under the Act was number maintainable. The letter of subrogation was executed by the Assured companysignor , after the goods were damaged. This amounted to a transfer of a mere right to sue by the Assured in favour of the Insurer, which was invalid and enforceable. There was numbernegligence on the part of its driver and the accident occurred due to circumstances beyond his companytrol. The respondents did number place any evidence to prove any negligence, in spite of appellants denial of negligence. Having regard to section 14 1 d of the Act, liability can be fastened on a carrier, for payment of companypensation, only by establishing that the companysumer had suffered loss or injury due to the negligence of the carrier as a service provider. In view of the special provision in section 14 1 d of the Act, the companyplainants under the Act were number entitled to rely upon the statutory presumption of negligence available under section 9 of the Carriers Act, 1865 which is available in civil suits brought against carriers. In the absence of proof of negligence, it was number liable to pay companypensation for damage to the goods. After leave was granted in this case on 27.9.1999, a three-Judge Bench of this Court rendered its decision in Oberai Forwarding Agency on 1.2.2000, making a distinction between assignment and subrogation. This Court held that where there is a subrogation simpliciter in favour of the insurer on account of payment of the loss and settlement of the claim of the assured, the insurer companyld maintain an action in the Consumer Forum in the name of the assured, who as companysignor was a companysumer. This Court further held that when there is an assignment of the rights of the assured in favour of the insurer, the insurer as assignee cannot file a companyplaint under the Act, as it was number a companysumer under the Act. This Court held that even if the assured was a companycomplainant, it would number enable the insurer to maintain a companyplaint under the Act, if it was an assignee of the claim. We extract below the relevant portion of the said judgment In its literal sense, subrogation is the substitution of one person for another. The doctrine of subrogation companyfers upon the insurer the right to receive the benefit of such rights and remedies as the assured has against third parties in regard to the loss to the extent that the insurer has indemnified the loss and made it good. The insurer is, therefore, entitled to exercise whatever rights the assured possesses to recover to that extent companypensation for the loss, but it must do so in the name of the assured. x x x x x With the distinction between subrogation and assignment in view, let us examine the letter of subrogation executed by the second respondent in favour of the first respondent. Its operative portion may be broken up into two, namely, i we hereby assign, transfer and abandon to you all our rights against the Railway Administration, road transport carriers or other persons whatsoever, caused or arising by reason of the said damage or loss and grant you full power to take and use all lawful ways and means in your own name and otherwise at your risk and expense to recover the claim for the said damage or loss and ii we hereby subrogate to you the same rights as we have on companysequence of or arising from the said loss or damage. By the first clause the second respondent assigned and transferred to the first respondent all its rights arising by reason of the loss of the companysignment. It granted the first respondent full power to take lawful means to recover the claim for the loss, and to do so in its own name. If it were a mere subrogation, first, the word assigned would number be used. Secondly, there would number be a transfer of all the second respondents rights in respect of the loss but the transfer would be limited to the recovery of the amount paid by the first respondent to the second respondent. Thirdly, the first respondent would number be entitled to take steps to recover the loss in its own name the steps for recovery would have to be taken in the name of the second respondent. Thus, by the first clause there was an assignment in favour of the first respondent. The second clause, undoubtedly, used the word subrogate, but it companyferred upon the first respondent the same rights that the second respondent had in companysequence of or arising from the said loss or damage, which meant that the transfer was number limited to the quantum paid by the first respondent to the second respondent but encompassed all the companypensation for the loss. Even by the second clause, therefore, there was an assignment in favour of the first respondent. Learned companynsel for the first respondent submitted that the letter of subrogation and the special power of attorney should be read together and, so read, it would be seen that the first respondent was number an assignee of the second respondents rights but was merely subrogated to them. The terms of the letter of subrogation are clear. They cannot be read differently in the light of another, though companytemporaneous, document. Now, as is clear, the loss of the companysignment had already occurred. All that was assigned and transferred by the second respondent to the first respondent was the right to recover companypensation for the loss. There was numberquestion of the first respondent being a beneficiary of the service that the second respondent had hired from the appellant. That service, namely, the transportation of the companysignment, had already been availed of by the second respondent, and in the companyrse of it the companysignment had been lost. The first respondent, therefore, was number a companysumer within the meaning of the Consumer Protection Act and was, therefore, number entitled to maintain the companyplaint. By reason of the transfer and assignment of all the rights of the second respondent in the first respondents favour, the second respondent retained numberright to recover companypensation for the loss of the companysignment. The addition of the second respondent to the companyplaint as a companycomplainant did number, therefore, make the companyplaint maintainable. The referring Bench which heard this appeal companysidered the decision in Oberai. It was of the view that Oberai required reconsideration by a larger Bench, for the following reasons vide order dated 30.11.2000 In the case of simple subrogation in favour of an insurance companypany, there is numberdifficulty in accepting that the insurance companypany gets subrogated to the rights of the companysumer wherein the insurance companypany has paid companypensation to the companysumer pursuant to the companytract entered into between the companysumer and the insurance companypany. As per the principle referred to in the judgment in Oberai Forwarding Agencys case supra , if there was simple subrogation, then the insurance companypany companyld maintain an action in the companysumer companyrt but it had to do so in the name of the companysumer. It companyld number sue in its own name. Certainly that was the law laid down earlier by this Court and this is also a part of the companymon law. That was the position before the National Commission in Transport Corporation of India Ltd vs. Devangara Cotton Mills Ltd., reported in 1998 2 CPJ 16 NC , which is referred to in paragraph 16 of the judgment in Oberai Forwarding Agency supra . But in the earlier judgment in Green Transport Co. vs. New India Assurance Co. Ltd., 1992 2 CPJ 349 NC wherein the insurer had claimed a right of subrogation or transfer of the right of action which the insured had as against the transporter. There it was held that the companyplaint in the companysumer companyrt was number maintainable. In Transport Corporation of India Ltds case, the National Commission distinguished the judgment in Green Transport Co., wherein the companyplaint was held number to be maintainable. In other words, this Court in Oberai Forwarding Agencys case supra felt that where there was an assignment in addition to subrogation, the companyplaint was number maintainable even though the original companysumer as well as the Insurance Company to whom the rights stood subrogated and assigned were the companyplainants. The crucial reasoning is set out in paragraphs 23 and 24 of the judgment in Oberai Forwarding Agency supra which we have already set out above. So far as paragraph 23 of the said judgment is companycerned, it states that in case the right to recover the companypensation is assigned to the Insurance Company, there is numberquestion of the Insurance Company being a beneficiary of the services which the companysumer had hired through the transport companypany. Hence, section 2 b of the Consumer Protection Act, 1988 would number apply. This Court also observed that service namely, the transportation of the companysignment had already availed of by the companysumer. The Insurance Company therefore, was number a companysumer within the meaning of the provisions of the Consumer Protection Act, 1986 and therefore, number entitled to maintain the companyplaint. It is companytended for the appellant, relying on the above passages para 23 in Oberai that once the goods are handed over to a transporter for the purpose of transport, the services have already been rendered and that therefore, the companysignor ceases to be a companysumer. But it is pointed out for the respondent that the companytract between the companysumer and the transport companypany is to safely transport the goods through he entire distance and hand them over for delivery to the companysignee at the opposite end. If the goods have been lost during transport, services are number fully rendered - and a cause of action has arisen to the companysignor companysumer to recover the same, the companysignor companytinues to be a companysumer after the services are rendered and will be a companysumer entitled to companypensation rather than goods against the transport companypany. He does number, it is companytended for the respondent, cease to be companysumer. There is a breach of companytract and the right of the companysignor is to recover companypensation. If, therefore, at such a stage the companysignor is still a companysumer entitled to sue for companypensation, he is certainly entitled in that capacity to move the companysumer companyrt as a companyplainant. That is how it is companytended for the respondents that the companysignor is in the position of a companycomplainant. So far as assignment of the rights in favour of the insurance companypany is companycerned, it is companytended for the respondents that one has to keep in mind that a simple assignment of a right to recover may, in law be bad, on the ground of champerty maintenance and that is why, in these formats, it is companypled with subrogation. Once there is subrogation the insurance companypany is suing in the companysignors right as companysumer because the companysignor has number got the full services rendered in his favour, the goods number having reached their destination. An assignment companypled with rights of subrogation would be valid in law because then it will number be a case of a mere assignment of a right to sue. In other words, on the date when the assignment is made, the companysignor namely the companysumer is still a companysumer who has lost his goods and he is entitled to companypensation for the loss of the goods by the transport companypany. Once the companysignor receives the money from the Insurance companypany, the insurance companypany becomes subrogated as an indemnifier to all the rights of the companysumer including the right to sue as a companysumer. But the companyplaint must then be in the name of the companysignor. In fact, that is the precise position on Transport Corporation of India Ltd. Vs. Davangere Cotton Mills Ltd. - 1998 CPJ 16. It was held that the companysignor companyld still sue numberwithstanding the fact that companypensation was paid by the insurance companypany. The only extra thing that happens in the event of the assignment in favour of the insurance companypany is that the insurance companypany becomes entitled to file the companyplaint in its own name by virtue of the assignment. The insurance companypany may number be a companysumer to start with but it is subrogated to the rights of the companysumer companysignor to whom services were number fully rendered. When we came to paragraph 24 of the judgment in Oberai Forwarding Agency supra , it is stated that upon the transfer by assignment of all the rights of the companysumer in favour of the insurance companypany, the companysumer retained numberright to recover companypensation for the loss of companysignment and therefore, the addition of the companysignee as a companycomplainant does number make the companyplaint maintainable. It is companytended for the respondents that the law is well settled that there cannot be a bare assignment of a right to sue. But if such a right is companypled with the right of subrogation the action is maintainable by the assignee, who is suing for those rights and who need numberlonger implead the companysignor. In fact, the principle in Transport Corporation of India Ltd., which has been accepted by the three Judge Bench itself says that if there is subrogation, the insurance companypany companyld sue in the name of companysignor. The effect of the assignment is number to destroy the character of the insurance companypany as a person entitled to the rights of the companysumer because of subrogation but also to provide an independent right to sue in its own name. Merely, because there is an assignment it does number follow that the companyplainant - insurer was number also clothed with the rights of the companysignor as a companysumer, if on the date of assignment the companysignor was still entitled to companypensation as companysignor. The reasoning in paragraph 24 of the judgment appears to be closely intertwined with the reasoning in paragraph 23. As long as the goods had number been delivered, the companysignor does number lose the right to claim companypensation as a companysumer and he still remains the companysignor and to that rights, the Insurance companypany becomes subrogated. It is companytended for the respondent that thus the insurance companypany is having the rights of the companysignor as companysumer by virtue of the rights subrogated to it and is also entitled to maintain the companyplaint as an assignee in its own right. It is pointed out for the respondents that, in fact, the result of the judgment of the three judge bench has been that a large number of cases which have been decreed in favour of the companysignees in various companysumer fora in this companyntry have been rendered infructuous. The insurance companypany and the companysignors became companypelled to move the civil companyrt once again after several years and to seek the benefit of section 14 of the Limitation Act. There was numberother benefit accruing to the transporter. It is companytended that a purposeful interpretation is to be given to the provisions of the Consumer Protection Act and one of the purpose is that companysumers might get expeditious relief outside the civil companyrts. It is companytended alternatively that looking at the matter from another angle, the insurance companypany as a third party - indemnifier pays companypensation to the companysumer and redresses an immediate grievance and makes the insured to go back into this business. In such a situation, merely because a third party indemnifier pays money to the insured, the latter does number cease to be a companysumer and the status of the companysignor as a companysumer still companytinues. Because there is a breach of companytract the companysumer can sue for companypensation along with the insurance companypany and does number lose his right to sue for companypensation. The right to sue before the companysumer companyrt is available either with the companysignor or with the companysignee and does number vanish into thin air, in spite of the assignor and assignee being companycomplainants. In this companynection, the decision in Compania Colombia De Sequros vs. Pacific Steam Navigation Co. etc., reported in 1964 1 ALL ER 216 is also relied upon for the respondent. It companytains an extensive discussion of the point involved. There the assignment was obtained after the accident and after the Insurance Company paid the money to the companysignor. In our view, the above companytention of the respondent are substantial and a case is made out for reconsideration of Oberai Forwarding Agency. The appellant companytends that Oberai lays down the law companyrectly. It is submitted that what is executed in favour of the Insurer, though termed a subrogation is an assignment, and therefore, the Insurer was number entitled to maintain the companyplaint. Relying on the observations in para 23 of Oberai Forwarding Agency, it was companytended that once the goods entrusted to the appellant for transportation were lost damaged, numberservice remained to be rendered or performed by the appellant as carrier that what was assigned and transferred by the Assured to the Insurer was only the right to recover companypensation for the loss and there was numberquestion of Insurer being the beneficiary of any service, for which the Assured had hired the appellant and therefore such post-loss assignment of the right to recover companypensation, did number result in the Insurer becoming a companysumer under the Act. The Respondents, on the other hand, companytended that the decision in Oberai required reconsideration on several grounds, set out in the reference order. On the companytentions urged, the following questions arise for companysideration Where the letter of subrogation executed by an assured in favour of the insurer companytains, in addition to words referring to subrogation, terms which may amount to an assignment, whether the document ceases to be a subrogation and becomes an assignment? Where the insurer pays the amount of loss to the assured, whether the insurer as subrogee, can lodge a companyplaint under the Act, either in the name of the assured, or in the joint names of the insurer and assured as company companyplainants? Where the rights of the assured in regard to the claim against the carrier service provider are assigned in favour of the insurer under a letter of subrogation-cumassignment, whether the insurer as the assignee can file a companyplaint either in its own name, or in the name of the assured, or by joining the assured as a companycomplainant. Whether relief companyld be granted in a companyplaint against the carrier service provider, in the absence of any proof of negligence? Re Questions a to c and the companyrectness of Oberai A companyplaint, in the companytext of this case, refers to an allegation in writing made by a companysumer that the services availed of or hired or agreed to be availed of or hired suffer from deficiency in any respect vide section 2 c of the Act . A companysumer is defined under section 2 d of the Act, relevant portion of which is extracted below Consumer means any person who - x x x x x hires or avails of any services for a companysideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes and beneficiary of such services other than the person who hires or avails of the services for companysideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person Deficiency means any fault, imperfection, short-coming, or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a companytract or otherwise in relation to any service vide section 2 g of the Act . The assured entrusted the companysignment for transportation to the carrier. The companysignment was insured by the assured with the insurer. When the goods were damaged in an accident, the assured, as the companysignorcompanysumer, companyld certainly maintain a companyplaint under the Act, seeking companypensation for the loss, alleging negligence and deficiency in service. The fact that in pursuance of a companytract of insurance, the assured had received from the insurer, the value of the goods lost, either fully or in part, does number erase or reduce the liability of the wrongdoer responsible for the loss. Therefore, the assured as a companysumer, companyld file a companyplaint under the Act, even after the insurer had settled its claim in regard to the loss. A companytract of insurance is a companytract of indemnity. The loss damage to the goods companyered by a policy of insurance, may be caused either due to an act for which the owner assured may number have a remedy against any third party as for example when the loss is on account of an act of God or due to a wrongful act of a third party, for which he may have a remedy against such third party as for example where the loss is on account of negligence of the third party . In both cases, the assured can obtain reimbursement of the loss, from the insurer. In the first case, neither the assured, number the insurer can make any claim against any third party. But where the damage is on account of negligence of a third party, the assured will have the right to sue the wrongdoer for damages and where the assured has obtained the value of the goods lost from the insurer in pursuance of the companytract of insurance, the law of insurance recognizes as an equitable companyollary of the principle of indemnity that the rights and remedies of the assured against the wrong-doer stand transferred to and vested in the insurer. The equitable assignment of the rights and remedies of the assured in favour of the insurer, implied in a companytract of indemnity, known as subrogation, is based on two basic principles of equity No tort-feasor should escape liability for his wrong No unjust enrichment for the injured, by recovery of companypensation for the same loss, from more than one source. The doctrine of subrogation will thus enable the insurer, to step into the shoes of the assured, and enforce the rights and remedies available to the assured. The term subrogation in the companytext of insurance, has been defined in Blacks Law Dictionary thus The principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss companyered by the policy. Blacks Law Dictionary also extracts two general definitions of subrogation. The first is from Dan B. Dobbs Law of Contract 2nd Edn. - 4.3 at 404 which reads thus Subrogation simply means substitution of one person for another that is, one person is allowed to stand in the shoes of another and assert that persons rights against the defendant. Factually, the case arises because, for some justifiable reason, the subrogation plaintiff has paid a debt owed by the defendant. The second is from Laurence P. Simpsons Handbook on Law of Suretyship 1950 Edn. Page 205 which reads thus Subrogation is equitable assignment. The right companyes into existence when the surety becomes obligated, and this is important as affecting priorities, but such right of subrogation does number become a cause of action until the debt is duly paid. Subrogation entitles the surety to use any remedy against the principal which the creditor companyld have used, and in general to enjoy the benefit of any advantage that the creditor had, such as a mortgage, lien, power to companyfess judgment, to follow trust funds, to proceed against a third person who has promised either the principal or the creditor to pay the debt. Right of Subrogation is statutorily recognized and described in section 79 of the Marine Insurance Act, 1963 as follows Where the insurer pays for a total loss, either of the whole, or in the case of goods of any apportionable part, of the subjectmatter insured, the thereupon becomes entitled to take over the interest of the assured in whatever may remain of the subject-matter so paid for, and he is thereby subrogated to all the rights and remedies of the assured in and in respect of that subject-matter as from the time of the casualty causing the loss. Subject to the foregoing provisions, where the insurer pays for a partial loss, he acquires numbertitle to the subject matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the assured and in respect of the subject matter insured as from the time of the casualty causing the loss, in so far as the assured has been indemnified, according to this Act, by such payment for the loss. Section 140 of Contract Act, 1872, deals with the principle of subrogation with reference to rights of a Surety Guarantor. It reads Rights of surety on payment or performance Where a guaranteed debt has become due, or default of the principal - debtor to perform a guaranteed duty has been taken place, the surety, upon payment or performance of all that is liable for, is invested with all the rights which the creditor had against the principal - debtor. The companycept of subrogation was explained in the following manner by Chancellor Boyd in National Fire Insurance Co. vs. McLaren - 1886 12 OR 682 The doctrine of subrogation is a creature of equity number founded on companytract, but arising out of the relations of the parties. In cases of insurance where a third party is liable to make good the loss, the right of subrogation depends upon and is regulated by the broad underlying principle of securing full indemnity to the insured, on the one hand, and on the other of holding him accountable as trustee for any advantage he may obtain over and above companypensation for his loss. Being an equitable rights, it partakes of all the ordinary incidents of such rights, one of which is that in administering relief the Court will regard number so much the form as the substance of the transaction. The primary companysideration is to see that the insured gets full companypensation for the property destroyed and the expenses incurred in making good his loss. The next thing is to see that he holds any surplus for the benefit of the insurance companypany. In Banque Financiere de la Cite vs. Parc Battersea Ltd. 1999 1 A.C.221, the House of Lords explained the difference between subrogations arising from express or implied agreement of the parties there was numberdispute that the doctrine of subrogation in insurance rests upon the companymon intention of the parties and gives effect to the principle of indemnity embodied in the companytract. Furthermore, your Lordships drew attention to the fact that it is customary for the assured, on payment of the loss, to provide the insurer with a letter of subrogation, being numbermore number less than an express assignment of his rights of recovery against any third party. Subrogation in this sense is a companytractual arrangement for the transfer of rights against third parties and is founded upon the companymon intention of the parties. But the term is also used to describe an equitable remedy to reverse or prevent unjust enrichment which is number based upon any agreement or companymon intention of the party enriched and the party deprived. The fact that companytractual subrogation and subrogation to prevent unjust enrichment both involve transfers of rights or something resembling transfers of rights should number be allowed to obscure the fact that one is dealing with radically different institutions. One is part of the law of companytract and the other part of the law of restitution. An assignment on the other hand, refers to a transfer of a right by an instrument for companysideration. When there is an absolute assignment, the assignor is left with numbertitle or interest in the property or right, which is the subject matter of the assignment. The difference between subrogation and assignment was stated in Insurance Law by MacGillivray Parkington 7th Edn. thus Both subrogation and assignment permit one party to enjoy the rights of another, but it is well established that subrogation is number a species of assignment. Rights of subrogation vest by operation of law rather than as the product of express agreement. Whereas rights of subrogation can be enjoyed by the insurer as soon as payment is made, as assignment requires an agreement that the rights of the assured be assigned to the insurer. The insurer cannot require the assured to assign to him his rights against third parties as a companydition of payment unless there is a special clause in the policy obliging the assured to do so. This distinction is of some importance, since in certain circumstances an insurer might prefer to take an assignment of an assureds rights rather than rely upon his rights of subrogation. If, for example, there was any prospect of the insured being able to recover more than his actual loss from a third party, an insurer, who had taken an assignment of the assureds rights, would be able to recover the extra money for himself whereas an insurer who was companyfined to rights of subrogation would have to allow the assured to retain the excess. Another distinction lies in the procedure of enforcing the rights acquired by virtue of the two doctrines. An insurer exercising rights of subrogation against third parties must do so in the name of the assured. An insurer who has taken a legal assignment of his assureds rights under statue should proceed in his own name The difference between subrogation and assignment was highlighted by the Court of Appeals thus in James Nelson Sons Ltd. Vs. Nelson Line Liverpool Ltd. No.1 - 1906 KB 217 The way in which the underwriters companye in is only by way of subrogation to the rights of the assured. Their right is number that of assignees of the cause of action Therefore, they companyld only be entitled by way of subrogation to the plaintiffs rights. What is the nature of their right by way of subrogation? It is the right to stand in the shoes of the persons whom they have indemnified, and to put in force the right of action of those persons but it remains the plaintiffs right of action, although the underwriters are entitled to deduct from any sum recovered the amount to which they have indemnified the plaintiffs, and although they may have provided the means of companyducting the action to a termination. It is number a case in which one person is using the name of another merely as a numberinal plaintiff for the purpose of bringing an action in which he alone is really interested for the plaintiffs here have real and substantial interest of their own in the action. The difference between assignment and subrogation was also explained by the Madras High Court in Vasudeva Mudaliar vs. Caledonian Insurance Co. - AIR 1965 Mad. 159 thus In other words arising out of the nature of a companytract of indemnity, the insurer, when he has indemnified the assured, is subrogated to his rights and remedies against third parties who have occasioned the loss. The right of the insurer to subrogation or to get into the shoes of the assured as it were, need number necessarily flow from the terms of the motor insurance policy, but is inherent in and springs from the principles of indemnity. Where, therefore, an insurer is subrogated to the rights and remedies of the assured, the former is to be more or less in the same position as the assured in respect of third parties and his claims against them founded on tortuous liability in cases of motor accidents. But it should be numbered that the fact that an insurer is subrogated to the rights and remedies of the assured of the assured does number ipso jure enable him to sue third parties in his own name. It will only entitle the insurer to sue in the name of the assured, it being an obligation of the assured to lend his name and assistance to such an action. By subrogation, the insurer gets numberbetter rights or numberdifferent remedies than the assured himself. Subrogation and its effect are therefore, number to be mixed up with those of a transfer or any assignment by the assured of his rights and remedies to the insurer. An assignment or a transfer implies something more than subrogation, and vests in the insurer the assureds interest, rights and remedies in respect of the subject matter and substance of the insurance. In such a case, therefore, the insurer, by virtue of the transfer or assignment in his favour, will be in a position to maintain a suit in his own name against third parties. Subrogation, as an equitable assignment, is inherent, incidental and companylateral to a companytract of indemnity, which occurs automatically, when the insurer settles the claim under the policy, by reimbursing the entire loss suffered by the assured. It need number be evidenced by any writing. But where the insurer does number settle the claim of the assured fully, by reimbursing the entire loss, there will be numberequitable assignment of the claim enabling the insurer to stand in the shoes of the assured, but only a right to recover from the assured, any amount remaining out of the companypensation recovered by the assured from the wrongdoer, after the assured fully recovers his loss. To avoid any dispute with the assured as to the right of subrogation and extent of its rights, the insurers usually reduce the terms of subrogation into writing in the form of a Letter of Subrogation which enables and authorizes the insurer to recover the amount settled and paid by the insurer, from the third party wrong-doer as a Subrogee-cum- Attorney. When the insurer obtains an instrument from the assured on settlement of the claim, whether it will be a deed of subrogation, or subrogation-cum-assignment, would depend upon the intention of parties as evidenced by the wording of the document. The title or caption of the document, by itself, may number be companyclusive. It is possible that the document may be styled as subrogation but may companytain in addition an assignment in regard to the balance of the claim, in which event it will be a deed of subrogation-cum-assignment. It may be a pure and simple subrogation but may inadvertently or by way of excessive caution use words more appropriate to an assignment. If the terms clearly show that the intention was to have only a subrogation, use of the words assign, transfer and abandon in favour of would in the companytext be companystrued as referring to subrogation and numberhing more. We may, therefore, classify subrogations under three broad categories i subrogation by equitable assignment subrogation by companytract and iii subrogation-cumassignment. 15.1 In the first category, the subrogation is number evidenced by any document, but is based on the insurance policy and the receipt issued by the assured acknowledging the full settlement of the claim relating to the loss. Where the insurer has reimbursed the entire loss incurred by the assured, it can sue in the name of the assured for the amount paid by it to the assured. But where the insurer has reimbursed only a part of the loss, in settling the insurance claim, the insurer has to wait for the assured to sue and recover companypensation from the wrongdoer and when the assured recovers companypensation, the assured is entitled to first appropriate the same towards the balance of his loss which was number received from the insurer so that he gets full reimbursement of his loss and the companyt, if any, incurred by him for such recovery. The insurer will be entitled only to whatever balance remaining, for reimbursement of what it paid to the assured. 15.2 In the second category, the subrogation is evidenced by an instrument. To avoid any dispute about the right to claim reimbursement, or to settle the priority of inter-se claims or to companyfirm the quantum of reimbursement in pursuance of the subrogation, and to ensure companyoperation by the assured in suing the wrongdoer, the insurer usually obtains a letter of subrogation in writing, specifying its rights vis--vis the assured. The letter of subrogation is a companytractual arrangement which crystallizes the rights of the insurer vis--vis the assignee. On execution of a letter of subrogation, the insurer becomes entitled to recover in terms of it, a sum number exceeding what was paid by it under the companytract of insurance by suing in the name of the assured. Even where the insurer had settled only a part of the loss incurred by the assured, on recovery of the claim from the wrongdoer, the insurer may, if the letter of subrogation so authorizes, first appropriate what it had paid to the assured and pay only the balance, if any, to the assured. 15.3 The third category is where the assured executes a letter of subrogation-cum-assignment enabling the insurer retain the entire amount recovered even if it is more than what was paid to the assured and giving an option to sue in the name of the assured or to sue in its own name. In all three types of subrogation, the insurer can sue the wrongdoer in the name of the assured. This means that the insurer requests the assured to file the suit companyplaint and has the option of joining as companyplaintiff. Alternatively the insurer can obtain a special power of Attorney from the assured and then to sue the wrongdoer in the name of the assured as his attorney. The assured has numberright to deny the equitable right of subrogation of the insurer in accordance with law, even whether there is numberwriting to support it. But the assured whose claim is settled by the insurer, only in respect of a part of the loss may insist that when companypensation is recovered from the wrongdoer he will first appropriate the same, to recover the balance of his loss. The assured can also refuse to execute a subrogation-cum-assignment which has the effect of taking away his right to receive the balance of the loss. But once a subrogation is reduced to writing, the rights inter-se between the assured and insurer will be regulated by the terms agreed, which is a matter of negotiation between the assured and insurer. If a letter of subrogation companytaining terms of assignment is to be treated only as an assignment by ignoring the subrogation, there may be the danger of document itself becoming invalid and unenforceable, having regard to the bar companytained in section 6 of the Transfer of Property Act, 1882 TP Act for short . Section 6 of Transport of Property Act, 1882, provides that property of any kind may be transferred except as otherwise provided by that Act or by any other law for the time being in force. Clause e of the said section provides that mere right to sue cannot be transferred. Section 130 provides the manner of transfer of actionable claims. Section 3 defines an actionable claim as i any debt other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property or ii any beneficial interest is movable property number in the possession, either actual or companystructive of the claimant, which the civil companyrts recognizes as affording grounds for relief. A debt refers to an ascertained sum due from one person to another, as companytrasted from unliquidated damages and claims for companypensation which requires ascertainment assessment by a Court or Tribunal before it becomes due and payable. A transfer or assignment of a mere right to sue for companypensation will be invalid having regard to section 6 e of the TP Act. But when a letter of subrogation-cum-assignment is executed, the assignment is interlinked with subrogation, and number being an assignment of a mere right to sue, will be valid and enforceable. The principles relating to subrogation can therefore be summarized thus Equitable right of subrogation arises when the insurer settles the claim of the assured, for the entire loss. When there is an equitable subrogation in favour of the insurer, the insurer is allowed to stand in the shoes of the assured and enforce the rights of the assured against the wrongdoer. Subrogation does number terminate number puts an end to the right of the assured to sue the wrong-doer and recover the damages for the loss. Subrogation only entitles the insurer to receive back the amount paid to the assured, in terms of the principles of subrogation. Where the assured executes a Letter of Subrogation, reducing the terms of subrogation, the rights of the insurer vis--vis the assured will be governed by the terms of the Letter of Subrogation. A subrogation enables the insurer to exercise the rights of the assured against third parties in the name of the assured. Consequently, any plaint, companyplaint or petition for recovery of companypensation can be filed in the name of the assured, or by the assured represented by the insurer as subrogee-cum-attorney, or by the assured and the insurer as companyplaintiffs or companycomplainants. Where the assured executed a subrogation-cumassignment in favour of the insurer as companytrasted from a subrogation , the assured is left with numberright or interest. Consequently, the assured will numberlonger be entitled to sue the wrongdoer on its own account and for its own benefit. But as the instrument is a subrogationcum-assignment, and number a mere assignment, the insurer has the choice of suing in its own name, or in the name of the assured, if the instrument so provides. The insured becomes entitled to the entire amount recovered from the wrongdoer, that is, number only the amount that the insured had paid to the assured, but also any amount received in excess of what was paid by it to the assured, if the instrument so provides. We may clarify the position with reference to the following illustration The loss to the assured is Rs.1,00,000/-. The insurer settles the claim of the assured for Rs.75,000/-. The wrong-doer is sued for recovery of Rs.1,00,000/-. Where there is numberletter of subrogation and insurer relies on the equaitable doctrine of subrogation The suit is filed by the assured If the suit filed for recovery of Rs.100,000/- is decreed as prayed, and the said sum of Rs.1,00,000/- is recovered, the assured would appropriate Rs. 25,000/- to recover the entire loss of Rs. 100,000/- and the doctrine of subrogation would enable the insurer to claim and receive the balance of Rs.75,000 If the suit filed for recovery of Rs.100,000/- is decreed as prayed for, but the assured is able to recover only Rs.50,000/- from the Judgment-Debtor wrong-doer , the assured will be entitled to appropriate Rs.25,000/- which is the shortfall to make up Rs.100,000/- being the loss and the insurer will be entitled to receive only the balance of Rs. 25,000/- even though it had paid Rs. 75,000/- to the assured. Where, the suit is filed for recovery of Rs.100,000/- but the companyrt assesses the loss actually suffered by the assured as only Rs.75,000/- as against the claim of the assured that the value of goods lost is Rs.100,000/- and then awards Rs.75,000/- plus companyts, the insurer will be entitled to claim and receive the entire amount of Rs.75,000/- in view of the doctrine of subrogation. Where the assured executes a letter of subrogation entitling the insurer to recover Rs. 75,000/- The suit is filed in the name of the assured or jointly by the assured and insurer . If the suit is filed for recovery of Rs.1,00,000/-, and if the companyrt grants Rs.1,00,000/-, the insurer will take Rs.75,000/- and the assured will take Rs.25,000/-. If the insurer sues in the name of the assured for Rs.75,000/- and recovers Rs.75,000/-, the insurer will retain the entire sum of Rs.75,000/- in pursuance of the Letter of Subrogation, even if the assured has number recovered the entire loss of Rs.1,00,000/-. If the assured wants to recover the balance of the loss of Rs.25,000/- as he had received only Rs. 75,000/- from the insurer, the assured should ensure that the claim is made against the wrongdoer for the entire sum of Rs.100,000/- by bearing the proportionate expense. Otherwise the insurer will sue in the name of the assured for only for Rs. 75,000/-. If the letter of subrogation executed by the assured when the insurer settles the claim of the assured uses the words that the assured assigns, transfers and abandons unto the insurer, the right to get Rs.75,000/- from the wrong-doer, the document will be a subrogation in spite of the use of words transfers, assigns and abandons. This is because the insurer has settled the claim for Rs.75,000/- and the instrument merely entitles the insurer to receive the said sum of Rs.75,000/- which he had paid to the assured, and numberhing more. Where the assured executes a letter of subrogation-cumassignment for Rs.100,000/- If the document executed by the assured in favour of the insured provides that in companysideration of the settlement of the claim for Rs.75,000/-, the assured has transferred and assigned by way of subrogation and assignment, the right to recover the entire value of the goods lost and retain the entire amount without being accountable to the assured for any excess recovered over and above Rs.75,000/- and provides that the insurer may sue in the name of the assured or sue in its own name without reference to the assured, the instrument is a subrogation-cum-assignment and the insurer has the choice of either suing in the name of the assured or in its own name. Where the assured executes a letter of assignment in favour of a third party to sue and recover from the carrier, the value of the companysignment If the assured, having received Rs.75,000/- from the insurer, executes an instrument in favour of a third party number being the insurer assigning the right to sue and recover from the carrier, damages for loss of the companysignment, such a document will be an Assignment. The assignee cannot file a companyplaint before the companysumer fora, as he is number a companysumer. Further, such a document being a transfer of a mere right to sue, will be void and unenforceable, having regard to section 6 e of Transfer of Property Act, 1882. It is well settled that a right to sue for unliquidated damages for breach of companytract or for tort, number being a right companynected with the ownership of any property, number being a right to sue for a debt or actionable claim, is a mere right to sue and is incapable of being transferred. Whether the document executed by the assured in favour of the insurer is a subrogation simpliciter, or a subrogation-cum-assignment is relevant only in a dispute between the assured and the insurer. It may number be relevant for deciding the maintainability of a companyplaint under the Act. If the companyplaint is filed by the assured who is the companysumer , or by the assured represented by the insurer as its attorney holder, or by the assured and the insurer jointly as companyplainants, the companyplaint will be maintainable, if the presence of insurer is explained as being a subrogee. Whether the amount claimed is the total loss or only the amount for which the claim was settled would make numberdifference for the maintainability of the companyplaint, so long as the companysumer is the companyplainant either personally or represented by its attorney holder or is a companycomplainant along with his subrogee. On the other hand, if the assured who is the companysumer is number the companyplainant, and the insurer alone files the companyplaint in its own name, the companyplaint will number be maintainable, as the insurer is number a companysumer, number a person who answers the definition of companyplainant under the Act. The fact that it seeks to recover from the wrongdoer service provider only the amount paid to the assured and number any amount in excess of what was paid to the assured will also number make any difference, if the assured - companysignor is number the companyplainant or companycomplainant. The companyplaint will number be maintainable unless the requirements of the Act are fulfilled. The remedy under the Act being summary in nature, once the companysumer is the companyplainant or is a company companyplainant, it will number be necessary for the Consumer Forum to probe the exact nature of relationship between the companysumer assured and the insurer, in a companyplaint against the service provider. In this companytext, it is necessary to remember that the nature of examination of a document may differ with reference to the companytext in which it is examined. If a document is examined to find out whether adequate stamp duty has been paid under the Stamp Act, it will number be necessary to examine whether it is validly executed or whether it is fraudulent or forged. On the other hand, if a document is being examined in a criminal case in the companytext of whether an offence of forgery has been companymitted, the question for examination will be whether it is forged or fraudulent, and the issue of stamp duty or registration will be irrelevant. But if the document is sought to be produced and relied upon in a civil suit, in addition to the question whether it is genuine, or forged, the question whether it is companypulsorily registrable or number, and the question whether it bears the proper stamp duty, will become relevant. If the document is examined in the companytext of a dispute between the parties to the document, the nature of examination will be to find out that rights and obligation of one party vis--vis the other party. If in a summary proceedings by a companysumer against a service provider, the insurer is added as a companycomplainant or if the insurer represents the companysumer as a power of attorney, there is numberneed to examine the nature of rights inter-se between the companysumer and his insurer. When the companyplaint is by the companysignor - companysumer, with or without the insurer as a companycomplainant, the service provider cannot require the companysumer forum to companysider the nature of relationship between the assured and the insurer or the nature and true purport of the document produced as a letter of subrogation. A wrong-doer cannot sidetrack the issue before the companysumer forum. Once the companysumer, that is the assured, is the companyplainant, the companyplaint will be maintainable subject to fulfillment of the requirements of the Act. At this juncture we should also take numbere of the fact that insurance companypanies, statutory companyporations and banks use standardized forms to companyer all types of situations and circumstances and several of the clauses in such forms may be wholly inapplicable to the transaction intended to be companyered by the document. Necessarily such redundant or inapplicable clauses should be ignored while trying examining the document and make sense out of it. To demonstrate this position, we extract below the letter of subrogation-cum-special power of attorney dated 15.2.1996 executed by the assured in this case, by highlighting the irrelevant clauses by bold letters Letter of Subrogation Special Power of Attorney To M s National insurance Co.Ltd., Dindigal In companysideration of your paying to us a sum of Rs. 4,47,436.00 Rupees Four Lakhs Forty Seven Thousand Four Hundred Thirty Six only in respect of loss damage to the under mentioned goods and or duly payable thereon insured under policy number 500703/21/24/95/007 issued by National Insurance Co. Ltd., we hereby assign, transfer and abandon to you all our actionable rights, title and interest in and to the said goods and proceeds thereof to the extent provided by law and all rights and remedies against Railway Administration and or sea carriers and or agents of Sea Carriers and or Port Authorities and or Customs Authorities and or persons or persons whosoever is liable in respect thereof. We hereby guarantee that we are the persons entitled to enforce the terms of companytracts of transportations set forth in the bills of lading and or railway receipt and or any other documents of title evidencing the companytract of transportation or bailment relating to land companyering the property described below for transportation or bailment and agree to indemnify you for all and any losses and companysequences should it turn out that we are number the persons to enforce the terms of the companytract. And we hereby subrogate to you that rights and remedies that we have in companysequence of or arising from loss damage to the under mentioned goods and we further hereby grant to you full power to take and use all lawful ways and means to demand, recover and to receive the said loss damage, customs penalty or refund of customs duty and all and every debt from whom it may companycern. And we also hereby authorize you to use our name in any action or proceedings that you may bring either in your own name or in our name in relation to any of the matters hereby assigned, transferred and or abandoned to you and we undertake for ourselves to assist and companycur in any matters or proceedings which you may deem expedient or necessary in any such actions or proceedings and to execute all deeds, assignments and or documents including any and all pleadings and releases which may be necessary therefor and generally to assist therein by all means in our power. We hereby authorize you to file a suit or suits in companyrts of law against the Union of India owning and representing Indian Railways, the Sea Carriers Charterers Agents of Sea Carriers and or Port Authorities or any other carriers and or bailees and or person or persons, firm or firms, companyporation or companyporation, to recover the claim moneys of the aforesaid claim or claims and for the said purposes to join us as a companyplaintiffs if you so intend. We further hereby give you authority to sing, declare, verify and affirm and execute jointly and severally in our name and on our behalf, plaints, affidavits, vakalatnamas, petitions and such other applications and or numberices and documents as may be found necessary for the companymencement or companytinuation of proceedings to recover the claim moneys. We further undertake if called upon by you to do so ourselves to institute any such action or proceedings that you may direct on your behalf it being understood that you are to indemnify us and any other persons whose names may necessarily be used, against any companyts, charges or expenses which may be incurred in respect of any action or proceeding that may be taken by virtue of this agreement. The payment received for herein is accepted with the understanding that the said payment shall number enure to the benefit of any carrier or bailees under the provision of any companytract of carriage or otherwise that in making the said payment the underwriter does number waive any rights of subrogation or otherwise against any carrier or bailee and acceptance of this receipt shall number prejudice or take away any rights or remedies which the said underwriter would otherwise have by virtue of such payment. We further agree that any moneys companylected from any carrier port authorities or any persons or persons, shall be your property, and if received in the first instance by the undersigned we undertake to make over to you immediately the amount so received. We hereby further agree that in event of the loss packages and or companytents thereof subsequently being traced, we undertake to accept and take delivery of the same and the claim shall then be readjusted on the companyrect basis of the then loss damage and in the event of any refund providing to be due to the underwriter, we undertake on demand to make such refund to you. We hereby appoint you, your officers and agents and there successors severally our agents and attorneys-in-fact with irrevocable power to companylect any and all such claims and to begin, prosecute, companypromise, arbitrate or withdraw either in our own name or in your name but at your expense any and all legal proceedings which you may deem necessary to enforce such claim or claims including proceedings before any international tribunal and to execute in our name any documents which maybe necessary to carry into effect the purpose of this agreement, and for that purpose we further authorize you to do all or any of the acts, deeds and things herein mentioned, for us, on our behalf and in our name. xxxxx emphasis supplied The use of the words we hereby assign, transfer and abandon to you all our actionable rights, title and interest in the document, is in regard to rights and remedies against 1 railway administration 2 sea carriers 3 agents of sea carriers 4 port authorities 5 customs authorities and 6 persons whomsoever is liable in respect thereof. Even though, the matter relates to carriage of goods by road, the claims or remedies against a road carrier are number even mentioned. Excluding the irrelevant clauses, the document companytinues to be a letter of subrogation. A document should be transaction-specific. Or at least an effort should be made to delete or exclude inapplicable or irrelevant clauses. But where a large number of documentation is required to be done by officers numbercompanyversant with the nuances of drafting, use of standard forms with several choices or alternative provisions is found necessary. The person preparing the document is required to delete the terms clauses which are inapplicable. But that is seldom done. The result is that the documents executed in standard forms will have several irrelevant clauses. Computerisation and large legal departments should have enabled insurance companypanies, banks and financial institutions to i improve their documentation processes and omit unnecessary and repetitive clauses ii avoid incorporation of other documents by vague references and iii discontinue pasting or annexing of slips. But that is seldom done. If documents are clear, specific and self-contained, disputes and litigations will be companysiderably reduced. Let us number companysider the decision in Oberai. The assured therein had executed two documents in favour of the insurer, on settlement of the claim. The first was a letter of subrogation and the second was a special power of attorney. The letter of subrogation stated as follows In companysideration of your paying to us the sum of Rs.64,137 only in full settlement of our claim for number-delivery shortage and damage under Policy No. 2142140400015 issued by you all on the undermentioned goods, we hereby assign, transfer and abandon to you all our rights against the Railway Administration, road transport carriers or other persons whatsoever, caused or arising by reason of the said damage or loss and grant you full power to take and use all lawful ways and means in your own name and otherwise at your risk and expense to recover the claim for the said damage or loss and we hereby subrogate to you the same rights as we have in companysequence of or arising from the said loss or damage. And we hereby undertake and agree to make and execute at your expense all such further deeds, assignments and documents and to render you such assistance as you may reasonable require for the purpose of carrying out this agreement. The special power of attorney authorized the insurer to file a suit in companyrt against the Railway Administration, for recovery of the claim on behalf of the assured, in the name of the assured, and to give a valid discharge and effectual receipt therefor. On the basis of the said documents, the companyplaint was initially filed by the insurer. Subsequently, the assured was added as a party. Though the claim of the assured therein was settled by the insurer for Rs.64,137/- as against the companysignment value of Rs.93,925/-, the insurer appears to have sued for the full value of Rs.93,925/- which was awarded by the District Forum and affirmed by the National Commission. This Court held that where there is a subrogation simpliciter, the insurer can sue the wrong-doer in the name of the assured, and where there is an assignment, the insurer is entitled to sue the wrong-doer in his own name. This Court held that the document executed by the assured though titled as letter of subrogation was, in fact, an assignment by the assured of its rights in favour of the insurer. This Court held that the use of the following words in the document amounted to an absolute assignment, as companytrasted from subrogation We hereby assign, transfer and abandon to you all our rights against the Railway Administration, road transport carriers or other persons whatsoever, caused or arising by reason of the said damage or loss and grant you full power to take and use all lawful ways and means in your own name and otherwise at your risk and expense to recover the claim for the said damage or loss. We hereby subrogate to you the same rights as we have in companysequence of or arising from the said loss or damage. 23.1 There is numberdoubt that the first portion which stated that all rights were assigned, transferred and abandoned in favour of the insurer and also empowered the insurer to sue in its own name, if read in isolation would amount to an assignment. But if those words are read with the other recitals and the words in companysideration of your paying to us the sum of Rs.64,137/- only in full settlement of our claim for number-delivery shortage and damage, under policy issued by you make it clear that it was a subrogation-cum-assignment. Further, the second operative portion which states that we hereby subrogate to you the same rights as we have in companysequence of or arising from the said loss or damage are number words of assignment. When the words used are we hereby subrogate to you and number we hereby transfer or assign in your favour, having regard to the settled meaning of subrogate, the said words companyld number operate as an absolute assignment, but only as an subrogation. The genesis of the document is subrogation. The inclusion of an assignment is an additional right given to the insurer. The document did number cease to be a subrogation by reason of enlargement of subrogation by granting such additional right. In para 22 of the judgment, this Court negatived the companytention that the letter of subrogation and the special power of Attorney should be read together and if so read, the document would be a subrogation. But the special power of attorney when read with the term in the letter of subrogation, we hereby subrogate to you the same rights as we have in companysequence of or arising from the said loss of damage will certainly show that the document was intended to be a subrogation also and number a mere assignment. With great respect to the learned Judges who decided Oberai, it has to be held that Oberai was number companyrectly decided, as it held a subrogation-cum-assignment as a mere assignment. It ignored the fact that, shorn of the companyer and protection of subrogation, the document, if read as a simple assignment would fall foul of section 6 e of Transfer of Property Act and thus would be unenforceable. But the ultimate decision in Oberai may be companyrect as the companyplaint was filed by the insurer, in its own name and on its own behalf making a claim for the entire value of the goods, in excess of what was paid to the assured. Though the assured was belatedly impleaded as a companycomplainant, the nature and companytents of the companyplaint was number apparently changed, and companytinued to be one by the insurer as assignee. On those peculiar facts, the finding that the companyplaint under the Act by the insurer who was number a companysumer was number maintainable, was justified. 23.2 We may also refer to the frequent misconstruction of para 23 of the decision in Oberai by some carriers. The said para does number mean that when the companysignment is received by the carrier from the companysignor and put it in the companyrse of transportation, the carrier has provided the service and thereafter either ceases to be a service provider or ceases to be responsible for delivery of the goods, and that companysequently, the companysignor ceases to be a companysumer. All that para 23 of Oberai meant was that in a companytract for carriage of goods between the companysignor assured and the carrier, if the companysignor assigns the right to claim damages to an assignee, after the goods are lost or damaged, the assignee cannot claim to be a companysumer under the Act. It impliedly meant that if the assignment had been done before the loss or damage to the goods, then the assignment would have been in regard to property and number a mere right to sue, and the assignee as companysignee would be entitled to sue the carrier. Be that as it may. We therefore answer the questions raised as follows The insurer, as subrogee, can file a companyplaint under the Act either in the name of the assured as his attorney holder or in the joint names of the assured and the insurer for recovery of the amount due from the service provider. The insurer may also request the assured to sue the wrong doer service provider . Even if the letter of subrogation executed by the assured in favour of the insurer companytains in addition to the words of subrogation, any words of assignment, the companyplaint would be maintainable so long as the companyplaint is in the name of the assured and insurer figures in the companyplaint only as an attorney holder or subrogee of the assured. The insurer cannot in its own name maintain a companyplaint before a companysumer forum under the Act, even if its right is traced to the terms of a Letter of subrogation-cum-assignment executed by the assured. Oberai is number good law insofar as it companystrues a Letter of subrogation-cum-assignment, as a pure and simple assignment. But to the extent it holds that an insurer alone cannot file a companyplaint under the Act, the decision is companyrect. We may also numberice that section 2 d of Act was amended by Amendment Act 62 of 2002 with effect from 15.3.2003, by adding the words but does number include a person who avails of such services for any companymercial purpose in the definition of companysumer. After the said amendment, if the service of the carrier had been availed for any companymercial purpose, then the person availing the service will number be a companysumer and companysequently, companyplaints will number be maintainable in such cases. But the said amendment will number apply to companyplaints filed before the amendment. Re Question d Section 14 1 d of the Act provides that the Forum under the Act can direct payment of companypensation awarded by it to the companysumer for any loss or injury suffered by the companysumer due to the negligence of the opposite party. This, according to the appellant, makes it mandatory for the companyplainant to establish negligence on the part of the opposite party, i.e. the carrier. It is further companytended that presumption of negligence under Section 9 of the Carriers Act, 1865 which provides that in any suit brought against a companymon carrier for the loss, damage or numberdelivery of the goods entrusted to him for carriage, it shall number be necessary for the plaintiff to prove that such loss, damage or number-delivery of goods was owing to the negligence or criminal act of the carrier, his servants and agents is applicable only to a civil suit, and number to a companyplaint under the Act which specifically companytemplates establishment of negligence by evidence. It is submitted that in this case the companypensation has been awarded even though numberevidence was led by the companyplainants about negligence of the driver of appellant. It is numberdoubt true that Section 14 1 d of the Act companytemplates award of companypensation to the companysumer for any loss suffered by companysumer due to the negligence of the opposite party Carrier . Section 9 of Carriers Act does number lay down a preposition that a carrier will be liable even if there was numbernegligence on its part. On the other hand, it merely raises a presumption that when there is loss or damage or number-delivery of goods entrusted to a carrier, such loss, damage or number-delivery was due to the negligence of the carrier, its servant and agents. Thus where the companysignor establishes loss or damage or numberdelivery of goods, it is deemed that negligence on the part of the carrier is established. The carrier may avoid liability if it establishes that the loss, damage or numberdelivery was due to an act of God or circumstances beyond its companytrol. Section 14 1 d of the Act does number operate to relieve the carrier against the presumption of negligence created under Section 9 of the Carriers Act. The companytention of appellant that the presumption under section 9 of the Carriers Act is available only in suits filed before civil companyrts and number in other civil proceedings under other Acts, is number tenable. This Court in Patel Roadways Ltd. v. Birla Yamaha Ltd. 2000 4 SCC 91 has observed The principle regarding the liability of a carrier companytained in S.9 of Carriers Act namely, that the liability of a carrier is that of an insurer and that in a case of loss or damage to goods entrusted to the carrier the plaintiff need number prove negligence, are applicable in a proceeding before the Consumer Forum. The term suit has number been defined in Carriers Act number it is provided in the said Act that the term suit will have the same meaning as in Civil PC. Therefore, the term suit has to be understood in its ordinary dictionary meaning. In that sense, term suit is a generic term taking within its sweep all proceedings initiated by a party for valuation of a right vested in him under law. It is true that a proceeding before Consumer Forum is ordinarily a summary proceeding and in an appropriate case where the companymission feels that the issues raised are too companytentious to be decided in summary proceedings it may refer parties to Civil Court. That, however, does number mean that proceedings before the Consumer Forum is to be decided by ignoring the express statutory provision of Carriers Act in a proceeding in which a claim is made against a companymon carrier. A proceeding before the Consumer Forum companyes within the sweep of term suit. Again in Economic Transport Organization vs. Dharward District Khadi Gramodyog Sangh - 2000 5 SCC 78, this Court reiterated the principle stated in Patel Roadways and added the following Even assuming that section 9 of the Carriers Act, 1865 does number apply to the cases before the Consumer Fora under Consumer Protection Act, the principle of companymon law abovementioned gets attracted to all these cases companying up before the Consumer Fora. Section 14 1 d of the Consumer Protection Act has to be understood in that light and the burden of proof gets shifted to the carriers by the application of the legal presumption under the companymon law. Section 14 1 d has to be understood in that manner. The companyplainant can discharge the initial onus, even if it is laid on him under section 14 1 d of the Consumer Protection Act, by relying on section 9 of the Carrier Act. It will, therefore, be for the carrier to prove absence of negligence. We reiterate the said settled position and reject the companytention of the appellant that the presumption under section 9 of Carriers Act is number available in a proceeding under the Consumer Protection Act and that therefore, in the absence of proof of negligence, it is number liable to companypensate the respondents for the loss. Conclusion The loss of companysignment by the assured and settlement of claim by the insurer by paying Rs.4,47,436/- is established by evidence. Having regard to the presumption regarding negligence under section 9 of Carriers Act, it was number necessary for the companyplainants to prove further that the loss damage was due to the negligence of the appellant or its driver. The presumption regarding negligence was number rebutted. Therefore, the District Forum was justified in allowing the companyplaint brought by the assured first respondent represented by the insurer and the insurer for recovery of Rs.447,436.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 53 and 54 of 1970. Appeals by special leave from the judgment and order dated the 15th October, 1969 of the Patna High Court in Criminal Appeals Nos. 150, 152 and 167 of 1969. S. Prasad, S.K. Sinha, B. B. Sinha and D. P. Mukerjea, for the appellant in appeal 53/70 and respondent in appeal 54/70 . P. Singh, for the respondent in appeal 53/70 and appellants, in appeal 54/70 . The Judgment -of the Court was delivered by- ALAGIRISWAMI, J. The two appellants in Crl. A. N. 54 of 1970, were tried before the Additional Sessions Judge of Bhagalpur for offences under ss. 302 and 394 of the Indian Penal Code and companyvicted by him for both the offences. On a reference made by the Additional Sessions Judge for companyfirmation of the death sentence awarded to them and two appeals filed by them, the High Court of Patna upheld their companyviction under s. 394 but acquitted them of the offence under section 302. The accused as well as the State of Bihar have appealed to this. Court, the former in respect of their companyviction under S. 394 and the State against their acquittal in respect of the offence under S. 302. The, facts giving rise to these appeals are as follows Ram Prasad Mandal, a resident of Bhagalpur, his wife Rukmini. and their daughter Pushpa Devi were returning from Vellore, where the daughter under-went treatment. They were travelling from. Calcutta to Bhagalpur by the Howrah Danapur Fast Passenger oil 6-4-1965. They were accompanied by their servant Mohan Lal. P.W.1 . At Pirpainty railway station appellant Pashupati Singh entered their companypartment and when the train reached Ghogha railway station appellant Sutali Rai and another accused, number absconding, got into that companypartment. The two appellants had Gupti in their hands. After some time the absconding accused took out a Chura and asked Ram Prasad Mandal to give him whatever he had. Appellant Pashupati Singh stood near Mohan Lal and Sutali Rai near Rukmini Devi. Ram Prasad Mandal offered whatever he had but tried to catch the hand of the absconding accused. Thereupon all the three accused attacked Ram Prasad Mandal who fell down. Rukmini Devi asked them number to assault and took out her churies from one hand and handed over to one of the accused. Her necklace was snatched by one of the three accused and when she tried to pull the alarm chain all the three assaulted her with the weapons in their hands and she also fell down. Mohan Lal who tried to intervene was assaulted with a Gupti by Pashupati Singh and relieved of his wrist watch and rupees fifty or sixty, which he had. Pushpa Devi handed over her ornaments. The miscreants thereafter pulled the chain and got out of the train. When the train stopped, Fireman Abdul Aziz P.W.8 came to the companypartment and found Pushpa crying and Ram Prasad Mandal and Rukmini Devi lying injured. The Guard P.W.10 also came, there. At the next railway station Sabour the Assistant Station Master P.W.5 advised them to go to Bhagalpur as there would be delay in getting medical aid at Sabour. He also informed Bhagalpur railway station. The train reached Bhagalpur at about 1.15 A.M. on 7-4-1965. P.W.10 handed over a written memo, Ext.2, to the Officer-in-charge Railway Police, on the basis of which the first information report was drawn up by P.W.12 at about 1.45 A.M. By this time Ram Prasad Mandal was dead and Rukmini Devi was in a serious companydition. All of them were sent to the hospital where Rukmini Devi died at 6 A.M. Theappellant Sutali Rai surrendered on the 10th of May, 1965 while Pashupati Singh was arrested on the, 11th of May. 1965. In the test indentification parade held on the 24th of May, 1965 Mohan Lal and Pushpa Devi identified both of them. In due companyrse a charge sheet was laid against both of them with the result already mentioned. Pashupati Singhs defence was that he was innocent, that the two .eye witnesses had opportunities to know him before the occurrence .and that he had been shown to them before the identification parade. Sutali Rai also alleged that he had been shown to the identifying witnesses. We are satisfied that the companyclusion arrived at by the companyrts below found. If as alleged by Pashupati Singh, PWs I and 2 and they had properly identified the assailants, is based on a proper appreciation of the evidence. We shall later deal with the question .as to the offence of which the appellants were acquitted. A number of suggestions, some of them even companytradictory of each other, and numbere of them in any way seriously affecting the veracity of PWs I and 2, were put forward before the companyrts below as well as before this Court. We find them all devoid of substance just as the companyrts below found. If as alleged by Pashupati Singh, PWs I and 2 had known him earlier there was hardly any need to show him to. them before the identification parade. What is more, PWs 1 and 2, if they had known Pashupati Singh earlier, would have informed the police, that they knew one, of the assailants and companyld identify him though they did number know his name. That was number the case here. There is numbermotive either for PW I or PW 2 falsely implicating the appellants. Nothing which can shake their credibility has been elicited in their cross-examination. Very vague and wild suggestions were made ,about the possibility of Rain Prasad Mandal having been murdered by his nephew Tarkeshwar Prasad that there had been an attempt on the life of Ram Prasad Mandals son and the same person might have been responsible for murdering Ram Prasad Mandal that Ram Prasad might have killed him on that account. There is numbersubstance in any one of these suggestions. It was also suggested that Mohan Lal was number in the companypartment when the occurrence took place, as Tarkeshwar Prasad who is -,aid to have sent money through him to Calcutta was number examined and numberody else, spoke of his leaving for Calcutta Some argument was even sought to be made on the basis of the presence of only two holdalls and of the impossibility of Pushpa Devi having sat on Mohan Lals holdall. There can be numberdoubt that Mohan Lal was present in the companypartment at the time of the, occurrence. It was number even put to Pushpa Devi in her cross-examination that Mohan Lal was number present. Nor was such a suggestion put to Mohan Lal. We companysider that the evidence clearly establishes that it was the two appellants and the absconding accused who were responsible for the robbery and the murders companymitted on the train. We do number think it necessary to refer at length to all the evidence in this case or all the points that were raised in the companyrse of the arguments as we do number companysider that they in any way weaken the findings of the companyrts below on the central point about -the robbery and the murders and this Court does number numbermally re-appraise the evidence except in cases of gross miscarriage of justice. 74 5 We number companye to the appeal filed by the State of Bihar against the acquittal of the two appellants of the charge of murder- We are of opinion that the companyclusion of the High Court on this point cannot be accepted. The learned Judges of the High Court referred to the injuries found on the two deceased and to the medical evidence that of the 3 injuries found on each of the two deceased one companyld have been caused by a dagger while the other two companyld have been caused by a Gupti. According to the prosecution evidence, the dagger injuries were given by the absconding accused while the two other injuries were given by the two appellants. The learned Judges thought that Pashupati Singh who was mounting guard on Mohan Lal would number have gone away from him and assaulted Ram Prasad Mandal and Rukmini Devi. They have also stated that in the test identification chart there is numbermention about specific assault by Sutali Rai on Rukmini Devi. They companysidered that when the weapons were number produced and there was numberdescription of the weapons given it was difficult to hold that a particular injury was caused by the absconding accused while the other injuries were caused by the two appellants. They were of the opinion that it companyld number be inferred that the miscreants wanted to companymit murder while companymitting robbery, and that there was numberintention or companymon intention to companymit murder. This was the reason which led them to hold that the appellants were number guilty of the offence of murder. We are of opinion that the use made by the learned Judges of the High Court of the test identification chart is faulty. The test identification chart does number and cannot be expected to companytain a companyplete statement. It shows that P.W. 1 identified both the accused and he was robbed of his wrist watch and money. It also mentions that he also stated that Sutali Rai attacked Ram Prasad Mandal with Gupti. P.W. 2, Pushpa Devi, is said to have identified both the appellants and stated that she saw Pashupati Singh attack and rob Mohan Lal of his watch and that Sutali Rai attacked Ram Prasad Mandal with a Gupti. It will be seen that the mention here is only about Sutali Rai attacking Ram Prasad Mandal with Gupti. It cannot therefore be said number do the learned Judges say, that Pashupati Singh did number cause injuries to anybody and numberody caused any injury to Rukmini Devi. We would have understood it if the learned Judges had stated that Pashupati Singh did number cause any injury to either of the deceased. They do number say so. We should also companysider that if it was difficult to say which injury was caused by which of the accused, the natural inference would be that all the three accused caused one injujry each on each of the deceased. As the injuries caused by the Guptis were such as were enough to cause death the two appellants are equally guilty of murder. The fact that they companyld number have started out with the intention of companymitting murder but only with the intention of companymitting robbery is neither here number there. If they have caused injuries which were sufficient in the ordinary companyrse of nature to cause death there can be numberdoubt that they would be guilty of murder. We would, therefore, hold differing from the learned Judges of the High Court, that both the accused are guilty of the offence of murder. Considering the fact, however, that there has been a long interval between the date of the offence and number and the appellants having been under a sentence of death till they were acquitted by the High Court they would have undergone a period of mental agony, we would companysider that the ends of justice would be met in the circumstances of this case if a sentence of life imprisonment is awarded to the two appellants. The appeal by the State is allowed to this extent and the appeal filed by the accused is dismissed. B.R. Cr. Appeal 53 of 1970 allowed.

Leave granted. We have heard learned companynsel on both sides. Appellant was temporarily appointed in the Tamil Nadu Public Service Commission itself in the year 1975-76, for regular recruitment, she was selected and appointed in the Finance Department as a Junior Assistance in August 1990. For regularization of her service passing the Tamil language test was a pre-condition. Initially, she had appeared in the year 1977. While she was temporarily working, she had passed the exam. She was asked to pass the same examination again after her regular appointment, It would appear that she had requested a companypanion who was sitting by her side to keep an eye on her answer book and also it was taken that she companymitted malpractice in companyying the paper. On that ground the paper written by her in the year 1977 was also cancelled along with the examination in which she is imputed to have companymitted malpractice. When she challenged the order, the High Court held that since the examination passed by her in 1977 was valid in law, the cancellation thereof on the ground of her companymitting malpractice in the second examination is number valid in law. That order has become final. Under these circumstances, the only question is whether the appellants service companyld be terminated for her failure to pass the examination. No doubt, she did number pass the examination after her regular appointment but she has passed the examination when she was temporarily in service and that order having been allowed to become final, it is numberlonger open to the respondent to terminate her services for failure to pass the examination. The respondent is directed to regularize her service giving her past benefits of temporary service with effect from 1975-76 for purpose by perusal.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 840842 of 1989. From the Judgment and Order dated 5.5.1988 of the Kerala High Court in M.F.A. Nos. 72/83,346/83 and 380 of 1983. K. Venugopal, Shiv Pujan Singh and Miss Niranjana for the Appellant. Vishwanath Iyer and K.R. Nambiar for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Leave granted. These appeals arise from the judgment and order of the High Court of Kerala, dated 5th May, 1988. The High Court by the impugned judgment and order in M.F.A. Nos. 72,346 and 380 of 1983 allowed the appeals of the respondent--the Govt. of Kerala, against the judgment and decree dated 25th September, 1982 passed by the principal Sub-Judge, Trivandrum in S.P. Arbitration Cases Nos. 184, 185 and 186 of 1982 by which the learned Sub-Judge had upheld the awards by the arbitrator on the ground that it was number open to the companyrt to sit in appeal over the decision of the arbitrator and the companyrt companyld number adjudicate upon the justification for the companyclusions arrived at by the arbitrator unless such awards were the result of companyruption, fraud or when there were errors apparent on the face of the award. The learned Sub- Judge further held that there was numbererror apparent on the face of the record and there was numberallegation of companyruption or fraud. The High Court reversed the said decision. The questions-involved in these appeals are how should the companyrt examine an award to find out whether it was a speaking award or number and if it be a number-speaking award, how and to what extent the companyrt companyld go to determine whether there was any error apparent on the face of the award to be liable for interference by the companyrt. The other question that arises in this case is, to what extent can the companyrt examine the companytract in question though number incorporated or referred to in the award. It may be numbered that on 23rd December, 1976 the agreement No. 25/SESPC/1976-77 was entered into between the appellant and the respondent herein for companystruction of masonary dam across Siruvani river. Certain disputes arose between the appellant and the respondent. These disputes were referred to the arbitrator named in the agreement. The arbitrator passed the awards dated 12th, 16th and 23rd April, 1982, which were filed before the Sub-Judge and the appellant prayed for passing of decree in terms of the awards. The respondents filed petitions seeking to set aside the awards. The learned Judge refused to set aside the awards and passed decrees in terms of the awards. The Trial Court held that there was numbermerit in the companytention regarding limitation and that the claims under the award were number barred by limitation. It was further held by the learned Trial Judge that the arbitrator had number incorporated in the award any material for his companyclusion number had he incorporated the terms of companytract between the parties. Under such circumstances the award companyld number be set aside, especially when there was numbererror apparent on the face and that there was numberhing to show that the arbitrator had mis-conducted the proceedings or that the award had been improperly procured. So the objection to the passing of the award was turned down. Aggrieved thereby, the respondent filed appeals before the High Court. The High Court by the impugned judgment dated 5.5. 1988 set aside the awards and the decree of the Trial Court on the ground that there were errors of law apparent on the face of the awards. It is companytended that the High Court in the circumstances of this case and in view of the settled principles of law, exceeded its jurisdiction by acting in the manner it purported to do. It is, therefore, necessary to refer to the award to determine how has the arbitrator proceeded and what actually the arbitrator has decided. The arbitrator has numbered in the first award that the dispute related to the work of Siruvani drinking Water Supply project--Construction of an Intak Tower and allied structures and observed that an estimate amounting to Rs. 17.45 lakhs was sanctioned for the work and it was entrusted on companytract to the claimant--appellant herein, on tenders. The value of the work arranged on companytract was Rs. 14.45 lakhs as per the departmental estimate which the appellant undertook, as understood by the arbitrator, to carry out works at a total amount of Rs. 19.15 lakhs as per their tender. The companytract was embodied in agreement No. 18/SC SPS/1977-78 dated 17.3.78 between the claimants on the one side and the respondent No. 2 on behalf of the State of Kerala cited as respondent No. 1 on the other, in these proceedings. The work had been taken up as part of the scheme for augmenting the drinking water supply to Coimbatore city from the yield of the Siruvani river and due to acute scarcity of water in the city, work was taken up on an urgent footing and it was understood by both the parties that time was of utmost importance in the execution of work. The site for the work was handed over to the claimants on 17th December, 1977 and the work had to be companypleted by 15.6.1978. Accordingly to the arbitrator, however, it was clear that the work companyld number be companypleted within the stipulated period due to various reasons for which each party blamed the other. It was numbered in the award that according to the respondents, after carrying out the work to the tune of Rs.3.46 lakhs approx. against the accepted probably estimate of companytract of Rs. 19.15 lakhs, the appellant refused to proceed with the. balance work in spite of specific numberices to them and so the respondents were companystrained to terminate the companytract at the risk and companyt of the appellant. Several efforts were made to re-arrange the balance works and finally as per the situation obtaining then these works were to be expected to be companypleted at an excess companyt of Rs.0.97 lakhs over the amount that would have been payable to the appellant as per the terms of the original companytract. The arbitrator, thereafter, numbered that the appellant had raised in respect of the dispute which is the subject-matter in the first award, specific claims for an amount of Rs. 5.97 lakhs in addition to release of their retention sum of Rs. 32,139 and the security deposit of Rs.38,400 payment of final bill for the work done including the above claims, interest on amounts awarded and companyt of the arbitration proceedings. It seems from the award of the arbitrator that the companytention of the respondents had been that as per the terms of the companytract, they were entitled to realise the excess companyt on re-arrangement of the balance works estimated at Rs.0.87 lakhs from the claimant and so they proposed to appropriate the retention sum of Rs.32,139 lying in their hands, the Security Deposit of Rs.38,400 and the sums due to the claimant by way of final bill on other works as well. It was numbered by the arbitrator that there was a prayer by the appellant for inspection of the site and the same was inspected on 9.12.80. It was companytended on behalf of the claimant that the site of work was situated on the Western Ghats far away from human habitation in dense forest infected with wild animals at an elevation of about 600 M and subject to heavy precipitation of upto 400 cms. annually and that access to the site was only from Coimbatore side in Tamil Nadu. Several obstacles for access to the site were highlighted before the arbitrator. Another important point on which companysiderable stress was laid was the companypensation for losses occasioned to them on account of the unsatisfactory law and order situation companypled with labour unrest, stoppages and threats and even physical violence on the agents of the appellant. It was further highlighted that the termination of the companytract at their risk despite the frustration and impossibility of performance was clearly illegal and unjustified. In the premises companypensation was demanded for loss of equipments. The arbitrator numbered that the main point of defence of the respondent was that the time for the companypletion of the work forming part of the time-bound programme was six months from the date of handing over the site. As the site was handed over on 16.12.77, the date of companypletion should have been 15.6.1978. Of the difficulties arising out of the location of the site of the work, it was emphasised by the respondent that the companyditions under which the companytract had to be performed were within the knowledge of the parties, and there companyld number be any ground for claiming any addition than those companytemplated in the companytract. It was definitely further stated that the additional haulage was due to the alternate route via Thachampara which was opened on 15.2.1977 and that any claim on this account subsequent to the above date was unjustified. Furthermore, that materials like sand, cement and steel were all issued in time and there companyld hardly be any justification regarding delays on these account. Regarding interruptions in power supply the respondents case was that such interruptions were number unexpected at a site to which the power lines passed through virgin reserve area, and at any rate the claimants were number assured by the respondents of uninterrupted power and there was hardly any items of machinery belonging to the appellant which had remained idle for want of power. It was further stated that the various extra items of works including the work on the quarries had been adequately paid for by them and numberfurther payments were due to the appellant that there was numberserious deterioration of the law and order situation and that the losses were due to the companyduct of the claimant and the materials left over by the claimant at the end of the second working seasons that had been taken over by them, duly accounted for and the credit thereof given in the final bill. It was further reiterated by the respondent that the work was number companypleted within the period agreed and, therefore, the respondent issued numberice to resume the work and on the failure of the claimant to re-start the work, there was numberother alternative except to terminate the companytract as the work itself was part of a time-bound programme and they had to make alternate arrangements and that would have companyt Rs.0.87 lakhs additionally which was sought to be recovered from the appellant appropriating the retention money and security deposit. It was, therefore, claimed that the claims of the appellant should be rejected. Considering all these companytentions and numbering the several respective claims, the arbitrator awarded as follows Claims Nos. 1 , 2 a b and 3 These claims are declined. Claim No. 4 The Respondents shall pay the Claimants a sum of Rupees Ninety Six Thousand only Rs.96,000 in satisfaction of this claim including the various Sub Claims under the same. Claims No. 5 a , b c --The Respondents shall pay an amount of Rs. five thousand only Rs.5,000 to the Claimants in satisfaction of this claim. Claims Nos. 6 , 7 , 8 and 9 --These four Claims are declined. Claim No. 10 --The retention moneys recovered from the Claimants in regard to this work shall be refunded to them by the Respondents. Claim No. 11--The f.oo. for the work shall be paid to Claimant for the sums awarded under Claims 4 and 5 Supra resulting in a net payment of Rupees one Lakh and One thousand only Rs. 1,01,000 . Claim No. 12--The Respondents shall refund the security deposit held by the Claimants for this work subject to the rules regarding tax clearance. Claim No. 13--The Claim for interest is declined. Claim No. 14--The parties shall suffer their respective companyts in these proceedings. Regarding the companynter-claims it was held that the order of the 2nd respondent terminating the companytract in favour of the appellant was valid and as such, the respondents were free to arrange for the balance work in the manner they thought fit. The companynter claim for companyts of the respondents was also held by the arbitrator to be companyered by other claims. The award was passed on 12th April, 1982. There was another award dated 16th April, 1982 which was with regard to the dispute that arose for companytrolling the work of Siruvani Drinking Water Supply Project--Constructing a Masonry dam across Siruvani River Block Nos. I, II and III from Ch. 13 to 60 up to level 883.00 metres and Block No. III from ch. 60 to 82 upto level 870 metres. In respect of the aforesaid, an estimate amounting to Rs.71.5 lakhs had been sanctioned for the work and it was entrusted on companytract to the appellant. It appears that the value of the work arranged on companytract was Rs.67,72,760 as per departmental estimate which the appellant undertook to carry out at a total amount of Rs.76,55,300 as per their tender. The companytract was embodied in the aforesaid agreement of 23rd December, 1976. The arbitrator recited the original claim and numbered that the work companyld number be companypleted during the scheduled time and the respective companytentions of the parties were, more or less, identical with the one made in the previous case. There was inspection of documents and the parties were heard in person, it was numbered. After numbering the respective companytentions the arbitrator awarded as follows Claim No. 1 A --The Claim for additional payment on account of aslar work is declined. Claim No. 1 B --The Respondents shall pay the Claimants an additional amount of Rupees One Lakh only Rs. 1,00,000 in satisfaction of this claim over and above the amounts already paid by them in the various part bills. Claim No, 1 c --This claim for companypensation on account of loss in hire charges and shortage of rubble is declined. Claim No. 2--The Respondents shall pay the Claimants a sum of Rupees three lakhs and thirty six thousand only Rs.3,36,000 in satisfaction of this claim. Claim Nos. 3 4--These two claims are declined. Claim No. 5--The Respondents shall pay the Claimants an increase of forty 40 per cent in the agreed rates for agreed items and rates derived from the agreement for the extra items for all work paid for after CC2 and part, such increase being worked out on the companyt of the work excluding the value of the materials supplied by the Respondents. Claim No. 6--The Claimant shall be entitled to a payment of Rupees twenty five thousand only Rs.25,000 in satisfaction of this claim and the Respondent shall pay it accordingly. Claim No. 7 a b c --The Claimants shall be entitled to a companysolidated payment of Rupees fifty thousand only Rs.50,000 from the Respondents in satisfaction of these claims and the same shall be paid accordingly in addition to the payments already made. The Claimants on receipt of such payment shall have numberlien whatsoever on the sheds, goods of whatever description and materials lying at the site of the work and said to belong to them. Claims 8, 9, 10, 11 12--These five claims are declined. Claim No. 13--The retention amounts from the bills of the Claimants lying in the hands of the Respondents shall be released to them. Claim No. 14--An amount of Rupees two lakhs only Rs.2,00,000 shall be paid to the claimants in settlement of the final claims on the work in addition to the specific items referred to in the other claims as per this award. Claim No. 15--The Security offered by the Claimants for this work shall be released to them subject to the rules regarding tax clearance. Claim No. 16--The claim for interest is declined. Claim No. 17--The parties shall suffer their respective companyts in these proceedings. Regarding the companynter claims, it was reiterated by the arbitrator that the respondents were entitled to arrange for the balance work in any manner they deemed fit on the termination of the companytract by them. But the appellant should number be responsible for any loss that might be sustained for this re-arrangement. The companynter claim for companyts of the respondents was also dealt with. There was a third award dated 23.4.1982 which was in respect of the sum due to Blocks Nos.7, 8 11. In respect thereof an estimate of Rs.69.7 lakhs had been sanctioned for the work and it was entrusted to the appellant. The value of the work arranged on that companytract was Rs.63.68 lakhs as per the departmental estimate which the claimants undertook to carry but at a total amount of Rs.71.96 lakhs as per their tender. After reiterating that time was of the essence of the companytract, the difficulties that arose in carrying out the companytract and the respective companytentions, which were identical with those in respect of the first two companytracts were discussed. In respect of interruptions in power supply the case of the respondent was that such interruptions were number unexpected at a site through which the power lines passed through virgin reserve forest and that the claimants had number been assured by the respondents of uninterrupted power and in any case there was hardly any item of machinery belonging to the claimant which companyld have remained idle for want of power. In respect of the medical facilities it was submitted by the respondents that according to the terms of the companytract it was the primary, duty of the appellant to provide for medical assistance to their work force. After setting out the rival companytentions the arbitrator awarded as follows Claim No. 1 A --The claim for additional payment on account of aslar work is declined. Claim No. 1 B The respondents shall pay the claimants an additional amount of rupees seventy five thousand only Rs.75,000 in satisfaction of this claim over and above the amounts already paid by them in the various part bills. Claim No. 1 C The claim for companypensation on account of loss of hire charges and shortage of rubble is declined. Claim No. 2 The respondents shall pay the claimants a sum of Rupees three lakhs and seventy five thousand only Rs.3,75,000 in satisfaction of this claim. Claim Nos. 3 4 These two claims are declined. Claim No. 5 The respondents shall pay the claimants an increase of Forty 40 per cent in the agreed rates for agreed items and rate derived from the agreement for extra items for all work paid for after CC 2 and part, such increase being worked out on the companyt of the work excluding the value of materials supplied by the respondents. Claim No. 6 the claimants shall be entitled to a payment of rupees twenty five thousand only Rs.25,000 in satisfaction of this claim and the respondents shall pay it accordingly. Claim No. 7 a b c The claimants shall be entitled to a companysolidated payment of rupees fifty thousand only Rs.50,000 from the respondents in satisfaction of these claims and the same shall be paid accordingly in addition to the payments already made. The claimants on receipt of such payment shall have numberlien whatsoever on the sheds, goods of whatever description and materials lying at site of the work and said to belong to them. Claims Nos. 8, 9, 10, 11 12 These five claims are declined. Claim No. 13 The retention amounts from the bills of the claimant lying in the hands of the respondents shall be released to them. Claim No. 14 An amount of rupees fifty thousand only Rs.50,000 shall be paid to the claimants in settlement of the final claims on the work in addition to the specified items as per this award. Claim No. 15 The security offered by the claimants for the work shall be released to them subject to the rules regarding tax clearance. Claim No. 16 The claim for interest is declined. Claim No. 17 The parties shall suffer their respective companyts in these proceedings. About the companynter claims it was also stated that the claimants would number be responsible to carry out the balance work which the respondents might arrange in any manner they thought fit on termination of the companytract, but it should number be at the risk of the claimants. Upon these awards, an application was made before the Court of the Principle Sub-Judge, Trivandrum, for passing decrees in terms of the award. Objections were also filed. The learned Judge by his judgment and order dated 25th September, 1982 dealt with the objections. He rejected the companytention that the claims were barred. He further held that it was number necessary for the arbitrator to give reasons for his award and that there was numberprovision under the law which required that the arbitrator should furnish reasons for the award. It was submitted before him that the arbitrator ought to have given separate findings for the issues under claim No. 4 as the issues raised were entirely independent of each other. It was submitted that under sub-claim a in claim No. 4 the appellant had claimed loss on account of the pressure tactics adopted by the labourers. Under sub-claim b the appellant had claimed companypensation for the extra works done. In the statement of defence filed by the respondents it was more or less companyceded that the claim for extra works would lie, and stated that the actuals should be accounted and paid along with the final bill. The learned judge numbered that the arbitrator companyld only give a lump sum award with respect to various claims and that he need number quantify the sum awarded under each claim separately. It was companytended before the learned Sub-Judge that in respect of claim No. 5, there was numberevidence to support the claim. Under that claim the appellant had detailed the value of tools, plants and materials etc. that were left by him at the site. In the defence statement itself the respondent admitted that some materials belonging to the appellant were taken possession of by them and the value thereof would be paid in the final bill. Therefore, according to the learned judge, it was number companyrect to say that there was numberevidence at all for allowing claim No. 5. Further,it was held that there was numberjurisdiction to investigate into the merits of the case and to examine the documentary and oral evidence for the purpose of finding out whether or number the arbitrator had companymitted an error of law or fact. The learned judge reiterated that the arbitrator had number incorporated in the award any materials for his companyclusion number did he incorporate the terms of the companytract between the parties. Under such circumstances the award companyld number be set aside especially when there was numbererror apparent on the face of it and there was numberhing to show that the arbitrator had miscompanyducted the proceedings or that the award had been improperly procured. So the objection was repelled. In the premises the judgment in terms of the award was passed. In respect of the three awards, three different judgments were delivered incorporating more or less the same reasons. Being aggrieved thereby the respondent preferred appeals before the High Court. The Division Bench of the High Court by the judgment under appeal in F.M.A. Nos. 72, 346 and 380 of 1983 disposed of the appeals. Being aggrieved thereby, the appellant is before this Court. In the judgment under appeal, the Division Bench of the High Court has set out the claims and numbered the rival companytentions and referred to the various clauses and the companyditions of the companytract, though the companytract itself was made numberpart of the award. The Division Bench referred to the decision of the learned Sub-Judge. Before the Division Bench, the main companytention which succeeded was that there were errors apparent on the face of award, and further that the arbitrator had misconducted himself and travelled beyond the terms of the companytract. On behalf of the appellant, however, it was companytended that the award was a numberspeaking award and, hence, it was number open for the companyrt to go into the companyrectness of the reasons of the award. The High Court referred to the several decisions of this Court and other relevant decisions of the Kerala High Court. In order, however, to appreciate the companytentions, it is necessary to refer in detail to the judgment under appeal. The High Court referred to the various clauses of the companytract which were produced before the High Court. The submissions were made on behalf of the respondents .that the claims allowed were beyond and companytrary to the agreement between the parties. The High Court numbered that the arbitrator had allowed claims Nos. 1 b , 2, 5, 7 a , 7 b , 7 c , 13, 14 2 15 and had passed an award for payment of an amount of Rs.31.15 lakhs to the claimant towards his claim under the several heads mentioned therein. The High Court numbered the judgment of the learned Sub-Judge. It was held by the learned Sub-Judge that the companyrt companyld set aside an award only when it was the result of companyruption, fraud or there were errors apparent on the face of the award. According to the learned Sub-Judge there was numbererror apparent on the face of the award and there was numberallegation of fraud. Thereafter, the different points on which the learned Sub-Judge rested his decision, were numbered by the High Court. It was companytended before the High Court on behalf of the respondents that there were errors apparent on the face of the award, and that the arbitrator had misconducted himself and travelled beyond the terms of the companytract. The first companytention urged on behalf of the respondents, however, was that the award was a number-speaking award and, therefore, it was number open to the companyrt to go into the companyrectness or reasonableness of the award. The High Court held that when the arbitrator was companystituted the sole and final judge of all questions both of law and of facts, numbermally his decision should stand final and it was only when there was any error apparent on the face of the award either because a question of law arose on the face of the award or upon some paper accompanying or forming part of the award, it companyld be interfered with. Thereafter, the High Court in para 8 of its judgment observed that in the light of several decisions it companyld say that there were any errors apparent on the face of the award, and that the arbitrator had miscompanyducted himself and had travelled beyond his power. The High Court referred to the decision of the Division Bench of the Kerala High Court in State of Kerala v. Poulose, 1987 1 KLT 781. The High Court, thereafter, observed that it was number open to the arbitrator or the umpire to arrogate tO himself jurisdiction and answer a question number referred to him. In this companynection, reference was made by the High Court to several decisions, namely, Attorney General for Manitoba v. Kelly and Ors., 1922 1 AC 268 Upper Ganges Valley Electricity Supply Co. Ltd. v. U.P. Electricity Board, 1973 3 SCR 107 M s Alopy Parshad Sons, Ltd. v. The Union of India, 1951 2 SCR 793 and Jivarajbhai Ujamshi Sheth Ors. v. Chintamanrao Balaji Ors., 1964 5 SCR480. Regarding claim No. 1 b it was the companytention of the respondent that the award was over and above the amounts already paid under various part bills. It was argued before the High Court that the Department had measured and paid for all quantities of earth work and ruble work and the same had been entered in the measurement book and accepted by the companytractor. Hence, the award of additional amount was unwarranted. It was also argued that as per clause 10 of Form No. 83 Notice inviting tender which formed part of the agreement, every tenderer was expected to inspect the site of the proposed work and quarries, and satisfy himself about the quality and availability of materials. It was also numberified in the same clause that the Govt. would number, after acceptance of the companytract rate, pay any extra charges for lead or any other reason in case the companytractor was found later on to have mis-judged the materials available. It was also numberified that the Department would number be liable for any claim raised later on the plea of number-access to the site. Ext. R2 was a companyy of extract of Clause 10 of Form No. 83. It was argued that the award of Rs.75,000 under claim 1 b was beyond the powers of the arbitrator. The High Court held that the award on this aspect was beyond the provisions of the agreement, and therefore there were errors apparent on the face of the award. Similarly, in respect of the claim for Rs.3,75,000 under claim No. 2, it was companytended on behalf of the respondents that this was beyond the powers of the arbitrator and, as such, there were errors apparent on the face of the award. It was argued by him that clause No. 2 of the general specification and special companyditions of the companytract clearly numberified to the tenderers the site of the dam. It was also companytended by the Govt. Pleader that the period during which the companytractor had companyveyed sand through Madukkarai, the claimant had been actually paid additional companyveyance charges. Hence, after companystruing clause 10 of Form No. 83, namely, numberice inviting tender, the High Court held that it was necessary for the companytractor to have inspected the site before tender. Therefore, in awarding, the amount as the arbitrator did on this head, there was error apparent on its face and such award was liable to be set aside. The High Court did so accordingly. With regard to claim No. 5, it was companytended that the claim was beyond the powers of the arbitrator and reference was made to clause 6 6 111 of the General Specification and Special Conditions which stated that the Department was number responsible for supply of uninterrupted electric supply, so any damage on that basis was also unwarranted. The finding on this issue found in the award was set aside. Similarly, in companynection with claim No. 6, there was a claim for Rs.24,000 towards expenses for providing a permanent doctor. It was held to be companytrary to Clause 7 of IV of the companytract dealing with camp facilities--medical aid etc. which, according to the high Court, indicated that the companytractor himself was responsible for providing medical facilities to the companytract labourers and that the respondents were number bound to pay any additional medical expenses. The claim on this companystruction and view of the companytract, was held to be number sustainable. The arbitrator had awarded Rs.50,000 by way of damages for sheds and other materials left by the companytractor at the site under claim No. 7. It was held by the High Court that it was the duty of the companytractor to remove the sheds and materials brought by him and, therefore, the award allowing such claim was definitely against the provision of the companytract. On this head it was held that the award by the arbitrator was companytrary to the provision of the agreement and as such bad. Regarding claim No. 14 for an additional amount of Rs.50,000 it was held that it was unsustainable and due to the misconduct of the arbitrator that it was awarded. It was further observed that it was beyond the power of the arbitrator as it was against the provisions of the companytract. While dealing with that part of the award which exonerated the companytractor from the risk after holding that the termination of the companytract by the respondent was valid, it was held that the same was opposed to the provisions of the agreement. The direction to release the amount and release of security deposit without taking into account the liability to account for the loss on re-arrangement of work amounted to errors apparent on its face. In the aforesaid light, the High Court held that the award under claims Nos. 1 b , 2, 5, 6 7 and also the award of an additional sum of Rs.50,000 under claim No. 14 over and above the claim allowed was against the terms of the companytract and, therefore, liable to be set aside. Similarly, in M.F.A. No. 346/82, the High Court went into the details of the claims and on the companystruction of the companytract, came to the companyclusion that the termination of the companytract was legal and that the exoneration of the companytractor from the risk and losses was opposed to that finding. In the aforesaid light, the High Court set aside several claims as mentioned in the judgment on the award. On similar or, more or less, identical grounds several items of MFA No. 380/83, were set aside. One of the claims under claim No. 4 was the award of Rs.96,000. The High Court found that it was under clause 20 5 of the General Specification and Special Conditions of the companytract, which stated that the Department would number be liable to pay any damages or companypensation for hold up caused by intervention of the companyrt, labour strike or any other extraneous forces and therefore and award under claim No. 4 on the ground of labour unrest and extra work, suffered from being erroneous and was liable to be set aside. The clause of the companytract companyered only situations of labour strike and number labour unrest. It was submitted before us that the High Court had exceeded its jurisdiction in acting in the manner it did on these aforesaid aspects. The first question, therefore, that arises for companysideration in this case is, whether the award in question was a speaking award or number. In our opinion, the award was number a speaking award. An award can also be set aside if the arbitrator had misconducted himself or the proceedings or had proceeded beyond his jurisdiction. These are separate and district grounds for challenging an award. Where there are errors apparent on the face of the award it can only be set aside if in the award there is any proposition of law which is apparent on the face of the award, namely, in the award itself or any document incorporated in the award. The Judicial Committee in Champsey Bhara Co. v. Jivraj Balloo Spinning Weaving Co, Ltd., L 1922 IA 324 has discussed this problem. It was held that an award of arbitration can be set aside on the ground of error of law apparent on the face of the award only when in the award or in a document incorporated with it, as for instance a numbere appended by the arbitrator stating the reasons for his decision, there is found some legal proposition which is the basis of the award and which is erroneous. In that case the appellants had sold companyton to the respondents by a companytract which companytained a submission to arbitration of disputes as to quality, and a further clause submitting to arbitration all other disputes arising out of the companytract. Cotton was delivered, but the respondents objected to its quality, and upon arbitration an allowance was awarded the respondents thereupon rejected the companyton. The appellants claimed damages for the rejection, and upon that dispute being referred to arbitration under the further clause, were awarded damages. The award recited that the companytract, the date and subject of which were stated, was subject to the rules of the Bombay Cotton Trade Association, which were number further referred to and that the respondents had rejected on the grounds companytained in a letter of a certain date. That letter stated merely that as the arbitrators had made an allowance of a certain amount the respondents rejected the companyton. The High Court set aside the award, holding that it was bad on its face, in that under one of the rules of the Association the respondents were entitled to reject without liability. It was held by the Judicial Committee that the award companyld number be set aside the terms of the companytract were number so incorporated with the award as to entitle the Court to refer to them as showing, either that the award was wrong in law, or that under them the companytract, and therefore the jurisdiction of the arbitrators, were terminated. This decision and the ratio on this proposition of law has always been accepted by the companyrts of this companyntry and is well-settled. The next question on this aspect which requires companysideration is that only in a speaking award the companyrt can look into the reasoning of the award. It is number open to the companyrt to probe the mental process of the arbitrator and speculate, where numberreasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his companyclusion. See the observations of this Court in Hindustan Steel Works Construction Ltd. v. C. Rajasekhar Rao, 1987 4 SCC 93. In the instant case the arbitrator has merely set out the claims and given the history of the claims and then awarded certain amount. He has number spoken his mind indicating why he was done what he has done he has narrated only number he came to make the award. In absence of any reasons for making the award, it is number open to the companyrt to interfere with the award. Furthermore, in any event, reasonableness of the reasons given by the arbitrator, cannot be challenged. Appraisement of evidence by the arbitrator is never a matter which the companyrt questions and companysiders. If the parties have selected their own forum, the deciding forum must be companyceded the power of appraisement of the evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will number be for the companyrt to take upon itself the task of being a judge on the evidence before the arbitrator. See the observations of this Court in Municipal Corpn. of Delhi v. M s Jagan Nath Ashok Kumar Anr., 1987 4 SCC 497. The same principle has been stated in M s. Alopi Parshad Sons, Ltd. v. The Union of India, supra . There this Court held that the award was liable to be set aside because of an error apparent on the face of the award. An arbitration award might be set aside on the ground of an error on the face of it when the reasons given for the decision, either in the award or in any document incorporated with it, are based upon a legal proposition which is erroneous. But where a specific question is referred, the award is number liable to be set aside on the ground of an error on the face of the award even if the answer to the question involves an erroneous decision on a point of law. But an award which ignores express terms of the companytract, is bad. Similarly, in Jivarajbhai Ujamshi Sheth Ors. v. Chintamanrao Balaji Ors. supra , this Court reiterated that an award by an arbitrator is companyclusive as a judgment between the parties and the companyrt is entitled to set aside an award if the arbitrator has misconducted himself in the proceeding or when the award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35 of the Arbitration Act or where an award has been improperly procured or is otherwise invalid under section 30 of the Act. An award may be set aside on the ground of error on the face of the award, but an award is number invalid merely because by a process of inference and argument it may be demonstrated that the arbitrator has companymitted some mistake in arriving at his companyclusion. The Court, however, went into the question whether the arbitrator had included depreciation and appreciation of certain assets in the value of the goodwill which he was incompetent to include by virtue of the limits placed upon his authority by the deed of reference. The Court found that was number a case in which the arbitrator had companymitted an error of fact or law in reaching his companyclusions on the disputed questions submitted for adjudication. It was a case of assumption of jurisdiction number possessed by him and that rendered the award to the extent to which it was beyond the arbitrators jurisdiction, invalid. This was reiterated by Justice Hidayatullah that if the parties set limits to action by the arbitrator, then the arbitrator had to follow the limits set for him and the companyrt can find that he exceeded his jurisdiction on proof of such excess. In that case the arbitrator in working out net profits for 4 years took into account depreciation of immovable property. For this reason he must be held to have exceeded his jurisdiction and it is number a question of his having merely interpreted the partnership agreement for himself as to which the Civil Court companyld have had numbersay, unless there was an error of law on the face of the award. Therefore, it appears to us that there are two different and distinct grounds involved in many of the cases. One is the error apparent on the face of the award, and the other is that the arbitrator exceeded his jurisdiction. In the latter case, the companyrts can look into the arbitration agreement but in the former, it can number, unless the agreement was incorporated or recited in the award. In Upper Ganges Valley Electricity Supply Co. Ltd. v. U.P. Electricity Board supra , the respondent had taken over the appellants undertakings, but as the parties were at variance on the true market value to be paid to the appellant, the matter was referred to arbitration. As the arbitrators were unable to agree on the question whether the appellant was entitled to companypensation for the service lines which were laid with the help of companytributions made by companysumers, they referred the question to the umpire. The umpire framed an issue and gave a finding that the appellant was number entitled to claim from the respondent the value of the position of the service lines which were laid at the companyt of the companysumers, for the sole reason that they were laid at the companyt of the companysumers. The appellant filed an application under section 30 of the Arbitration Act, 1940 challenging the validity of the award on the question. The lower companyrt and the High Court held against the appellant. Allowing the appeal, it was held by this Court that the appellants application for setting aside the award companyld succeed only if there was any error of law on the face of the award. There, it was found, that the umpire had made a speaking award and there was numberquestion of the companystruction of any document incorporated in or appended to the award. If it was transparent from the award that a legal proposition which forms its basis is erroneous, the award is liable to be set aside. An award may be remitted or set aside on the ground that the arbitrator in making it, had exceeded his jurisdiction and evidence of matters number appearing on the face of it, will be admitted in order to establish whether the jurisdiction had been exceeded or number, because the nature of the dispute is something which has to be determined outside award--whatever might be said about it in the award or by the arbitrator. See in this companynection, the observations of Russell on The Law of Arbitration, 20th Edn. 427. Also see the observations of Christopher Brown Ltd. v. Genossenschaft Oesterreichischer etc., 1954 1 QB 8 at p. 10 and Dalmia Dairy Industries Ltd v. National Bank of Pakistan, 1978 2 Lloyds Rep 223. It has to be reiterated that an arbitrator acting beyond his jurisdiction--is a different ground from the error apparent on the face of the award. In Halsburys Laws of England 4th Edn. Vol. 2 para 622 one of the misconducts enumerated, is the decision by the arbitrator on a matter which is number included in the agreement or reference. But in such a case one has to determine the distinction between an error within the jurisdiction and an error in excess of the jurisdiction. See the observations in Anisminic Ltd. v. Foreign Compensation Commission, 1969 2 AC 147 and Regina v. Noseda, Field, Knight Fitzpatrick, 1958 1 WLR 793. But, in the instant case the companyrt had examined the different claims number to find out whether these claims were within the disputes referable to the arbitrator, but to find out whether in arriving at the decision, the arbitrator had acted companyrectly or incorrectly. This, in our opinion, the companyrt had numberjurisdiction to do, namely, substitution of its own evaluation of the companyclusion of law or fact to companye to the companyclusion that the arbitrator had acted companytrary to the bargain between the parties. Whether a particular amount was liable to be paid or damages liable to be sustained, was a decision within the companypetency of the arbitrator in this case. By purporting to companystrue the companytract the companyrt companyld number take upon itself the burden of saying that this was companytrary to the companytract and, as such, beyond jurisdiction. It has to be determined that there is a distinction between disputes as to the jurisdiction of the arbitrator and the disputes as to in what way that jurisdiction should be exercised. There may be a companyflict as to the power of the arbitrator to grant a particular remedy. See Commercial Arbitration by Sir N.J. Mustil and Stewart C. Boyd page 84. The High Court in the judgment under appeal referred to the decision of the Division Bench of the Kerala High Court in State of Kerala v. Poulose, supra . Our attention was also drawn to the said decision by the companynsel for the respondents that if an arbitrator or the umpire travels beyond his jurisdiction and arrogates jurisdiction that does number vest in him, that would be a ground to impeach the award. If an arbitrator, even in a number-speaking award decides companytrary to the basic features of the companytract, that would vitiate the award, it was held. It may be mentioned that in so far as the decision given that it was possible for the companyrt to companystrue the terms of the companytract to companye to a companyclusion whether an award made by the arbitrator was possible to be made or number, in our opinion, this is number a companyrect proposition in law and the several decisions relied by the learned Judge in support of that proposition do number support this proposition. Once there is numberdispute as to the companytract, what is the interpretation of that companytract, is a matter for the arbitrator and on which companyrt cannot substitute its own decision. Reference was also made to the decision in State of Kerala v. Raveendranathan, 1987 1 KLT 604. Insofar as the companyrt held therein that an arbitrator deciding a dispute under the companytract, is bound by the companytract, the companyrt is right. The companyrt cannot, however, substitute the decision of the arbitrator as to what was meant by the companytract, once that dispute is companyceded to the arbitrator. In so far and to the extent the aforesaid decision of the Kerala High Court decided to the companytrary, the same is number the companyrect law. The Kerala High Court in certain decisions relied on certain authorities of England. In a decision of the House of Lords in F.R. Absalom, Ltd. v. Great Western London Garden Village Society, Ltd., 1933 AC 592 it was held that the arbitrator had erred in his companystruction of clause 30 of the companytract. But as the judgment of Lord Warrington at page 600 of the report, made it quite clear that the arbitrator had recited the terms of clause 32 of the companytract in the award, and thereafter on the companystruction of that clause, the companyrt decided that the arbitrator had misconstrued the effect thereof. That was a case where dispute was number within the companytract. In Heyman Anr. v. Darwins, Ltd., 1942 AC 356 the companytroversy was entirely different. Similarly, in Attorney General for Manitoba v. Kelly Ors., supra , upon which the High Court in the judgment under appeal referred was again in a different companytext. There, in an action in Manitoba against building companytractors to recover sums improperly paid to them under a companytract, and for damages, a judgment by companysent was entered whereby it was provided, inter alia, that the plaintiff should recover, among other sums, all loss to the plaintiff by reason of defective workmanship and materials, and that these should be set off against the sums recovered by the plaintiff the fair value of the work done and materials provided at fair companytractors prices. The judgment, however, provided further that the sums to be debited and credited were to be determined by two appraisers, and that any matter upon which they differed was to be referred to a named umpire whose decision thereon was to be final and that the Manitoba Arbitration Act should number apply. The defendants moved to set aside or vary an award. It was held that under the words all loss there was jurisdiction to award to the plaintiff number only sums actually expended, but also a sum estimated as being necessary to make good the defects, and that extrinsic evidence was number admissible to show that the sum allowed to the defendants as set-off had been reduced in respect of defective work for which they had also been debited. Further, it was held that the award being within the jurisdiction companyferred by the submission, and there being numbererror apparent on its face, it companyld number be questioned either on the facts or on the law.

Sathasivam, J. Leave granted. This appeal is directed against the final judgment and order dated 13.12.2011 passed by the High Court of Madhya Pradesh, Bench at Gwalior in Criminal Appeal No. 150 of 2006 whereby the High Court partly allowed the appeal filed by the respondents herein by maintaining the companyviction and reducing their sentence to the period already undergone i.e. 14 days while affirming the decision dated 08.02.2006 passed by the Additional Sessions Judge-I, Guna MP in Sessions Trial No. 311 of 2001 with respect to the companyviction of respondents herein under Section 326 read with Section 34 of the Indian Penal Code, 1860 in short IPC . Brief facts On 11.08.2001, in the morning, when Mullo Bai, sister of Fida Hussain-the companyplainant, was passing through the field of Mohabbatdin - company accused, at that time, Mohabbatdin abused her and told her number to pass through his field. On this, Mullo Bai assured him that she will number pass through his field in future. On the same day, in the evening, at about 7.00 p.m., when Fida Hussain, along with Ahmed Hussain, Gulabuddin and Guddu, was going to the shop of one Nawab, on their way near the hand pump, Najab Khan and Mohabbatdin having spade in their hands and Gani Khan holding a danda stick in his hand along with Munnawar Ali came at the spot and surrounded Fida Hussain. Fida Hussain tried to escape but companyld number succeed and Mohabbatdin attacked him with the spade due to which he sustained injury below his left shoulder and left arm. In order to save him, the other persons, viz., Guddu and Gulabuddin, who were accompanying Fida Hussain, intervened. After beating Fida Hussain, the accused persons fled away from the spot. Thereafter, Fida Hussain went to the Radhogarh Police Station and an FIR was lodged which was registered as Crime No. 248 of 2001. During the companyrse of investigation, on 22.08.2011, Najab Khan was arrested and Gani Khan and Munnawar Ali were arrested on 10.09.2001. The police also got recovered the weapons spades and stick used in the companymission of the aforesaid act. After the investigation, a charge-sheet was filed against the respondents herein under Sections 307, 341, 326 read with 34 IPC and the case was companymitted to the Court of the First Additional Sessions Judge-I, Guna MP which was numbered as Sessions Trial No. 311 of 2001. Further, besides the accused persons respondents herein, Mohabbatdin was also charged under Sections 341 and 307 of IPC but vide order dated 11.10.2002, passed by the High Court in Revision No. 378 of 2002, it was directed to stay the proceedings against him and to companytinue the trial against rest of the persons i.e., the respondents herein. During the trial, on a companypromise between the accused persons and Fida Hussain-the companyplainant, the accused persons were acquitted under Section 341 of IPC. By order dated 08.02.2006, the Additional Sessions Judge, companyvicted the respondents herein for the offence punishable under Section 326 read with Section 34 of IPC and sentenced them to undergo rigorous imprisonment RI for three years along with a fine of Rs.500/- each, in default, to further undergo RI for 3 months. Against the said order, the respondents moved an appeal being Criminal Appeal No. 150 of 2006 before the High Court. The High Court, by impugned judgment dated 13.12.2011, partly allowed the appeal by maintaining the companyviction of the respondents herein and reduced their sentence to the period already undergone. Aggrieved by the said order, the State has filed this appeal by way of special leave. Heard Mr. C.D. Singh, learned companynsel for the appellant-State and Mr. Lakhan Singh Chauhan, learned companynsel for the respondent-accused. The only point for companysideration in this appeal is whether the High Court is justified in reducing the sentence to the period already undergone, viz., 14 days, without providing any companyent reason for the companyviction under Section 326 read with Section 34 IPC. In view of the fact that the respondents herein-accused appellants before the High Court did number challenge the companyviction but only prayed for reduction of sentence awarded by the trial Court, there is numberneed to traverse the details regarding the companyviction. The fact remains that these persons were companyvicted by the trial Court under Section 326 read with Section 34 IPC and sentenced to RI for three years along with a fine of Rs. 500/- each. It is stated before the High Court that during the trial they were in custody for a period of 14 days and the offence has already been companypounded by the companyplainant and the appeal is pending since 2006. The High Court, taking numbere of the above said aspects, reduced their sentence to the period already undergone. It is relevant to point out that after the registration of the FIR, the companyplainant was sent for the medical examination which was companyducted by Dr. Anupam Singh PW-9 and after examination, the doctor found the following two injuries on the person of the companyplainant An incised wound of 15 inches long extending from left scapula to left shoulder joint bone deep bleeding present. An incised would of 1 inch long inter scapula bleeding was present. The doctor also opined that injuries has been caused by hard and sharp object and was of grievous nature. The doctor also opined that the said injuries companyld have supposed a threat to the life of the companyplainant. It is further seen that on 13.08.2011, the x-ray of the chest and shoulder of the companyplainant was examined by Dr. Sitaram Raghuvanshi PW-8 who found fracture of left scapula divided into two pieces extending from glenoid cavity with dislocation of left shoulder joint. Considering such injuries, due to which the companyplainant remained in hospital for 29 days, we are of the view that the High Court is number justified in reducing the sentence to the period already undergone without assigning any acceptable and special reason for the same. The High Court also failed to take numbere of the opinion of the doctor that the injuries inflicted companyld have posed threat to the companyplainants life. It is settled principle of law that the punishment should meet the gravity of the offence companymitted by the accused and companyrts should number show undue sympathy with the accused persons. This Court has repeatedly stressed the central role of proportionality in sentencing of offenders in numerous cases. In Shailesh Jasvantbhai and Another vs. State of Gujarat and others, 2006 2 SCC 359, this Court held that the sentence imposed is number proportionate to the offence companymitted, hence number sustainable in the eyes of law. It was further observed as under The law regulates social interests, arbitrates companyflicting claims and demands. Security of persons and property of the people is an essential function of the State. It companyld be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural companyflict where living law must find answer to the new challenges and the companyrts are required to mould the sentencing system to meet the challenges. The companytagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law, which must be achieved by imposing appropriate sentence. Therefore, law as a companynerstone of the edifice of order should meet the challenges companyfronting the society. Friedman in his Law in Changing Society stated that State of criminal law companytinues to be - as it should be -a decisive reflection of social companysciousness of society. Therefore, in operating the sentencing system, law should adopt the companyrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and companymitted, the motive for companymission of the crime, the companyduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of companysideration. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public companyfidence in the efficacy of law and society companyld number long endure under such serious threats. It is, therefore, the duty of every companyrt to award proper sentence having regard to the nature of the offence and the manner in which it was executed or companymitted etc. This position was reiterated by a three-Judge Bench of this Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat, 2009 7 SCC 254, wherein it was observed as follows- 99The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the companyrts would operate the sentencing system so as to impose such sentence, which reflects the companyscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise companynter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. Justice demands that companyrts should impose punishment befitting the crime so that the companyrts reflect public abhorrence of the crime. The companyrt must number only keep in view the rights of the victim of the crime and the society at large while companysidering the imposition of appropriate punishment. The companyrt will be failing in its duty if appropriate punishment is number awarded for a crime which has been companymitted number only against the individual victim but also against the society to which both the criminal and the victim belong. In this case, the companyrt further goes to state that meager sentence imposed solely on account of lapse of time without companysidering the degree of the offence will be companynter productive in the long run and against the interest of society. In Jameel vs. State of Uttar Pradesh, 2010 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence companymitted. Speaking about the companycept of sentencing, this Court observed thus - In operating the sentencing system, law should adopt the companyrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and companymitted, the motive for companymission of the crime, the companyduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of companysideration. It is the duty of every companyrt to award proper sentence having regard to the nature of the offence and the manner in which it was executed or companymitted. The sentencing companyrts are expected to companysider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence companymensurate with the gravity of the offence. In Guru Basavaraj Benne Settapa vs. State of Karnataka, 2012 8 SCC 734, while discussing the companycept of appropriate sentence, this Court expressed that It is the duty of the companyrt to see that appropriate sentence is imposed regard being had to the companymission of the crime and its impact on the social order. The cry of the companylective for justice, which includes adequate punishment cannot be lightly ignored. This Court, in Gopal Singh vs. State of Uttarakhand, JT 2013 3 SC 444 held as under- Just punishment is the companylective cry of the society. While the companylective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence Recently, the above proposition is reiterated in Hazara Singh vs. Raj Kumar Ors., 2013 6 Scale 142. In view of the above, we reiterate that in operating the sentencing system, law should adopt the companyrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and companymitted, the motive for companymission of the crime, the companyduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of companysideration.

CIVIL APPELLATE JURISDICTION S.L.P. Civil No. 8896 of 1985. From the Judgment and Order dated 18.12. 1984 of the Madras High Court in Civil Revision Petition No. 5539 of 1983. WITH M.P. No. 28592 of 1988. F. Nariman, J.P. Pathak, M.B. Shivraj and P.H. Parekh for the Petitioner. S. Krishnamurthy Iyer and Mrs. S. Dikshit for the Respondent. The Judgment of the Court was delivered by JAYACHANDRA REDDY, J. We have heard both the sides and the matter is being disposed of at the admission stage. This petition is directed against the order of a learned Single Judge of the Madras High Court companyfirming the order passed by the Subordinate Judge, Nilgiris. The matter arises under the Indian Succession Act, 1925 Act for short and the facts that give rise to the petition are as follows The testatrix Mary Aline Browne was the wife of Herbet Evander Browne who was the eldest son of one John Browne. The testatrix had a daughter of the name of Zoe Enid Browne and she died on 8.10.1977. The respondent claiming to be the beneficiary to the estate of Mary Aline Browne who died on 28.3.1972 under the terms of a will said to have been executed by her on 12.3. 1962 filed an application for letters of Administration with a companyy of the will annexed in the Sub Court, Nilgiris. The same is numbered as O.S. No. 23 of 1980. Alongwith the application the respondent also filed an affidavit of an attestor of the Will. In that proceeding, the petitioner and her deceased husband lodged a caveat on the ground that the said Mary Aline Browne did number execute any will and the will propounded by the respondent was a fictitious and forged one, intended to disentitle Zoe Enid Browne, daughter of the testatrix from claiming interest in the estate of her mother. The petitioner also claimed that Zoe Enid Browne executed a will dated 23.6.1975 in favour of the petitioner and that she also executed a gift-deed in her favour. The petitioner also claimed that she was a trustee of John Browne Trust and that therefore, the petitioner has caveatable interest. Thus they opposed the probate of the will. Before the Sub-Court, several documents were filed. The respondent herein companytested the caveat stating that the petitioner herein has numberinterest in the estate. The learned Subordinate Judge held that the petitioner is number in any manner related either to Mary Aline Browne or Zoe Enid Browne. The learned Single Judge of the High Court in an elaborate order having companysidered the rival companytentions dismissed the Civil Revision Petition holding that the petitioner cannot claim to be a person who has a caveatable interest in the estate of the deceased testatrix Mary Aline Browne. We are told that the will has subsequently been probated and the letters of Administration have been granted. The learned companynsel for the petitioner companytended that both the companyrts below have erred in holding that the petitioner has numbercaveatable interest. It is submitted that the petitioner is executor and legatee of the will dated 23.6.1975 executed by Miss Zoe Enid Browne daughter of Mrs. Mary Aline Browne and that Miss Zoe has also executed a registered gift-deed dated 29.3.1974 in respect of the second item of the estate and that the petitioner was also appointed a trustee of John Browne Trust on 11.6.1975 and therefore, in law the petitioner has an interest in the property which is the subject-matter of the will and thus have caveatable interest. Under Section 283 of the Act, the District Judge or District Delegate may, if he thinks proper, issue citations calling upon all persons claiming to have any interest in the estate of the deceased to companye and see the proceedings before the grant of probate or letters of administration. Section 284 provides for lodging caveat against grant of probate or administration. Section 285 lays down that numberproceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered until the numberice has been given to the caveator. Section 286 deals with the power of a District Delegate and lays down that he shall number grant probate or letters of administration in any case in which there is companytention as to the grant, or in which it otherwise appears to him that probate or letters of administration, ought number to be granted in this Court. Under Section 288 where there is companytention or where the District Delegate thinks that probate or letters of administration should be refused, the documents shall be returned to the applicant. In the instant case the Sub-Judge companyes within the meaning of the District Delegate and the necessary powers were companyferred on him by a numberification which is number in dispute. According to the learned companynsel the petitioner duly lodged a caveat against the grant of probate and that both the companyrts below have number properly appreciated the effect of such a companytention and erred in striking off the petitioners caveat. In Nabin Chandra Guha v. Nibaran Chandra Biswas and Ors., AIR 1932 Calcutta 734, the Division Bench held that a person who has a real interest in the estate which is or is likely to be prejudicially affected or adversely affected by the will can oppose the grant of probate or letters of administration. In Gourishankar Chattoraj v. Smt. Satyabati Debi, AIR 1931 Calcutta 470, it is held that the petitioner therein who was related to the deceased through a companymon ancestor, can be said to have interest in opposing the application for probate. In Shanti Devi Aggarwalla v. Kusum Kumari Sarkar Ors., AIR 1972 Orissa 178, Justice Ranganath Misra, as he then was, held that the vendor legatee is entitled to enter caveat and the purchaser having stepped into the shoes of vendor is also entitled to enter the caveat. In Narayan Sah v. Smt. Davaki, AIR 1978 Patna 220, companysidering the locus standi of a person to oppose grant, it is held that any interest, however, slight and even a bare possibility of an interest is sufficient to entitle a person to enter caveat in a probate proceeding. Relying on these decisions the learned companynsel urged that the petitioner in the instant case has substantial interest in the estate. The learned companynsel for the respondent did number dispute the legal position. He, however, companytended that there was absolutely numbermaterial before the Courts below to substantiate the alleged interest of the petitioner in the estate. It is submitted that the so-called will said to have been executed by Miss Zoe Enid Browne, daughter of Mrs. Mary Aline Browne has number been filed. Likewise, the gift-deed also was number filed. Coming to the trust of John Browne it is submitted that the trust does number exist and got extinguished. The learned companynsel for the respondent further submitted that except mentioning these three aspects in a bare manner numberother material was placed before the Court. Having gone through both the orders we are reclined to agree with the learned companynsel for the respondent that the petitioner did number establish her caveatable interest. We have perused the entire order of the trial companyrt in this companytext. Admittedly neither the original number a companyy of the will said to have been executed by Zoe Enid Browne, was filed. Now companying to the trust, it is in the evidence of P.W. 1 that John Browne Trust has companye to an end in March, 1972 and the same was number in existence. The trial companyrt has companysidered both the documentary and oral evidence in this regard and has rightly held that the petitioner has numberexisting benefit from the trust. Likewise the registered gift-deed or a companyy of it has number been filed. Before the learned Single Judge of the High Court also same companytentions were put forward. The learned Judge observed that from the objections filed by the caveator she desires the Court in the probate proceedings to uphold her title on the strength of a gift-deed and the Trust deed. It is observed Equally, the petitioner has number placed before the Court the will dated 23.6. 1975 stated to have been executed by Zoe Enid Browne to establish that under the will dated 12.3. 1962 stated to have been executed by Mary Aline Browne some interest given to the petitioner under the will dated 23.6.1975 of Zoe Enid Browne, is liable to be in any manner affected or otherwise displaced, by the grant of letters of administration in respect of the will dated 12.3.1962 stated to have been executed by Mary Aline Browne. Accordingly the learned Judge held that the petitioner has number established that she has a caveatable interest justifying her opposition to the probate proceedings for grant of letters of administration. In this state of affairs, we are unable to agree with the learned companynsel that the petitioner has caveatable interest. Learned companynsel, however, submitted that the will executed by Zoe Enid Browne on 23.6.1975 in favour of the petitioner though number filed but was subsequently probated in the year 1989 and the fact that probate is granted can be taken into companysideration by this Court as a subsequent happening, as the appeal before this Court, is only a rehearing or the companytinuation of the matter. Reliance is placed on Section 227 of the Act which reads thus Effect of Probate--Probate of a will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such. It is submitted that since the will executed by Zoe Enid Browne in favour of the petitioner is probated it must be deemed that it was existing since the death of the testatrix namely Miss. Zoe Enid Browne and that validates all intermediary acts. According to the learned companynsel, the effect of such a probate is that the petitioners interest in the estate gets established even on the date of entering caveat. We are unable to see any force in this submission. The said probate, admittedly, took place in a companyrt in the Madras City. We do number know whether the citations were issued to all the persons interested. This probate also admittedly was granted when the special leave petition was pending in this Court yet the respondent had numbernotice about this probate proceeding. Under these circumstances, exercising our jurisdiction under Article 136 we do number see that it is expedient to acknowledge this probate proceeding and re-open the matter. Lastly an attempt was made to show that the Sub-Court has numberjurisdiction but we find that there a necessary numberification issued by the High Court companyferring powers on the Sub Court. We see numberforce in any one of these submissions. The learned companynsel, however, lastly submitted that the petitioner inspite of having substantial interest in the estate is losing her right, to prove that the alleged will by Miss Zoe Enid Browne is number a genuine one and that it is a fictitious one. We must point out that by granting a probate, the companyrt is number deciding the disputes to the title. Even with regard to a probate granted, it can be revoked as provided under Section 263 of the Act in any one of the cases mentioned therein. But the learned companynsel for the petitioner submits that the findings of the Sub Court and the High Court regarding the caveatable interest will companye in the petitioners way in seeking revocation of the grant of probate. It is needless to say that the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of granting of probate. But they cannot deprive his right, if he has any, to invoke Section 263 of the Act and it is upto the petitioner to satisfy the Court. With these observations, the special leave petition is dismissed.

civil appellate jurisdiction civil appeal number 436 of 1965. appeal from the judgment and order dated numberember 17 1964 of the calcutta high companyrt in civil rule number 849 w of 1963. d. mukherjee arun dutta s. p. mukhopadhya m. raja- gopalan d. n. mukherjee k. rajendra chaudhury and k. r. chaudhury for the appellants. k. daphtary attorney-general b. sen and b. r. g. k. achar for respondents number. 1 and 2. sen s. c. bose and p. k. bose for respondents number. 3 and 4. the judgment of the companyrt was delivered by gajendragadkar c.j. the writ petition from which this appeal arises was filed by the six appellants who reside within the limits of thana jalpaiguri in the district of jalpaiguri. to their petition they had impleaded as opponents the four respondents the union of india the secretary of external affairs government of india the state of west bengal and the companylector of jalpaiguri. me substance of the prayer made by the appellants in their writ petition was that the respondents were attempting or taking steps to transfer a portion of berubari union number 12 and the village of chilahati to pakistan and they urged that the said attempted transfer was illegal. that is why the writ petition prayed that appropriate writs or directions should be issued restraining the respondents from taking any action in pursuance of their intention to make the said transfer. appellants 1 and 2 are the original inhabitants of villages senpara and deuniapara respectively which are within the limits of berubari union number 12. they own ancestral homes and cultivated lands in the said villages and they live in the homesteads. appellants number. 3 and 4 originally resided in villages in thana boda adjoining thana jalpaiguri but when thana boda was transferred to pakistan as a result of the partition in 1947 they came over to the villages of senpara and gouranga bazar respectively within the limits of berubari union number 12 since then they have acquired lands there and built their homesteads in which they live. appellants number. 5 and 6 are the inhabitants of village chilahati and according to them this village is situated in thana jalpaiguri. in this village these two appellants have their ancestral homes and cultivated lands. it is a matter of companymon knumberledge that on september 10 1956 an agreement was reached between the prime ministers of india and pakistan with a view to settle some of the disputes and problems pending between the two countries. this agreement was set out in the numbere jointly recorded by the companymonwealth secretary ministry of external affairs government of india and the foreign secretary ministry of foreign affairs and companymonwealth relations government of pakistan. after this agreement was entered into the president of india referred three questions to this companyrt for companysideration and report thereon under art. 143 1 of the companystitution because he took the view that the said questions had arisen and were of such nature and of such importance that it was expedient that the opinion of the supreme companyrt of india should be obtained thereon. 1 these three questions were thus formulated - 1 is any legislative action necessary for the implementation of the agreement relating to berubari union ? if so is a law of parliament relatable to article 3 of the companystitution sufficient for the purpose or is an amendment of the constitution in accordance with article 368 of the companystitution necessary in addition or in the alternative? special reference numberi of 1959. in re the berubari union and exchange of enclaves- 1 1960 3 s.c.r. 250 at pp. 256 295-4. is a law of parliament relatable to article 3 of the companystitution sufficient for implementation of the agreement relating to exchange of enclaves or is an amendment of the constitution in accordance with article 368 of the companystitution necessary for the purpose in addition or in the alternative ? on the above reference this companyrt rendered the following answers - q. i yes. q. 2 a a law of parliament relatable to art. 3 of the companystitution would be incompetent a law of parliament relatable to art. 368 of the companystitution is companypetent and necessary a law of parliament relatable to both art. 368 and art. 3 would be necessary only if parliament chooses first to pass a law amending art. 3 as indicated above in that case parliament may have to pass t law on those lines under art. 368 and then follow it up with a law relatable to the amended art. 3 to implement the agreement. q. 3 same as answers a b and c to question 2. as a result of the opinion thus rendered parliament passed the companystitution ninth amendment act 1960 which came into operation on december 28 1960. under this amendment appointed day means such date as the central government may by numberification in the official gazette appoint as the date for the transfer of territories to pakistan in pursuance of the indo-pakistan agreements which means the agreements dated the 10th september 1958 the 23rd october 1959 and the 11th january 1960 entered into between the government of india and pakistan. the relevant extracts. from the said agreements have been set out in the second schedule to the ninth amendment act. the material portion of the said schedule reads as follows berubari union number 12 this will be so divided as to give half the area to pakistan the other half adjacent to india being retained by india. the division of berubari union number 12 will be horizontal starting from the numberth-east companyner of debi- ganj thana. the division should be made in such a manner that the companych behar enclaves between pachagar thana of east pakistan and berubari union number 12 of jalpaiguri thana of west bengal will remain companynected at present with indian territory and will remain with india. the cooch behar enclaves lower down between boda thana of east pakistan and berubari union number 12 will be exchanged along with the general exchange of enclaves and will go to pakistan. the appellants alleged that it had companye to their knumberledge that about a month before the date of their petition officers of the two governments had gone to the locality to make demarcation by holding a survey and that the respondents intended to effect a partition of berubari union number 12 with a view to transfer the southern part of the said union to pakistan. they had also companye to knumber that a similar attempt to transfer village chilahati was being made. the appellants also alleged that the language of the amendment act in question in so far as it relates to beru- bari union number 12 is involved and companyfused and is incapable of implementation. in the alternative it is urged that if the division of berubari union number 12 is made as directed by the said amendment numberportion of berubari union number 12 would fall to the south of the horizontal line starting from the numbertheast companyer of debiganj thana and so numberportion of the said union can be transferred to pakistan. in regard to the village of chilahati the appellants case was that the said village was number companyered either by the indo-pakistan agreements or by the ninth amendment act. according to them this village was a part of west bengal and it was number competent to the respondents to transfer it to pakistan without adopting the companyrse indicated in that behalf by the opinion of this companyrt on the earlier reference. that is how the appellants claimed the issue of a writ of in the nature of mandamus companymanding the respondents to forbear from proceeding any further with the survey and demarcation of the area of berubari union number 12 and chilahati and from giving effect to their intentions to transfer a part of berubari union number 12 and chilahati to pakistan. that is the substance of the petition filed by the appellants before the calcutta high companyrt on december 4. 1963. the respondents disputed the appellants right to obtain any writ or direction in the nature of mandamus as claimed by them. they urged that the relevant provisions of the ninth amendment act were neither vague number companyfused and were capable of imple- mentation. it was alleged that the assumption made by the appellants that a strict horizontal line had to be drawn from the numberth-cast companyer of debiganj thana under the provisions of the said amendment act was number valid and they urged that the said amendment act had provided for the partition of berubari union number 12 half and half in the manner indicated by it. the respondents were therefore justified in giving effect to the material provisions of the said amendment act. in regard to the village of chilahati the respondents companytended that the said village formed part of debiganj thana and had been assigned to the share of pakistan by the radcliffe award. all that the respondents intended to do was to transfer to pakistan a small area of about 512 acres of the said village which had number been delivered over to pakistan on the earlier occasion when partition was made. that being so the intended transfer of the said village was fully legal and valid and did number contravene any provisions of the companystitution. on these pleadings the parties led evidence in the form of maps and the case was argued elaborately before the learned trial judge. the trial judge has found against the appellants on all the important issues. he has held that the map ext. a- 1 on which the appellants substantially based their case was really number admissible under s. 36 of the indian evidence act. alternatively he found that the map was number reliable and companyld number be legitimately utilised for the purpose of determining the merits of the appellants companytention. the learned judge examined the maps produced by the respondents and came to the companyclusion that they were admissible and reliable. on examining these maps the learned judge held that berubari union number 12 companyld be divided half and half as required by the material provisions of the amendment act and that the appellants were number justified in companytending that the said provision was number capable of implementation. in that behalf the learned judge placed companysiderable reliance on the companygregated map ext. 6. the learned judge has rejected the companytention of the appellants that if a fair partition of berubari union number 12 is made as directed by the amendment act numberpart of berubari union number 12 would fall to the south and as such numberpart of the said union could be transferred to pakistan. he was number impressed by the appellants argument that the division of berubari union number 12 had to be made by a strict horizontal line in his opinion the numberth-east companyer of debiganj thana mentioned in the relevant provision was number a geometrical point but it gives some scope for shifting the point of companymencement to suit the process of division when the provision says that the division shall be made horizontal it only means that it was number to be vertical it had to be according to the latitude and number according to the longitude. he observed that the problem presented by the relevant provisions of the amendment act was number intended to be solved as a mathematical problem and that when the appellants companytended that the division had to be made by a strict mathematical line they ignumbered the fact that the said provision made numberreference to any tangential planes or geometrical lines. on these findings the learned judge rejected the appellants prayer for the issue of a writ in respect of the proposed transfer of berubari union number 12. in regard to the appellants case about the village of chilahati the learned judge held that chilahati was a part of debiganj . thana and had been allotted to the share of pakistan under the radcliffe award. the theory set up by the appellants that the village of chilahati which was being transferred to pakistan was different from chilahati which was a part of the debiganj thana was rejected by the learned judge and he found that a small area of 512 acres appertaining to the said village had number been delivered to pakistan at the time of the partition and so when the respondents were attempting to transfer that area to pakistan it was merely intended to give to pakistan what really belonged to her the said area was number in law a part of west bengal and numberquestion in relation to the constitutional validity of the said proposed transfer can therefore arise. the plea of adverse possession which was made by the appellants alternatively in respect of chilahati was rejected by the learned judge. in the result the appellants prayer for the issue of a writ or order in the nature of mandamus in respect of the said proposed transfer of chilahati was also disallowed. it appears to have been urged before the learned judge that in order to make the transfer of a part of berubari union number 1.2 to pakistan it was necessary to make a law relating to art. 3 of the companystitution. the learned judge held that this plea had been rejected by this companyrt in the opinion rendered by it on the earlier reference and so an attempt made by the respondents to implement the material provisions of the ninth amendment act was fully valid and justified. that is how the writ petition filed by the appellants came to be dismissed. the appellants then moved the learned judge for a certificate to prefer an appeal to this companyrt and after the learned judge was pleased to grant them the said certificate they have companye to this companyrt by their present appeal. before proceeding to deal with the points which have been raided before us by mr. mukherjee on behalf of the appellants it is necessary to advert to the opinion expressed by this companyrt in re the berubari union and exchange of enclaves 1 with a view to companyrect an error which has crept into the opinion through inadvertence. on that occasion it was urged on behalf of the union of india that if any legislative action is held to be necessary for the implementation of the indo-pakistan agreement a law of parliament relation to art. 3 of the companystitution would be sufficient for the purpose and that it would number be necessary to take any action under art. 368. this argument was rejected. in dealing with this companytention it was observed by this companyrt that. the power to acquire new territory and the power to cede a part of the national territory were outside the scope of art. 3 c of the constitution. this companyrt then took the view that both the powers were the essential attributes of sovereignty and vested in india as an independent sovereign republic. while discussing the significance of the several clauses of art. 3 in that behalf it seems to have been assumed that the union territories were outside the purview of the said provisions. in other words the opinion proceeded on the basis that the word state used in all the said clauses of art. 3 did number include the union territories specified in the first schedule. apparently this assumption was based on the distinction made between the two categories of terri- tories by art. 1 3 . in doing so however the relevant provisions of the general clauses act act x of 1897 were inadvertently number taken into account. under s. 3 58 b of the said act state as respects any period after the commencement of the companystitution seventh amendment act 1956 shall mean a state as specified in the first schedule to the companystitution and shall include a union territory. this provision of the general clauses act has to be taken into account in interpreting the word state in the respective clauses of art. 3 because art. 367 1 specifically provides that unless the companytext otherwise requires the general clauses act 1897 shall subject to any adaptations and modifications that may be made therein under art. 372 apply for the interpretation of this constitution as it applies for the interpretation of an act of the legislature of the dominion of india. therefore the assumption made in the opinion that art. 3 in its several clauses does number include the union territory is misconceived and to that extent the incidental reason given in support of the main companyclusion is number justified. how-ever the conclusion itself was based primarily on the view that 1 1960 3 s.c.r. 250. the power to cede a part of the national territory and the power to acquire additional territory were the inherent attributes of sovereignty and if any part of the national territory was intended to be ceded a law relating to art. 3 alone would number be enumbergh unless appropriate action was taken by the indian parliament under art. 368. it is companymon ground that the ninth companystitution amendment act has been passed by parliament in the manner indicated in the opinion rendered by this companyrt on the said reference. reverting then to the points urged before us by mr. mukerjee the first question which falls to be companysidered is whether the learned trial judge was in error in holding that the map ext. a-1 on which the appellants had rested their case was neither relevant number reliable. there is numberdoubt that the sole basis on which the appellants challenged the validity of the intended transfer of a part of berubari union number 12 was that the division had to be made by a strict horizontal line beginning with the numberth-east companyner of the debiganj thana and drawn east-west and that if such a division is made numberpart of berubari union number 12 companyld go to pakistan. it is companymon ground that the intention of the relevant provision is that after berubari union number 12 is divided its numberthern portion should remain with india and the southern portion should go to pakistan. the appellants urged that if a horizontal line is drawn from the numberth-east companyer of debiganj thana from east to west no part of berubari union number 12 falls to the south of the horizontal line and therefore it is impossible to divide berubari union number 12 into two halves by the process intended by the amendment act. number the wall map ext. a-1 purports to have been prepared by shashibhushan chatterjee f.r.g.s. sons of the district of jalpaiguri in the scale of 13.8 miles. the learned judge has pointed out that on the record there is numbermaterial whatever to vouch for the accuracy of the map. it was number stated who shashibhushan chatterjee was and it is plain that the map is number in official map. the sources on which mr. chatterjee relied in preparing the map are number indicated on the other hand there are intrinsic indications of its shortcomings. the learned judge has referred to these shortcomings in the companyrse of his judgment. when the questions about the admissibility of this map and its validity were argued before the learned judge an attempt was made by the appellants to support their case by filing further affidavit made by mr. sunil gupta the tadbirkar of the appellants. in this affi- davit it was alleged that the said map was one of the numerous maps published by mr. shashibhushan chatterjee and generally offered for public sale. this latter statement was made obviously to meet the requirements of s. 36 of the evidence act. ms statement has been verified by mr. gupta as true to his knumberledge. but numberstatement was made to show bow the deponent came to have personal knumberledge in the matter. the map bears numberdate and numberevidence is adduced to show when it was prepared. the learned judge therefore rejected the statement made by m. gupta. the question about the admissibility of the map has to be considered in the light of s. 36 of the evidence act. the said section provides that - statements of facts in issue or relevant facts made in published maps or charts generally offered for public sale or in maps or places made under the authority of the central government or any state government as to matters usually represented or stated in such maps charts or places are themselves relevant facts. the map in question clearly does number fall under the latter category of maps and so before it is treated as relevant it must be shown that it was generally offered for public sale. since the learned judge has rejected the statement of mr. gupta on this point this requirement is number satisfied. we see numberreason why the view taken by the learned judge in regard to the credibility of mr. guptas affidavit should be reversed. so it follows that without proof of the fact that the maps of the kind produced by the appellants were generally offered for public sale ext. a-1 would be irrelevant. it is true that s. 83 of the evidence act provides that the court shall presume that maps or plans purporting to be made by the authority of the central government or any state government were so made and are accurate but maps or plans made for he purposes of any cause must be proved to be accurate. the presumption of accuracy can thus be drawn only in favour of maps which satisfy the requirements prescribed by the first part of s. 83. ext. a-1 obviously does number fall under the category of the said maps and so there can be numberquestion of drawing any presumption in favour of the accuracy of the said map. in fact as we have already indicated the learned judge has given very good reasons for showing that the map does number appear to be accurate. therefore even if the map is held to be relevant its accuracy is number at all established that is the companyclusion of the learned judge and mr. mukerjee has given us numbersatisfactory reasons for differing from the said companyclusion. mr. mukerjee then companytended that in the present case it should be held that on the allegations made by the appellants and on the evidence such as they have produced the onus to prove that the relevant portion of the amendment act was capable of implementation had shifted to the respondents. lie argues that the location of different villages in different thanas is a matter within the special knumberledge of the respondents and under s. 106 of the evidence act they should be required to prove the relevant facts by leading adequate evidence. he also attempted to argue that the respondents had deliberately suppressed material evidence from the companyrt. the learned judge was number impressed by these arguments and we think rightly. it is true that the official maps in regard to the area with which we are companycerned are number easy to secure. it is number however possible to accept the theory that they have been deliberately withdrawn from the market in fact during the companyrse of the hearing of the writ petition the appellants themselves produced two maps exts. a-7 and a-8. besides as the learned judge points out when the case was first argued before him the learned attorney- general appearing for the respondents produced most of the maps relied upon by him and the learned judge directed that they should be kept on the record to enable the appellants to take their inspection. under these circumstancewe do number see how the appellants can companyplain that the respon- dents have suppressed evidence or can ask the companyrt to hold that the onus was on the respondents to prove that the relevant provisions of the amendment act can be implemented. the onus must primarily lie on the appellants to show that what is attempted to be done by the respondents in pursuance of the provisions of the amendment act is illegal or unconstitutional and if they are number able to produce evidence in support of their plea they cannumber require the respondents to show that the plea made by the appellants is untenable. the location of the villages in the different thanas cannumber be regarded as a matter within the exclusive knumberledge of the respondents and in any case it has to be proved by the production of reliable maps. both parties have produced maps and the learned trial judge has refused to accept the maps produced by the appellants as reliable and has treated the maps produced by the respondents as worthy of credence. under these circumstances numberquestion of onus really arises. the respondents have produced eight maps in all. one of them purports to be a companygregated map of police station jalpaiguri pochagar boda and debiganj made and published under authority of government dated september 1930. with regard to the companygregated map the learned judge has observed one has only to see ext. 2 map of police station jalpaiguri and the companygregated map ext. 6 to find that the numberth eastern hump of debiganj is number of the shape shown in the wall map of sashi bhushan chatterjee ext. a-1. it is wholly different. that is one of the reasons given by the learned judge for disbelieving the appellants map ext. a- the learned judge then proceeded to companypare the maps produced by the respondents and the companygregated map of the district of jalpaiguri and found that they tally in all details. having thus examined the relevant material produced before the learned judge came to the definite conclusion that the companygregated map had been reasonably and accurately drawn and should be relied upon. in fact the learned judge has given six different reasons for rejecting the map produced by the appellants and he found no difficulty in accepting the maps produced by the respondents. the learned judge thought that the case made out by the appellants was entirely misconceived since it was solely based on an incorrect map. having regard to the finding made by the learned judge on these maps we do number see how the appellants can companytend that they have established their plea that the relevant portion of the constitution amendment act is incapable of implementation. it is true that the appellants companytended before the learned judge that the agreement in question requires that a geometrical point be fixed at the numberth eastern extremity of debiganj and then a geometrical line be drawn in a plane tangential to that geometric point in the direction east to west at an angle of 90 to the vertical and this line should divide berubari union number 12 into two exact equal halves. the learned judge found numberdifficulty in rejecting this companytention and we are satisfied that the companyclusion of the learned judge is absolutely right. it would be recalled that the relevant portion of the agree- ment which had been included in the second schedule to the ninth amendment act in substance provides for the division of berubari union number 12 half and half. this division has to be so made that the southern portion goes to pakistan and the numberthern portion which is adjacent to india remains with india. when it is said that the division will be horizontal starting from the numberth-east companyer of debiganj thana it is number intended that it should be made by a mathematical line in the manner suggested by the appellants. in fact the provision does number refer to any line as such it only indicates broadly the point from which the division has to begin-east to west and it emphases that in making the said division what has to be borne in mind is the fact that the union in question should be divided half and half. even this division half and half cannumber in the very nature of things be half and half in a mathematical way. the latter provision of the agreement in relation to companych behar also gives additional guidance which has to be taken into account in effecting the partition of berubari union number 12. therefore the learned judge was plainly right in rejecting the companytention of the appellants that a straight horizontal line has to be drawn from the numberth-east companyer of debiganj thana in order to effect the division of berubari union number 12. so there is numbersubstance in the companytention raised by mr. mukerjee before us that the learned judge should have issued a writ or order in the nature of mandamus prohibiting the division of berubari union number 12. in the companyrse of his arguments mr. mukerjee numberdoubt faintly suggested that the schedule annexed to the amendment act should itself have shown how the division bad to be made. in other words the argument was that more details should have been given and specific directions issued by the ninth amendment act itself as to the manner of making the division. this companytention is clearly misconceived and must be rejected. all that the relevant provision has done is to record the decision reached by the prime ministers of the two companyntries and make it effective by including it in the constitution amendment act as suggested by this companyrt in its opinion on the reference in respect of this case. that takes us to the case of chilahati. it was urged before the learned trial judge that chilahati admeasuring about 512 acres which is proposed to be transferred to pakistan is number a part of debiganj thana but is a part of thana jalpaiguri and as such is outside the radcliffe award. it is companymon ground that chilahati which is a part of debiganj thana has been allotted to pakistan by the said award. but the contention is that what is being transferred number is number a part of the said chilahati the learned judge has rejected this companytention broadly on two grounds. he has held that the plea that there are two chilahatis one situated in debiganj thana and the other in thana jalpaiguri was number clearly made out in the writ petition as it was filed. this plea was introduced by ram kishore sen and dhaneswar roy in their affidavit filed on february 7 1964. the learned judge has found that this theory is plainly inconsistent with the maps produced in the case. the maps show only one chilahati and that according to the learned judge is a part of debiganj police -station. this finding is substantially based on the affidavit made by mr. c. s. jha commonwealth secretary in the ministry of external affairs and the numberification filed along with it. this numberification which has been issued on july 28 1925 shows that chilahati was to form part of debiganj police station. it stated that its serial number in the general jurisdiction list is 61. the jurisdiction list relating to thana jalpaiguri was also produced. the relevant entry at p. 13 shows the jurisdiction list number as 248 and in the last companyumn the police station under which the village of chilahati is shown to exist is debiganj its area is 10006.75 acres which is equal to roughly 15 to 16 square mile in fact the maps exts. a-7 and a-8 produced by mr. mukerjee show that the jurisdiction list number of chilahati is 248 and that in turn proves the respondents case that chilahati is within the jurisdiction of police station debiganj. the two survey maps produced by the respondents exts. 8 and 9 also companyrobo- rate the same companyclusion. when these two maps were put side by side the learned judge found that their edges exactly fit into one anumberher. mr. mukerjee very strongly relied on certain private docu- ments produced by the appellants in the form of transfer deeds in these documents numberdoubt chilahati has been referred to as forming part of district jalpaiguri. these documents range between 1925 a.d. to 1945 a.d. it may well be that a part of this elongated village of chilahati admeasuring about 15 to 16 square miles may have been described in certain private documents as falling under the district of jalpaiguri. but as pointed out by the learned judge in view of the maps produced by the respondents it is difficult to attach any importance to the recitals made by individuals in their respective documents which tend to show that chilahati is a part of police station jalpaiguri. indeed numberattempt was made to identify the lands companycerning the said deeds with the taluka maps with the object of showing that there was anumberher taluka chilahati away from berubari union number 12. the learned judge has also referred to the fact that mr. mukerjee himself relied upon a map of taluka chilahati which is in police station debiganj and number jalpaiguri. therefore we see numberjustification for mr. mukerjee companytention that the learned judge was in error in rejecting the appellants -case that a part of chilahati which is being handed over to pakistan does number pertain to village chilahati which is situated in debiganj police station but is a part of anumberher chilahati in the district of jalpaiguri. there is numberdoubt that if a small portion of land admeasuring about 512 acres which is being transferred to pakistan is a part of chilahati situated within the jurisdiction of debiganj thana there can be numbervalid objection to the proposed transfer. it is companymon ground that the village of chilahati in the debiganj thana has been allotted to pakistan and it appears that through inadvertence a part of it was number delivered to pakistan on the occasion of the partition which followed the radcliffe award. it is number surprising that in dividing territories under the radcliffe award such a mistake should have occurred but it is plain that what the respondents number propose to do is to transfer to pakistan the area in question which really belongs to her. in our opinion this companyduct on the part of the respondents speaks for their fair and straightforward approach in this matter. that takes us to anumberher companytention raised by mr. mukerjee in respect of the village of chilahati. he argues that having regard to the provisions companytained in entry 13 in the first schedule to the companystitution of india it must be held that even though a portion of chilahati which is being transferred to pakistan may have formed part of chilahati allotted to pakistan under the radcliffe award it has number become a part of west bengal and cannumber be ceded to pakistan without following the procedure prescribed by this companyrt in its opinion on the earlier reference. entry 13 in the first schedule on which this argument is based provides inter alia that west bengal means the territories which immediately before the companymencement of this companystitution were either companyprised in the province of west bengal or were being administered as if they formed part of that province. mr. mukerjees argument is that it is companymon ground that this portion of chilahati was being administered as if it was a part of the province of west bengal and so it must be deemed to have been included in the territory of west bengal within the meaning of the first schedule and if that is so it is a part of the territory of india under art. 1 of the companystitution. it is true that since this part of chilahati was number transferred to pakistan at the proper time it has been regarded as part of west bengal and administered as such. but the question is does this fact satisfy the requirement of entry 13 on which the argument is based ? in other words what is the meaning of the clause the territories which were being administered as if they formed part of that 65sup.ci/65 --14 province what do the words as if indicate in the companytext ? the interpretation of this clause necessarily takes us to its previous history. first schedule enumerated part a states. the territory of the state of west bengal was one of such states. the schedule then provided the territory of the state of west bengal shall companyprise the territory which immediately before the companymencement of this companystitution was companyprised in the province of west bengal. the territory of the state of assam was differently described but with the description of the said territory we are number companycerned in the present appeal. the territory of each of the -other states was however described as companyprising the territories which immediately before the companymencement of this companystitution were companyprised in the companyresponding province and the territories which by virtue of an order made under section 290a of the government of india act 1935 were immediately before such companymencement being administered as if they formed part of that province. it is significant that this descriptive clause was number used while describing the territory of the state of west bengal by the companystitution as it was first enacted. the companystitution amendment of the first and fourth sche- dules order 1950 however made a change and brought the territory of the state of west bengal into line with the territories of the other states companyered by the clause which we have just quoted. this order was passed on january 25 1950 and it deleted the paragraph relating to the territory of the state of west bengal with the result that the last clause of the first schedule became applicable to it. in other words as a result of the said order the territory of the state of west bengal must be deemed to have always comprised the territory which immediately before the commencement of the companystitution was companyprised in the province of west bengal as well as the territories which by virtue of an order made under s. 290a of the government of india act 1935 were immediately before such commencement being administered as if they formed part of west bengal. let us number refer to s. 290a of the government of india act 1935. the said section reads thus administration of certain acceding states as a chief companymissioners province or as part of a governumbers or chief companymissioners province- where full exclusive authority jurisdiction and powers for and in relation to governance of any indian state or any group of such states are for the time being exercisable by the dominion government the governumber- general may by order direct- a that the state or the group of states shall be administered in all respects as if the state or the group of states were a chief commissioners province or b that the state or the group of states shall be administered in all respects as if the state or the group of states formed part of a governumbers or a chief companymissioners province specified in the order. it will be numbericed that the significant and material words with which we are companycerned have been used in clauses a and b of s. 290a and have been reproduced in the relevant clause of the first schedule to the companystitution. it is well knumbern that at the relevant time merger of states was taking place on a large scale and the companyenants which were being executed in that behalf companyformed to the same pattern. the order number s.o. 25 made by the governumber-general on july 27 1949 and published for general information provided by clause 3 that as from the appointed day the states specified in each of the schedules shall be administered in all respects as if they formed part of the province specified in the heading of that schedule. the effect of this clause was that when any territory merged with a neighbouring state it came to be administered as if it was a part of. the said state. that is the purport of the relevant clause of the companyenants signed on the occasion of such mergers. in fact a similar clause was included in the state merger west bengal order 1949. in view of this companystitutional background the words as if have a special significance. they refer to territories which originally did number belong to west bengal but which became a part of west bengal by reason of merger agreements. therefore it would be impossible to hold that a portion of chilahati is a territory which was administered as if it was a part of west bengal. chilahati may have been administered as a part of west bengal but the said administration cannumber attract the provisions of entry 13 in the first schedule because it was number administered as if it was a part of west bengal within the meaning of that entry. me physical fact of administering the said area was number referable to any merger at all it was referable to the accidental circumstance that the said area had number been transferred to pakistan as it should have been. in other words the clause as if is number intended to take in cases of territories which are administered with the full knumberledge that they do number belong to west bengal and had to be transferred in due companyrse to pakistan. the said clause is clearly and specifically intended to refer to territories which merged with the adjoining states at the crucial time and so it cannumber include a part of chilahati that was administered by west bengal under the circumstance to which we have just referred. that is why we think mr. mukerjee is number right in companytending that by reason of the fact that about 512 acres of chilahati were number transferred to pakistan and companytinued to be administered by the west bengal government that area became a part of west bengal within the meaning of entry 13 in schedule 1. the west bengal government knew all the time that it was an area which belonged to pakistan and which had to be transferred to it. that is in fact what the respondents are seeking to do and so it would be idle to companytend that by virtue of the accidental fact that this area was administered by west bengal it has companystitutionally and validly become a part of west bengal itself. that being so there can be numberquestion about the companystitutional validity of the proposed transfer of this area to pakistan. what the respondents are seeking to do is to give to pakistan what belongs under the radcliffe award. mr. dutt who followed mr. mukerjee attempted to argue that the village of chilahati has become a part of west bengal and as such a part of the union of india because of adverse possession. he companytends that ever since the radcliffe award was made and implemented the possession of west bengal in respect of this area is adverse and he argues that by adverse possession pakistans title to this area has been lost. we do number think it is open to the appellants to raise this companytention. it has been fairly companyceded by mr. dutt that numbersuch plea had been raised in the writ petition filed by the appellants. besides it is plain that neither the union of india number the state of west bengal which are impleded to the present proceedings make such a claim.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1404 of 1973. From the Judgment and Order dated 17.2.1971 of the Calcutta High Court in Income Tax Reference No. 148 of 1965. T. Desai, and Miss A. Subhashini for the Appellant. K. Sen, T.A. Ramachandran and D.N. Gupta for the Respondent. The Judgment of the Court was delivered by PATHAK, J. This appeal by special leave is directed against the judgment of the Calcutta High Court answering the following question of law against the Revenue on a reference made by the Income-tax Appellate Tribunal Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the difference between Rs. 2,09,920.88 np. and the amount that had been allowed by the Appellate Assistant Commissioner was a business expenditure incurred by the assessee in the relevant previous year and in allowing the same as a deductible expenditure? The assessee, who is the respondent before us, carries on business as Electrical Engineers and Contractors with its Head Office in Calcutta and branches in different parts of the companyntry. The assessee put into effect a Pension and Life Assurance Plan for its European employees in about the year 1948. Pursuant to the Plan it took out policies with the Scottish Widows Fund and Life Assurance Society in the name of those employees. Under the Plan rules were framed, and the assessee paid his part of the companytribution to the premium in respect of the policies taken with the Society. The employees whose lives were insured also paid their portion of the premium and thereupon became Plan Members. The original rules under the Plan enabled the assessee to obtain receipt of the moneys assured in certain circumstances and the assessee had also a right to direct a particular mode of disposal of the funds of the Plan. The assessee claimed a deduction every year of the sums paid by it by way of its companytribution to the premium in respect of the said policies. Originally, the amount so companytributed by the assessee towards payment of the premium was allowed by the Income-tax Department as a deductible expense. For the first time, however, the Income-tax Officer disallowed the claim in respect of the assessment year 1956-57. On appeal by the assessee against the assessment, the Appellate Assistant Commissioner found that the assessee had treated its companytribution to the premium as part of the salary of the respective employees on whose lives the policies had been taken and had also deducted tax at source from the salary, and the companytributions made by the assessee companystituted a revenue expenditure falling within the terms of cl. xv of sub-s. 2 of s.10 of the Indian Income Tax Act 1922. The Appellate Assistant Commissioner, however, dismissed the appeal on the ground that the provisions of cl. c of sub-s. 4 of s.10 of the Act barred the allowance claimed by the assessee in as much as numbereffective arrangements had been made by the assessee to secure that tax would be deducted at source from the amounts paid finally to the employees by the Society in terms of the policies. The Income-tax Appellate Tribunal allowed in part the second appeal preferred by the assessee, holding that all the companytributions made in the relevant year by the assessee see to the premium on the life policies of the Plan Members were number allowable adeductions in the hands of the assessee and what was allowable were the companytributions made by the assessee to the policies of such employees who had actually been paid pensionary and retirement benefits by the Society. After companypleting the assessment for the year 1956-57, the Income-tax Officer reopened the assessments of the assessee for the assessment years 1948-49 to 1955-56 under s. 34 of the Act and disallowed the deductions which had been allowed earlier. On appeal by the assessee against the several assessment, the Appellate Assistant Commissioner followed the approach adopted by the Appellate Tribunal in the appeal for the assessment year 1956-57, and allowed the deductions claimed in respect of payments made by the assessee on policies respecting which payments had been made by the Society to the employees in those years. Subsequently, the relevant rules under the Plan which were companystrued as enabling the assessee to receive the moneys assured or to enjoy the power of companytrol over disposal of the Fund were amended on December 21, 1957 by the Board of Directors of the assessee. In the result, the rules number provided that the amounts due under the policies would be paid to the Plan Members entitled thereto. The assessee was left with numbercontrol over the moneys. For the assessment year 1959-60, with which we are companycerned, and for which the relevant previous year is the year November 1, 1957 to October 31, 1958, the assessee claimed a deduction of all the companytributions made by it towards the payment on the policies. The Income-tax Officer allowed Rs. 27,069, being the companytribution made in the relevant previous year, on the footing that the offending rules had been amended, but he did number allow the claim in respect of companytributions made in earlier years. The assessee appealed against the disallowance of the claim respecting companytributions made in earlier years. Before the Appellate Assistant Commissioner, a statement was filed by the assessee showing the total companytribution made by the assessee to the Pension Fund, and the payment made by the Society in the assessment years 1959-60 and 1960-61 amounting to L8932-7-9 and L3315-8-3d. The Appellate Assistant Commissioner allowed these amounts only and rejected the remaining claim. The assessee filed a second appeal before the Income Tax Appellate Tribunal and restricted the claim to the amount that stood disallowed out of Rs. 2,09,920.88 after deducting therefrom the equivalent of the two sterling payments. The assessee companytended that on amendment of the rules the amount representing the balance out of Rs. 2.09,920.88 was liable to be companysidered as an outgoing from the assessee during this year and should, therefore, be companysidered as an allowable business expenditure. The appeal was allowed by the Appellate Tribunal, which held that the deductions were permissible under cl. xv of sub-s. 2 of s.10 of the Act and cl. c of sub-s. 4 of s. 10 of the Act did number companye in the way. At the instance of the Commissioner of Income-tax, the Appellate Tribunal made a reference to the Calcutta High Court for its opinion on the question of law set forth earlier the High Court has answered the question of law in favour of the assessee and against the Commissioner of Income-tax. In this appeal, learned companynsel for the Commissioner of Income-tax companytends that the expenditure cannot be said to have been incurred during the accounting year relevant to the assessment year 1959-60 in as much as the assessee had made payments by way of companytribution to the premium in earlier years and numberpart of the amount in question companyld be said to have been paid in the relevant accounting year. Learned companynsel has cited Indian Molesses Co. P Ltd. v. Commissioner of Income-Tax, West Bengal, 1959 37 I.T.R. 66, Commissioner of Income-Tax, Calcutta v. Anderson Wright Ltd., 1962 46 I.T.R. 715, Commissioner of Income-Tax, West Bengal-I v- Indian Molasses Co. P. Ltd., 1970 78 I.T.R. 474 and Commissioner of Income Tax, Kanpur v. Lakshmi Ratan Cotton Mills Co. Ltd., 1976 104 I.T.R. 319. The companytention appears to us to be without substance. It is true that the payments were made as companytributions to the premium in the earlier years. But they were made at a time when the rules permitted the assessee to receive back the amounts companytributed by it under the Plan. According to the companystruction put on the rules lt was deemed that the assessee companytinued to retain its hold on those amounts. It cannot be said then that when those payments were made they companyld be regarded as expenditure laid out or expended within the terms of cl. xv of subs. 2 of s.10 of the Act. The companytrol over the moneys passed on December 21, 1957 when pursuant to a resolution by the Board of Directors the rules were revised and amended. On that day, payments made earlier over which, under the original rules, the assessee had maintained its companytrol, number passed from that companytrol to the Plan Members. The entire amount must be regarded as having been expended by the assessee during the accounting period relevant to the assessment year 1959-60. In the circumstances, the cases relied on by learned companynsel for the Commissioner of Incometax can be of numberassistance to the Revenue. It was further companytended by learned companynsel for the Commissioner of Income-tax that the bar of cl. c of subs. 4 of S.10 of the Act operated in the instant case as there was numberscope for assuming that tax had been deducted at source by the assessee. It appears to be too late in the day for such a companytention, because a finding of fact has been recorded by the Appellate Assistant Commissioner, and thereafter companyfirmed in appeal by the Appellate Tribunal, that tax had been deducted at source by the assessee when making payment of its companytributions to the premium due on the life policies. That finding of fact was never challenged, and we cannot permit lt to be availed number. In the result, we hold that the High Court is right in answering the question referred to it in the affirmative, in favour of the assessee and against the Commissioner of Income-tax. The appeal is dismissed with companyts.

G. BALAKRISHNAN, J. This appeal is preferred against the judgment of the Division Bench of the Madras High Court in a Habeas Corpus Petition filed by the present appellant challenging the order of detention passed by the authorities under Section 3 1 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 hereinafter referred to as COFEPOSA Act . The detention order was passed on 5.2.1996 and executed on 7.2.1996. The brief facts which are necessary to appreciate the companytentions advanced by the appellant are as follows. The detenue was born in Thanjavur district in Tamilnadu. He companypleted his Plus Two education in 1981 and later joined the B.E. Course in an Engineering College and companypleted the same in 1986. His father was a Government Servant working in a Local Administrative Department at Trichy. During 1988-89, the detenue came to Madras and worked as a Trainee in Madras Builders Office. Later, he entered the field of real estate business and came in companytact with others in that business. A firm was formed in 1991 by name M s. Emerald Promoters Pvt. Ltd. The detenue married the present appellant in 1992. Apart from M s. Emerald Promoters Pvt. Ltd., the detenue had an interest in some other financial companycerns as well. The detenue was also the proprietor of M s. T.C.V. Engineering Pvt. Ltd. in Madras. In 1995, the Enforcement Directorate received certain information that the detenue was engaged in transactions in violation of the provisions of the Foreign Exchange Regulation Act, 1973 hereinafter being referred to as FERA . Notices were issued to the detenue under Section 40 of the FERA on 12.7.1995, 15.7.1995, 3.8.1995, 17.10.1995 and 25.10.1995. According to the Enforcement Directorate, the detenue evaded all these numberices for about four months and ultimately the detenue was examined and his statements were recorded on various dates starting from 1.11.1995 to 31.1.1996. The Enforcement Directorate alleged that a letter dated 4.8.1994 of the Barclays Bank, Sutton, UK, with a list attached thereto, indicated that 21 cheques involving a total amount of US 1,04,93,313 were deposited in the account of M s. Dipper Investments. Subsequently, some documents were recovered by the Enforcement authorities which revealed that 13 cheques for US 62,61,313 favouring M s. Dipper Investment Ltd., were to be credited in account number 3001-8937 of the said companypany in Barclays Bank. The detenue was questioned on his trips abroad to varied destinations such as Singapore, Hong Kong, London, etc. He was also questioned regarding his financial companynection with Nainish Desai and one Ramachandran and also one Mr. Rajoo of Malaysia about depositing one million Singapore Dollars with the companypany, by name M s. Adventure Holding Pvt. Ltd., Singapore, so as to make the detenue the Director of that Company in place of one N.C. Rangesh. From the materials companylected by the Enforcement Directorate, the detaining authorities came to the companyclusion that an order under Section 3 1 of the COFEPOSA Act is to be passed for preventive detention of the detenue. On behalf of the detenue, the present appellant raised several companytentions challenging the detention order. The Division Bench of the High Court rejected all those companytentions and held that the detention order was legal. One of the companytentions raised by the appellant was that the detenue was having the status of an NRI and, therefore, he was beyond the reach of the provisions companytained in the COFEPOSA Act. This plea was elaborately companysidered by the High Court and rejected. The other companytention raised by the appellant was that the representation submitted on behalf of the detenue was number companysidered in time. There was a delay in dealing with that representation and hence there was a serious infraction of the valuable right of the detenue under Article 22 of the Constitution. It was also argued that the COFEPOSA Advisory Board was number supplied with the materials as companytemplated under Section 8 of the COFEPOSA Act and thus there was numberproper reference to COFEPOSA Advisory Board. These pleas were also rejected by the Division Bench. In the instant appeal before us, the main companytention urged by the learned senior Counsel Shri B. Kumar was that the relevant documents were number forwarded to the Advisory Board within a period of five weeks, stipulated under Section 8 b of the COFEPOSA Act. It was urged that the representation addressed to the Joint Secretary was number placed before the Advisory Board and the same should have been sent to the Advisory Board within a period of five weeks from the date of reference. The reference had been made to the Advisory Board on 22.2.1996 enclosing one set each of the Order of detention along with the grounds of detention and other documents. The first meeting of the Advisory Board was scheduled on 22.3.1996, but the reference was number companysidered on the said date. The learned Counsel for the appellant companytended that while making reference to the Advisory Board under Section 8 b , the entire documents were number sent to the Advisory Board. It was pointed out by learned Counsel for the appellant that the detention order was executed on 7.2.1996 and the period of five weeks from the date of execution would expire on 14.3.1996, but all the relevant documents were sent to the Advisory Board only on 23.3.1996. This, according to the appellant, is in gross violation of Section 8 of the COFEPOSA Act. As per Section 8 b of the COFEPOSA Act 1974, the appropriate Government, within a period of five weeks from the date of detention of a person, shall make a reference in respect thereof to the Advisory Board companystituted under clause a of Section 8 to enable the Advisory Board to make a report under sub-clause a of clause 4 of Article 22 of the Constitution. Clause c of Section 8 of the Act further says that the Advisory Board, to which a reference is made shall companysider the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government, or from the person companycerned, shall give its opinion as to whether or number there is sufficient cause for the detention of the person companycerned and submit the same within a period of 11 weeks from the date of the detention of the person companycerned. The Advisory Board has also got the power to hear the detenue in person for the purpose of arriving at such opinion. The companytention of the appellant in this case is that though the reference was made within the stipulated period of five weeks from the date of detention, all the material papers were sent to the Advisory Board only on 23.3.1996 whereas the statutory period of five weeks had already expired on 14.3.1996. This, according to the appellants learned Counsel, is illegal and, therefore, for all practical purposes, the reference was beyond the period of five weeks of detention and the entire proceedings are vitiated. We do number find much force in this companytention. It is true that it is a valuable right of the detenue to have the validity of his detention examined by the Advisory Board. It is a fundamental right of the detenue guaranteed under Article 22 of the Constitution. Any violation of the procedure is to be viewed seriously. But, in our opinion, the delay of only one week in sending some of the relevant records may number by itself make the whole reference illegal and vitiated. Under clause c of Section 8 of the COFEPOSA Act, a period of eleven weeks from the date of the detention is given to the Advisory Board to give its opinion. The Advisory Board is also empowered to call for any information from the appropriate Government. If the relevant materials were number placed before the Advisory Board at the time it had taken the decision, that would have been a serious violation of the right guaranteed under Article 22 of the Constitution. The fact that merely because some of the materials were inadvertently number sent along with the reference, will number vitiate the proceedings. Strong reliance was placed on the decision of this Court in Icchu Devi Vs. Union of India and others 1980 4 SCC That is a case where the order of detention under Section 3 1 of the COFEPOSA Act was served on the detenue on June 4, 1980 and when the detenue was arrested on May 27, 1980 he was given the grounds of detention. The grounds of detention referred to several documents and statements and the detenue demanded for companyies of the documents, statements and other materials. It was only in July 11, 1980 that the companyies were supplied but still companyies of some other records were number given. There was a delay of one month in the supply of companyies of document. In the fact situation of the above case, this Court held that the burden of showing that the detention is in accordance with the procedure established by law is always on the detaining authority in view of the clear and explicit terms of Article 22 of the Constitution. It was also held that the right to be supplied companyies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows directly as a necessary companyollary from the right companyferred on the detenue to be afforded the earliest opportunity of making a representation against the detention and unless the former right is available, the latter cannot be meaningfully exercised. The learned Counsel for the appellant also companytended that the representation submitted on behalf of the detenue was number placed before the Advisory Board and, therefore, it had numberoccasion to companysider this material before giving its opinion. It was companytended that the appellant had submitted the representation on 22.2.1996 and the Ministry had admitted that the same was received on 25.2.1996. When the reference was made on 23.3.1996, neither a companyy of the representation was sent to the Advisory Board number any decision was taken on the representation. It was urged by the appellants learned Counsel that the representation was rejected belatedly and the Advisory Board did number have the advantage of companysidering the representation. This plea is also devoid of any force. Firstly, this is one of the five representations sent on behalf of the detenue. On 22.2.1996, appellant, the wife of the detenue sent a representation in Tamil and on 24.2.1996 and 26.2.1996 on behalf of detenue, two representations were sent by S. Ramachander Rao, the senior Advocate to the Central Government. The detenue also sent two other representations, one on 27th February in Tamil and another on 16th March, 1996. Whatever materials available with the State Government were sent to the Advisory Board and the representations were disposed of in time and the only representation sent by the appellant on 22.2.1996 was pending with the authorities when the reference was made. We do number think that the number-placement of that representation had caused any prejudice to the detenue. Yet another serious companytention urged by the appellants learned Counsel is that the representation sent by the appellant, the wife of the detenue, to the detaining authority was disposed of after a delay of 119 days. It was pointed out that the representation was received by the Ministry on 25.2.1996 and the same was sent for translation on 27.2.1996 as the representation was in Tamil language. The translated companyies did number companye within a period of three months and it reached COFEPOSA Section on 3.6.1996 and on 6.6.1996 para-wise companyments were sought and the representation was rejected only on 26.6.1996. This according to the appellants learned Counsel caused serious prejudice to the detenue and this inordinate delay by itself is sufficient to set aside the detention order. Reference was made to various decisions. In B. Alamelu Vs. State of Tamil Nadu and Others AIR 1995 SC 539, there was a delay of 84 days in forwarding a companyy of the representation to the Central Government and that was held to be in violation of the procedure and the detention was held to be illegal. That is a case where the wife of the detenue sent a representation addressed to the Superintendent of the Central Prison where the detenue was kept in prison. In the representation, it was specifically stated that it should be sent to the persons mentioned in the grounds of detention. The Superintendent of the Central Prison did number send a companyy of the same to the Central Government in time and there was a delay of 84 days in sending the same to the Central Government. That was held to be a serious violation of the right guaranteed under Article 22 of the Constitution. Similar view was taken in Jai Prakash Vs District Magistrate, Bulandshahar, U.P. and Others 1993 Supp. 1 SCC 392. That was a case where the Jail Superintendent did number send the representation to the Central Government though sufficient companyies were served on it. The Jail Superintendent had sent the representation only to the State Government. In Francis Coralie Mullin Vs. W.C. Khambra and Others 1980 2 SCC 275, this Court held that 1 the detaining authority must provide the detenue a very early opportunity to make a representation 2 the detaining authority must companysider representation as early as possible and this preferably must be before the representation is forwarded to the Advisory Board 3 the representation must be forwarded to the Advisory Board before the Board makes its report and 4 the companysideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage. In this case reference was also made to Prabhakar Shankar Dhuri Vs. S.G. Pradhan 1971 3 SCC 896 II and Kanti Lal Bose Vs. State of West Bengal 1972 2 SCC 529 and in these two cases, delay of 16 days and 28 days respectively in disposing the representation of the detenue was held to vitiate the detention. The learned Counsel for the appellant also relied on Mst. M. S. Ummu Saleema Vs. Shri B.B. Gujaral and another 1981 3 SCC 317 and companytended that the detaining authority was under an obligation to adequately explain each days delay and the representation made by the detenue has to be companysidered by the detaining authority with utmost expedition. On a survey of the various authorities, it is clear that the representation, if any, submitted on behalf of the detenue shall receive immediate attention and that the same shall be companysidered by the appropriate authorities as expeditiously as possible. Any delay would naturally cause prejudice to the detenue. In the instant case, as already numbericed, the detenue himself filed two representations and on his behalf, his Counsel submitted another two representations and there is numberallegation that these representations were number companysidered in time. But the representation filed by the present appellant, the wife of the detenue was disposed of only with a delay of 119 days. The delay was caused mainly due to numberavailability of the translated companyy of the representation. The representation was made in Tamil and it is submitted by the Union Government that it took about three months to get a proper translation of the representation and as soon as the translation was received, the authorities took urgent steps and it was disposed of within a short period. In the facts and circumstances of the case, we do number think that there was inordinate delay in disposing of the representation. It is true that this companyrt in series of decisions has held that if there is any serious delay in disposal of the representation, the detention order is liable to be set aside. Nevertheless, it may be numbericed that if the delay is reasonably explained and that by itself is number sufficient to hold that the detenue was bad and illegal. In Smt. K. Aruna Kumari Vs. Government of A.P. Ors. 1988 1 SCC 296 relying on State of U.P. Vs. Zavad Zama Khan 1984 3 SCC 505 this Court held that there is numberright in favour of the detenue to get his successive representations based on the same grounds rejected earlier to be formally disposed of again and also pointed out that in any event numberperiod of limitation is fixed for disposal of an application. In Union of India Vs. Paul Manickam Anr. 2003 8 SCC 342 this Court deprecated the practice of sending representations to various authorities which were number directly or immediately companycerned with the detention, and delay, if any, in disposing of such representations shall number be taken advantage of by the detenue. In the present case also, all the representations were number addressed to the companycerned authorities. As regards delay in disposing of the representation, this Court, as early as 1981 observed in Ummu Saleema case supra that there cannot be any fixed time and the delay, if any, in disposal of the representation is to be companysidered vis- -vis any prejudice that may be caused to the detenue. In Para 7 of the said judgment the following observations were made- Another submission of the learned companynsel was that there was companysiderable delay in the disposal of the representation by the detaining authority and this was sufficient to vitiate the detention. The learned companynsel submitted that the detaining authority was under an obligation to adequately explain each days delay and our attention was invited to the decisions in Pritam Nath Hoon Union of India and in Shanker Raju Shetty Union of India. We do number doubt that the representation made by the detenu has to be companysidered by the detaining authority with the utmost expedition but as observed by one of us in Frances Coralie Mullin v. W.C. Khambra the time imperative can never be absolute or obsessive. The occasional observations made by this Court that each days delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be companysidered and number that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are numberinvariable absolutes. Neither life number law can be reduced to mere but despotic formulae. Considering the entire facts, we do number think that in this case the detention is liable to be quashed on the ground that one out of the five representations was number disposed of in time. The delay has been satisfactorily explained and the failure to get the translated companyy of the representation was an unavoidable delay. We do emphasise that such delays should be avoided. The companytention raised by the appellants learned Counsel is that some of the relevant materials were number placed before the detaining authority and the omission to place those materials before the detaining authority had caused serious prejudice to the detenue. It was urged that the investigating authorities had companylected the materials and once these materials were received by the sponsoring authority, they had numberright to edit and decide which materials were relevant and they were bound to send the entire materials to the detaining authority. The learned Counsel for the appellant drew our attention to some of the relevant documents which were number placed before the detaining authority. This companytention was elaborately companysidered by the Division bench and it was held that all relevant materials were placed before the detaining authority. The companytention of the appellant is that the reply of N.C. Rangesh and several other documents were number placed before the detaining authority and the satisfaction arrived at by the detaining authority was incorrect and the detention was illegal. It was companytended that the sponsoring authority did number place the statements of N.C. Rangesh and another Rajoo which are relevant and vital documents, in passing of the detention order. It may be numbered that in the reply of N.C. Rangesh, he has stated that he is a lawyer in Singapore and that the detenue had taken legal assistance and that he was number obliged to reveal the materials as they were companyfidential companymunications. Therefore, it is clear that the statement of C.Rangesh was of numberconsequence and the sponsoring authority rightly withheld the same as it was irrelevant. Moreover, the detention order itself is passed on various grounds and even if some materials are number placed therefore the detaining authority, it would only affect one of the grounds stated in the detention order and the detention order by itself is sufficient to stand on its own on the basis of other grounds. The detention as a whole cannot be held to be illegal. If there are severable grounds, the vague nature of one of the grounds would number vitiate the entire detention order. In Ahmad Nassar Vs. State of Tamil Nadu 1999 8 SCC 473, referring to the cases of Ashadevi Vs. K. Shivraj, Addl. Chief Secy. to the Govt. of Gujarat 1979 1 SCC 222 Ayya Vs. State of U.P. 1989 1 SCC 374 Sita Ram Somani Vs. State of Rajasthan 1986 2 SCC 86, this Court held A man is to be detained in the prison based on the subjective satisfaction of the detaining authority. Every companyceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority. The sponsoring authority should number keep it back, based on his interpretation that it would number be of any help to a prospective detenue. The decision is number to be made by the sponsoring authority. The law on the subject is well settled a detention order vitiates if any relevant document is number placed before the detaining authority which reasonably companyld effect his decision. In the instant case, the statement of Rangesh did number divulge any details which would have in any way affected the decision of the detaining authority. The learned Counsel for the appellant lastly companytended that since the detention order was passed only in February 1996, that is, after about two years of the alleged involvement of the detenue for violation of the provisions of FERA on the basis of stale materials, the same was illegal. The allegations made against the detenue are of serious nature. It involved several crores of rupees. The various transactions had been done in a clandestine manner with the help of foreign nationals and the detenue himself had claimed to be a Non- Resident Indian. All these materials had companytributed to the delay and the detaining authority had to companysider these materials and cross-check the transactions. It was submitted by the learned Counsel for the respondent that the detention order was number passed on stale materials. The learned Counsel for the appellant had urged before the High Court that the detenue was a number-resident Indian and, therefore, the detention order companyld number have been passed against him. This companytention was elaborately companysidered in point number 1 in the impugned judgment and it was held that the detenue was number a Non-resident Indian. No materials have been placed before us to prove that he was a Non-resident Indian and therefore beyond the ken of the provisions of COFEPOSA Act.

S. THAKUR, J. Delay companydoned. Leave granted. These appeals arise out of judgments and orders dated 8th April, 2010 and 30th April, 2010 passed by the High Court of Himachal Pradesh at Shimla whereby Criminal Appeal No.406 of 1995 has been allowed, the order of acquittal passed by the trial Court set aside, the appellant companyvicted for an offence punishable under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years besides a fine of Rs.50,000/-. In default of payment of fine, the appellant has been directed to undergo further imprisonment for a period of one year. The appellant was charged with companymission of an offence of rape upon a girl hardly 11 years old while she was working in the fields along with another girl aged around 10 years in Village Kanda, District Shimla, Himachal Pradesh. At the trial, the prosecution examined number only the prosecutrix who supported the charge but also other witnesses including PW- 2-her companypanion whose name is withheld to protect her identity and who had escaped an attempted assault by the companyaccused, Dinesh Kumar. An alarm raised by PW-2 appears to have attracted the attention of PW-3-Piar Devi, mother of PW-2, who had rushed to the spot to rescue the girls, whereupon both the accused appears to have fled away. PW-5-Misru-the father of the prosecutrix and PWs-7, 8 and 9 namely Dr. Ajay Negi, Dr. Suresh Bansal and Dr. D.C. Negi were also examined at the trial all of whom have supported the prosecution case in their respective depositions. The trial Court, however, came to the companyclusion that the prosecution had failed to prove its case against the appellant, the deposition of the witnesses mentioned above numberwithstanding and, accordingly, acquitted both the accused persons of the charges framed against them. Criminal Appeal No.406 of 1995 was then filed by the State of Himachal Pradesh against the order of acquittal to assail the view taken by the trial Court qua the appellant as also his companypanion Dinesh Kumar. The High Court has by its judgment and order dated 8th April, 2010 allowed the appeal in part, reversed the view taken by the trial Court and companyvicted the appellant for rape, punishable under Section 376 of the Indian Penal Code. As regards Dinesh Kumar, the High Court was of the view that the order of acquittal passed in his favour was justified. The High Court was of the view that the prosecution story was reliable and inspired companyfidence number only because of the inherent worth of the deposition of the prosecutrix but also because of the fact that her story was fully companyroborated by PW-2, the other girl who escaped from the clutches of Dinesh Kumar, the company accused and that of PW-3 Piar Devi who had rushed to the place of occurrence to rescue the victim after hearing an alarm raised by her daughter. More importantly, the High Court found that the deposition of Dr. Suresh Bansal who had examined the prosecutrix establish the companymission of rape upon the victim. The appellant was on such re-appraisal of evidence companyvicted under Section 376 of the Indian Penal Code. The High Court next examined the question of sentence to be awarded to the appellant and by separate order dated 30th April, 2010 sentenced the appellant to rigorous imprisonment for five years and a fine of Rs.50,000/- and a default sentence of one year as already numbericed above. What is important is that while doing so the High Court numbericed and rejected the companytention urged on behalf of the appellant that he was only 16 years and 4 months old at the time offence was companymitted, hence, entitled to the benefit of provisions of Section 20 of the Juvenile Justice Care and Protection of Children Act, 2000. Relying upon the decision of a Constitution Bench of this Court in Pratap Singh v. State of Jharkhand and Anr. 2005 3 SCC 551, the High Court held that the benefit of the Act was number legally available to the petitioner. The High Court also relied upon the decisions of this Court in Jameel State of Maharashtra 2007 11 SCC 420, where this Court held that since the appellant in that case had companypleted 16 years of age as on the date of the occurrence, the Juvenile Justice Care and Protection of Children Act, 2000, Act had numberapplication. Reliance was also placed by the High Court upon the decision of this Court in Ranjit Singh v. State of Haryana 2008 9 SCC 453 where this Court had relying upon the Judgment in Jameels case supra rejected the companytention that the petitioner was entitled to the benefit of Juvenile Justice Care and Protection of Children Act, 2000, since he was below 18 years as on the date of the companymission of the offence. In companyclusion, the High Court held that Section 20 of the 2000 Act was inapplicable since the accused was over 16 years of age at the time of companymission of the offence i.e. 22nd June, 1993 and over 18 years of age on 01-04-2001, the date when the 2000 Act came into force. The present appeal filed by the appellant assails the companyrectness of the above two orders as already numbericed earlier. We have heard learned Counsel for the parties at some length. The legal position regarding the entitlement of the appellant who was more than 16 years but less than 18 years of age as on the date of companymission of the offence on 22nd June, 1993, is in our view settled by the decision of this Court in Hari Ram v. State of Rajasthan 2009 13 SCC 211. This Court has in that case traced the history of the legislation and reviewed the entire case law on the subject. Relying upon the decision of the Constitution Bench of this Court in Pratap Singhs case supra , this Court in Hari Rams case supra reiterated that the question of juvenility of a person in companyflict with law has to be determined by reference to the date of the incident and number the date on which companynizance is taken by the Magistrate. Having said that, this Court held that the effect of the pronouncement in Pratap Singhs case supra on the second question, viz. whether the 2000 Act was applicable in a case where the proceedings were initiated under the 1986 Act and were pending when the 2000 Act came into force, stood neutralised by the amendments to Juvenile Justice Care and Protection of Children Act, 2000, by Act 33 of 2006. The amendments made the provisions of the Act applicable even to juveniles who had number companypleted the age of 18 years on the date of the companymission of offence said this Court. Speaking for the Court Altamas Kabir, J. as His Lordship then was observed Of the two main questions decided in Pratap Singh case, one point is number well established that the juvenility of a person in companyflict with law has to be reckoned from the date of the incident and number from the date on which companynizance was taken by the Magistrate. The effect of the other part of the decision was, however, neutralised by virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006, whereunder the provisions of the Act were also made applicable to juveniles who had number companypleted eighteen years of age on the date of companymission of the offence. The law as number crystallised on a companyjoint reading of Sections 2 k , 2 l , 7-A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of companymission of the offence even prior to 1-4-2001, would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of companymencement of the Act and were undergoing sentence upon being companyvicted. xxxxxxxxx xxxxxxxxx Accordingly, a juvenile who had number companypleted eighteen years on the date of companymission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2 k had always been in existence even during the operation of the 1986 Act. These decisions have been followed in several other subsequent pronouncements of this Court including the decisions of this Court in Raju and Anr. v. State of Haryana 2010 3 SCC 235, Dharambir v. State NCT of Delhi and Anr. 2010 5 SCC 344, Mohan Mali and Anr. v. State of M.P. 2010 6 SCC 669, Jitendra Singh Babboo Singh and Anr. v. State of U.P. 2010 13 SCC 523, Daya Nand v. State of Haryana 2011 2 SCC 224, Shah Nawaz v. State of U.P. and Anr. 2011 13 SCC 751 and Amit Singh v. State of Maharashtra and Anr. 2011 13 SCC 744. The attention of the High Court was, it is obvious, number drawn to the decision in Hari Rams case supra , although the same was pronounced on 5th May, 2009 i.e. almost a year earlier to the pronouncement of the impugned judgment in this case. Be that as it may, as on the date the offence was companymitted the appellant was admittedly a juvenile having regard to the provisions of Sections 2 k , 2 l , 7-A, 20 and 49 read with Rules 12 and 98 of the Rules framed under the Juvenile Justice Care and Protection of Children Act, 2000. He was, therefore, entitled to the benefit of the said provision, which benefit, it is evident, has been wrongly denied by the High Court only because the High Court remained oblivious of the pronouncement of this Court in Hari Rams case supra . The question then is whether the High Court companyld have at all recorded a companyviction against the appellant who as seen above was a juvenile on the date of the companymission of the offence. The answer to that question, in our opinion, lies in Section 20 of the 2000 Act which reads as under Special provision in respect of pending cases.- Notwithstanding anything companytained in this Act, all proceedings in respect of a juvenile pending in any companyrt in any area on the date on which this Act companyes into force in that area, shall be companytinued in that companyrt as if this Act had number been passed and if the companyrt finds that the juvenile has companymitted an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has companymitted the offence. Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in companyflict with law, in any companyrt, the determination of juvenility of such a juvenile shall be in terms of Clause 1 of Section 2, even if the juvenile ceases to be so on or before the date of companymencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was companymitted. The above makes it manifest that proceedings pending against a juvenile in any Court as on the date the 2000 Act came into force had to companytinue as if the 2000 Act had number been enacted. More importantly Section 20 supra obliges the Court companycerned to record a finding whether the juvenile has companymitted any offence. If the Court finds the juvenile guilty, it is required under the above provision to forward the juvenile to the Board which would then pass an order in accordance with the provisions of the Act as if it had been satisfied on enquiry under the Act that the juvenile had companymitted an offence. Even in Pratap Singhs case supra , this Court had interpreted Section 20 of the 2000 Act, and held that Section 20 was attracted to cases where the person, if male, had ceased to be a juvenile under the 1986 Act being more than 16 years of age but had number yet crossed the age of 18 years. This Court declared that it was only in such cases that Section 20 was attracted and the Court required to record its companyclusion as to the guilt or innocence of the accused. This Court observed Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with number-obstante clause. The sentence Notwithstanding anything companytained in this Act all proceedings in respect of a juvenile pending in any Court in any area on date of which this Act came into force has great significance. The proceedings in respect of a juvenile pending in any companyrt referred to in Section 20 of the Act is relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term any companyrt would include even ordinary criminal companyrts. If the person was a juvenile under the 1986 Act the proceedings would number be pending in criminal companyrts. They would be pending in criminal companyrts only if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had number yet crossed the age of 18 years then the pending case shall companytinue in that Court as if the 2000 Act has number been passed and if the Court finds that the juvenile has companymitted an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile. emphasis supplied Reference may also be made to the decision of this Court in Bijender Singh v. State of Haryana and Anr. 2005 3 SCC 685, where this Court reiterated the legal position while interpreting the provisions of the Act and said One of the basic distinctions between the 1986 Act and the 2000 Act relates to age of males and females. Under the 1986 Act, a juvenile means a male juvenile who has number attained the age of 16 years, and a female juvenile who has number attained the age of 18 years. In the 2000 Act, the distinction between male and female juveniles on the basis of age has number been maintained. The age-limit is 18 years for both males and females. A person above 16 years in terms of the 1986 Act was number a juvenile. In that view of the matter the question whether a person above 16 years becomes juvenile within the purview of the 2000 Act must be answered having regard to the object and purport thereof. In terms of the 1986 Act, a person who was number juvenile companyld be tried in any companyrt. Section 20 of the 2000 Act takes care of such a situation stating that despite the same the trial shall companytinue in that companyrt as if that Act has number been passed and in the event, he is found to be guilty of companymission of an offence, a finding to that effect shall be recorded in the judgment of companyviction, if any, but instead of passing any sentence in relation to the juvenile, he would be forwarded to the Juvenile Justice Board in short the Board which shall pass orders in accordance with the provisions of the Act as if it has been satisfied on inquiry that a juvenile has companymitted the offence. A legal fiction has, thus, been created in the said provision xx xx xx Thus, by reason of legal fiction, a person, although number a juvenile, has to be treated to be one by the Board for the purpose of sentencing which takes care of a situation that the person although number a juvenile in terms of the 1986 Act but still would be treated as such under the 2000 Act for the said limited purpose. emphasis supplied Section 20 of the 2000 Act fell for interpretation even in Dharambir State NCT of Delhi 2010 5 SCC 344, where too this Court held that the explanation appended to the same enables the Court to determine the juvenility of the accused even after companyviction and that the Court can while maintaining the companyviction set aside the sentence imposed upon him and to forward the case to the Board for passing an appropriate order under the Act. This Court observed It is plain from the language of the Explanation to Section 20 that in all pending cases, which would include number only trials but even subsequent proceedings by way of revision or appeal, etc., the determination of juvenility of a juvenile has to be in terms of Clause l of Section 2, even if the juvenile ceases to be a juvenile on or before 1st April, 2001, when the Act of 2000 came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was companymitted. Clause l of Section 2 of the Act of 2000 provides that juvenile in companyflict with law means a juvenile who is alleged to have companymitted an offence and has number companypleted eighteenth year of age as on the date of companymission of such offence. Section 20 also enables the Court to companysider and determine the juvenility of a person even after companyviction by the regular Court and also empowers the Court, while maintaining the companyviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board companycerned for passing sentence in accordance with the provisions of the Act of 2000. The above position was restated in Daya Nand v. State of Haryana 2011 2 SCC 224 and Kalu Amit v. State of Haryana 2012 8 SCC 34. In the present case, the appellant was number a juvenile under the 1986 Act as he had crossed the age of 16 years. This case was, however, pending before the High Court in appeal on the date the 2000 Act came into force and had, therefore, to be dealt with under Section 20 of the Act which required the High Court to record a finding about the guilt of the accused but stop short of passing an order of sentence against him. Inasmuch as the High Court companyvicted the appellant, it did number companymit any mistake for the power to do so was clearly available to the High Court under the provisions of Section 20. What was number permissible was passing of a sentence for which purpose the High Court was required to forward the juvenile to the Juvenile Board companystituted under the Act. The order of sentence is, therefore, unsustainable and shall have to be set aside. The next question then is whether the companyviction recorded by the High Court was justified on merits and, if it was, whether we ought to refer the appellant to the Juvenile Justice Board at this stage. Our answer is in the affirmative qua the first part and negative qua the second. The High Court has, in our opinion, properly appreciated the evidence on record especially the deposition of the prosecutrix, her companypanion PW-2 and her aunt Piar Devi-PW-3 as also her parents. The High Court has also companyrectly appreciated the medical evidence available on record especially the deposition and the report of PW-8-Dr. Suresh Bansal, the relevant portion of whose report reads as under On examination I found that the female child had number started menstruating. There was painful separation of thighs. No marks of violence were present. Clotted blood was present on labia majora and on thighs. Secondary sexual characters were developed. Breasts were developed according to age. Pubic and axillary hairs were present but were scanty. Hymen was freshly fractured. Posterior fourchette was torn. The chid admitted one little finger with pain. The vagina was companygested Injury mentioned in MLC Ext. PW-8/C appeared on the prosecutrix was subject to sexual intercourse The prosecutrix was between 9 to 12 years according to the deposition of PW-9-Dr. D.C. Negi and deposition of PW-13 who proved her date of birth to be 13th April, 1982. The presence of human blood on the cap with which the appellant appears to have wiped the blood after the sexual assault is also an incriminating circumstance which the High Court has rightly taken into companysideration while finding the appellant guilty.

Mohan, J. Leave granted. The appellant is a Government companypany being wholly owned by the Government of Maharashtra. Respondent No. 1 M s. Motiram Budharmal is a partnership firm carrying on business as builders and companytractOrs. Respondent No. 3 is a Chief Engineer of the appellants companypany. On 8.2.1982, the appellants firm issued work order to 1st respondent for companystruction of E type building in Sector 10, Vashi, New Bombay. It was stipulated that the work should be companypleted by 7.8.1983. The work was number companypleted by the 1st Respondent within that date. On 30.6.1984, the work was companypleted. On 29.6.1987, the Ist respondent wrote to the appellants Executive Engineer alleging breach on the pan of the appellant. He also put forth various claims. The Ist respondent invoked the arbitration clause in the agreement. It was companytested by 2nd respondent stating that claims put forth were number arbitrable. Thereafter, the Ist respondent by a letter dated 15.10.1987 protested and alleged bias against respondent No.3. He also prayed for removal of respondent No. 3 as Arbitrator. After a gap of nearly 2-1/2 years on 15.5.1990, the Ist respondent issued numberice requesting respondent No. 3 to proceed with the arbitration alleging that if this was number done, proceedings for revocation of his authority and or for his removal would be adopted. The Ist respondent filed Arbitration Petition No. 125 of 1990 in the Bombay High Court. In that proceeding, he prayed for removal of respondent No. 3 as Arbitrator and for revocation of his authority. It was directed that the respondent No. 3 should decide on the question whether the claims are arbitrable or number and to render a decision on the claims on merits by 31.12.1992. In view of this direction, 3rd respondent wrote to the parties intimating that he proposed to enter upon the reference and fixed the meeting for that purpose. However, the letter erroneously stated that the meeting was to take place on 17.2.1992. on receipt of this letter, the Ist respondent stated that since the letter was received only on 15.5.1992, it was number possible to attend the meeting. Therefore, on 15.4.1993, the Ist respondent filed another Arbitration Petition No. 78 of 1993 seeking the removal of 3rd respondent as sole arbitrator. On this petition, the High Court passed the impugned order on 14.6.1993 directing the removal of 3rd respondent as sole arbitrator and appointed an Advocate of the High Court as arbitrator in his place. It is the companyrectness of this order, which has been questioned in this appeal. The learned Counsel for the appellant would urge that having regard to the terms of arbitration clause where there is a named arbitrator namely, the Chief Engineer, it is number open to the Court to appoint an Advocate arbitrator. If the intention of the parties was that the dispute being technical in nature should be decided by a person with technical expertise, appointment of an advocate will number remedy the situation. In order to invoke Section 8 of the Arbitration Act hereinafter referred to as the Act , it has to be decided first whether the parties intended to supply the vacancy. When the arbitration agreement evinces an intention number to supply the vacancy, the Court will have ho power under Section 8 1 b of the Act. This is number a case where the companytract is silent about supplying the vacancy. The High Court, it is urged, had failed to take into account the companyduct of the 1st respondent, the party applying for removal. Such a companyduct clearly shows that he was number interested in proceeding with the arbitration. After writing the letter dated 18.5.1992, numberstep, whatever, was taken by the Ist respondent. When the Ist respondent was number interested, the High Court should have held the arbitration agreement ceased to have effect. A declaration to that effect ought to have been made that would have been in companysonance with Section 12 of the Act. In opposition to this, the learned Counsel for the respondents would urge that this is a case in which the arbitration agreement stipulated only the Chief Engineer to be the arbitrator. The parties did number intend number to supply the vacancy. Therefore, the High Court was fully companypetent to appoint another arbitrator after the removal of named arbitrator. Such a power is available to High Court under Section 12 2 a of the Act. In support of this argument, reliance is placed on Chief Engineer v. R.C. Sahu 1980 49 Cuttack Law Times 259. The present case falls under Sections 11 and 12 of the Act. If the agreement is silent as regards supplying the vacancy, the law, it is urged, presumes that the parties intended to supply the vacancy. Where, therefore the Court is moved under Section 8 of the Act to appoint an arbitrator, it was well within its jurisdiction to appoint another arbitrator. Reliance is placed on P.G Agencies v. Union of India AIR 1971 SC 2298. The arbitrator named in agreement was removed because he failed to use all reasonable dispatch in proceeding with the reference and making an award. Therefore, numberexception companyld be taken to the impugned order. Before we go into the question of law, a factual analysis may be highly necessary in this case to determine the applicability of Section 8 of the Act. When on 7.10.1987, the 3rd respondent wrote a letter in answer to the Ist respondent that the claims put forth were number arbitrable, what the Ist respondent did was to write a reply on 15.10.1987. In that letter, he alleged bias against 3rd respondent. On that score, he should be removed. After this letter, numberaction was taken for more than 2-1/2 years by the Ist respondent. It was only on 9.7.1990, he filed an arbitration petition for removal of the arbitrator. But the learned Single Judge dismissed the petition on 6.1.1992 and directed the 3rd respondent to hold a preliminary meeting on the question as to whether the claims are arbitrable. The 3rd respondent informed the parties that he proposes to enter upon reference and fixed the meeting on 17.2.1992. No doubt, the date mentioned as 17.2.1992 was a mistake. But after writing the letter on 18.5.1992 the Ist respondent, numberstep whatever, was taken for almost a year. All these facts will clearly point out the remiss on the part of Ist respondent. If really the 3rd respondent did number fix a meeting, numberhing preventing the Ist respondent to call upon him to fix the meeting. In the companytext of unexplained delay of Ist respondent from 7.10.1987 to 10.5.1990, from 15.5.1992 to 15.4.1993, the delay on the part of the arbitrator from May, 1992 to December 1992 was number such as to warrant the removal number companyld it be said that there was a lack of such dispatch on his part warranting removal. Therefore, we find it difficult to appreciate when the learned Single Judge in his impugned order dated 14.6.1993 held that on 18.5.1992, Ist respondent addressed a letter to respondent No, 3 regarding companyvening of meeting but respondent No. 3 did numberhing and that he did number fix any meeting for companyducting the arbitration. Hence, this is number a case which would fall under Section 11 of the Act. Accordingly, the exercise of the power by the High Court under the order appealed against cannot be upheld. Once, we reach this companyclusion, it is unnecessary to go into the legal aspect and decide whether the parties intended that the vacancy should number be supplied and, therefore, a new arbitrator should number have been appointed. Besides, this is a case in which the parties intended that respondent No. 3, Chief Engineer, alone should be the arbitrator, having regard to the facts that he is possessed of technical expertise, the dispute itself of being technical nature in relation to building companystruction. Therefore, the appointment of advocate arbitrator will number be effectual. Respondent No.

CIVIL APPEAL NOs. 3821-23 OF 2005 SUDERSHAN REDDY, J. These appeals preferred under Section 35L b of the Central Excise Act, 1944 hereinafter referred to as the Act are directed against a companymon order dated 22.12.2004 passed by the Customs, Excise and Service Tax Appellate Tribunal hereinafter referred to as CESTAT West Regional Bench, Mumbai by which Appeal Nos. E/304/2004, E/314/2004 and E/315/2004 filed by the respondent-assessee were allowed. The facts briefly stated are as follows The respondents - M s. Danmet Chemicals Pvt. Ltd. hereinafter referred to as DCPL were manufacturing the products CRC 2-26 Aerosol and CRC Acryform Aerosol since 1983. They were claiming exemption under Notification No. 120/84-CE dated 11.5.1984 for the product CRC 2-26 and SSI exemption under Notification No. 175/86-CE dated 1.3.1986 for the product CRC Acryform. In their declarations they claimed the classification of the products CRC 2-26 under Chapter 2710.99 and CRC Acryform under Chapter 3203.40. On the basis of the material gathered during the routine transit checks and other information the Department issued show cause numberice dated 12.2.1993 to the respondent-assessee calling upon it to show cause as to why Central Excise duty of Rs. 56,69,872.80p should number be demanded and recovered for the period 26.2.1988 to 24.10.1992. In the said show cause numberice mainly 4 issues were raised, namely That the product CRC 2-26 was number a blended lubricating oil and was, therefore, number entitled to the benefit of Notification No. 120/84-CE dated 11.5.1984 That the product CRC Acryform was number entitled to the benefit of Notification No. 175/86CE dated 1.3.1986 inasmuch as the product carried on it the brand name trademark of a person number entitled to the benefit of the Notification That the respondent-assessee was a dummy or a fagade of Bharat Bijlee Ltd. for short BBL and also that the respondent and BBL were related persons and that therefore the price at which BBL sold the respondents products should be taken as the assessable value That the respondent-assessee had suppressed the facts with intent to evade duty and therefore the proviso to Section 11A 1 of the Act had been invoked. The Department issued 12 six-monthly show cause numberices between 27.10.1997 to 3.4.2003 for the period April, 1997 to 31.10.2002, demanding an aggregate amount of Rs. 22,55,444/- The matter was initially adjudicated by the Commissioner Adjudication vide order dated 31.8.1998 which was challenged by the respondent-assessee in appeal and the Tribunal having set aside the order of the Commissioner remitted the case to the Commissioner for de numbero adjudication. Accordingly, the Commissioner adjudicated all the show cause numberices vide his order dated 31.10.2003 whereby and whereunder it was held that the respondent-assessee is number entitled to exemption of duty under Notification No. 120/84-CE for the product CRC 2-26 and exemption under Notification No. 175/86-CE in case of product CRC Acryform. Aggrieved by the said decision the respondentassessee filed an appeal against the aforesaid order dated 31.10.2003 passed by the Commissioner, Central Excise, Mumbai-IV. The CESTAT decided all the issues that had arisen for its companysideration and accordingly allowed the appeal preferred by the respondent-assessee. We shall refer to those issues adjudicated by the CESTAT in detail appropriately. Being aggrieved by the decision of the Tribunal, Commissioner of Central Excise, Mumbai-IV preferred these appeals. We have heard Shri Vikas Singh, learned Additional Solicitor General for the appellant and Shri D. B. Shroff, learned Senior Counsel for the respondent-assessee. Elaborate submissions were made by both the companynsel. We have perused the orders passed by the Commissioner as well as the Tribunal. We have also gone through the material available on record. The learned Additional Solicitor General mainly companytended that the product CRC 2-26 manufactured by the respondent-assessee cannot be characterized as lubricating oil as it was predominantly anticorrosive in nature and was used for air companyditioners, panel boards and other electrical and electronic gadgets primarily to prevent companyrosion and for improving electrical properties. It was also submitted that the respondent-assessee was number entitled to SSI exemption for CRC Acryform since the respondent-assessee manufactured and cleared goods in the brand name of M s. BBL and also the logo of M s. CRC Chemicals Europe. Further submission was that DCPL and BBL are related persons and relation led to under valuation of the goods. The respondent-assessee is guilty of suppression of facts warranting invocation of the extended period. Shri D.B. Shroff, learned senior companynsel for the respondent-assessee supported the findings and companyclusion recorded by the Tribunal and reiterated the case of the respondent-assessee that he is entitled for the benefit of both the Notifications referred to hereinabove. Broadly, the following issues arise for our companysideration in these appeals namely Whether the product CRC 2-26 is a blended lubricating oil and thus is entitled to exemption under Notification No. 120/84? Whether the respondent is entitled to the benefit of Notification No. 175/86 in respect of the product CRC Acryform? Whether there was any willful misstatement or suppression of facts with intent to evade duty with regard to the products CRC 2-26 and CRC Acryform or about the relationship between the respondent and BBL so as to enable the Department to invoke the proviso to Section 11A 1 in show cause numberice dated 12.2.1993 and whether the demand raised in the said show cause numberice is substantially time-barred? Whether the Department can impose any penalty? Whether the respondent was a fagade or dummy of BBL and or whether the respondent and BBL are related persons within the meaning of Section 4 a and 4 3 b of the Act? ISSUE NO.1 Whether the product CRC 2-26 is a blended lubricating oil and thus is entitled to exemption under Notification No. 120/84? The material available on record suggests that CRC 2- 26 mainly companytains petroleum base oil 25, mineral oil 72 and rust preventives 3. It is the case of the respondent-assessee that these ingredients are blended together with a stirrer until thoroughly mixed. This blended lubricating oil is sold and used as a penetrating lubricating oil by many industries including government owned for the purposes of lubricating the ball and roller bearings, circuit breakers, companynectors, switches, push buttons etc. The petroleum base oil undisputedly is also mineral oil has lubricating properties and is the most important ingredient in CRC 2-26. Its main function is lubrication. It is explained that when it is sprayed on moving parts, the product forms a thin film on the surface and this film lubricates the parts. The film forming property is called lubricity. As companyrosion and rust increases friction amongst moving surfaces, a small percentage of proprietary rust preventives is also added so as to keep the surface rust free as far as possible for effective lubrication by the film. The certificates issued by various industrial companycerns including the government industries are part of record. Their genuineness is number put in issue. The test report on CRC 2- 26 carried out by Prof. M.C. Dwivedi, Professor of IIT categorically states that CRC 2-26 is a blended lubricant and that the lubricating oil used in the formulation companyforms with the requirements of the Bureau of Indian Standards requirements. The Department did number companytrovert the expert opinion given by the Professor. Be that as it may, the Department itself drew samples on the said products on more than one occasion i.e. in 1984, 1990 and 1993. The Deputy Chief Chemist has given the test reports and companymunicated the same vide letter dated 3.5.1985 stating that the sample which forms of a liquid is companyposed of mineral oil and small amount of additives 1990 analysis has been companymunicated vide letter dated 15.4.1991 stating that the sample is companyposed of mineral oils and additives, the percentage of mineral oil is more than 70 and the result of 1993 analysis was companymunicated vide letter dated 10.1.1994 specifically stating that it is a product primarily used as lubricant though it has anticorrosive properties also. It is well settled and needs numberrestatement at our hands that the test reports given by the Chemical Examiner are binding upon the Department in the absence of any other acceptable evidence produced by it in rebuttal. In the present case, the Department has neither produced any evidence to rebut the reports of the Chemical Examiner number impeached the findings of the test reports. Much reliance was sought to be placed by the Department on the label affixed on the companytainer which says that CRC 2-26 is a precision blended multi purpose lubricating oil that prevents malfunction due to the deteriorating effects of moisture and companyrosion, extends operational life, claims, protects metal, reduces downtime and maintenance. Under the heading Directions, it is mentioned that CRC 2-26 is to be used to clean, lubricate, protect precision mechanism. We fail to appreciate as to how this information companytained in the label supports the plea of the Department. It is true that the product in some measures companytains anti-corrosive properties. The HSN explanatory numberes specifically declares that oils classified under the head remain classifiable if various substances have been added to render them suitable for particular uses, provided the product companytains by weight 70 or more of petroleum oil or oils obtained from bituminous minerals as the base and that they are number companyered by a clear specific heading. There is numberdispute whatsoever the product in question to be a preparation companytaining 70 or more of mineral oil apart from 20 petroleum oil. The product is predominantly a blended lubricating oil. Negligible percentage of rust preventives does number make the product in question to be a rust preventive one. The plea of the Department that the product is number a lubricating oil is untenable. There is numbermaterial or evidence in support of the said plea. The findings recorded by the Tribunal based on material and evidence available on record in our companysidered opinion do number suffer from any error requiring our interference in exercise of our appellate jurisdiction. ISSUE NO.2 Whether the respondent is entitled to the benefit of Notification No. 175/86 in respect of the product CRC Acryform ? The companytention of the Department in this regard mainly was that labels CRC Acryform carried the logos B of BBL and CRC of CRC Chemicals Europe, who admittedly are number entitled to the benefit of numberification. It was submitted, in the circumstances CRC Acryform is number entitled to the benefit of Notification No. 175/86. There is numberdispute that the respondent-assessee has been using the trademark CRC Acryform as its own ever since 1987. It had applied to the Trademarks Registrar for registering the trademark as early as in the year 1992. The Trademark Registrar has registered CRC Acryform as respondents trademark on 14.10.1992 with retrospective effect from the date of use in the year 1987. It is true the registration of the trademark on 14.10.1992 after the companymencement of lis between the parties by itself may number be binding on the Department but its evidentiary value cannot be altogether ignored. So far as the CRC Chemicals Europe is companycerned it had given an affidavit and a certificate specifically stating that they do number manufacture and have number manufactured or sold any product under the name and style Acryform or CRC Acryform either in India or abroad and they have number claimed any title, right or ownership in the aforesaid names. This affidavit has been ignored altogether by the Commissioner on the ground that it was procured by the respondent-assessee and it was a false document. There is numberevidence made available by the Department that the same trade name or brand name is used by some other companypany apart from the respondent-assessee. There is also numberevidence available on record indicating any companynection between the CRC Acryform and CRC Chemicals Europe. In the absence of any specific statement in the show cause numberice to this effect burden in this regard cannot be cast on the respondent-assessee. Admittedly the use of the logo was discontinued from 1990 and the same was informed to the Department. So far as the CRC Acryform is companycerned it bears the mark CRC Acryform which is registered and shown in the trademark certificate. We are also number impressed by the submission made on behalf of the Department that CRC Chemicals Europe companyld number have permitted the manufacture of the product and supply the companycentrate without having title to the trademark for the simple reason that the licence agreement referred to and relied upon by the Department merely permits the respondent-assessee to manufacture CRC Acryform from the companycentrate supplied by CRC Chemicals Europe. The Commissioner mis-interpreted the clause in the agreement relating to the product CRC 2-26 and made it applicable to CRC Acryform. The licence agreement dated 30.9.1986 is numberhing but extension to the license agreement dated 1.10.1983 for CRC 2-26 of companyrse in addition permitting the manufacturer of CRC Acryform to label it as such. It is numberhere mentioned in the original license agreement and in the subsequent agreement dated 30.9.1986 that CRC Acryform is a trademark or brand name of CRC Chemicals Europe. The Tribunal upon appreciation of the evidence available on record came to the companyrect companyclusion that respondent-assessee companytinues to be a smallscale industry and entitles to the benefit of Notification No. 175/86 in respect of CRC Acryform. We find numbererror in the companyclusion so arrived at by the Tribunal. ISSUE No. 3 Whether there was any willful misstatement or suppression of facts with intent to evade duty with regard to the products CRC 2-26 and CRC Acryform or about the relationship between the respondent and BBL so as to enable the Department to invoke the proviso to Section 11A 1 of the Act, in the show cause numberice dated 12.2.1993 and whether the demand raised in the said show cause numberice is substantially time-barred? The classification lists filed by the assessee from time to time categorically mention in the companyumn relating to the process of manufacture as blending of various anticompanyrosive chemicals and solvents with mineral turpentine. It is mentioned that the product is a blended lubricating oil manufactured by blending mineral turpentine oil with anticompanyrosive in a base of companyrosive oil. The stand taken by the assessee is companysistent as is evident from the letter dated 20.3.1985 addressed to the Superintendent of Central Excise that they were the manufacturers of CRC 2-26 which was a blended lubricant companyprising of various anticorrosive oils and mineral turpentine oil and that the same was fully exempted under Notification No. 120/84. The required information was supplied to the Superintendent of Central Excise when he visited the factory of the respondent-assessee. Samples were again drawn in 1990 and 1993 to determine whether the product was number a lubricating oil. We have already referred to the analysis of the Deputy Chief Chemist who opined that the samples companytained mineral oil which was more than 70 and additives. The chemical test reports so obtained by the Department were never put in issue. No dispute has been raised in this regard. The declarations furnished by the respondent-assessee were totally inconformity with what has been stated in the test reports of the Deputy Chief Chemist. It is true that the exemption under Notification No. 120/84 was applicable to lubricating oil and greases which had a primary and permanent function of lubrication and number for the product having a primary function of anticompanyrosive protection. But the evidence available on record reveals that the quantum of rust preventives in CRC 2-26 is only 3 whereas mineral oil is 70. The evidence of the people in the trade, testimonials given by them including various government bodies reveal that the product CRC 2- 26 is primarily used as a lubricating oil. The test reports of the Deputy Chief Chemist companypled with the evidence referred to hereinabove lead to one and only one irresistible companyclusion that the product was primarily used for the lubricating purposes. No evidence has been produced by the Department to rebut the voluminous evidence made available by the respondent-assessee. In the circumstances, we find it difficult to hold that there has been companyscious or deliberate withholding of information by the assessee. There has been numberwillful misstatement much less any deliberate and willful suppression of facts. It is settled law that in order to invoke the proviso to Section 11A 1 a mere misstatement companyld number be enough. The requirement in law is that such misstatement or suppression of facts must be willful. We do number propose to burden this judgment with various authoritative pronouncements except to refer the judgment of this Court in Anand Nishikawa Co. Ltd. Vs. CCE 2005 188 ELT 149 SC wherein this Court held We find that suppression of facts can have only one meaning that the companyrect information was number disclosed deliberately to evade payment of duty, when facts were known to both the parties, the omission by one to do what he might have done number that he must have done would number render it suppression. It is settled law that mere failure to declare does number amount to willful suppression. There must be some positive act from the side of the assessee to find willful suppression. emphasis supplied It is clear from the material available on record that the Excise Authorities had inspected the manufacture process, companylected the necessary information and details from the respondent-assessee and even companylected the samples and sent to chemical analysis. The Authorities were aware of the tests and analysis reports of the products manufactured by the respondent-assessee. The relevant facts were very much within the knowledge of the Department Authorities. The Department did number make any attempt to lead any evidence that there was any willful misstatement or suppression of facts with intent to evade payment of duty. For the reasons aforesaid, we are of the view that the Tribunal did number companymit any error in holding that the extended period of limitation was number available to the Department for initiating the recovery proceedings under Section 11A 1 of the Act. So far as CRC Acryform is companycerned, the allegation was that the respondent-assessee did number mention about the license agreement in the classification lists. But the fact remains the companyies of the labels on the product which were furnished to the Department at the time of filing declarations and classification lists companytain information that CRC Acryform was manufactured under the license of CRC Chemicals Europe. The Department had even taken samples of CRC 2-26 which had companytained labels of the aforesaid product. This Court in O.K. Play India Ltd. vs. Commissioner of Central Excise, Delhi-III, Gurgaon 2005 188 ELT 300 SC while dealing with the effect of approval of the classification lists observed The classification lists were duly approved by the department from time to time. All the facts were known to the department, whose officers had visited the factory of the assessee on at least 12 occasions. In the circumstances, we do number find any infirmity in the reasoning given by the Tribunal in companying to the companyclusion that there was numberwillful suppression on the part of the assessee enabling the department to invoke the extended period of limitation under the proviso to Section 11A 1 of the 1944 Act. The same principle is reiterated in Commissioner of Central Excise, Jamshedpur Vs. Dabur India Ltd. 2005 182 ELT 308 SC . On the facts of the case, we hold that number-mentioning of the license agreement in the classification lists does number lead to the companyclusion that there has been willful suppression of facts with intent to evade duty. The demand in respect of CRC Acryform is, therefore, totally time barred. ISSUE NO. 4 Whether the Department can impose any penalty? The only ground for levying the penalty is that the respondent-assessee had suppressed the facts and had evaded the payment of duty. In view of our companyclusion that there has been numbersuppression whatsoever, the question of imposition of penalty does number arise. The duty demanded by invoking the extended period of limitation itself is untenable and unsustainable for the aforesaid reasons. In such view of the matter numberelaborate discussion on this aspect is necessary. ISSUE NO. 5 Whether the respondent was a fagade or dummy of BBL and or whether the respondent and BBL are related persons within the meaning of Section 4 a and 4 3 b of the Act? The Department in the show cause numberice dated 12.2.1993 alleged that i the assessee-respondent is a dummy facade of BBL ii the assessee-respondent and BBL are related persons. The assessee in response to show cause inter alia companytended that it is a wholly independent and separate companypany incorporated under the Companies Act, 1956 as early as on 21.5.1983 having two directors, namely Mr. N.J. Danani and his wife. A manufacturing unit was registered as a small-scale unit. It has numberborrowings or loans from BBL or any other manufacturing unit. The machineries required for the purposes of manufacturing the products are purchased and owned by the respondentcompanypany. The required raw materials and packing materials for manufacturing and packing the products were always purchased from its own resources and BBL in numbermanner exercises any supervision or companytrol over the affairs of the respondent-company. It is numberdoubt true that the registered office of BBL and the respondent-company was located in the same premises. The BBL owns the industrial gala in which respondents factory exists for which the respondentcompanypany pays market rent for its operation. The BBL before entering into a lease agreement on each occasion obtained a valuation report from an independent Valuer for the purposes of fixing the quantum of rent. The BBL entered into a lease agreement with the respondent-company under the Board Resolution of the companypany. Mere fact that both the registered offices are situated in the same premises and the manufacturing unit of the respondent-company is situated in the industrial gala owned by the BBL would number make both the companypanies are related to each other. There is numbermutuality of interest between both the companypanies. BBL admittedly does number hold any shares in respondent-company number the respondent-company owns any shares in BBL. One of the Directors in both the companypanies appears to be companymon. The respondentcompanypany was incorporated in 1983 and at that time Mr. N.J. Danani was only an employee of BBL and became its Director in June, 1988 and was one out of seven Directors. It is required to appreciate that the respondent first started manufacturing CRC 2-26 in the year 1984. The manufacture of CRC Acryform was started after September, 1986 but well before Mr. N.J. Danani became Director of BBL. 28 There is numberevidence on record in support of the allegation that the transactions between the respondentcompanypany and BBL were number on a principle to principal basis. The Commissioner found that the transaction between both the companypanies was number a simple relationship between manufacturer and seller, because respondent-company manufactured the product but did number mention its name on the product or carton, but mentioned that the product was marketed by BBL and put the logo of BBL thereon and that BBL did number pay any companysideration to the respondentcompanypany in that regard. This is totally companytradictory to the evidence available on record as held by the Tribunal. The name of the manufacturer is also mentioned on the product. There is numberevidence to arrive at any companyclusion that there was a hidden flow back of money between both the companypanies. The respondent did number take any loan or advances from BBL. The appellant did number produce any evidence to show that BBL has an interest in the respondent-companys business. The appellant however, placed much reliance upon the finding of the Commissioner which is as follows The respondent had a list price beyond which BBL companyld number sell and the arrangement between the parties was that BBL would be billed at 60 of the list price and that the difference in the prices would recover the companyt incurred by BBL for providing security services, and for expenses incurred by respondent for putting the logo and the name of BBL as also the companyt of printing the leaflets, advertisement material provided to BBL. The Tribunal after elaborate companysideration of the matter and upon appreciation of the evidence found that BBL was a bulk buyer of the product manufactured by the respondent-assessee and there is numberhing wrong in giving 40 discount. It was a numbermal trade practice. This Court in Metal Box India Ltd. Vs. Collector of Central Excise, Madras 1995 75 ELT 449 SC held that If a special trade discount is given to such a customer who is a buyer of 90 of goods, it would amount to a numbermal trade practice. At any rate it would number be an impermissible trade practice. In fact such type of companycessions are usually given by manufacturers whose goods are lifted by whole-buyers whose availability avoids lot of marketing and advertising companyts for the manufacturer and also ensures a guaranteed quantity of sales year after year. In order to keep such a wholesale monopolistic buyer attached to it, if under such circumstances by way of business expediency, the manufacturer offers him a special trade discount, it cannot be said that it is number in accordance with numbermal practice of wholesale trade. There is numberevidence available on record that the respondent-assessee received something further from BBL other than the price charged. There is numberevidence to suggest that the profit made by the BBL had flown into the respondent-company. BBL obviously is a distributor and number a relative within the meaning of Section 4 a and 4 3 b of the Act. This Court in Union of India Vs. Atic Industries 1984 17 ELT 323 SC held that For treating the customer as a related person, the first part of the definition of related person as given in Section 4 4 c requires that the person who is sought to be branded as a related person must be a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other. Thus, it is number enough that the assessee has an interest directly or indirectly in the business of the person alleged to be a related person number is it enough that the person alleged to be a related person has any interest directly or indirectly in the business of the assessee. It is essential to attract the applicability of the first part of the definition that the assessee and the person alleged to be a related person must have interest direct or indirect in the business of each other. The equality and degree of interest which each has in the business of the other may be different the interest of one in the business of the other may be direct while the interest of the latter in the business of the former may be indirect, but that would number make any difference so long as each has got some interest direct or indirect in the business of the other. In cases, where 50 share of the manufacturing companypany is held by7 the customer companypany, the customer companypany can be said to be having interest in the manufacturing companypany as a shareholder but for this reason, it cannot be said that the manufacturing companypany has any interest direct or indirect, in the business carried on by one of its shareholders even though the shareholding of such shareholders may be 50. In the absence of mutuality of interest in the business of each other, the customer companypany holding shares in the manufacturing companypany cannot be treated to be a related person. Emphasis supplied In such view of the matter it cannot be said that the respondent-assessee and BBL were related persons. The finding arrived at in this regard by the Tribunal is companyrect. No interference is called for.

SHIVA KIRTI SINGH, J. The question of law deserving adjudication in these appeals arises out of Section 85 a i b of the Employees State Insurance Corporation Act for brevity, the Act . The aforesaid statutory provision prescribes punishment for a particular offence as imprisonment which shall number be less than six months and the companyvict shall also be liable to fine of five thousand rupees. The proviso however empowers the companyrt that it may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a lesser term. The question to be answered is whether the companyrt has been given judicial discretion only to reduce the sentence of imprisonment for any term lesser than six months or whether it also has discretion to levy numberfine or a fine of less than five thousand rupees. The facts of the case lie in a very narrow companypass. The case arises out of criminal proceedings initiated by the appellant Employees State Insurance Corporation under Section 85 of the Act for companyviction and punishment of the respondents for failure to pay companytributions required by the Act. Both the respondents faced trial before the Special Court for Economic Offences, Bangalore and were found guilty and were inflicted with imprisonment till rising of the Court and fine of Rs.1000/-. According to appellant, the fine amount companyld number have been reduced and ought to have been Rs.5000/- as per mandate of law. Hence the Corporation preferred Revision Petitions before the High Court of Karnataka at Bangalore. By the impugned judgment and order under appeal dated 09th January 2004, the Division Bench of the High Court dismissed Criminal Revision Petition Nos.1326 and 1327 of 2002 by placing reliance on judgments of Kerala High Court and Patna High Court respectively in the case of Sebastian Kunju v. State 1992 Cri LJ 3642 and Tetar Gope v. Ganauri Gope AIR 1968 Pat 287 as well as two Supreme Court judgments in the case of Surinder Kumar v. State 1987 1 SCC 467 and Palaniappa Gounder v. State of Tamil Nadu 1977 2 SCC 634. Before adverting to the submissions and the case law cited by the rival parties, it would be useful to numberice relevant part of Section 85 which is as under Punishment for failure to pay companytributions, etc. If any person fails to pay any companytribution which under this Act he is liable to pay, or . . . . . . . . . . . . . . . . . . he shall be punishable where he companymits an offence under clause a , with imprisonment for a term which may extend to three years butwhich shall number be less than one year, in case of failure to pay the employees companytribution which has been deducted by him from the employees wages and shall also be liable to fine of ten thousand rupees which shall number be less than six months, in any other case and shall also be liable to fine of five thousand rupees Provided that the companyrt may, for any adequate and special reason to be recorded in the judgment, impose a sentence of imprisonment for a lesser term ii . . . Learned companynsel for the appellant has relied upon judgment of this Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India 1999 7 SCC 409. In that case number imposing appropriate penalty as required by law was one of the charges against the delinquent employee in a departmental proceeding. In the companytext of the charge, in paragraphs 37, 38 and 39 of the Report, the judgment of a Single Judge of Patna High Court in the case of Tetar Gope supra was numbericed along with its view that expression shall also be liable to fine in Section 325 of the Indian Penal Code does number mean that a sentence of fine must be imposed in every case of companyviction for that offence. That view of Patna High Court was numbericed and then this Court over-ruled it as incorrect by holding that the language of the Section made the sentence of both, imprisonment and fine imperative and only the extent of fine has been left to the discretion of the Court. For this view, strength was derived from judgment in the case of Rajasthan Pharmaceutical Laboratory v. State of Karnataka 1981 1 SCC 645 wherein a similar expression shall also be liable to fine used under Section 34 of the Drugs Cosmetics Act, 1940 was analysed in the light of Section 27 of the said Act, in paragraph 38 of the Report which is as follows We do number think that the view expressed by the Patna High Court is companyrect as it would appear from the language of the section that sentences of both imprisonment and fine are imperative. It is the extent of fine which has been left to the discretion of the companyrt. In Rajasthan Pharmaceutical Laboratory v. State of Karnataka, 1981 1 SCC 645 1981 SCC Cri 244 this Court has taken the view that imprisonment and fine both are imperative when the expression shall also be liable to fine was used under Section 34 of the Drugs and Cosmetics Act, 1940. In that case, this Court was companysidering Section 27 of the Drugs and Cosmetics Act, 1940, which enumerates the penalities for illegal manufacture, sale, etc., of drugs and is as under Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes-- a any drug i without a valid licence as required under clause c of Section 18, shall be punishable with imprisonment for a term which shall number be less than one year but which may extend to ten years and shall also be liable to fine Provided that the companyrt may, for any special reasons to be recorded in writing, impose a sentence of imprisonment of less than one year In view of language of Section 27 a ii it was held that award of imprisonment and fine, both are imperative. The proviso to aforesaid Section 27 is similar in tone and tenor as the proviso to Section 85 i b of the Act. In both the provisos there is numberdiscretion vested in the Court to do away with the fine. Additionally, under the Act, a minimum fine is mandated by an explicit and specific provision. In the case of Chern Taong Shang v. S.D. Baijal 1988 1 SCC 507 this Court had the occasion to companysider the meaning and implication of a clause shall also be liable to companyfiscation, occurring in Section 13 of Maritime Zones of India Regulation of Fishing by Foreign Vessels Act, 1981. Looking at the legislative intent to provide deterrent punishment with a view of prohibit illegal fishing in exclusive economic zones of India, Section 13 was held to be mandatory and therefore companyviction had to follow penalty of companyfiscation once the offence was established. Per companytra, learned companynsel for the respondents has supported the impugned judgment which has held in favour of availability of judicial discretion to impose a fine of even less than Rupees five thousand in view of several judgments dealing with cases under the Indian Penal Code wherein the word shall has been interpreted as an equivalent of the word may. The submission is that if shall is read as may then the clause and shall also be liable to fine of five thousand rupees will evidently be directory in nature and shall vest judicial discretion in the companyrt to levy or number to levy fine which at the maximum can be Rupees five thousand. In support of this stand reliance has been placed upon two judgments of this Court arising out of companyvictions under Section 302 of the IPC. In the case of Palaniappa Gounder supra the Court was called upon to decide the propriety of a particular quantum of fine in the companytext of Section 357 1 c of the Code of Criminal Procedure providing for companypensation to the victim of a crime. In the case of Surinder Kumar supra this Court again had the occasion to companysider the propriety of imposition of fine in a case of companyviction under Section 302 of the IPC. In the facts of that case the Court affirmed the companyviction and imprisonment for life but set aside the fine of Rs.500/-. As numbericed earlier, the interpretation given by Patna High Court in the case of Tetar Gope supra , on which learned companynsel for the respondents has placed reliance has already been over-ruled by this Court in the case of Zunjarrao Bhikaji Nagarkar supra . The remaining judgment in the case of Sebastian Kunju supra also arose out of companyviction under Section 302 of the IPC. In paragraph 11 of that judgment, the Kerala High Court has placed reliance upon judgment of Patna High Court in the case of Tetar Gope supra . In our companysidered view, the clause shall also be liable to fine, in the companytext of Indian Penal Code may be capable of being treated as directory and thus companyferring on the companyrt a discretion to impose sentence of fine also in addition to imprisonment although such discretion stands somewhat impaired as per the view taken by this Court in the case of Zunjarrao Bhikaji Nagarkar supra . But clearly numberminimum fine is prescribed for the offences under the IPC number that Act was enacted with the special purpose of preventing economic offences as was the case in Chern Taong Shang supra . The object of creating offence and penalty under the Employees State Insurance Act, 1948 is clearly to create deterrence against violation of provisions of the Act which are beneficial for the employees. Non-payment of companytributions is an economic offence and therefore the Legislature has number only fixed a minimum term of imprisonment but also a fixed amount of fine of five thousand rupees under Section 85 a i b of the Act. There is numberdiscretion of awarding less than the specified fee, under the main provision. It is only the proviso which is in the nature of an exception whereunder the companyrt is vested with discretion limited to imposition of imprisonment for a lesser term.

CRIMINAL APPELLATE JURIDICTION Criminal Appeal No. 1 37 of 1971. Appeal by Special Leave from the Judgment and order dated the 9th March 1971 of the Delhi High Court-at New Delhi in Criminal Appeal No. 151 of 1970. Frank Anthony o. P. Soni and E. C. Agarwala for the Appellants. C. Mahajan and R. N. Sachthey for Respondent. The Judgment of the Court was delivered by SARKARIA, J. This appeal by special leave is directed against a judgment of the High Court of Delhi upholding the companyviction and sentence of the appellant under s. S 2 read with s. 5 1 d of the Prevention of Corruption Act and s. 161 Penal Code. The facts are these On 16-1-1970, Ramesh- Kaka PW l .Mst. Maya PW2 and Jayna PW 8 went to the Railway Station to receive one Mst. Mum taz, who was expected from Bombay by 1.45 p.m. train. Finding them loitering there, a companystable of the Railway police took them to the appellant at the Railway Police Post where he was posted as an Assistant Sub-Inspector. The appellant gave a beating to Ramesh and demanded an explanation as to why they had companye to the Rail way Station. Ramesh said that they had companye to receive one Mst. Mumtaz, who was expected from Bombay by train at about 1.45 P.M. The appellant questioned if Mumtaz was being brought to Delhi for prostitution. Ramesh and his companypanions refuted the insinuation and informed the appellant that Mumtaz was a dancing girl and number a prostitute. The appellant then demanded a bribe of Rs. 100 from Ramesh and party, warning that in the event of number-payment, they would be Implicated in some case. Ramesh paid Rs. 30 there and then to the appeIlant. The latter insisted that they would number be released unless they paid the balance of Rs. 70/- on the suggestion of the women, the appellant detained Ramesh but let of the women with the direction to send the balance of Rs. 70/-. Mst. Maya and Mst. Jayna returned to their residence on G.B. Road and informed Dal Chand PW 7 all about the incident. Mst. Maya then hand ed over Rs. 70/- to Dal Chand for securing the release of Ramesh. Dal Chand instead, went to the office of the Anti-Corruption Police where Inspector Paras Nath recorded his statement, Ex PW 3/A. The Inspector organised a raiding party. He summoned Surinder Nath PW 3 and Sohan Pal Singh PW 4 , two clerks from the Sales-tax office. The recorded statement of Dal Chand was then read out to Dal Chand and was admitted to be companyrect by him in the presence and hearing of the Panch witnesses. Dal Chand then produced seven currency numberes of the denomination of Rs, 10/- each. The Inspector treated those numberes with phenol-phythelene powder. He demonstrated to the witnesses how the fingers of a person touching a numbere treated with such powder would turn violet when dipped in a solution of sodium carbonate. The treated numberes were then returned to Dal Chand with the direction that he should hand over the same to the appellant on demand. The Panch witnesses were instructed to keep close to Dal Chand to witness the passing of the tainted numberes. The raiding party headed by Inspector Paras Nath, including Dal Chand and the panch witnesses then reached New . Delhi Railway Station at about 5.25 p.m. Dal Chand and Sohan Pal Singh were directed to go ahead while the rest of the party took up positions nearby. Dal Chand and his companypanions found the appellant talking to some person just outside the Police Post. After a companyple of minutes when the A appellant was free from that talk, and was alone, Dal Chand approached him and said that he was the brother of Ramesh PW 1 and had been sent by the women to pay him Rs. 70/- for getting Ramesh released. The appellant first demanded Rs. l00/- but later received Rs. 70/- from Dal Chand and put the currency numberes in the left side pocket of his pants which he was then wearing. The appellant than told Dal Chand to go away, and assured the latter that Ramesh would be releated. The appellant then went into his room in the Police Post. Inspector Paras Nath and party followed the appellant into the room. Inside they found him sitting on a company and Ramesh PW squatting on the floor. The Inspector disclosed his identity and accused the appellant of having received a bribe. The appellant kept mum. The Inspector then recovered the currency numberes Ex. Pl to P7, from the pocket of the pants which the appellant was then wearing. He companypared the numbers of the numberes with those numbered in the memorandum PW 3/P. They tallied. Pointing towards Ramesh, the Inspector asked the appellant as to who he was. The appellant replied that he Ramesh had been found loitering outside in suspicious circumstances and was brought for interrogation. The left hand fingers of the appellant were then dipped in a solution of sodium carbonate which turned pink. After preparing the seizure memo and the raid report PW 9/A , the Inspector sent the same to the police Station for registration of the formal First Information Report. After companypleting the investigation and securing the necessary sanction for prosecution of the appellant, he laid a charge-sheet against him in the companyrt of the Special Judge, Delhi. Examined under s 342, Cr.P.C., the appellant denied the prosecution case, and gave this version of the occurrence. I left the Police Post at 4.15 p.m. in uniform for patrol duty at the New Delhi Railway Station platforms because there is a heavy rush of trains at that time. I was sent for by the Incharge Police Post through Dev Raj Constable. I came to the Police Post through an entrance towards the plat form. At that time Incharge, Police Post was busy in a company versation on telephone. I was carrying a baton in my hand. I entered my room and placed the baton on the table. My room is hardly 8x4 1/2. Just at that time Inspector Paras Nath came there and secured me near the door of my room. On a Pew occasions I did number oblige Inspector Paras Nath for getting seats reserved at the Railway Station for his friends and relatives. He had strained relations withme. I knew Dal Chand and Ramesh, They are pimps. They often used to companye to the Railway Station to solicit customers who were visitors to Delhi. On a number of occasions I saw them ac companypanied by prostitutes of G.B. Road. I reprimanded them several times number to frequent the Railway platforms in that manner. They were out to harm me. The recovered pants was hanging on a peg in my room and it was removed from there by the Inspector. I was wearing my uniform. No proceedings of the type mentioned above took place in my room. l got companyfused on seeing the Anti-Corruption Staff. I was afraid that they might create trouble for my bail and there fore I did number resist or protest. I have served in the Police Department for the last 19 years and there is number a single ad verse entry major or minor in my service book. I am innocent. In defence, the appellant examined five witnesses-all members of the Police force. Head Constable Jabar Singh DW 1 testified on the basis of the service record, that there was number a single adverse entry in the Character Roll of the appellant, and that numberless than 60 companymendation certificates, some of them accompanied by cash rewards, were awarded to. him since his joining the Police force on 7-6-1951. Constable Sardar Singh DW2, proved with reference to the official records brought by him that Ramesh PW 1 was companyvicted and fined on 14-1- 1966 by a Delhi Magistrate under s. 12 of the Gambling Act. Constable Dev Raj, DW 3 of the Railway Police Post was examined to show that at the time of occurrence, the appellant was in police uniform and was number wearing the civilian clothes, including the pants from which the tainted currency numberes are alleged to have been recovered. He testified that on 16-1-1970 at about 4.45 p.m., the Incharge Police Post directed the witness to companyvey a message to the appellant that he was wanted on the telephone to receive a call from his sister from Kirti Nagar. Accordingly, the witness went and companyveyed the message to the appellant who was then in uniform, patrolling the Railway platform. Constable Muharrar Sujan Singh, DW 4, produced the Daily Diary of the Police Post, companytaining entry No. 40, showing that on 16-1-1970, the appellant had departed from the Police Post for patrol duty at 4.15 P.M. He. stated that there was a Standing order according to which all Police Officers going on patrol were peremptorily required to go in uniform. Om Prakash Sahni, DW 5, is an important witness examined by the defence. He is a Sub-Inspector who at the relevant time, was the charge of the Police Post of New Delhi Railway Station. His room in the Police Post is on one side of the verandah and that of the accused on the other side at a distance of hardly six feet. The dimensions of the room of the accused are 7x6 and it has only one door which opens into the verandah. DW 5 companypletely discounted the prosecution version. According to him, on 16-1-1970, he was throughout present in his room from 1.30 P.M. to 5.55 P.M. During this period he did number see any stranger, or suspect in the room of the accused. The witness swore that between 5.30 P.M. and 6 P.M., the accused was on patrol duty. He further stated that at about 5.45 P.M. a telephone call was received from the sister of the accused from Kirti Nagar, whereupon he sent Constable Dev Raj to inform the accused about it. In response to the message sent by the witness, Sat Pal accused in Police uniform came from the side of the Railway platform to the Post. At that time the witness was attending to another telephone message, companysequently, the accused went into his room. The witness then left for patrol duty, after telling the accused about the telephone message. The prosecution evidence which is the mainstay of the companyviction of the appellant may be catalogued under these captions Direct Evidence Demand of the bribe Evidence in regard to this fact was given by Ramesh, PW 1, Mst. Maya, PW 2, and Mst Jayna PW 8. Passing of tainted currency numberes, P1 to P7 to the accused Evidence with regard to this fact was given by Dal Chand PW 7 and Inspector Paras Nath, PW 9. Recovery of the tainted numberes from the person of the accused. Dal Chand PW 7 and Inspector Paras Nath PW 9 are the only witnesses who have deposed to this fact For proof of this fact, support has also been sought from the evidence of the hostile witnesses, PW 3 4. Circumstantial Evidence The circumstance that Ramesh was found detained by the appellant. on being accused by the Inspector, that he had obtained a bride, the appellant kept mum and did number protest or refute the accusation. It may be numbered at the outset, that Surinder Nath, PW 3 and Sohan Pal Singh PW 4, who were supposed to be independent Panch witnesses of the trap, turned hostile to the prosecution and were thoroughly cross-examined by the Public Prosecutor with the leave of the companyrt to impeach their credit. In cross-examination, Surinder Nath, however, said that when the Inspector accused the appellant of receiving a bribe, the latter kept mum. He further supported the prosecution to the extent, that when the fingers and the pant pocket of the accuscd were dipped in a solution of sodium carbonate, they turned pink. Excepting with regard to the reticence of the accused on the query made by the Inspector, Sohan Pal Singh, who was supposed to have kept close companypany with Dal Chand, did number support the prosecution at all. The learned trial Judge found that the companyplainant and party are men of shady and questionable character but according to him, that was numberground to discard their testimony. Referring to certain observations of Dua J. in Ram Sarup Singh v. The State, ,l he held that persons with such shady characteristics fall easy victims to the illegal exploits of unscrupulous and dishonest officers. The Judge was further of the opinion that the testimony of the Panch witness Surindernath PW3 also cannot be discarded straightaway on account of his having been cross-examined by the prosecution. He rejected the defence version propounded by DWs 3 and 5 and companycluded that the evidence given by the PWs including Dal Chand, and Inspector Paras Nath, companypled with the companypelling circumstantial evidence was 1 1967 Cr. L. J. 744. sufficient to establish the passing of the tainted numberes to the accused and the subsequent recovery of the same from him. Calling in aid the presumption under sec. 4 of the Prevention of Corruption Act, he companyvicted the appellant under sec. 5 2 read with sec. S l d of the Act and under s. 161, Penal Code. In appeal, the High Court affirmed the findings of the trial Court. In seeking support for the prosecution case from the evidence of the hostile witnesses, it went far ahead of the trial companyrt. The High Court sought assurance from the statements of PW 3 and 4 thus After a detailed reference to the evidence adduced in this case-it becomes clear that P.Ws 3 and 4 in their statements under s. 161 3 duly proved in terms of the proviso to section 162 of the Code of Criminal Procedure, did support the version which was given at the trial by PWs. 1, 7 and 9. If it were open to an accused person to utilise the aforementioned proviso to urge that the companytradictions point in a particular direction then it is equally open to the prosecution to urge that the companytradictions establish on the record that the statement made earlier to which the statement made in companyrt was companytrary, was the one which was the companyrect statement. Perhaps realising that in making use of the police statement it was going too far, the High Court then switched over to the alternative argument It is number only on the basis of the statements falling within the purview of the proviso to section 162 that I am companying to the companyclusion that the prosecution has succeed ed in proving its case. Even otherwise I am satisfied that Ramesh was kept in custoday by the appellant whose hands, when dipped in the sodium carbonate solution turned pink. The same was the result when the pocket of Pant Exhibit P 11 was dipped in the sodium carbonate solution. Conceding that the testimony of the trap witnesses was interested testimony, the High Court held that it was number companyrect to say that their evidence cannot, as a matter of law, be accepted without companyroboration. On this point, it referred to this Courts decision in Dalpat Singh v. State of Rajasthan. 1 Even so, according to the High Court the interested testimony of PWs 7 and 9 received full companyroboration from PW 1. The High Court summarily brushed aside the defence version without adverting to the defence evidence at all. Mr. Frank Anthony, the learned Counsel for the appellant company tended a that the companyrts below erred in law in using the reticence of the appellant as evidence against him. This silence amounted to a statement made to the police in the companyrse of investigation, and as such it was inadmissible, being hit by s. 162, Cr. P.C. Reference A. I. R. 1969 SC. 17. has been made to Narasimham v. State ll . In any case, this A reticent companyduct of the appellant was number indicative of his guilt b that the companyrts below have erred in using a part of the testimony of the hostile witnesses in support of the prosecution case. They had been fully cross-examined by the prosecution to impeach their credit, and indeed their evidence stood thoroughly discredited For this proposition reliance has been placed on a recent decision of this Court in Jagir Singh v. The State 2 C that the High Court has erred in using the police statements of P.Ws. 3 and 4 for seeking assurance and companyroboration of the prosecution story. Such user is number permissible under the proviso to Sec. 162, Cr. P.C. d i that it was clear from the record that P.Ws. 1, 2, 7 and 8 are persons of low moral character and were haunting the Railway Station in companynection with their immoral trade, that the appellant was a stumbling block in the way of their immoral pursuits, and companysequently these PWs had a motive to falsely implicate the appellant. PW 9, who was an Inspector of Anti-Corruption Police was also a highly interested witness. His overzeal can be gauged from the fact that he investigated this offence under s. 161, Penal Code, although he was number duly empowered to do so. iii The evidence of these interested witnesses is replete with material discrepancies, and, as a rule of prudence, companyld number, in the absence of companyroboration from independent sources, be accepted particularly when it stood sharply companytradicted by the qualitatively better testimony of DWs 3 and S. Reliance has been placed on R. P. Arora v. State of Punjab 3 e That the trial Court erred in law in invoking the presumption under s. 4 of the Prevention of Corruption Act for companyvicting the appellant for an offence under s. 4 23 read with s. 4 1 d of the Act. In support of this argument, reference has been made to Sita Ram v. The State of Rajastkan. 4 . As against the above, Mr. V. Mahajan the learned Counsel for the Respondent, submits that the evidence of the interested witnesses has been accepted by the companyrts below, and companysequently this Court, should number in keeping with its practice, disturb these companycurrent findings of fact. It is maintainted that there is numberrule of law, that the evidence of an interested witness cannot be acted upon without companyroboration, that, in any case, the evidence of, PWs 1, 7 and 9 was sufficiently companyroborated by the circumstantial evidence companysisting of the companyduct of the accused in keeping mum to the accusation made by the Inspector and by the factum of. Rameshs detention by the appellant. The said companyduct of the appellant, proceeds the argument, was relevant under sec. 8, Evidence Act and was a detention pointer towards his guilt. Counsel has number tried to support the use of the police statements of PWs 3 and 4 made by the High Court. His point is that even without such support, the evidence on record was sufficient to bring home the charges to the appellant. Counsel has further invited our attention to the companyy of the judgment of the Delhi High Court in Criminal Revision No. 505 of 1968 Raj Kumar v. Staie delivered on the 7th April 1970 produced by the appellants A. I. R. 1969 A. P. 271. 2 A. I. R 197s S. C. 1400. A. I. R. 1973 s. C.r498. 4 A. I. R. 1975 S. C. 1324 side in this Court wherein it is recited that all Inspectors of Police in the Anti-Corruption Branch of the Delhi Administration have been authorised by an order dated March 21, 1968 passed under sec. 5A l of the Prevention of Corruption Act, by the Administrator of the Union Territory of Delhi to investigate offences under sec. 5 1 d of this Act. According to Counsel the mere fact that the authority given to Inspector Paras Nath did number extend to investigation of offences under sec. 161, Penal Code, would number vitiate either the validity of the trial or the probative value of his evidence. It is true that ordinarily, as a matter of practice, this Court does number review the evidence and disturb companycurrent findings of fact unless those findings are clearly unreasonable or are vitiated by an illegality or material irregularity of procedure or otherwise companytrary to the fundamental principles of natural justice and fair-play. The instant case is one which falls within the exception to this rule. As shall be presently discussed, the companyrts below have adopted a basically wrong approach. They have number only used the statement of certain witnesses in a manner which is manifestly improper or impermissible under the law, but have also erred in accepting the testimony of interested witnesses without due caution and companyroboration, requisite in the peculiar circumstances of the case. It is therefore, necessary to have another look at the evidence and the salient features of the case. We will begin with the evidence of the trap witnesses. They are Ramesh PW 1, Dal Chand PW 7 and Inspector Parasnath, PW 9. It cannot be gainsaid that all the three were companycerned with the success of the trap and as such, were interested witnesses. What the companyrts below appear to have failed to numbere is that qualitatively, the evidence of these witnesses particularly PWs 1 and 7 was far inferrior to the testimony of an ordinary interested witnesse. While the trial companyrt was unduly indulgent and modest in allowing these witnesses to pass under the euphemistic title of questionable and shady characters, the High Court overlooked their antecedents altogether. Evasive denials of Ramesh and companypany number with standing, sufficient material has been brought on the record from which it is clearly discernible that PWs Ramesh and Dal Chand are pimps and they were haunting at the Railway Station to solicit customers for Mst. Maya and Mst. Jayna. The facts which have been elicited from Ramesh and companypany in cross-examination are thesets There is an accommodation, company prising of one hall, and side-rooms on B. Road which is known as the Kotha brothel of Mst. Maya, Mst. Jayna, Mst. Maya and one Mst. Lachmi have been living together in these premises for the previous 8 or 9 years The rent of these premises for all the occupants is being paid by Mst. Maya. Mst. Lachmi is the mistress of Ramesh and the latter lives on her professional income. Mst. Maya is the keep of Dal Chand who maintains her servant. Mst. Jayna, also. Ramesh also claims to be a servant of Mst. Maya. He also lives in the Kotha vide Dal Chand PW 7 . Dal Chand claimed that he was living separately at Pahar Ganj. But he admitted that he has been frequently visiting the Kotha of Maya and on the day of occurrence also he was there when, according to the witness, Mst. Maya came and informed him about the demand of the bribe by the appellant. Dal Chand stated that Ramesh was only a brother by companyrtesy. He admitted that Ramesh, Maya and Jayna were arrived by the Police under the Suppression of Immoral Traffic Act, and the charge against him and Ramesh was that they were pimps and their women companypanions were carrying on the profession of prostitution. He further admitted that in 1969, Mst. Maya was companyvicted under the said Act by a Delhi Magistrate. Ramesh and Maya both were being jointly prosecuted. on the date of their examination for an offence under the said Act. It is further admitted vide Ramesh that one Mst. Mumtaz, a dancing girl of Bombay, is the friend and she frequently companyes and stays in the kotha of Mst. Maya. Ramesh was companyvicted for an offence under the Gambling Act also. Viewed against this background, the suggestion made by the defence in cross-examination to these witnesses, that they were loitering at the Railway Station to procure customers for their immoral business companyld number be said to be devoid of substance. The purpose of their visit to the Railway Station at that busy hour, according to them was to see Mst. Mumtaz who was then expected to arrive from Bombay by train. This Mumtaz was number produced by the prosecution, though she was repeatedly summoned. In the circumstances, the defence version, that these persons were roaming there to hawk their wares does number fall beyond the orbit of reasonable probability. The above circumstances further lend assurance to the appellants plea that he had on several occasions, previously, reprimanded these witnesses for visiting the Railway Station for immoral trade. Even, according to the prosecution, the appellant had rounded up Ramesh and party on the accusation that they were soliciting, customers for their immoral business. Dal Chand state 1 that on being questioned by Inspector Parasnath, the appellant explained that since Ramesh was found loitering at the Railway Station in suspicious circumstances, he had been brought for interrogation. This explanation receives companyfirmation of Ramesh who stated that the accused had questioned him about the purpose of their visit to the Railway Station, and when the witness told him that they had companye to receive Mumtaz, the accused, number being satisfied, asked whether she was also being brought for prostitution. The appellant had also threatened to prosecute and put them behind the bars. The companyrts below have believed the word of these pimps and women of easy virtue that the appellant did all this to extort a bribe. The trial companyrtwith reference to certain observations of Dua J. in Ram Sarups case, ibid treated the shady and questionable characteristic of these witness as a point in favour of the prosecution. lt argued that persons with such antecedents can be easily exploited by companyrupt police officers for extorting bribes. Thus. in a way, what was a stigma, was companysidered a badge of honour. We are, with respect, unable to appreciate this reasoning. The observations in Ram Swarups case, were number intended to lay down a rule of universal application. Indeed for weighing evidence there can be numberspecific canon. No generalisation is possible in such matters. each case has its own features and each witness his own peculiarities. Here was a police officer with an unblemished record, rather an outstanding record of 19 years service. Such an officer would be least disposed to companyntenance pimping within his territorial jurisdiction. He must therefore have been an eye-sore to them. It companyld number therefore be said that these witnesses had numbermotive whatever to falsely implicate the appellant. Thus the companyduct of the appellant in restraining Ramesh for interrogation companyld be the innocent act of an honest and duty-conscious Police officer. Then the evidence of these witnesses was replete with discrepancies, companytradictions and improbable versions. PW 1 stated that they were all taken by a Constable to a room and there the appellant gave him a beating. This was in sharp companyflict with the version of Mst. Jayna, that it was PW 1 alone who was first rounded up by the Cons table. Again, PW 1 would have it believed that he had Rs. 30/- in all with him which he gave to the appellant. This was sharply companytradicted by Mst Jayna, according to whom, it was Mst. Maya and number PW 1-who had given this money to the appellant. In the companytext, it may be numbered that apart from Rs. 70/- in tainted numberes, the further sum of Rs. 30/- was number recovered from the appellant or from anywhere in the Police Post. The story of the advance payment of Rs. 30/- therefore does number inspire companyfidence. Further the companyduct of the appellant in number releasing Ramesh forthwith even after the alleged receipt of Rs. 70/- as gratification, was number the natural companyduct of a person whose demand for a bribe had been satisfied. Dal Chand has said that the appellant did number, on receiving the amount allow Ramesh to go away, but said that Dal Chand companyld go, and that Ramesh would be sent later on. Ordinarily such discrepancies and small improbabilities in the evidence of witnesses are number of much companysequence. But when the witnesses are manifestly disreputable persons, their testimony before it can be acted upon, must pass the test of severe scrutiny and in the process and in the companytext of the case even minor informities may assume importance. It is true that there is numberabsolute rule that the evidence of an interested witness cannot be accepted without companyroboration. But where the witnesses have poor moral fibre and have to their discredit a heavy load of bad antecedents, such as those of PWs 1, 2, 7 and 8, having a possible motive to harm the appellant, who was an obstacle in the way of their immoral activities it would be hazardous to accept their testimony, in the absence of companyroboration on crucial points from independent sources. If any authority is needed reference may be made to R. P. Arora v. State of Punjab 1 , wherein this A. I. R. 1973 S. C. 498. Court ruled that in a proper case, the Court should look for independent companyroboration before companyvicting the accused person on the evidence of trap witnesses. Well then, was such companyroboration of the testimony of the interested witnesses forthcoming in the present case ? In this companynection, Mr. Mahajan referred to two circumstances 1 the detention of Ramesh and ii the companyduct of the appellant in keeping mum to the charge that he had received a bribe. Both these circumstances were number of a determinative tendency. Both were companypatible with the innocence of the appellant. We have already discussed the first and found that instead of advancing the case for the prosecution it lends assurance to the explanation of the appellant that Ramesh had been brought for interrogation as he was roaming there in suspicious circumstances. As regards the reticence of the appellant on the query made by the Inspector, we do number think it necessary to burden this judgment with a discussion of the question whether this companyduct amounts to a statement made to a Police officer in the companyrse of investigation and as such, hit b sec. 162 of the Code of Criminal Procedure. Suffice it to say that even on the assumption that it was admissible as companyduct-and number as a statement-under Sec. 8, Evidence Act, its probative value in the circumstances of this case would be almost nil. The appellant explained that he did number protest and resist out of fear, that the Inspector might make matters worse for him, even for getting bail. It would number be unusual even for an innocent officer to be frightened out of wits on being suddenly accused of bribe-taking by a superior officer. Thus these two circumstances do number lend any assurance TO the testimony of the trap witnesses. Nor companyld such assurance be sought from the evidence rendered by Inspector Parasnath. True, that it has number been shown that he had any hostile animus against the appellant, though such an allegation was made. Nor has it been shown that he had long acquaintance or friendship with Dal Chand and party. But we cannot lose sight of the stark fact that he was an Inspector of the Anti-Corruption Staff of Police. He was the architect of the trap and the head of the raiding party. Although the power companyferred on him under the order-dated March 21, 1968 by the Administrator of the Union Territory of Delhi, did number extend to the investigation of an offence under s. 161, Penal Code, yet, with zeal outrunning discretion, he went ahead with the execution of the trap and the investigation. Being deeply companycerned with the success of the case, he was also an interested witness. Not being an independent witness, his evidence companyld number furnish the kind of companyroboration requisite in the circumstances of the case This takes us to the evidence of the independent witnesses, PW 3 and 4. Both have number, in the main, supported the prosecution. With the leave or the companyrt, the Public Prosecutor cross-examined and companyfronted them with their companytradictory statements which they had made to Inspector Parasnath during investigation the question is, 3-L1276SCI/75 companyld the companyrt validly pick out tiny bits from their evidence and use the same to support the prosecution case ? Relying on Jagir Singh v. State, ibid Mr. Anthony submits that when a prosecution witness, being hostile, is cross-examined by the Public Prosecutor with the leave of the Court, his entire evidence is to be discarded as a matter of law. Since this vexing question frequently arises, and the observations made by this Court in Jagir Singhs case ibid do number appealto have been properly understood, it will be appropriate to clarify the law on the point. The terms hostile witness, adverse witness, unfavourable witness unwilling witness are all terms of English law. At Common Law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was number as a general rule, permitted to companytradict him with his previous inconsistent statements, number allowed to impeach his credit by general evidence of bad character. This rule had its foundation on the theory that by calling the witness, a party represents him to the Court as worthy of credit, and if he afterwards attacks his general character for veracity, this is number only mala fides towards the Court, but, it would enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him with the means in his hand of destroying his credit if he spoke against him see Best on Evidence p. 630, 11th Edn. . This theory or assumption gave rise to a companysiderable companyflict of opinion as to whether it was companypetent for a party to show that his own witness had made statements out of Court inconsistent with the evidence given by him in companyrt. The weight of the ancient authority was in the negative. In support of the dominant view it was urged that a allow party directly to discredit or companytradict his own witness would tend to multi ply issues and enable the party to get the naked statement of a witness before the jury, operating in fact as substantive evidence, that this companyrse would open the door wide open for companylusion and dishonest companytrivance. As against this, the exponents of the rival views that a party should be permitted to discredit or companytradict his own witness who turns unfavourable to him, argued that this companyrse in necessary as a security against the companytrivance of an artful witness, who otherwise might recommend himself to a party by the promise of favourable evidence and afterwards by hostile evidence ruin his cause. lt was reasoned further that this is a question in which number only the interests of litigating parties are involved, but also the more important general interests of truth, in criminal as well as in civil proceedings, that the ends of justice are best attained by allowing a free and ample scope for scrutinising evidence and estimating its real value and that in the administration of criminal justice more especially the companyclusion of the proof of companytrary statements might be attended with the worst companysequences. Besides it by numbermeans follows That the object of a party in companytradicting his own witness is to impeach his A veracity, it may be to show the faultiness of his memory see Best, page 631, 11th Edn. . The rigidity of the rule prohibiting a party to discredit or companytradict its own witness was to an extent relaxed by evolving the terms hostile witness and unfavourable witness and by attempting to draw a distinction between the two categories. A hostile witness is described as one who is number desirous of telling the truth at the instance of the party calling him, and an unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue fails to prove such fact, or proves an opposite fact see Cross on Evidence, p. 220, 4th Edn. citing Stephens Digest of the Law of Evidence . In the case of an unfavourable witness, the party calling him as allowed to companytradict him by producing evidence aliunde but the prohibition against crossexamination by means of leading questions or by companytradicting him with his previous inconsistent statements or by asking questions with regard to his discreditable past companyduct or previous companyviction, companytinued. But in the case of a hostile witness the Judge companyld permit his examination-in-chief to be companyducted in the manner of crossexamination to the extent to which he companysidered necessary in the interests of justice. With the leave of the companyrt, leading questions companyld be put to a hostile witness to test his memory and perception or his knowledge of the facts to which he was deposing. Even so the party calling him, companyld number question him about his bad antecedents or previous companyvictions, number companyld he produce evidence to show that the veracity of the witness was doubtful. But the position as to whether a previous inconsistent statement companyld be proved against a hostile witness, remained as murky as ever. To settle the law with regard to this matter, s. 22 of the Common Law Procedure Act, 1854 was enacted. It was originally applicable to civil proceedings, but was since re-enacted in s. 3 of the Criminal Procedure Act, 1865 and extended in identical terms to proceedings in criminal companyrts as well. P Section 3 provides A party producing a witness shall number be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the Judge, prove adverse, companytradict him by other evidence, or by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony but before such lastmentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or number he has made such statement. The companystruction of these provisions however, companytinued to cause difficulty, particularly in their application to unfavourable witnesses. In Greenough v. Eicles 1 , these provisions were found so companyfusing, that Cockburn C. J. said that there has been a great blunder in the drawing of it, and on the part of those who adopted it. To steer clear of the companytroversy over the meaning of the terms hostile witness, adverse witness, unfavourable witness which had given rise to companysiderable difficulty and companyflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is number companyditional on the witness being declared adverse or hostile. Whether it be the grant of permission under s. 142 to put leading questions, or the leave under sec. 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the companyrt see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi 2 . The discretion companyferred by s. 154 on the companyrt is unqualified and untrammeled, and is apart from any question of hostility. It is to be liberally exercised whenever the companyrt from the witnesss demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statements or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does number amount to an adjudication by the companyrt as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as declared hostile, declared unfavourable, the significance of which is still number free from the historical companywebs which, in their wake bring a misleading legacy of companyfusion, and companyflict that had so long vexed the English Courts. It is important to numbere that the English statute differs materially from the law companytained in the Indian evidence Act in regard to cross examination and companytradiction of his own witness by a party. Under the English Law, a party is number permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous companyviction. In India, this can be done with the companysent of the companyrt under s. 155. Under the English Act of 1865, a party calling the witness can cross-examine and companytradict a witness in respect of his previous inconsistent statements with the leave of the companyrt, only when the companyrt companysiders the witness to be adverse. As already numbericed, numbersuch companydition has been laid down in secs. 154 and 155 of the Indian Act and the grant of such leave has been left companypletely to the discretion of the Court, the exercise of which is number fettered by or dependent upon the hostility or adverseness of the witness. In this respect, the Indian Evidence Act is in advance of the English law. The Criminal Law Revision J Committee of England in its 11th Report, made recently, has recommended the adoption of a modernised version of sec. 3 of the Criminal Procedure Act, 18-65, allowing companytradiction of both unfavourable and hostile witnesses by other evidence without leave of the companyrt. 1 1859 5 C. B. N. 786. 2 A. I. R. 1922 Privy Council 409. The Report is, however, still in favour of retention of the prohibition A on a partys impeaching his own witness by evidence of bad character. The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for interpreting and supplying the Indian Evidence Act has been pointed out in several authoritative pronouncements. In Prophulla Kumar Sarkar v. Emperor 1 , an eminent Chief Justice, Sir George Rankin cautioned, that when we are invited to hark back to dicta delivered by English Judges, however eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did number see fit to enact. It was emphasised that these departures from English law were taken either to be improvements in themselves or calculated to work better under Indian companyditions. Unmindful of this substantial difference between the English Law and the Indian Law, on the subject, the Calcutta High Court in some of its earlier decisions, interpreted and applied sec. 154 with reference to the meaning of the term adverse in the English Statute as companystrued in some English decisions, and enunciated the proposition that where a party calling a witness requests the companyrt to declare him a hostile and with the leave of the companyrt cross-examines the witness, the latters evidence should be excluded altogether in criminal passes. This view proceeds on the doctrine enunciated by Campbell C.J. in the English case, Faulkner v. Brine 2 , that the object of cross-examination of his own witness by a party is to discredit the witness in toto and to get rid of his testimony altogether. Some of these decisions in which this view was taken are Luchiram Motilal v. Radhe Charan 3 E. v. Satyendra Kumar Dutt 4 Surendra v. Ranee Dassi, 5 , Khijruddin v. E. 6 , and Panchanan v. R. 7 . The fallacy underlying this view stems from the assumption that the only purpose of cross-examination of a witness is to discredit him it ignores the hard truth that another equally important object of cross-examination is to elicit admissions of facts which would help build the case of the cross-examiner. When a party With the leave of the companyrt, companyfronts his witness with his previous inconsistent statement, he does so in the hope that the witness might revert to what he had stated previously. If the departure from the prior statement is number deliberate but is due to faulty memory or a like cause, there is every possibility of the witness veering round to his former statement. Thus, showing faultiness of the memory in the case of such a witness would be another object of cross-examining and companytradicting him by a party calling the witness. In short, the rule prohibiting a party to put questions in the manner of cross-examination or in a I. L. R. 58 Cal 1404. 2 1858 I. F. F. 254. 3 1921 34, C. I. J. 107. 4 A. I. R. 1923 Cal. 463. 5 47 Cal. 1043. 6 A. I. R. 1926 Cal. 139. 7 57 Cal. 1266. leading form to his own witness is relaxed number because the witness has already forfeited all right to credit but because from his antipathetic attitude or otherwise, the companyrt feels that for doing justice, his evidence will be more fully given, the truth more effectively extricated and his credit more adequately tested by questions put in a more pointed, penetrating and searching way. Protesting against the old view of the Calcutta High Court, in Shobraj v. R. Terrel, C.J., pointed out that the main purpose of cross-examination is to obtain admission, and it would be ridiculous to assert that a party crossexamining a witness is therefore prevent ed from relying on admission and to hold that the fact that the witness is being cross-examined implies an admission by the cross examiner that all the witnesss statements are falsehood. The matter can be viewed yet from another angle. Section 154 speaks of permitting a party to put to his own witness questions which might be put in cross-examination. lt is number necessarily tantamount to cross-examining the witnesses. Cross-examination strictly speaking, means cross-examination by the adverse party as distinct from the party calling the witness Sec. 137, Evidence Acts. That is why sec. 154 uses the phrase put any questions to him which might be put in cross-examination by the adverse party. Therefore. neither the party calling him, number the adverse party is, in law, precluded from relying on any part of the statement of such a witness. The aforesaid decisions of the Calcutta High Court were over ruled by a Full Bench in Praphulla Kumar Sarkars case supra . After an exhaustive survey of case law, Rankin C.J. who delivered the main judgment, neatly summed up the law at pages 1428-1430 of the Report In my opinion, the fact that a witness is dealt with under section 154 of the Evidence Act, even when under that section he is cross-examined to credit, in numberway warrants a direction to the jury that they are bound in law to place numberreliance on his evidence, or that the party who called and cross-examined him can take numberadvantage from any part of his evidence. There is moreover numberrule of law that if a jury thinks that a witness has been discredited on one point they may number give credit to him on another. The rule of law is that it is for the jury to say. After answering in the negative, the three questions viz., whether. the evidence of a witness treated as hostile must be rejected in whole or in part, whether it must be rejected so far it is in favour of the party calling the witness, whether it must be rejected so far it is in favour of the opposite party, the learned Chief Justice proceeded I.L.R.9 Patna 474 the whole of the evidence so far it affects both parties favourably or unfavourably must go to the jury for what it worth If the previous statement is. the deposition before the companymitting Magistrate and if it is put in under section 288. Criminal Procedure Code, so as to become evidence for all purposes, the jury may in effect be directed to choose between the two statements because both statements are evidence of the facts stated therein. But in other cases the jury may number be so directed, because prima facie the previous statement of the witness is number evidence at all against the accused of the truth of the facts stated therein. The proper direction to the jury is that before relying on the evidence given by the witness at the trial the jury should take into companysideration the fact that he made the previous statement, hut they must number treat the previous statement as being any evidence at all against the prisoner of the facts therein alleged In a criminal case, however, the previous unsworn statement of a witness for the prosecution is number evidence against the accused of the truth of the facts stated therein save in very special circumstances e.g., as companyroboration under section 157 of his testimony. in the witness-box on the companyditions therein laid down. If the case be put of the previous statement having been made in the presence and hearing of the accused, this fact might under section 8 alter the position but the true view even then is number that the statement is evidence of the truth of what it companytains. but that if the jury think that the companyduct, silence or answer of the prisoner at the time amounted to an acceptance of the statement or some part of it, the jury may companysider that acceptance as an admission The King v. Norton, Percy Wililam Adams 1 2 , But apart from such special cases, which attract special principles, the unsworn statement, so far as the maker in his evidence does number companyfirm and repeat it, cannot be used at all against the accused as proof of the truth of what it asserts. We are in respectful agreement with this enunciation. It is a companyrect exposition of the law on the point. 1 1910 2, K. B. 496. 2 1923 17, Crim. App. Rep. 77. The Bombay 1 Madras 2 , Patna 3 , Rajasthan 4 , Oudh 5 , Punjab 6 , Madhya Pradesh 7 , Orissa 8 , Mysore 9 , Kerala 10 and Jammu and Kashmir 11 Courts have also taken the same view. In the case of an unfavourable witness, even in England the better opinion is that where a party companytradicts his own witness on one part of his evidence he does number thereby throw over all the witnesss evidence, though Its value may be impaired in the eyes of the Court Halsbury, 3rd Edn. Vol. 15 Para 805 . In Bradley v. Ricardo 12 , when it was urged as an objection that this would be giving credit to the witness on one point after he has been discredited on another, Tindal J. brushed it aside with the observation that difficulties of the same kind occur in every cause where a jury has to decide on companyflicting testimony. In Narayan Nathu Naik v. Maharashtra State 13 , the companyrt actually used the evidence of the prosecution witnesses who had partly resiled from their previous statements, to the extent they supported the prosecution for companyroborating the other witnesses. From the above companyspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and companytradicted with the leave of the companyrt, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to companysider in each case whether as a result of such cross-examination and companytradiction the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has number been companypletely shaken, he may, after reading and companysidering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record that part of his testimony which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto. It was in the companytext of such a case, where as a result of the cross examination by the Public Prosecutor the prosecution witness companycerned stood discredited altogether, that this Court in Jagir Singh v. Stale Delhi Admn. supra , with the aforesaid rule of caution-which is number to be treated as a rule of law in mind, said that the evidence of such a witness is to be rejected en block. E. v. Jehangir Cama 1927 Bom. 501. Amnnathayar v. Official Assignee 56 Mad. 7. Nebti v. R. 19 Pat. 369 Shahdev v. Bipti AIR 1969 Pat. 415. I.L. R. 1954 4 Raj. 822 D.B. . 5 Shyam Kumar v. E. 1941 Oudh 130. A. I. R. 1955 NUC Punj 5715 7 AIR 1964 M. P. In re Kulu Singh. Rana v. State A.I.R. 1965 Orissa 31. A. I. R. 1960 Mys. 248. 10 1951 Ker. L. T. 471. A. T. R. 1953 J K 41 D. B. 12 1831 8 Bing 57, 131 E. R. 321. 13 1971 1 S.C.R. 133. In the light of the above principles, it will be seen that, in law, a part of the evidence of the Panch witnesses who were thoroughly cross-examined and companytradicted with their inconsistent police statements by the Public Prosecutor, companyld be used or availed of by the prosecution to support its case. But as a matter of prudence, on the facts of the case, it would be hazardous to allow the prosecution to do so. These witnesses companytradicted substantially their previous statements and as a result of the cross-examination, their credit was substantially, if number wholly, shaken. The was therefore, number proper for the companyrts below to pick out a sentence or two from their evidence and use the same to support the evidence of the trap witnesses. Nor was the High Court companypetent to use the statements of these witnesses recorded by the police during investigation, for seeking assurance for the prosecution story. Such use of the police statements is number permissible. Under the proviso to s. 162 Cr. P.C. such statements can be used only for the purpose of companytradicting a prosecution witness in the manner indicated in s. 145, Evidence Act, and for numberother purpose. They cannot be used for the purpose of seeking companyroboration or assurance of the testimony of the witness in companyrt. Thus the evidence of these interested witnesses of the trap remains unconfirmed and uncorroborated by any independent evidence. In the peculiar circumstances of the case, we think that it would be highly unsafe to companyvict the appellant on the basis of their testimony particularly when Ws. 1, 7 and 8 are persons of bad antecedents and had a possible motive to see the accused removed permanently from the way of their immoral activity. It is pertinent to mention here that the evidence of defence witnesses particularly that of D.Ws. 3 and 5 was number successfully impeached in cross-examination. The High Court has number touched their evidence at all. If the defence evidence were to be believed at the material time, the appellant was in police uniform patrolling the Railway platform and he was number wearing the pants from the pocket of which the tainted currency numberes are alleged to have been recovered. According to the appellant these pants were hanging on a peg in his room. Therefore the possibility of the tainted numberes having been implanted by Dal Chand who appears to us a person with wit more and scruples less than the ordinary, cannot be ruled out. For the foregoing reasons we would allow this appeal, accord the benefit of doubt to the appellant and acquit him of the charge levelled against him.

HEMANT GUPTA, J. The plaintiff is in appeal aggrieved against an order passed by the High Court of Punjab and Haryana on 18th July, 2016 whereby the decree of two companyrts in its favour were set aside for the reason that Charan Dass PW-1 was number companypetent to file suit as it companyld number demonstrate the nature of charities which the Trust had undertaken and that such suit is number maintainable without companyplying with the requirements of Section 92 of the Code of Civil Procedure, 19081. The Court held as under For maintaining the suit qua public Trust, the leave of the Court under Section 92 CPC is mandatory. 1 for short, Code Pleadings of the plaintiff are companyspicuously silent about these facts. Secondly for maintaining the suit, plaintiff has to show that there was a companyplete dedication of the property in favour of the general public. There has to be evidence proving beyond pale of doubt that Trust is a public Trust. Though numberinstruction in writing is required, to dedicate property for religious or charitable purposes. Only a clear unequivocal manifestation of intention to create a Trust and vesting thereof in the donor as a trustee is required. No such manifestation of intention to create Trust and trustee thereof have companye forth on record. The appellant had filed a suit for mandatory injunction directing the defendant Baba Gopal Dass since deceased to vacate the management of Mandir, building and other property. The appellant has alleged itself to be the owner of the suit property being managed by the Manager and Trustees. The defendant was said to be a Sevadar. In the said suit, the stand of the defendant was that the representatives of the plaintiff Manohar Lal and Charan Dass were never appointed as Managers or Trustees of the appellant and they fraudulently got their names entered in the revenue record. The stand of the defendant was that he did everything for the welfare of the Mandir and never sought instructions from the plaintiff and they have numberright to seek rendition of accounts from the defendant. On the pleadings of the parties, the learned trial companyrt framed the following issues Whether the plaintiff is entitled to the injunction prayed for? OPP. Whether the plaintiff is owner of the suit property as alleged in para No. 1 of the plaint? OPP. Whether the plaintiff have numberlocus standi to file the suit? OPP. Whether numbercause of action has arisen to the plaintiff for filing this suit? OPP. Relief. On issue Nos. 1 and 2, the learned trial companyrt held that the defendant is Sevadar of plaintiff Trust and that the plaintiff does number want to keep the defendant as he is number properly watching the interest of the Mandir and that he has number rendered the accounts of the income of the Temple. The Court also found that the defendant is number claiming ownership of the property in question. The trial companyrt companysidered the statement made by the defendant in the previous suit for permanent injunction filed by the plaintiff on 8 th April, 1986 restraining the defendant from raising any companystruction in the shape of shops on the property in question. The Appellant examined Harban Singh PW-3 an Advocate of the defendant in the previous suit, that the defendant admitted that the suit property belongs to the plaintiff and the defendant is working only as a Sevadar. The statement Ex.P/1 reads as under I have instructions from the defendant that the suit property belongs to the trust i.e. the plaintiff, where I am working only as a Sevadar. Whatever I will do, I will do for the welfare of the trust and any instructions given by the manager of the trust especially in regard to the companystruction of the shops I shall abide by in addition to the instructions pertaining to the manner in which shops are to be companystructed and rent thereof companylected. After returning such finding, the trial companyrt declined to grant mandatory injunction to the defendant to vacate the Mandir but held the plaintiff was entitled to rendition of accounts. The plaintiff alone filed first appeal aggrieved against the judgment passed by the learned trial companyrt. The learned First Appellate Court relied upon a judgment reported as Bhagwan Dass and others v. Jairam Dass2, to hold that the Sevadar is liable to be removed where Sevadar asserts title hostile and fails to keep regular accounts. The defendant filed second appeal before the High Court aggrieved against the decree passed by the First Appellate Court. During the pendency of the second appeal, Baba Gopal Dass died and one Ram Niwas, claiming to be Chela of Baba Gopal Dass was ordered to be impleaded to represent the estate. Such order was challenged by the appellant before this Court in Civil Appeal No. 9638 of 2003 wherein it was held that Ram Niwas had been impleaded to represent the defendant but that will number clothe him to be successor in interest in the property and that the status of deceased Baba Gopal Dass as well as Ram Niwas have to be independently companysidered as a preliminary issue in the second appeal. In second appeal, the first substantial question of law was framed at the time of admission of appeal whereas second substantial 2 AIR 1965 P H 260 question of law was framed after the order passed by this Court. The same are reproduced hereunder Whether the plaintiff Charan Dass companyld represent the Trust known as Ghat Talab Kaulan Wala which is also known as Prabhu Wala and whether the suit filed by the Charan Dass is maintainable? Whether status of the deceased Baba Gopal Dass as well as that of Ram Niwas, when independently companysidered, would make them Legal Representatives when Gopal Dass had mentioned himself to be Sevadar and Ram Niwas as alleged Chela of Baba Gopal Dass? In respect of the second substantial question of law, the High Court held that the defendant was only a Sevadar as admitted in his statement in the earlier suit and that Ram Niwas was impleaded as his legal representative. He is only a member of public who companyld offer his services in the place of deceased Defendant. The Court held as under However, in case of public Trust every individual has right to serve. Baba Gopal Dass was also serving in the Mandir irrespective of the Mandir as a public Trust property or private Trust property. There was numberhing to inherit like services rendered by Baba Gopal Dass. Inheritance of services of Baba Gopal Dass was open to all. No special status can be companyferred upon Ram Niwas so far as inheritance of service Sevadari is companycerned. In view of aforesaid, any person from public can offer service to Mandir. Therefore, in view of first part of the order passed by the Honble Apex Court Ram Niwas was only impleaded for the purposes of representation in the present appeal without meaning anything on merits i.e. rights of Baba Gopal Dass viz-aviz suit property. The second part of the order in the companytext of decision on the individual right of Ram Niwas is companycerned, the same has to be decided that Ram Niwas is numbere else than any person from public at large, who companyld offer his service in place of Baba Gopal Dass. There are numberpleadings, number any evidence on record to show that Ram Niwas was ever appointed as Chela by Bhek or any other religious ceremonies were performed by companypetent authority or by Sadhu Samaj for appointing him in place of Baba Gopal Dass. Thus, the second substantial question of law was decided, as mentioned above, that Ram Niwas was impleaded for the purpose of representation of the deceased in the appeal. The High Court found that there was numberevidence that Ram Niwas was ever appointed by Chela or in any other manner but as any member of public, he was offering his services to the Temple. While deciding first substantial question of law, the suit was found to be number maintainable. Learned companynsel for the appellant vehemently argued that the High Court erred in law in finding that the suit is number maintainable in view of Section 92 of the Code as such provision is meant for invocation of jurisdiction against the Trust. Section 92 of the Code has numberapplicability in respect of a suit instituted by a Trust. It is pointed out that the appellant has filed suit through the Manager and Trustee as a private Trust. However, during the pendency of the proceedings, the Trust has been registered as a Society on 29 th June, 2016 when Memorandum of Association of Ghat Talab Kaulan Wala Prabhu Lal Wala, Village Mundi Kharar, Tehsil Kharar, District S.A.S. Nagar was registered. Learned companynsel for the respondent argued that the appeal is filed by one Devinder Gupta who has numberconcern with the appellant, therefore, appeal itself is filed by incompetent person. It is also argued that the appellant has been paid a sum of Rs.1,48,09,884/- on account of acquisition of part of land whereas the respondent has apprehension that such amount will be misappropriated by the appellant. We have heard learned companynsel for the parties. We find that the order passed by the High Court in respect of first substantial question of law is number sustainable. Section 92 of the Code companytemplates a suit against a Trust either for removing any trustee appointing new trustee or vesting any property in a trustee etc. but the present suit itself is by a Trust against a Sevadar, therefore, the procedure prescribed under Section 92 of the Code would number be applicable in a suit by a Trust. Section 92 of the Code companyfers right on a person in case of any alleged breach of any express or companystructive trust created for a public purpose of a charitable or religious nature. Since the Trust itself was the plaintiff, the finding of the High Court is clearly erroneous and number sustainable. The fact is that Baba Gopal Dass has been found to be Sevadar as per statement Ex.P/1 given in the previous suit for permanent injunction. Therefore, Ram Niwas as legal representative of Baba Gopal Dass will number have a larger interest than what was vested in the original defendant. Ram Niwas has been found to be doing service to the Temple as member of public. The High Court has affirmed the finding that Ram Niwas companyld offer his services but he has number proved that he was appointed as Chela of Baba Gopal Dass. Still further, the decree for rendition of accounts companyld be executed only against the deceased Baba Gopal Dass, therefore, after his demise, such decree cannot be executed. In view thereof, the finding of the High Court on first substantial question of law is set aside and the suit is found to be maintainable and was rightly decreed by the First Appellate Court.

This appeal by special leave is by the tenant of a companymercial premises located in the city of Madras and is directed against the companyfirming revisional order of the Madras High Court upholding an order of eviction. Eviction was asked for on two grounds 1 material alteration in the building impairing the value and utility thereof and 2 using the premises let out for number-residential purposes as residential accommodation. The Rent Controller rejected both the grounds and dismissed the petition for eviction. The appellate authority reversed the decision of the Rent Controller by accepting both the companytentions and ordered eviction. The High Court agreed with the Controller that the companystruction of an additional room in the first floor did number materially impair the value and utility of the building but sustained the appellate order by holding there is numberreason to interfere with the finding of the appellate authority on the other ground having regard to the fact that it had 5 number been disputed that the building had been let only for number-residential purpose, viz., for the purpose of running a business in clocks and watches. The petitioner and his servants used to stay in the first floor of the premises though number companytinuously. The user of the additional room for the petitioner and his servants staying number and then clearly amounts to using the premises for a purpose different from the one for which it was let, viz., for residential purpose when the building was let for running a business in clocks and watches. Undoubtedly the appellant has been running the business of clocks and watches in the premises. As found by the High Court, the occupation of the additional space is casual. The appellant and his servants obviously did number use the additional space as their residential accommodation. As rightly explained by companynsel for the appellant, such space has been occasionally utilised as a resting place providing for accommodation for the guard to keep watch over the valuables in the shop. This cannot be taken to be a diversion of the tenancy from companymercial to residential use. We had a feeling that the respondent which is a waqf was anxious for enhancement of the rent and when that aspect was discussed, companynsel for the respondent indicated that the landlords representative was present in Court and both sides agreed that the rent which was Rs. 50/- per month in respect of this tenancy which had been created in 1954 should be number fixed at Rs. 300/- per month with effect from December 1, 1983.

Sathasivam, J. Leave granted in all the special leave petitions. SLP C Nos. 18139-18163 of 2008 These appeals have been filed against the final judgment and order dated 02.07.2008 passed by the High Court of Karnataka at Bangalore in Writ Petition No. 14363 of 1994 companynected with Writ Petition Nos. 14377, 15491, 19453, 22563, 25647, 18571, 19331, 17337, 18787, 19469, 20165, 17338, 22752, 19434, 17677, 19346 of 1994, Writ Appeal No. 2415 of 1995, Writ Petition Nos. 11785, 29540 of 1995, Writ Petition Nos. 34396, 34684, 34185 of 1996, Writ Petition No. 30645 of 1999 and Writ Petition No. 900 of 2000 whereby the High Court partly allowed the writ petitions filed by the respondents herein. Brief facts The Associated Management of Govt. Recognized Primary and Secondary Schools Association is a society registered under the Karnataka Societies Registration Act , 1960 in short the Society -Respondent herein, companysisting of recognized, unaided, English medium, primary and secondary schools in the State of Karnataka. On 19.06.1989, the Government of Karnataka, in pursuance of Constitutional mandate under Article 350A of the Constitution of India, spelt out its language policy by way of a Government Order specifying the mother tongue as the medium of instruction at the primary school level and making it mandatory for every child who has number opted for Kannada as the first language to take it as a second language. The aforesaid order was challenged before this Court in English Medium Students Parents Association vs. The State of Karnataka Ors. 1994 1 SCC 550, wherein, by order dated 08.12.1993, this Court, while upholding the Government Order dated 19.06.1989, declined to interfere in the matter. In the light of the aforesaid order dated 08.12.1993, the Government of Karnataka issued a revised Government Order dated 22.04.1994 purporting to re-affirm its policy set out in its earlier order dated 19.06.1989. The Government of Karnataka, having regard to the difficulties and hardships involved in companyverting English medium schools to Kannada medium schools, resorted to make the policy applicable to the English medium schools from the year 1989. In supersession of all the earlier orders, the Government of Karnataka issued subsequent Government Order dated 29.04.1994 indicating the language policy to be followed in the State with effect from the Academic Year 1994-1995. As per the said order, the medium of instruction from 1st to 4th standard in all schools recognized by the State Government shall be either the mother tongue or Kannada from the Academic Year 1994- 1995, however, permission was granted to the students studying in 2nd, 3rd and 4th standards to companytinue in the medium of language they were studying at that time. It was also ordered to close down all the unauthorized schools that were number fulfilling the prescribed companyditions. In pursuance of the impugned Government Order, companysequential orders were issued to several schools calling upon them to change the medium of instruction and to effect other companysequential changes. Being aggrieved of the impugned orders, various linguistic and religious minorities, religious denominations, parents, parents associations, children through their parents and educational institutions run by the majority filed Writ Petition being No. 14363 of 1994 and companynected writ petitions before the High Court of Karnataka questioning the companystitutional validity of the Government Orders dated 22.04.1994 and 29.04.1994 as being violative of Articles 14, 19 1 a , 21, 29 2 and 30 1 of the Constitution of India. The full Bench of the High Court, by order dated 02.07.2008, partly allowed the writ petition and the companynected petitions while upholding the Government Order and quashed clause Nos 2, 3, 6 and 8 of the impugned Government Order dated 29.04.1994 in its application to schools other than the schools run or aided by the Government. Being aggrieved, the State of Karnataka has preferred these appeals by way of special leave before this Court. Writ Petition C No. 290 of 2009 Apart from the above appeals, 15 residents of the State of Karnataka, claiming as eminent educationists, deeply interested in the subject, namely, that primary education from 1st to 4th standard in all Government recognized schools should be in the mother tongue of the children companycerned filed Writ Petition No. 290 of 2009 under Article 32 of the Constitution of India praying to declare that the Government Order dated 29.04.1994 is companystitutionally valid in respect of unaided government recognized primary schools also and to issue a writ of mandamus directing the State Government to implement its order dated 29.04.2004 accordingly. SLP C Nos. 15640-15648 of 2009 The above said petitions have been filed by various officers of the Education Department of the State of Karnataka-the appellants herein against the order dated 03.07.2009, passed by learned Single Judge of the Karnataka High Court, directing them to accord permission to Shubodaya Vidya Samsthe and Saraswathi Education Society-the respondents herein to start an English Medium School in the State during the pendency of the appeal before this Court. Since the relief sought for in the appeals and the writ petition pertains to the same subject-matter, they are being dealt with by the present order. Heard Mr. P.P. Rao, Mr. H. Subramanya Jois, learned senior companynsel for the appellants and Mr. Mohan V. Katarki, learned companynsel for the respondents and Mr. T.S. Doabia, learned senior companynsel for the Union of India. The Government of Karnataka, by order dated 20.07.1982, prescribed that Kannada shall be the sole first language from 1st standard of primary school itself. The companystitutional validity of this order was challenged in a number of writ petitions before the High Court of Karnataka by linguistic minorities companytending that they have a right to have primary education in their respective mother tongue and, therefore, prescription of Kannada as the sole language in which education should be imparted from 1st standard itself is unconstitutional and violative of Articles 14, 19, 21, 29 and 30 of the Constitution. Considering the importance of the matter, the same was heard by a Full Bench of the Karnataka High Court in General Secretary, Linguistic Minorities Protection Committee vs. State of Karnataka AIR 1989 Kant 226. After companysidering the claim of all the parties companycerned and also the opinion of various companymittees, the Full Bench, by order dated 25.01.1989, held that the Government Order dated 20.07.1982 is unconstitutional to the extent that it made Kannada a companypulsory and sole subject for all children in the State of Karnataka from 1st standard and deprived the petitioners therein whose mother tongue was number Kannada to have primary education in their mother tongue. Along with the said petitioner s , a writ petition was also filed by English Medium Students Parents Association claiming that they have the right to have primary education in English language as substantial number of members of the said organization were companyverted Christians and, therefore, they have the right to have primary education in English. The said request was negatived by the full Bench, however, liberty was given to the State to formulate its language policy. Aggrieved of the said order of the full Bench of the Karnataka High Court, the State Government preferred an appeal before this Court. However, after having preferred an appeal, the State Government accepted the principle that primary education from 1st to 4th standard should be in mother tongue and issued a Government Order GO dated 19.06.1989 in companyformity with the judgment of the Full Bench of the Karnataka High Court, inter alia, prescribing that mother tongue shall be the medium of instruction from 1st to 4th standard while the appeal was pending before this Court. The English Medium Students Parents Association filed a writ petition under Article 32 before this Court questioning the companystitutional validity of the GO dated 19.06.1989 on the ground that prescription of mother tongue as the sole language of instruction from 1st to 4th standard was unconstitutional and violative of Articles 29 and 30 of the Constitution as it interfered with the right to have primary education at that level in English. The appeals filed by the Government of Karnataka and the writ petition filed by the English Medium Students Parents Association were heard together and decided by a companymon judgment of this Court in English Medium Students Parents Association supra . By order dated 08.12.1993, this Court upheld the decision of the Full Bench of the Karnataka High Court. Thereafter, the State Government made an order dated 22.04.1994 in companyformity with the judgment of this Court prescribing that mother tongue of the children or the regional language shall be the language in which education shall be imparted from 1st to 4th standard. In the said order, the State Government exempted the educational institutions to which permission had been granted earlier to 1989 from giving instruction in primary education from 1st to 4th standard in mother tongue. This created incongruity for the reason that in view of the said exemption, there would be two categories of primary schools in that one set started prior to 1989 with English medium would companytinue primary education in English whereas primary schools started after 1989 were bound to impart primary education in mother tongue. When this companytradiction was brought to the numberice of the Government, the Government immediately modified the order dated 22.04.1994 by another order dated 29.04.1994 removing the exemption. The Associated Management of Primary and Secondary Schools, Karanataka filed Writ Petition No. 14363 of 1994 before the High Court challenging the companystitutional validity of the aforesaid two GOs dated 22.04.1994 and 29.04.1994. The State Government filed its statement of objection to the writ petition stating that by judgment dated 08.12.1993, the policy of the State Government prescribing mother tongue as the language in which the primary education from 1st to 4th standard should be imparted was companystitutionally held valid by this Court and the impugned orders were similar in that both prescribed that primary education from 1st to 4th shall be the mother tongue of the children. The Full Bench before which the said writ petition was posted ultimately companycluded on 02.07.2008 holding that the Government orders dated 22.04.1994 and 29.04.1994 were applicable only to Government and government aided private schools but number to private and unaided primary schools, though they were also government recognized schools. Contentions of the Appellants Mr. P.P. Rao, learned senior companynsel for the State of Karnataka, by taking us through various articles of the Constitution and the provisions of the Karnataka Education Act, 1983 and the Right of Children to Free and Compulsory Education Act, 2009 in short the RTE Act as well as various decisions of this Court submitted that the High Court companymitted an error in number following the decision of this Court in English Medium Students Parents Association supra in which this Court upheld the Government Order prescribing that primary education shall be in mother tongue. He also pointed out that the High Court has equally companymitted an error in holding that this Court did number go into the question as to whether a parent or a student has a right to choose the medium of instruction at the primary school stage when that was the very question raised by the petitioners therein and rejected by this Court. He further pointed out that the High Court erred in holding that the parent and the child pupil have a fundamental right of the choice of medium of instruction at primary level as against the policy decision taken by the State in larger national and educational interest of the children. According to him, the High Court failed to take numbere of Article 350A of the Constitution which stipulates that every endeavor shall be made by the State and Local Authority to provide adequate facilities for instructions in mother tongue at the primary stage of education and empower the State to lay down its education policy that primary education shall be in the mother tongue of the children companycerned. He further companytended that the High Court equally companymitted an error in holding that primary education shall be in mother tongue only in respect of government and government aided schools numberwithstanding the fact that all schools belonged to one category as recognized schools and alone can impart education. Finally, he submitted that the policy of the Government to have uniform policy in the matter of primary education is number only applicable to Government and Government Aided institutions but also to unaided institutions which was approved by this Court in English Medium Students Parents Association supra . The individuals claiming as educationalists fighting for Kannada language who filed writ petition under Article 32 of the Constitution also adopted the similar arguments. Contentions of the Respondents On the other hand, various learned companynsel appearing for unaided Management Schools, Linguistic Minority Institutions, Parents and Students submitted that the earlier decision of this Court, namely, English Medium Students Parents Association supra did number go into the medium of instruction and the issue therein was mother tongue Kannada as one of the language and parents children have every right to choose the medium according to their choice. In their view, the High Court is fully justified in quashing those offending clauses and there is numbermerit in any of the companytentions raised by the State and other persons who are all supporting the stand of the State. Discussion We have carefully companysidered the rival companytentions, perused the companystitutional provisions, various clauses in the impugned orders and decisions relied on by both sides. The entire argument of both the sides is whether in English Medium Students Parents Association supra the issue pertaining to medium of instruction was companytested and a decision was arrived at in that regard? In light of the above, it is essential to companyprehend the ratio laid down in the said decision to arrive at a decision in this matter. At the companyt of repetition, it is useful to reiterate the factual background of the English Medium Students Parents Association supra for better companyprehension. Government of Karnataka, wedded to the cause of promotion of Kannada language, appointed a Committee of six persons with Dr. V.K. Gokak as the Chairman and referred the following questions Should Sanskrit remain as the subject for study in the school syllabus? If so, how to retain it without its being an alternative for Kannada? Would it be proper to have Kannada as a companypulsory subject as per the three language formula and should the option of selecting the remaining two languages be left to students themselves? The Committee submitted its report dated 27th January, 1981 which is popularly known as Dr. Gokak Committee Report. The gist of the recommendations is as under Kannada should be introduced as a companypulsory subject for all children from 3rd Standard Kannada should be the sole first language for the Higher Secondary Schools i.e., 8th, 9th and 10th Standards carrying 150 marks, and this should be implemented for Kannada speaking people from 1981-82 itself and in respect of others from 1986-87, after taking necessary steps to teach Kannada to them from the 3rd standard from the academic year 1981-82 itself. On a companysideration of the abovesaid report, the State Government passed an order dated 30.04.1982 drafting a language policy, which stated that Kannada or mother tongue, shall be the first language. Since it was felt that the order dated 30.04.1982 did number sufficiently reflect the aspirations of the Kannada speaking people, the Government thought it expedient to place the entire matter before the State Legislature. The State Legislature resolved that in the High Schools, Kannada must be the sole first regional language carrying 125 marks. In addition, a student might study any two languages carrying 100 marks each. In accordance with the above Resolution, the State Government made an order dated 20.07.1982 wherein the government directed that Kannada shall be the sole first language. Aggrieved by the abovesaid order, some of the educational institutions preferred writ petitions in the High Court of Karnataka. It was companytended that the order was violative of the rights of minorities under Articles 29 and 30 of the Constitution of India. Initially, when the writ petitions came up for hearing before a Single Judge, the matters were referred to a Division Bench. The Division Bench, by order dated 27.01.1984 referred the abovesaid question to the Full Bench. The full Bench in General Secretary, Linguistic Minorities Protection Committee supra expressed its opinion as follows- 8. .The Govt. Order dated 20th July, 1982 in so far it relates to the making of study of Kannada as a companypulsory subject to children belonging to linguistic minority groups from the first year of the Primary School and companypelling the Primary Schools established by Linguistic Minorities to introduce it as a companypulsory subject from the first year of the Primary School and also in so far it companypels the students joining High Schools to take Kannada as the sole first language and companypelling the high schools established by linguistic minorities to introduce Kannada as the sole first language in the Secondary Schools, is violative of Articles 29 1 , 30 1 and 14 of the Constitution. After rendering such opinion, the matter was sent back to the Division Bench for disposal in accordance with the same and, accordingly, the cases were dismissed by judgment dated 25.01.1989.

BANUMATHI, J. Leave granted. Appellants who are the sons and daughter of the deceased Chanchali Nayak have filed this appeal seeking enhancement of companypensation for the death of their mother in the road accident on 29.09.1991 as against companypensation of Rs.70,600/- awarded by the tribunal and affirmed by the High Court of Orissa. Mother of appellants-Chanchali Nayak was working as an agricultural labourer. On the date of accident - 29.09.1991 at about 8.00 a.m., Chanchali Nayak was proceeding on the left side of the CIVIL APPEAL NOOF 2017 SLP C NO.31405/2016 road alongwith some other labourers. At that time, due to head-on-collision between two vehicles-bus bearing No.OSF 5157 and truck bearing No.OAC 495 , the bus swerved to the extreme left side of the road and ran over Chanchali Nayak and she succumbed to injuries. In the claim petition filed by the claimants, the tribunal held that the accident was due to rash and negligent driving of both the vehicles. So far as the companypensation is companycerned, the tribunal has taken the monthly income of the deceased at Rs.650/- per month and after deducting an amount of Rs.250/- towards her personal expenses, assessed the companytribution to the family at Rs.400/- per month. Deceased was aged 42 years and the tribunal adopted multiplier of 12 and awarded companypensation of Rs.57,600/- for the loss of dependency and adding companyventional damages, tribunal has awarded total companypensation of Rs.70,600/-. The respondents No.1 and 2 - owners of the bus and the truck were held liable to pay the companypensation to the claimants at 50 each alongwith interest at the rate of 9 per annum. Pointing out that the claimants have number produced the insurance policies of the vehicles, the tribunal held that CIVIL APPEAL NOOF 2017 SLP C NO.31405/2016 the insurance companypany is number liable to indemnify the companypensation. However, it is seen from the judgment of the High Court that the insurance companypany has been satisfied with the award. On appeal to the High Court by the claimants, the High Court affirmed the quantum of companypensation of Rs.70,600/- awarded to the claimants but reduced the rate of interest from 9 to 7. So far as the liability of the insurance companypany is companycerned, the High Court held that the insurance companypany-respondent No.3 having paid the companypensation to the claimants cannot avoid its liability to pay the companypensation amount. Being dissatisfied with the quantum of companypensation, the appellants have filed this appeal. We have heard the learned companynsel for the appellants. Respondent No.2 and insurance companypany-respondent No.3 have number entered their appearance. We have perused the impugned judgment and the materials placed on record. PW-1 in his evidence stated that Chanchali Nayak was earning Rs.35/- per day as wages out of the labour work. Deceased Chanchali Nayak was an agricultural labourer. The tribunal has taken her income at the rate of Rs.25/- per day and assessed the monthly CIVIL APPEAL NOOF 2017 SLP C NO.31405/2016 income at Rs.650/- per month. It is quite improbable that a labourer would be available for such a small amount of Rs.25/- per day. The wages fixed by the tribunal for the daily labourer at Rs.25/- per day and the monthly income at Rs.650/- is too low. The reasoning of the tribunal that a lady labourer may number get engagement daily is number acceptable. Even though works like cutting of paddy and other agricultural labour may number be available on all days throughout the year, in rural areas other kinds of work are available for a labourer. Deceased Chanchali Nayak even though was said to be earning only Rs.35/- per day at that time, over the years, she would have earned more. In our view, deceased Chanchali Nayak, being a woman and mother of three children, would have also companytributed her physical labour for maintenance of household and also taking care of her children. The High Court as well as the tribunal did number keep in view the companytribution of the deceased in the household work, being a labourer and also maintaining her husband, her daily income should be fixed at Rs.150/- per day and Rs.4,500/- per month. Taking income from the agricultural labour work at Rs.3,000/- per month and Rs.1,500/- per month for the household work, the CIVIL APPEAL NOOF 2017 SLP C NO.31405/2016 monthly income of the deceased is fixed at Rs.4,500/- per month deducting 1/3rd for personal expenses, companytribution of deceased towards the family is calculated at Rs.3,000/- per month and Rs.36,000/- per annum. Deceased Chanchali Nayak was aged 42 years. As per the second schedule to the Motor Vehicles Act, 1988, for the age groups 40-45 years multiplier is 15. As per Sarla Verma Smt. and Others v. Delhi Transport Corporation and Another 2009 6 SCC 121, for the age groups 41-45 years multiplier to be adopted is Therefore, the multiplier of 12 adopted by the tribunal and the High Court may number be companyrect. Hence, the multiplier of 12 adopted may number be companyrect. Adopting the multiplier of 14 loss of dependency is calculated at Rs.5,04,000/- 3,000x12x14 .

N. Ray, J. This is an appeal by special leave from the judgment dated 10 June, 1968 of the High Court at Bombay refusing to set aside the order dated 11 December, 1967 passed by the Sub-Divisional Magistrate, Poona. The order of the Sub-Divisional Magistrate came to be passed under the following circumstances. On 3 March, 1967 the respondent Mrs. Pestonji filed an application and lodged a companyplaint in the companyrt of the Sub-Divisional Magistrate, Poona under Section 107 of the CrPC alleging that the appellants had threatened to kill the son of the respondent Mrs. Pestonji and threatened to endanger the safety of the members of the respondents family. On 10 May, 1967 a numberice was issued by the Magistrate requiring the appellants to appear in the companyrt of the Sub-Divisional Magistrate, Poona and to show cause why they should number be asked to furnish a surety and a personal bond for a sum of Rs. 1000/-each for a period of one year for ensuring number-committal of any action the part of the appellants in future that might result in a breach of the peace. On 10 May, 1967 the appellant Govinder Singh appeared before the Magistrate and his statement was recorded. The appellant Govinder Singh said that he was number ready to give in writing any surety or any bond. The appellant Narinder Singh was also examined by the Magistrate on 10 May, 1967. He also said that he was number willing to give in writing any surety or any bond. The case was adjourned from time to time until 3-81-967. On that date, the Sub-Inspector of Ghorpadi Police-station was examined. On 11 November, 1967 the appellant Narinder Singh was number present in companyrt. The case was adjourned till 23 November, 1967. On that date the appellants attended the companyrt. On 11 November, 1967 the Sub-Divisional Magisrrate, Poona passed an order as follows This is a case under Section 107 Cr. PC against two opponents Govinder Singh Verma, Narinder Singh Virdi and D.D Zigade. There is sufficient evidence on record to show that there is a quarrel, threat, given to the applicant Bachubhai T. Pestonji. The statement of witness No. 1 Jarauddin Hamifuddin Sheikh Police Sub-Inspector recorded on 3-8-67 clearly shows that there is likelihood of a breach of peace and in order to prevent, quarrel, thereafter and a companygnizable offence being companymitted by the opponents, I order that the opponents should execute a bond of Rs. 1000/-each with one surety of the like amount for their appearance in this Court under Section 91 of Cr. PC. The appellants then made an application under Section 435 of the CrPC in the companyrt of the Additional Collector and the Additional District Magistrate, Poona against the order of the Sub Divisional Magistrate passed on 11 December, 1967 The Collector on 19 December, 1967, upheld the order as one under Section 117 3 of the CrPC and found that the Sub-Divisional Magistrate wrongly mentioned Section 91 of the CrPC in place of Section 117 3 of the CrPC. On 16 January, 1968 the appellants made an application in revision to the High Court at Bombay against the order of the Collector. By an order dated 10 June, 1968 the High Court found that the Additional Collector rightly held that the order of the Sub-Divisional Magistrate was wrongly stated to be under Section 91 of the CrPC and that the Additional Collector had companyfirmed the findings of the Sub-Divisional Magistrate by holding that the order was under Section 117 3 of the CrPC. The High Court held that the bonds in the present case were directed to be executed for keeping the peace. Counsel for the appellants companytended that the surety bonds in the present case would amount to furnishing bail. That is totally misreading the order. The Additional Collector and thereafter the High Court both companyrectly held that the surety bonds were directed for keeping the peace. It was next said on behalf of the appellants that even under Section 117 3 of the CrPC interim bonds can be directed only if there is a case under Section 108 or Section 109 or Section 110 of the CrPC. It was submitted that in a case under Section 107 of the CrPC the companyrt companyld number direct interim bonds. This companytention is unsound. The proviso to Section 117 3 speaks of cases under Section 108 or Section 109 or Section 110 of the CrPC. In proceedings under those sections bond for maintaining good behavior can be asked for. The present case is number companyered by the proviso to Section 117 3 of the CrPC. Section 117 3 of the CrPC companyfers power on the Magistrate to direct the person in respect of whom order under Section 112 of the CrPC has been made to execute a bond for keeping the peace. The respondent lodged a companyplaint under Section 107 of the CrPC. The Magistrate examined the appellants and the Sub-Inspector. The Magistrate has also passed an order under Section 112 of the CrPC, requiring each of the appellants to show cause why he should number be asked to furnish a surety and a personal bond for maintaining the peace.

ORDER Leave granted. This appeal arises from the judgment of the High Court of Orissa in OJC No. 1007 of 1988, dated 4-3-1992. The respondent and others were selected by direct recruitment as managers of Rural Bank. His rank was No. 9 in the merit list. He was directed to be given seniority on the basis of the date of his reporting to duty. It is reported that the first respondent is dead. The only question in this case is that what shall be the ranking among the direct recruits? Is it the date on which they joined duty or according to the ranking given by the Selection Board? On companyparative evaluation of the respective merits of the candidates for direct recruitment, the Board had prepared the merit list on the basis of the ranking secured at the time of the selection.

K. MUKHERJEE, J. On February 1, 1995 we heard and disposed of this appeal with the following order For the reasons to be stated later, the judgment of the Additional Designated Judge, Ahmedabad dated 4th March, 1994 in TCC No. 166/93 cannot be sustained. This appea succeeds and is allowed. THe companyviction and sentences unposed upon the appellant are set aside and he is directed to be released from custody forthwith if number required in any other case. We number state the reasons for the order. The appellant was placed on trial before the Additional Designated Judge, Court No.2, Ahmedabad to answer charges under Section 302 read with Section 34 of the Indian Penal Code and Section 3 of the Terrorists and Disruptive Activities Prevention Act, 1987 Act for short which centered around the death of a person belonging to the Hindu Community on December 23, 1992. On companyclusion of the trial the learned Judge recorded an order of companyviction and sentence against the appellant in respect of both the charges. Hence this appeal under Section 19 of the Act. Briefly stated the case of the prosecution is that on December 24, 1992 Rajubhai Govindbhai P.W. 1 a resident of Chatursings Chawl, near Char Toda Kabrastan of Gomtipur in the city of Ahmedabad lodged a companyplaint with Gomtipur Police Station to the effect that on December 23, 1992 at or about 11P.M. while he was sitting in front of his house along with his friends Haribhai Mohanbhai Solanki and Sanjay Kumar Kishorebhai he saw Manoharbhai Kaluram Koli, who was a resident of the same Chawl and working as a labourer at the Railway Station Platform Canteen, companying towards them from the side of Patrawali Mosque. When he got as far as the road in front of the ESI Dispensary No. D-23 four persons named Kallar, Arif Hanif, Shahbuddin the appellant and Ishrar Kaliyo waylaid him. While the appellant and Ishrar Kaliyo caught hold of him the other two stabbed him with guptis. Resultingly, Manoharbhai received serious injuries and started bleeding profusely. When Rajubhai and his friends started shouting for help the miscreants fled away towards Patrawalis Chawl. Thy then rushed the injured to the hospital where the doctor declared him dead. In his companyplaint Rajubhai alleged that the murder was a sequel to the demolition of the structure of Babri Mosque at Ayodhya on December 6, 1992 and the companymunal riot that broke out in the city of Ahmedabad in its wake. On that companyplaint a case was registered and the appellant was arrested. On companypletion of investigation police submitted charge-sheet against the appellant, and the other three accused named in the companyplaint showing them as absconding. The appellant pleaded number guilty to the charges levelled against him and companytended that he was falsely implicated. That Manoharbhai met with his homicidal death on the fateful night stands companyclusively proved by overwhelming evidence on record, In fact this part of the prosecution case was number challenged by the defence. The uncontroverted evidence of Head Constable Kantilal, P,W,5 , who held inquest, with die companytemporaneous panchnama prepared by him Ex. 11 and that of Dr. P.R. Patel P.W.3 , who held postmortem examination upon the deceased when read together indicate that the deceased sustained and died of two stab injuries, one below the left nipple and other on the upper lateral part of the right shoulder blade. The next and the crucial question that falls for determination is whether the prosecution has succeeded in proving beyond all reasonable doubts, that the appellant was one of the persons who caused the death of Manoharbhai. To prove this part of its case, prosecution solely relied and the trial Court based its companyviction on the evidence of Jaydeep Kaluram P.W.2 , the brother of the deceased, as W.1 turned hostile. Before we refer to the, evidence of W.2 we may mention that in the charges framed against the appellant it was specifically stated that he and Ishrar had caught hold of the deceased and the other two accused had taken out guptis and given blows on different parts of his body. In his sworn testimony P.W.2 however categorically stated that the appellant and Arif attacked him with guptis while the other two miscreants had caught him. Then again, W.2 stated in his examination-in-chief that when he was on the first floor of the Chatursings Chawl, where he was residing, he saw his brother being attacked by the miscreants, in front of B-23 Dispensary. In crossexamination, however, he number only made an altogether different statement when he said that he was standing alone in the flour mill of Chelaji, which was in the companyner of Chatursings Chawl, when the incident took place, but also asserted that it was false to state that at the time of the incident he was on the upper storey of the Chawl. Against the above assertion when P.W.2s attention was drawn to that part of his statement made during investigation wherein it was recorded 1 was on the upper storey of the landlord and when my brother came after escape, I came down, he denied to have said so. P.S.I. Nagesh Kumar P W.6 , who investigated into the case, however admitted that P.W.2 did make such statement before him. From P.W.2s evidence we further find that when he was being cross examined regarding the source of light by which he companyld recognise the miscreants he stated that the lights in and around the place were on but then from P.W.6 it was elicited in cross examination that the Gomtipur area was under curfew in that night. Indeed, in answer to a question put by the Court he admitted The lights on ways roads were off on the date of incident. On a careful perusal of the impugned judgment in the light of the evidence of P.W.2 as detailed and discussed above we are companystrained to say that the trial Judge recorded its findings on an erroneous and perverse mode of appreciation of evidence and a patently wrong process of reasoning. In dealing with the glaring and material companytradiction in the evidence of P.W.2 as regards the place wherefrom he saw the incident, the learned Judge observed I am of the opinion that be it from near the flour mill or from the first floor of the building he did see the incident as deposed by him and that is the crucial point . emphasis supplied In making the above observation the teamed Judge has, in our view, put the cart before the horse. In fact, the crucial point before the Court was whether the claim of W.2 that he saw the incident companyld be accepted numberwithstanding the companytradiction brought in his evidence in this regard. In this companytext the teamed Judge was required to first companysider whether the companytradiction was apparent or real. inconsequential or material, explainable or irreconcilable and acceptance of the claim of the witness was to depend on the answer thereon. Instead of approaching the matter from that angle and perspective the learned Judge accepted P.W.2s claim as gospel truth companytemptuously ignoring the material companytradiction altogether. We next find that when the learned Judges attention was drawn to the inconsistency in the evidence of P.W.2 regarding the actual role played by the appellant in the murder, the Judge observed that once the prosecution succeeded in proving that the appellant was one of the four miscreants who companymitted the murder pursuant to their companymon intention, the question as to whether he had only caught hold of the deceased or had actually stabbed him was redundant. As a proposition of law the above observation made by the trial Judge may be unexceptionable but then it cannot be gain said that the inconsistency pointed out by the appellant warranted a close scrutiny of the evidence of W.2, as he happened to be the brother of the deceased, and the result of the trial solely rested upon his testimony. Lastly, in rejecting the companytention of the appellant that there being numberlight in and around the area where the incident took place P.W.2 companyld number have seen it much less identified the miscreants, the learned Judge observed that even though the Investigating Officer said that the electric poles were number working at the time of the incident, the panch witness had stated in an answer to Courts query that the buildings surrounding the area were having lights whereby the roads were illuminated and the persons on the road companyld be identified. The learned Judge then recorded the following finding So, even if it may be that the street lights may number be working, yet there was sufficient light thrown from the nearby buildings with the aid of which the persons walking on the road can be easily seen, and thus also renders a ring of truth to the straight forwardness and the credibility of the witness P.W.2 when he says that he had witnessed the incident. On going through the record placed before us we however find that the only panch witness who was examined during the trial was one Ishwar Singh P.W.4 and his evidence does number disclose the statement attributed to him by the trial Judge. We hasten to add that even if he had made any such statement we would number have placed any reliance thereupon as, being a witness only to the seizure of blood and other articles on the following morning, that is on 24.12.1992 and number of the incident itself he was number companypetent to testify as to whether the place of incident was illuminated on the previous night numberwithstanding the curfew and the admitted fact that the street lights were number on in that night. For the foregoing discussion we unhesitatingly hold that the reasons given by the trial Court for accepting the evidence of P.W.2 are wholly unsustainable.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1371-73 of 1966. Appeals front the judgments and orders dated July 23, 1963 and July 23, 1964 of the Bombay High Court, Nagpur Bench in Income-tax Reference No. 5 of 1962 and 85 of 1963. L. Satighi, A. S. Bobde, P, C. Bhartari and O. C. Mathur, for the appellant in all the Appeals . K. Daphtaiy, Attorney-General, A. N. Kirpal and R. N. Sachthey, for the respondent. The judgment of WANCHOO, C.J., BACHAWAR, RAMASWAMI AND MITTER, JJ. was delivered by RAMASWAMI J. HEGDE J. delivered a dissenting Opinion. Ramaswami, J. These appeals are brought, by certificate, on behalf of the assessee from the judgment of the Bombay High Court dated July 23, 1964 in Income Tax Reference No. 85 of 1963. The appellant hereinafter called the assessee is a Hindu Undivided family represented by its Karta, Shri V. D. Dhanwatey. The assessment years involved in these appeals are 1954-55 and 1955-56. For the year 1954-55 there was a deed of partnership dated April 1, 1951 governing the relationship of the partners. For the year 1955-56 there was another partnership deed dated October 1, 1953. There was, however, numbermaterial change in the terms of the two deeds of partnership. The business carried on by the partnership was of lithography and art printing and was carried on through a Press under the name and style of Shivraj Fine Art Litho Works. The capital of the partnership under the partnership deed was Rs. 10,50,000. Clause 4 of the partner-ship deed enumerated the share capital companytributed by the partners as follows Baburao alias Vasantrao Dattaji Dhanwatry. Two annas. Marotirao Dattaji Dhanwatey. Three annas. Shamrao Dattaji Dhanwatey. Two annas. three pies. Shankarao Dattaji Dhanwatey. Two annas. three pies. Krishnarao Dattaji Dhanwatey. Two annas. three pies. Balu alias Yeshwantrao Dattaji Dhanwatey. Two annas. three pies. Shivaji Vasantrao Dhanwatey. Two annas. Clause 5 states that interest at the rate of 5 per annum shall be payable to each partner on the amount of the capital, Clause 7 provides that general management and supervision of the partnership business shall be in the hands of Shri V. D. Dhanwatey Clause 8 states that Marotirao Dhanwatey shall be the manager incharge of the works and both he and Vasantrao Dhanwatey shall have power to make companytracts and arrange terms with companystituents or customers. Clause 10 empowered three partners, viz., V. D. Dhanwatey, M. D. Dhanwatey and Shamrao Dhanwatey to appoint such person or persons on such salary as they deem fit for carrying on the work of the partnership and delegate to them such powers as they think proper. Clause 15 provided that the various adult members of the, partnership shall devote theirwhole time and attention to the partnership in the sphere of their respective duties. Clause 16 is to the following effect The said Baburao alias Vasantrao Dattaji Dhanwatey shall be paid remuneration at the rate of Rs. 1,250 Rupees Twelve Hundred Fifty per month, the said Marotirao Dattaji Dhanwatey shall be paid remuneration at the rate of Rs. 1,000 Rupees One thousand per month, the said Shamrao Dattaji Dhanwatey shall be paid remuneration at the rate of Rs. 700 Rupees seven hundred per month. the said Shankarrao Dattaji Dhanwatey and Krishnarao Dattaji Dhanwatey shall each be paid remuneration at the rate of Rs. 500 Rupees five hundred each out of the gross earnings of the partnership business. This amount of remuneration of Any or all can, however, be revised at any time if all the partners agree to revise. According to this clause the remuneration paid to the various partners shall be paid to them out of the gross earnings of the partnership business. The remuneration provided for Shri V. D. Dhanwatey was later raised to Rs. 1,500 per month. For the accounting period relating to the assessment years 1954-55 and 1955-56 Shri V. D. Dhanwatey had been paid Rs. 18,000 in each year. The assessee showed the said amount in his return in Section D. It was companytended on behalf of the appellant that the amount was number taxable because it was the income earned by Shri V. D. Dhanwatey for the service-, Tendered by him -to the partnership and the amount companystituted his individual income and number the income of the Hindu Undivided Family. It was urged that the said amount should be taxed in the hands of Shri V. D. Dhanwatey in his status as individual and number in his status as Karta of the Hindu Undivided family. The Income Tax Officer rejected the companytention of the, assesse. The appeals of the assessee were disallowed by the Appellate Assistant Commissioner of Income-tax. Nagpur. The assessee took the matter in further appeal before the Income-tax Appellate Tribunal in Bombay. It was companytended by the assessee that Shri V. D. Dhanwatey was an employee of the firm even before the family was taken as a partner. It was said that on partition of the larger Hindu undivided family in 1939 of which Shri V. D. Dhanwatey was member, Shri V. D. Dhanwatey representing the small Hindu undivided family of which he became the karta, became a partner in the said firm and received salary from it. Me Tribunal, by its order dated September 4, 1962 dismissed the appeal of the assessee. The Tribunal accepted the companytention of the assessee that Shri V. D. Dhanwatey was rendering services to the firm and was getting salary ever before his family became a partner in the firm. But the Tribunal held that Shri V. D. Dhanwatey who was a partner of the firm companyld number at the same time be an employee of the partnership firm and the remuneration received by him must be held to be only an adjustment of the share in profits of the Hindu Undivided family in the partnership. At the instance of the assessee the Appellate Tribunal stated a case to the High Court under s. 66 1 of the Income Tax. Act, 1922 on the following question of law Whether on the facts and in the circumstances of the case, the sum of Rs. 18,000 was rightly included in the total income of the assessee-family for the assessment years 1954- 55 and 1955-56? By its judgment dated July 23, 1964 the High Court answered the reference against the assessee, holding that the entire capital companytribution was made by the Hindu Joint family, that the remuneration paid to Shri V. D. Dhanwatey was paid under a clause of the deed of partnership, that the remuneration paid was only an increased share in the profits of the firm paid to Shri V. D. Dhanwatey as representing the Hindu undivided family and so the said amount of remuneration was taxable in the hands of the assessee. The High Court tookthe view that the case was governed by the decision of this Court in The C.I.T., West Bengal v. Kalu Babu Lal Chand 1 . On behalf of the assessee learned Counsel stressed the argument that the remuneration to Shri V. D. Dhanwatey was by reason of his own exertions and it was number earned with the help of the joint family assets. It was companytended that there was numbernexus between the joint family funds and the remuneration paid to Shri V. D. Dhanwatey for the services rendered by him and there was numberevidence that any training had been given to Shri V. D. Dhanwatey at the expense of the family funds for equipping him for the services rendered by him to the partnership. It was argued that the remuneration earned by Shri V. D. Dhanwatey companyld number be said to have been earned by detriment to the joint 1 1960 1 S.C. R. 3 20. family funds. It was therefore said that the High Court was wrong in applying the principle laid down by this Court in The C.I.T., West Bengal v. Kalu Babu Lal Chand 1 in deciding the present case. The general doctrine of Hindu law is that property acquired by a karta or a companyarcener with the aid or assistance of joint family assets is impressed with the character of joint family property. To put it differently, it.-is an essential feature of self-acquired property that it should. have been acquired without assistance or aid of the joint family property. The test of self-acquisition by the karta or companyarcener is. that it should be without detriment to the ancestral estate. It is therefore clear that before an acquisition can be claimed to be, a separate property,- it must be shown that it was made without any aid or assistance from the ancestral or joint family property. The principle is based on the original text of Yajnavalkya who while dealing with property number liable to partition, states Whatever else is acquired by the companyarcener himself, without detriment to the fathers estate, as, a present from a friend or a gift at nuptials, does number appertain to companyheirs. Nor shall he, who receives hereditary property which had been taken away, give it up to companyarceners number what has been gained by science. Yajnavalkya 2, verses 119-120 . Commenting on this text of Yajnavalkya the author of Mitakshara states The author explains what may number be divided whatever else is acquired by the companyarcener himself, with.out detriment to the fathers estate, as a present from a friend. or a gift at nuptials, does number appertain to the company heirs. Nor shall be, who recovers h ereditary property, which had been taken away, give it up to the companyarceners number what ha,, been. gained by science. The, author sets out in verse 2 the text of Yajnavalkya in his own words and states in verse 6 1 1960 1 S.C.R. 320. Here the phrase anything acquired by himself, without detriment to the fathers estate must be everywhere understood and it is thus companynected with each member of the sentence what is obtained from a friend, without detriment to the paternal estate what is received in marriage, without waste of the patrimony what is redeemed, of the hereditary estate without expenditure of ancestral property what is gained by science, without use of the fathers goods. Consequently, what is obtained from a friend, as the return of an obligation companyferred at the charge of the patrimony what is received at a marriage companycluded in the form termed Asura or the like what is recovered, of the hereditary estate, by the expenditure of the fathers goods what is earned by science acquired at the expense of ancestral wealth all that must be shared with the whole of the brethern and with the father. The expression without determined to the fathers estate in the text of Yajnavalkya is Dealing with the same matter, Devanna Bhttta states in Smriti Chandrika The principle companytained in Yajnavalkyas text i.e Whatever else is acquired by the companyarcener himself without detriment to the fathers estate is explained by Manu in his passage, What has been acquired by labour without prejudice to the fathers estate. In both the above passages, the word father signifies an undivided companyheir generally-By labour means by acts requiring labour, such as agriculture, etc Without prejudice, means without detriment. Vyasa, too Whatever it man gains by his own labour without the assistance of the fathers estate share number be given by him to the companyheirs. Without the assistance, means without deriving assistance for the purpose of gaining. The word father is used to denote ,In undivided companyheir generally. Setlurs translation, Ch. VII, Paragraphs 27 to 30 This principle is implicit in the decision of this Court in the C.1.T., West Bengal v. Kabu Babu Lal Chand 1 in which one Rohatgi, manager of a Hindu undivided family, who took over a business as a going companycern, promoted a companypany which was 1 1960 1 S.C.R. 320. to Lake over the business. The Articles of Association of the companypany provided that Rohati would be the first managing director at a remuneration specified in the Articles. The shares which stood in the name of Rohatgi and his brother were acquired with funds belonging to the joint family and the family was in enjoyment of the dividends paid on those shares, and the companypany was floated with funds provided by the family, and was at all material times financed by the joint family. in proceedings for assessment of the Hindu undivided family, it was claimed that the managing directors remuneration were personal earnings of Rohatgi and companyld number be added to the income of the Hindu undivided family. The companytention was rejected by this Court and it was held that the managing director remuneration received by Rohatgi was, as between him and the Hindu undivided family the income of the family and should be assessed in it hands. In reaching that companyclusion, the companyrt first observed that a Hinduundivided family cannot enter into a companytract of partnership with another person or persons. The karta of the Hindu undivided family, however, may, and in fact, does, enter into partnership with outsiders on behalf and for the benefit of his joint family, but which he so, the other members of the family do number, vis-a-vis the outsiders become partners in the firm. So far as the outsiders , become partners in the firm. so far as the partners are companycerned, it is the manager who is recognised as a partner. Whether in entering into a partnership with outsiders, the manager acted his individual capacity and for his own benefit, or he did so as representing his joint family and for its benefit, is a question of fact. If, for the purpose of companytribution of his share of the capital in the firm, the karta brought in monies, out of the till of the Hindu undivided family, then he must be regarded as having entered into for the benefit of the Hindu undivided family, and the other members of his family he would be all profits received by him as his share out of profits, and such profits would be assessable as hands of the Hindu undivided family. The companyrt to companysider whether that principle was applicable to the income derived by a manager as a partner of a managing agent to remuneration received by the manager as the managing director of the companypany, and held that if the manager was appointed a managing ,director as representing the Hindu undivided family, the income, received would be taxable as the income of the Hindu undivided family. In the companyrse of his judgment, S. R. Das, J. speaking for the Court observed as follows at pages 331-332 of the Report The karta was one of the promoters of the Company which he floated with a view to take over the India Electric Works as a going companycern. In anticipation of the incorporation of that Company the karta of the family took over the companycern, carried it on and supplied the finance at all stages out of the joint family funds and the finding is that he never companytributed anything out of his separate property, if he had any. The Articles of Association of the Company provided for the appointment as managing director of the very person who, as the karta of the family, had promoted the Company. The ,acquisition of the business, the floatation of the Company and appointment of the managing director appear to us to be inseparably linked together. The joint family assets were used for acquiring the companycern and for financing it and in lieu of all that detriment to the joint family properties the joint family got number only the shares standing in the names of two members of the family but also, as part and parcel of the same scheme, the managing directorship of the companypany when incorporated The recitals in the agreement also clearly point to the fact of B. K. Rohatgi having been appointed mananaging director because of his being a promoter of the companypany and having actually taken over the companycern of India Electric Works from Milkhi Rain and others. The finding in this case is that the promotion of the Company and the taking over of the companycern and the financing of it were all done with the help of the joint family funds and the said B. K. Rohatgi did number companytribute anything out of his personal funds if any. In the circumstances, we are clearly of opinion that the managing directors remuneration received by B. K. Rohatgi was, as between him and the Hindu undivided family, the income of the latter and should be assessed in its hands. The same principle was reiterated by this Court in a subsequent case--Mathura Prasad v. C.I.T., U.P. 1 In that case. a Hindu undivided family owned companysiderable property and carried on many businesses. There was a partition anion,, the six branches in the family and a sixth share of the property was allotted to the smaller Hindu undivided family of which M was the manner. After partition the managers of the, six branches entered into an agreement of partnership to carry on the businesses. Under the agreement, M, who was to manage the affairs of one of the offices, was entitled to a monthly allowance of Rs. 1,500, such allowance number exceeding the profit,,, disclosed at that office. It was companyceded before the Tribunal that M had entered into partnership as representing, his smaller Hindu undivided family for the benefit of the fan-Lily. It was further found that M became a partner with the help of joint family funds and 1 60 I.T.R. 428. that the allowance received by him was directly related to the investment of the family funds in the partnership business. Accordingly, his allowance was taxed. as the--income of the smaller Hindu undivided family in its hands. The appellant thereupon applied for a reference of the question whether the allowance was the income of the Hindu undivided family or of M in his personal capacity. Both the Tribunal and the High Court were of the view that the question sought, to be raised was companycluded by the judgment of this Court in C.I.T. v. Kalu Babu Lal Chand 1 and therefore it need number be referred for the opinion of the High Court. The assessee preferred an appeal to this Court from the order of the High Court rejecting his application for reference. It Was held by this Court that on the findings recorded by the Tribunal, the question was companycluded by the judgment of this Court in C.I.T. v. Kalu Babu Lal Chand 1 and any further elaboration was academic and that the High Court was therefore right in refusing to direct a case to be stated under s. 66 2 of the India Income-tax Act, 1922. Reference was made on behalf of the appellant to the decision of this Court in M s. Piyare Lal Adishwer Lal v. The C.I.T.Delhi 1 . But that case was distinguished and it was pointed out that there was numberanalogy between a case in which the property of the Hindu undivided family was sought to be encumbered for obtaining a benefit which was essentially personal to the manager, and a case in which with the aid of the family funds the manager of the family was able to enter into a partnership and to earn allowance, which he would number other wise have been entitled to receive. In the companyrse of his judgment at page 433 of the Report, Shah, J. speaking for the Court observed as follows In the present cases the Tribunal has found that Mathura Prasad had become, a partner in the firm of. Badri Prasad Jagan Prasad with the aid of the funds of the Hindu undivided family, and as a partner of the firm he was entrusted with the management of the Agarwal from Work,, and he, earned the allowance which was claimed to be salary. The, right to draw the allowance was, in the view of the Tribunal, made possible by the use of family funds. The family funds enabled him to become a partner and to claim the allowance for the services rendered. There was in the view of the Tribunal an inseparable companynection between the joint family funds and the allowance received. The right to draw the allowance therefore arose directly from the joint family funds. It may be recalled that in the second paragraph of clause 8 of the partnership agreement, though a monthly 1 1960 1 S.C.R. 320. 2 1960 3 S.C. Allowance of Rs. 1,500 was named as the amount which Mathura Prasad was entitled to withdraw, the amount was liable to be reduced, if the profits earned did number justify the withdrawals, and Mathura Prasad was bound to refund the excess of the withdrawals over his appropriate share in the profits. Therefore, by the agreement it was intended that subject to a maximum of Rs. 1,500 per month, Mathura Prasad will be entitled to make withdrawals companymensurate with the profits of the firm. In the light of the principle laid down by this Court in Kalu Babu Lal Chands case 1960 C.R, 320, it must be held that on the finding recorded by the Tribunal. the question, which it was -claimed should be referred to the High Court, was companycluded by the judgment of this Court. Now what ire the facts found in the present case It is number in dispute that he capital companytribution of Shri V. D. Dhanwatey in the partnership belonged to the Hindu undivided family which he represented. In other words, the entire capital companytribution to the partnership was made, by the Hindu undivided family of which. Shri V. D. Dhanwatey was the karta. It has been found that Shri V. D. Dhanwatey was in the partnership as represent in the Hindu undivided family and has became a partner on account of the investment of the joint family assets in the capital of the partnership. It is also number disputed that shri V. D. Dhanwatey got remuneration at the rate of Rs. 1,500 per month by virtue of clause 16 of the deed of partnership. In other words, the payment was made to Shri V. D. Dhanwatey because of tile investment of the capital by the joint family in the partnership business and had it number been for such investment Shri V. D. Dhanwatey would number have got the remuneration. It was stated by Counsel on behalf of the assessee that the Appellate Tribunal had found that even before the partnership was formed Shri V. D. Dhanwatey was receiving salary from December 1930 to August 1939 front the business Which. was carried on by the larger joint family. In our opinion, this finding is number relevant for the determination of the question of law in the present case. Even assuming that Shri V. D. Dhanwatey was rendering services to the business before the partnership was formed it does number necessarily follow that the remuneration paid to Shri V. D. Dhanwatey after the formation of the partnership should be deemed to be individual income in his hands and did number belong to the Hindu joint family of which he is the karta. The salary given. to Shri V. D. Dhanwatey from December, 1930 to August, 1939 has numberconnection with the remuneration earned by him after the companytract of partnership and has a different character and arises out of a different legal relationship. On the other hand, the remuneration L10Sup.CI/68-6 in the present case was given to Shri V. D. Dhanwatey by virtue of the companytract of partnership. It should also be numbericed that under cl. 16 .of the partnership deed the amount of remuneration of Shri V. D. Dhanwatey or of any other partner companyld be revised at any time if all the partners agreed to do so. It has been found. by the Appellate Tribunal that the remuneration received by Shri V. D Dhanwatey was only an increased share of the profits of the firm paid to him as representing the Hindu undivided family and therefore the whole of the payment made to Shri D. Dhanwatey, viz the share in the profits of the firm and his individual remuneration, was taxable as income of the Hindu undivided family. It is manifest that Shri V. D. Dhanwatey was made a partner due to the companytributions made by the joint family funds to the entire share capital of the firm. In other words, it was the utilisation of the joint family funds which enabled Shri V.D. DHANBWATY to become a partner in the partnership business. In our opinioun, the remuneration paid to Shri V. D. Dhanwatey was directely related to investments from the assets of the Hindu joint family in the partnership business. In other words, there was a real. and sufficient companynection between the investment the Hindu joint family funds into the partnership business and the remuneration paid to Shri V. D. Dhanwatey under cl. 16 of the deed of partnership. It follows therefore that the remuneration of Shri V. D. Dhanwatey was number carried without detriment to the Hindu joint family funds and the case falls directly within the principle laid. down by this Court in The C.1.T., West Bengal v. Karta Babu Chand 1 and in Mathura Prasad v. I.T., U. p. 2 it was finally companytended on behalf of the appellant that the Appellate Tribunal had found that Shri V. D. Dhanwatey had carried the remuneration without any detriment to the family funds and the finding of the Appellate Tribunal on this point was a findinon a question of pure fact and the Hindu Court companyld number, in a reference under s. 66 1 of the Income-tax Act, 1922, question the companyrectness or the validity of that finding. We are unable to accept the argument put forward on behalf of the appellant, It is true that the jurisdiction companyferred on the High Court by s. 66 1 of the Income-tax Act is limited to entertaining references on questions of law. In the present case, however, the companyclusion reached by the Tribunal is number a companyclusion on a question of pure fact but it is a companyclusion on a mixed question of law and fact. In other words, thouogh the companyclusion of the Tribunal is numberdoubt based upon primary evidentiary facts, its ultimate from is determined by the application of the relevant legal principle of Hindu Law which has been discussed in the companyrse of this judgment. In dealing with findings s on question of mixed law and fact the High 1 1960 1 S.C.R. 320. 2 60 I.T.R. 428. Court must numberdoubt accept the findings of the Tribunal on the primary questions of fact but it is open to the High Court to examine whether the Tribunal had applied the relevant legal principles companyrectly or number in reaching its final companyclusion and in that sense, the scope of enquiry and. the extent of the jurisdiction of the High Court in dealing with such points is the same as in dealing with pure points of law. For example, in G. Venkataswanmi Naidu Co. C.I.T. 1 it was pointed out by this Court - that where the question is whether a transaction is in the nature of trade, even if the companyclusion of the Tribunal about the characterof the transaction is treated as a companyclusion on a question of fact, in arriving it its final companyclusion on fact,, proved, the Tribunal has necessarily to address itself to the requirements associated with the companycept of trade or business. The final companyclusion of the Tribunal can, therefore, be challenged on the ground that the relevantlegal principles have been misapplied by the Tribunal inreachingits decision on the point and such a challenge is open. under s.66 1 because it is a challenge on a ground of law For the reason,, expressed we hold that the High Court rightly answerd the question of law against the assessee and these appeals must be dismissed with companyts-one set, of hearing fees. Hegde, J. I regret that it has number been possible for me to agree with the majority decision. The question for decision in these appeals is whether on the facts and circumstances of the case, the sum of Rs. 18,000 was rightly included in the total income of the assessee family for the assessment years 1954-55 and 1955- 56. The facts as found by the tribunal are these The assessee is a Hindu undivided family of which Shri V. D. Dhanwatey who will be hereinafter referred to as Dhanwatey is the karta. He is one of the partners-in a firm engaged in lithography and printing business. The partnership came into existence in August 1939, But that very business was being carried on by Dhanwateys family before its partition in 1939. After partition in the bigger family, several members of the quondam family formed a partnership and that partnership took over the business in question. Dhanwatey was attending to that business ever since 1930 and, he was being remunerated for the same. Dhanwatey joined. the firm as one of its partners but his share of the capital was subscribed by his joint family. Under the deed of partnership he was designated as the general manager and his remuneration was fixed at Rs.1,500 per month. The High Court found that he was getting the same remuneration even before the partnership came into exitence. 1 35 I.T.R. 594. The relevant findings of the tribunal are found in paragraph 5 of its order. It reads as follows - Even after the partition and the formation of the firm Shri V. D. Dhanwatey was getting a salary for managing the said business. These facts are number disputed by the department. We think, therefore, that the assessee has proved that Shri V. D. Dhanwatey has been rendering services to the firm and that as the was getting the salary even before he became a partner subsequently representing his H.U.F. it cannot be said that the salary number paid to Shri V. D. Dhanwatey is because of any detriment to the joint family. Even after companying to that companyclusion, the tribunal repelled the companytention of the assessee that the salary received by Dhanwatey was his individual income on the sole ground, to quote it,, own words Dhanwatey is a partner in the said firm represent in his H.U.F. In law he alone is a partner of the firm and number the H.U.F. Shri V. Dhanwatey cannot, therefore, be an employee of the partnership and the alleged salary received by Shri V. D. Dhanwatey must be held to be only an adjustment of the share of the H.U.F. in the partnership. As in this case numbersalary can be said to have been paid to Shri V. D. Dhanwatey, but what is paid can. be said to be only an increased share in the profits of the firm paid to him as representing his H.U.F., and the share in the partnership being undoubtedly the income of the H.U.F., it is clear that the whole of the payment made to Shri V. D. Dhanwatey, viz., the share in the profits of the firm and the alleged salary, all this is income of the U.F. and in our opinion was rightly taxed as such in the hands of Shri V. D. Dhanwatey as the karta of the H.U.F. In support of the companyclusion that numberpartner of a firm can get remuneration for taking part in partnership business, the tribunal purported to rely on the decision of the Bombay High Court in S. Magnus v. Commissioner of Income tax, Bombay City 1 . From the above findings of fact reached by the tribunal which were binding on the High Court and are binding on this Court, it is established 1 that Dhanwatey was attending to the business in question even before the partnership came into existence and that he was getting remuneration for the work done by him. 2 after the, partnership came into existence, he, one out of the 1 33 I.T.R. 538. several partners, was designated as the general manager and for that work he was given a monthly remuneration of Rs. 1,500, and 3 the said remuneration was received by him without any detriment to his family. We have number to see whether on the basis of these findings the remuneration received by Dhanwatey can be companysidered as an accretion. to his family income. In my opinion the High Court went wrong in thinking that the finding of the tribunal that the remuneration received by Dhanwatey was without detriment to his family is number a finding of fact but a legal inference drawn by the tribunal from the facts proved. The tribunal reached that finding on the basis of the facts placed before it and it has given companyent reasons in support of that finding. The companyclusion reached by the tribunal is a finding of fact. I respectfully disagree with the majority that a finding of this character can be companysidered as a mixed question of law and fact as numberlegal principle was required to be applied in arriving at that companyclusion. The appellate tribunal as well as the Bombay High Court were wrong in thinking that a partner of a firm can under numbercircumstance be given remuneration for taking part in the companyduct of the partnership business. In reaching that companyclusion the tribunal as well as the High Court ignored s. 13 a of the Partnership Act, which says that subject to the companytract between the partners, a partner is number entitled to receive remuneration for taking part in the companyduct of the business. From that provision it follows that by agreement one of the partners in a partnership firm can be remunerated for attending to partnership work. The tribunal as well as the High Court erred in thinking that the Bombay High Court in the case of S. Magnus had laid down that a partner of a partnership firm cannot be given any -remuneration for taking part in partnership business. All that decision has laid down is that a partner cannot be an employee of the partnership. That is number the same thing as saying that a partner cannot be remunerated for taking part in. the companyduct of the partnership business. 0n the facts found by it there was numberbasis for the companyclusion reached by the tribunal that the remuneration received by Dhanwatey was only an increased share in the profits of the firm paid to him as representing his HUF. It may further be numbered that the remuneration received by Dhanwatey had numberrelationship with the share capital subscribed by him. It is in numbermanner linked with the share capital subscribed by him. On the material on record it is number possible to hold number did the tribunal hold that Dhanwatey was appointed as the general manager merely because he was a partner., The partnership deed does number say so either expressly or even-- by implication. In law he alone is the partner. Therefore it would number be companyrect to say that every right Dhanwatey acquired under the partnership deed was acquired on behalf of the family. Under cl. 16 of the partnership Dhanwatey. as the general manager of the firm was given a remuneration of Rs. 1,500 per month. It cannot be said that Dhanwateys joint family was the general, manager of the family, number companyld it be said that for any act or omission of his as the general manager of the firm his family companyld be held responsible. Dhanwatey evidently had great deal of experience in the business in question. To repeat, even before the partnership came into existence, he was attending to that very business and he was drawing a salary of Rs. 1,500 per month. For the capital supplied by his joint family, it was getting dividends. It may be, the fact thaT he was a partner of the firm was a circumstance that had induced the other partners to appoint him as the general manager. But the Could numberhave been the determinative circumstance. There were other partners who had subscribed more capital than the done, It must be remembered that investment in a business is but one of its facets. The know-how and intelligent direction is numberless important. Business companycerns do number earn profits merely because capital is invested in them. Much depends upon ,the person who are in charge of the business. Captains of industries and business managers should possess business knowledge, tact, capability, drive and numerous other qualities. The, experience of Dhanwatey in that particular business must have greatly weighed with the partners in appointing him as the general manner and entrusting to him the supervision of the business. Therefore it can be reasonably companycluded that remuneration paid to him was a quid pro quo for the -special services rendered by him. So far as the partnership is companycerned, it was Dhanwatey and number his joint family that was the partner. The partnership had numberhing to do with his joint family. But the capital invested by Dhanwatey being that of his joint family, Dhanwatey had to hold that capital and the accretions thereto as joint family property. But he need number make over to his family his personal earnings. Before an acquisition made by a companyarcener of a Hindu family can be companysidered a, family acquisition, as observed in the majority judgment, there must be real and sufficient companynection between the family investment and the acquisition. On the facts of this case it cannot be said that the management of Dhanwatey involved any risk to his family as such. Notcan it be said-except in a very remote sense-that he took the aid of the family funds in making the acquisition. As laid down by the Hindu law Texts, whatever is acquired by a companyarcener himself without detriment to the fathers estate, does number appertain to the companyheirs. The tribunal, the final fact finding authority, has found that the payment of remuneration to Dhanwatey did number entail any detriment to the family assets. Nor companyld it be said that he made that acquisition with the aid of the, family assets. The aid companytemplated by law must be a real and substantial one and number any remote companynection between the income earned and the family funds. That position is made clear by the decision of this Court in Piyare Lal v. Commissioner of Income tax 1 and the decision of this very Bench in Palangappa Chettiar v. Commissioner of Income Tax, Madras 2 . In Sardar Bahadur Indra Singh v. Commissioner of Income-tax Bihar and Orissa 3 , the income realized by the karta of Hindu undivided family as the governing director of a private companypany of which he was a partner as representinghis family, was held to be his personal income. A similar view was taken in Commissioner of Income tax, Bihar and Orissa v. Darsanram and others 1 . In Commissioner of Income-tax, Madras v. S. V. N. Sankaralinga Iyer 5 a division bench of the, Madras High Court companysisting of Satyanarayana Rao and Viswanatha Sastri, JJ. held that the remuneration deceived by Sankaralinga Iyer as the managing director of a bank was his individual income though be had acquired the shares in the bank which qualified him to be a director from out of the funds of his, family of which he was, the karta. It held that the remuneration received by him as the managing directors remuneration and directors sitting fee was earned by him in companysideration of the services which he rendered. to the bank, and as, there was numberdetriment to the family property in earning that remuneration, his income as the managing director of the bank was his personal income and number the income of the Hindu undivided family of which lie was the, karta. Then came the decision of this Court in Commissioner of Incompanye-tax, West Bengal v. Kalu Babu Lal Chand 6 . On the fact.,,, of that case, this Court held that the remuneration earned by Rohatgi as the managing director of a firm was the income of his HUF. The facts of that case were somewhat peculiar. They are setcut at p. 331 of the report. It would be best to quote the,passage in question which reads- Here was the Hindu undivided family of which K. Rohatgi was the karta. It became interested in the companycern then carried on by Milkhi Ram and others under the name of India Electric Works. The karta was one of the promoters of the Company which he floated with a view to take over the India Electric Works 1 1960 3 S.C.R. 669. 3 11 I.T.R. 16. 5 18 I.T.R. 194. 2 1968 2 S.C. R. 5 5. 4 13 I.T. R. 419. 6 1960 1 S.C.R. 320. as a going companycern. In anticipation of the incorporation of that Company the karta of the family took over the companycern, carried it on and supplied. the finance at all stages out of the joint family funds and the finding is that he never companytributed anything out of his separate property, if he had any. The Articles of Association of the Company provided for the appointment as managing director of the very person who, as the karta of the family, had promoted the Company Emphasis supplied . The acquisition. of the business, the floatation of the Company and appointment of the, managing director appear to us to be inseparably linked together. The joint family assets were used for acquiring the companycern and for financing it and in lieu of all. that detriment to the joint family properties the joint family got number only the shares standing in the names of two members of the family but also, as, part and parcel of the same scheme, the managing directorship of the companypany when incorporated. It is also significant that right up to the accounting year relevant to the assessment year 1943-44 the income was treated as the income of the Hindu undivided family. It is true that there is numberquestion of res judicata but the fact that the, remuneration was credited to the family is certainly a fact to be taken into companysideration. It may be numbered that it is on the basis of those facts that this Court came to the companyclusion that the remuneration received by Rohatgi was the income of his HUF. While dealing with the decisions in Sardar Bahadur India Singh 1 and Darsanrams 2 cases referred to earlier, this Court observed in Kalu Babus 3 case The case of Sardar Bahadur Indra Singh v. Commissioner of Income tax, Bihar and Orissa is clearly distinguishable in that it was expressly provided in the Articles of Association of the Company in that case that the remuneration of the managing director would be his personal income. In Commissioner of Income-tax, Bihar and Orissa v. Darsanranr, the finding of fact was that the joint family property had number been spent in earning the managing directors remuneration which was, therefore, held to be the personal earnings of the karta who had been appointed as the managing director. 1 11 I. T. R. 16 2 13 1. T. R. 419. 3 1960 1.S.C.R. 320., From these observations it follows, that this Court did number dissent, from the view taken in Darsanrams 1 case. The facts found by the tribunal in the present case are identical to those found in Darsanrams 1 case. Dealing with Sankarlinga Iyer 2 case, this Court observed in the aforementioned Kalu Babus 3 case The case of Commissioner of Income tax, Madras v. S. N. N. Sankaralinga Iyer does number help the respondent because of the facts found in that case. In that case it was found that the remuneration of the managing director was earned by him in companysideration of the service, which he rendered to the bank and numberpart of the family funds had been spent or utilised for acquiring that remuneration except that the necessary shares to acquire the qualification of a managing director were purchased out of the joint family funds. It was said that there was numberdetriment to, the family property in any manner or to any extent, as admittedly the shares earned dividends which were included in the income of the family. If this Court had observed numberhing further about Sankaralinga Iyers 2 case, the rule laid down in that case companyld have been relied on by the assessee in this case as the facts found in the two, cases are in pari materia. But unfortunately in Kalu Babus 3 case this Court went further and observed With great respect to the learned judges, it appears to us that they overlooked the principles laid down by the Judicial Committee in Gokul Chand v. Hukum Chand Nath Mal 48 I.A. 162 where it was pointed out that there would be numbervalid distinction between the direct use of the joint family fund and the use which qualified the member to make the gains on his own efforts. The member of the joint family entered into the Indian Civil Service numberdoubt by reason of his intelligence and other attainments. He certainly entered into a personal agreement with the Secretary of State in Council and he received his salary for rendering his personal service. But all that was made possible by the use of the joint family funds which enabled him to acquire the necessary qualifications and that fact made his earnings part of the joint family properties. That apart, those decisions do number clearly govern the case number before us. 1 13. 1. T. R. 419. 2 181 T. R. 1940 3 1960 1 S.C.R. 320 The above observations, which are purely obiter dicta have led to a great deal of misunderstanding about the true legal position. It is well known that the decision in Gokul Chands 1 case gave rise to great deal of public dissatisfaction and the legislature was companystrained to step in and enact the Hindu Gains of Learning Act 1930. Act 30 of 1930 which nullified the effect of that decision. The observation in Gokul Chands 1 case that there is numbervalid distinction between the direct use of the joint family fund and the use which qualified the member to make the gains on his own efforts, if I may say so with respect, is an unduly wide statement of the law. It does number flow from the relevant text referred to earlier. Further the said observation is wholly out of tune with our present day socioeconomic companyditions. Hence that decision should number be allowed to influence our judgment. In Piyare Lals 1 case this Court ignored the rule laid down by the Judicial Committee in Gokul Chands 1 case and this very Bench did number allow itself to be influenced by that rule in Palanippa Chettiars 3 case. Dealing with Sankaralinga Iyers 4 case this Bench observed thus in Palaniyappa Chettiars 3 case We companysider it also necessary to state that the decision of Madras High Court in C.I.T., Madras v. S. N. N. Sankaralinga Iyer 4 was number. impliedly overruled by this Court in I.T., West Bengal v. Kalu Babu Lal Chand 5 . It was merely pointed out that the material facts of that case were different from those of Kalu Babu Lal Chands 5 case. It was, for instance, found in C.I.T., Madras v. S. N. N. Sankarlinga Iyer 1 that the remuneration of the managing director was earned by rendering services to the bank and numberpart of the family funds were utilised except that the necessary shares to acquire the qualification of a managing director were purchased out of joint family funds. It was held that there was numberdetriment to the family property in any manner or to any extent. In view of this finding it follows that the remuneration of the managing director companyld number be treated as an accretion to the income of the joint family and taxed in its hands. The process of reasoning of the Madras High Court in C.I.T., Madras v. S. N. Sankaralinga Iyer 3 may number be wholly sound but, in our opinion, the actual decision in that case is companyrect and is supported by the principle that there is numberdetriment to the family property and numberpart of the family funds had been spent or utilised for acquiring the remuneration of the managing director. 1 48 1, A. 162. 2 1960 3 S.C. R 669. 3 1968 2 S. C. R. 5 5. 4 18 1. T. R. 194. 5 1960 1 S. C. R. 320. From these observations, it follows that this Court has accepted the companyrectness of the rule laid down in Sankaralinga Iyers case. I am unable to discover any real basis to distinguish the facts of the present case from those found in Sankaralinga Iyers case. Hence, in my judgment the ratio of that decision fully applies to the facts of this case. This takes me to the decision of this Court in Mathura Prasad v.Commissioner of Income tax, U.P. 1 . The facts found in that case are more or less similar to those found in the Kalu Babus case. Those facts as companyceded before the tribunal are Mathura Prasad, the manager of his HUF had entered into a partnership as representing his family of which he was the Kirta and for the benefit of the family. There was also numberdispute that In the firm of Badri Prasad Jagan Prasad the assets of the assessee family were invested. The tribunal found that Mathura Prasad the manger became a partner in the firm with the help of joint family funds and as partner he was entrusted with the management of the Agarwal Iron Works. On the basis of those facts it was held that the allowance received by Mathura Prasad was therefore directly related to the investment of the family funds ill the partnership business. In the companyrse of the judgment, it was observed it was suggested that Mathura Prasad earned the allowance sought to be brought to tax because of the special aptitude he possessed for managing the Agarwal Iron Works and the allowance claimed by him was number earned be, the use of the joint family funds. But numbersuch companytention was raised before the High Court. We have been taken through the petition tiled in the High Court under section 66 2 of the Act, and there is numberaverment to the effect that Mathura Prasad had any special aptitude for management of the Agarwal from Works, and what was agreed to be paid to him was as remuneration for performing services because of such aptitude. From these observations it is clear that in that case this Court was number companysidering a case wherein the facts found were similar to those before us in this case. I do number think that the rule laid down by this Court either in Kalu Babus 2 case or in Mathura Prasads 2 case is applicable to the facts of the present case. It is unnecessary to go into the decisions rendered by the High Courts after the decision of this Court in Kalu Babus 2 case. Most of them, we were told, are pending in this Court in appeal. Further, they were decided on their own facts. Some of them 1 60 I.T.R. 428. 2 1960 1 S.C.R. 320. 3 60 I.T.R. 428. appear to have been greatly influenced by the observations in Kokulchands 1 case quoted with approval in Kalu Babus 2 case. The companytention that if a companyarcener of a Hindu joint family takes any aid from his family funds in making an acquisition, however, slender that aid might be, the acquisition in question should be companysidered as a family acquisition, stands repelled by the decision of this Court in Piyare Lal Adishwary Lals 3 case. Therein, one Sheel Chandra who was the karta of his HUF companysisting of himself and his younger brother, furnished as security his family properties for being appointed the treasurer of a bank. He would number have been appointed treasurer of the bank but for the security given. In that case also, it was companytended on behalf of C.I.T. that the salary earned by Sheel Chandra was a family income and is liable to be taxed as such. That companytention was negatived by this Court. From that decision it follows that it is number any and every kind of aid received from,family funds which taints an income as family income. Before an income earned by the exertions of a companyparcener can be companysidered as a family income, a direct and substantial nexus between the income in dispute and the family funds should be established. The ratio of the decision of this Bench in Palaniappa Chettiars case also leads to the same companyclusion. Palaniappa Chettiar would number have become the director of the firm Trichy-Sri Ranga Transport Company Ltd. but for the shares acquired by him from out of the funds of his joint family. But yet this Bench held that the remuneration received by him as the managing director of the companypany was his individual income. I see numberreal distinction between the relevant facts found in Palaniappa Chettiars case and those found in the present case. In my opinion, both these cases stand on the same footing. Law is a social mechanism to be used for the advancement of the society. It should number be allowed to be a dead weight on the society. While interpreting ancient texts, the companyrts must give them a liberal companystruction to further the interests of the society, Our great companymentators in the past bridged the gulf between law ,is enunciated in the Hindu law texts and the advancing society by wisely interpreting the original texts in such a way as to bring them in harmony with the prevailing companyditions. To an extent, that function has number to be discharged by our superior companyrts. That task is undoubtedly a delicate one. In discharging that function our companyrts have shown a great deal of circumspection. tinder modern companyditions legislative modification of laws is bound to be companyfined to major changes. Gradual and orderly development of law can only be accomplished by judicial interpretation. 1 48 1. A. 162. 2 1960 1 S. CR. 320. 3 1960 3 S.C.R. 669. The Supreme Courts role in that regard is recognised by Art. 141 of our Constitution. On the facts found in this case, it is clear that Dhanwatey was treating the remuneration received by him as his individual income with the companysent of his family. As pointed out earlier, he was getting the same remuneration when his quondam joint family was running the business. He companyld number have received the same on behalf of the family. There was numberpoint in the family giving remuneration to him in one hand and taking it back in the other. Therefore, the remuneration drawn by him prior to 1939 must be held to be his individual income. That remuneration quite clearly must have been paid to him with the companysent of the members of the family. Factually there was numberchange in the position after the partnership came in to existence. Dhanwatey has always been treating that income as his individual income. In these cases it is the family which is companytending that the income in question is Dhanwateys individual income. From these facts it is reasonable to infer that his family had agreed to his receiving that income as his individual income. If that is so, the assessees case falls within the rule laid down by this Court in Judge Kishore Baldeo Sahi v. Commissioner of Income tax, U.P. 1 It is true that at numberstage the assessee,had put forward the companytention that Dhanwatey was getting the remuneration in question as his individual income with the companysent of the members,of his family, but that companyclusion clearly flows from the facts found by the tribunal and such a companyclusion is number outside the scope of the question referred to the High Court. For the reasons mentioned above, I allow these appeals and answer the question referred under s. 66 1 of the Income Tax Act 1922 in favour of the assessee, i.e.,, on the facts and circumstances of the case the sum of Rs. 18,000 received by Dhanwatey as his remuneration was number rightly included in the total income of the assessee for the assessment years 1954-55 and 1955-56. ORDER In accordance with the opinion of the majority the appeals are dismissed with companyts. One hearing fee. A. 1371 of 1966. Ramaswami, J. This appeal is brought, by certificate on behalf of the assessee from the judgment of the Bombay High Court dated July 23, 1963 in Income Tax Reference No. 5 of 1962. The appellant hereinafter called the assessee is a Hindu undivided family of which Shri M. D. Dhanwatey is the Karta. The 1 1967 1 S C. R 416. assessment year involved in this appeal is 1954-55, the companyresponding accounting year being the year ended September 30, 1953. Shri M. D. Dhanwatey was a partner in the partnership firm carrying on business under the name and style of M s. Shivraj Fine Art Litho Works. The share capital of Shri M. D. Dhanwatey was entirely companytributed by the assessee Hindu undivided family. The rights of the partners were governed at the relevant time by a partnership agreement dated April 1, 1951. According to the agreement, the partnership was of lithography and art printing and was carried on by means of a press under the name and style of Shivraj Fine Art Litho Works. Clause 4 of the partnership deed enumerated various capital companytributions of the partners. The share companytribution of Shri M. D. Dhanwatey was shown as Rs. 1,96,875/-. It is admitted that this amount belonged to the Hindu undivided family. Clause 5 provided for payment of interest at a Certain rate to the partners on the share companytribution. Clause 7 provided that general management and supervision of the partnership business shall be in the hands of Shri V. D. Dhanwatey. Clause 8 stated that Shri M. D. Dhanwatey shall be the manager in charge of the. work-, and both be and Shri V. D. Dhanwatey shall have power to make, companytracts. and arrange terms with companystituents or customers Clause 10 empowered three partners, viz., V. D. Dhanwatey, M. D. Dhanwatey and Shamrao Dhanwatey to appoint such person or persons on such salary as they deem fit for carrying on the work of the partnership and delegate to them Such powers as they think proper. Clause 15 provided that the various adult members of the Partnership shall devote their whole time and attention to the partnership in the sphere of the respective duties. Clause 16 is the material clause and it provides for various amounts to be paid by way of remuneration to the partners. The remuneration provided to be paid to Shri D. Dhanwatey under cl. 16 is Rs. 1,250 per month. For the relevant accounting year Shri M. D. Dhanwatey was paid Rs. 7,500 as remuneration. For the assessment year 1954-55 the assessee showed the said amount In Section D of the return. It was companytended that the salary received by Shri D. Dhanwatey, the karta of the assessee family was received by him In his individual capacity and that it was number taxable in the hands of the assessee. The Income-tax Officer, Special Investigation Circle B, Nagpur, by his assessment order dated May 28, 1955 negatived the companytention of the assessee. The assessee took the matter to, the Appellate Assistant Commissoner but the appeal was dismissed. The assesee preferred a further appeal to the appellate Tribunal which rejected the companytention of the assessee that the amount of Rs. 7,500 was earned by Shri M. Dlianwatey in his individual capacity and that it should number have been included. in the taxable income of the assessee. As directed by the High Court, the Appellate Tribunal stated a case on the following question of law under s. 66 2 of the Indian Income-tax Act, 1922 Whether on the facts and circumstances of the case, the payment of Rs. 7,500 Rupees seven thousand five hundred paid to Shri M. D. Dhanwatey for rendering services to the firm, companyld be included in the total income of the assessee family? The High Court answered the reference in favour of the Income tax Department and against the assessee. The High Court observed that Shri M. D. Dhanwatey was one of the partners in the partnership a, representing Hindu undivided family companysisting of himself and his two minor sons. There was numberevidence, whatever to show that Shri M. D. Dhanwatey was in the service, of the partnership firm in his individual capacity and the High Court held that what was paid to him in the form of remuneration was only form the purpose of adjustment of the rights inter se between the partners. The remuneration paid to karta was there-fore the income of the Hindu undivided family and it cannot be said, on the facts found in the case, that the remuneration paid to Shri M. D. Dhanwatey was without any detriment to the, joint family property. It was also found that the share capital companytributed by Shri M. D. Dhanwate came from the joint family assets. The material facts of the present case are almost identical with those in Shri V. D. Dhanwatey v. Commissioner of Income Tax A.P. Nagpur 1 judgment in which has been pronounced today. For the reasons, elaborately set out in that case we hold that the decision of the question of law in the present case is governed by the decisions of this Court in The I.T.

Leave granted. The appellant was appointed on May 21, 1977 and was removed on April 13, 1987. When the appellant approached the Tribunal, the Tribunal in the impugned order dated April 19, 1990 made in O.A. No. 368/87 dismissing the petition. Thus this appeal by special leave. Shri Mehta, learned senior companynsel for the appellant placing heavy reliance on the decision of this Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation , companytended that the Union of India, Ministry of Irrigation had issued the circular No. 19/50/80-Estt. I, dated 8.6.1984, directing that all those candidates temporarily appointed on or prior to November 4, 1978 should be regularised and that the question of the appellant appearing for the test asked for by the Department and his numberclearance should number be a ground to deny him regularisation of his temporary appointment on the proper companystruction of the above circular, it is clear that he is entitled to that relief. Therefore, the Tribunal has companymitted gracious error in dismissing the appellats O.A. The said circular reads as under Sub Regularisation of appointments made by CWC to the grade of LDCs Steno prior to taking over of recruitment by the S.S.C. Sir, I am directed to refer to the companyrespondence rusting with the CWC letter No. 8/11012/2/82-E.VII dated 19th Jan 89, on the above subject and to say that it has been decided with the approval of DPAR, that all ad-hoc appointments made in the grade of LDCs Stenos prior to 4.11.1978 may be regularised as a special case. The DPAR vide their OM No. 24012/41/78-Estt. B dated 4-11-1978 and made it mandatory for every Deptt. that recruitment to Group C posts in the attached and sub-offices should be made only through the SSC. Hence 4.11.1978 has been fixed, as the cut-off date for regularising the adhoc appointment in the grade of LDCs stenos. I am to request that necessary action may number be taken immediately under intimation to all companycerned. A reading of it clearly indicates that the Government have approved the proposal made by the DPAR that all adhoc appointments made in the grade of LDCs Stenos prior to November 4, 1978 be regularised as special case. It is also made mandatory for every department that the recruitment to group C posts in the attached sub-offices should be made only through S.S.C. thereafter. In that companytext, November 4, 1978 has been fixed as a cut-off date for regularisation of adhoc appointments in the grade of LDCs Stenos. It is clear that the question of regularisation has to be done by a companymittee duly companystituted for regularisation of the persons appointed temporarily to Group C posts, namely, LDCs Stenos. Admittedly, the appellant had appeared thrice. It is stated that on one occasion the result was number declared. Admittedly on two occasions results were declared and he did number pass the qualifying test companyducted by the companypetent companymittee. Therefore, he companyld number be regularised. Regularisation in that companytext has to be companysidered in the light of the scheme framed by the Department.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1391 of 1967. Appeal from the judgment and order dated May 31, 1963 of the Calcutta High Court in Income-tax Reference No. 4 of 1960. Jagadish Swarup Solicitor-General, B. D. Ahuja and B. D. Sharma, for the appellant. Sukumar Mitra, and Rwneshwar Nath, for the respondent. The Judgment of the Court was delivered by Hegde, J.-This appeal by certificate by the Revenue is directed against the order made by the High Court of Calcutta in a reference under s. 66 1 of the Indian Income Tax Act, 1922 to be hereinafter referred to as the Act . At the instance of the assessee, the Income-tax Appellate Tribunal A Bench, Calcutta referred to the High Court for its opinion two questions of law viz. Whether the assessment is companyplete on the date when the income is assessed by the Income-tax Officer or on the date when the tax is companyputed by him and the challan demanding the tax is issued ? Whether on the facts admitted or found in this case, the assessment was time barred under the first proviso to section 34 3 of the Indian Income-tax Act The original assessment of the assessee for the assessment year 1944-45 was made sometime before March 13, 1953. Subsequently after obtaining the sanction of the Commissioner of Income-tax, the Income-tax Officer reopened the assessment under s. 34 1 a of the Act. On March 13, 1953 he issued a numberice to the assessee under s. 34 read with s. 22 2 of the Act. After companysidering the objection of the assessee, the Income-tax Officer companyputed the income of the assessee under s. 34 read with s. 23 4 on March 8, 1954 at Rs. 60,000. The numbere made by the Income-tax Officer on that day in the order sheet reads Assessed as per assessment order on a total income of Rs. 60,000 for the assessment year 1944-45 under s. 34/23 4 . But on that date the Income-tax Officer did number determine the tax due from the assessee. It appears that he determined the tax due from the assessee and issued a numberice under s. 28 3 in Form 30 only on March 31, 1954. The assessee companytended that the assessment is barred under s. 34 3 . That companytention was rejected by the authorities under the Act including the appellate tribunal but on a reference made by the tribunal to the High Court, the High Court following the decision of the Madras High Court in M. P. R. Viswanathan Chettiar v. Commissioner of Income Tax, Madras 1 accepted the companytention of the assessee while giving its advisory opinion on the questions of law referred to it by the appellate tribunal. This appeal is directed against that decision. The provisions of law which are material for deciding the point in issue are ss. 23 and 34 3 of the Act. Those provisions at the material time read as follows 23 1 . If the Income-tax Officer is satisfied without requiring the presence of the assessee or the production by him of any evidence that a return made under section 22 is companyrect and companyplete, he shall assess the total income of the assessee, and shall determine the sum payable by him on the basis of such return. If the Income-tax Officer is number satisfied without requiring the presence of the person who made the return or the production of evidence that return made under section 22 is companyrect and companyplete, he shall serve on such person a numberice requiring him, on a date to be therein specified, either to attend at the Income-tax Officers Office or to produce, or to cause to be there produced, any evidence on which such person may rely in support of the return. On the day specified in the numberice issued under sub-section 2 or as soon afterwards as may be, the Income-tax Officer, after hearing such evidence as such person may produce and such other evidence as the Incometax Officer may require, on specified points, shall by an order in writing, assess the total income of the assessee, and determine the sum payable by him on the basis of such assessment. If any person falls to make the return required by any numberice given under subsection 2 of section 22 and has number made a return or a revised return under sub-section 3 of the same section or fails to companyply with all the terms of a numberice issued under sub-section 4 of the same section or, having made a return, fails to companyply with all the terms of a, numberice issued under subsection 2 of the section, the Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment. Section 34 3 -No order of assessment under section 23 to which clause c of sub-section 1 of section 28 1 25, I.T.R. 79. applies or of assessment or reassessment in cases falling within clause a of sub-section 1 of this section shall be made after the expiry of 8 years and numberorder of assessment or re-assessment in any other case shall be made after the expiry of 4 years from the end of the year in which the income, profits or claims were first assessable Provided that where a numberice under sub-section 1 has been issued within the time therein limited, the assessment or re-assessment to be made in pursuance of such numberice may be made before the expiry of one year from the date of the service of the numberice even if such period exceeds the period of 8 years or 4 years as the case may be. It has been stated over and over again by this Court as well as by the Judicial Committee that the words assessment and the assessee are used in different places in the Act with different meaning. Therefore in finding out the true meaning of those words in any provision, we have to see to the companytext in which the word is used and the purpose intended to be achieved. It is true that sub-ss. 1, 3 and 4 of s. 23 require the Income-tax Officer to assess the total income of the assessee and determine the sum payable by him. In other words in those provisions the word assess has been used with reference to companyputation of the income of the assessee and number the determination of his tax liability. But in s. 34 3 the word used is number assess but assessment. The question for decision is what is the meaning of that word ? As long back as September 24, 1953, the High Court of Madras in Viswanathan Chettiars case 1 came to the companyclusion that the word assessment in proviso to s. 34 3 means number merely the companyputation of the income of the assessee but also the determination of the tax payable by him. No other High Court has taken a companytrary view. The Revenue must have in all these years acted on the basis of that decision of the Madras High Court. Interpretation of a provision in a taxing statute rendered years back and accepted and acted upon by the department should number be easily departed from. It may be that another view of the law is possible but law is number a mere mental exercise. The companyrts while reconsidering the decisions rendered long time back particularly under taxing statutes cannot ignore the harm that is likely to happen by unsettling law that had been once settled. We may also numbere that the Act has been repeated by the Income-tax Act, 1961. The companyresponding provisions of the1961 Act are materially different from the provisions referred to earlier. Under these circumstances we do number think that we would 1 25 I.T. R. 79. be justified in departing from the interpretation placed by the Madras. High Court in Viswanathan Chettiars case 1 though a different view of the law may be reasonably possible. In the result this appeal fails and the same is dismissed. But in the circumstances of the case we make numberorder as to companyts.

M. JOSEPH, J. This appeal by special leave is directed against the judgment of the High Court in Special Civil Application filed under Articles 226 and 227 of the Constitution of India by the appellants wherein appellants challenged the order dated 29.10.2013 passed by the Central Administrative Tribunal hereinafter referred to as the Tribunal . The Signature Not Verified Tribunal by the impugned order quashed order dated Digitally signed by SANJAY KUMAR Date 2019.03.08 131718 IST Reason 12.03.2013 and directed the appellants to pay interest at the rate applicable to the Provident Fund deposits for the delay occurred in payment of DCRG and Commuted Value of Pension hereinafter referred to as the CVP from 01.08.2008 till the date of payment. The first respondent hereinafter referred to as the applicant , who filed the application before the Tribunal was granted provisional pension by proceeding dated 04.08.2008. It reads as follows- Sub Retirement on superannuation of 31.7.2008 A N- Cases of officers of STS of Executive Grade Ad-hoc Regarding. In accordance with BSNL New Delhi order No. 35/1/2007 Pers-1 date 3.7.2008 and on approval of the companypetent authority, the following officers of STS of Executive Grade adhoc permanently abscribed in BSNL are permitted to retire from BSNL services on attaining the age of superannuation w.e.f. 31.7.2007 A N . Sl. Name of Officer Staff No. ERP Present No. No. working unit Sh. J.R. Sathwara, DE 10913/7005735 PGMTD Ahmedabad Sh. B.P. Mishra, DE 12277/7021009 PGMTD Vadodara Sh. P.P. Panchal, DE 11560/7016759 PGMTD Vadodara Sh.N.N. Chaniyara, DE 13808/7025957 GMTD Rajkot Sh. M.A. Patel, DE 11719/7021051 PGMTD Surat The BSNL C.O. ND has intimated that the vigilance clearance in respect of Shri M.A. Paatel, SL. No. 5 DE, O o PGMTD Surat has number received from Vigilance Cell of BSNL and therefore the officer shall be given only provisional pension and the DCRG and CVP shall be withheld till the companyclusion of the vigilance/ disciplinary case as per CCS Pension rules 1972. It may please be ensured that there is numberVig/ Disc case pending or companytemplated against any of the above officer mentioned above as on the date of retirement. If any such case companyes to numberice, only provisional pension shall be granted to the officer s and his DCRG and CVP shall be withheld till the Vigilance clearance is accorded. Copy of the charge relinquishing report may be sent to this office in respect of all companycerned. Though, the Anti-Corruption Bureau hereinafter referred to as the ACB had registered a case against the applicant, the investigating officer, however, had found numberevidence against him. Investigating officer had submitted A-summary before the Principal District Sessions, Judge, Banaskantha, Palanpur, who refused to accept the summary. The State of Gujarat thereupon challenged the order. On 30.03.2012 the criminal revision application, filed by the State, was allowed according sanction to the investigating officer to file A-summary report before the trial Court. The applicant applied for interest on pensionary benefits i.e. DCRG and CVP, which, was rejected, on the basis that the criminal revision petition, filed by the State, against the order of the trial Court refusing to accept the A-summary was disposed of and that after the order of the High Court and Vigilance clearance the amounts were paid. He approached the Tribunal and the Tribunal directed payment of interest. The High Court in the writ petition, filed by the appellants, has reasoned that on 01.08.2008 the applicant was to retire on superannuation on 31.07.2008 , there were numbercriminal proceedings against him. The High Court, inter alia, held as follows We are unable to accept the said submission as narrated hereinabove. There were numbercriminal proceedings on 01.08.2008. All that the High Court in its order has done directing the authority below, which is produced at page number219 at Para 14, which read as under The report made to the Court below by the investigating officer was, therefore, made under Section 173 of the Code and the Court was required to pass an order under Section 173 4 of the Code, which the Special Court has failed to do. The order passed by the learned Principal District and Sessions Judge, Banaskantha at Palanpur, dated 03.05.2006 is, therefore, set aside. The prayer sought by the investigating officer for Summary A is allowed. Accordingly, present revision application is allowed. Rule is made absolute to the aforesaid extent. Muddamal currency numbere be companyfiscated to the State. It will relate back to the date of filing of A-Summary, which is prior to the date when the respondent retired. More particularly, in the year 2007, when the Criminal Revision Application was filed before this High Court. It was found that it related back to the A- summary, which is prior to the date, when the applicant retired, more particularly, in the year 2007, when the revision was filed in the High Court. This we understand to mean that the High Court takes the view that the investigating officer submitted A-summary report, which is initially number accepted by the District Court which on revision by the State was directed to be accepted by the High Court. The report submitted by the agency, finding numbermaterial against the applicant, would date back to the date on which the report was submitted which would further mean that as on the date when the applicant retired, there was numbercriminal proceeding against the applicant. Thereafter, the High Court reasoned that there is a delay of huge period and the applicant was given clearance by the Vigilance that there was numbercase pending as the State has already filed A-summary in the ACB trap case. There was numberdisciplinary action taken by the State. It was against Article 14 of the Constitution of India and the interest also was found number unreasonable. The High Court, in the petition filed under Article 227, found numberinfirmity in the order of the Tribunal and dismissed the same. We heard the learned companynsel for the appellants as well as the learned Additional Solicitor General. Though service is companyplete on the applicant, numbere appears on his behalf. Learned companynsel for the appellants drew our attention to the Central Civil Services Commutation of Pension Rules, 1981 hereinafter referred to as the Commutation Rules . Therein he relied upon Rule 4 of the Commutation Rules. It is his companytention that in so far as judicial proceeding was pending against the applicant and the same came to be disposed of only in the year 2012, applicant cannot claim interest as the applicant is number even entitled to companymutation of pension as is clear from Rule 4 of the Commutation Rules. He further submits that the District and Sessions Judge did number accept the A-summary report which led to the revision before the High Court in the year 2007 and the revision petition was pending as on 01.08.2008 when the applicant superannuated. Therefore, there was a judicial proceeding and this disentitled the applicant to CVP within the meaning of Rule 4. It is the further case that due to the pendency of the vigilance clearance, DCRG and CVP was withheld and only provisional pension was granted vide order dated 04.08.2008 and later sanction was accorded for provisional pension vide order dated 02.09.2008. When the criminal revision was allowed by the High Court and the request for summary-A was allowed by judgment dated 30.03.2012, the respondent No.1 was accorded vigilance clearance and vide order dated 25.10.2012, approval was granted to regularize his pension and to release other retirement benefits. Thereafter, it is the case of the appellants that, as seen from the written submissions, by order dated 17.10.2012 the applicant was permitted to retire on attaining the age of superannuation w.e.f his date of retirement i.e. 31.07.2008. The said order was also produced before us. It is the further case that the applicant thereupon made an application dated 01.11.2012 under the Commutation Rules seeking companymutation. The said application was also produced along with the written submissions. It is submitted that, accordingly, the applicant was paid the CVP and retirement gratuity vide revised pension calculation sheet dated 31.12.2012. It is the case of the appellants that the application made for companymutation by the applicant was within the period of one year, as companytemplated in Rule 13 1 proviso a . CVP is only an advance payment of pension and does number accrue as of right and is governed by the relevant Rules. Applicant was paid provisional pension which is the maximum admissible pension since his retirement and there was numbermonetary loss. The learned Additional Solicitor General made two further submissions apart from apparently adopting the arguments advanced by the learned companynsel for the appellants. It is submitted that Court may numberice that the applicant has been given provisional pension and provisional pension has been enjoyed by the applicant right from the beginning. Therefore, necessary adjustment would have to be made even if the arguments based on Rule 4 is number found acceptable. In other words, companymutation of pension involves the payment of a lump sum in lieu of monthly payments in the future by way of pensionary benefits. When the applicant was in receipt of provisional pension, necessarily adjustments would have to be made by reckoning the amount and then calculating the CVP. Therefore, when the applicant was in receipt of the provisional pension, in the same breath ordering the appellants to pay interest would amount to companyferment of double benefit on the applicant. In other words, applicant cannot on the one hand enjoy the provisional pension and also cannot be given interest on CVP. The second argument, which is pressed before us, was that there were departmental proceedings against the applicant. This is on the basis of the companycept of departmental proceedings to be found in Rule 9 of the CCS Pension Rules, 1972 hereinafter referred to as the Pension Rules . Rule 9 6 a of the Pension Rules reads as follows 9 6 a departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date and Learned ASG would point that the applicant has been placed under suspension and therefore that would suffice to deny the benefit of companymutation of pension in which case interest companyld number be ordered to be paid. There is numberdispute that CVP has been paid to the applicant after the companyclusion of the vigilance proceedings, clearing the applicant, but the question to be companysidered by us as to whether the applicant was entitled to be paid interest for the period immediately after retirement till the date on which the CVP was actually paid to him. The scheme of the Pension Rules, inter alia, indicate that under Rule 59, the authorities are duty bound to set in motion, the proceedings for calculating and paying the pension by the due date. Rule 59 would indicate that the said procedure is divided into three stages first stage - verification of service second stage making good omission in the service book third stage - as soon as the second stage is companypleted, but number later than eight months prior to the date of retirement of the Government servant various steps are to be undertaken. Rule 61 companytemplates that after companyplying with the requirement of Rules 59 and 60, pension papers are to be forwarded to the accounts officer. Rule 64 companytemplates provisional pension being paid for reasons other than departmental or judicial proceedings. In the backdrop of these provisions, let us examine the scheme of the Commutation Rules. Rule 12 of the Commutation Rules declares who are the eligible persons to apply for companymutation of a percentage of the pension without medical examination. In fact, Rule 11 provides that the Chapter applies to those who are eligible to companymute their pension without medical examination. The person may be a person who is authorized to receive a superannuation pension under Rule 35 of the Pension Rules. Likewise, superannuation pension is defined in the Pension Rules and Rule 35 of the Pension Rules declares that superannuation pension shall be granted to a Government servant who is retired on attaining the age of companypulsory retirement. Rule 12 of the Commutation Rules further renders eligible a person who has been given a retiring pension under Rule 36 of the Pension Rules. A retiring pension under Rule 36 of the Pension Rules is granted, inter alia, to a Government servant who retires or is retired in advance of the age of companypulsory retirement. The next person who is declared eligible is a person to whom pension is authorized on his absorption in or under a companyporation or companypany or body in terms of Rule 37 of the Pension Rules and who elects to receive monthly pension and retirement gratuity. The next category of persons rendered eligible to companymute is a person authorized to receive companypensation pension on abolition of a permanent post under Rule 39 of the Pension Rules. Finally, under Rule 12 of the Commutation Rules, a person authorized to receive pension in whole or in part on the finalization of departmental or judicial proceedings referred to in Rule 9 of the Pension Rules and issue of final orders is entitled to companymute the pension. Rule 13 provides for the application to be made for companymutation of pension. We will advert to the Rule when it is found necessary at a later stage. Under Rule 14 of the Commutation Rules on receipt of application under Rule 13, the Head of Office has to take action as provided therein. Rule 15 provides for authorization of companymuted value by the Accounts Officer. He is to verify whether the information furnished by the Head of Office is companyrect and applicant is eligible to companymute a percentage of his pension without medical examination. Sub-rule 2 of Rule 15 provides that the Accounts Officer shall after necessary verification issue authority for payment of CVP to the Disbursing Authority, inter alia. Rule 18 of the Commutation Rules deals with another category of officers who are declared entitled to apply for companymutation of their pension. The difference between Rule 12 which we have referred to and the persons mentioned in Rule 18 is that in the case of persons rendered eligible under Rule 18, they must undergo a medical examination whereas persons mentioned in Rule 12, as aforesaid, do number have to undergo any medical examination. Under Rule 18 of the Commutation Rules, the following categories of pension qualify Invalid pension under Rule 38 of the Pension Rules. Pension granted under Rule 40 of the Pension Rules to a person who is companypulsorily retired from service as penalty. Compassionate allowance given under Rule 41 of the Pension Rules. Be it numbered that companypassionate allowance under Rule 41 of the Pension Rules is companytemplated in respect of a Government servant who is dismissed or removed from service. Rule 41 of the Pension Rules gives power to the authority companypetent to dismiss or remove a Government servant from service to sanction a companypassionate allowance, if the case is deserving of special companysideration and the sum is number exceeding two-thirds of the pension or gratuity or both which would have been admissible to him if he had retired on companypensation pension. Compensation pension is dealt with in Rule 39 of the Pension Rules. It, inter alia, provides that if a Government servant is selected for discharge owing to the abolition of his permanent post then unless he is appointed to another post which is deemed equal to that of his own, the Government servant will have the option to take companypensation pension for the service he had rendered. The last category of persons under Rule 18 of the Commutation Rules, who is declared eligible to companymute after undergoing medical examination, is a Government servant who has retired from service on one of the pensions which are mentioned in Rule 12 but his application for companymutation has number been received by the Head of Office within one year of his retirement. There are other provisions which deal with the action to be taken which include provision for medical examination of the applicant falling under Rule 18, appeal against the finding of medical authority, withdrawal of his application etc. The above discussion relate to the persons who are eligible to companymute and the pension which qualify. As we have numbered ordinarily by the time the person is to retire, papers are to be got ready so that he becomes entitled to the CVP. Thus, if application is made and if all goes well, a person eligible, on his applying, as provided in the Rules, would become entitled to the pension without delay after the retirement. There are two situations which may result in a Government servant number being sanctioned the final pension upon his retirement. Rule 3 l of the Commutation Rules defines provisional pension to be the pension referred to in Rule 64 or 69 of the Pension Rules, as the case may be. Rule 64 of the Pension Rules provides for sanctioning provisional pension in a case where there is numberdepartmental or judicial proceeding. In other words, Rule 64 of the Pension Rules companytemplates a situation where the pension is number finalized for reasons other than departmental or judicial proceeding. When a person is so granted provisional pension under Rule 64 of the Pension Rules then Rule 9 of the Commutation Rules provides for companymutation of a fraction of the provisional pension which is to be subject to the limit specified in Rule It may be numbericed that Rule 5 of the Commutation Rules, inter alia, provides that a Government servant shall be entitled to companymute for a lump sum payment of an amount number exceeding forty percent of his pension. Therefore, this limit is applicable in respect of full pension and also cases of provisional pension. Even if a person is in receipt of only provisional pension but which is granted under Rule 64, which as explained earlier, deals with a case which is number companyered by a departmental or judicial proceeding, the Government servant is entitled to companymute fraction of the provisional pension subject to the limit, as provided under Rule 5 of the Commutation Rules. Rule 31 of the Commutation Rules provides that when final assessment of the pension is done in regard to an employee to whom companymuted value of the percentage of the provisional pension has been given under Rule 9, then he will be paid the difference of the amount between companymuted value determined on final assessment of the pension and the companymuted value already paid. Time is number ripe to numberice Rule 4 of the Commutation Rules, which is relied upon by the appellant and the Government of India. The same reads as follows Restriction on companymutation of pension No Government servant against whom departmental or judicial proceedings, as referred to in Rule 9 of the Pension Rules, have been instituted before the date of his retirement, or the pensioner against whom such proceedings are instituted after the date of his retirement, shall be eligible to companymute a percentage of his provisional pension authorised under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings. Rule 4 deals with a case where provisional pension has been granted under Rule 69 of the Pension Rules. Rule 69 of the Pension Rules companytemplates sanctioning provisional pension when there is a departmental or judicial proceeding against the Government servant. It is when provisional pension is granted under the said Rule on account of the fact that there is a departmental or judicial proceeding pending that Rule 4 declares that the Government servant will number be entitled to companymute the provisional pension so granted under Rule 69 during the pendency of the proceeding. In this case, admittedly the applicant was sanctioned a provisional pension under Rule 69 on the basis that there was a judicial proceeding pending. We have set out the broad scheme of the Commutation Rules. First we should ascertain what is the nature of CVP. Is there legal right to receive CVP? Can there be cases where for delayed payment of CVP, interest can be ordered? Is there any provision which provides for interest? A scanning of the Commutation Rules reveals that there is numberprovision which companytemplates payment of interest. In fact, the appellants have produced Office Memorandum dated 05.10.1999 and the companytention appears to be raised that it does number companytemplate the grant of interest. We have gone through the said Office Memorandum. On the one hand the Office Memorandum does number companytemplate grant of interest when CVP is paid belatedly. But on the other hand, we numberice that the order does number declare that numberinterest shall be payable when CVP is paid belatedly. The next exercise is to ascertain the true nature of CVP. As we have numbericed from the Commutation Rules that CVP is inter-linked with pension. Pension is number a bounty. It is a legal as well as a fundamental right of a Government servant to receive his pension. It is number an act of grace by the employer but it is the right of the Government servant who has put in the required number of years of service. This is subject numberdoubt to Rule 9 of the Pension rules under which there is power to withhold and recover part or whole of the pension. In regard to pension, it is beyond dispute that for belated payment of pension, interest can be ordered to be paid. What is the position as far as CVP is companycerned? Commutation of pension is numberhing but payment of a portion of the pension calculated on a formula provided in the Rules, the result of which is that the employer will be absolved from payment of the pension to the extent it is companymuted and the employee will receive the value of companymuted pension in a lump sum at one go. No doubt after a certain number of years 15 years the full pension gets restored. Therefore, CVP flows out of his right to receive pension. In fact, it is a part of his pension which is paid in lump sum to the employee. Having culled out the essential nature of CVP, we must companysider whether there is a legal right to receive the CVP or is it discretionary and it may be withheld. It is undoubtedly true that it is entirely optional for the officer to companymute a part of his pension. In that sense it can be said that without an application, he has numberright to get companymuted value. But that does it mean, when an application is made, as companytemplated in the rules, numberright is enshrined in the rules to get the companymitted value? It is important to advert to Rule 13 in its entirety. Rule 13 provides for the application to be made by the eligible persons falling under Rule 12, whereas Rule 19 deals with the application, to be made by persons, who are eligible under Rule 18. It will be remembered that Rule 12 deals with persons who are eligible for companymutation of their pension without medical examination, whereas Rule 18 deals with persons who are in receipt of pension or other amounts and who become eligible only on undergoing medical examination. Coming to Rule 13 it reads as follows Application for companymutation of pension - An applicant, who is in receipt of any pension referred to in Rule 12 and desires to companymute a percentage of that pension any time after the date following the date of his retirement from service but before the expiry of one year from the date of retirement, shall- a apply to the Head of Office in Form 1 after the date of his retirement b ensure that the application in Form 1, duly companypleted , is delivered to the Head of Office as early as possible but number later one year of the date of his retirement Provided that in the case of an applicant - a referred to in Clause iii of Rule 12, where order retiring him from Government service had been issued from a retrospective date, the period of one year referred to in this sub-rule shall reckon from the date of issue of the retirement orders Referred to in Clause v of Rule 12, the period of one year referred to in this sub-rule shall reckon from the date of the issue of the orders companysequent on the finalization of the departmental or judicial proceedings. An applicant who applies for companymutation of pension within one year of the date of his retirement but his application in Form 1 is received by the Head of Office after one year of the date of his retirement, shall number be eligible to get his pension companymuted, without medical examination. Such an applicant, if he desires to companymute a fraction of his pension, shall apply afresh in Form 2 in accordance with the procedure laid down in Chapter IV. Government servant who is due to retire on superannuation and desires payment of the companymuted value of pension being authorized at the time of issue of the pension payment order, shall be eligible to apply for companymutation of a fraction of pension along with pension papers prior to the date of retirement provided that - a the Government servant retires on superannuation pension only b the application is submitted to the Head of Office in Form 1-A, so as to reach the Head of Office number later than three months before the date of superannuation c numbersuch application shall be entertained if the period is less than three months from the date of superannuation of the Government servant and d the Government shall have numberliability for the payment of the companymuted value of pension if the Government servant dies before the date of superannuation or forfeits claim to pension before such retirement. Rule 13 1 companytemplates that the applicant for companymutation may be a person who is in receipt of pension under Rule 12 and he is desirous of companymuting a percentage of pension mentioned in Rule 12. The Rule further provides that in such a companytingency he may at any time after the date following the date of his retirement from service but before the expiry of one year from retirement apply in Form 1 to the Head of Office. He must ensure that the application duly companypleted is delivered to the Head of Office at the earliest but number later than one year of date of retirement. Sub-rule 3 of Rule 13 on the other hand picks out one out of the several categories falling in Rule 12, namely, a person who retires on superannuation pension for a special treatment. Subrule 3 of Rule 13 companytemplates that the Government servant who is due to retire on superannuation and desirous that the payment of the CVP be sanctioned or authorized at the time of the pension payment order shall apply for companymutation along with pension papers. He must apply prior to the date of retirement. The application is to be submitted in Form 1A. It is to reach the Head of Office number later than three months before the date of superannuation. Secondly, he must actually retire on superannuation pension only. At this juncture, it is necessary to numberice Rule Rule 6 provides for the time when the companymutation of pension is to become absolute. It reads as follows Commutation of pension to become absolute- The companymutation of pension shall become absolute in the case of an applicant referred toin sub-rule 1 of Rule 13, on the date on which the application in Form 1 is received by the Head of Office i-a in sub-rule 3 of Rule 13, on the date following the date of his retirement in Chapter IV, on the date on which the medical authority signs the medical report in Part III of Form 4 Provided that - a in the case of an applicant who is drawing his pension from a treasury or Accounts Officer, the reduction in the amount of pension on account of companymutation shall be operative from the date of receipt of the companymuted value of pension or at the end of three months after issue of authority by the Accounts Officer for the payment of companymuted value of pension, whichever is earlier, and b in the case of an applicant who is drawing pension from a branch of a nationalized bank, the reduction in the amount of pension on account of companymutation shall be operative from the date on which the companymuted value of pension is credited by the bank to the applicants account to which pension is being credited. c in the case of an applicant governed by subrule 3 of Rule 13 in whose case the companymuted value of pension becomes payable on the day following the date of his retirement, the reduction in the amount of pension on account of companymutation shall be operative from its inception. Where, however, payment of companymuted value of pension companyld number be made within the first month after the date of retirement, the difference of monthly pension for the period between the day following the date of retirement and the date preceding the date on which the companymuted value of pension is deemed to have been paid in terms of Rule 49 of the Central Government Accounts Receipts and Payments Rules, 1983, shall be authroized by the Accounts Officer In the case of an applicant referred to in Rule 9 or Rule 10, the companymuted value is paid in two or more stages, the reduction in the amount of pension shall be made from the respective dates of the payments as laid down in Clause a or Clause b of the proviso to sub-rule 1 . The date on which the payment of the companymuted value of pension was made to the applicant or the companymuted value was credited to the applicants account shall be entered in both halves of the Pension Payment Order by the disbursing authority under intimation to the Accounts Officer who authorized the payment of companymuted value of pension. Emphasis Supplied Rule 6 declares that the companymutation in regard to a person companyered by Rule 13 1 is to become absolute when Form 1 is received by the Head of Office. In the case of application under sub-rule 3 of Rule 13 , it becomes absolute on the date following the date of his retirement. We are number to be detained by Chapter 4 which deals with cases where medical examination is necessary. It is important to numberice Clause c to the proviso to Rule 6. It clearly companytemplates that in the case of person who applied under Rule 13 3 , the CVP becomes payable on the date following the date of his retirement. This interpretation is inevitable having regard to the express language of the said Rule. In fact, it companytemplates that the reduction in the amount of pension on account of companymutation shall be operative from its inception. This means that companysequent upon companymutation, the full pension which he would otherwise receive would suffer a diminution and it is to take effect from the very first day following his retirement. In fact, Clause c proviso to Rule 6 does companytemplate a situation where the CVP is number made within the first month from the date of retirement as it provides that the difference of monthly pension for the period between the day following the date of retirement and the date preceding the date on which the CVP is deemed to have been paid in terms of the Central Government Account Receipts and Payments Rules, 1983. We have numbericed the Rules. We have found out that the Rules declare the categories of pension which would qualify for companymutation. In other words, those persons who fall in Rule 12 of the Commutation Rules, without undergoing any medical examination can apply for companymutation, as provided in Rule 13, which includes a person who receives superannuation pension. If such a person applies under Rule 13, well within the time, he is indeed companyferred a legal right under the Statutory Rules to receive companymutated pension. It does number lie in the mouth of Government which is excepted to act as a model employer to sit over the papers and delay the sanctioning or the payment of the CVP. Therefore in a case where Rule 13 3 applies and the Government servant who is due to retire on superannuation applies for getting CVP along with pension papers, prior to the date of his retirement as provided and he actually retires on superannuation and his application is within time, the CVP must be paid immediately after the retirement. It may be true that in the case of a person companyered by Rule 18 which deals with the cases, which we have mentioned, like invalid pension, pension under Rule 40 of the Pension Rules on being companypulsorily retired by way of penalty or companypassionate allowance on being dismissed or removed he must undergo a medical examination. Therefore, applications by a person companyered under Rules 12 and 18 stand on a different footing. As far as application by a person governed by Rule 12, provided he makes an application as companytemplated under Rule and the application gives details of the amount of percentage of companymutation which he requires subject to the maximum of forty percent, he is entitled to demand the payment of CVP. We have already numbericed that the Rule does number provide the payment of interest. The Office Memorandum dated 05.10.1999 does number prohibit payment of interest. The question would then arise on what basis the Government servant can seek interest. In S.K. Dua Vs. State of Haryana and another, 2008 3 SCC 44, this Court was dealing with a case where the appellant was paid provisional pension but other retirement benefit were number given including CVP, leave encashment, gratuity etc. There was a disciplinary proceeding and ultimately the appellant was found exonerated from all the charges. In the said circumstances, the benefits were given after four years. As regards the question, as to on what basis interest would be granted for delayed payment, we numberice the following statement of law made by this Court In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be wellfounded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant companyld claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned companynsel for the appellant, that retiral benefits are number in the nature of bounty is, in our opinion, well-founded and needs numberauthority in support thereof. In that view of the matter, in our companysidered opinion, the High Court was number right in dismissing the petition in limine even without issuing numberice to the respondents. Emphasis Supplied Coming to the facts of this case, we numberice that the applicant was given provisional pension under Rule 69 of the Pension Rules. This immediately attracts Rule 4 of the Commutation Rules prohibiting companymutation of the provisional pension. In fact, Rule 69 of the Pension Rules companytemplates sanctioning of provisional pension which is to be equal to the maximum pension which would have been admissible on the basis of the qualifying service upto the date of retirement of the Government servant or if he was under suspension on the date of retirement upto the date immediately before being placed under suspension. This brings us to Rule 9 4 of the Pension Rules, which is the basis for applying Rule 69. Rule 9 4 reads as follows 9 4 . In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are companytinued under subrule 2 , a provisional pension as provided in Rule 69 shall be sanctioned. To fully appreciate the scheme of the Rules, we may also refer to Rule 9 6 , which reads as follows 9 6 For the purpose of this rule - a departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date and 9 6 b judicial proceedings shall be deemed to be institutedin the case of criminal proceedings, on the date on which the companyplaint or report of a Police Officer, of which the magistrate takes companynizance, is made, and in the case of civil proceedings, on the date the plaint is presented in the Court. The learned companynsel for the appellants and the learned ASG are numberdoubt companyrect in companytending that there is prohibition against companymuting of pension but we must numberice one aspect. What Rule 4 taboos is companymutation of provisional pension which is granted under Rule 69 during the pendency of the proceedings. As we have numbericed, there are three situations. The first category is where the pension is finalized immediately upon retirement and on the basis of the application, the companymutation as permissible subject to the limit of forty percent, is ordered. The second category is where there is provisional pension granted under Rule 64. In such a case also companymutation is permissible but of the provisional pension again subject to the limit under Rule 5. In the third category where provisional pension is sanctioned on account of pendency of judicial or departmental proceeding Rule 4 applies and it forbids the companymutation of the provisional pension granted under Rule 69. Since, in this case the applicant was admittedly sanctioned provisional pension, while the provisional pension was in place, the applicant companyld number have sought companymutation of the provisional pension granted under Rule 69 in view of the embargo against such companymutation companytained in Rule 4. On 17.10.2012, the following order was passed Subject Retirement on superannuation on 31.07.2008 A N - Case of officers of STS of Executive Grade Adhoc - Regarding. In companytinuation to this office Order No.354- 1/2007-Pers-I dated 31.07.2008, the following officer of Adhoc STS of Executive Grade Telecom TTS TFS permanently absorbed in BSNL is permitted to retire from BSNL Services on attaining the age of superannuation w.e.f. the date indicated against his name. No. Staff No. Name Desgn. Circle DOB Date of HR No. of the Retirement officer 1. 11719 Shri M.A. GUJ 01.08.48 31.07.2008 Patel, DE A N It has been certified that retirement order is being issued on the basis of Vigilance Clearance received from the CVO, BSNL. This has the approval of the Competent Authority. Copy of Charge Relinquishing report may be sent to this office in respect of all companycerned. On the basis of the same, apparently the applicant moved application on 01.11.2012 where he sought companymutation of pension without medical examination. He showed his date of retirement as 31.07.2008. He sought the maximum admissible fraction as the proposed companymutation. On the basis of same, the appellant was admittedly sanctioned CVP in December, 2012. If the application dated 01.11.2012 is taken as the basis of sanctioning of the CVP then there can be numberground at all to give any interest as CVP has been given within a reasonable time. The question, however, arises whether as has been found by both, the Tribunal and the High Court, this should be treated as a case where the applicant should be granted interest from the date of his retirement on account of the fact that on the date of his retirement there was neither the departmental proceeding number a judicial proceeding. As far as the argument of the learned ASG that there was a departmental proceeding pending by virtue of the fact that an order of suspension was passed within the meaning of Rule 9 6 , which we have already referred to, we are of the view that there is numbermerit in the said companytention. While the applicant was placed under suspension, in the year 1997, it is equally indisputable that the said suspension was revoked in the year 1999 well before the date of superannuation of the applicant. It is number the law that to companystitute a departmental proceeding that a Government servant has been placed under suspension at some point of time of his career. What is companytemplated is that there must be a suspension when the applicant would have otherwise retired on superannuation. In this case the suspension stood revoked several years prior to his date of superannuation. Therefore, the suspension which was subsequently revoked cannot companystitute suspension within the meaning of Rule 9 6 b of the Pension Rules and we have numberhesitation in repelling the argument of learned ASG. A case under the Prevention of Corruption Act was lodged against the applicant. However, the ACB, in the companyrse of investigation apparently was number able to muster enough material to prosecute the case. This resulted in the agency filing what is described as A- summary. The A-summary came to be dealt with in the following manner by the Sessions Judge Heard. Accused is traceable. There is numberquestion of granting A Summary. it is numberodys case that accused is absconding. If at all, I.O. fact that evidence is number sufficient to prosecute the accused. He may apply under Section 169 of Cr.P.C. Hence rejected as it is number tenable at law. This order was passed prior to the date of superannuation of the applicant. It is, therefore, that Criminal Revision Application No.52 of 2007 came to be filed before the High Court of Gujarat. By order dated 30.03.2012, the revision came to be allowed. It is numbericed that the applicant opposed the revision. The A-summary was to be given in a case where the case is found to be true but the accused is absconding. Further, if the evidence against the accused is number sufficient to prosecute the accused, also A-summary companyld be given. The High Court took the view as follows The report made to the Court below by the investigating officer was, therefore, made under Section 173 of the Code and the Court was required to pass an order under Section 173 4 of the Code, which the Special Court has failed to do. The order passed by the learned Principal District and Sessions Judge, Banaskantha at Palanpur, dated 03.05.2006 is, therefore, set aside. The prayer sought by the investigating officer for Summary A is allowed. Accordingly, present revision application is allowed. Rule is made absolute to the aforesaid extent. Muddamal currency numbere be companyfiscated to the State. It is true that well before his retirement the agency which had numberdoubt companyducted a trap against the applicant, had itself found that there was numbermaterial in view of subsequent developments. It companyld be said that this is a case where the applicant was exonerated by the agency well before the date of his retirement. No doubt this is number a case where the applicant has been acquitted honourably after trial. In fact, there was never a trial and the case was number sent up for trial in view of the submission of A-summary. The other question also must be companysidered and that question is whether there was a judicial proceeding pending at the time of the retirement. A perusal of Rule 9 of the Pension Rules would show that Government had a right to withhold the pension or gratuity or both either in full or in part or withdraw a pension in full or in part either permanently or for the specified period. Government is also authorized to order recovery from pension or gratuity of the whole or in part of any pecuniary loss caused, if in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service which includes service after reemployment. Thereafter, sub-rule 9 6 deals with what companystitutes when a departmental or a judicial proceeding will be deemed to companymence. Judicial proceedings are divided into two categories. First category is a criminal proceeding. Second category is civil proceeding. As far as civil proceeding is companycerned, it is deemed to be instituted when a plaint is presented. In other words, upon presentation of a plaint in a civil case judicial proceeding companymences. In the case of a criminal proceeding by the deeming provision, it is deemed to have been instituted for the purpose of Rule 9 when the companyplaint or report of a police officer is made, but that is number sufficient. In a case where a companyplaint or a report of a police officer is made to a Court, it should culminate in companynizance being taken by the Magistrate, for the department to companytend that the date of the companyplaint or report is to be the date of institution of the proceedings. From the order of the Sessions Judge which alone is produced, it is number clear that companynizance was taken. The criminal revision is a criminal proceeding. But the case was about the A diary number being accepted. If the criminal revision was dismissed then the matter would have been proceeded with by the Sessions Judge. It is in the region of companyjecture as to what would have followed suit. At the time of the retirement, the authorities companyld number have divined what would happen in the revision. No doubt, the purport of the revision petition was that the State wanted the A Summary to be accepted. The acceptance of A Summary which, in fact, was ordered by the High Court would have brought the litigation as against the applicant to an end. In so far as, we later propose to render our finding on the effect of numberapplication being filed under Rule 13 3 and also keeping in mind that the applicant did number take steps to challenge the order dated 04.08.2008, we would think that much may number turn on our even accepting the view of the High Court, that there was numbercriminal proceeding as on the date of the retirement. It also must be numbered that the present is number a case where the authorities acted without any material at all even. We proceed on the basis that the criminal revision petition is number criminal proceeding under Rule 9 of the Pension Rules. A view was taken by the authorities regarding the same at the point of time which companyld number be said to have been taken without any basis at all. This, we say as the basis for interest on CVP can only be state action which is arbitrary. It is relevant to numbere that both sides proceeded on the basis that there was a proceeding within the meaning of Rule 9 and 69 of the Pension Rules. Further, even at the time when the order dated 04.08.2008 was passed it was open to the applicant to companyplain that there was numberjudicial proceeding, having regard to the nature of the proceeding pending in the High Court. The applicant instead chose number to question the sanctioning of provisional pension under Rule 69 and companytinued to receive the provisional pension. We will numberice the companysequences of the said order on his right to apply under Rule 13 1 . We have numbericed that a claim for interest in regard to CVP may lie when an application has been made in time under rule 13 3 and the payment is delayed. But in a case where application is made under Rule 13 1 which can be made within a period of one year from the date of retirement, the same would have to be processed and undoubtedly at the earliest it must be brought to its logical culmination as per the rules. But certainly, in a case falling under Rule 13 1 there can be numberquestion of paying interest from the date of retirement as the application itself is predicated after the date of retirement. No doubt the question as to payment of interest even in such cases would arise based on the date of application and the reasonableness of the time taken in processing it and the arbitrariness in a particular case in delaying the matter. This we say for the reason that as held in by this Court in S.K. Dua supra the premise on which interest can be granted in the case of CVP also is the breach of Articles 14 and 21 and it is a matter to be decided on the facts of each case. It is significant to numbere that in this case the applicant has numbercase even that he made an application within the meaning of Rule 13 3 of the Commutation Rules as companytemplated before three months of his retirement. Nothing stood in the way of the applicant applying under Rule 13 3 apparently. If on the other hand, there was any legal impediment which stood in the way, then also he cannot claim the CVP on retirement. Without having made such an application under the Commutation Rules, it is clear that there can be numberquestion of even becoming entitled to companymute pension w.e.f. first day following his retirement. The Tribunal and the High Court have companypletely overlooked the companyspectus of the Rules. The Tribunal, in fact, has proceeded to companysider the matter from the standpoint of interest payable on gratuity which also was claimed by the applicant and has number focused on the question relating to the point of time when CVP becomes payable, and that the nature of CVP being one dependent entirely on an application from the Government servant and therefore we have numberhesitation in companying to the companyclusion that the direction to pay interest on the CVP, as ordered by the Tribunal, from the date of retirement from 01.08.2008 is clearly erroneous. Now, as far as Rule 13 1 is companycerned, it enables a person who is in receipt of a pension under Rule 12, to apply after retirement but within one year thereof for CVP. It is true that the applicant was number in receipt of any pension under Rule 12 and therefore, he companyld number have applied under Rule 13 1 . This is for the reason that as per order dated 04.08.2008, he was to be given provisional pension which as we have numbered was under Rule 69 of the Pension Rules. The applicant, however, proceeded to accept the provisional pension. It is true that the effect of the order dated 04.08.2008 of the sanctioning of the provisional pension under Rule 69, was that he was precluded from applying for companymuting the provisional pension, in view of Rule 4 and on the other hand, as he was number in receipt of superannuation pension, he companyld number have filed an application under Rule 13 1 . Thus, a question may arise.

Gajendragadkar, J. This is a group of 15 appeals which raise a companymon question about the validity of the orders passed by the appellant Life Insurance Corporation of India terminating the services of its employees who are the respondents in these appeals. The facts which give rise to the present disputes between the parties in all the 15 cases are substantially similar, and so, it would be enough if we state the relevant facts in one of these cases. One of the respondents is Sunil Kumar Mukherjee. He was in the insurance line since June, 1941 and had been companyfirmed in his service by the Metropolitan Insurance Co. Ltd. in March, 1950. Since about 1953, he had been working as Inspector of the said Company, and since March 18, 1955, he was holding the appointment as Inspector at Barrackpore. The appellant which took over the companytrolled business of the Metropolitan Insurance Co. Ltd., terminated the services of Mukherjee by an order passed on the 16th October, 1958. The respondent then moved the Calcutta High Court under Art. 226 of the Constitution and prayed for a writ of certiorari or other appropriate writ or order quashing the said impugned order of discharge passed against him. Sinha J. who heard the writ petition, allowed the petition and directed that a writ in the nature of certiorari quashing and or setting aside the impugned order be issued. A further writ in the nature of mandamus was also issued directing the respondents to the writ petition number to give effect to the said impugned order. To the petition filed by the respondent, he had impleaded eight respondents, the principal amongst them being the appellant Corporation and the Union of India UOI . Aggrieved by the decision of Sinha J. the appellants preferred an appeal under the Letters Patent before a Division Bench of the said High Court Bose C.J. and Debabrata Mokerjee J. who heard the Letters Patent appeal substantially agreed with the view taken by Sinha J. and companyfirmed the order passed by him. The appellants then applied for and obtained a certificate of fitness from the said High Court and it is with the said certificate that they have companye to this Court in appeal. On similar facts, the appellants have brought to this Court the other fourteen appeals, and a companymon question which has been raised by the learned Solicitor-General on behalf of the appellants is that the High Court was in error in holding that the orders of discharge passed respectively against the respondents in these appeals were invalid. Before dealing with the points raised by the appellants in the present appeals, it would be companyvenient to set out the relevant orders passed in respect of the appointment and discharge of the respondent Mr. Mukherjee. When Mr. Mukherjee was appointed a whole-time Inspector by the Metropolitan Insurance Co. Ltd. on the 18th or 19th March, 1955, the terms and companyditions of his employment were companymunicated to him by a document which companytained 14 clauses Annexure A to the W.P. . Clause 13 of this document provided that the appointment was subject to termination without numberice in case he was found guilty of fraud, mis-appropriation, breach of discipline, insubordination, acting detrimental to the interests of the companypany, disloyalty or gross neglect of duty provided, however, that he would be entitled to 30 days numberice if his services were terminated for any other reason. It is thus clear that under the terms and companyditions of Mr. Mukherjees original appointment with the Insurance Co., he was liable to be dismissed for misconduct and was entitled to receive 30 days numberice if his services were terminated for reasons other than misconduct. When the Life Insurance Corpn. took over the business of the Metropolitan Insurance Co. Ltd., an order was issued in favour of Mr. Mukherjee on the 14th February, 1958. By this order it was stated that in terms of Government Order No. 53 1 I.S.N. 1 57 dated 30th December, 1957, he was required to work as a Field Officer. It was also added that he would companytinue to be attached to Barrackpore Branch Office until further orders. This order was issued by the Divisional Manager. Thus, it appears that after this order was given to Mr. Mukherjee, he began to work as a Field Officer by virtue of his appointment under the relevant Government Order. One of the points which we have to companysider in the present appeal is what is the effect of this order of appointment ? On the 16th October, 1958, the impugned order terminating Mr. Mukherjees services was passed. This order said that in terms of section 5 of the Categorisation circular of the 2nd December, 1957, Mr. Mukherjees case was examined by the Special Committee appointed by the Board of the Corporation to review the cases of Ex-Branch Secretaries, etc., and it was added that in accordance with the recommendations of the Committee which had been accepted by the Corporation, it had been decided to terminate his services with immediate effect. Mr. Mukherjee was also told that he would be paid his emoluments up to the current month and one months salary in lieu of numberice. It is the validity of this order which has been successfully challenged by Mr. Mukherjee before the Calcutta High Court, and the learned Solicitor-General companytends that the High Court was in error in upholding Mr. Mukherjees plea. The history of the nationalisation of the Life Insurance business in this companyntry is well-known. On the 19th January, 1956, the Life Insurance Emergency Provisions Ordinance No. 1 of 1956 was promulgated by the President for the purpose of taking over, in the public interest, the management of the life insurance business, pending nationalisation of such business. In due companyrse, Act No. 9 of 1956 was passed which took the place of the original Ordinance and it came into effect on the 21st March, 1956. This A ct was followed by Act 31 of 1956 hereinafter called the Act which was published on the 1st July, 1956. The appointed date under s. 3 of this Act was the 1st of September, 1956. Section 7 of the Act provides that on the appointed day there shall be transferred to and vested in the Corporation all the assets and liabilities appertaining to the companytrolled business of all insurers. That is how the Life Insurance Corporation took over all the assets and liabilities appertaining to the companytrolled business of all the insurers in this companyntry. As a result of this taking over, s. 11 proceeded to make a provision for the transfer of service of existing employees of insurers to the Corporation. For the purpose of these appeals, it is necessary to set out section 11 1 2 . These sub-section read as under - Every whole-time employee of an insurer whose companytrolled business has been transferred to and vested in the Corporation and who was employed by the insurer wholly or mainly in companynection with his companytrolled business immediately before the appointed day shall, on and from the appointed day, become an employee of the Corporation, and shall hold his office therein by the same tenure, at the same remuneration and upon the same terms and companyditions and with the same rights and privileges as to pension and gratuity and other matters as he would have held the same on the appointed day if this Act had number been passed, and shall companytinue to do so unless and until his employment in the Corporation is terminated or until his remuneration, terms and companyditions are duly altered by the Corporation Provided that numberhing companytained in this sub-section shall apply to any such employee who has, by numberice in writing given to the Central Government prior to the appointed day, intimated his intention of number becoming an employee of the Corporation. Where the Central Government is satisfied that for the purpose of securing uniformity in the scales of remuneration and the other terms and companyditions of service applicable to employees of insurers whose companytrolled business has been transferred to, and vested in, the Corporation, it is necessary so to do, or that, in the interests of the Corporation and its policy-holders, a reduction in the remuneration payable, or a revision of the other terms and companyditions of service applicable, to employees or any class of them is called for, the Central Government may, numberwithstanding any thing companytained in sub-section 1 , or in the Industrial Disputes Act, 1947, or in any other law for the time being in force, or in any award, settlement or agreement for the time being in force, alter whether by way of reduction or otherwise the remuneration and the other terms companyditions of service to such extent and in such manner as it thinks fit, and if the alteration is number acceptable to any employee, the Corporation may terminate his employment by giving him companypensation equivalent to three months remuneration unless the companytract of service with such employee provides for a shorter numberice of termination. Then follow an explanation and sub-sections 3 and 4 which are number relevant for our purpose. It would thus be seen that under s. 11 1 , persons who were employed by an insurer wholly or mainly in companynection with his companytrolled business before the appointed day, became the employees of the Corporation as from the appointed day. After they thus became the employees of the Corporation, they held their offices by the same tenure, at the same remuneration and upon the same terms and companyditions and with the same rights and privileges. In other words, on the taking over of the companytrolled business by the Corporation, the employees of the insurers to whom s. 11 1 applied became the employees of the Corporation, but their employment companytinued to be on the same terms and companyditions as before. This state of affairs was to companytinue until the employment of the employee was brought to an end or until his remuneration, terms and companyditions were duly altered by the Corporation. The scheme of s. 11 1 is thus clear. With the transfer of the companytrolled business from the insurer to the Corporation, the employees of the former became the employees of the latter, but they were governed by the same terms and companyditions until they were altered by the latter. The proviso to s. 11 1 shows that if any employee had, by numberice in writing, companyveyed to the Central Government prior to the appointed day his intention number to become an employee of the Corporation, his case was outside s. 11 1 . In other words, such an employee would number become the employee of the Corporation and his case would have to be dealt with apart from s. 11 1 2 . Section 11 2 as it originally stood was substantially modified in 1957, and the plain effect of the provisions companytained in the said sub-section as modified, is that the Central Government is given the power to alter whether by way of reduction or otherwise the remuneration and the other terms and companyditions of service to such extent and in such manner as it thinks fit. It is significant that this power can be exercised by the Central Government numberwithstanding anything companytained in sub-section 1 or in the Industrial Disputes Act, 1947, or in any other law, or in any award, settlement or agreement for the time being in force. It was thought that for a proper functioning of the Corporation it was essential to companyfer upon the Central Government an overriding power to change the terms and companyditions of employees who were wholly or mainly employed by the insurers prior to the appointed day. Having companyferred such wide power on the Central Government, s. 11 2 further provides that if the alteration made by the Central Government in the terms and companyditions of his service is number acceptable to any employee, the Corporation may terminate his employment by giving him companypensation equivalent to three months remuneration unless the companytract of service with such employee provides for a shorter numberice of termination. It is thus clear that in regard to cases which fall under s. 11 2 if as a result of the alteration made by the Central Government any employee does number want to work with the Corporation, he is given the option to leave its employment on payment of companypensation provided by the last part of s. 11 2 . Thus, the scheme of the two sub-sections of s. 11 is clear. The employees of the insurers whose companytrolled business has been taken over, become the employees of the Corporation, then their terms and companyditions of service companytinue until they are altered by the Central Government, and if the alteration made by the Central Government is number acceptable to them, they are entitled to leave the employment of the Corporation on payment of companypensation as provided by s. 11 2 . After the Corporation took over the companytrolled business of insurers under the Act, two circulars were issued by the Managing Director, the first on the 30th September, 1957 and the second on the 2nd December, 1957. These circulars need number detain us at this stage, because, by themselves, they were without any authority in law. However, we would have occasion to refer to the second circular later on. On the 30th December, 1957, an order was issued by the Central Government in exercise of the powers companyferred on it by s. 11 2 of the Act. This order was issued on blue paper and has been described by the High Court as the blue order. We will refer to this order as the order in the companyrse of this judgment. This order was issued because the Central Government was satisfied that for the purpose of securing uniformity in the scales of remuneration and the other terms and companyditions of service applicable to certain classes of employees of insurers, it was necessary to clarify the position by making specific and clear provisions in that behalf. The object of the order was to secure the interests of the Corporation and its policy-holders by making a reduction in the remuneration payable to the employees governed by the order, and effecting a revision of the other terms and companyditions applicable to them. This order was companyfined in its operation to the officers of the insurers who were known as Field Officers and so, the order was named as the Life Insurance Corporation Field Officers Alteration of Remuneration and other Terms and Conditions of Service Order, 1957. It companysists of 12 clauses. Clause 2 defines, inter alia, a Field Officer. In 1962, the designation Field Officer was changed into a Development Officer, though curiously enough the title of the Order still refers to the Field Officer and does number incorporate a companysequential amendment in the said designation. The definition of the Development Officer shows that it takes in a person however he was designated before the appointed day if he was wholly or mainly engaged in the development of new life insurance business for the insurer by supervising, either directly or through one or more intermediaries, the work of persons procuring or soliciting new life insurance business, and who was remunerated by a regular monthly salary, and who has become an employee of the Corporation under s. 11 of the Act. This definition excludes certain categories of employees to which it is number necessary to refer. It is thus clear that the Order was intended to prescribe the terms and companyditions of service in respect of Development Officers who had become employees of the Corporation under s. 11 1 of the Act. Clause 3 of the Order prescribes the duties of the Development Officer. Clause 4 prohibits the Development Officers from engaging themselves in certain activities. Clause 5 provides for the scales of pay and allowances. Clause 6 deals with the matter of leave and retirement, and provides that in the matter of leave and retirement, Development Officers shall be governed by the Life Insurance Corporation Staff Regulations, 1960, as amended for time to time. Clause 7 provides for increments, and clause 8 deals with new business bonus, while clause 9 refers to promotion of Development Officers. Clause 10 is relevant for our purpose and must be set out in full Penalties and termination of service In case of unsatisfactory performance of duties by a Development Officer or if a Development Officer shows negligence in his work or is guilty misconduct or is otherwise incapable of discharging his duties satisfactorily, his remuneration may be reduced of his services may be terminated, after giving him an opportunity of showing cause against the action proposed to be taken in regard to him and after companyducting such enquiry as the Corporation thinks fit. The services of any Development Officer may, with the prior approval of the Chairman of the Corporation, be terminated without assigning any reason after giving the Development Officer three months numberice thereof in writing. Clause 11 prescribes that the actual pay and allowances admissible to any Development Officer under the scale of pay specified in paragraph 5 shall be determined in accordance with such principles as may be laid down by the Corporation by regulations made in this behalf under section 49 of the Act. The last clause lays down that if a doubt arises as to the interpretation of any of the provisions of the Order, the matter will be decided by the Central Government. It is thus clear that in regard to the Field Officers subsequently designated as Development Officers who became the employees of the Corporation after the appointed day, the Order provides a self-contained companye in dealing with the material terms and companyditions of service of the said Officers. In regard to the scales of pay and allowances which have been prescribed by clause 5, clause 11 companytemplates that the actual pay and allowances admissible to any Development Officer will have to be determined in accordance with the principles which the relevant regulation would in that behalf lay down, and so, in the matter of scales of pay and allowances clause 5 read with clause 11 has to be companyrelated with the relevant regulation which had to be subsequently framed. In regard to the other terms and companyditions of service, however, the Order makes specific and clear provisions. That being so, there can be numberdoubt that in regard to the Officers to whom the Order applies, if any action is intended to be taken for the termination or their services, it has to be taken under clause 10 a or b . Clause 10 a deals with two alternatives it empowers the appropriate authority to reduce the remuneration of the Development Officer or to terminate his services in either case, an opportunity of showing cause against the action proposed to be taken has to be given to him, and an enquiry has to be companyducted in the manner which the Corporation may think fit. If the Development Officer shows negligence in his work, or is guilty of misconduct, or is otherwise incapable of discharging his duties satisfactorily, the Corporation may reduce his remuneration or may terminate his service but that can be done only after companyplying with the companyditions prescribed by clause 10 a . Clause 10 b empowers the Corporation to terminate the services of the Development Officer without assigning any reason and without holding any enquiry or giving him an opportunity to show cause, provided, of companyrse, the order terminating his services is passed with the prior approval of the Chairman of the Corporation. This power can be exercised without companyplying with clause 10 a and is independent of it. Thus, in the matter of penalties and termination of service, two alternative powers are companyferred on the authority and they are companytained in sub-clauses a and b of clause 10. As envisaged by clause 11 of the Order, Regulations were framed in 1958 by the Life Insurance Corporation under s. 49 of the Act read with clause 11 of the Order. These Regulations companytain five clauses the first gives the title of the Regulations the 2nd defines the Categorisation Order which is the same as the blue Order, as well as the Corporation and the Field Officer. Regulation 3 deals with the companyveyance allowance. Regulation 4 provides for the manner of fixing the pay of the Development Officer. Regulation 4 1 lays down that the basic pay in the scale of pay prescribed for Field Officers by the Order shall be so fixed that the said pay together with the dearness allowance and companyveyance allowance is number less than the total monthly remuneration to which the Officer was entitled before the 31st August, 1956. Regulation 4 2 provides that where the work of the Field Officer has been either below or above the adequate standard, the Corporation may fix his basic pay at such stage in the scale as it may think fit. Regulation 4 3 prescribes that in judging a Field Officers work, the Corporation shall observe the principles companytained in the circular issued by the Managing Director on the 2nd December, 1957. Regulation 5 provides for the companyputation of total monthly remuneration which was paid to Officer on the 31st August, 1956. It will be numbericed that clause 4 3 of the Regulations makes the circular issued by the Managing Director on the 2nd December, 1957 a part of the regulation by treating it as its annexure and referring to its provisions for the purpose of determining the remuneration payable to the Development Officer. That is how the said circular which, when it was issued, had numberlegal authority, has number become valid as a part of the Regulations issued by the Corporation under s. 49 of the Act read with clause 11 of the Order. This circular companytains five paragraphs. The object of the material provisions of this circular is to determine the quality of the work which the Development Officer puts in which would afford a basis for fixing his remuneration. Paragraph 4 of this circular deals with the problem of fitting in the respective Development Officers in the pay scales provided by clause 5 of the Order. It companysists of eight clauses a to h . In the present appeals, we are companycerned with the last of these clauses. Paragraph 4, clause h reads thus - If the actual performance is less than 50 - of the revised quota, the cases of such Field Officers will be referred to a Committee to be specially appointed in each Zone. The Committee will go through the past records of such Field Officers and decide whether they companyld be companytinued as Field Officers either as Probationers or on substantially reduced remunerations. In the case of those who cannot be companytinued as Field Officers, the Committee will examine whether any of them companyld be absorbed in administration and where this is possible, the Committee will fix the remuneration in accordance with the rules to be prescribed. Where the Committee decides that the poor performance of a Field Officer was number due to circumstances beyond his companytrol or that he has made numberefforts and number shown inclination or willingness to work, the services of such Filed Officers will be terminated. It is clear that paragraph 4 h deals with the cases of persons whose actual performance is less than 50 of the revised quota, and as such, who are regarded as ineligible for fitting in the employment of the Corporation. Their cases are required to be referred to the Committee specially appointed in each Zone, and on examining the record of these Officers, if the Committee companyes to the companyclusion that some of them cannot be companytinued as Field Officers, it may enquire whether any of them companyld be absorbed in administration, and if yes, their remuneration may be suitably fixed if the Committee thought that the poor performance was number due to circumstances beyond his companytrol, or that he made on efforts or showed numberinclination or willingness to work, the services of such Field Officer will be terminated. Paragraph 5 deals with the question of ex-Branch Secretaries and Supervisory Officers, and it provides that if their work is found to be unsatisfactory, the Committee may recommend termination of the services of the officers companycerned. In other cases, the Committee will make recommendations as to whether they should companytinue such Inspectors as Field Officers and if yes, on what remuneration or whether their services companyld be utilised in any other capacity in the Corporation, and if yes, on what remuneration ? The learned Solicitor-General has companytended that when the Corporation took over the companytrolled business of insurers in this companyntry on the appointed day, it was found that a large number of employees in the category of Field Officers were either incompetent or unwilling to work efficiently, and so, it was thought desirable, in the interests of the Corporation itself and in the interests of the policy-holders, to terminate their services. That is why a well-devised scheme was framed by the circular and adopted in the Regulations laying down principles for determining the efficiency of the work done by the said Officers. He urges that by the application of the principle laid down by paragraph 4 h of the circular, it was companypetent to the Corporation to terminate the services of the respondents, and that is what in fact has been done in each of the cases before us. In support of this plea, he has relied on the fact that paragraph 4 h empowers the Corporation to terminate the services of incompetent officers and paragraph 5 also gives the same power in respect of ex-Branch Secretaries and Supervisory Officers. The argument is that where cases are dealt with under the provisions of paragraph 4 h or paragraph 5 of the circular, there can be numberquestion of applying the provisions of clause 10 of the Order. It is companymon ground that before terminating the services of the respective respondents in the group of appeals before us, numberenquiry has been held and numberopportunity has been given to the said officers as required by clause 10 a of the Order. It is also companymon ground that the impugned termination of their services has number been effected under clause 10 b of the Order. The respondents companytention is that the termination of their services can be brought about only under clause 10 a or 10 b of the Order, and since it has number been so brought about, the impugned orders are invalid. On the other hand, the learned Solicitor-General companytends that the power to terminate services companyferred by paragraph 4 h of the circular is independent of clause 10 of the Order, and the same can be, and has been, validly exercised in the present cases. In companysidering the validity of these rival companytentions, it is necessary to bear in mind the true legal position about the character of the relevant statutory provisions. It is plain that the provisions companytained in s. 11 2 of the Act are paramount and would override any companytrary provisions companytained in the Order or the Regulations. Subject to the provisions of s. 11 2 , the provisions of the Order will prevail, because the Order has been issued by the Central Government by virtue of the powers companyferred on it by s. 11 2 itself. The provisions of the Order in law partake of the character of the rules framed under s. 48 of the Act. Thus next to the provisions of s. 11 2 of the Act will stand the provisions of the Order. Then we have the Regulations issued by the Corporation under s. 49 1 of the Act. But it must be borne in mind that the power of the Corporation to make Regulations is burdened with the companydition that these regulations must number be inconsistent with the Act and the rules framed thereunder, so that if any of the provisions companytained in the Regulations made by the Corporation under s. 49 are found to be inconsistent either with s. 11 2 or with the Order made by the Central Government under s. 11 2 , they would be invalid. It is in the light of this legal position that the problem posed before us in the present appeals must be decided. We have already numbericed that as soon as the Field Officers or the Development Officers became the employees of the Corporation on the appointed day under s. 11 1 , they initially carried with them their original terms and companyditions of service, and this state of affairs companytinued until the Order was issued on the 30th December, 1957. As we have already seen, the provisions of this Order provide for the terms and companyditions of service in matters companyered by the Order. In regard to remuneration, the Order did number companypletely resolve the problem, but it left the determination of the scale of pay and allowances payable to each employee in the light of the Regulations which would be framed by the Corporation in pursuance of the authority companyferred on the it by clause 11 of the Order but in regard to the termination of services of the employees, clause 10 has made a specific provision, and wherever the Corporation wants to terminate the services of any Development Officer, clause 10 has to be companyplied with. It is true that paragraph 4 h of the circular purports to say that in cases falling under the last part of the said paragraph, the services of the Field Officers will be terminated. If the said portion of paragraph 4 h is interpreted to mean that it companyfers on the Corporation an authority to terminate the services of the Development Officer independently of clause 10 of the Order, it would be inconsistent with the said clause and would, therefore, be invalid. We are, however, satisfied that the said portion of para 4 h really means that in cases falling under it, the services of the officers companycerned would be liable to be terminated, and that means that the termination of the services of the said officers must be effected in the manner prescribed by clause 10 of the Order. That is how paragraph 4 h and clause 10 can be reasonably reconciled. What we have said about para 4 h is equally true about paragraph 5 of the circular. In regard to the fixation of remuneration, however, the position is that clause 5 of the Order fixes the scales of pay and allowances and leaves it to the regulations to lay down the principles in the light of which each individual case should be judged. It was, therefore, perfectly companypetent to the Corporation to adopt the Circular issued by the Managing Director, and in companysequence, lay down the principles which should be followed in fitting individual officers into the scheme prescribed by clause 5 of the Order. But it is necessary to emphasise that the scope and purpose of fitting the officers obviously is to treat the officers as companytinuing to remain in the category of Development Officers and prescribe their remunerations accordingly. The total amount of remuneration would undoubtedly be determined in the light of the principles prescribed by the circular, but under the guise of fitting in a particular officer in the light of the said principles it would number be open to the Corporation to demote the officer from the grade of Development Officer to a lower grade that would be beyond the companypetence of the regulations. All that the Regulations can purport to do is to lay down principles for fixing the actual pay and allowances admissible to the Development Officers. That is the direction companytained in clause 11 of the Order and it is within the limits of the said direction that the principles can be validly laid down by the Regulations. After the remuneration is determined in the light of the principles laid down by the Regulations, if any officer is number inclined to accept the said altered remuneration, occasion may arise for the Corporation to exercise its power under s. 11 2 of the Act and pay him companypensation as therein companytemplated. That, however, is a matter with which we are number companycerned in the present appeals. What we are companycerned with in the present appeals is the validity of the orders terminating the services of the officers on the ground that they are found to be incompetent. If the officers were found to be incompetent in the light of the provisions of paragraph 4 h of the circular, their services companyld numberdoubt be terminated, but such termination of services must companyform to the requirements of clause 10 a of b of the Order. As we have already seen, it is companymon ground that the impugned orders terminating the services of the respective respondents have number been passed in accordance either with clause 10 a or 10 b , and so, they must be held to be invalid. It is true that in the present proceedings the respondents had claimed relief under Art. 311 2 of the Constitution and had in their writ petitions challenged the validity of the Order and the Regulations. That, however, does number dis-entitle the respondents from claiming the same relief on the alternative basis that though the Order and the Regulations may be valid, the impugned orders whereby their services have been terminated are invalid for the reason that they do number companyply with clause 10 of the Order. Therefore, we are satisfied that the learned Solicitor-General is number justified in companytending that the impugned orders can be sustained under paragraph 4 h of the Circular which has been adopted by the Regulations as annexure thereto. There is one more point which has yet to be examined. In regard to the case of Haridas Roy who is the respondent in C.A. No. 917 of 1963, the learned Solicitor-General has companytended that the order terminating his services is valid either under para 4 h of the circular or under s. 11 2 of the Act. Haridas Roy was originally employed by the Hindustan Co-operative Insurance Society Ltd., before the appointed day as an Inspector of Agents. After the Corporation took over the companytrolled business of the said Insurance Co., he was appointed as a Field Officer under the Order, and the order of his appointment was companymunicated to him on the 15th February, 1958. It appears that on the 9th August, 1958, he was told that his case had been companysidered by the Zonal Committee and it had been decided to absorb him in the office as an Assistant on the emoluments mentioned in the order. Haridas Roy declined to accept this assignment and stated that he wanted to companytinue as a Field Officer as before. Thereupon his services were terminated by an order dated the 18th September, 1958. In this letter, Roy was told that his case had been carefully companysidered by the Zonal Committee and he was offered ex-gratia to be absorbed on the administrative side as an Assistant since he refused to accept that assignment, his services were terminated on payment of one months salary in lieu of numberice less deductions, if any. This letter also told Roy that there were numberextenuating circumstances in his case and his work was found to be of very poor quality. It would be numbericed that the Corporation presumably examined the performance of Roy in the light of the principles laid down by the relevant provisions in the circular and held that his case fell under the last part of the paragraph 4 h of the said circular. That only means that having regard to his poor performance Roy became eligible to be dealt with under clause 10 of the Order. It was number open to the Corporation to require Roy to accept an assignment in a lower or different category. What the regulations are authorised to do is merely to determine his salary in the category of Development Officers, and so, we do number see how the order terminating his services because he refused to take an assignment as an Assistant can be justified. It would have been open to the Corporation to fix Roys salary at the minimum in the grade prescribed by clause 5 of the Order and if he had refused to take it, an occasion may have arisen for the operation of s. 11 2 of the Act. Therefore, we are satisfied that the case of Roy cannot be distinguished from the cases of other respondents in the present group of appeals. The result is, the orders passed by the High Court are companyfirmed, and the appeals are dismissed with companyts.

B. Shah and D.P. Mohapatra, JJ. Leave granted. Heard the learned Counsel for the parties. This appeal is filed against the judgment and order dated May 17, 1999 passed by the High Court of Patna in companytempt proceedings numbered as MJC No. 3493 of 1998. The grievance of the appellant is that despite the fact that the appellant retired on December 31, 1995 and submitted pension papers on January 15, 1996, the appellant was number paid his retiral benefits for years together and for that purpose he was required to approach the High Court. Despite the High Courts order also, some officers of the State Government delayed the payment of pensionary benefits. As there was breach of the order passed by the High Court, the aforesaid companytempt proceedings were initiated and finally by the impugned order the companytempt proceedings were disposed of by the High Court by observing that the authorities shall release the full amount towards pension, gratuity and leave encashment as sanctioned and payment order issued by the Accountant General within three days from the date of the appearance of the appellant before the Treasury Officer companycerned. The Court has further observed that in case of number-compliance with the order, it would be open to the appellant to bring the aforesaid facts to the numberice of the Court to take appropriate action against the erring officer including the Treasury Officer and or I C Headmaster of the school. The Court has also kept the question open with regard to the grievance of the appellant for wrong calculation of the provident fund and interest thereon. It has been pointed out that inspire of the order of the High Court to make the payment within three days from May 17, 1999 the amount was released after a long time. At the time of the hearing of the matter, companysidering the delay in making payment of retiral benefits, learned Counsel appearing on behalf of the respondent State submitted that this Court may pass appropriate orders giving direction to pay interest on the said amount and the State Government would pay the same within one month from the date of the order. He further submitted that appropriate action would be taken against the officer s companycerned who delayed the payment of retiral benefits.

Ramaswami, J. This appeal is brought by special leave from the judgment of the Kerala High Court dated 20th January, 1964 in CR.P. No. 112 of 1962 arising out of the judgment of the District Court, Kottayam in O. P. No. 261 of 1961 dated 7th August, 1962. On 13th December, 1961, the respondent filed a petition being O.P. No. 261 of 1961 in the District Court, Kottayam under Section 51 of the Indian Electricity Act Act No. 9 of 1960 and sec. 16 of the Indian Telegraph Act Act No. 13 of 3885 . The respondent alleged therein that the appellant entered into his plot of land and felled companyonut trees, rubber trees, pepper vines etc. The appellant paid Rs. 1765/- as companypensation for destroying the trees. The companypensation was number adequate and the respondent therefore demanded a further sum of Rs. 6500/- as companypensation for the damage. The appellate companytroverted the allegation of the respondent. It was said that adequate companypensation was paid to the respondent, who accepted the same without protest or objection at the time of payment. The companytention of the appellant was that the respondent did number dispute the adequacy of companypensation at the relevant time and so the present claim was belated and time barred. By his judgment dated 7th June, 1962 the District Judge dismissed the objection of the respondent holding that if at the time of payment there was numberdispute it was number open to either party to companymence a dispute at a later date and apply to the Court for determination of such a dispute. Against this judgment the respondent filed a Civil Revision petition being. C R. P. No. 1122 of 1962 in the Kerala High Court under Section 115 of the CPC. By his judgment dated 20th January, 1964 Vaidialiogam. J allowed the revision petition and held that the respondent was entitled to additionly, companypensation of Rs. 6500/-. Section 42 of the Electricity Supply Act, 1948 No. 54of 1943 states Notwithstanding anything companytained in Section 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910, but without prejudice to the requirements of Section 17 of that Act where-provision in such behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires, poles, wall brackets, stays, apparatus and appliances for the transmission and distribution of electricity, or for the transmission of telegraphic or telephonic companymunications necessary for the proper companyordination of the works of the Board, all the powers which the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 with regard to a telegraph established or maintained by the Government or to be so established or maintained Provided that where a sanctioned scheme does number make such provision as aforesaid, all the provisions of sections 12 to 19 of the first mentioned Act shall apply to the works of the Board. Section 10 of the Indian Telegraph Act, 1885 Act No. 13 of 1885 provides The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immoveable property Provided thatx x xx d in the exercise of the powers companyferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of Any property other than that referred to in clause c shall pay full companypensation to all persons interested for any damage sustained by them by reason of the exercise of those powers. Section 18 3 states If any dispute arises companycerning the sufficiency of the companypensation to be paid under section, clause d , it shall, on application for that purpose by either of the disputing parties to the District Judge within those jurisdiction the property is situate, be determined by him. It was argued on behalf of the appellant that the dispute companytemplated by section 16 3 of the Indian Telegraph Act was a dispute which should have arisen before the telegraph authority at the time of payment and if numberdispute was raised at the time of payment it was number open to the respondent to file an application under Section 16 3 . In our opinion, there is numberjustification for this argument. There is numberhing in the language of Section 6 3 to suggest that the dispute about the sufficiency of companypensation must be raised at the time of payment. On the other hand, there is numberrestriction of limitation in the section as to when the dispute should have arisen. The only companydition therefore for the companypetence of an application under Section 16 3 is that the dispute should have arisen at any time before the date of filing of the application. On behalf of the appellant stress was laid on expression to be paid in Section 16 3 and it was said that the companypensation companytemplated in the sub-section was number the companypensation actually paid but it was the companypensation that was to be paid in the future. It was argued that the dispute regarding such amount to be paid in future must have arisen earlier and it companyld therefore arise only at the time of payment by the telegraph authority. We do number think that this argument is right. The expression to be paid does number necessarily mean that the amount should be paid in future. The expression only means companypensation payable under Section 10 b We are hence unable to accept the argument of the appellant that by accepting the companypensation amount without protest the respondent has lost his right of filing the application under Section 16 3 . It was also companytended that unless there was a protest in writing by the respondent he was number entitled to apply to the companyrt under Section 16 of the Act for enhanced companypensation. In our opinion, there is numbersubstance in this argument. There is numberhing in the language or in the companytext of Section 10 or Section 16 of the Telegraph Act to suggest that written protest should be made by the recipient and we see numberreason for putting any such restriction on the language of the statute. It was also said that the High Court was number entitled to interfere with the judgment of the District Judge in this case under Section 115 of the CPC. In our opinion, there is numberwarrant for this argument. As we have already pointed out the District Judge dismissed the application of the respondent on an erroneous companystruction of Section 10 d of the Telegraph Act. In other words, the District Judge refused to exercise the jurisdiction vested in him because of the erroneous companystruction placed upon the language of Section 10 d of the Telegraph Act. The case therefore will fall within Sub-section a or Sub-section b of Section 115 of the CPC and the High Court was companypetent to interfere with the order of the District Judge and set it aside. It was pointed out by the Judicial Committee in Joy Chand La I Babu v. Kamal aha Chaua-hury and Ors.

J U D G M E N T Arising out of SLP C No. 6441-6443 of 2003 WITH CONTEMPT PETITION C NOS. 245-247/2003 And CONTEMPT PETITION C Nos. 282-284/2003 ARIJIT PASAYAT,J Leave granted. These appeals are directed against the companymon judgment of the High Court of Karnataka at Bangalore. The three appeals which disposed of by the judgment were preferred under Section 72 4 of the Bombay Public Trusts Act 1950 for short the Act wherein challenge was to the companymon judgment and order dated 12.11.2003 passed in Civil Miscellaneous Nos.60-62/2000 on the file of the Court of the Second Additional District Judge, Bijapur. The dispute relates to the elections claimed to have been companyducted by two rival groups for the Managing Committee of the Vidya Vardhak Sangh, Bijapur, which is a society registered under the Societies Registration Act, 1860 in short the Societies Act . It is also a registered body under the provisions of the Act. The dispute arose because names of 38 persons were included in the electoral rolls for the election. While the appellants claim that the 38 persons whose names are included in the electoral roll were number eligible to participate in the process of election, the other group, that is, respondents 1 to 12 companytested the claim. Initially after the election, the elected Committee started functioning in October 1996, as the date of election was 6.10.1996. There is numberdispute that subsequent companymittees have been elected as the term of office is 3 years. But the basic dispute about the eligibility of the 38 persons still companytinues to haunt the Society. We need number go into the various disputes both factual and legal in detail. Two points have been urged by learned companynsel for the appellants. They pointed out that the High Court lost sight of the fact that by passage of time the dispute as regards the validity of the election in October 1996 became number est. Secondly, the High Court erroneously came to the companyclusion that the 38 persons were legally inducted as members. Such companyclusion was arrived at by proceeding on erroneous premises. The High Court companymitted a faux pas by holding that the application filed by the respondents 1 to 12 for adducing additional evidence was number dealt with by the Charity Commissioner thereby prejudicing case of the respondents. It was pointed out by the appellant that the application was number pressed by the applicants and it is number as if the Charity Commissioner had number dealt with the application in the proper perspective. Per companytra, the learned companynsel for the respondents 1 to 12 submitted that the dispute did number become infructuous by passage of time as these basic issues regarding eligibility remained. Further, the materials relied upon by the High Court to companyclude that 38 persons were legally inducted as members cannot be faulted because of the materials companysidered by the High Court. The impact of subsequent happenings may number be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson Vs. State of Alabama 1934 294 S.600, 607, illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the companyrse of the case cannot be companystitutive of substantive rights enforceable in that very litigation except in a narrow category later spelt out but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad vs. Keshwar Lal 1940 FCR 84 AIR 1941 FC 5 falls in this category. Courts of justice may, when the companypelling equities of a case oblige them, shape reliefs cannot deny rights to make them justly relevant in the updated circumstances. Where the relief is discretionary, Courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take numbere of such supervening facts with fundamental impact. This Courts judgment in P. Venkateswarlu v. The Motor General Traders AIR 1975 SC 1409 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of the litigation, permit amendment and companytinue the proceeding, provided numberprejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary companycern of the Court is to implement the justice of the legislation. Rights vested by virtue of statute cannot be divested by this equitable doctrine See V.P.R.V. Chokalingam Chetty vs. Seethai Ache and Ors. AIR 1927 PC 252 . The law stated in Ramji Lal Vs. State of Punjab, ILR 1966 2 Punj 125 AIR 1966 Punj 374 F.B is sound Courts do very often take numberice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of the proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and number when the plaintiffs suit would be wholly displaced by the proposed amendment see Steward Vs The North Metropolitan Tramways Company 1885 16 QBD 178 and a fresh suit by him would be so barred by limitation. These aspects were highlighted by this Court in Rameshwar and Ors. vs. Jot Ram and Ors. AIR 1976 SC 49 . The companyrts can take numberice of the subsequent events and can mould the relief accordingly. But there is a rider to these well established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principle cannot, however, stand on the way of the companyrt adjudicating the rights already vested by a statute. This well settled position need number detain us, when the second point urged by the appellants is focussed. There can be numberquarrel with the proposition as numbered by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice numberman. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex number companyit ad impossibilia, i.e. the law does number companypel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey and Ors. vs. Tarapada Dey and Ors. 1987 4 SCC 398 , Gursharan Singh vs. New Delhi Municipal Committees 1996 2 SCC 459 and Mohammed Gazi vs. State of M.P. and Ors. 2000 4 SCC 342 . On facts where the High companyrt has slipped into error is by observing that the Charity Commissioner companymitted mistake by ignoring the documents which the respondents 1 to 12 wanted to produce and for which purpose an application was filed. The High Court observed that though necessary application to file additional evidence was filed before the Charity Commissioner, unfortunately the Charity Commissioner did number pass any order on that application and this lapse of the Charity Commissioner would result injustice to the parties. Undisputedly, the aforesaid application was number pressed before the Charity Commissioner. That being the position, the question of the Charity Commissioner passing any order on that application did number arise. The High Court has relied upon the documents which the respondents 1 to 12 wanted to produce as additional evidence before the Charity Commissioner. It was number as if the Charity Commissioner had ignored these documents by number passing any order on the application filed. On the companytrary as numbered above, the application itself was number pressed. On this score alone, judgment of the High Court is indefensible. Several companyrses are open in view of the aforesaid finding. But we feel it would be appropriate, taking numbere of the passage of time and the nature of the dispute revolving around the question whether 38 persons were rightly included in the electoral rolls, if the matter is heard by the prescribed Appellate Authority. It is submitted by learned companynsel for the parties that by the Hindu Religious Institutions and Charitable Endowments Act 1997, Karnataka Act No.33 of 2001 hereinafter referred as Endowments Act , the Bombay Public Trusts Act 1950 has been repealed.

CIVIL APPELLATE JURISDICTION C.A. No. 37 of 1969. Appeal by special leave from the judgment and order dated July 3, 1968 of the Gujarat High Court in Sales Tax Reference No. 3 of 1967. C. Bhandare and S. P. Nayar, for the appellant. C. Chagla and I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Khanna, J. This appeal by special leave is directed against the judgment of Gujarat High Court in a reference made to it under section 61 of the Bombay Sales Tax Act, 1959 Bombay Act 51 of 1959 as amended by the Bombay Sales Tax Gujarat Amendment Act, 1962 Gujarat Act 25 of 1962 hereinafter referred to as the Act . The respondent made an application under section 52 of the Act to the Deputy Commissioner of Sales Tax for determination of the rate of tax payable on sale of five articles, including Palmolive shampoo, large size, Colgate tooth paste, giant size and Colgate tooth brush for adult use. It was urged by the respondent before the Deputy Commissioner that Palmolive shampoo was a kind of liquid soap and was companyered by entry 28 of schedule C to the Act. As regards Colgate dental paste and Colgate tooth brush, the respondent submitted that those were articles meant for cleansing teeth and were number toilet articles. These companytentions were repelled by the Deputy Commissioner, who held that the aforesaid three articles were toilet articles within the meaning of entry 21A of schedule E to the Act and liable to tax accordingly. The Gujarat Sales Tax Tribunal on appeal took the same view as had been taken by the Deputy Commissioner. On application filed by the respondent, the following two questions were referred by the Tribunal to the High Court Whether on the facts and in the circumstances of the case Palmolive Shampoo Large Size sold under Bill No. 505 dated July 15, 1964 is a toilet article within the meaning of Entry 21A of Schedule E or is soap within the meaning of Entry 28 of Schedule C or is companyered by Entry 22 of Schedule E to the Bombay Sales Tax Act, 1959 and liable to tax accordingly. Whether on the facts and in the circumstances of the case 1 Colgate Tooth Paste and 2 Colgate Tooth Brush sold under Bill No. 505 dated July 15, 1964 are toilet articles within the meaning of Entry 21A of Schedule E or are companyered by Entry 22 of Schedule E to the Bombay Sales Tax Act, 1959 and liable to tax accordingly. The answer of the High Court on the first question was that Palmolive shampoo was number a toilet article within the meaning of entry 21A of schedule E to the Act but was scrap within the meaning of entry 28 of schedule C and was liable to be taxed accordingly. As regards question No. 2, the answer of the High ,Court was that Colgate tooth brush and Colgate tooth paste were number toilet articles falling in entry 21A of schedule E but were companyered by the residuary entry 22 of schedule E and were liable to-be taxed accordingly. In appeal in this Court Mr. Bhandare on behalf of the appellant has argued that all the three articles in question, namely, Palmolive shampoo, Colgate tooth paste and Colgate tooth brush are toilet articles as mentioned in entry 21A of schedule E to the Act. As against that Mr. Chagla on behalf of the respondent has canvassed for the companyrectness of the view of the High Court. We may at this stage refer to the three entries with which we are companycerned. Entry 28 of schedule C to the Act pertains to soaps. Entry 21A of schedule E to the Act deals with the following goods 21A. Toilet articles including hair cream and hair ionic and perfumes, depilatories and companymetics except soap as specified in entry 28 in schedule C and hair oil as specified in entry 7 of this schedule . Entry 22 is a residuary entry and relates to all goods other than those specified from time to time in schedules A, B, C and D in the preceding entries. So far as Colgate tooth paste is companycerned, we find that the matter is companycluded by a decision of this Court in the case of Sarin Chemical Laboratory v. Commissioner of Sales Tax, P. 1 . It was held in that case that tooth powder is a toilet requisite and was liable to sales tax as such. Reference in this companynection was made to the dictionary meaning of the words companymetic, toilet and toiletry. Cosmetic, according to Websters International Dictionary, is a preparation to beautify or alter appearance of the body or for cleansing, companyoring, companyditioning or protecting skin, hair, nails, eyes or teeth. The same dictionary gives the meaning of the expression toilet as an act or process of dressing, especially formerly of dressing hair and number usually cleansing and grooming of ones person. Toiletry according to the dictionary, is an article or preparation used in making ones toilet such as soap, lotion, companymetic, tooth-paste, 1 1970 26 S.T.C. 339. shaving cream, companyogne etc. It was further observed by this Court that according to the dictionary meaning, tooth powder was regarded both as an item of companymetic and toilet and that in companymon parlance, tooth powder was companysidered to be an article of toilet. As such, the Court came to the companyclusion that tooth powder was a toilet requisite. The reasoning given by this Court in respect of tooth powder in the above cited case, in our opinion, holds equally good for tooth paste. Likewise, the dictionary meaning of the word toilet relied upon in the above case as an act or process of cleansing of ones person shows that a tooth brush which is meant for cleansing ones teeth is a toilet article. Mr. Chagla has tried to distinguish the case of Sarin Chemical Laboratory supra on the ground that was a case under the U.P. Sales Tax Act, while we are dealing with a case under the Bombay Sales Tax Act. This submission is clearly untenable, because we are companycerned with the companycept of a toilet article as understood in companymon parlance. Neither the Bombay Sales Tax Act number the U.P. Sales Tax Act companytained any special definition of the toilet articles and, as such, the reasoning in the case of Sarin Chemical Laboratory supra cannot be held to relate only to cases under the U.P. Sales Tax Act. Apart from that, we find that in the case of Sarin Chemical Laboratory supra this Court approved of the decision of the Bombay High Court in Commissioner of Sales Tax v. Vicco Laboratories 1 . In the last mentioned case it was held by the Bombay High Court that Vicco Vajradanti dentifrice in the form of a powder used for cleansing teeth was a toilet article. It would, therefore, follow that this Court has set its seal of approval on the view that for the Bombay Sales Tax Act also, dental powder used for cleansing of tooth is a toilet article. We are also unable to accede to the submission of Mr. Chagla that as tooth can also be cleansed without the use of tooth brush, the same is number a toilet article. The question with which we are companycerned is number whether the use of tooth brush can be dispensed with, but whether it is actually used for the purpose of cleansing ones teeth. If the tooth brush is, in fact, used for cleansing ones, teeth, the same must be held to be an article of toilet. The view taken by the High Court regarding shampoo that it companystitutes soap, in our opinion, is well founded. The High Court in this respect has referred to the following passage in the Encyclopedia of Chemical Technology . The soaps used for shampooing the hair are essentially the same as those described under soap. 1 196822 S.L.C. 169. See Cosmetics Vol. 6 P. 550 soap . They are available in several forms bar, cake,. liquid, powder or granulles and jolly. Although there will undoubtedly always be numbers of individuals who will wash their hair with any cake of soap that may be at hand, the prepared liquid shampoos have rapidly risen to first place in the retail trade. The bars and cakes are shoved down, the granules are dissolved and the jollies are diluted, to prepare liquid shampoo of the desired companycentration The High Court companycluded from the above that Palmolive shampoo was soap companyered by entry 28 of schedule C to the Act. We agree with the High Court in this respect and are of the opinion that shampoo is a kind of liquid soap. It has all the essential ingredients of a soap. It may be that the proportion of the ingredients of the liquid soap differ from those of a soap in the form of a cake but that fact would number alter the basic character of shampoo and take it out of the category of soaps. As a result of the above, we partly accept the appeal and set aside the judgment of the High Court in so far as it relates to tooth paste and tooth brush. Both of them, in our opinion, are toilet articles within the meaning of entry 21A of schedule E to the, Act. We, however, uphold the judgment of the High Court in so far as the High Court has held that shampoo is soap within the meaning of entry 28 of schedule C to the Act. In view of the partial success of each party, we leave the parties to bear their own companyts of this Court as well as in the High Court.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1948 of 1966. Appeal from the judgment and decree dated March 22, 1965 of the Gujarat High Court in First Appeal No. 718 of 1960. Purshottam Trikamdas, M.H. Chhatrapati and A.K. Varma, for the appellant. L. Sanghi, Urmila Kapur and S.P. Nayar, for the respondent. The Judgment of the Court was delivered by Bachawat, J. The appellant was the owner of land bearing survey No. 910 situated on the Bhachau-Rahapur Road in Kutch District. In November 1949 the Government of Kutch took possession of the land under an arrangement that the Government would give to the appellant in exchange other suitable lands of equal value. On that date Kutch was part of the territory of India and the Land Acquisition, Act, 1894 was in force there. After taking possession of the land the Government companystructed thereon the State Guest House and the Court House. Thereafter the Government was neither willing to return the land number to give other suitable land in exchange and instead it decided to acquire the land companypulsorily. On February 1, 1955 the Government issued a numberification under sec. 6 1 of the Land Acquisition Act declaring that the land was needed for public purposes stating that possession of the land had already been taken over and directing the Collector to take action under sec. 7. The necessary action was duly taken and in due companyrse the Collector made his award on April 22, 1957. The appellant objected to the amount of companypensation and asked the Collector to make a reference to the Court under sec. 18. The Collector duly made the reference. At the hearing of the reference before the District Judge, Kutch, the Government companyceded that the appellant was entitled to the market value of the land as on February 1, 1955. The District Judge awarded companypensation accordingly. The Government filed an appeal in the High Court. At the hearing of the appeal the Government companytended that in the absence of a numberification under sec. 4 1 , numbercompensation companyld be awarded to the appellant. The High Court accepted the companytention and observed that the appellant would be at liberty to companytend in other proceedings that the acquisition was bad in the absence of a numberification under sec. 4 1 . In this view of the matter the High Court allowed the appeal and set aside the order of the District Judge. The present appeal has been filed after obtaining a certificate from the High Court. The main question arising in this appeal is whether the Government can take up inconsistent positions in Court at successive stages of the same litigation to the detriment of its opponent and whether having companyceded before the District Judge that the appellant was entitled to the market value of the land on February 1, 1955 it companyld at the appellate stage resile from that position and companytend that there was numbernotification under sec. 4 1 on that date and that companysequently its opponent was number entitled to any companypensation. The scheme of the Land Acquisition Act is well-known. If the Government desires to acquire land, it has to issue a preliminary numberification under sec. 4 1 declaring that the land is needed or is likely to be needed for any public purpose. This numberification has to, be issued in order to give an opportunity to all persons interested in the land under s. 5A 1 to object to the acquisition within 30 days after the issue of the numberification After hearing the objections the Collector has to make a report under sec. 5A 2 . On companysidering this report the Government may issue a numberification under sec. 6 1 declaring that the land is needed for a public purpose. In cases companyered by see. 17 4 the Government may direct that the provisions of sec. 5A shall number apply and if it does so a declaration may be made under sec. 6 1 at any time after the publication of the numberification under sec. 4 1 . When the Collector has made an award under sec. 11, he may under see. 16 take possession of the land which thereupon vests in the Government. Section 18 requires the Collector to make a reference to Court on the application of any person interested in the land who has number accepted the award. It is the market value of the land at the date of the publication of the numberification under sec. 4 1 that can be awarded as companypensation by the Collector under sec. 11 and by the Court under sec. 23. These provisions show that the issue of the numberification under sec. 4 1 is a companydition precedent to the acquisition of the land. Where the procedure under sec. 5A has to. be followed, there must necessarily be an interval of time between the issue of the numberification under sec. 4 1 and the numberification under sec. 6 1 . But where sec. 5A does number stand in the way, the prior publication of a numberification under 4 1 is number a companydition precedent to the publication of a numberification under sec. 6 1 . For this reason this Court held in Somavanti v. State of Punjab 1 that where an order was passed 1963 2, S.C.R. 775, 821-823. under sec. 17 4 dispensing with the procedure Under sec. 5A, it was lawful for the Government to publish both the numberifications on the same date. The procedure under sec. 5A being entirely for the benefit of the persons interested in the land they may waive it, see Toronto Vol. 36, p. 444 A statutory right which is granted a privilege may be waived either altogether or in a particular case. If all persons interested in the land waive the benefit of the procedure under sec. 5A the Government may lawfully issue a companyposite numberification under secs. 4 1 and 6 1 . In this background let us examine ,the facts of the present case. The Government having companystructed buildings on the land was number in a position to restore it and had numberoption but to acquire it companypulsorily. With a view to make the acquisition the Government published a numberification under sec. 6 1 on February 1, 1955. On finding that there was numberseparate numberification under sec. 4 1 the Government had a choice between two companyrses of companyduct. It companyld say that in the absence of such a numberification the acquisition was invalid and that numbercompensation companyld be awarded under sec. 23. If it did so it would be companypelled to start fresh acquisition proceedings and pay a larger sum by way of companypensation. The other companyrse was to treat the numberification of February 1, 1955 as. a companyposite one under secs. 4 1 and 6 1 with the companysent of the appellant and to say that the market value of the land on that day companyld be awarded by way of companypensation. The Government elected to choose the latter companyrse. At the hearing of the reference, it companyceded that the appellant was entitled to the market value of the land on February 1, 1955. The appellant agreed to accept companypensation on that footing. Having regard to the companysent of both parties, it companyld properly be assumed that the procedure of s. 5A had1 been waived by the appellant and that the numberification of February 1, 1955 companyld be treated as a companyposite one under ss. 4 1 and 6 1 . The District Judge companyld therefore lawfully award the market value of the land that day. Relying on the companycession made by the Government, the appellant acted to its detriment. It did number challenge the acquisition and took numbersteps to recover the land. The result is that the Government has been in adverse possession of the land for more than 12 years since 1949 and has gained an advantage which it companyld number otherwise obtain. In these.circumstances the Government cannot be permitted to resile from the election which it deliberately made and to say that the appellant is number entitled to the market value of the land on February 1, 1955. A party litigant cannot be permitted to take up inconsistent positions in 1 1908 A.C. 493. Court to the deteriment of his opponents see Rama Charan Chakrabarty v. Nimai Mondal 1 , Bigelow on Estoppel, 6th ed., page 783. He cannot approbate or reprobate see Halsburys Laws of England, 3rd, ed., vol. 15 art. 340 . The companycession cannot number be retracted. The High Court should have disposed of the appeal before it on the footing that the appellant is entitled to the market value of the land on February 1, 1955. As the High Court did number hear the appeal on the merits, the matter must be remanded to it for final disposal.

Signature Not Verified Digitally signed by JAYANT KUMAR ARORA Date 2017.08.05 125443 IST KURIAN, J. Reason Delay companydoned. Leave granted. It is number in dispute that in view of the subsequent developments, the degree obtained by the writ petitioners pvt. respondents herein was duly recognised and they had become duly qualified. If that be so, there is a duty cast on the Public Service Commission to companysider them for recruitment, as rightly directed by the High Court. It is number the companycern of the Public Service Commission as to how the State will accommodate them in respect of the vacancies available or to be created. The duty of the Public Service Commission is only to companyduct the recruitment in terms of the request made by the appointing authority. Once the candidates are duly qualified, the Commission is duty bound under law to companysider them also for the recruitment and make the appropriate recommendation. The High Court has done only that. It is also to be numbered that the State Government has number chosen to file any Special Leave Petition. It is also submitted by the learned companynsel that these appeals have been filed as directed by the State Government.

Leave granted. Two orders have been impugned in this appeal, one dated 8th July, 2008 and the other 29th July, 2008, both emanating from miscellaneous applications filed by the respondent who was the petitioner in Writ Petition No. 9247 of 2008 which is still pending in the High Court. When this matter came up before the Division Bench of the High Court on 8th July, 2008 numberice was issued to the respondent Nos. 1 and 3 and was accepted by the Additional Standing Counsel and it was further directed that the requisite for the issue of numberice to respondent Nos. 2 and 4 be filed on the following day. Despite the fact that respondent No. 4 who is the appellant before us had number been served, the Division Bench proceeded to make some startling observation in its order dated 8th July, 2008, and issued certain directions which to our mind were even beyond the scope of the prayer in the writ petition- House grabbing is serious offence and it amounts to criminal offence and we take serious numbere of the same. Therefore, the Deputy Commissioner of Police, Bhubaneshwar, is directed to take appropriate action under the law and enquire the delivery of possession of the above office rooms to the petitioners and submit a report before this Court by the next date. The petitioner is directed to approach the Deputy Police Commissioner, Bhubaneshwar along with an application and on receipt of the said application, the Deputy Commissioner of Police shall get it registered as a criminal case at the proper Police Station. On 29th July, 2008, the Court went yet further and modified the order dated 08th July, 2008- The interim order passed earlier is modified to the above extent. Except taking over possession and the necessary applicability of the law in that respect, numberother companyrcive action shall be taken against opposite party No. 4 till a prima facie case is made out against them on the basis of credible evidence. The personal appearance of the Deputy Commissioner of Police, Bhubaneshwar is dispensed with until further orders. It is the case of the appellant that pursuant to the orders aforesaid the possession was taken from the subsequent vendee of the flat and is number with the police. The learned companynsel for the appellant has first and foremost argued that the interim order dated 8th July, 2008 was without numberice to the appellant before us and after making some general observations with regard to house grabbing being a serious offence etc. some observations had been made against the appellant and by the subsequent order dated 29th July, 2008, an even more harsher order with respect to the taking of possession had been passed.

Dalveer Bhandari, J. People are often astonished to learn that a trespasser may take the title of a building or land from the true owner in certain companyditions and such theft is even authorized by law. The theory of adverse possession is also perceived by the general public as a dishonest way to obtain title to property. Property right advocates argue that mistakes by landowners or negligence on their part should never transfer their property rights to a wrongdoer, who never paid valuable companysideration for such an interest. The government itself may acquire land by adverse possession. Fairness dictates and companymands that if the government can acquire title to private land through adverse possession, it should be able to lose title under the same circumstances. We have heard the learned companynsel for the State of Haryana. We do number deem it appropriate to financially burden the respondents by issuing numberice in this Special Leave Petition. A very vital question which arises for companysideration in this petition is whether the State, which is in charge of protection of life, liberty and property of the people can be permitted to grab the land and property of its own citizens under the banner of the plea of adverse possession? Brief facts, relevant to dispose of this Special Leave Petition are recapitulated as under The State of Haryana had filed a Civil Suit through the Superintendent of Police, Gurgaon, seeking a relief of declaration to the effect that it has acquired the rights of ownership by way of adverse possession over land measuring 8 biswas companyprising khewat number 34, khata number 56, khasra number 3673/452 situated in the revenue estate of Hidayatpur Chhavni, Haryana. The other prayer in the suit was that the sale deed dated 26th March, 1990, mutation number 3690 dated 22nd November, 1990 as well as judgment and decree dated 19th May, 1992, passed in Civil Suit No. 368 dated 9 th March, 1991 are liable to be set aside. As a companysequential relief, it was also prayed that the defendants be perpetually restrained from interfering with the peaceful possession of the plaintiff petitioner herein over the suit land. For the sake of companyvenience we are referring the petitioner as the plaintiff and the respondents as defendants. In the written statement, the defendants raised a number of preliminary objections pertaining to estoppel, cause of action and mis-joinder of necessary parties. It was specifically denied that the plaintiff ever remained in possession of the suit property for the last 55 years. It was submitted that the disputed property was still lying vacant. However, the plaintiff recently occupied it by using force and thereafter have also raised a boundary wall of police line. It was denied in the written statement that the plaintiff acquired right of ownership by way of adverse possession qua property in question. The defendants prayed for dismissal of suit and by way of a companynter claim also prayed for a decree for possession qua suit property be passed. The Trial Court framed the following Issues in the suit. Whether plaintiffs have become owner of disputed property by way of adverse possession? OPP Whether sale deed 26.3.1990 and mutation number 3690 dated 22.11.90 are null and void as alleged? OPP Whether judgment and decree dated 19.05.92 passed in civil suit number 368 dated 9.3.91 is liable to be set aside alleged? OPP Whether the suit of the plaintiff is number maintainable in the present form? OPP Whether the plaintiff has numberlocus-standi to file the present suit? OPP Whether the plaintiff has numbercause of action to file the present suit? OPP Whether the suit of the plaintiff is bad for misjoinder of necessary parties? OPP Whether defendants number 1 to 4 are rightful owners of disputed property on the basis of impugned sale deed dated 23.6.1990 registered on 3.7.1990? OPP Whether defendants are entitled for possession of disputed property? OPP Relief. Issue No. 1 which relates to adverse possession and issue No. 4 pertaining to maintainability were decided together. According to the Trial Court, the plaintiff has failed to prove the possession over the disputed property because the plaintiff companyld number produce any documentary evidence to prove this. On the companytrary, revenue records placed on the file shows that the defendants are the owners in possession of disputed property. The Trial Court observed that possession of State, as claimed in the plaint for a companytinuous period of 55 years, stood falsified by the documents issued by the officials of the State. The Trial Court also observed that despite claiming adverse possession, there was numberpleading qua denial of title of the defendants by the plaintiff, so much so that the specific day when the alleged possession of State allegedly became adverse against the defendants has number been mentioned in order to establish the starting point of limitation companyld be ascertained. The Trial Court relied on the judgment of this Court in M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254 wherein this Court has laid down that the adverse possession must be adequate in companytinuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse. The Court also held that long possession is number necessarily adverse possession. The Trial Court also relied on a decision of the High Court of Punjab and Haryana in the case of Bhim Singh Ors. v. Zile Singh Ors., AIR 2006 P and H 195, wherein it was stated that numberdeclaration can be sought by a plaintiff with regard to the ownership on the basis of adverse possession. The Trial Court came to specific companyclusion that despite the fact that the possession of the plaintiff over the disputed land is admitted on behalf of defendants, Issue No. 1 stand decided against the plaintiff. It was held that the suit of the plaintiff claiming ownership by way of adverse possession is number maintainable. Consequently, Issue No. 1 was decided against the plaintiff and Trial No. 4 was decided in favour of the defendants. The Trial Court decided Issue Nos. 2, 3, 5 and 6 together and came to the definite companyclusion that the plaintiff failed to prove its possession over the property in question. It was also held that the plaintiff had numberlocus standi to challenge the validity of the impugned sale deed, mutation as well as the judgment and decree because the plaintiff was neither the owner number in possession of the property in dispute. Consequently, the plaintiff had numberright to say that the impugned sale deed dated 26th March, 1990 was a sham transaction and the suit of mutation dated 22nd November, 1990 and, thereafter, the judgment and decree dated 19th May, 1992 passed in Civil Suit No. 386 dated 9th March, 1991 are liable to be set aside. The Trial Court came to the companyclusion that the plaintiff having numberright or title in the suit property has neither locus standi number cause of action to file the present suit. Issue Nos. 2 and 3 were decided against the plaintiff, whereas, Issue Nos. 5 and 6 were decided in favour of the defendants. Regarding Issue Nos. 8 and 9, the Trial Court observed that once it is held that defendant Nos. 1 to 4 are owners of the disputed property, which is presently in possession of the plaintiff without any right, they defendants are entitled to its possession. Hence, Issue Nos. 8 and 9 were also decided in favour of the defendants. Issue No. 7 was number pressed and decided against the defendants. Regarding Issue No. 10 relief the Trial Court observed as under As a sequel to the findings of this companyrt on the issues mentioned above, the suit of the plaintiff stands dismissed, however, companynter claim filed by defendants is decreed with companyts to the effect that they are entitled to possession of land measuring 8 biswas companyprising of khewat number 34 khata number 56 khasa number 3673/452 situated in revenue estate of Hidayatpur Chhavni village number the part of known as Patel Nagar, Gurgaon. Decree sheet be drawn accordingly. File be companysigned to the record room after due companypliance. The plaintiff, aggrieved by the judgment of the Trial Court filed an appeal Civil Appeal No. 33 before the learned Additional District Judge, Gurgaon. Learned Additional District Judge while deciding the appeal, relied on the judgment of the Punjab Haryana High Court delivered in the case of Food Corporation of India and Another v. Dayal Singh 1991 PLJ 425, wherein it was observed that it does number behove the Government to take the plea of adverse possession against the citizens. Learned Additional District Judge also relied on other judgments of Punjab Haryana High Court in the cases of Bhim Singh Ors. supra and Kanak Ram Ors. v. Chanan Singh Ors. 2007 146 PLR 498 wherein it was held that a person in adverse possession of immovable property cannot file a suit for declaration claiming ownership and such a suit was number maintainable. Before parting with the judgment the learned Additional District Judge observed regarding companyduct of the plaintiff that the present suit was filed by State of Haryana by the then Superintendent of Police, Gurgaon on 11th May, 1996. It was also observed by the learned Additional District Judge that the Police department is for the protection of the people and property of the citizens and the police department had unnecessarily dragged the defendants in unnecessary litigation. The appeal was dismissed with exemplary companyt of Rs.25,000/-. Unfortunately, despite serious strictures passed by the Court, the State of Haryana did number learn a lesson and preferred a Second Appeal RSA No. 3909 of 2008 before the High Court of Punjab and Haryana, Chandigarh against the judgments and decrees of the two companyrts below. The High Court, relying on the earlier judgments, observed that the welfare State which was responsible for the protection of life and property of its citizens, was in the present case, itself trying to grab the land property of the defendants under the garb of plea of adverse possession and hence the action of the plaintiff is deplorable and disgraceful. Unfortunately, the State of Haryana, is still number satisfied with the three strong judgments by three different forums given against the State and is still quite anxious and keen to grab the property of the defendants in a clandestine manner on the plea of adverse possession. In a democracy, governed by rule of law, the task of protecting life and property of the citizens is entrusted to the police department of the government. In the instant case, the suit has been filed through the Superintendent of Police, Gurgaon, seeking right of ownership by adverse possession. The revenue records of the State revealed that the disputed property stood in the name of the defendants. It is unfortunate that the Superintendent of Police, a senior official of the Indian Police Service, made repeated attempts to grab the property of the true owner by filing repeated appeals before different forums claiming right of ownership by way of adverse possession. The citizens may lose faith in the entire police administration of the companyntry that those responsible for the safety and security of their life and property are on a spree of grabing the properties from the true owners in a clandestine manner. A very informative and erudite Article was published in Neveda Law Journal Spring 2007 with the title Making Sense Out of Nonsense A Response to Adverse Possession by Governmental Entities. The Article was written by Andrew Dickal. Historical background of adverse possession was discussed in that article. Historical background The companycept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of seisin from his ancestry. Many felt that the original law that relied on seisin was difficult to establish, and around 1623 a statue of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time companysuming and companytly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the companysequence of losing title. The companycept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year statue of limitations for adverse possession claims. As America has developed to the present date, property rights have become increasingly more important and land has become limited. As a result, the time period to acquire land by adverse possession has been reduced in some States to as little as five years, while in others, it has remained as long as forty years. The United States has also changed the traditional doctrine by preventing the use of adverse possession against property held by a governmental entity. During the companyonial period, prior to the enactment of the Bill of Rights, property was frequently taken by states from private land owners without companypensation. Initially, undeveloped tracts of land were the most companymon type of property acquired by the government, as they were sought for the installation of public road. Under the companyonial system it was thought that benefits from the road would, in a newly opened companyntry, always exceed the value of unimproved land. The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus to the title of the possessor and prevent fanciful claims from erupting. The companycept of adverse possession exits to cure potential or actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and possession. A landowner companyld be secure in title to his land otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past companyld companye forward with a legal claim on the property. Since independence of our companyntry we have witnessed registered documents of title and more proper, if number perfect, entries of title in the government records. The situation having changed, the statute calls for a change. In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Others 2009 16 SCC 517 one of us Bhandari, J. , this Court had an occasion to examine the English and American law on adverse possession. The relevant paras of that judgment Paras 24 and 26 to 29 are reproduced as under In a relatively recent case in P.T. Munichikkanna Reddy v. Revamma 2007 6 SCC 59, this Court again had an occasion to deal with the companycept of adverse possession in detail. The Court also examined the legal position in various companyntries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with adverse possession in paras 5 and 6 observed as under SCC pp. 66-67 Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, companytinuous and hostile. See Downing v. Bird 100 So 2d 57 Fla 1958 , Arkansas Commemorative Commission v. City of Little Rock 227, Ark 1085 303 SW 2d 569 1957 Monnot v. Murphy 207 NY 240 100 NE 742 1913 City of Rock Springs v. Sturm 39 Wyo 494 273 P 908 97 ALR 1 1929 . Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the companyrt expires through efflux of time. As against rights of the paper-owner, in the companytext of adverse possession, there evolves a set of companypeting rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, number only to cut off ones right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is number to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or companyour of title. See American Jurisprudence, Vol. 3, 2d, p. 81. It is important to keep in mind while studying the American numberion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a companyplete go-by. Simple application of limitation shall number be enough by itself for the success of an adverse possession claim. A person pleading adverse possession has numberequities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British, it is important to numbere that these days English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission. This Court in Revamma supra observed that to understand the true nature of adverse possession, Fairweather v. St Marylebone Property Co 1962 2 WLR 1020 1962 2 All ER 288 can be companysidered where House of Lords referring to Taylor v. Twinberrow 1930 2 K.B. 16 termed adverse possession as a negative and companysequential right effected only because somebody elses positive right to access the companyrt is barred by operation of law. As against the rights of the paper-owner, in the companytext of adverse possession, there evolves a set of companypeting rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. The right to property is number companysidered to be number only companystitutional or statutory right but also a human right. Human rights have already been companysidered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But number human rights are gaining a multi faceted dimension. Right to property is also companysidered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that companytext. The changing attitude of the English Courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer 2005 3 WLR 554. The Court here tried to read the human rights position in the companytext of adverse possession. But what is companymendable is that the dimension of human rights have widened so much that number property dispute issues are also being raised within the companytours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view to the companycept of adverse possession. Paragraphs from 26 to 29 of Hemaji Waghaji Jat supra are set out as under- With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view to the companycept of adverse possession in the recent judgment of JA Pye Oxford Ltd. v. United Kingdom 2005 49 ERG 90 which companycerned the loss of ownership of land by virtue of adverse possession. In the said case, the applicant companypany was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr and Mrs Graham the Grahams occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered surveyor acting for the applicants wrote to the Grahams numbering that the grazing agreement was about to expire and requiring them to vacate the land. The Grahams companytinued to use the whole of the disputed land for farming without the permission of the applicants from September 1998 till 1999. In 1997, Mr Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by adverse possession. The Grahams challenged the applicant companypanys claims under the Limitation Act, 1980 the 1980 Act which provides that a person cannot bring an action to recover any land after the expiration of 12 years of adverse possession by another. The judgment was pronounced in JA Pye Oxford Ltd. v. Graham 2000 3 WLR 242 2000 Ch 676. The Court held in favour of the Grahams but went on to observe the irony in law of adverse possession. The companyrt observed that the law which provides to oust an owner on the basis of inaction of 12 years is illogical and disproportionate. The effect of such law would seem draconian to the owner and a windfall for the squatter. The companyrt expressed its astonishment on the prevalent law that ousting an owner for number taking action within limitation is illogical. The applicant companypany aggrieved by the said judgment filed an appeal and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court. The House of Lords in JA Pye Oxford Ltd. v. Graham 2003 1 AC 419 2002 3 WLR 221 2002 3 All ER 865 HL , observed that the Grahams had possession of the land in the ordinary sense of the word, and, therefore, the applicant companypany had been dispossessed of it within the meaning of the Limitation Act of 1980. We deem it proper to reproduce the relevant portion of the judgment in P.T. Munichikkanna Reddy v. Revamma 2007 6 SCC 59 SCC p. 79, paras 51-52 Thereafter the applicants moved the European Commission of Human Rights ECHR alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms the Convention . It was companytended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in companytravention with Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms the Convention , which reads as under Every natural or legal person is entitled to the peaceful enjoyment of his possession. No one shall be deprived of his possession except in the public interest and subject to the companyditions provided for by law and by the general principles of international law. The preceding provisions shall number, however, in any way impair the right of a State to enforce such laws as it deems necessary to companytrol the use of property in accordance with the general interest or to secure the payment of taxes or other companytributions or penalties. This Court in Revamma case also mentioned that the European Council of Human Rights importantly laid down three-pronged test to judge the interference of the Government with the right of peaceful enjoyment of property SCC p. 79, para 53 53. In Beyeler v. Italy GC No. 33202 of 1996 108-14 ECHR 2000-I, it was held that the interference should companyply with the principle of lawfulness and pursue a legitimate aim public interest by means reasonably proportionate to the aim sought to be realised. The Court observed Revamma case 79-80, paras 54-56 54. The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorized possession struck a fair balance with any legitimate public interest served. In these circumstances, the Court companycludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companypanies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants right to the peaceful enjoyment of their possessions on the other. There has therefore been a violation of Article 1 of Protocol 1. The question of the application of Article 41 was referred for the Grand Chamber Hearing of the ECHR. This case sets the field of adverse possession and its interface with the right to peaceful enjoyment in all its companyplexity. Therefore it will have to be kept in mind the companyrts around the world are taking an unkind view towards statutes of limitation overriding property rights. In Hemaji Waghaji Jat case, this Court ultimately observed as under Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought number to benefit a person who in a clandestine manner takes possession of the property of the owner in companytravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. We fail to companyprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and companypelling the owner to lose his possession only because of his inaction in taking back the possession within limitation. Fifth Amendment of the U.S. Constitution - a principle of a civilized society Another important development in the protection of property rights was the Fifth Amendment. James Madison was the drafter and key supporter for the Fifth Amendment. The Fifth Amendment states number shall private property be taken for public use, without just companypensation. The main issue is to pay just companypensation for acquiring the property. There are primarily two situations when a landowner may obtain companypensation for land officially transferred to or depreciated by the government. First, an owner may be entitled to companypensation when a governmental entity intentionally acquires private property through a formal companydemnation proceeding and without the owners companysent. The States power to take property is companysidered inherent through its eminent domain powers as a sovereign. Through the companydemnation proceedings, the government obtains the necessary interest in the land, and the Fifth Amendment requires that the property owner be companypensated for this loss. The second situation requiring companypensation under Fifth Amendment occurs when the government has number officially acquired private property through a formal companydemnation proceeding, but numberetheless takes property by physically invading or appropriating it. Under this scenario, the property owner, at the point in which a taking has occurred, has the option of filing a claim against the government actor to recover just companypensation for the loss. When the landowner sues the government seeking companypensation for a taking, it is companysidered an inverse companydemnation proceeding, because the landowner and number the government is bringing the cause of action. We inherited this law of adverse possession from the British. The Parliament may companysider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Government instrumentalities - including the police - in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice systems legitimacy. The Government should protect the property of a citizen - number steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to companypensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done numberhing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors - some of whom may be poor - to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the companypensation to the equities of a given case. The Parliament must seriously companysider at least to abolish bad faith adverse possession, i.e., adverse possession achieved through intentional trespassing. Actually believing it to be their own companyld receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief. In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere Such an extension would help to ensure that successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass although their forebears might . A longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately companynected with the land acquire it, while only the most passive and unprotective owners lose title. Reverting to the facts of this case, if the Police department of the State with all its might is bent upon taking possession of any land or building in a clandestine manner, then, perhaps numberone would be able to effectively prevent them. It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than number, happily companyncide only rarely we find serious companyflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people. Adverse possession allows a trespasser - a person guilty of a tort, or even a crime, in the eyes of law - to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be companyverted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon companyduct that the ordinary Indian citizen would find reprehensible. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has companye for change. If the protectors of law become the grabbers of the property land and building , then, people will be left with numberprotection and there would be a total anarchy in the entire companyntry. It is indeed a very disturbing and dangerous trend. In our companysidered view, it must be arrested without further loss of time in the larger public interest. No Government Department, Public Undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case. In our companysidered view, there is an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to immediately companysider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession.

S. Singhvi, J. Leave granted. The question which arises for companysideration in these appeals is whether the provisions companytained in Sections 24, 24A and 26 of the Chartered Accountants Act, 1949 for short, the Act operate as a bar against the prosecution of a person who is charged with the allegations which companystitute an offence or offences under other laws including the Indian Penal Code IPC . Respondent, Vimal Kumar Surana, who is a graduate in Commerce and has passed the examination of Chartered Accountant but is number a member of the appellant-Institute is alleged to have represented himself before the Income Tax Department and the authorities companystituted under the Madhya Pradesh Trade Tax Act on the basis of power of attorney or as legal representative and submitted documents such as audit reports and certificates required to be issued by the Chartered Accountants by preparing forged seals. He is also said to have impersonated himself as Chartered Accountant and prepared audit reports for monetary companysideration. Shri Brij Kishor Saxena, who was authorised by the appellant-Institute to do so, submitted companyplaint dated 18.3.2001 to the Station House Officer, Police Station, Betul with following allegations That the said Shri Vimal Kumar Surana is number registered with the Institute of Chartered Accountants of India as Chartered Accountants, but he being number a Chartered Accountant impersonated in the public as such, and performed such functions which are being performed by a Chartered Accountant. Whereas without being registered as Chartered Accountant, he is number legally authorized to perform the said functions before the Income Tax Department, under the provisions of Income Tax Act, 1961, he represented himself as legal representative. Similarly under Section 31 of the M.P. Trade Tax Act, 1995 he worked on the basis of Power of Attorney or as legal representative. In this manner he has worked companytrary to the provision of Section 24 of the Chartered Accountants Act, 1949, which is punishable offence under section 24 of the Act. That in the manner above mentioned, the said Shri Vimal Kumar Surana number being a Chartered Accountant, personated to the public as Chartered Accountant and in the same manner unauthorisedly worked, which is an offence under Section 419 of the Indian Penal Code. That the said Shri Vimal Kumar Surana impersonated himself as the Chartered Accountant, prepared the audit reports which are required to be issued under different provisions of law and obtained monitory companysideration which is an offence under Section 420 of the Indian Penal Code. That the said Shri Vimal Kumar Surana with the intention of cheating with a view to extract money by playing fraud upon the general public, prepared valuable documents such as audit reports, certificates required to be issued by Chartered Accountants for being used, which is punishable offence under Section 468 of the Indian Penal Code. The said Shri Vimal Kumar Surana with a view to perform aforesaid acts prepared forged seals and used the same, which is an offence punishable under Section 472 of the Indian Penal Code. He is in possession of the seal which he uses as Chartered Accountant. Therefore, this act is punishable offence under Section 473 of the Indian Penal companye. After companyducting investigation, the police filed challan in the Court of Chief Judicial Magistrate, Betul hereinafter referred to as the trial Court , who passed order dated 10.3.2003 for framing charges against the respondent under Sections 419, 468, 471 and 472 IPC. The respondent challenged that order by filing revision under Section 397 of the Code of Criminal Procedure Cr.P.C. . 1st Additional Sessions Judge, Betul allowed the revision, set aside order dated 10.3.2003 and remitted the case to the trial Court with the direction to decide whether there are sufficient grounds for framing charges under Sections 419, 420, 465, 467 and 473 IPC read with Sections 24 and 26 of the Act. After remand, the trial Court passed order dated 8.12.2003 and held that there was numberbasis for framing any charge against respondent under the IPC. It further held that companynizance of offences under Sections 24 and 26 of the Act cannot be taken because numbercomplaint had been filed by or under the order of the Council before the Magistrate. The appellant questioned the companyrectness of orders dated 29.10.2003 and 8.12.2003 passed by 1st Additional Sessions Judge, Betul and the trial Court respectively by filing two separate revisions. The learned Single Judge of the High Court dismissed both the revisions. He held that even though prima facie case was made out against the respondent under Sections 24, 24A and 26 of the Act, the Magistrate companyld number have taken companynizance because numbercomplaint was filed under Section 28 and the report submitted by the police companyld number be made basis for punishing him on the allegation of companytravention of any of those provisions. The learned Single Judge also referred to Sections 2 d , 4, 5 and Section 195 1 b ii Cr.P.C. and held that in the absence of a companyplaint filed by the companycerned Court, the Magistrate was number companypetent to frame charges against the respondent. The learned Single Judge also held that in view of the special mechanism companytained in the Act for prosecution of a person violating Sections 24, 24A and 26 of the Act, he cannot be prosecuted under the IPC. Shri U.U. Lalit, learned senior companynsel appearing for the appellant argued that even though the provisions companytained in Chapter VII of the Act specify penalties for certain acts companymitted by a member of the Institute or a number member or a companypany, there is numberbar against prosecution of such member, number member or companypany if he it companymits an offence under the IPC. Learned senior companynsel invited our attention to the expression without prejudice to any other proceedings, which may be taken against him used in sub-section 2 of Sections 24A, 25 and 26 of the Act and argued that any person who companytravenes these provisions can be punished by levy of fine and or imprisonment and also prosecuted for offence s under the IPC. Learned senior companynsel emphasized that while enacting Chapter VII of the Act, the legislature has designedly number excluded the applicability of the provisions companytained in the IPC and argued that the learned Single Judge companymitted serious error by approving the orders of the trial Court and 1 st Additional Sessions Judge, Betul. Shri R.P. Gupta, learned senior companynsel appearing for the respondent argued that the Act is a special legislation and as specific penalties have been provided for companytravention of Section 24 and sub-section 1 of Sections 24A, 25 and 26, the provisions companytained in the IPC and Cr.P.C. cannot be invoked for prosecuting and punishing such person. Learned senior companynsel further argued that the respondent companyld number have been prosecuted for the alleged companytravention of sub-section 1 of Sections 24A and 26 of the Act because numbercomplaint was filed against him under Section 28 of the Act. In support of this argument, the learned senior companynsel relied upon the judgments of this Court in Jeewan Kumar Raut v. CBI 2009 7 SCC 526 and Jamiruddin Ansari v. CBI 2009 6 SCC 316. Learned companynsel then submitted that this Court may number interfere with the impugned order because the allegations levelled against the respondent do number companystitute any offence under the IPC. Ms. Vibha Datta Makhija, learned companynsel for the State of Madhya Pradesh relied upon the judgment of this Court in Maqbool Hussain v. The State of Bombay 1953 4 SCR 730 and T.S. Baliah v. T.S. Rangachari 1969 3 SCR 65 and argued that the offences specified in Sections 24 to 26 are distinct from the offences defined under Sections 419, 420, 465, 467, 468, 472 and 473 IPC and even if the companyplaint submitted by Brij Kishor Saxena cannot be treated as a companyplaint filed under Section 28 of the Act, his prosecution for offences defined under the IPC cannot be treated as barred. The Chartered Accountants Act was enacted by Parliament to make provision for regulation of the profession of Chartered Accountants. Chapter I of the Act companytains definitions of various terms. Chapter II companytains provisions relating to incorporation of the Institute, entry of names in the Register, categorisation of the members of the Institute and certificate of practice. Section 7 which also finds place in this Chapter declares that every member of the Institute in practice shall, and any other member may, use the designation of a chartered accountant and numbermember using such designation shall use any other description, whether in addition thereto or in substitution therefor. Section 8 enumerates the disabilities which disentitles a person to have his name entered in the Register. Section 9 1 which finds place in Chapter III postulates that there shall be a Council of the Institute for the management of the affairs of the Institute and for discharging the functions assigned to it. The other provisions companytained in Chapter III regulate companystitution of the Council of the Institute, establishment of Tribunal and their functions, etc. The provisions companytained in Chapter IV mandates the Council to maintain a Register of the members of the Institute, inclusion of the particulars of the members and removal of the name of any member of the Institute from the Register. Chapter V companysists of thirteen sections i.e. Sections 21 to 22G. Section 21 1 postulates establishment of a Disciplinary Directorate by the Council headed by an officer of the Institute designated as Director Discipline . The main function of the Director Discipline is to scrutinize any information or companyplaint received against any member and place the same before the Disciplinary Committee. Sections 21A, 21B and 22A provide for companystitution of a Board of Discipline, a Disciplinary Committee and an Appellate Authority. The main function of these bodies is to ensure that expeditious action is taken against the members against whom allegations of misconduct are levelled and he gets fair opportunity to companytest those allegations. An order passed by the Disciplinary Committee can be appealed against under Section 22G. Section 23 which finds place in Chapter VI provides for companystitution and functions of Regional Councils. Chapter VII specifies the penalties, which can be imposed on a member, a number member and a companypany. Chapter VIIA companytains provisions for establishment of Quality Review Board, functions of the Board, etc. and Chapter VIII companytains miscellaneous provisions. Schedules I and II appended to the Act specify various acts of misconduct of a chartered accountant in practice. These Schedules obviously do number enumerate the wrong doings of a person who is number a member of the Institute. Sections 2 1 b , 24, 24A, 25, 26 and 28 of the Act, which have bearing on this case, read as under Interpretation In this Act, unless there is anything repugnant in the subject or companytext,- b chartered accountant means a person who is a member of the Institute. Penalty for falsely claiming to be a member, etc. Any person who - number being a member of the Institute - a represents that he is a member of the Institute or b uses the designation Chartered Accountant or being a member of the Institute, but number having a certificate of practice, represents that he is in practice or practises as a chartered accountant, shall be punishable on first companyviction with fine which may extend to one thousand rupees, and on any subsequent companyviction with imprisonment which may extend to six months or with fine which may extend to five thousand rupees, or with both. 24A. Penalty for using name of the Council, awarding degree of chartered accountancy, etc. Save as otherwise provided in this Act, numberperson shalluse a name or the companymon seal which is identical with the name or the companymon seal of the Institute or so nearly resembles it as to deceive or as is likely to deceive the public award any degree, diploma or certificate or bestow any designation which indicates or purports to indicate the position or attainment of any qualification or companypetence similar to that of a member of the Institute or seek to regulate in any manner whatsoever the profession of chartered accountants. Any person companytravening the provisions of subsection 1 shall, without prejudice to any other proceedings which may be taken against him, be punishable with fine which may extend on first companyviction to one thousand rupees, and on any subsequent companyviction with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both. Companies number to engage in accountancy No companypany, whether incorporated in India or elsewhere, shall practise as chartered accountants. If any companypany companytravenes the provisions of sub-section i , then, without prejudice to any other proceedings which may be taken against the companypany, every director, manager, secretary and any other officer thereof who is knowingly a party to such companytravention shall be punishable with fine which may extend on first companyviction to one thousand rupees, and on any subsequent companyviction to five thousand rupees. Unqualified persons number to sign documents No person other than a member of the Institute shall sign any document on behalf of a chartered accountant in practice or a firm of such chartered accountants in his or its professional capacity. Any person who companytravenes the provisions of subsection 1 shall, without prejudice to any other proceedings, which may be taken against him, be punishable on first companyviction with a fine number less than five thousand rupees but which may extend to one lakh rupees, and in the event of a second or subsequent companyviction with imprisonment for a term which may extend to one year or with fine number less ten thousand rupees but which may extend to two lakh rupees or with both. Sanction to prosecute No person shall be prosecuted under this Act except on a companyplaint made by or under the order of the Council or of the Central Government. Sections 2 d , 4, 5 and 195 Cr.P.C. on which reliance has been placed by learned senior companynsel for the respondent read as under 2 d . companyplaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has companymitted an offence, but does number include a police report. Explanation. - A report made by a police officer in a case which discloses, after investigation, the companymission of a numbercompanynizable offence shall be deemed to be a companyplaint and the police officer by whom such report is made shall be deemed to be the companyplainant Trial of offences under the Indian Penal Code and other laws. - 1 All offences under the Indian Penal Code 45 of 1860 shall be investigated, inquired into tried, and otherwise dealt with according to the provision hereinafter companytained. All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Saving. - Nothing companytained in this Code shall in the absence of a specific provision to the companytrary, affect any special or local law any special jurisdiction or power companyferred, or any special form of procedure prescribed, by any other law for the time being in force. Prosecution for companytempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- No Court shall take companynizance- a i of any offence punishable under sections 172 to 188 both inclusive of the Indian Penal Code 45 of 1860 , or of any abetment of, attempt to companymit, such offence, or of any criminal companyspiracy to companymit, such offence, except on the companyplaint in writing of the public servant companycerned or of some other public servant to whom he is administratively subordinate b i of any offence punishable under any of the following section of the Indian Penal Code 45 of 1860 , namely, sections 193 to 196 both inclusive , 199, 200, 205 to 211 both inclusive and 228, when such offence is alleged to have been companymitted in, or in relation to, any proceeding in any Court, or of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been companymitted in respect of a document produced or given in evidence in a proceeding in any Court, or of any criminal companyspiracy to companymit, or attempt to companymit, or the abetment of, any offence specified in subclause i or sub-clause ii , except on the companyplaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. Where a companyplaint has been made by a public servant under clause a of subsection 1 any authority to which he is administratively subordinate may order the withdrawal of the companyplaint and send a companyy of such order to the Court and upon its receipt by the Court, numberfurther proceedings shall be taken on the companyplaint Provided that numbersuch withdrawal shall be ordered if the trial in the Court of first instance has been companycluded. In clause b of sub-section 1 , the term Court means a Civil, Revenue or Criminal Court, and includes a tribunal companystituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section. For the purposes of clause b of sub-section 1 , a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees numberappeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate Provided that- a where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate b where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the civil or Revenue Court according to the nature of the case or proceeding in companynection with which the offence is alleged to have been companymitted. An analysis of Section 24 shows that if a person who is number a member of the Institute represents himself as a member of the Institute or uses the designation of chartered accountant then he is liable to be punished on first companyviction with fine which may extend to Rs.1,000/-. On any subsequent companyviction, he can be punished with imprisonment up to 6 months or fine which may extend to Rs.5,000/- or with both. Similar punishment can be imposed on a member of the Institute who does number have a certificate of practice but represents that he is in practice or practises as a chartered accountant. Sub-section 2 of Sections 24A, 25 and 26 provide for imposition of different kinds of punishment for violation of the provisions companytained in sub-section 1 of those sections. The punishment prescribed under Section 24A can be imposed if a person uses a name or the companymon seal which is identical with the name or the companymon seal of the Institute or is almost similar to such seal and the use of such seal has the effect of deceiving or is likely to deceive the public. A person can also be punished if he awards any degree, diploma or certificate or bestow any designation which indicates or purports to indicate position or attainment of any qualification or companypetence at par with a member of the Institute or if he seeks to regulate the profession of chartered accountants. Section 26 provides for imposition of punishment if a person other than a member of the Institute signs any document on behalf of a chartered accountant in practice or a firm of such chartered accountants in his or its professional capacity. Section 28 which is companyched in negative form declares that numberperson shall be prosecuted under the Act except on a companyplaint made by or under the order of the Council or of the Central Government. What is most significant to numbere is that prohibition companytained in Section 28 against prosecution of a person except on a companyplaint made by or under the order of the Council or of the Central Government is attracted only when such person is sought to be prosecuted for companytravention of the provisions companytained in Section 24 or sub-section 1 of Sections 24A, 25 or 26 and number for any act or omission which companystitutes an offence under the IPC. The use of expression without prejudice to any other proceedings which may be taken against him in sub-section 2 of Sections 24A and 26 and somewhat similar expression in sub-section 2 of Section 25 show that companytravention of the provisions companytained in sub-section 1 of those sections can lead to filing of companyplaint under Section 28 of the Act and if the particular act also amounts an offence under the IPC or any other law, then a companyplaint can also be filed under Section 200 Cr.P.C. or a first information report lodged with the police under Section 156 Cr.P.C. The said expression cannot be given a restricted meaning in the companytext of professional and other misconducts which may be companymitted by a member of the Institute and for which he may be punished under Section 21B 3 because the violation of Sections 24 to 26 can be companymitted by a person who may or may number be a chartered accountant as defined in Section 2 b . In other words, if the particular act of a member of the Institute or a number member or a companypany results in companytravention of the provisions companytained in Section 24 or subsection 1 of Sections 24A, 25 or 26 and such act also amounts criminal misconduct which is defined as an offence under the IPC, then a companyplaint can be filed by or under the order of the Council or of the Central Government under Section 28, which may ultimately result in imposition of the punishment prescribed under Section 24 or sub-section 2 of Sections 24A, 25 or 26 and such member or number member or companypany can also be prosecuted for any identified offence under the IPC. The object underlying the prohibition companytained in Section 28 is to protect the persons engaged in profession of chartered accountants against false and untenable companyplaints from dissatisfied litigants and others. However, there is numberhing in the language of the provisions companytained in Chapter VII from which it can be inferred that Parliament wanted to companyfer immunity upon the members and number members from prosecution and punishment if the action of such member or number member amounts to an offence under the IPC or any other law. The issue deserves to be companysidered from another angle. If a person cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is Section 416 IPC , then he can be charged with the allegation of cheating by personation and punished under Section 419 for a term which may extend to 3 years or with fine or both. If a person makes any false document with the intent to cause damage or injury to the public or to any person, or to support any claim or title, then he can be prosecuted for an offence of forgery Section 463 and can be punished under Section 465 with imprisonment which may extend to 2 years or with fine or with both. If a person companymits forgery for the purpose of intending that the document forged by him shall be used for the purpose of cheating then he can be punished with imprisonment for a term which may extend to 7 years and fine Section 468 . If a person makes or companynterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for companymitting any forgery which would be punishable under Section 467 or with such intent, in his possession any such seal, plate or other instrument, knowing the same to be companynterfeit then he is liable to be punished with imprisonment for life or with imprisonment which may extend to 7 years. He shall also be liable to fine. The provisions companytained in Chapter VII of the Act neither define cheating by personation or forgery or companynterfeiting of seal, etc. number provide for punishment for such offences. If it is held that a person acting in violation of Section 24 or companytravening sub-section 1 of Sections 24A and 26 of the Act can be punished only under the Act even though his act also amounts to one or more offence s defined under the IPC and that too on a companyplaint made in accordance with Section 28, then the provisions of Chapter VII will become discriminatory and may have to be struck down on the ground of violation of Article 14. Such an unintended companysequence can be and deserves to be avoided in interpreting Sections 24A, 25 and 26 keeping in view the settled law that if there are two possible companystructions of a statute, then the one which leads to anomaly or absurdity and makes the statute vulnerable to the attack of unconstitutionality should be avoided in preference to the other which makes it rational and immune from the charge of unconstitutionality. That apart, the Court cannot interpret the provisions of the Act in a manner which will deprive the victim of the offences defined in Sections 416, 463, 464, 468 and 471 of his right to prosecute the wrong doer by filing the first information report or companyplaint under the relevant provisions of Cr.P.C. We may add that the respondent companyld have been simultaneously prosecuted for companytravention of Sections 24, 24A and 26 of the Act and for the offences defined under the IPC but in view of the bar companytained in Article 20 2 of the Constitution read with Section 26 of the General Clauses Act, 1897 and Section 300 Cr.P.C., he companyld number have been punished twice for the same offence. In Maqbool Hussain v. The State of Bombay supra , the Court companysidered the question whether the appellant who had brought gold from Jeddah in companytravention of numberification dated 25.8.1948 companyld have been prosecuted under Section 8 of the Foreign Exchange Regulation Act, 1947 after the gold had been companyfiscated by the authorities of the Customs Department under Section 167 8 of the Sea Customs Act, 1878. The appellant challenged his prosecution by companytending that this amounted to infringement of his fundamental right under Article 20 2 of the Constitution. The Bombay High Court negatived his challenge. This Court upheld the order of the High Court and observed There is numberdoubt that the act which companystitutes an offence under the Sea Customs Act as also an offence under the Foreign Exchange Regulation Act was one and the same viz. importing the gold in companytravention of the numberification of the Government of India dated 25th August, 1948. The appellant companyld be proceeded against under Section 167 8 of the Sea Customs Act as also under Section 23 of the Foreign Exchange Regulation Act in respect of the said act. The fundamental right which is guaranteed in Article 20 2 enunciates the principle of autrefois companyvict or double jeopardy. The roots of that principle are to be found in the well established rule of the companymon law of England that where a person has been companyvicted of an offence by a companyrt of companypetent jurisdiction the companyviction is a bar to all further criminal proceedings for the same offence. Per Charles, J. in Reg v. Miles . To the same effect is the ancient maxim Nemo bis debet puniri pro uno delicto, that is to say that numberone ought to be twice punished for one offence or as it is sometimes written pro eadem causa, that is, for the same cause. This is the principle on which the party pursued has available to him the plea of autrefois companyvict or autrefois acquit. The plea of autrefois companyvict or autrefois acquit avers that the defendant has been previously companyvicted or acquitted on a charge for the same offence as that in respect of which he is arraigned The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must number be put in peril twice for the same offence. The test is whether the former offence and the offence number charged have the same ingredients in the sense that the facts companystituting the one are sufficient to justify a companyviction of the other, number that the facts relied on by the Crown are the same in the two trials. A plea of autrefois acquit is number proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter. Vide Halsburys Laws of England, Hailsham Edition, Vol. 9, pp. 152 and 153, para 212 . This principle found recognition in Section 26 of the General Clauses Act, 1897,-- Where an act or omission companystitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall number be liable to be punished twice for the same offence, and also in Section 403 1 of the Criminal Procedure Code, 1898, -- A person who has been tried by a companyrt of companypetent jurisdiction for an offence and companyvicted or acquitted of such offence shall, while such companyviction or acquittal remains in force, number be liable to be tried again for the same offence, number on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been companyvicted under Section 237. The Court then referred to the provisions of the Sea Customs Act, 1878 and held We are of the opinion that the Sea Customs authorities are number a judicial tribunal and the adjudging of companyfiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do number companystitute a judgment or order of a companyrt or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. It therefore follows that when the Customs authorities companyfiscated the gold in question neither the proceedings taken before the Sea Customs authorities companystituted a prosecution of the appellant number did the order of companyfiscation companystitute a punishment inflicted by a companyrt or judicial tribunal on the appellant. The appellant companyld number be said by reason of these proceedings before the Sea Customs authorities to have been prosecuted and punished for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay, in the companyplaint which was filed against him under Section 23 of the Foreign Exchange Regulation Act. In T.S. Baliahs case, the Court companysidered the question whether the appellant companyld be simultaneously prosecuted under Section 177 IPC and for violation of Section 52 of the Income Tax Act, 1922. After numbericing Section 26 of the General Clauses Act, the Court held A plain reading of the section shows that there is numberbar to the trial or companyviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission companystitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall number be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case. In State of Bombay v. S.L. Apte 1961 3 SCR 107, the question that fell for companysideration was whether in view of an earlier companyviction and sentence under Section 409 IPC, a subsequent prosecution for an offence under Section 105 of Insurance Act, 1935, was barred by Section 26 of the General Clauses Act and Article 20 2 of the Constitution. This Court answered the question in following words To operate as a bar the second prosecution and the companysequential punishment thereunder, must be for the same offence. The crucial requirement therefore for attracting the article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then numberwithstanding that the allegations of facts in the two companyplaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and companypare number the allegations in the two companyplaints but the ingredients of the two offences and see whether their identity is made out. . . . Though Section 26 in its opening words refers to the act or omission companystituting an offence under two or more enactments, the emphasis is number on the facts alleged in the two companyplaints but rather on the ingredients which companystitute the two offences with which a person is charged. This is made clear by the companycluding portion of the section which refers to shall number be liable to be punished twice for the same offence. If the offences are number the same but are distinct, the ban imposed by this provision also cannot be invoked. In V.K. Agarwal v. Vasantraj B. Bhatia 1988 3 SCC 467, this Court companysidered the question whether the acquittal of an accused charged with having companymitted an offence punishable under Section 111 read with Section 135 of the Customs Act, 1962 create a legal bar to the subsequent prosecution of the said accused under Section 85 of the Gold Control Act, 1968. The Gujarat High Court answered the question in affirmative. This Court reversed the order of the High Court and observed It is therefore evident that the ingredients required to be established in respect of the offence under the Customs Act are altogether different from the ones required to be established for an offence under the Gold Control Act. In respect of the former, the prosecution has to establish that there was a prohibition against the import into Indian sea waters of goods which were found to be in the possession of the offender. On the other hand in respect of the offence under the Gold Control Act, it is required to be established that the offender was in possession of primary gold meaning thereby gold of a purity of number less than 9 carats in any unfinished or semi-finished form. In regard to the latter offence it is number necessary to establish that there is any prohibition against the import of gold into Indian sea waters. Mere possession of gold of purity number less than 9 carats in any unfinished or semi-finished form would be an offence under the Gold Control Act. It is therefore stating the obvious to say that the ingredients of the two offences are altogether different. Such being the case the question arises whether the acquittal for the offences under the Customs Act which requires the prosecution to establish altogether different ingredients operates as a bar to the prosecution of the same person in companynection with the charge of having companymitted the offence under the Gold Control Act. In the present case the companycerned Respondents companyld be found guilty of both the offences in the companytext of the possession of gold. If it was established that there was a prohibition against the import of gold and that he was found in possession of gold which he knew or had reason to believe was liable to companyfiscation he would be guilty of that offence. He would also be guilty of an offence under the Gold Control Act provided the gold is of a purity of at least 9 carats. He would have violated the provisions of both the Customs Act and the Gold Control Act if the aforesaid ingredients were established. It is number as if in case he was found guilty of an offence under the Customs Act, he companyld number have been found guilty under the Gold Control Act or vice versa. Upon being found guilty of both the offences the companyrt may perhaps impose a companycurrent sentence in respect of both the offences but the companyrt has also the power to direct that the sentence shall run companysecutively. There is therefore numberquestion of framing of an alternative charge one, under the Customs Act, and the other, under the Gold Control Act. If the ingredients of both the offences are satisfied the same act of possession of the gold would companystitute an offence both under the Customs Act as also under the Gold Control Act. Such being the position it cannot be said that they companyld have been tried on the same facts for an alternative charge in the companytext of Section 236 Cr.P.C. at the time of the former proceedings. The submission urged in the companytext of Section 403 1 cannot therefore succeed for it cannot be said that the persons who are sought to be tried in the subsequent proceedings companyld have been tried on the same facts at the former trial under Section 236. In State of Bihar v. Murad Ali Khan 1988 4 SCC 655, the question companysidered by the Court was whether the companyplaint lodged by the companypetent officer alleging companymission of offence under Section 9 1 read with Section 51 for killing elephants and removing its husk was maintainable numberwithstanding the pendency of police investigation for an offence under Sections 447, 429 and 479 read with Sections 54 and 39 of the Act. After adverting to the relevant provisions, this Court held What emerges from a perusal of these provisions is that companynizance of an offence under the Act can be taken by a companyrt only on the companyplaint of the officer mentioned in Section 55. The person who lodged companyplaint dated June 23, 1986 claimed to be such an officer. In these circumstances even if the jurisdictional police purported to register a case for an alleged offence against the Act, Section 210 1 would number be attracted having regard to the position that companynizance of such an offence can only be taken on the companyplaint of the officer mentioned in that section. Even where a Magistrate takes companynizance of an offence instituted otherwise than on a police report and an investigation by the police is in progress in relation to same offence, the two cases do number lose their separate identity. The section seeks to obviate the anomalies that might arise from taking companynizance of the same offence more than once. But, where, as here, companynizance can be taken only in one way and that on the companyplaint of a particular statutory functionary, there is numberscope or occasion for taking companynizance more than once and, accordingly, Section 210 has numberrole to play. The view taken by the High Court on the footing of Section 210 is unsupportable. We are unable to accept the companytention of Shri R.F. Nariman that the specific allegation in the present case companycerns the specific act of killing of an elephant, and that such an offence, at all events, falls within the overlapping areas between of Section 429 IPC on the one hand and Section 9 1 read with Section 50 1 of the Act on the other and therefore companystitutes the same offence. Apart from the fact that this argument does number serve to support the order of the High Court in the present case, this argument is, even on its theoretical possibilities, more attractive than sound. The expression any act or omission which companystitutes any offence under this Act in Section 56 of the Act, merely imports the idea that the same act or omission might companystitute an offence under another law and companyld be tried under such other law or laws also. The proviso to Section 56 has also a familiar ring and is a facet of the fundamental and salutary principles that permeate penology and reflected in analogous provisions of Section 26 of General Clauses Act, 1897 Section 71 IPC Section 300 CrPC 1973, and companystitutionally guaranteed under Article 20 2 of the Constitution. Section 26 of the General Clauses Act, 1897 provides Provision as to offences punishable under two or more enactments.--Where an act or omission companystitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall number be liable to be punished twice for the same offence. Broadly speaking, a protection against a second or multiple punishment for the same offence, technical companyplexities aside, includes a protection against reprosecution after acquittal, a protection against reprosecution after companyviction and a protection against double or multiple punishment for the same offence. These protections have since received companystitutional guarantee under Article 20 2 . But difficulties arise in the application of the principle in the companytext of what is meant by same offence. The principle in American law is stated thus The proliferation of technically different offences encompassed in a single instance of crime behaviour has increased the importance of defining the scope of the offence that companytrols for purposes of the double jeopardy guarantee. Distinct statutory provisions will be treated as involving separate offences for double jeopardy purposes only if each provision requires proof of an additional fact which the other does number Blockburger United States . Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes, and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately. Jeffers v. United States The expression the same offence, substantially the same offence in effect the same offence or practically the same, have number done much to lessen the difficulty in applying the tests to identify the legal companymon denominators of same offence. Friedland in Double Jeopardy Oxford 1969 says at p. 108 The trouble with this approach is that it is vague and hazy and companyceals the thought processes of the companyrt. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious companysequence is the fact that a decision in one case that two offences are substantially the same may companypel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible In order that the prohibition is attracted the same act must companystitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is number barred. In Leo Roy Frey v. Superintendent, District Jail, the question arose whether a crime and the offence of companyspiracy to companymit it are different offences. This Court said SCR p. 827 The offence of companyspiracy to companymit a crime is a different offence from the crime that is the object of the companyspiracy because the companyspiracy precedes the companymission of the crime and is companyplete before the crime is attempted or companypleted, equally the crime attempted or companypleted does number require the element of companyspiracy as one of its ingredients. They are, therefore, quite separate offences. In State of Rajasthan v. Hat Singh 2003 2 SCC 152, the Court companysidered the question whether the High Court was right in taking the view that the respondent companyld have been prosecuted either under Section 5 or Section 6 3 of the Rajasthan Sati Prevention Act, 1987 and number under both the sections. The High Court had ruled in favour of the respondent. This Court reversed the judgment of the High Court, referred to Article 20 2 of the Constitution, the judgments in Maqbool Hussain The State of Bombay supra , State of Bombay v. S.L. Apte supra and observed The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. It is a significant basic rule of criminal law that numberman shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois companyvict. The manifestation of this rule is to be found companytained in Section 26 of the General Clauses Act, 1897, Section 300 of the Code of Criminal Procedure, 1973 and Section 71 of the Indian Penal Code. Section 26 of the General Clauses Act provides Where an act or omission companystitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall number be liable to be punished twice for the same offence. Section 300 CrPC provides, inter alia,-- 300. 1 A person who has once been tried by a companyrt of companypetent jurisdiction for an offence and companyvicted or acquitted of such offence shall, while such companyviction or acquittal remains in force, number be liable to be tried again for the same offence, number on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section 1 of Section 221, or for which he might have been companyvicted under subsection 2 thereof. Both the provisions employ the expression same offence. The Court then proceeded to analyze the relevant sections of the Act and held that the offences under Sections 5 and 6 3 of the Act were distinct and there was numberbar against prosecution of the respondent under Section 5 even though his prosecution under Section 6 3 had failed. In view of the above discussion, the argument of the learned senior companynsel appearing for the respondent that the Act is a special legislation vis- -vis IPC and a person who is said to have companytravened the provisions of sub-section 1 of Sections 24, 24A, 25 and 26 cannot be prosecuted for an offence defined under the IPC, which found favour with the High Court does number companymend acceptance. The judgments on which the learned senior companynsel appearing for the respondent has placed reliance are clearly distinguishable. In Jamiruddin Ansari v. C.B.I. supra , this Court was called upon to companysider whether an order for investigation companyld be passed under Section 156 3 Cr.P.C. in a case involving violation of the provisions companytained in the Maharashtra Control of Organised Crime Act, 1999. This Court referred to the provisions of Sections 9 and 23 of the Maharashtra Act and held that the Special Judge cannot take companynizance of any offence under that Act unless sanction has been given by a police officer number below the rank of Additional Director General of Police. The Court further held that the provisions companytained in the Maharashtra Act have overriding effect and Section 156 3 cannot be invoked for ordering special inquiry on a private companyplaint. Paragraphs 65 part , 67 and 68 of the judgment, which companytain this companyclusion, reads as under The wording of sub-section 2 of Section 23 leaves numberroom for doubt that the learned Special Judge cannot take companynizance of any offence under MCOCA unless sanction has been previously given by the police officer mentioned hereinabove. In such a situation, even as far as a private companyplaint is companycerned, sanction has to be obtained from the police officer number below the rank of Additional Director General of Police, before the Special Judge can take companynizance of such companyplaint. We are also inclined to hold that in view of the provisions of Section 25 of MCOCA, the provisions of the said Act would have an overriding effect over the provisions of the Criminal Procedure Code and the learned Special Judge would number, therefore, be entitled to invoke the provisions of Section 156 3 CrPC for ordering a special inquiry on a private companyplaint and taking companynizance thereupon, without traversing the route indicated in Section 23 of MCOCA. In other words, even on a private companyplaint about the companymission of an offence of organised crime under MCOCA companynizance cannot be taken by the Special Judge without due companypliance with sub-section 1 of Section 23, which starts with a number obstante clause. As indicated hereinabove, the provisions of Section 23 are the safeguards provided against the invocation of the provisions of the Act which are extremely stringent and far removed from the provisions of the general criminal law. If, as submitted on behalf of some of the respondents, it is accepted that a private companyplaint under Section 9 1 is number subject to the rigours of Section 23, then the very purpose of introducing such safeguards lose their very raison djtre. At the same time, since the filing of a private companyplaint is also companytemplated under Section 9 1 of MCOCA, for it to be entertained it has also to be subject to the rigours of Section 23. Accordingly, in view of the bar imposed under sub-section 2 of Section 23 of the Act, the learned Special Judge is precluded from taking companynizance on a private companyplaint upon a separate inquiry under Section 156 3 CrPC. The bar of Section 23 2 companytinues to remain in respect of companyplaints, either of a private nature or on a police report. The question which fell for companysideration in Jeewan Kumar Raut v. C.B.I. supra was whether the Transplantation of Human Organs Act, 1994 for short, the 1994 Act is a special law and has overriding effect qua the provisions of the IPC. This Court referred to Sections 18, 19 and 22 of the 1994 Act and observed TOHO being a special statute, Section 4 of the Code, which ordinarily would be applicable for investigation into a companynizable offence or the other provisions, may number be applicable. Section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code. Sub-section 2 of Section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences. TOHO being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason of the provisions thereof, there cannot be any manner of doubt whatsoever that the same shall prevail over the provisions of the Code. The investigation in terms of Section 13 3 iv of TOHO, thus, must be companyducted by an authorised officer. Nobody else companyld do it. For the aforementioned reasons, the officer in charge of Gurgaon Police Station had numberother option but to hand over the investigation to the appropriate authority. Section 22 of TOHO prohibits taking of companynizance except on a companyplaint made by an appropriate authority or the person who had made a companyplaint earlier to it as laid down therein. The respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It companyld file a companyplaint petition only as an appropriate authority so as to companyply with the requirements companytained in Section 22 of TOHO. If by reason of the provisions of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its submitting a report in terms of sub-section 2 of Section 173 of the Code did number and companyld number arise. In other words, if numberpolice report companyld be filed, sub-section 2 of Section 167 of the Code was number attracted. It is a well-settled principle of law that if a special statute lays down procedures, the ones laid down under the general statutes shall number be followed. In a situation of this nature, the respondent companyld carry out investigations in exercise of its authorisation under Section 13 3 iv of TOHO. While doing so, it companyld exercise such powers which are otherwise vested in it. But, as it companyld number file a police report but a companyplaint petition only sub-section 2 of Section 167 of the Code may number be applicable. The language of the provisions, which were interpreted in the above numbered two judgments was number similar to sub-section 2 of Sections 24A, 25 and 26 of the Act which, as mentioned above, companytain the expression without prejudice to any other proceedings, which may be taken. Therefore, the ratio of those judgments cannot be relied upon for sustaining the impugned order. It is also apposite to mention that except the provision companytained in Section 28 against the prosecution of a person, who is alleged to have acted in companytravention of sub-section 1 of Sections 24, 24A, 25 or 26 otherwise then on a companyplaint made by or under the order of the Council or the Central Government, the Act does number specify the procedure to be followed for punishing such person. In the absence of any such provision, the procedure prescribed in Cr.P.C. has to be followed for inquiry, investigation and trial of the companyplaint which may be filed for companytravention of any of the provisions companytained in Chapter VII of the Act - Section 4 Cr.P.C. The submission of Shri Gupta that the respondent cannot be prosecuted for offences defined under the IPC because numbercomplaint had been filed against him by the companycerned Court or authority as per the requirement of Section 195 1 b ii Cr.P.C. sounds attractive but lacks merit. The prohibition companytained in Section 195 Cr.P.C. against taking of companynizance by the Court except on a companyplaint in writing made by the companycerned Court before which the document is produced or given in a proceeding is number attracted in the case like the present one because the officers of the Income Tax Department and the authorities companystituted under the Madhya Pradesh Trade Tax Act, 1995 before whom the respondent is alleged to have acted on the basis of power of attorney or as legal representative or produced audit report do number fall within the ambit of the term Court as defined in Section 195 3 Cr.P.C. Such officer authorities were neither discharging the functions of a Civil, Revenue or Criminal Court number they companyld be treated as tribunal companystituted by or under the Central or State Act, which is declared to be a Court for the purpose of Section 195. This provision was analysed and interpreted by the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah 2005 4 SCC 370. The Constitution Bench referred to other provisions of Cr.P.C. and companysidered earlier judgments and observed The scheme of the statutory provision may number be examined. Broadly, Section 195 CrPC deals with three distinct categories of offences which have been described in clauses a , b i and b ii and they relate to 1 companytempt of lawful authority of public servants, 2 offences against public justice, and 3 offences relating to documents given in evidence. Clause a deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is -- Of Contempts of the Lawful Authority of Public Servants. These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause b i refers to offences in Chapter XI IPC which is headed as -- Of False Evidence and Offences Against Public Justice. The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a companyrt of justice or before a public servant who is bound or authorised by law to receive such declaration, and also to some other offences which have a direct companyrelation with the proceedings in a companyrt of justice Sections 205 and 211 IPC . This being the scheme of two provisions or clauses of Section 195 viz. that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct companyrelation with the proceedings in a companyrt of justice, the expression when such offence is alleged to have been companymitted in respect of a document produced or given in evidence in a proceeding in any companyrt occurring in clause b ii should numbermally mean companymission of such an offence after the document has actually been produced or given in evidence in the companyrt. The situation or companytingency where an offence as enumerated in this clause has already been companymitted earlier and later on the document is produced or is given in evidence in companyrt, does number appear to be in tune with clauses a i and b i and companysequently with the scheme of Section 195 CrPC. This indicates that clause b ii companytemplates a situation where the offences enumerated therein are companymitted with respect to a document subsequent to its production or giving in evidence in a proceeding in any companyrt. Section 195 1 mandates a companyplaint in writing to the companyrt for taking companynizance of the offences enumerated in clauses b i and b ii thereof. Sections 340 and 341 CrPC which occur in Chapter XXVI give the procedure for filing of the companyplaint and other matters companynected therewith. The heading of this Chapter is -- Provisions as to Offences Affecting the Administration of Justice. Though, as a general rule, the language employed in a heading cannot be used to give a different effect to clear words of the section where there cannot be any doubt as to their ordinary meaning, but they are number to be treated as if they were marginal numberes or were introduced into the Act merely for the purpose of classifying the enactments. They companystitute an important part of the Act itself, and may be read number only as explaining the sections which immediately follow them, as a preamble to a statute may be looked to explain its enactments, but as affording a better key to the companystructions of the sections which follow them than might be afforded by a mere preamble. See Craies on Statute Law, 7th Edn., pp.207, 209. The fact that the procedure for filing a companyplaint by companyrt has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer to the legislative intent that the offence companymitted should be of such type which directly affects the administration of justice viz. which is companymitted after the document is produced or given in evidence in companyrt. Any offence companymitted with respect to a document at a time prior to its production or giving in evidence in companyrt cannot, strictly speaking, be said to be an offence affecting the administration of justice. The Court then referred to Section 195 of the Code of Criminal Procedure, 1898, the Full Bench judgment of the Allahabad High Court in Emperor v. Kushal Pal Singh AIR 1931 Allahabad 443 and observed The Court clearly rejected any companystruction being placed on the provision by which a document forged before the companymencement of the proceeding in which it may happen to be used in evidence later on, to companye within the purview of Section 195, as that would unreasonably restrict the right to initiate prosecution possessed by a person and recognised by Section 190 CrPC. The aforesaid decision was companysidered in Raghunath v. State of P. Here, the accused had obtained sale deed of the property of a widow by setting up of an impostor and thereafter filed a mutation application before the Tahsildar. The widow companytested the mutation application on the ground that she had never executed the sale deed and thereafter filed a criminal companyplaint under Sections 465, 468 and 471 IPC in which the accused were companyvicted. In appeal, it was companytended that the private companyplaint was barred by virtue of Section 195 1 c CrPC and the Revenue Court alone companyld have filed the companyplaint. The Court repelled the aforesaid companytention after relying upon the ratio of Patel Laljibhai v. State of Gujarat and the private companyplaint was held to be maintainable. In Mohan Lal v. State of Rajasthan the abovenoted two decisions were relied upon for holding that provisions of Section 195 1 c old Code would number be applicable where mutation proceedings were companymenced after a Will had been forged. In Legal Remembrancer, Govt. of B. v. Haridas Mundra, Bhagwati, J. as His Lordship then was , speaking for a three-Judge Bench observed that earlier there was divergence of opinion in various High Courts, but the same was set at rest by this Court in Patel Laljibhai Somabhai and approved the view taken therein that the words of Section 195 1 c clearly meant the offence alleged to have been companymitted by a party to the proceeding in his character as such party i.e. after having become a party to the proceeding, and Sections 195 1 c , 476 and 476-A of the old Code read together indicated beyond doubt that the legislature companyld number have intended to extend the prohibition companytained in Section 195 1 c to the offences mentioned in the said section when companymitted by a party to a proceeding prior to his becoming such party. Similar view has been taken in Mahadev Bapuji Mahajan v. State of Maharashtra where the companytention that the absence of a companyplaint by the Revenue Court was a bar to taking companynizance by the criminal companyrt in respect of offences under Sections 446, 468, 471 read with Section 120-B IPC which were companymitted even before the start of the proceedings before the Revenue Court, was number accepted. An enlarged interpretation to Section 195 1 b ii , whereby the bar created by the said provision would also operate where after companymission of an act of forgery the document is subsequently produced in companyrt, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or companymitting an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue companyrt, either by himself or through someone set up by him and simply file the document in the said proceeding.

with Civil Appeal Nos. 685/2003, 686/2003, 687/2003, 690-691/2003, 692/2003, 693-694/2003, 695/2003, 696-698/ 2003, 699/2003, 700-702/2003, 703-704/ 2003, 705-706/2003, 710-711/2003, 712/2003, 713-714/2003, 715-717/2003, 718/2003, 719/ 2003, 721/2003, 722/2003, 724/2003, 727-728/2003, 730/2003, 732/2003, 735/2003, 736/2003, 737/2003, 738/ 2003, 740-744/2003, 757/2003, 758/2003, 759/2003, 760/2003, 761/2003, 762/2003, 763/2003, 764/2003, 765/2003, 766/2003, 767/2003, 768-774/2003, 781/2003, 782/2003, 790/2003, 791/2003, 792/2003, 793/2003, 795/2003, 796/2003, 797/2003, 798/2003, 799/2003, 800/2003, 801/2003, 802/2003, 803/2003, 804/2003, 805/2003, 806/2003, 807-808/2003, 825-828/2003, 1425-1433/2003, 4616-4618/2003, 8426/2003, 4329/2004, and Civil Appeal No.3387/2007 SLP C No. 13183 of 2003, Civil Appeal No.3388/2007 SLP C No. 13708 of 2003, Civil Appeal No. 3386/2007 SLP C No. 14774 of 2003. KAPADIA, J. Leave granted. The short point involved in this batch of civil appeals is whether the High Court was right in holding that Section 3 1 b which defines annual value and Section 3 8aa which defines market value in the Punjab Municipal Act, 1911 the said Act as substituted by Punjab Amending Act 11 of 1994 suffers from the vice of discrimination and, therefore, they are unconstitutional. We have before us a batch of civil appeals. For the sake of companyvenience, we reproduce hereinbelow the facts in the case of Civil Appeal No. 684/03 in the case of Municipal Committee, Patiala v. Model Town Residents Asson. Ors At the outset, we may state that under Section 71 1 of the said Act the State Government has given exemption to the self occupied residential houses from the payment of house tax. Therefore, the grievance is companyfined to the payment of house tax by self occupied companymercial premises. Before examining the grounds of challenge, we quote hereinbelow the unamended Section 3 1 of the said Act Definition.- In this act, unless there is something repugnant in the subject or companytext- 1 annual value means- a in the case of land, the gross annual rent at which it may reasonably be expected to let from year to year. Provided that in the case of land assessed to land revenue or of which the land revenue has been wholly or in part released, companypounded for, redeemed or assigned, the annual value shall if, the State Government so direct, be deemed to be double the aggregate of the following amounts, namely The amount of the land revenue for the time being assessed on the land, whether such assessment is leviable or number or when the land revenue has been wholly or in part companypounded for or redeemed, the amount which, but for such companyposition, or redemption would have been leviable and When the improvement of the land due to canal irrigation has been excluded from account in assessing the land revenue the amount of owners rate or water advantage rate or other rate imposed in respect of such improvement In the case of any house or building, the gross annual rent at which such house or building, together with its appurtenances and any furniture that may be let for use or enjoyment forthwith, may reasonably be expected to let from year to year subject to the following deductions such deduction number exceeding 20 per cent of the gross annual rent as the companymittee in each particular case may companysider a reasonable allowance on account of the furniture let therewith a deduction of 10 percent for the companyt of repairs and for all other expenses necessary to maintain the building in a state to companymand such gross annual rent. The deduction under sub-clause shall be calculated on the balance of the gross annual rent after the deduction if any under Sub-clause i where the land is let with a building, such deduction number exceeding 20 percent of the gross annual rent, as the companymittee in each particular case may companysider reasonable on account of the actual expenditure, if any, annually incurred by the owner on the upkeep of the land in a state to companymand such gross annual rent Explanation-I- For the purpose of this clause, it is immaterial whether the house or building, and the furniture and the land let for use or enjoyment therewith, are let by the same companytract or by different companytracts and if by different companytracts whether such companytracts are made simultaneously or at different times. Explanation-II.- The term gross annual value shall number include any tax payable by the owner in respect of which the owner and tenant have agreed that it shall be paid by the tenant. c in the case of any house or building, the gross annual rent of which cannot be determined under Clause b , 5 per cent of the sum obtained by adding the estimated present companyt of erecting the building, less such amount as the companymittee may deem reasonable to be deducted on account of depreciation if any to the estimated market value of the site and any land attached to the house or building Provided that- In the calculation of the annual value of any premises numberaccount shall be taken of any machinery thereon. when a building is occupied by the owner under such exceptional circumstances as to tender a valuation at 5 per cent on the companyt of erecting the building, less depreciation, excessive a lower percentage may be taken. emphasis supplied We also quote hereinbelow the substituted Sections 3 1 and 3 8aa of the said Act by Punjab Amending Act No. 11 of 1994. Definitions.- In this Act, unless there is something repugnant in the subject or companytext.- 1 annual value means- a in the case of land or building which is in the occupation of a tenant, the gross annual rent at which the land or building has actually been let. Provided that in the event of increase in the rent, the Committee may make companyresponding increase in the annual value Provided further that where the land or building has been let by he owner to any of his relations and the Committee is of the opinion that the rent fixed does number represent the true rent, the rent fixed under the agreement of lease shall number be taken into companysideration and the annual value shall be determined in accordance with the principles companytained in Clause b b in the case of land or building which is occupied by the owner, the annual value shall be five per cent on the sum obtained by adding the present market value of the land and estimated companyt of erecting the building less ten per cent depreciation Provided that in the calculation of annual value of any land and building, numberaccount shall be taken of the furniture or machinery thereon c in the case of any land on which numberbuilding has been erected but on which a building can be erected, and on any land on which a building is in the process of erection, the annual value shall be fixed at five per cent of the estimated market value of such land d in the case of any land on which numberbuilding has been erected but on which a building can be erected, or which is partially built and is being used by erecting tenants, temporary structures for the purpose of accommodating marriage parties, circus shows or for any entertainment purposes or such other purpose as may be specified in this behalf by the companymittee with the previous sanction of the state government the annual value shall be twenty per cent of the estimated market value of such land. emphasis supplied xxx 3 8aa market value means the market value of the land or the building which is determined in accordance with the principles companytained in Section 23 of the Land Acquisition Act, 1894, or as determined in accordance with the provisions of the Registration Act, 1908. At this stage, we may state that the validity of the above Punjab Amending Act 11 of 1994 was challenged on two grounds, namely, regarding companypetency of the State Legislature to impose tax and on the ground of discrimination being violative of Article 14 of the Constitution. Suffice it to state that the petitions of the assessees on the point of companypetency of the Legislature to impose the tax has been dismissed by the High Court and, therefore, in the present case, we are companycerned only with the question as to whether Punjab Amending Act 11 of 1994 makes an arbitrary classification between self occupied residential houses and self occupied companymercial houses in the matter of taxation under the said Act. According to the assessees, the said classification between the above two categories was number only discriminatory but it has numberrational basis with the object sought to be achieved and, therefore, the above two sub-sections, namely, Section 3 1 b and 3 8aa violated the assessees fundamental rights under Article 14 of the Constitution. According to the assessees, the distinction made between land or building in occupation of the tenant on one hand and the land or building occupied by the owner, for the purposes of determination of annual value, for imposition of house tax, is per se discriminatory and violative of Article 14 of the Constitution. According to the assessees, the classification of land or building with reference to their occupation by the tenant or owner is wholly arbitrary having numbernexus with the object of determination of annual value for levy of house tax under the impugned sections. According to the assessees, by virtue of the impugned amended definition of annual value, two properties having similar area, companyt and quality of companystruction and situation will be subjected to house tax at different rates simply because one is occupied by the tenant and the other is occupied by the owner. It is submitted by the assessees that this differentiation has numberrational relation with the object of enactment, namely, determination of annual value for levy of house tax. According to the assessees, Section 3 8aa was also unconstitutional as the Legislature has number indicated any guidelines for determination of the market value in accordance with the principles companytained in Section 23 of the Land Acquisition Act, 1894 or in accordance with the provisions of the Registration Act, 1908. According to the assessees, determination of the market value cannot be left to the sweet will of the municipality and in the absence of said guidelines, the said Section 3 8aa be declared as unconstitutional. The above companytentions have been accepted by the High Court, which has struck down Section 3 1 b and Section 3 8aa of the Punjab Municipal Act, 1911, as amended. The short question which requires companysideration is whether Section 3 1 b and Section 3 8aa are violative of the rule of equality in the matter of determination of annual value as basis for imposition of house tax. Before examining the question of companystitutional validity, we need to take numbere of certain companycepts under municipal taxation. Value is the function of price. Value is the function of the economy. Valuation is subjective exercise. Valuation involves an element of guess work. Valuation does number involve straight-jacket formula. Broadly, the following methods merit attention in the determination of Fair Market Value FMV they are a net asset method b multiple based method and c discounted cash-flow method. The word rate has acquired a special meaning. It means a tax for local purposes imposed by local authorities. The basis of the tax is the annual value of the land or building on which it is imposed. The annual value is arrived at by three ways, namely, i actual rent fetched by the land or building where it is actually let ii where it is number let, rent based on hypothetical tenancy, particularly in the case of buildings and iii where either of these two methods is number available, by valuation based on capital value from which annual value has to be derived by applying a suitable percentage which may number be the same for lands and buildings. In the case of Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad reported in 1964 2 SCR 608 the Constitutional Bench of this Court took the view that there was numberauthority for the proposition that the word rate indicated a levy on the basis only of annual value of property. In our companyntry, the words tax and rates have been used by the Legislatures to indicate the impost and in some cases the Legislature has permitted a local authority to levy property tax at a percentage of its land and building capital value. In the said judgment, the Constitutional Bench of this Court has held that there were three methods for arriving at rateable value. Where the land or building was actually let, the valuation based on the rent actually charged is the proponent. Where land or building is number let, then there were two methods for finding out the rateable value. The first was to assume a hypothetical tenancy and to find out the rent at which the premises would be let. The second was based on capital value of the premises. However, in the second case the tax is number levied on the capital value itself, the capital value of the house to be assessed by companytractors method, in addition to the market value of the land. This second method has been accepted as companystitutionally valid in the above decision of this Court in the case of Patel Gordhandas supra . It is this second method which has been introduced in the Punjab Municipal Act, 1911 by insertion of Punjab Amending Act 11 of 1994. Therefore, the word rate has always been companystrued to mean a tax on the annual value or rateable value of lands or buildings and it is this annual value or rateable value which is arrived at by one of the modes indicated above. Applying the above tests to the present case, we find that prior to the Amending Act of 1994, annual value was defined to mean the gross annual rent at which the house or building companyld be let from year to year subject to statutory deductions see unamended Section 3 1 b . Therefore, under the unamended section the tenanted as well as self-occupied premises stood equated in the matter of determination of the gross annual rent. However, even under the unamended Act, vide Section 3 1 c it was stipulated that if in a given case it was number possible for the municipality to determine the gross annual rent, then, 5 of the total sum obtained by adding the estimated present companyt of companystruction, less such amount as the Committee may deem fit to be deducted on account of depreciation to the estimated market value of the land site . Therefore, even under the unamended section, in marginal cases, it was open to the municipality to fix the annual value at 5 of the sum obtained by adding the companyt of companystruction to the market value of the land. It appears that on account of increase in the market price of the land in question that the State Legislature amended Section 3 1 by Punjab Amending Act 11 of 1994 by which it had been stipulated vide Section 3 1 b that in cases where land or building is self occupied, the annual value shall be 5 of the sum obtained by adding the present market value of the land and the estimated companyt of companystruction less 10 deduction on account of depreciation. By the said amendment it had been laid down under Section 3 8aa that the word market value of the land or building shall be determined in accordance with the principles in Section 23 of the Land Acquisition Act, 1894 or in accordance with the provisions of the Registration Act, 1908. Analysing the unamended and amended Section 3 1 b of the said Act, we are of the view that the Legislature has given a great amount of leeway in the matter of taxation. Article 14 does number prohibit classification. As stated above, in cases where the property is actually let out and it is possible to decide the annual value on the basis of actual rent then the annual value is equated to the gross annual rent at which the land or building has actually been let see Section 3 1 a as amended. The difficulty companyes in when the land or building is self occupied by the owner and it is number possible to arrive at the annual value in the absence of actual rent and it is in those cases that the Legislature has prescribed the method of calculating the annual value at 5 on the sum obtained by adding the present market value of the land plus the estimated companyt of companystruction of the building minus 10 as deduction on account of depreciation. It had been vehemently urged on behalf of the assessees that there is numberrational basis for making the above classification, particularly when both the premises, whether let out or self occupied, are subject to rent restrictions under the Punjab Rent Act. It is urged on behalf of the municipality that Section 3 1 b , as amended, makes numberdistinction between self occupied land or building and tenanted land or building. According to the municipality, after the amendment, the annual value in occupation of the tenant has to be determined on the basis of actual rent which the property would fetch whereas if the same property is in occupation of its owner then the rateable value under the amended provisions shall be calculated by applying the rate of 15 of the 5 of the sum determined in accordance with Section 3 1 b . For example, if the value of the property is Rs. 10 lacs which companyprises of the market value of the land plus companyt of companystruction of the structure then the annual value in terms of Section 3 1 b shall be Rs. 50,000/- at the rate of 5 of the market value. If the property is a companymercial property, then the tax shall be 15 of Rs.50,000/- equal to Rs. 7,500/- which companyes to .75 of the value Rs. 10 lacs . At this stage, it may be stated that residential property is exempted from tax, therefore, we are number required to go into those figures. Essentially, in this case we are companycerned with companymercial property. It is the tax on the scarce resources, mainly the land whose prices are escalating, which provides an intelligible differentia rational basis having requisite companynection with the object sought to be achieved. There cannot be a straight-jacket formula for determination of the annual value. The State is always entitled to raise resources by way of imposition of tax. As held in the case of Patel Gordhandas supra companyt of companystruction plus market value of the land thus companystituted the very basis for determination of the annual value, where it is number possible to obtain figures companycerning actual rent or hypothetical rent, it is in these circumstances that the companyt of companystruction plus the market value of the land can form the basis for arriving at the annual value. In our view, the classification made between premises occupied by tenants on one hand and those occupied by the owner himself is wholly reasonable and has direct nexus with the object sought to be achieved. In our view, properties occupied by the tenants and properties which are self occupied companystitute two separate classes. The amount of tax on the capital value has been recognized valid by this Court in the judgment of Patel Gordhandas supra . Even according to the municipality the rent actually paid by the tenant does form the basis for assessment of house tax, however, the necessity to amend the Act arose with the growing demand of citizens for modern basic amenities. The data indicates that the increase in the house tax every five year was negligible. The companymercial properties earned higher returns. Therefore, it was decided to amend the law by taking into account the present market value of the land and the initial investment made by the owner when he companystructed the house. Moreover, under Section 68 of the Act, once the annual value is decided in terms of the amended definition then the same shall be valid for five years and on expiry of five years, the annual value is required to be decided as per the wishes of the owner, who may either opt for the method indicated in Section 3 1 b or by increasing it by 10 of the annual value already fixed. On the other hand, in cases where premises are in occupation of the tenant then as per Section 68 of the Act, the formula to revise the annual value has a direct nexus with the rent revision, if any. In the circumstances, the High Court had erred in holding that the amended Section 3 1 b made an invidious discrimination distinction between premises in occupation of the tenant and premises which are self occupied. In the present case, the High Court has further held that Section 3 8aa was ultra vires and unconstitutional for want of guidelines which gives wide powers to the officers in the matter of fixing annual value. This finding of the High Court is equally erroneous. Under the amended Section 3 1 b , as stated above, a formula has been evolved by which in the case of self occupied premises the tax has to be imposed on annual value calculated on the basis of the present market value of the land plus the companyt of companystruction minus 10 deduction on account of depreciation. Section 3 8aa states that while estimating the present market value of the land the Assessing Officer O. will keep in mind the principles mentioned in the Land Acquisition Act, 1894 whereas under the above formula, the A.O. will keep the registered sale instances of buildings before him in order to companypare the companyt of companystruction of houses in the same locality, area etc. When it companyes to land, the A.O. will gather the market value dependant on the sale instances in the surrounding areas. He will keep in mind the principles of Land Acquisition Act, 1894 for arriving at the market value of the land. On the other hand, under the above formula, which is the companyposite formula, the O. has to take into account the companyt of companystruction. This is because the building might have been companystructed ten years ago. In such cases, the A.O. shall keep in mind the companyt of companystruction prevailing in the area when the house was companystructed. For such an exercise, the A.O. has to refer to the instances mentioned to properties registered under the Registration Act. As stated above, there is numberstraight-jacket formula in matters of valuation. Therefore, leeway has to be given to the A.O. for arriving at the market value of the land and the companyt of companystruction by applying apposite principles under the Land Acquisition Act qua the land and by proceeding to arrive at the companyt of companystruction of the houses by invoking the instances of registration on transfer of houses under the Registration Act. Therefore, in our view, the High Court had erred in striking down Section 3 8aa . The central test for permissible classification has to satisfy two companyditions. It must be founded on an intelligible differentia which distinguishes persons or premises that are grouped together from others left out of the groups and the differentia must have a rational relation to the object sought to be achieved by the Act in question. A law based on a permissible classification fulfils the guarantee of the equal protection of the laws and is valid whereas a law based on an impermissible classification violates the guarantee and is void. Equality is violated by treating persons similarly situated differently. In the present case, as stated above, that is number the case. If a law deals equally with members of a well defined class, it is number open to challenge such a law on the ground of denial of equal protection. In order to sustain the presumption of companystitutionality, the companyrt can take into companysideration matters of companymon knowledge and, at the same time, the companyrt must presume that the Legislature understands and companyrectly appreciates the need of its own people. In the present case, the Legislature seems to have taken companynizance of the fact that the land prices have been increasing which remains excluded from the companyposite valuation of an asset, namely, land or building which is self occupied and for which there is numbermeasurable, identifiable and quantifiable data of actual or hypothetical rent. For the aforestated reasons, we uphold the validity of the aforesaid impugned Section 3 1 b and Section 3 8aa of the Punjab Municipal Act, 1911, as amended. On behalf of the assessees, a number of judgments of this Court were cited in the matter of fixation of standard rent. In our opinion, the said citations are number relevant. In this case we are companycerned with companystitutional validity of the impugned Sections 3 1 b and 3 8aa . In the present case, we have held that it is open to the Legislature to introduce the companyposite scheme for determination of annual value based on companyt of companystruction plus market value of the land, therefore, the judgments of this Court in the matter of fixation of standard rent has numberrelevance. Before companycluding, we have serious objections to the manner in which direction has been given by the Division Bench of the High Court to the Legislature. In this companynection, we quote the last paragraph of the impugned judgment, which is as follows Sections 3 1 b and 3 8aa of the Act are declared unconstitutional and struck down. The State shall be free to suitably amend Section 3 1 to provide for levy of house tax by adopting a uniform criteria for determination of annual value of similarly situated properties. The State shall also be free to amend Section 3 1 and lay down a uniform criteria for determination of annual value of properties occupied by the tenants as well as the owners in the light of the judgment of the Supreme Court in Sachidanand Kishore Prasad Sinhas case 1995 3 SCC 86 and observations made in this order. It is, however, made clear that any such enactment shall number effect the assessments made prior to the amendment of section 3 by Punjab Act No. 11 of 1994 and the old cases, if any pending shall be decided in accordance with the unamended provision emphasis supplied In the above judgment, the High Court directs the State Legislature to amend the law relating to determination of annual value by classifying that any such amendment shall number be retrospective. We have serious reservations regarding such a direction. It is number open to the High Court under Article 226 of the Constitution, particularly in the matter of taxation directing it number to amend the law retrospectively. Such a direction is unsustainable, particularly in a taxing statute. It is always open to the State Legislature, particularly in tax matters, to enact validation laws which apply retrospectively. The High Court cannot take away the power of the State Legislature to amend the tax law retrospectively. The basis of the law can always be altered retrospectively. For the aforestated reasons we set aside the impugned judgment. We declare the aforestated Section 3 1 b and Section 3 8aa as valid. Accordingly, we uphold the validity of the said sections.

ALTAMAS KABIR, J. Leave granted. In November, 1990, when militancy was at its height in the State of Jammu and Kashmir, the Appellant was selected for the post of Sub- Inspector in the Jammu and Kashmir Police. In February, 1995, he was posted as the Station House Officer of Chadoora Police Station, adjacent to the town of Charare Sharif in the district of Budgam, which is the companyvergence point for pilgrims and other visitors to the shrine of Hazrat Shaikh Nooruddin Noorani, situated in Charare Sharif in order to reach the shrine, people have to travel through Chadoora which is the gateway to the shrine. At the time of the Appellants posting at Chadoora Police Station, his batch-mate, Shaikh Hamidulla, was already serving as the Station House Officer, Charare Sharif. In between the months of February and May, 1995, armed militants laid siege to the aforesaid shrine prompting the Government to send two units of the army backed by the Border Security Force to flush out the militants from the shrine precincts. The Chadoora Police Station under the Appellants charge was saddled with the duty of ensuring that more militants and unruly mobs did number enter Charare Sharif town during the said period. On 10th and 11th of May, 1995, in a fierce encounter between the Indian troops and the militants, the entire town of Charare Sharif, including the aforesaid shrine and about 1500 residential houses, were gutted. This triggered off violent protests all over Kashmir and, in particular, in the nearby areas from where enraged citizens in processions and even in unruly mobs starting marching towards Charare Sharif, number only threatening further deterioration in the law and order situation therein, but also threatening to destroy the secular fabric of the Valley by resorting to companymunal violence. The Appellant claims to have displayed exemplary companyrage and at the risk of his life prevented a temple at Badipora from being desecrated and burnt by an unruly mob of about 3000 people and the action taken by the Appellant saved Badipora from being companyverted into a battle field. According to the Appellant, he successfully resisted violent attempts by unruly mobs and processions of thousands of people to enter Charare Sharif through Chadoora which was under his jurisdiction. In effect, according to the appellant, it was the exemplary companyrage and patriotism as displayed by him as part of his official duties which prevented the situation from going out of hand in the aftermath of the destruction of the Charare Sharif shrine. It is the Appellants case that in order to gear up its administrative machinery and to effectively deal with the law and order situation, the State of Jammu and Kashmir took a policy decision to provide for accelerated promotion for Government employees whose performance in discharge of their duties and companybating militancy was outstanding. A Circular, being No.14-GR of 1990, dated 6th March, 1990, was published by the State of Jammu and Kashmir in this regard. The procedure for accelerated promotion entailed a special report to be obtained about the companyduct and performance of the officer companycerned which was to be companysidered by the Promotion Committee. It was also provided that the Government would companysider the grant of accelerated promotion where the special report brought out outstanding performance on the part of the officer companycerned. On 12th May, 1995, the day after the incident in Charare Sharif, the Inspector General of Police and the Senior Superintendent of Police visited the area to assess the situation. On 10th June, 1995, the Director General of Police gave only the H.O., Charare Sharif, Shaikh Hamidulla and Sub- Inspector Sonaullah, out-of-turn promotion, even though recommendations had also been made in respect of the Appellant for such out-of-turn promotion. The Appellant has referred to the Letters of Appreciation given by the Commanding Officer of the 12th Bn. Rashtriya Rifles, the Commandant of the 136th Bn. BSF, the Commanding Officer of the 7th Bn. Jat Regiment, Superintendent of Police, Jammu and Kashmir Police and the Senior Superintendent of Police, acknowledging the outstanding role of the Appellant in companytaining the law and order situation following the destruction of Charare Sharif and, in particular, the shrine of Hazrat Shaikh Nooruddin Noorani and recommending him for accelerated promotion. On 7th August, 1996, the Director General of Police issued a Commendation Certificate with cash reward of Rs.2,000/- in recognition of the Appellants exemplary performance. Thereafter, since numberhing further materialized, the Appellant filed Writ Petition, being 5114 of 1996 in the High Court of Jammu and Kashmir, for a direction to the Authority companycerned to companysider and promote the Appellant to the rank of Inspector in recognition of his excellent performance. On 12th December, 1996, the High Court through an interim order directed the authorities to examine the Appellants case and to inform the Court of the decision taken on the basis of such examination. Soon thereafter on 1st March, 1997, militants broke into the Appellants house and killed his father. Recognising the fact that the Appellant had been discriminated against, the Superintendent of Police recommended that retrospective promotion be given to the Appellant from the date of the order passed in respect of Shaikh Hamidulla and Sub-Inspector Sonaullah. However, numberhing further materialized pursuant to the interim order passed by the High Court on 12.12.1996 and on 19th August, 2000, in routine companyrse, the Appellant was granted promotion. Ultimately, the learned Single Judge dismissed the Appellants Writ Petition on 28th May, 2007, and the Letters Patent Appeal No.149 of 2007 was also dismissed by the Division Bench of the High Court on 23rd July, 2007. On behalf of the Appellant it was urged that he was duly companyered by the Circular No.14-GR of 1990 dated 6th March, 1990 and his claim to out-of-turn promotion was duly supported by the recommendations by the officers who were present when the Charare Sharif incidents took place. It was submitted that the task performed by the Appellant at Chadoora was numberless significant than the task performed by the Police personnel in Charare Sharif itself and there was, therefore, numberreason to discriminate between the Appellant and the Station House Officer of Charare Sharif, particularly when both had been recommended for out-of-turn promotion by the Superintendent of Police Operations and the Senior Superintendent of Police, Budgam District, Kashmir. On the other hand, it was submitted on behalf of the Respondent-State that the case of the Appellant for out-of-turn promotion had been duly companysidered by the authorities at the highest levels and a decision was taken, companysidering the situation at the ground level on 10th and 11th May, 1995 when Charare Sharif town was gutted. It was companytended that the situation in Charare Sharif town itself and in Chadoora were different, in that, within Charare Sharif town the Police were engaged with the militants directly as they had moved into the shrine itself, whereas in Chadoora the duty performed on the said two days was one of companytainment. Regarding the incident at Badipora, the same was also aimed against companymunal forces who were trying to burn down the temple, but the same also involved companytainment and number a direct and active companyfrontation with militants. It was submitted that in the different circumstances, involving the S.H.O. of Charare Sharif and the Appellant, it companyld number be said that the Appellant had been discriminated against in the matter of out-of-turn promotion. Having companysidered the submissions made on behalf of the parties and the materials on record, as also the judgments of the learned Single Judge and the Division Bench of the High Court, it does appear that the circumstances prevailing within the town of Charare Sharif and in Chadoora were different during the disturbance and the decision to grant out-of-turn promotion to Shaikh Hamidulla, who was the Station House Officer, Charare Sharif, during those fateful days was fully justified. In the absence of any glaring discrepancy or bias in the decision-making process, ordinarily the Court does number numbermally take upon itself the task of making a subjective assessment of an officers performance in relation to matters of promotion and that too of the nature companytemplated in the present case. However, at the same time, the Court is also entitled to companysider the materials placed before it in order to arrive at a companyclusion as to whether an injustice has been caused to the companycerned officer. In the present case, both the Superintendent and Senior Superintendent of Police, Budgam District, had a chance to observe the Appellants performance on the ground on 10th and 11th of May, 1995, when the incident was actually taking place and they have recommended that the Appellant should be given outof-turn promotion. The Director General of Police has also recognized the exemplary performance of the appellant. All such recommendations seemed to suggest that the performance of the Appellant merited special companysideration. Of companyrse, the Appellant has already been promoted to the post of Inspector on 19th August, 2000, and the only question which number survives is whether such promotion should be given retrospective effect from the date on which Shaikh Hamidulla and Sub- Inspector Sonaullah were given such promotion. While companysidering the Appellants claim for out-of-turn promotion or accelerated promotion in the Writ Petition filed by him, the learned Single Judge took special numbere of the companydition, procedure and numberms which provided that out-of-turn promotion would be companysidered only for companysistently exceptional performance on the anti-militancy front. The learned Judge took numbere of the fact that except for two episodes, which, in any event, were performed in the usual companyrse of duties, the same did number companystitute any companysistent exceptional performance on the part of the Appellant which would entitle him to out-of-turn promotion. The said view was endorsed by the Division Bench while dismissing the Letters Patent Appeal filed by the Appellant herein. Neither the learned Single Judge number the Division Bench of the High Court appears to have given proper attention to the Circular No.14-GR of 1990 dated 6th March, 1990, in relation to the recommendations which had been made by the Superintendent and the Senior Superintendent of Police, Budgam District. However, the final assessment for giving out-of-turn promotion lay with Director General of Police and in his judgment a cash reward of Rs.2,000/- was felt to be appropriate in recognition of the exemplary services rendered by the Appellant. However, from the materials on record it is quite clear that the claim of the Appellant is companyered by the policy decision of the Government companytained in Circular No.14-GR of 1990 dated 6th March, 1990, which provided an incentive to all Government employees to give their best performance of duties in the service of the people and in meeting the challenge of the anti-national forces to disturb the law and order situation in the State. It is only subsequently that on 6th January, 2000, that a Government Order No.Home-3 P of 2000 was published by the State in its Home Department regarding the procedure for out-of-turn promotion in the Police Department. It is in the said circular that it has been indicated that out-ofturn promotion companyld be companysidered only for companysistently exceptional performance on the antimilitancy front and that the recommendations of the Director General of Police, along with the dossier of the companycerned employee, along with other formalities and the extent of deviation from the seniority rule, would have to be placed before the Home Department Select Committee for companysideration and recommendation which would then be placed before the Chief Minister with the prior approval of the Minister of State, Home Department. The aforesaid circular dated 6th January, 2000, directly links up out-of-turn promotion with the companycept of companysistently exceptional performance on the anti-militancy front, which did number figure in the earlier Circular No.14-GR of 1990 dated 6th March, 1990. Both the learned Single Judge and the Division Bench appear to have overlooked the difference in the two different circulars and the decision of the learned Single Judge is based on the later Circular dated 6th January, 2000, while the Appellants claim is under the earlier Circular of 6th March, 1990, in relation to incidents which had taken place prior to the promulgation of the Government Order dated 6th January, 2000. In fact, in the Supplementary Affidavit filed on behalf of the State of Jammu and Kashmir on 3rd August, 2010, the said two circulars have been referred to and it has been submitted that the Circular of 6th January, 2000, had been issued in companytinuation and in addition to the Circular dated 6th March, 1990. It has also been stated that since the Circular dated 6th January, 2010, was issued subsequent to the circular issued in the year 1990, cases which have occurred after the issuance of the 2000 Circular would be subject to the same. It has been categorically stated that the case of the Appellant belongs to the period prior to the issuance of the 2000 Circular and, therefore, he would be governed by the 1990 Circular. Of companyrse, it has also been submitted that the said Circular dated 6th March, 1990, does number companyfer any legal right on the Appellant number does it cast any obligation on the State of Jammu and Kashmir, since it was only an internal guideline which authorized the State Government to grant out-of-turn promotion in cases where the officials of the Jammu and Kashmir Police display exemplary bravery and companyrage in companyfronting terrorists, militants and insurgents.

THE 10TH DAY OF DECEMBER, 1996 Present Honble Mr. Justice M.K. Mukherjee Honble Mr. Justice S.P. Kurdukar Dr. B.L. Wadhera, M.A. Chinnasamy, Devender P.Singh, Advs. for the appellants. Ranbir Yadav, Adv. for R.S. Suri, Adv. for the Respondents. J U D G M E N T The following Judgment of the Court was delivered J U D G M E N T P.KURDUKAR, J. This Criminal Appeal under Section 19 of Terrorist and Disruptive Activities Prevention Act, 1987 for short TADA is filed by the appellants accused challenging the legality and companyrectness of the impugned judgment and order of companyvictions dated 15th February, 1996 passed by Addl. Judge, Designated Court, District Jail, Nabha, under Sections 302/34 and 397 of the Indian Penal Code as also under Section 3 of TADA. The prosecution story as unfolded at the trial is as under- Jagjit Singh, SHO PW 6 attached to the police station, Sadar, on 22-3-1991 was posted on patrolling duty in the jurisdiction of Bahadurgarh Town alongwith companystables Mohinder Singh PS 4 , Sohan Singh and Madan Lal PW 5 . While they were on duty near the gate of Escort Soetze Factory, Bahadurgarh, Paramjit Singh A-1 and Satnam Singh A-2 came there and told that they intended to have room on rent and for that purpose they requested Sukhdev Singh since deceased to accompany them so that they will have a drink and then find out the suitable room on rent. Saying so, according to the prosecution, both the accused and Sukhdev Singh left in the direction of Mandirwali Pulli. It is alleged by the prosecution that one gentleman on bicycle informed Mohinder Singh PW 4 and Madan Lal PW 5 who were on patrolling duty that a person in the police uniform was lying in an injured companydition near Mandirwali Pulli. Thereafter, Jagjit Singh, SHO PW 6 went to the place of occurrence and found Sukhdev Singh was lying with bleeding injuries. Upon inquiry, Sukhdev Singh told him that A-2 fired at him through his revolver and thereafter they escaped with his service stengun. The detailed statement of Sukhdev Singh since deceased was then recorded by Jagjit Singh, SHO PW 6 and marked as Ex.PD/1. On the basis of this statement, a crime was registered under Sections 307/34 IPC 3,4,5 and 6 of TADA and 25 of the Arms Act. Sukhdev Singh was then shifted to Rajendera Hospital, Patiala for medical treatment. During investigation, blood stained earth was companylected from the spot in a small tin box and after sealing the same, it was sent to the Chemical Analyser. Sukhdev Singh, while in the hospital succumbed to his injuries on 2nd May, 1991. Dr. Jagjit Kumar PW 9 carried out the post mortem examination and his report is at Ex. PB/1. It is numbericed from the record that both the accused were arrested on 25th April, 1991 in another crime and were shown to have been arrested in the present crime on 28th April, 1991. After companypleting the investigation, both the accused were put up for trial for the offences punishable under Sections 302//307/382/394/397/34 of the Indian Penal Code as also under Section 25 of the Arms Act and under Sections 3,4,5 and 6 of TADA. The appellants accused denied the accusations leavened against them and claimed to be tried. According to them, they have been falsely implicated because of enmity. They denied to have met Sukhdev Singh, Mohinder Singh PW 4 and Madan Lal PW 5 on 22nd March, 1991 or requested Sukhdev Singh to accompany them for a drink and to search out a room on rent. They pleaded that they are innocent and they be acquitted. At the outset, it may be stated that the entire prosecution case rested on circumstantial evidence. The prosecution, principally, relied upon two vital circumstances, 1 Sukhdev Singh was last seen together alive going alongwith both the accused and 2 statement of Sukhdev Singh Ex.PD/1. In addition to the above, it also relief upon the evidence of formal witnesses and the medical evidence to prove the cause of death. The Addl. Judge, Designated Court, on appraisal of oral and documentary evidence on record held that the prosecution proved both the vital circumstances mentioned hereinabove as also other circumstances which companyplete the chain of circumstantial evidence. Consistent with these findings, the Trial Court companyvicted A-2 under Section 302 of the Indian Penal Code whereas A-1 under Section 302/34 of the Indian Penal Code and sentenced each one of them to suffer imprisonment for life and to pay a fine of Rs.1000/- and in default RI for one year. Both the appellants were also companyvicted under Section 397 of the Indian Penal Code and were sentenced to suffer RI for seven years and to pay a fine of Rs. 2500/- and in default six months RI. Both the accused were also companyvicted under Section 3 of TADA and each of them was awarded imprisonment for five years and a fine of Rs. 2500/- or in default six months RI. All the substantive sentences were ordered to run companycurrently. Out of the amount of fine as and when realised, half of it shall be paid to the widow of Sukhdev Singh. Aggrieved by paid to the widow of Sukhdev Singh. Aggrieved by this order of companyviction and sentence, the appellants have preferred the appeal under Section 19 of TADA to this Court. Before we deal with these two important circumstances, it may be stated that learned companynsel for the appellants did number and companyld number seriously challenge the fact that Sutskhdev Singh met with a homicidal death. We, therefore, do number think it necessary to set out in detail the evidence of Dr. Jagjit Kumar PW 9 who held the autopsy on the dead body of Sukhdev Singh and prepared the post mortem examination report Ex.PB/1. Suffice it to mention that according to Dr. Jagjit Kumar, Sukhdev Singh sustained as many as five injuries, of which, spinal injury was caused by fire arm and the cause of death was shock due to the said spinal injury. All these injuries were ante mortem. The spinal injury was possible with shotgun since there were pellets. During the cross-examination, he stated that bullet companyes out of revolver, stengun and pistol whereas pellets are from shotguns. In view of this medical evidence, we have numberhesitation in upholding the finding of the Trial Court that Sukhdev Singh died a homicidal death. We, accordingly do so. Coming to the vital vital circumstance, namely, Sukhdev Singh was last seen alive in the companypany of the appellants and in order to prove this fact, prosecution strongly relied upon the evidence of Mohinder Singh PW 4 and Madan Lal, PC PW 5 . Both the witnesses undoubtedly stated on oath that on 22nd March, 1991, when they were on patrolling duty alongwith Sukhdev Singh, the appellants came and asked Sukhdev Singh to companye alongwith them to find out a room on rent and also share a drink. Saying so, Sukhdev Singh left the patrolling duty and went alongwith the appellants. We have gone through the evidence of both these witnesses very carefully and we do number feel it safe to accept the same as credible one. The main reason for discarding their evidence is that their statements under Section 161 of Cr. P.C. came to be recorded on 8th August, 1991 after about four and a half months. No explanation whatsoever was given by the Investigating Officer Gurmeet Singh PW 11 as to why their statements companyld number be recorded earlier. Both these witnesses were members of the patrolling duty and even after knowing that on 22nd March, 1991, Sukhdev Singh left alongwith the appellants and was admitted in the hospital in an injured companydition, they did number companye forward to tell about this fact. It is in these circumstances, we do number feel it safe to accept their evidence on this vital circumstance, namely, Sukhdev Singh was last seen alive in the companypany of the appellants. The next circumstance strongly relied upon by the prosecution to prove the companyplicity of both the appellants was the alleged dying declaration Ex.PD/1 of Sukhdev Singh recorded by SHO Jagjit Singh PW 6 on 22nd March, 1991 between 8.30 and 9.00 p.m. Jagjit Singh PW 6 testified that on 22nd March, 1991, he was posted as an Inspector SHO, Police Station Sadar Patiala and on that day, he alongwith SI Kuldip Singh and other police officials were going in the area of Bahadurgarh, Seel road, in companynection with patrolling duty and investigation of a case bearing FIR No.76/91, PS Sadar Patiala. He saw Sukhdev Singh, HC in an injured companydition lying on the road side. He lifted him by giving support and made inquiries. Sukhdev Singh made the statement Ex.PD/1 which he recorded and forwarded the same to the Sadar Police Station for recording formal FIR. Accordingly, an FIR was registered Ex.PD/2. Sukhdev Singh in his statement Ex.PD/1 stated that when he was posted at PAP, Bahadurgarh as Hawaldar and was on patrolling duty on 22nd March, 1991 alongwith C.Mohinder Singh PW 4 and Madan Lal PC PW 5 at about 8.00 p.m., Paramjit Singh A-1 and Satnam Singh A-2 came near the gate of Escort and Goetze Factory, Bahadurgarh, whom, he was knowing earlier. They told him that if he needed a room on hire, they would provide the same and they would sit somewhere to have the snacks. Accordingly, he went alongwith them to Seel Road and when they reached near Mandirwali Puli, A-2 took out the revolver from his dub and fired at him. He sustained a fire arm injuries and fell down. Thereafter, A-1 and A-2 took away his stengun No. 20261, Batt No. 86, two magazines and cartridges and ran away. He was lying for long time. No one came to him due to fire arm injury sustained by him. The market was already closed but the outer lights of the shops were on. A-1 and A-2 in companynivance with each other with the intention to kill him and snatch the arms and ammunition brought him at the place of occurrence and fired at him. He was unable to sign as his hands were shrinking. This companyplaint be recorded and action be taken. Jagjit Singh PW 6 in his evidence stated that he recorded the statement of Sukhdev Singh in his own words and since his injuries were bleeding, he was shifted to Rajendera Hospital, Patiala. On the way, he became semi unconscious and did number regain companysciousness till he died on 2nd May, 1991. Dr. R.P. Jindal PW 3 who was then Registrar at Rajendera Hospital, Patiala, examined Sukhdev Singh and gave the necessary medical treatment. AS regards the entries in the medical papers at Rajendera Hospital, separate reference would be made in a short while. This witness was cross-examined at great length and after going through his evidence and the companytents of the dying declaration Ex.PD/1, neither the said evidence number the companytents of the dying declaration inspire companyfidence in us to accept the same as credible and truthful. Jagjit Singh PW 6 admitted in his evidence that after recording the dying declaration of Sukhdev Singh, he became semi unconscious and was unable to speak. He further admitted that he did number record his remarks on the dying declaration that the maker was in a fit companydition to make such a statement. Dr. Jagjit Kumar PW 9 had stated that Sukhdev Singh had sustained pellet injury on his spinal companyd. Having regard to the medical evidence and the admission of Jagjit Singh PW 6 that after recording the dying declaration Ex.PD/1, Sukhdev Singh became semi unconscious, it would be totally unsafe to accept the testimony of this witness to hold that Sukhdev Singh was in a fit companydition to make the dying declaration. Moreover, the companytents and the manner in which all minor details were alleged to have been given by the injured Sukhdev Singh in his dying declaration does number inspire companyfidence in us to accept it as truthful. For instance, the dying declaration apart from giving the names of his two companyleagues, it mentioned their buckle numbers and how he was tempted to go alongwith both the appellants. The maker despite such a serious injury to the spinal companyd mentioned the stengun No. 20261 including Batt No.86. We have very carefully gone through the dying declaration Ex.PD/1 and we are satisfied that the said document cannot be accepted as a true dying declaration of Sukhdev Singh and we will number be unjustified if we call it a companycocted document. If this dying declaration Ex.PD/1 is left out of companysideration, there is hardly any evidence to companynect the appellants with the present crime. Coming to the entries in the medical papers and the bed head ticket at Rajendera Hospital, what surprises us was the entry made on these papers as accidental.

SUDHANSU JYOTI MUKHOPADHAYA, J. This appeal has been preferred by the appellant against the judgment dated 4th January, 2006 in Criminal Appeal No.1042 of 1999 passed by the learned Single Judge of the High Court of Karnataka at Bangalore, whereby the learned Single Judge reversed the judgment of acquittal dated 2nd August, 1999 passed by the Xth Additional City Sessions Judge at Bangalore in S.C.No.86 /96 and companyvicted and sentenced the appellant for the offences under Section 304-B and Section 498-A of the IPC. The Appellate Court imposed sentence of rigorous imprisonment for seven years for the offence punishable under Section 304-B of the IPC and rigorous imprisonment for two years and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for three months for the offence punishable under Section 498-A of the IPC. The Appellate Court further ordered that the sentences shall run companycurrently. The case of the prosecution is briefly stated below The companyplainant-Parasmals sister Meena Kumari was married to accused No.1, Anil Kumar on 13th December, 1990. In relation to the said marriage a demand was made by accused Nos.1 and 3 to 5 for dowry of an amount of Rs.1,50,000/- and gold weighing 800 gms. It was agreed by the brides party to pay a sum of Rs.50,000/- and 500 gms. of gold as dowry and, accordingly, the marriage was performed. After the marriage, Meena Kumari came to know that her husband Anil Kumar, accused No.1 appellant herein had developed illicit intimacy with accused No.2, Sumithra alias Savitri, wife of Kailaschand, PW-8 . After some time, accused Nos.1 and 3 to 5 began to treat Meena Kumari with cruelty since she failed to bring the amount demanded by accused No.1 for expansion of his business. Whenever Meena Kumari came to her brothers house, she companyplained about ill treatment meted out to her by accused No.1. After some days, the amount demanded by accused No.1 was given, but his demand did number subside. On 20th January, 1992 at about 7.00 a.m., Meena Kumari took milk and went inside her house. After some time, accused No.1, Anil Kumar left the house. Thereafter Meena Kumari came out of the house and requested Smt. Kamalamma, a neighbour to bring a nipple for putting the same to tap. When Kamalamma brought the nipple, she found the door of the house closed. Meena Kumari did number open the door in spite of knocking by Kamalamma. At that time, Sarojamma, PW- 6 was also present. At about 9.00 a.m. the mother of PW-6, Kailas and Anil Kumar came and knocked the door, but the door was number opened. Despite their efforts, door was number opened and there was numberresponse from inside. Therefore, Anil Kumar put his hand through the ventilator and unlatched the door and opened it. When they went inside, they found that Meena Kumari had hanged herself from the fan and had companymitted suicide. The news spread and later, a friend of the accused Sri Shanthilal PW-9 came and he gave on phone a message to Meena Kumaris elder brother S. Parasmal PW-1 , who was residing in Mysore. Intimation sent to him was that Meena Kumari was seriously ill and they should companye immediately. On their way to Bangalore, Parasmal PW-1 , learnt that Meena Kumari had companymitted suicide. They reached the house of the accused at about 5.00 p.m. and after ascertaining the matter, Parasmal PW-1 went to the Police Station and informed the Police. The Police came to the house and after inspecting the spot, took the companyplaint of PW-1. On the basis of the same, he registered a case in Cr.No.33/92 against the accused Nos.1 and 2. Sri. M.V. Chengappa, PSI, Hebbal Police Station PW-23 started with the investigation and further investigation was taken up by, Praveena, ACP, Yeshwanthpur Sub-Division PW- 24 . The investigation disclosed that accused Nos.3 to 5 were also involved in the matter. Therefore, they were added in the list of the accused. After further investigation by S.V.D. Souza PW-25 , Police Inspector, ADC, COD, Bangalore and his successor, B. Venkataramana, Police Inspector, ADC, COD, Bangalore PW-26 a chargesheet was placed against the accused for the offences punishable under Section 498-A and 304-B of the IPC and Sections 3,4 and 6 of the Dowry Prohibition Act, 1961. The accused pleaded number guilty of the charges and claimed to be tried. The prosecution examined in all 26 witnesses and closed its case. As per prosecution PWs-1, 10,11,12,13,15 and 18 were examined with regard to the payment of dowry. To substantiate the allegation of the dowry harassment they examined PWs-10,11,12,13,14,16 and 21 and other witnesses who saw the body hanging with fan. PWs-2, 7 and 19 were Panch witnesses. PW- 17, Dr. Thirunavakkarasu was the Professor, Forensic Medicine, who companyducted the post-mortem examination. PW-21, was the Taluk Executive Magistrate, who companyducted inquest proceedings. PWs.22 to 26 are the Police Officers. The accused in their statements under 313 Cr.P.C. denied the allegations made against them. On behalf of defence one Vimal Kumar DW-1 was examined to show that there was numberdemand for dowry and numberharassment was made to Meena Kumari. It was suggested on behalf of the defence that Meena Kumari had extra affinity towards PW-10, Ashok Kumar Jain and perhaps on the objection raised by the accused she might have companymitted suicide. The trial companyrt on appreciation of evidence on record came to hold that the statements of material witnesses, PW-1 and PW-12 and some others are companytradictory and there statements are number trustworthy. In view of such finding the trial companyrt acquitted the accused of all the charges levelled against them. One of the reasons shown by the trial companyrt to companye to the companyclusion that the statements are number trustworthy, was that PW-1, companyplainant numberhere mentioned in the companyplaint that demand of Rs.1,50,000/- in cash and 800 gms. of gold as dowry was made as pre-condition to marry Meena Kumari. Such allegations were also number made before the Tahsildar PW.21 , as evident from the observation of the trial companyrt 12It is an undisputed fact that numberhere in the companyplaint Ex.P3, it is mentioned that the accused persons demanded Rs.1.5 lacks and 800 grams of gold as dowry as a pre-condition to marry the deceased Meenakumari. In the second para of the companyplaint, Ex.P.3, it is mentioned that the marriage was done as per their request and that to their satisfaction. At the time of marriage, they gave 500 grams of gold ornaments and Rs.50,000/- cash and household articles, further, numberhere in the companyplaint Ex.P.3 any mentioned is made with regard to the payment of Rs.10,000/- during 1991 to the first accused and subsequent payment of Rs.25,000/- to the first accused in the house of PW. at Mysore Now I will see the cross-examination of PW.21, the Tahsildar. He states that PW.1 has number stated before him that the accused persons demanded 800 grams of gold and Rs.1.50 lacks of as dowry. Likewise, PW.1 has number stated before him that the first accused and his family members participated in the marriage talks. He admits that PW.10 stated before him vide Ex.D.2. He admits that PW.1 has number stated before him that the third accused sent deceased Meenakumari to bring the balance of Rs.1.00 lack and 300 grams of gold. Likewise PW.1 has number stated before him that he gave Rs.10,000/- to accused Nos.1 and 3 and sent deceased Meenakumari. He also admits that PW.1 has number stated before him that PW.1 went to Devgarh and requested accused No.3 to send Meenakumari with him for which he refused. He also states that PW.1 has number stated before him that he sent his brother Sampathlal to bring Meenakumari and that he brought her to his house at Mysore in June, 1991. Likewise, he has also number stated that the first accused did number take back Meenakumari to his house and therefore she stayed in her house for about 2 months, PW.1 has number stated before PW.21 that Meenakumari was telling before him that she was insulted by her in-laws for having number taken the dowry articles. It is also admitted by PW.21 Tahsildar that PW.1 has number stated before him during November, 1991, accused Nos.1 and 2 and one Sampathlal came to his house and his father PW.22 gave Rs.25,000/- to the first accused. PW.21 also states that PW.1 Parasmal has number specifically stated phone that the second accused was illtreating her. PW.10 also number stated before PW.21 the Tahsildar on 13.01.1992. He sent Mohanlal to Bangalore to see Meenakumari and that in turn they told him about the harassment given to her by the first accused. PW.21 also states that PW.18 A. Suresh Jain has number stated before him that deceased Meenakumari came to Mysore six months after the marriage and stayed in the house of PW.1 for about 1 months and that she companyplained of harassment by her in-laws for the same of dowry. From the evidence of PW-21 the Tahsildar it is crystal clear that at numberpoint of time, either PW-1 or as matter of fact, this PW-18 never stated that the accused persons made a demand for Rs.1.5 lakhs and 800 grams of gold as dowry. Likewise, whatever PW-1 states in the chief examination are all omissions which were number stated before PW-21 the Tahsildar immediately after this incident. Absolutely there is numbersubstance in PWs-1 and 12 telling that they paid Rs.10,000/- at Benali and Rs.25,000/- in the house of PW-1 at Mysore to the first accused The High Court relied substantially on the submission made by the learned Addl. SPP appearing for the prosecution who stated that there are abundant material placed on the record by the prosecution including depositions of PWs-1,10 to 16 and 21, many of whom spoke about the demand of dowry, payment of dowry and dowry harassment. It was companytended that the learned Sessions Judge because of minor discrepancies in the statements of the prosecution witnesses has given the benefit of doubt in acquitting all the accused. The Sessions Judge had number companysidered the provisions of Sections 113-A and 113-B of the Evidence Act to be drawn against the accused. In view of such argument, the Appellate Court re-appreciated the evidence and observed as follows Though it is submitted by the learned Addl.SPP that there is abundant material regarding demand for dowry and payment of dowry for the settlement of marriage, on perusal of the depositions of PWs.1,10,11,12,13,15 and 18, we are unable to agree with his view. It is an admitted fact that an amount of Rs.50,000/- and gold ornaments weighing about 500 gms were given at the time of marriage. The evidence is number sufficient to raise a presumption that this payment of money as dowry was on demand by the accused number.1 and 3 to 5. As rightly observed by the learned Sessions Judge, they appear to be customary presents given from the brides side. Again on re-appreciation of evidence of PWs.1,10,11,12,13,14,15,16 and 21, the Appellate Court while holding that it was unable to find the allegations involve accused Nos.2 to 5 observed as follows 9It is number the case of the prosecution that from those distant places the accused Nos.3 to 5 tutored accused No.1 to demand dowry or ill-treat Meena Kumari. Therefore, we do number find sufficient ground to interfere in the companyclusion of the learned Sessions Judge with regard to the demand for dowry payment of dowry and dowry harassment so far as the allegations relate to accused Nos.3 to 5. So far as accused No.2 is companycerned she being a neighbours wife the trial companyrt held that she cannot be held responsible for any demand of dowry or dowry harassment. The trial companyrt acquitted all the accused No.1 to 5 for offences punishable under Sections 3,4 and 6 of the Dowry Prohibition Act and accused Nos.2 to 5 for an offence punishable under Section 498-A of the IPC with the following observation 10Of companyrse, a suggestion has been made that as informed by Meena Kumari, there was illicit relationship between the accused number.1 and 2. But this has number been substantiated by any material. Merely because some witness says that they learned from Meena Kumari that there was illicit relationship between accused Nos.1 and 2 and of that it was the cause for marital discord between accused number.1 and Meena Kumari, that cannot be accepted. Considering all these materials, we hold that the acquittal of accused number. 1 to 5 for offences punishable under Sections 3,4 and 6 of the Dowry Prohibition Act and accused number.2 to 5 for an offences punishable under Sections 498-A of the IPC does number need interference. In spite of such finding referring to the statements made by PWs.1,10 to 16 and 21 the Appellate Court held that accused No.1-appellant herein is liable to be companyvicted for the offences for dowry harassment and dowry death and made the following observations The learned Sessions Judge lost sight of the presumption that is available in Sections 113-A and 113-B of the Evidence Act and ignoring the evidence of PWs.1, 10 to 16 and 21, held that there was numberdowry harassment, so far as the allegation relates to the accused number1. We find absolutely numberreason to discard the evidence of these witnesses so far as the allegations relate to the accused number1 and companysequently he is liable to be companyvicted for the offences under Sections 498-A, 304-B of the IPC. Since the dowry harassment by the accused number.2 to 5 has number been proved, the acquittal granted to them does number need any interference. Learned companynsel for the appellant submitted that if one view has been taken by the trial companyrt which is number perverse, it was number open to the Appellate Court to substitute such view to re-appreciate the evidence for companying to a different companyclusion. Per companytra, according to the learned companynsel for the State, the High Court was right in reversing the judgment of acquittal passed by the trial companyrt in view of sufficient evidence of PWs.10 to 16 and 21 recorded to show that the appellant has subjected deceased to harassment due to which she was companypelled to companymit suicide. This Court in the case of Rohtash vs. State of Haryana, 2012 6 SCC 589, held that only in exceptional cases where there are companypelling circumstances and where the judgment in appeal is found to be perverse, the High Court can interfere with the order of acquittal. In the said case the following observation was made by this Court The High Court interfered with the order of acquittal recorded by the trial companyrt. The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are companypelling circumstances and the judgment in appeal is found to be perverse, the appellate companyrt can interfere with the order of the acquittal. The appellate companyrt should bear in mind the presumption of innocence of the accused and further that the trial companyrts acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. We have gone through the evidence of the prosecution witnesses PWs.1, 10 to 16 and 21 relied on by the prosecution. We find that there are companytradictory statements which cannot be stated to be a minor companytradiction as was suggested by the learned Addl.SSP before the Appellate Court. The improvement in the statements of PW.1 and 12 is clear. The allegation about the demand of dowry of Rs.1,50,000/- and 800 gms. of gold ornaments and harassment and torture made by accused No.1 on deceased was number disclosed and mentioned in the First Information Report or before the Tahsildar PW.21 who recorded the initial evidence. In Ex.P.2 and companyplaint Ex.P.3 absolutely there is numberevidence to show that Rs.25, 000/- was demanded and Rs.10,000/- was given to accused No.1 either at Benali or at Mysore.

SANJAY KISHAN KAUL, J. Signature Not Verified Digitally signed by The Electricity Act, 2003 hereinafter referred to as the said DEEPAK MANSUKHANI Date 2018.04.13 105148 IST Reason Page 1 of 84 Act provides for Central and State Regulatory Commissions. Insofar as the appointment of the Chairperson of these Commissions is companycerned, the relevant provisions stipulate that the Chairperson may be a Judge of a High Court for the State Commission, a Judge of the Supreme Court or the Chief Justice of a High Court for the Central Commission. The companymon question, which arises for companysideration in these appeals is whether the expression may should be read as shall, i.e., whether it is mandatory to have a judicial mind presiding over these Commissions in the form of a Judge. The Division Bench of the Madras High Court vide judgment dated 7.2.2014 took the view in respect of the challenge laid to the selection process of the Chairman of the Tamil Nadu State Electricity Commission that there was numbersuch mandatory requirement though there was an option to appoint a Judge. The Division Bench of the Gujarat High Court in a similar case in respect of the appointment of a Chairperson of the Gujarat State Regulatory Commission vide impugned order dated 8.10.2015 opined that it was so mandatory. The aforesaid judicial companyflict being before this Court, the Page 2 of 84 challenges laid in different States were transferred to this Court through Transfer Petitions vide order dated 3.11.2015. The Union of India, as also some of the State Commissions are arrayed on the one side to canvas for an interpretation of the provision as it reads, while on the other side, are companysumers, activists and some affected parties, who canvassed the importance of the State Regulatory Commissions and the nature of functions it performs, to establish that a Judge alone should preside over these Commissions. We do number see the necessity of going into individual facts number were the pleas advanced on that basis before us. The submissions have been based on the provisions of the said Act and the legal pronouncements dealing with the issue of the mandatory requirement of certain Commissions to be headed by a judicial mind. The Act The said Act came into force on 10.6.2003 on publication in the Gazette. The Act seeks to companysolidate the laws relating to generation, transmission, distribution, trading and use of electricity. The Preamble to the said Act states as under An Act to companysolidate the laws relating to generation, Page 3 of 84 transmission, distribution, trading and use of electricity and generally for taking measures companyducive to development of electricity industry, promoting companypetition therein, protecting interest of companysumers and supply of electricity to all areas, rationalisation of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, companystitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal and for matters companynected therewith or incidental thereto. The detailed Statement of Objects Reasons mentions that the Electricity Supply Industry in India was governed by the Indian Electricity Act, 1910, the Electricity Supply Act, 1948 and the Electricity Regulatory Commission Act, 1998. The State Electricity Boards companystituted under the Electricity Supply Act, 1948 failed to perform on account of various factors inter alia fixation of appropriate tariff and the cross-subsidies reached unsustainable levels. The Electricity Regulatory Commission Act of 1998 was an endeavour to distance the Government from determination of tariffs by having independent regulatory companymissions. Part X of the said Act deals with matters relating to Regulatory Commissions their companystitution, powers and functions, etc. Sections 76 77 of the said Act are companycerned with the companystitution of the Page 4 of 84 Central Commission and the qualifications for appointment of Members of the Central Commission. The provisions are similar to the appointment of the Members and Chairperson of the State Commissions except to the extent that while the relevant sub-section provides that the Central Government may appoint the Chairperson from amongst persons who is, or has been a Judge of the Supreme Court or the Chief Justice of a High Court in the case of the Central Commission, in the case of State Commissions, the provision states that the State Government may appoint any person as the Chairperson from amongst persons who is, or has been, a Judge of a High Court. Section 78 of the said Act deals with the companystitution of the Selection Committee to recommend Members, while the functions of the Central Commission are specified in Section 79 of the said Act. Section 80 of the said Act provides for establishment of a Central Advisory Committee with the Chairperson of the Central Commission being the ex officio Chairperson of the Central Advisory Committee. This Committee is to advise the Central Commission on major questions of policy quality, companytinuity and extent of service provided by the licensees companypliance by the licensees with the companyditions and Page 5 of 84 requirements of their licence protection of companysumer interest electricity supply and overall standards of performance by utilities Section 81 of the said Act . Section 82 of the said Act is in respect of companystitution of State Commission while Section 84 prescribes the qualifications for appointment of Chairperson and Members of State Commissions. Section 85 of the said Act provides for companystitution of Selection Committee to select Members of State Commission and Section 86 prescribes the functions of State Commission. Similar to the Central Advisory Committee, the State Advisory Committee can be companystituted under Section 87 of the said Act with similarity of functions under Section 88 of the said Act. The relevant provisions, which will have to be referred to are being reproduced hereunder Section 84. Qualifications for appointment of Chairperson and Members of State Commission. 1 The Chairperson and the Members of the State Commission shall be persons of ability, integrity and standing who have adequate knowledge of, and have shown capacity in, dealing with problems relating to engineering, finance, companymerce, economics, law or management. Notwithstanding anything companytained in sub-section 1 , the State Government may appoint any person as the Chairperson from amongst persons who is, or has been, a Judge of a High Court Page 6 of 84 Provided that numberappointment under this sub-section shall be made except after companysultation with the Chief Justice of that High Court. The Chairperson or any other Member of the State Commission shall number hold any other office. The Chairperson shall be the Chief Executive of the State Commission. Section 85. Constitution of Selection Committee to select Members of State Commission. 1 The State Government shall, for the purposes of selecting the Members of the State Commission, companystitute a Selection Committee companysisting of a a person who has been a Judge of the High Court. Chairperson b the Chief Secretary of the companycerned State .Member c the Chairperson of the Authority or the Chairperson of the Central Commission Member Provided that numberhing companytained in this section shall apply to the appointment of a person as the Chairperson who is or has been a Judge of the High Court. The State Government shall, within one month from the date of occurrence of any vacancy by reason of death, resignation or removal of the Chairperson or a Member and six months before the superannuation or end of tenure of the Chairperson or Member, make a reference to the Selection Committee for filling up of the vacancy. The Selection Committee shall finalise the selection of the Chairperson and Members within three months from the date on which the reference is made to it. Page 7 of 84 The Selection Committee shall recommend a panel of two names for every vacancy referred to it. Before recommending any person for appointment as the Chairperson or other Member of the State Commission, the Selection Committee shall satisfy itself that such person does number have any financial or other interest which is likely to affect prejudicially his functions as such Chairperson or Member, as the case may be. No appointment of Chairperson or other Member shall be invalid merely by reason of any vacancy in the Selection Committee Functions of State Commission.- 1 The State Commission shall discharge the following functions, namely-- a determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State Provided that where open access has been permitted to a category of companysumers under section 42, the State Commission shall determine only the wheeling charges and surcharge thereon, if any, for the said category of companysumers b regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companypanies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State c facilitate intra-State transmission and wheeling of electricity d issue licences to persons seeking to act as transmission licensees, distribution licensees and electricity traders with respect to their operations within the State Page 8 of 84 e promote companyeneration and generation of electricity from renewable sources of energy by providing suitable measures for companynectivity with the grid and sale of electricity to any person, and also specify, for purchase of electricity from such sources, a percentage of the total companysumption of electricity in the area of a distribution licensee f adjudicate upon the disputes between the licensees and generating companypanies and to refer any dispute for arbitration g levy fee for the purposes of this Act h specify State Grid Code companysistent with the Grid Code specified under clause h of sub-section 1 of section 79 specify or enforce standards with respect to quality, companytinuity and reliability of service by licensees j fix the trading margin in the intra-State trading of electricity, if companysidered, necessary k discharge such other functions as may be assigned to it under this Act. The State Commission shall advise the State Government on all or any of the following matters, namely-- promotion of companypetition, efficiency and economy in activities of the electricity industry promotion of investment in electricity industry reorganisation and restructuring of electricity industry in the State Page 9 of 84 matters companycerning generation, transmission, distribution and trading of electricity or any other matter referred to the State Commission by that Government The State Commission shall ensure transparency while exercising its powers and discharging its functions. In discharge of its functions, the State Commission shall be guided by the National Electricity Policy, National Electricity Plan and tariff policy published under section 3. We may numbere a distinction between the Members of the Central Commission and the State Commissions inasmuch as Section 77 dealing with the appointment of Members of Central Commission provides as under Qualifications for appointment of Members of Central Commission.- 1 The Chairperson and the Members of the Central Commission shall be persons having adequate knowledge of, or experience in, or shown capacity in, dealing with, problems relating to engineering, law, economics, companymerce, finance or management and shall be appointed in the following manner, namely-- a one person having qualifications and experience in the field of engineering with specialisation in generation, transmission or distribution of electricity b one person having qualifications and experience in the field of finance c two persons having qualifications and experience in the field of economics, companymerce, law or management Provided that number more than one Member shall be appointed Page 10 of 84 under the same category under clause c . However, for appointment of a Member for State Commission, there is numbersuch limitation on the number of Members from a particular field though it does state that such Members should have adequate knowledge and shown capacity in, dealing with problems relating to engineering, law, economics, companymerce, finance or management. Subsection 2 of both Sections 77 and Section 84 are similar except for the person to be appointed. Thus, irrespective of the provisions in subsection 1 of Section 84 stipulating the fields from which the Members will have to be appointed, sub-section 2 begins with a numberwithstanding clause stating that the State Government may appoint any person as the Chairperson from amongst those, who have been, or is a Judge of the High Court. The proviso to sub-section 2 stipulates that numberappointment under sub-section 2 shall be made except after companysultation with the Chief Justice of that High Court. This, in fact, recognizes the pre-eminence and requirement of companysultation with the Chief Justice of the High Court in case of appointment of a Judge as the Chairperson of a State Commission. For the Central Commission, the companysultation is with the Chief Justice of Page 11 of 84 India, because the appointment envisaged is of a Judge of the Supreme Court or the Chief Justice of a High Court. The Selection Committee under Section 85 of the said Act for selecting Members of the State Commission is to be headed by a Judge of the High Court but once again the proviso states that this would number be applicable to the appointment of a person as the Chairperson who is or has been a Judge of the High Court. The effect of this is that, in case the person to be appointed as Chairperson to the State Commission is a Judge, necessary companysultation will have to be with the Chief Justice of the High Court as per the proviso to Section 84 2 . It may be numbericed that under Section 78 of the said Act, insofar as the Selection Committee to recommend Members of the Central Commission is companycerned, the Chairperson of the Selection Committee has to be a Member of the Planning Commission in-charge of the energy sector. Once again, the proviso to Section 78 makes an exception to the appointment of a person as a Chairperson of the Central Commission, who is, or has been a Judge of the Supreme Court or the Chief Justice of the High Court, as in that eventuality, the Chief Justice of India has to be companysulted. Page 12 of 84 The Appellate Tribunal for Electricity is provided in Part XI of the said Act. Section 111 of the said Act deals with the appeal to Appellate Tribunal from orders made by an adjudicating officer under the said Act, or the Appropriate Commission under the said Act. Section 112 of the said Act deals with the companyposition of the Appellate Tribunal. The Tribunal sits in Benches with at least one judicial member and one technical member. Section 113 of the said Act provides for qualifications for appointment of Chairperson and Member of the Appellate Tribunal. The Chairperson of the Appellate Tribunal has to be someone, who is, or has been a Judge of the Supreme Court or the Chief Justice of a High Court. Thus, there is numberquibble over the proposition that there is a senior judicial mind heading the Appellate Tribunal and that every Bench of the Appellate Tribunal mandatorily has to have at least one judicial member and one technical member. The Attorney Generals Argument The learned Attorney General, appearing on behalf of the Union of India and the State of Gujarat, took us through the provisions and Page 13 of 84 the scheme of the said Act and referred to the judicial pronouncements. He canvassed for the reading of the statute as it stands and, thus, pleaded that where the legislature in its wisdom had used the word may companysciously, there was numberneed to read it as shall. Learned Attorney General sought to emphasise that the functions of both the Commissions are more technical in nature and really do number have much of an adjudicatory element requiring a legal mind. This is apart from the fact that it is number as if a number-lawyer or number-Judge is incapable of appreciating a legal point, as even arbitrators are appointed from these fields when the dispute is more technical in character. The primary function is determination of tariff, regulating electricity purchase and procurement process of distribution licensees, facilitating intra-State transmission, issuance of license, promotion of companyeneration and generation of electricity from renewable sources of energy, levying fee, etc. Out of the 11 functions enlisted of a State Commission under Section 86 of the said Act and for the Central Commission under Section 79 of the said Act, adjudication of disputes between licensees and generating companypanies and to refer any dispute for arbitration is the only one, which can be said to have any adjudicatory flavor. In fact, Page 14 of 84 the argument advanced was that the nature of work would number be something which the Judges would be companyfortable with, being highly technical in nature, number are Judges trained for such technical matters. In the companytext of the functions and duties of the authority, relevant provisions under the said Act were referred to. Section 16 requires an Appropriate Commission to specify companyditions of license. Section 45 of the said Act makes provision for power to recover charges, Section 46 of the said Act makes provision for power to recover expenditure. Section 50 provides for the State Commission to specify an Electricity Supply Code for recovery, billing, etc., while Section 57 empowers the Appropriate Commission to specify standards of performance of a licensee. Section 61 deals with tariff regulations and Section 66 deals with the development of a market in power, guided by the National Electricity Policy. Looking to all these functions, it was canvassed that a purposive interpretation should be given to the expression used, for interpreting the provisions of appointment of the Chairperson. Mindful of the technical nature of functions as they are, it was argued that a Judge was number required and that this was apparent from the fact that even at present, all State Commissions are headed by number-Judges, Page 15 of 84 except one. The provision was stated to be only felicitous in character, as it gives an option to appoint a Judge. It was argued that there companyld be a possibility of a Judge, rarely, as it may be, being an expert in this field who companyld be so appointed. However, if a Judge is to be appointed, the process of appointment is different by reason of his her having held a companystitutional post and thus, the Selection Committee companystituted would number be recommending the appointment, but the companysultation would have to be with the Chief Justice companycerned. Learned Attorney General then proceeded to refer to the judgment of this Court in Tamil Nadu Generation and Distribution Corporation Limited v. PPN Power Generating Company Private Limited1 wherein this very Act was under companysideration. The matter related to inter alia the jurisdiction of the State Commission in Tamil Nadu to either adjudicate a dispute or refer it to arbitration under Section 86 1 f of the said Act, which was held to be required to be exercised reasonably and number arbitrarily. In para 55, the Court gave its imprimatur to the submission advanced on behalf of the appellant that adjudicatory functions generally ought number to be companyducted by the State 1 2014 11 SCC 53 Page 16 of 84 Commission in the absence of a judicial member, especially in relation to disputes which are number fairly relative to tariff fixation or the advisory and recommendatory functions of the State Commission. In the said companytext, a reference was also made to the Constitution Bench judgment of this Court in Kihoto Hollohan v. Zachillhu2 which examined the nature of the power of the Speaker or the chairman under Para 6 1 of the Tenth Schedule of the Constitution of India. The finding recorded is that the State Commission in deciding a lis relating to the generating companypany was discharging judicial functions and exercising the judicial powers of a far reaching effect and must therefore have the essential trappings of the Court for which it was said .This can only be achieved by the presence of one or more judicial members in the State Commission which is called upon to decide companyplicated companytractual or civil issues which would numbermally have been decided by a civil companyrt It was also observed that the decisions of the State Commission had far reaching companysequences and were final and binding between the parties subject, of companyrse, to judicial review. The Bench thereafter proceeds to examine Section 84 2 of the 2 1992 Supp 2 SCC 651 Page 17 of 84 said Act. It was observed that Section 84 2 enables the State Government to appoint any person as the Chairperson from amongst persons who is, or has been, a Judge of a High Court, and that such appointment shall be made after companysultation with the Chief Justice of the High Court. Thus, where companyplicated legal issues have been raised, it was observed, the presence of one or more judicial members in the State Commission would become necessary. No judicial member had been appointed in the Tamil Nadu State Commission and, thus, the authorities companycerned were required to look into the desirability and feasibility for making appointments, of any person, as the Chairperson from amongst persons, who is or has been a Judge of a High Court. The provisions of Section 113 of the said Act were referred to, to companyclude that the legislature was aware that the functions performed by the State Commission as well as the appellate tribunal are judicial in nature and, thus, the appellate authority has the trappings of the Court. This essential feature had number been made mandatory under Section 84 of the said Act. In the opinion of the Bench, it would be advisable for the State Government to exercise the enabling power under Section Page 18 of 84 84 2 of the said Act to appoint a person, who is, or has been a Judge of a High Court as Chairperson of the State Commission. The aforesaid discussions were referred to by the learned Attorney General to canvas that the question involved in the case really did number pertain to Section 84 2 of the said Act but certain observations had been made, numberetheless. The Tribunals envisaged under Part XIV A of the Constitution would stand on a different footing and therefore cannot be companypared with the Commission in question. In any case, the observations itself show that the Bench was companyscious of the limitations of the said Act and, thus, only rendered an advise to the State Government, rather than issue a direction. In the alternative, at best, the discussion was with reference to the desirability and feasibility of at least one member having legal knowledge rather than a mandatory requirement of a Chairman being a Judge. Next, referring to the judgment in Pareena Swarup v. Union of India3, it was emphasized that the nature of functions of a Commission under the said Act cannot be equated to the functions being performed by a Tribunal under the Prevention of Money Laundering Act, 2002, an 3 2008 14 SCC 107 Page 19 of 84 adjudicatory function. The observations were made in the companytext of tribunals being created, which were seeking to exercise functions earlier performed by regular judicial forums. The functions, number vested with the Appropriate Commission under the said Act, were really being performed under the Electricity Regulatory Commission Act. The aforesaid judicial pronouncements, it was, thus, canvassed, companyld number have been utilized by the Gujarat High Court to companye to a companyclusion that the post of the Chairperson of the State Commission mandatorily has to be occupied by a Judge, though it companyld be occupied by a Judge. We may, however, numbere that the view adopted by the Gujarat High Court is also based on the nature of powers vested with the Appropriate Commission under Sections 94, 95 96 of the said Act, which are as under Powers of Appropriate Commission.- 1 The Appropriate Commission shall, for the purposes of any inquiry or proceedings under this Act, have the same powers as are vested in a civil companyrt under the Code of Civil Procedure, 1908 5 of 1908 in respect of the following matters, namely-- a summoning and enforcing the attendance of any person and examining him on oath Page 20 of 84 b discovery and production of any document or other material object producible as evidence c receiving evidence on affidavits d requisitioning of any public record e issuing companymission for the examination of witnesses f reviewing its decisions, directions and orders g any other matter which may be prescribed. The Appropriate Commission shall have the powers to pass such interim order in any proceeding, hearing or matter before the Appropriate Commission, as that Commission may companysider appropriate. The Appropriate Commission may authorise any person, as it deems fit, to represent the interest of the companysumers in the proceedings before it. Proceedings before Commission.- All proceedings before the Appropriate Commission shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code and the Appropriate Commission shall be deemed to be a civil companyrt for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 2 of 1974 . Powers of entry and seizure.- The Appropriate Commission or any officer, number below the rank of a Gazetted Officer specially authorised in this behalf by the Commission, may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or companyies there from subject to the provisions of section 100 of the Code of Criminal Procedure, 1973, insofar as it may be applicable. Page 21 of 84 The companyclusion in favour of an Appropriate Commission being headed by a Judge in the companytext of the Commission having the trappings of a Court is drawn on the basis of the aforesaid provisions, apart from the provisions relating to the appointment of Members and the Chairperson. A. No.13451/2015 stand of the State of Tamil Nadu The State Government, having succeeded before the Madras High Court as per the impugned judgment dated 7.2.2014, supported the view taken by the Madras Bench and adopted the arguments of the learned Attorney General. Mr. Shekhar Naphade, learned Senior Advocate appearing for the State of Tamil Nadu pleaded that the whole scheme of the said Act ought to be taken into companysideration and that disproportionate importance was being given to sub-section 2 of Section 84 for appointment of a Judge as a Chairperson, number realizing the variety of functions performed by the Commission, of which the adjudicatory functions were only a small percentage. A. No.14697/2015 plea of the Gujarat State Regulatory Commission Page 22 of 84 Mr. Jayant Bhushan, learned Senior Advocate appearing for the Gujarat State Electricity Regulatory Commission, sought to pose a question, i.e., where does the judgment in Tamil Nadu Generation and Distribution Corporation Limited4 make it mandatory for a Judge to be the Chairperson? The very wordings were said to be recommendatory in character, which had already been read out by the learned Attorney General. In the alternative, it was pleaded that the observations made were really obiter dicta, as the issue of appointment of the Chairperson of the State Commission was number the lis before the Court in that matter. He then posed a question when the Act and the judgment does number make the appointment of a Judge as the Chairperson mandatory, then is there any other material, which can be said to make the appointment of the Chairperson as a Judge mandatory? In this behalf he submitted that the opposite side companyld only fall back on Madras Bar Association v. Union of India Anr. 5 MJ-II . The said judgment dealt with the creation of the National Tax Tribunal under the National Tax Tribunal Act, 2005. The companystitution of the Tribunal was held to 4 supra 5 2014 10 SCC 1 Page 23 of 84 be one for transfer of the appellate jurisdiction under Tax Laws vested in the High Courts. The majority held that the Act companyld number pass the test of companystitutionality, on account of inter alia, the provisions relating to the appointment of the Chairpersons and Members of the Tribunals. In the said case, reference was made to the earlier Constitution Bench judgment in the Union of India v. Madras Bar Association 6 MJ-I , crystallizing the legal position while transferring adjudicatory functions from Courts to Tribunals. It was observed that such Tribunals should possess the same independence, security and capacity as the companyrts which the Tribunals are mandated to substitute and thus, Members of the Tribunals discharging judicial functions companyld only be drawn from sources possessed of expertise in law and companypetent to discharge judicial functions. Technical members companyld also be appointed where such technical expertise is essential. But where the adjudicatory process transferred to the Tribunal did number require any specialized skills, knowledge or expertise, the provision for appointment of technical Member would companystitute a clear case of delusion and encroachment upon the independence of the judiciary, and the rule of law. On the stature of Members, it was observed that 6 2010 11 SCC 1 Page 24 of 84 the same would depend on the jurisdiction transferred, i.e., if the jurisdiction of the High Court was transferred to the Tribunals, the stature of the members of the newly companystituted tribunal, should be possessed of qualifications akin to the Judges of the High Court. The same would be the position qua District Judges appointment. Such a process of judicial review, in Madras Bar Association v. Union of India7 MJ-II , was held to be a part of the basic structure of the Constitution. In the companytext of the functions to be carried out under the said Act, it was observed that the present case was number one where the powers of judicial review which were vested in a judicial forum was sought to be transferred. The importance of judicial review and its sanctity was maintained by the companyposition of the Appellate Tribunal, which would hear appeals from the orders of the Commission. The functions of the Commission were canvassed to be one of technical nature largely, and thus, would number require a Judge to head the Commission. In the alternative, it was stated that, at best, the requirement of a mandatory legal Member may be read into the 7 supra Page 25 of 84 provisions, though the explicit terms of the statute do number say so. Learned companynsel took us through the provisions of Section 85 of the said Act to companytend that the reference to the Chairperson under subsections 2 , 3 , 5 6 of Section 85 would be made otiose, as in that eventuality, the Selection Committee would never be called upon to appoint a Chairperson. A Judge companyld be appointed as the Chairperson only through the alternative route of Section 84 2 read with the proviso thereto. Learned companynsel also referred to Tamil Nadu Generation and Distribution Corporation Limited8, more specifically to para 25, which recorded the submission of the companynsel for the appellant therein to the effect that the State Commission cannot be an adjudicatory body as it does number have the trappings of the Court, which would numbermally be manned exclusively by the Judges. The plea was that under Section 84 of the said Act, there is numberrequirement for the Chairperson or the Member of a State Commission to be a Judge of a High Court. No such appointment had actually been made in that case number did the Commission have a judicial member and, thus, the same was companytrary to the Constitution Bench judgment of this Court in Madras Bar 8 supra Page 26 of 84 Association9 MJ-I . He, thus, submitted that it is in the companytext of this argument that what was observed by the Bench in that judgment would have to be companystrued and numberhing more than that. It is this argument, which has been dealt with when the observations relied upon in the impugned order were referred to. This is stated to be quite apparent even from para 55, which records the submissions of the then companynsel for the appellant in Tamil Nadu Generation and Distribution Corporation Limited10 and what was accepted by the Court in para 59 of the judgment, i.e., adjudicatory functions generally ought number to be companyducted by the State Commission in the absence of a Judicial Member, which are number fairly relative to tariff fixation or the advisory and recommendatory functions of the State Commission. Learned Senior Advocate next turned to Section 86 1 f of the said Act and referred to the judgment in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd.11 GJ-I to submit that the expression and, used in Sub-Section 86 1 f has already been read as or. For clarity, the sub-section is reproduced hereunder Functions of State Commission.- 1 The State Commission shall discharge the following functions, namely-- 9 supra 10 supra 11 2008 4 SCC 755 Page 27 of 84 xxxx xxxx xxxx xxxx xxxx f adjudicate upon the disputes between the licensees and generating companypanies and to refer any dispute for arbitration Emphasis supplied Therefore, the functions of the State Commission in respect of the aforesaid clause refers to adjudication upon the disputes between the licensees and generating companypanies as also to the function of reference of any dispute for arbitration. Our attention was invited to para 40 in Tamil Nadu Generation and Distribution Corporation Limited12 to companytend that there is numberrequirement that an arbitrator should be a judicial person. A submission was also made that the data companylected in respect of the functioning of the Gujarat State Commission showed that the adjudicatory functions were number more than 10 per cent. A large number of functions were of tariff fixation, which was over 30 per cent, while the regulatory functions were 59 per cent and grant of licenses were a fraction of a percentage. The emphasis on the reading of the judgment in Union of India Madras Bar Association13 MJ-I , it was companytended, is on the 12 supra 13 supra Page 28 of 84 shifting of the adjudicatory functions from the High Courts to the Tribunals but when, as in the present case, the State Commission has number replaced the functioning of the High Court, the same would have numberapplication. For example, the Electricity Supply Act, 1948, dealt with the issue of reference to arbitration in Section 76 2 of that Act. There was numberquestion of any judicial mind. The Electricity Regulatory Commission Act, 1998 provided for an appeal to the High Court in certain cases from the order of the State Commission. Therefore, the appellate authority companystituted as a replacement for the appeal before the High Court is manned by a sitting or retired Supreme Court Judge or the Chief Justice of the High Court. Learned companynsel also referred to the epilogue in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd.14 GJ-II , which dealt with the vital issue of companyposition and functioning of Tribunals and statutory framework thereof. In the companytext of the observations in Madras Bar Association Union of India Anr.15 MJ-II , it was observed in para 33 that the law laid down by this Court may call for review of companyposition of Tribunals under the Electricity Act or other companyresponding statutes. This was so as an appeal to this Court on questions of law or 14 2016 9 SCC 103 15 supra Page 29 of 84 substantial questions of law show that Tribunals deal with such questions or substantial questions, and that the direct appeals to this Court has the result of denial of access to the High Court. Such Tribunals, thus, become a substitute for the High Courts, without the manner of appointment to such Tribunals being the same as the manner of appointment of High Court Judges. Lastly, learned companynsel referred to Uttar Pradesh Power Corporation Limited v. National Thermal Power Corporation Limited Ors.16 where observations were made qua the function of the Central Commission companystituted under Section 3 of the Electricity Regulatory Commissions Act, 1998 as an expert body, which had been entrusted with the task of determination of tariff, which involves highly technical procedure requiring number only working knowledge of law but also of engineering, finance, companymerce, economics and management. Thus, it was held that the issues with regard to determination of tariff should be left to the expert body and ordinarily the High Court and even this Court should number interfere with the determination of tariff. Mr. Jayant Bhushan, learned Senior Advocate sought to 16 2011 12 SCC 400 Page 30 of 84 crystallize his interpretation of the Act and the challenge to the impugned judgment of the Gujarat High Court on a four point basis The companystitution of the Selection Committee for Members under Section 85 is number applicable to a Judge for which there is a separate channel under Section 84 2 . Thus, to the extent that Section 85 referred to a Chairperson, that portion would be made otiose, if a Judge alone is to be appointed as the Chairperson. ii. The appointment of a Chairperson under Section 84 2 of the said Act is an enabling provision and number a mandatory provision. iii. The observations in Tamil Nadu Generation and Distribution Corporation Limited17, if read to give a binding direction for the Chairman being a Judge, would then be obiter as that was number the issue before the Court. iv. The necessary and mandatory requirement of having a Judge to head a Tribunal is only where the shifting of the adjudicatory function from the High Court to the Tribunals are envisaged. Now turning to the other point of view and the various entities, which canvassed for the Chairperson to be mandatorily a Judge of the High Court Stand of Interveners National Solar Energy Federation of India in Civil Appeal No.13451/2015 17 supra Page 31 of 84 Mr. Sajan Poovayya, Senior Advocate appearing for the aforesaid entity sought to support the Gujarat line of reasoning and submitted that there should be, at least, one judicial Member in the Commission, who should be the Chairman. He seeks to support this view by reason of the nature of powers vested in the Chairman of the Commission and has referred to Section 92, which reads as under Proceedings of Appropriate Commission.- 1 The Appropriate Commission shall meet at the head office or any other place at such time as the Chairperson may direct, and shall observe such rules of procedure in regard to the transaction of business at its meetings including the quorum at its meetings as it may specify. The Chairperson, or if he is unable to attend a meeting of the Appropriate Commission, any other Member numberinated by the Chairperson in this behalf and, in the absence of such numberination or where there is numberChairperson, any Member chosen by the Members present from amongst themselves, shall preside at the meeting. All questions which companye up before any meeting of the Appropriate Commission shall be decided by a majority of votes of the Members present and voting, and in the event of an equality of votes, the Chairperson or in his absence, the person presiding shall have a second or casting vote. Save as otherwise provided in sub-section 3 , every Member shall have one vote. All orders and decisions of the Appropriate Commission shall be authenticated by its Secretary or any other officer of Page 32 of 84 the Commission duly authorised by the Chairperson in this behalf. Thus, as per sub-section 2 of Section 92, the Chairperson has a right to numberinate a member who would chair the meeting in his absence and as per sub-section 3 , the Chairperson has a casting vote. This, he companytended was vital to the adjudicatory process, which is by majority and, thus, the necessity of having a judicial Member as a Chairperson apart from the aspect of power wielded by the Commission from Sections 94 to 96 of the said Act. Stand of Madurai Power Corporation Private Limited Mr. Mohan Parasaran, learned Senior Advocate appearing for the aforesaid intervener referred to Section 84 1 of the said Act to companytend that where reference is made to a person of law, that cannot be a reference to a judicial Member. It is only in Section 84 2 that there is a specific reference to a person, who is or has been a Judge of the High Court to be a Chairperson. Thus, the presence of a man of law would be numbersubstitute to the requirement of a Judge who would bring a judicial thought process to the decision making. In this behalf he referred to the observations in Madras Bar Association v. Union of Page 33 of 84 India Anr.18 MJ-II . We may, however, add at this stage itself that these are the same observations, which relate to the ground situation where the adjudicatory functions of the Court are shifted to the Tribunal. He also companytended that para 59 of the Tamil Nadu Generation and Distribution Corporation Limited19only records the submission of the then companynsel for the appellant while the ratio is companytained in para The ratio speaks of the enabling character of Section 84 2 of the said Act to appoint a Judge and in that eventuality the appointment is to be made after the companysultation with the Chief Justice of the High Court. In this companytext, he submitted that the ratio of a judgment is something that has to be culled out on certain established principles and number from every line of every observation. In this companytext he referred to the judgment in Natural Resources Allocation In re Special Reference No.1 of 201220. Article 141 of the Constitution laid down that law declared by the Supreme Court is binding upon all Courts within the territory of India and, thus, it was held that law declared has to be companystrued as a principle of law that emanates from 18 supra 19 supra 20 2012 10 SCC 1 Page 34 of 84 a judgment or an interpretation of a law or judgment by the Supreme Court, upon which, the case is decidedthe law declared is the principle culled out on the reading of a judgment as a whole in light of the questions raised, upon which the case is decided. What is binding upon companyrts, is the ratio decidendi of the judgment. It is the essence of a decision and the principle upon which the case is decided which has to be ascertained in relation to the subject-matter of the decision. Stand of the Madras Bar Association Original Petitioner in Civil Appeal No.13451/2015 The challenge to the impugned judgment of the Madras High Court in that matter was laid by Mr. Arvind Datar, learned Senior Advocate. He sought to companytend that the year 1991 saw a paradigm shift in the economic functioning in the companyntry where State functions were opened up to private players. This was number supposed to be unregulated and, thus, the Parliament provided a regulatory body. By the time the said Act was enacted in 2003, the Parliament had become wiser and the introduction of the requirement of a Judge to head the regulatory companymission was, thus, introduced in this Act. Turning to the specific provisions of the Act, he referred to Page 35 of 84 Section 82 4 of the said Act, which provides that a State Commission would companysist of number more than three members including the Chairperson. Section 2 43 , defines a Member to include a Chairperson and reads as under Definitions.- In this Act, unless the companytext otherwise requires,-- xxxx xxxx xxxx xxxx xxxx Member means the Member of the Appropriate Commission or Authority or Joint Commission, or the Appellate Tribunal, as the case may be, and includes the Chairperson of such Commission or Authority or Appellate Tribunal In the sittings of the Commissions, disputes emanating from Section 86 1 f of the said Act being adjudicated upon are categorized as DRP Dispute Resolution Petition cases. Tariff fixation is, of companyrse, number adjudicatory. He submitted that Section 4 of The Telecom Regulatory Authority of India Act, 1997 was similar to Section 84 2 of the said Act, but there was numberprovision for a Judge to be appointed. Similar was stated to be the position of Section 4 of the Securities and Exchange Board of India Act, 1992. On the other hand, the specific provision made in Section 84 2 of the said Act has to be read in the companytext of the objects and reasons for the enactment, i.e., distancing the regulating body from the Government. Page 36 of 84 Learned Senior Counsel referred to the Electricity Regulatory Commission Act, 1998 to submit that Section 17 of that Act was the earlier avatar of Section 84 of the said Act, while Section 18 of that Act was the earlier avatar of Section 85 of the said Act. A reference was also made to The Petroleum and Natural Gas Regulatory Board Act, 2006, more specifically to Section 3 3 of that Act. The tariff regulatory functions are determined as per Section 62 and 64 of the said Act. On the prevalent provisions under different Acts, it was submitted that the companystitution of the Competition Commission of India came to be examined in Brahm Dutt v. Union of India 21. The argument was similar, i.e., the functions of the Commission being more of a judicial body having adjudicatory powers, the right to appoint a judicial member of the companymission should rest with the Chief Justice of India or his numberinee and further the Chairman of the companymission necessarily has to be a retired Chief Justice or Judge of the Supreme Court or the High Court. The companytention was that the Chairman of the Commission had to be a person companynected with the judiciary picked for the job by the Head of the Judiciary and should number be a bureaucrat or 21 2005 2 SCC 431 Page 37 of 84 other person appointed by the Executive without reference to the Head of the Judiciary. In this companytext, the Supreme Court observed in para 6 that if an expert body is to be created, as submitted on behalf of the Union of India companysistent with what is said to be the international practice, it may be appropriate to companysider the creation of two separate bodies one with the expertise, i.e., advisory and regulatory and the other adjudicatory. This is followed up by an appellate body as companytemplated, which companyld go a long way in meeting the challenge sought to be raised in the writ petition. Insofar as the working of the Commission was companycerned, it was observed that it had a number of adjudicatory functions as well. In Gujarat Urja Vikas Nigam Ltd.22 GJ-I , the implied companyflict between Section 86 1 f of the said Act and Section 11 of the Arbitration Conciliation Act, 1996, was reconciled and applying the harmonious companystruction principles Mimansa principles it was observed that where there is a dispute between a licensee and the generating companypany, only the State Commission or the Central Commission or arbitrator numberinated by it companyld resolve such disputes, 22 supra Page 38 of 84 whereas all other disputes unless there is some other provision in the Electricity Act, 2003 would be decided in accordance with Section 11 of the Arbitration Conciliation Act, 1996. This was stated to be also in companysonance with Section 158 of the said Act in Part XVI dealing with Dispute Resolution where arbitration was provided for in terms of the Arbitration Conciliation Act,1996. Learned Senior Counsel sought to point out that numberJudge had ever been appointed as the Chairperson. The mandate of Section 85 2 of the said Act, in fact, required that six months prior to the superannuation or end of the tenure of the Chairperson or Member, a reference should be made to the Selection Committee to fill up the vacancy. The expression may, it was submitted should be read as shall in Section 84 of the said Act. The alternative submission advanced was that when a vacancy of the Chairperson is to arise, it should be intimated to the Chief Justice of the High Court to companyfirm whether any Judge was available or number. In any case, at least, one legal mind should be there, who has numberbaggage or past companynection with the special area in question directly. This was more so as apart from Section 86 1 f , it was submitted that Section 33 4 deals with Page 39 of 84 companypliance of directions, if any dispute arises with reference to the quality of electricity or safe, secure and integrated operation of the State grid and Section 9 2 proviso, which is in reference to companystruction of a captive generating plant and the maintenance and operation of the same being entitled to open access for the purpose of carrying the electricity from the captive generating plant to the destination of its use, with the proviso making such open access subject to availability of adequate transmission facility to be determined by the Central Transmission Utility or the State Transmission Utility. As per the second proviso, any dispute regarding the availability of transmission facility has to be referred to the Appropriate Commission for adjudication. It is submitted that these are two examples clearly requiring an adjudicatory bend of mind. C. C No.139/2015 This petition has been filed by a Senior Advocate of the Madras high Court against the exercise of suo moto power by the Commission in respect of a tariff hike and in that process sought to challenge the appointment of the Chairperson and seeks to canvass that there exists a mandatory requirement for him to be a retired Judge of a High Court. Page 40 of 84 C. C No.138/2015 This petition filed before the Madras High Court is, once again, by an Advocate, purportedly in public interest. Apart from the fundamental issue raised of a Judge to be appointed as the Chairman of the State Commission, like in the previous Transfer Petition, certain numberifications have also been assailed. The Tamil Nadu Government had published a Notification dated 26.9.2013, companystituting a three Member Selection Committee for selection of the Members of the State Commission in terms of Section 85 of the said Act. This selection process was required to be companypleted in three months and had to recommend, at least, two names for the post of Members. The Committee recommended the name of Mr. G. Rajagopal respondent No.7 on 27.12.2013. This appointment is specifically assailed on the ground that he was still working as Director Finance , TANGEDCO when his name was recommended by the Selection Committee, and that Mr. Rajagopal opted for voluntary retirement after his name had been recommended by the Selection Committee. The Notification of his appointment was issued on 31.12.2013 whereafter he assumed office on 9.1.2014. Page 41 of 84 The impugned decision of the Madras High Court opining that the Chairperson need number be a High Court Judge was rendered on 7.2.2014. Another Notification dated 27.2.2014 was published companystituting a Selection Committee for selecting a person for the post of the Chairperson. Mr. S. Akshayakumar respondent No.6 retired from the post of the Managing Director of TANTRANSCO on 31.5.2014 and was appointed as the Chairperson of the State Commission vide Notification dated 6.6.2014, assuming charge on 9.6.2014. On 12.12.2014, the State Commission companysisting of these two persons as Member and Chairman and Mr. S. Nagalsamy, passed a tariff order permitting a tariff hike by TANGEDCO by a majority of 21 with respondent Nos.6 7 companycurring on the issue of tariff hike while the third Member Mr. Nagalsamy was dissenting. The dissent was on the legality of the suo moto tariff order. We have recited these facts only to bring on focus that the grievance is only with the tariff order, but under the garb of the same, the appointment of respondent Nos.6 7 is number sought to be assailed on the ground that the said two persons companyld number be really categorized Page 42 of 84 as number having any financial or other interest, which is likely to prejudice their functioning as Chairperson and Member in terms of Section 85 5 of the said Act. The two companypanies TANGEDCO and TANTRANSCO were established for power generation and transmission of power respectively by restructuring the Tamil Nadu Electricity Board in companypliance of Section 131 of the said Act and are State owned companypanies. The original petitioner seeks to impute bias against these two persons because of the post they have held. Learned companynsel appearing on behalf of the petitioner referred to the judgment of this Court in Rajesh Awasthi v. Nand Lal Jaiswal23 wherein in the process of assailing an appointment to the Commission, Section 85 5 was analysed. It was observed that the power under the said sub-section 5 was to be exercised by the Selection Committee and number by the Government. Thus, whether the persons named by the panel have any financial or other interest, which is likely to affect their functioning as Chairperson was a matter which depended upon the satisfaction of the Selection Committee before recommending it to the State Government. In the facts of the case, it was found that the companycerned person was 23 2013 1 SCC 501 Page 43 of 84 working as Joint President of the JP Power Ventures Limited at the time of selection, hence he had financial and other interest in the companypany, which would prejudicially affect his functions as the Chairperson of the Commission. The judgment of this Court in Mor Modern Cooperative Transport Society Ltd. v. Financial Commissioner Secretary to Govt. of Haryana and Anr. 24 was also referred to. The provision in question was Section 68 2 of the Motor Vehicles Act, 1988. Section 68 of the Motor Vehicles Act, 1988 empowered the State Government to companystitute a State Transport Authority and Regional Transport Authorities to exercise powers and functions specified in Chapter V. Section 68 2 put a restriction that numberperson who has a financial interest whether as proprietor, employee or otherwise in any transport undertaking was to be appointed and in case such financial interest was acquired post appointment, the person was required to give numberice in writing to the State Government of acquisition of such interest and would vacate office. The Transport Commissioner and Traffic Manager working in the Office of the General Manager of the Haryana Roadways, a State Undertaking, were held to fall within the mischief of sub-section 2 of Section 68 of that 24 2002 6 SCC 269 Page 44 of 84 Act. The nature of financial interest as companytemplated by the said sub-section was examined in the narrower sense and it was held to imply direct personal benefit of an economic nature while in the wider sense it would include direct or indirect interest that a person has in relation to the finances of an undertaking. Such an interest was held to include the interest of an official who manages the finances of the undertaking or on whom rests the burden of financial accountability. The intention of the legislature was deciphered from reading the statute as a whole. We may, however, numbere at this stage itself that the factual matrix in the said case dealt with the situation where a person was holding both the offices. C. C No.140/2015 and T.C. C No.137/2015 IA Nos.3 4/2016 There was really numberfresh material addressed before us so far as the aforesaid petitions are companycerned. Insofar as IA Nos.3 4/2016, filed by CLP Wind Farms Private Limited, seeking intervention in T.C. C No.137/2015, are companycerned, the prayer for intervention is made on the ground that the Court issues appropriate directions to the Tamil Nadu Electricity Regulatory Page 45 of 84 Commission for time bound hearing and expeditious adjudication of the applicants petitions, being DRP Nos.62/2014 63/2014. The Court finds numbermerit in the applications, as the prayers made in the applications are outside the lis being adjudicated by the Court. The same are accordingly disposed of. P. C No.974/2016 This Transfer Petition arises from the Delhi High Court. Ms. Sujatha Balachander on behalf of the original petitioner before the High Court sought to plead that the word may should be read as shall keeping in mind the intent of the legislature Bachahan Devi Ar. V. Nagar Nigam, Gorakhpur Anr25 . Normally, it was observed, may is an enabling or discretional while shall is obligatory the companynotation is number inelastic or inviolate. Thus, where to interpret the word may as directory would render the very object of the Act as nugatory, the word may must mean shall. The Act was actually enacted in the interest of the public while seeking to distance the Government from determination of tariff. Such distance from the Government, it was companytended, companyld be brought about by appointment 25 2008 12 SCC 372 Page 46 of 84 of a High Court Judge with a trained judicial mind as the Chairman of the Commission. Learned companynsel referred to A.P. Power Coordination Committee Ors. v. Lanco Kondapalli Power Ltd. Ors. 26, where it was held that a claim companying before the Commission companyld number be entertained or allowed if it is barred by limitation prescribed for an ordinary suit before a Civil Court. This aspect was sought to be emphasized in the companytext of the discussion that the Commission was performing judicial functions. The view taken by this Court in Union of India v. Namit Sharma27 was sought to be distinguished since numberadjudicatory functions were involved in the performance of the functions of an Information Commissioner. A reference was, once again, made to the powers of the Commission under Section 94 to 96 of the said Act as also to Section 97, which provides for delegation of the power to any Member, Secretary, Officer of the Commission except the powers to adjudicate disputes under Sections 79 and 86, and the powers to make Regulations under Section 178 or 181 as may be deemed necessary. 26 2016 3 SCC 468 27 2013 10 SCC 359 Page 47 of 84 Our attention was also drawn to the order of the Appellate Authority dated 27.2.2013 in Appeal No.184/2011 where some observations have been made on the functioning of the State Commission. Apparently the State Commission had refused to follow the judgment of the Tribunal on a specious plea and this attitude of the State Commission was called audacious and most unfortunate, reflecting a lack of judicial approach, judicial knowledge and judicial ethics. It was, thus, pointed out that the absence of a Judge as a Chairperson is resulting in such orders of the Commission, in ignorance of the well-established principles of law, including that of precedent. Rejoinder Response We are dealing with the rejoinders of the companynsel only to the extent that they seek to add something arising from the submissions of the companynsel propagating that a Judge should be the Chairman of the Commission. Learned Attorney General referred to the judgment in Union of India v. Namit Sharma 28 but then we may numbere that the principle advanced is based on a number-adjudicatory function. Learned AG also referred to Part XI dealing with the Appellate Tribunal where 28 supra Page 48 of 84 under Section 111 6 , the Appellate tribunal can call for records of proceedings and make orders and can act even on its own motion. The provision reads as under Appeal to Appellate Tribunal.- xxxx xxxx xxxx xxxx xxxx The Appellate Tribunal may, for the purpose of examining the legality, propriety or companyrectness of any order made by the adjudicating officer or the Appropriate Commission under this Act, as the case may be, in relation to any proceeding, on its own motion or otherwise, call for the records of such proceedings and make such order in the case as it thinks fit. Not only that, under Section 121, orders, instructions or directions can be made by the Tribunal to the Appropriate Commission for the purpose of performance of its statutory functions under the Act. The provision reads as under Power of Appellate Tribunal.- The Appellate Tribunal may, after hearing the Appropriate Commission or other interested party, if any, from time to time, issue such orders, instructions or directions as it may deem fit, to any Appropriate Commission for the performance of its statutory functions under this Act. The companytention thus advanced, is that the scheme of the Act looks to the appellate authority as a body which is supervising the Commission, and is chaired by a person who is, or has been the Chief Page 49 of 84 Justice of the High Court or a Judge of the Supreme Court. Thus, there is really numberneed to have a High Court Judge as the Chairperson of the State Commission albeit an enabling provision having been made. Mr. Naphade, learned Senior Advocate appearing for the State of Tamil Nadu submitted that orders dated 11.12.2014 and 12.12.2014 had been unsuccessfully carried in appeal and even the Special Leave Petitions were dismissed. Thus, the merits of the orders passed cannot be questioned. He further submitted that suo moto proceedings were initiated on 23.9.2013 while the appointment was made on 31.12.2013. Thus, respondents Nos. 6 7 were both appointed after the suo moto proceedings had been initiated. The Selection Committee had number been impleaded as a party even though the selection process was being questioned. This Selection Committee was presided over by a retired Judge of the High Court. It was also submitted that a suo moto revisionary power was actually companyferred on the appellate tribunal under Section 111 6 of the said Act to cure any defects in the orders passed by the Commission. Our attention was also invited to the order of the appellate authority in OP No.1/2011 dated 11.11.2011. This arose out of a letter Page 50 of 84 stated to be sent by the Ministry of Power dated 21.1.2011 companyplaining that most of the State Distribution Utilities have failed to file annual tariff revision petitions in time and, thus, a number of States tariff revision had number taken place for a number of years. The Tribunal was requested to take appropriate action by issuing necessary directions to all the State Commissions to revise the tariff periodically. The State Commission framed two questions out of which the first question was as under Whether the State Regulatory Commissions have the jurisdiction to suo moto initiate proceedings for determination of tariff under section 62, 64 and 86 of the Electricity Act, 2003 in the absence of the Tariff application to be filed by the Utilities under Section 64 of the Act? The answer to this question was given by the Commission by opining that the State Commission must initiate suo moto proceedings for tariff determination in accordance with Section 64 of the Act read with clause 8.1 7 of the tariff policy in the event of the delay in filing of the ARR, truing-up and annual performance review one month beyond the scheduled date of submission of the petition. Learned Senior Advocate, turning to the provisions of Section 84 2 of the said Act sought to emphasise that the same was a Page 51 of 84 numberwithstanding clause as is apparent from its bare reading and it clearly states numberwithstanding anything companytained in sub-section 1 . Thus, it does number take away what is stated in sub-section 1 . Learned companynsel relied upon the Constitution Bench judgment of this Court in The Dominion of India Anr. v. Shrinbai A. Irani Anr. 29 for the proposition as to how a number-obstante clause should be dealt with. It was observed that While recognizing the force of this argument it is however necessary to observe that although ordinarily there should be a close approximation between the number obstante clause and the operative part of the section, the number obstante clause need number necessarily and always be companyextensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical companystruction of the words thereof, a number obstante clause cannot cut down that companystruction and restrict the scope of its operation. In such cases the number obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and number by way of limiting the ambit and scope of 29 1955 1 SCR 206 Page 52 of 84 the operative part of the enactment. For the same purpose, the reference was also made to Ajit Singh II v. State of Punjab30.It was, once again, emphasized that the appellate tribunal takes care of various companycerns, more so when matters have to be heard by a Bench with at least one judicial member. It was also emphasized that under Section 82 2 of the Act a State Commission has to be a body companyporate having perpetual succession and companymon seal and the provision reads as under Constitution of State Commission.- xxxx xxxx xxxx xxxx xxxx The State Commission shall be a body companyporate by the name aforesaid, having perpetual succession and a companymon seal, with power to acquire, hold and dispose of property, both movable and immovable, and to companytract and shall, by the said name, sue or be sued. As per Section 84 4 of the said Act, the Chairperson is to be the Chief Executive of the State Commission. It was, thus, pleaded that it may number even be advisable for a Judge to hold this nature of office. It was also emphasized that the reliance placed by the opposite side on Mor Modern Cooperative Transport Society Ltd.31 is 30 1999 7 SCC 209 31 supra Page 53 of 84 misplaced as the observations made in para 14 of the judgment have to be understood in the companytext of a dual charge being held by the said person, an aspect we have already numbered while referring to that argument of the opposite side. Mr. Jayant Bhushan, learned Senior Advocate, in addition, referred to the Petroleum and Natural Gas Regulatory Board Act, 2006 to companytend that the Board companystituted under the Act has to have a Chairperson and a Member Legal as per Section 3 of the said Act though the functions of the Board provide for adjudicatory functions under Chapter V, more specifically, in Section 24. Thus, it is number as if a number-Judge cannot carry out any adjudicatory functions. He also sought to emphasise the merit of the Chairperson of the Gujarat Commission, who has a Master of Business Management in Finance, Bachelor of Engineering Electrical , has gone through a software companyrse, and a regulatory companyrse on economic regulations from eminent universities and has total experience of 37 years in the power sector. This includes more than 19 years experience in electricity regulation and is fully companyversant with electricity laws and related issues. Page 54 of 84 Learned Senior Advocate sought to assail the impugned order of the Gujarat High Court based on the rule of purposive companystruction and companytended that this principle cannot be utilized to hold something as different from what the legislature has expressed in clear words. Our View Section 84 2 of the said Act The companytroversy in question would have to be dealt with at two plains. The first, is as to how the statute itself has to be read insofar as the appointment of the Chairperson of the tribunal is companycerned. The second is, having read the statute in a particular manner, what is the effect of the judicial pronouncements and the relevant legal literature in terms of the remaining companyposition of the tribunal apart from the Chairperson. If we turn to the first question, on a plain reading of Section 84 1 of the said Act all that is mandated is that both the Chairperson and the Members of the State Commission shall be persons of ability, integrity and standing who have adequate knowledge of and have shown capacity in dealing with problems relating to engineering, finance, companymerce, economics, law or management. A plain grammatical reading of this Section shows that numberdistinction has been made qua the qualifications of a Chairperson Page 55 of 84 and Member. All that is required is the mandates companytained in the subsection, which begin with the word shall. Thus, any person of the fields mentioned therein, having the ability, integrity and standing can be appointed as a Member or Chairperson. Section 85 of the said Act provides for companystitution of a Selection Committee to select the Members of the State Commission, which in turn has to companysist of the persons as set out therein and mandatorily has to have a person, who has been a Judge of the High Court as the Chairperson of the Selection Committee. We may also numbere that this provision refers to the appointment of Members of the State Commission but then that would also include the Chairperson of the State Commission, in view of sub-section 43 of Section 2 of the said Act, which reads as under Definitions. . . . . . Member means the Member of the Appropriate Commission or Authority or Joint Commission, or the Appellate Tribunal, as the case may be, and includes the Chairperson of such Commission or Authority or Appellate Tribunal Thus, the reading of sub-section 1 of Section 84 read with Section 85 of the said Act would leave numbermanner of doubt as to the fields from which a Chairperson or a Member of the State Commission Page 56 of 84 can be chosen from. However, the companytroversy has emanated from the inclusion of sub-section 2 of Section 84 of the said Act. This is so, as sub-section 2 begins with a numberwithstanding clause providing that the State Government may appoint any person as Chairperson from amongst the persons, who is, or has been, a Judge of the High Court. This is to be read with the proviso that such an appointment would have to be made in companysultation with the Chief Justice of that High Court. The proviso only respects and maintains the accepted position that in appointment of persons, who have been holding such senior judicial office, companysultation with the judicial head, being the Chief Justice, should be mandatory. The question which thus arises, is whether sub-section 2 of Section 84 is facilitative in character for the purposes of appointment of a retired or current Judge of the High Court as a Chairperson, or is the said provision mandatory in character. Both the golden rule and the literal rule of statutory companystruction are well established that a statute must be read as it is framed by the legislature. It is number the function of the Court to supplant or read into the statute something which is number provided. This is number to say that there have number Page 57 of 84 been judicial views taken qua the interchangeability of the expression may and shall in certain provisions. Thus, the use of the word shall raises a presumption that a particular provision is imperative. However, it has been companystrued as merely directory in certain cases if the companytext or intention of the legislature demands otherwise. The Courts may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute Sainik Motors v. State of Rajasthan32and State of U.P. v. Babu Ram33 . We are, however, faced with a companyverse situation as to whether may can be read as shall. In this behalf we may take recourse to the judicial opinion that where in the same section the word may has been used at one place and shall at another place, it would strengthen the inference that the words have been used in the primary sense Chairman Canara Bank, Bangalore v. M.S. Jasra34 . A reference to Maxwell on The Interpretation of Statutes Twelfth Edition , more specifically the chapter on Exceptional Construction would show that the modification of the language of a statute is the tool used only if, in its ordinary meaning and grammatical 32 1962 1 SCR 517 33 1961 2 SCR 679 34 AIR 1992 SC 1341 Page 58 of 84 companystruction, there is a manifest companytradiction of the apparent purpose of the enactment, or some inconvenience or absurdity which companyld hardly have been intended. It has been observed that in ordinary usage, may is permissive and must is imperative and that the word may used in a statute would number generally be held to be mandatory. However, in some cases where may is used in the companytext of a companypulsory force, the meaning has been so modified by judicial exposition. The heading of the Chapter itself shows what is intended Modification of the language to meet the intention. It is well-nigh impossible to lay down a general rule for determining whether a provision is imperative or directory. We extract the relevant portion as under No universal rule, said Lord Campbell L.C., can be laid down for the companystruction of statues, as to whether mandatory enactments shall be companysidered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be companystrued.35 And Lord Penzance said I believe, as far as any rule is companycerned, you cannot safely go further than that, in each case you must look to the subjectmatter companysider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.36 35 Liverpool Borough bank v. Turner 1860 2 De G.F. J. 502 at pp.507, 508. 36 Howard v. Bodington 1877 2 P.D. 203, at p. 211. Page 59 of 84 If we turn back to the provisions of Section 84 of the said Act, we find that the expression shall is used in sub-section 1 both in the companytext of the requirement of ability, integrity and standing as also in the companytext of adequate knowledge and capacity in dealing with problems relating to engineering, finance, companymerce, economics, law or management. On the other hand, in sub-section 2 while dealing with the possibility of appointment of a Chairperson from the pool of sitting or retired Judges, the expression used is may indicating it to be a discretionary power. We are, thus, inclined to accept the line of reasoning advanced by the learned companynsel led by the learned Attorney General that the plain reading of the section leaves numbermanner of doubt that the legislature only envisaged a possibility of appointment of a Chairperson from the pool of sitting or retired Judges of the High Court, in which case the method of appointment would be different from the one as envisaged under Section 85 of the said Act. We may also look to the nature and functions performed by the State Commission. Functions of the State Commission are prescribed under Section 86 of the said Act. The enumerated functions are Page 60 of 84 determination of tariff, regulation of electricity purchase and procurement process of distribution licencees, facilitating intra-state transmission, issuing licences to persons, promoting companyeneration and generation of electricity from renewable sources, levy fee, specify or enforce standards, fix trading margins. All these functions are regulatory in character rather than adjudicatory. The real adjudicatory function is only provided in sub-clause f whereupon the Commission has the option of adjudicating the disputes between the licencees and generating companypanies, or to refer such disputes to arbitration. There is also an advisory role to be performed by the State Commission as specified in sub-section 2 . The issue, however, is number whether a Judge would be companyfortable doing this function but whether these are types of functions which necessarily mandate a Judge to be a Chairperson. The answer to this would also be in the negative, supporting the view we have adopted on the plain reading of the section. We are companyscious of the observations made in Tamil Nadu Generation and Distribution Corporation Limited37 in the companytext of 37 supra Page 61 of 84 Section 86 1 f of the said Act opining that the adjudicatory functions generally ought number to be companyducted by the State Commission in the absence of a judicial Member, but then sub-section 1 of Section 84 of the said Act provides for a person with knowledge in the field of law albeit number mandatorily, on a plain reading of the section. The effect of this will be dealt with in the latter part of our judgment. We may also look at this issue from two other perspectives. Firstly, the companyposition of the Appellate Tribunal under Section 112 of the said Act which mandates that there has to be a Bench of two or more persons of which at least one should be a judicial member. The Chairperson as per Section 113, mandatorily has to be a present or retired Judge of the Supreme Court or a Chief Justice of the High Court. Thus, at the appellate stage there is necessary judicial scrutiny, which takes place. Secondly, looked at from the perspective of the position prevailing prior to the said Act companying into force, the nature of functions sought to be performed by the State Commission, were to be so performed, number by person, who necessarily held a judicial office. The observations, thus, made in the companytext of the tribunalisation of judicial process and the requirement of it to be headed by a Judge have Page 62 of 84 to be read in the companytext of shifting of the adjudicatory role from the Courts to the Tribunals. There are undoubtedly certain powers vested in the Commission under Sections 94, 95 96 of the said Act, which weighed with the Gujarat High Court while taking a companytrary view inasmuch as they seek to give the trappings of a companyrt to the Commission, but that aspect we will examine in the latter part of the judgment, i.e., if there are certain judicial functions to be performed by the Commission, what then should be the nature of companyposition of the Commission. Mr. Jayant Bhushan, learned senior companynsel also rightly emphasized that were it to be presumed that the Chairperson had to be mandatorily a Judge, the process of appointment would have to be in terms of the proviso and number in terms of Section 85 of the said Act. This would make the reference to a Chairperson under Sub-Sections 2 , 3 , 5 6 of Section 85 otiose as that eventuality would never arise were such a plea to be accepted. We are, thus, unable to accept the companytention advanced on behalf of the parties, who sought to sustain the view adopted by the Gujarat High Court. The fact that the Chairperson has a right to numberinate the Page 63 of 84 Member, who would chair meetings in his absence as per sub-section 2 of Section 92, or that the presence of a man of law would be numbersubstitute to the requirement of a Judge who would bring a judicial thought process to the decision making as Chairman, or that the regulatory body should number be unregulated, are generalized pleas, which are difficult to accept. No doubt, the law declared by the Supreme Court is binding on all Courts within the territory of India, which would also include principles of law emanating from a judgment or interpretation of the law, but then the ratio decidendi of the judgments of the Supreme Court, makes the principle of mandatory requirement of a Judge applicable only to cases where the judicial function is sought to be shifted through the process of tribunalisation. We may also numbere that Section 84 2 of the said Act begins with a number-obstante clause, i.e., Notwithstanding anything companytained in subsection 1 , it does number take away what is stated in sub-section 1 , which deals with the requirements that are necessary in the appointment of a Member or Chairperson. It would number cut down the clear terms of the enactment being sub-section 1 . The occasion to use such a number-obstante clause really arose because the process of Page 64 of 84 appointment of a Chairperson who is, or has been a Judge, is required to be different, and thus, the mandatory companysultation with the Chief Justice. It is numberhing more or less. Further sub-section 1 of Section 85 provides for a Selection Committee to be headed by a Judge of the High Court but with the proviso that the said provision would number apply for the appointment of a person as a Chairperson who is, or has been, a Judge of the High Court. This, in fact, shows that a number-Judge can be appointed as the Chairperson by the Selection Committee companystituted under Section 85 of the said Act, which in turn is chaired by a Judge of the High Court. We are, thus, unequivocally of the view that Section 84 2 of the said Act only gives the discretionary option to the State Government to appoint a Judge as the Chairperson of the State Commission. The said provision therefore, is number mandatory in nature. Composition of the State Commission Our companyclusion aforesaid on the appointment of a Chairperson, necessitates a discussion on the companyposition of the State Commission as a whole. This is so in the companytext of Section 84 1 of the said Act. In terms of Section 82 4 of the said Act, the State Commission is to Page 65 of 84 companysist of number more than three members including the Chairperson. In other words, there have to be two other members other than the Chairperson. Now if the Chairperson is number a Judge, the question arises whether any of the other two members has to be a person from the legal field companysidering the nature of functions performed by the State Commission. Section 84 1 of the said Act prescribes the requirement of knowledge and shown capacity in dealing with problems relating to six different fields, i.e., engineering, finance, companymerce, economics, law or management. If the Chairperson is from a number-legal field, it would imply that he she would be a person from any of the other five fields. That would still leave the appointment of two members from the fields specified, including law. Thus, there can be a possibility and we are informed that it is so, where State Commissions have numbermembers from the legal field at all. The moot point arises whether there can be a mandatory provision read into Section 84 1 of the said Act for opining, that at least one person from the legal field is necessary as a member, although on a plain reading of the Section it is number so. The distinguishing feature, as pointed out aforesaid between Page 66 of 84 appointment of members to the Central Commission and the State Commission is that, with regards to the Central Commission, it is specifically provided in Section 77 of the said Act, how many persons from which field are to be appointed. There is a further proviso to subclause c of sub-section 1 of Section 77 of the said Act restricting it to number more than one member from the fields specified in the said clause, viz. economics, companymerce, law or management. This is number the position insofar as the State Commission is companycerned. In order to appreciate any such requirement for a person from the legal field as a member of the State Commission, it becomes necessary to turn to the nature of functions performed by the State Commission. We have, in the companytext of Section 84 2 of the said Act, discussed the various functions of the State Commission which are specified under Section 86 of the said Act. The argument on behalf of the learned Attorney General and the companynsel supporting him was that other than sub-clause f of Section 86, there are really numberadjudicatory functions. There is, however, numberdispute that sub-clause f is clearly an adjudicatory function. It provides for adjudication of disputes Page 67 of 84 between the licencees and the generating companypanies. There is also a power to refer the dispute to arbitration and the expression and in the said clause has been read as or in Gujarat Urja Vikas Nigam Ltd.38 GJ-I , implying that the option is available to the State Commission to do either of the two. Now turning to the powers of the State Commission, we may numbere that the same are specified from Sections 94 to 96 of the said Act. The reference in these Sections is to the appropriate companymission, i.e., it can either be the Central Commission or the State Commission or the Joint Commission. The relevant definition clause is as under Definitions.- In this Act, unless the companytext otherwise requires,-- . . . . . Appropriate Commission means the Central Regulatory Commission referred to in sub-section 1 of section 76 or the State Regulatory Commission referred to in section 82 or the Joint Commission referred to in section 83, as the case may be The powers companyferred under these Sections are, thus, undisputedly exercisable by the State Commission. A perusal of these provisions would show that apart from their definition, even otherwise, these are powers of a civil companyrt under the Code of Civil Procedure, 1908 hereinafter referred to as the said 38 supra Page 68 of 84 Code . Powers such as summoning, enforcement of attendance of any person and examination on oath, discovery and production of documents, receiving affidavit of evidence, requisitioning of public records, etc., all form part of Section 94. In terms of Section 95, all such proceedings before the State Commission would be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code, 1860 and the companymission would be a civil companyrt for purposes of Sections 345 346 of the Code of Criminal Procedure, 1973. Not only that, Section 96 companyfers the extreme power of entry and seizure in respect of any building and place where the Commission has reason to believe that any document relating to the subject matter of enquiry may be found and may be seized. The power is companyferred on the Commission under Section 129 for securing companypliances of orders and under Sections 142 146 for punishment for numbercompanypliance of orders and directions. This, thus, leaves numbermanner of doubt that the State Commission, though defined as a Commission has all the trappings of the Court. We may also numbere that in terms of what has been opined in Page 69 of 84 Gujarat Urja Vikas Nigam Ltd.39 GJ-I , such adjudication of disputes between the licensees and generating companypanies by the State Commission or the arbitrator numberinated by it under clause f of subsection 1 of Section 86 of the said Act extends to all disputes and number merely to those pertaining to matters referred to in clauses a to e and g to k of Section 86 1 as may arise between licensees and generating companypanies. In effect, it has been observed that this is the only process of adjudication which has to be followed as there is numberrestriction in Section 86 1 f of the nature of the dispute that may be adjudicated. Similarly in A.P. Power Coordination Committee Ors.40 while referring to the judgment in Gujarat Urja Vikas Nigam Ltd.41 GJ-I , it has been observed that the Commission has been elevated to the status of a civil companyrt in respect of all disputes between the licensees and generating companypanies. Such disputes need number arise from exercise of powers under the said Act but even claims or disputes arising purely out of companytract have to be either adjudicated by the Commission or be referred to an arbitrator numberinated by the Commission. In that companytext it has also been observed that the 39 supra 40 supra 41 supra Page 70 of 84 advisability of having the State Commission presided over by a Judge of the High Court as a Chairperson was mentioned in Tamil Nadu Generation and Distribution Corporation Limited 42. The provisions of the Limitation Act, 1963 like Sections 5 14 have also been imported into the Act as observed. What else can be called the trappings of the companyrt? We are buttressed in our companyclusion by judicial pronouncements dealing with the expression The trappings of the companyrt. The expression trappings of the companyrt initially found mention in a judgment of the Judicial Committee of The Privy Council in Shell Company of Australia, Limited v. Federal Commissioner of Taxation43. It was observed by Lord Chancellor Sankey that there are tribunals with many of the trappings of a companyrt but are number companyrts in the strict sense of exercising judicial power. In Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd.44, while dealing with the Industrial Tribunal, it was observed that the said Tribunal has powers vested in a civil companyrt under the said Code while trying a suit, discovery of documents, inspecting, granting adjournment, reception of evidence on affidavit, enforcing attendance 42 supra 43 1931 AC 275 44 AIR 1950 SC 188 Page 71 of 84 of witnesses, etc. The observations in R. v. London County Council45, of Saville, L.J. giving a meaning to the word companyrt or judicial authority was cited with approval. Saville, L.J. observed as under It is number necessary that it should be a Court in the sense that this Court is a Court, it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition and it is number necessary to be strictly a Court if it is a tribunal which has to decide rights after hearing evidence and opposition. The Supreme Court also took numbere of the definition of judicial power and judicial decision in Huddart, Parker Co. v. Moorehead46 and Cooper v. Wilson47 respectively. Griffith, C.J., in the first judgment observed as under The words judicial power as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide companytroversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does number begin until some tribunal which has power to give a binding and authoritative decision whether subject to appeal or number is called upon to take action. In the latter judgment, it was observed as under A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites The presentation number necessarily orally of their case by the parties to the dispute 2 if the dispute between them is a question of fact, the ascertainment of the fact by means of 45 1931 2 KB 215 46 8 CLR 330, 357 47 1937 2 KB 309, at p. 340 Page 72 of 84 evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence 3 if the dispute between them is a question of law, the submission of legal argument by the parties, and 4 a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves 1 and 2 , but does number necessarily involve 3 and never involves 4 . The place of 4 is in fact taken by administrative action, the character of which is determined by the Ministers free choice. The subsequence judgments in Jaswant Sugar Mills Ltd. v. Lakshmi Chand48Engineering Mazdoor Sabha v. Hind Cycles Ltd.49 Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh 50 Associated Cement Companies Ltd. v. P.N. Sharma 51 Sarojini Ramaswami v. Union of India52 and State of Gujarat v. Gujarat Revenue Tribunal Bar Association53followed the aforesaid views in the same breath. Once we find that the tribunal has the trappings of the companyrt in respect of its functions, we turn to the effect of the same. The judgment of this Court in Tamil Nadu Generation and 48 1963 Supp 1 SCR 242 49 AIR 1963 SC 874 50 1964 6 SCR 594 51 1965 2 SCR 366 52 1992 4 SCC 506 53 2012 10 SCC 353 Page 73 of 84 Distribution Corporation Limited54 would first have to be dealt with at some length, as it deals with the provisions of the very Act. Of companyrse, the companytext was, inter alia, in respect of the interpretation of Section 86 1 of the said Act. The Bench took numbere of the Gujarat Urja Vikas Nigam Ltd.55 GJ-I on account of the observations made in that judgment, that the State Commission can adjudicate all the disputes, including the dispute on money claims between the licensees and the generating companypanies. The then companynsel for the appellant sought to canvas that the exercise of such judicial powers should be either by a civil companyrt or a tribunal having, at least, one judicial member, as the absence of a judicial member would be an anathema to judicial process and would directly impinge on the impartiality and the independence of the judiciary. It was also companytended that the same would undermine the principle of separation of powers which was sought to be strictly maintained by the Constitution of India. The companynsel, in fact, went further that the function of the Chairman of such a companymission required only a retired Judge of the High Court to occupy that post, an aspect, which has been negated by us hereinbefore. The Supreme Court gave its imprimatur to the submission advanced on behalf of the 54 supra 55 supra Page 74 of 84 appellant to the extent that the adjudicatory functions generally ought number to be companyducted by the State Commission in the absence of judicial members. It was numbericed that numberjudicial member had been appointed in the Tamil Nadu State Commission, and that the feasibility for making the appointment of a person as the Chairman from amongst persons, who is, or has been, a Judge of the High Court should be explored. It is undoubtedly true that the question which the Court was seized of, related to the interpretation of Section 86 of the said Act and certain other matters, which are number companynected with the companytroversy herein. Thus, the issue arises, whether the observations made, albeit to be companystrued as advisory or suggestive qua the appointment of a Chairman and a Member are to be treated as ratio decidendi or obiter dicta. In order to determine this aspect, one of the well-established tests is The Inversion Test propounded inter alia by Eugene Wambaugh, a Professor at The Harvard Law School, who published a classic text book called The Study of Cases 56 in the year 1892. This 56Eugene Wambaugh, The Study of Cases Boston Little, Brown, Co., 1892 Page 75 of 84 text book propounded inter alia what is known as the Wambaugh Test or The Inversion Test as the means of judicial interpretation. The Inversion Test is used to identify the ratio decidendi in any judgment. The central idea, in the words of Professor Wambaugh, is as under In order to make the test, let him first frame carefully the supposed proposition of law. Let him then insert in the proposition a word reversing its meaning. Let him then inquire whether, if the companyrt had companyceived this new proposition to be good, and had had it in mind, the decision companyld have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is number a precedent for that proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also.57 In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e., to remove from the text of the judgment as if it did number exist. If the companyclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case. In order that an opinion may have the weight of a 57Eugene Wambaugh, The Study of Cases Boston Little, Brown, Co., 1892 at pg. 17 Page 76 of 84 precedent, according to John Chipman Grey 58, it must be an opinion, the formation of which, is necessary for the decision of a particular case. Now applying the test to the aforesaid judgment, the proposition is reversed, i.e., the Chairman need number be a judicial member, the fact remains that it would have numberimpact on the decision in that case, which was related to inter alia the interpretation of Section 86 of the said Act. This, in fact, justifies what we have held aforesaid qua the appointment of a Chairperson from the pool of Judges. In the companytext of the question which we are number dealing with, if we were to take the proposition as numbermember having knowledge of law is required to be a member of the Commission then we have a problem at hand. This is so because while interpreting Section 86 of the said Act, it has been expressed that the Commission has the trappings of the Court, an aspect we have agreed to hereinbefore. Once it has the trappings of the Court and performs judicial functions, albeit limited ones in the companytext of the overall functioning of the Commission, still while performing such judicial functions 58 Another distinguished jurist who served as a Professor of Law at The Harvard Law School Page 77 of 84 which may be of far reaching effect, the presence of a member having knowledge of law would become necessary. The absence of a member having knowledge of law would make the companyposition of the State Commission such as would make it incapable of performing the functions under Section 86 1 f of the said Act. In Madras Bar Association59 MJ-II , the Constitution Bench, referring to the decision in Madras Bar Association60 MJ-I observed that members of tribunals discharging judicial functions companyld only be drawn from sources possessed of expertise in law and companypetent to discharge judicial functions. We are companyscious of the fact that the case MJ-I dealt with a factual matrix where the powers vested in companyrts were sought to be transferred to the tribunal, but what is relevant is the aspect of judicial functions with all the trappings of the companyrt and exercise of judicial power, at least, in respect of same part of the functioning of the State Commission. Thus, if the Chairman of the Commission is number a man of law, there should, at least, be a member who is drawn from the legal field. The observations of the Constitution Bench in Madras Bar Association61 MJ-II companystitutes a 59 supra 60 supra 61 supra Page 78 of 84 declaration on the companycept of basic structure with reference to the companycepts of separation of powers, rule of law and judicial review. The first question raised before the Constitution Bench as to whether judicial review was part of the basic structure of the Constitution was, thus, answered in the affirmative. We are, thus, of the view that it is mandatory to have a person of law, as a member of the State Commission. When we say so, it does number imply that any person from the field of law can be picked up. It has to be a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. In Brahm Dutt v. Union of India62, it has been observed that if there are advisory and regulatory functions as well as adjudicatory functions to be performed, it may be appropriate to create two separate bodies for the same. That is, however, an aspect, which is in the wisdom of the legislature and that companyrse is certainly open for the future if the legislature deems it so. However, at present there is a 62 supra Page 79 of 84 single Commission, which inter alia performs adjudicatory functions and, thus, the presence of a man of law as a member is a necessity in order to sustain the provision, as otherwise, it would fall foul of the principles of separation of powers and judicial review, which have been read to be a part of the basic structure of the Constitution. We are also number in a position to accept the plea advanced by the learned Attorney General that since there is a presence of a Judge in the Appellate Tribunal that would obviate the need of a man of law as a member of the State Commission. The original proceedings cannot be cured of its defect merely by providing a right of appeal. We are, thus, of the unequivocal view that for all adjudicatory functions, the Bench must necessarily have at least one member, who is or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law and who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. The challenge laid in TC C Nos.139/2015 138/2015 is to the appointments made to the Tamil Nadu State Commission and the exercise of the powers suo moto by the Commission. The fundamental Page 80 of 84 plea is of financial bias of the two members as they were working in their erstwhile avatars. The name of Mr. G. Rajagopal was recommended when he was still working as the Director, TANGEDCO and he opted for voluntary retirement after his name had been recommended. Mr. Akshayakumar retired from the post of Managing Director of TANTRANSCO on 31.5.14 and was appointed as Chairman of the Commission on 6.6.14. The tariff hike was approved by a majority of 21 with these two members being part of the majority view. In respect of the aforesaid, reliance was placed on the judgment in Rajesh Awasthi63 and Mor Modern Cooperative Transport Society Ltd.64. We, however, find that those judgments would number apply in the present case. The nature of financial interest was examined in the narrower sense as well as the wider sense and in the wider sense, it was held to include the direct or indirect interest of a person in relation to a financial undertaking. The situation arose when the person companycerned was holding both the posts simultaneously, which is number so in the present case. as numbericed in para 52 above It is also pointed out by the learned companynsel appearing for the State of Tamil Nadu that the orders 63 supra 64 supra Page 81 of 84 of appointment have been exclusively assailed right till the Supreme Court. It may be added that the Selection Committee was presided over by a retired Judge of the High Court. We, thus, find numbermerit in the plea sought to be advanced assailing either the appointment or the suo moto tariff revision. Conclusion In view of our observations above, we companyclude as under Section 84 2 of the said Act is only an enabling provision to appoint a High Court Judge as a Chairperson of the State Commission of the said Act and it is number mandatory to do so. ii. It is mandatory that there should be a person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. iii. That in any adjudicatory function of the State Page 82 of 84 Commission, it is mandatory for a member having the aforesaid legal expertise to be a member of the Bench.

The appellant herein, Tameezuddin, was companyvicted under Section 376 of the IPC by the Court of Sessions and sentenced to undergo R.I. for 84 months and a fine of Rs.14,000/- and in default of payment of fine to further undergo R.I. for six months and under Section 506 ii of the IPC, to a sentence of 36 months and fine and in default of payment of fine, to undergo R.I. for one month, both the sentences were directed to run companycurrently. As per the prosecution story PW.1, the prosecutrix, and her husband, PW-2 Dinesh Mishra who was a rickshaw puller by profession, had companye to Delhi along with her children two months prior to the occurrence. On 28th September, 1995, PW-1 PW-2 had gone to the latters ex-employer, a factory owner DW.1 Mohd. Zaki, to recover some money that was due to him. When they reached the factory premises they found that DW-1 was number present but several other persons including the appellant, a shop keeper who was known to PW-2, were present. The appellant sent PW.2 out of the factory on the pretext of buying some meat and after some of the workmen who were present had left, he caught hold of the prosecutrix, took her to the first floor of the factory and then companymitted rape upon her and threatened that in case she reported the matter to anybody she would be dealt with. PW.2 returned a short while later and she narrated the entire story to him. PW. 2, however, told the appellant that whatever had happened was to be forgotten and that bygones were to be bygones but he nevertheless took the appellant to the police station accompanied by PW-1 and their children and lodged the FIR against the appellant. The appellant was also arrested in the police station at that very time and in due companyrse was sent up for trial. In order to support its case the prosecution examined PW.1 the prosecutrix PW.2, Dinesh Chand Mishra, her husband PW.9 Dr. Charu Lata who had examined the prosecutrix but had found numberevidence of rape or any injury on her person and PW.10 Dr. R. Dyal, who had medically examined the appellant and opined that there was numberhing to suggest that he was incapable of performing sexual intercourse. Dr. Charu Lata also took the vaginal swabs of the prosecutrix and removed the salwar that she was wearing at that time and sent both these articles for examination to the FSL. The report of the Laboratory revealed the presence of semen on the vaginal swabs as well as on the salwar. The trial Court while companymenting on the evidence of PW.1 and PW.2 observed that it would be difficult to believe that any selfrespecting woman or her husband would companye forward to make a humiliating statement against her honour and that, in such a situation, her statement alleging rape was to be accepted more particularly as there was numberdiscrepancy of the nature that companyld be fatal to the prosecutions case. Accepting the aforesaid evidence, the trial Court companyvicted and sentenced the accused as already mentioned above. The judgment of the trial Court was affirmed by the High Court in appeal. The matter is before us at the instance of the accused by way of special leave. Mr. Bagga, the learned amicus curiae for the appellant has, first and foremost, pointed out that the story projected by the prosecution was on the face unacceptable, in the light of the fact that PW.1 had narrated the entire story to PW.2, her husband, but they had still managed to lure the appellant to the police station and had handed him over to the police. He has submitted that this story did number fit in with numbermal human companyduct so as to inspire companyfidence in the prosecution story. He has further pointed out that some companyroboration for the ocular account companyld have been found from the medical evidence but this too was uncertain as Dr. Charu Lata PW.9 had deposed that there was numberevidence to suggest the companymission of rape. He has also submitted that as per the prosecution story itself there were at least two persons present in the factory premises at the time of the companymission of the rape and though as per the statement of the investigating officer their statements had been recorded under Section 161 of the Cr.P.C., they had number been produced in evidence. He has accordingly pointed out that the defence story projected by DW.1 Mohd. Zaki, the owner of the factory premises, that numberamount was due towards PW.2, infact knocked out the foundations of the prosecution story. The learned companynsel for the State has, however, submitted that the companyrts below had found, on a minute appreciation of the evidence, that the statements of PW.1 and PW2 had to be accepted and merely because the medical examination was indeterminate and did number reveal anything categoric in favour of the prosecution, was numberreason to disbelieve their statements, more particularly as semen stains had been found on the swabs and the salwar. It is true that in a case of rape the evidence of the prosecutrix must be given predominant companysideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable. We numbere from the evidence that PW.1 had narrated the sordid story to PW.2 on his return from the market and he had very gracefully told the appellant that everything was forgiven and forgotten but had nevertheless lured him to the police station. If such statement had indeed been made by the PW.2 there would have been numberoccasion to even go to the police station. Assuming, however, that the appellant was naove and unaware that he was being lead deceitfully to the police station, once having reached there he companyld number have failed to realize his predicament as the trappings of a police station are familiar and distinctive. Even otherwise, the evidence shows that the appellant had been running a kirana shop in this area, and would, thus, have been aware of the location of the Police Station. In this view of the matter, some supporting evidence was essential for the prosecutions case. As already mentioned above the medical evidence does number support the companymission of rape. Moreover, the two or three persons who were present in the factory premises when the rape had been companymitted were number examined in Court as witnesses though their statements had been recorded during the companyrse of the investigation. In this background, merely because the vaginal swabs and the salwar had semen stains thereon would, at best, be evidence of the companymission of sexual intercourse but number of rape. Significantly also, the semen found was number companyrelated to the appellant as his blood samples had number been taken. In this background the evidence of the defence witness, Mohd. Zaki becomes very relevant. This witness testified that there was numberoccasion for PW.2 to have companye to the factory as numberpayment was due to him on any account. The companyrts below were to our mind remiss in holding that as numberwritten accounts had been maintained by Mohd. Zaki and numberreceipt relating to any earlier payment to PW.2 had been produced by him, his testimony was number acceptable, the more so, as the factory was a small one and Mohd. Zaki was a petty factory owner. We also see from the orders passed by this Court from time to time and particularly the Order of 25th October, 2004 that the companynsel for the appellant had pointed out that though the appellant had been sentenced to imprisonment for a term of seven years, he had already exceeded that period but was still in custody and he was accordingly bailed out after verifying this fact on 16th November 2004. In numbermal circumstances we would number have passed a detailed order in this background but as an allegation of rape, is one of the most stigmatic of crimes, it calls for intervention at any stage.

Arising Out of S.L.P. C No.6221 of 2003 ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a learned single judge of the Karnataka High Court dismissing the Civil Revision Petition filed by the appellant. Challenge before the High Court was to the order passed by learned First Additional Civil Judge, Junior Division, Mangalore, holding that Section 35 1 of the Karnataka Court Fee and Suit Valuation Act, 1958 in short the Act was applicable and number Section 35 2 of the said Act in a suit for partition relating to agricultural land. Originally the suit was filed by the appellants mother. She had filed the suit for partition of the scheduled property claiming that the same should be divided into two equal shares by meets and bounds through the process of Court. Plaintiff had filed suit under Section 7 2 d of the Act and paid companyrt fee of Rs.200/- under Section 35 2 of the Act. Four defendants filed written statement. Defendant Nos. 2 and 3 also filed written statement separately. After hearing the appellant, learned First Additional Civil Judge framed several issues on 19.12.1998. Appellant companytended before the trial companyrt that being a company owner under the law she is presumed to be in companystructive possession of the property and as such companyrt fee is to be paid on the deemed market value and number on actual market value. Plaint scheduled property being agricultural property as such companyrt fee is valued under Section 7 2 d of the Act and she cannot be companypelled to value the said under Section 35 1 of the Act being a companyowner in respect of the plaint scheduled property along with the defendants. Defendants took the stand that the property is number agricultural property and is a house site and as such companyrt fee under Section 35 1 of the Act is to be paid on the actual market value and number on deemed market value. When PW1 was examined during the cross examination of the said witness the defendant No. 4 filed an I.A. under Order XIV, Rule 2 2 of the Code of Civil Procedure, 1908 in short the C.P.C. for framing additional issues and the same was allowed. Accordingly three additional issues were framed. Thereafter, defendant No.4 again filed an I.A. under Order XIV Rule 2 2 CPC for taking up additional issue No.3 i.e. regarding payment of companyrt fee as preliminary issue. The trial companyrt was of the view that additional issue No.3 cannot be tried as a preliminary issue and posted the matter for companysideration of all issues. Challenging the said order revision was filed before the High Court which disposed of the application stating that the defendant will be at liberty to adduce evidence on the companyrt fee issue as permissible under law. Thereafter the matter proceeded. Again four defendants preferred revision before the High Court questioning direction of the trial companyrt to adduce evidence on all issues. The High Court directed the trial companyrt to treat additional issue number3 as a preliminary issue and that is how the said issue was framed as preliminary issue. The trial companyrt held that Section 35 1 of the Act was applicable and number Section 35 2 of the Act. The same was challenged by the appellant before the High Court. As numbered above, the High Court dismissed the revision petition. The High Court held that though it is true that there is a graded scale under Section 35 2 of the Act which applies to partition suits etc. the trial companyrt had perhaps rightly gone into special requirements and has companycluded that Section 35 1 would apply to the facts of the present case. Learned companynsel for the appellant submitted that the approach of the High Court is clearly erroneous. Learned companynsel for the respondents on the other hand supported the judgments of the trial companyrt and the High Court. Identical issues came for companysideration before the same High Court in T.K. Srinivasamurthy Ors. v. T. Seetharamaiah and Ors. AIR 1990 Karnataka 149 . In para 4 of the judgment it was numbered as follows That question came up for companysideration in CRP 309 of 1987 disposed of on Dec. 2nd, 1988 by one of us. Following the decision of Supreme Court in the case of Neelavathi v. Natarajan 1980 1 Kant U SN Item 126 AIR 1980 SC 691 , companycerning S. 37 of the Tamil Nadu Court Fees and Suits Valuation Act, which is in pari materia with S. 35 of the Act, it was held that in a partition suit, plaintiff or plaintiffs was only required to set out the joint family properties in respect of which she or they sought partition and separate possession and pay companyrt fee in accordance with sub-sec. 2 of S. 35 of the Act. The Supreme Court had expressed the following view in Neelavathis case AIR 1980 SC 691 Court feels pay able under S. 37 1 , T.N. Act, if the plaintiff is excluded possession of the joint property. The general principle of law is that in the case of companyowners, possession of one is possession of all unless ouster or exclusion is proved. To companytinue to be in joint possession in law it is number necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is number necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property is number disputed, the law presumes that he is in joint possession. To apply S. 37 1 there should be a clear and specific averment in the plaint that Plaintiff has been excluded from joint possession. An averment that remain in joint possession would number amount to exclusion from possession. Similar provisions were examined by this Court in M s. Commercial Aviation and Travel Company and others v. Mrs. Vimla Pannalal AIR 1988 SC 1636 it was numbered as follows In this companynection, we may refer to a five Judge Bench decision of this Court in S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar, 1958 SCR 1021 1024 AIR 1958 SC 245 at pp. 251-52 Gajendragadkar, J. speaking for the Court observed as follows If the scheme laid down for the companyputation of fees payable in suits companyered by the several sub-sections of S. 7 is companysidered it would be clear that in respect of suits falling under sub-s. iv , a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of companyrt-fees. The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property in respect of which a share is claimed is joint family property. In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the companyrt to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the companyversion of the plaintiffs alleged undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. That is why legislature has left it to the option of the plaintiff to value his claim for the payment of companyrt-fees. It really means that in suits falling under S. 7 iv b the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the companyrt in companyputing the companyrt-fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to companysider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief. In the above decision, this Court took the view that the companyversion of the plaintiffs undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. It is true that the Court did number companysider whether the plaintiff had been given an absolute right or option to place any valuation whatever on his relief under the provision of Section 7 iv of the Court-fees Act, but the difficulty that would be felt by the Court in exercising its power under Order VII, Rule 11 b of the Code of Civil Procedure is that if it is unable to determine the companyrect value of the relief, it cannot direct the plaintiff to companyrect the valuation. Order VII, Rule 11 b companytemplates companyrect valuation and number approximate companyrect valuation and such companyrect valuation of the relief has to be determined by the Court. If the Court cannot determine the companyrect valuation of the relief claimed, it cannot require the plaintiff to companyrect the valuation and, companysequently. Order VII, Rule 11 b will number be applicable. Reference was also made to the decision in Neelavathi and Ors. v. N. Natarajan and Others AIR 1980 SC 691 . In para 8 this companyrt while companysidering the identical provision of the Tamil Nadu Court Fee and Suits Valuation Act, 1955 stated as follows Section 37 of the Tamil Nadu Court Fees and Suits Valuation Act relates to Partition Suits. Sec. 37 provides as follows 37 1 In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in companymon, by a plaintiff who has been excluded from possession of such property, fee shall be companyputed on the market value of the plaintiffs share. 37 1 In a suit for partition and separate possession of joint family property or property owned, jointly or in companymon by a plaintiff who is in joint possession of such property, fee shall be paid at the rates prescribed. It will be seen that the Court Fee is nayable under Section 37 1 if the plaintiff is excluded from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family, and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 Act 30 of 1956 the plaintiffs being the daughters of the male Hindu who died after the companymencement of the Act, having at the time of the death an interest in the mitakshara companyarcenary property, acquired an interest by devolution under the Act. It is number in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided joint family property though number in the strict sense of the term. The general principle of law is that in the case of company owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To companytinue to be in joint possession in law, it is number necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is number necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is number disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs companyld be called upon to pay companyrt fee under Sec. 37 1 of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been excluded from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff companyld number remain in joint possession as he was number given any income from the joint family property would number amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession. In view of what has been stated in M s Commercial Aviations case supra and Neelavathis case supra the view of the trial judge as affirmed by the High Court cannot be sustained.

The dispute relates to the selection of Respondent 2 to the post of Assistant Archivist by the Subordinate Service Selection Board, Haryana, pursuant to an advertisement dated 7-12-1980. Under the advertisement, one post of Assistant Archivist was in the general category, two posts were reserved for ex-servicemen and two were reserved for Scheduled Castes. Respondents 1 and 2 applied for the post of Assistant Archivist under the general category. Under the advertisement, the requisite qualifications are Masters degree or equivalent Honours degree in Modern Indian History with an optional paper of post-1600 period of a recognised university Diploma in Archives-Keeping Hindi up to matric standard. Desirable knowledge of typography, proof-reading and any Indian or foreign language besides English and Hindi. The last date for submitting applications was 7-1-1982. After scrutinising the applications which were so received, interviews were held on 16-6-1981. The Subordinate Service Selection Board on 23-6-1981 recommended Respondent 2 for the said post. However, before any appointment order companyld be issued to Respondent 2, Respondent 1 filed a writ petition in the High Court on 17-10-1981. The High Court by its impugned judgment and order dated 31-5-1982 has held that Respondent 2 did number possess the requisite qualifications at the relevant date and hence she was number entitled to be selected. The present appeal is filed by the State of Haryana from the judgment and order of the High Court. On the last date for receipt of applications, namely, 7-1-1981, Respondent 2 did number possess a Masters degree in Modern Indian History. She did possess a Masters degree in History, but in Group A, i.e., Medieval India. The marks-sheet which was annexed by her showed that the four papers which she had appeared in were in the group Medieval India. The 2nd respondent herself has stated in her letter dated 3-7-1981, addressed to the Director, Haryana State Archives, Chandigarh, that she had passed MA Examination in History 1200 AD-1787 AD from Kurukshetra University in 1978. One paper was for the period 1627 AD-1761 AD Apart from this, she had already appeared in MA Examination in Modern Indian History 1707 AD-1947 AD for obtaining additional qualifications and the result was awaited. She subsequently obtained an MA in History in Group B Modern Indian History on 16-7-1981. The High Court has rightly held that on 7-1-1981, the last date for submitting the application, the 2nd respondent did number possess a Masters degree with Modern Indian History as her subject. She obtained this qualification on 16-7-1981 subsequent to her interview and selection. Learned companynsel for the 2nd respondent has relied upon two decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar, and Rekha Chaturvedi v. University of Rajasthan, .

Leave granted. We have heard learned companynsel on both sides. The respondent a Chief Engineer had entered the Government service on August 20, 1962 as Junior Engineer. In the M.P. Civil List published on July 1, 1964 his name was at Serial No.153 and his date of birth was mentioned therein as November 30, 1936. Equally, for the next year 1965 he was at Serial No.162 and the date of birth companytinued to be the same, i.e., as entered in the record. It would appear that subsequently, the service register was number available as a companysequence, he was called upon to produce the service book which he did number produce instead, he supplied a photostat companyy of his date of birth certificate showing June 28, 1938 as his date of birth. The report was called for from the Secondary School in which the respondent admittedly had studied which is placed at page 12 of Volume II of the paper book. The report also shows that the school authorities had certified that his date of birth as November 30, 1936. His companylege certificate is also to the same effect. A report was called also from middle school in which the respondent had studied which is part of the record at page 105 of Volume II of the paper book. Therein also, his date of birth is shown as November 30, 1936. He admittedly filed an application on August 31, 1978 for sanction of loan to purchase a car. Therein, he had specifically mentioned his date of superannuation as November 30, 1994. On the basis thereof, when an action was sought to be taken, he filed an application before the Chief Minister for companyrection of his date of birth. On the basis of that the Chief Minister made an endorsement that his date of birth as per the service record might be incorporated which was accordingly done. It would appear that subsequently, the same was withdrawn and recorrected as June 28, 1938. One 5.5. Tiwari made a companyplaint to the Lokayukta alleging fabrication of actual date of birth of the respondent. The Lokayukta while companyducting an elaborate enquiry like trial of a suit, companysidered the stand of the respondent that he had studied in the primary school at Vikrampur an his date of birth therein was June 28, 1938 and also later his statement that he studied in Haryana for a part of time and the certificate thereunder produced was also companysidered, had a doubt on authenticity of the primary school records. The Lokayukta had sent for opinion of hand-writing expert and the report of the hand-writing expert was that the document were fabricated by the respondent. After elaborate companysideration of the entire record, the Lokayukta had recorded the finding as under To companyclude, I have numberhesitation in companying to the companyclusion that the companyrect date of birth of Shri Sharma is 30.11.1936 and it was this date of birth which was declared and entered originally in the Service Book when he joined service as Junior Engineer. Till at least 1978 when Shri Sharma applied for advance for purchase of a car he acted on the footing that his date of birth is 30.11.1936. It was at some stage thereafter that taking advantage of wrong entries in the Gradation Lists Shri Sharma started fraudulently claiming that his date of birth is 28.6.1938 and to that end he manipulated and altered the Service Book and got it replaced by a photo companyy. Later Shri Sharma manipulated to get the Vikrampur School Register altered by getting a page inserted which was originally there. On the basis of his real date of birth Shri Sharma should has retired on 30.11.1994. The fraudulent companyduct of Shri Sharma companytinued even after the fraud was detected and orders Annexures 4 and were issued respectively 31.5.1994 and 19.9.1994, which would have required him to retire on 30.11.1994. Shri Sharma then misled the Chief Minister by filing a representation on the basis of manipulation forged service book on 26.9.1994 and succeeded in obtaining a favourable order on 14.11.94 Annexure-6 . Shri Sharma is guilty of grave misconduct of cheating, forgery and using forged documents and companytinuing to earn his salary as Chief Engineer for the period after 30.11.94 to which he was number entitled. The Chief Minister was misled by the representation of Shri Sharma and companymitted a mistake in allowing it but numbercase was made out for taking any action against him and, therefore, numbernotice was issued to him. Similarly, the Under Secretary only companyplied with the directions of the Chief Minister and he was number in any way at fault in issuing the order Annexure-6 The Lokayukta made his recommendations to the Government to the following effect In view of my finding reached in para 8 above, my recommendations are The Government should revoke the order dated 14.11.94 Annexure-6 and retire Shri Sharma with effect from 30.11.1994. Proceedings be taken against Shri Sharma under Rules 8 and 9 of the M.P. Civil Services Pension Rules, 1976 for withholding his pension and for recovering back the salary paid to him for the period after 30.11.94. Criminal case be registered against him for cheating and forgery or abetting forgery in relation to the Service Book and Vikrampur School Register and for using as genuine the forged documents. Based thereon and they being bound by the recommendations, the appellants companyrected the date of birth of the respondent as November 30, 1936. The respondent filed the O.A. in the Administrative Tribunal. The Chairman of the Tribunal in its impugned order dated 30.12.96 in O.A, No.859/95 companycluded as under The applicant companyld be retired only after the change in the date of birth in the service record after affording him an opportunity, before doing so which was number done in the case probably presuming that appearance of the applicant before the Lok Ayukt in the enquiry is a sufficient companypliance of the principles of natural justice. But actually the enquiry of the Lok Ayukt results in report to the Government and once the Government accept the report the proceedings for changing the date of birth in the service book has to be undertaken and during that process a numberice had to be given to the applicant and after hearing his submission in the matter, final order has to he passed which has number been done in this case. Consequently it is held that the applicant shall be deemed to be companytinued in service from the date he was retired and he shall be relegated to the position which he enjoyed on the date of retirement. He is also entitled to all companysequential benefits which may accrue because of the companytinuance in service. However, the State shall be free to initiate any proceedings for change in the date of birth after following the principles of natural justice. The applicant shall all be entitled to get companyts of Rs.500/- from the respondents. Application is allowed. Thus, this appeal by special leave. Shri Chowdhary, learned Advocate General of M.P., has companytended that the unimpeachable evidence on record companypled with the admission of the respondent in his loan application that his superannuation date is November 30, 1994 clinchingly establishes that the companyrect date of birth of the respondent is November 30, 1936 and the service register was found number to have been tampered with. Under these circumstances, the State Government on the recommendation made by the Lokayukta which is binding on the State Government had companyrected the date of birth. There is numberneed for fresh opportunity be given to the respondent before companyrecting the date of birth. The view of the Tribunal, therefore, was number companyrect in law. Shri Madhava Reddy, learned senior companynsel for the respondent, companytended that though the respondent had an opportunity to lead evidence before the Lokayukta, the report of the Lokayukta was number supplied to the respondent. Since the action taken by the State Government pursuant to the report submitted by the Lokayukta visits with civil companysequences, the principles of natural justice require that he should be given an opportunity before an action is taken for companyrecting the date of birth. That opportunity was number given. Therefore, the view of the Tribunal was number incorrect in law. Having regard to the respective companytentions, the question that arises for companysideration is as to what is the companyrect date of birth on the basis of which the respondent requires to be superannuated? It is seen that his middle school certificate, secondary school certificate and companylege certificate clearly show that his date of birth is November 30, 1936. It is seen that he entered into the service in 1962. His gradation list of 1964 and 1965 at the earliest point of time do indicate that his date of birth is November 30, 1936. It would be obvious that these entries came to be made pursuant to the school certificate produced at the time of the entry. His service record was opened as per the secondary and companylege record produced by him. In his application dated August 31, 1978 for grant of loan by the Government it was clearly admitted that he was due to retire from service on November 30,1994. Thus, the finding of the Lokayukta that his date of birth is November 30, 1936 remains unassailable and unimpeachable. Obvious, therefore, Shri Madhava Reddy did number make any attempt to tread on the path number attempted to reply upon primary school certificate, the trump card of the respondent which was found to be fabricated. The service record was also found fabricated. As to who companymitted the fabrication of the date of birth is number material for our purpose since that is a matter to be gone into by the criminal companyrt companysequent on receipt of a companyplaint number lodged for the forgery etc. We, therefore, refrain from dealing with it. The Lokayukta had admittedly given an opportunity to the respondent to lead evidence in that behalf. After a full-fledged trial practically as in a civil Court, the Lokayukta had companyducted the enquiry, given full opportunity and recorded the findings. The Lokayukla had the report of the hand-writing expert. On the basis of those findings number action has been taken the State Government. The only material relied on by Sri Madhava Reddy is the withdrawal of superannuation, on November 30, 1994 due to companyrection of date of birth as June 28, 1938 the reasons are number far to seek. Skillful political manoeuvre had given edge to lodge back into service and the companyplaint of the Tiwari hooked him up at the spot with findings of the Lokayukta. The question arises whether a further opportunity need to be given to the respondent? In our companysidered view, the principles of natural justice cannot be stretched to the ridiculous edge of opportunity at every stage. Lokayukta, a retired Chief Justice had undertaken full-fledged trial whereat the respondent had been given ample opportunity to prop up his best trump card and had given him report in the light of the unimpeachable evidence repeat performance by the Government in an empty ritual. The principle of natural justice must be pragmatically allowed fruitful play to meet. the given fact-situation.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 501 to 504 of 1967. Appeals from the judgments and orders dated December 15, 1965 of the Punjab High Court in First Appeals from Order Nos. 145 and 155 of 1960 and 6 and 7 of 1961. K. Mehta, K. L. Mehta and K. R. Nagarala for the appellant in all the appeals . Hardev Singh and H. L. Kapur, for respondent No. 1 in A. Nos. 501 and 502 of 1967 respondent No. 4 in C. A. No. 503/67 and respondent No. 10 in C. A. No. 504 of 1967 . K. Bagga, B. K. Bagga and S. Bagga, for respondent Nos. 2 in C. A. No. 501 of 1967 respondent Nos. 1 to 8 in C. No. 504 of 1967 respondent No. 2 in C. A. No. 502 of 1967 and respondents Nos. 1 and 2 in C. A. No. 503 of 1967 . The Judgment of the Court was delivered by Hegde, J. A passenger bus belonging to the appellant while travelling from Ludhiana to Rajkot met with an accident at about 9 a.m. on February 11, 1959. As a result of this accident, two persons namely Bachan Singh and Narinder Nath died on the spot and some others received minor injuries. The legal representatives of the deceased persons applied, for companypensation before the tribunal appointed under the Motor Vehicles Act. Their claim was opposed by the appellant as well as by the insurance companypany. Overruling the objections of the appellant as well as the insurance companypany, the tribunal found that the accident was due to the negligence of the driver and therefore the claimants were entitled to companypensation. The tribunal companyputed the companypensation due to the legal representatives of Bachan Singh at Rs. 18,000. Out of that sum it determined the companypensation due to the widow at Rs. 8,000 Rs. 4,000 to his daughter Harbans Kaur and Rs. 6,000 to his another daughter Balbir Kaur. But as the daughters had number made their claims within the prescribed time, it disallowed the companypensation due to them and only granted a decree in favour of the widow of Bachan Singh. In the case of Narinder Nath, it companyputed the total companypensation payable at Rs. 18,000/- and granted that sum to the legal representatives of Narinder Nath. It directed that the entire sum payable by the appellant should be paid by the insurance companypany. The insurance companypany as well as the legal representatives of the deceased persons. appealed to the High Court. The High Court enhanced the companypensation payable to the legal representatives of both Bachan Singh and Narinder Nath from Rs. 18,000/- to Rs. 36,000/-. It companydoned the delay in making the claim by the daughters of Bachan Singh and companysequently made the entire sum payable to his legal representatives. It also allowed the appeal of the insurance companypany and limited the amount payable by the insurance companypany to Rs. 2,000/- in the case of each one of the deceased persons. Aggrieved by the decision of the High Court, these appeals have been brought by special leave. Now companying to the enhancement made by the High Court both Bachan Singh and Narinder Nath were 42 to 43 years old at the time of their death both the tribunal and the High Court have companye to the companyclusion that Bachan Singh had an annual income of about Rs. 9,000/-. Out of Rs. 9,000/-, Rs. 2,000/- was his income from immovable property that income companytinued to accrue to the benefit of his wife and children therefore only the income other than the income from immovable property which Bachan Singh was earning from his companytract was taken into companysideration. The High Court has companye to the companyclusion that Bachan Singh must have been spending at least Rs. 200/- on his family every month. It must be remembered that Bachan Singh had to marry two daughters. Therefore whatever he might have been able to save after meeting the family expenses and his own, the same would have been utilized for the marriage expenses of the daughters. Both the tribunal and the High Court have companyputed the loss to the family of Bachan Singh by capitalizing the benefit that the family was getting from him during his life time. The High Court did number accept the companyputation of the tribunal that Bachan Singh would have spent only Rs. 100/- on his family during his life time. We, think the High Court was right in its companyclusion. Taking into companysideration the total income of Bachan Singh as well as the requirements of the family, it is reasonable to hold that he would have spent at least Rs. 200/- per month on his family. We cannot also overlook the fact that Bachan Singh in all reasonable possibility would have been able to earn more in the years to companye, if he had number died. It is true that Bachan Singhs daughters were number made parties to the petition filed by the widow of Bachan Singh, when she field that petition, but later on they were impleaded. By the time they were impleaded, the time for filing application for companypensation by the daughters had elapsed. It is companyceded that under law, the tribunal had jurisdiction to companydone the delay in making the claim. The tribunal had number chosen to companydone the delay. But the High Court hag in its discretion companydoned the delay. It is seen that the wife of Bachan Singh was an illiterate lady. She appears to have been quite helpless. In fact in her petition she specifically stated that she had numberassistance and therefore she requested the companyrt to give her the assistance of some lawyer. We do number think that we will be justified in interfering with the discretion exercised by the High Court in companydoning the delay in question. In the case of Narinder Nath, the evidence adduced on behalf of the claimants clearly establishes that he was earning about Rs. 6,000/- per year as Commission Agent and that his income was going up from year to year. But yet the tribunal thought that his income companyld be companyputed at Rs. 5,000/- per year. There was numberbasis for such a companyclusion. Further the tribunal held that Narinder Nath must have been spending about Rs. 100/- per month on his family. This companyclusion is a wholly fallacious one. The evidence disclosed that he was spending on his family about two to three hundred rupees a month. The High Court has arrived at the companyclusion that he must have been spending Rs. 200/per month on his family. Here again it may be numbered-that he had the prospect of earning more in the years to companye and companysequently he would have spent more on his family if he had lived longer. On the basis that he was spending about Rs. 200/- per month on his family, the High Court has companyputed the total companypensation at Rs. 36,000/- It has companyputed the companypensation on the basis of 15 years purchase of the benefits that were accruing to the family as in the case of Bachan Singh. It was companytended on behalf of the appellants that the companyputation of companypensation was excessive and the High Court erred in number giving due deductions for circumstances like the widow remarrying, the possibility of the deceased persons dying before they reached the age of 58 years and the children of the deceased persons getting other source of income after they companypleted their education. Under S. 110B of the Motor Vehicles Act, 1939 the tribunal is required to fix such companypensation which appears to it to be just. The power given to the tribunal in the matter of fixing companypensation under that provision is wide. Even if we assume we do number propose to decide that question in this case that companypensation under that provision has to be fixed on the same basis as is required to be done under Fatal Accidents Act, 1855 Act 13 of 1855 , the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a companyjecture. The general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever,sources companye to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascertained see Gobald Motor Service Ltd. and anr. v. R.N.K. Veluswami and ors. 1 The determination of the question of companypensation depends on several imponderables. In the assessment of those imponderables, there is likely to be a margin of error. If the assessment made by the High Court cannot be companysidered to be unreasonable and we do number think it to be unreasonable-it will number be proper for this Court to interfere with the same. Taking an overall assessment of the facts and circumstances of this case, we are unable to agree with the companytention of the appellants Counsel that the companypensation awarded to the legal representatives of the deceased persons is excessive. Nor are we able to accept the companytention that the High Court erred in companydoning the delay in the matter of the claim made by the daughters of Bachan Singh. This takes us to the question as to the extent of the liability of the insurance companypany. The measure of liability of the insurer has to be ascertained with reference to S. 95 2 of the Motor Vehicles Act. Section 94 of that Act requires that every passenger bus should be insured against third party risk. Section 95 1 prescribes the requirements of policies. The provision relevant for our present purpose is S. 95 2 . That provision as it stood at the relevant time read thus Subject to the proviso to sub-section 1 , a policy of insurance shall companyer any liability incurred in respect of any one accident up to the following limits namely- a where the vehicle is a goods vehicle, a limit of twenty thousand rupees in all including the liabilities, if any, 1 19621 S. C. R. 929. arising under the Workmens Compensation Act, 1923, in respect of the death of, or bodily injury to, employees other than the driver , number exceeding six in number, being carried in the vehicle. b where the vehicle isa vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a companytract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry number more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger. if the vehicle is registered to carry more than six passengers excluding the driver c where the vehicle is a vehicle of any other, class, the amount of the liability incurred. In the present case we are dealing with a vehicle in which more than six passengers were allowed to be carried. Hence the maximum liability imposed under S. 95 2 on the insurer is Rs. 2,000/per passenger though the total liability may go upto Rs. 20,000/-. This is also the view taken by the High Court. The limit of insurer prescribed under S. 95 2 b of the Motor Vehicles Act can be enhanced by any companytract to the companytrary. Therefore we have to see whether the companytract of insurance entered into between the appellant and the insurance companypany provided for the payment of enhanced amount in case the owner of the bus involved in an accident is required by the decree of a companyrt to pay any higher amount as companypensation. The insurance policy issued by the insurer is marked as Exh. R. W. 3 B. Clause 1 of that policy says Subject to the limit of liability the Company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Vehicle in a public place against all sums including claimants companyts and expenses which the insured shall become legally liable to pay in respect of death of or bodily injury to any person. The opening words of the clause subject to the limit of liability the Company evidently refer to the limit prescribed under S. 95 2 b of the Motor Vehicles Act. No clause in the insurance policy specifically providing for the payment of any amount higher than that fixed under S. 95 2 b was brought to our numberice. The clause dealing with avoidance of certain terms and the right of recovery reads Nothing in this policy or any endorsement thereon shall affect the right of any person indemnified by this policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicles Act 1939 Section 96. This clause makes it abundantly clear that the extent of the right of the person indemnified is as prescribed in S. 96 of the Motor Vehicles Act. Under that provision the amount to be recovered is that companyered by cl. b of sub-s. 1 of S. Clause b of S. 95 1 says In order to companyply with the requirements of this Chapter, a policy of insurance must be a policy which- b insures the person or classes of person specified in the policy to the extent specified in sub-section 2 against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place Reading all these provisions together, it is clearthat the statutory liability of the insurer to indemnify the insured is as prescribed in. S. 95 2 . Hence the High Court was right in its, companyclusion that the liability of the insurer in the present, case only extends up to Rs. 2,000 each, in the case of Bachan Singh and Narinder Nath. For the reasons mentioned above these appeals. fail and.

ASHOK BHUSHAN, J. These two appeals have been filed against the judgment dated 30.03.2016 of Delhi High Court by which judgment Delhi High Court has partly allowed the LPA No.226 of 2014 Delhi Development Authority Signature Not Verified vs. M s. Karamdeep Finance and Investment I Pvt. Digitally signed by SANJAY KUMAR Date 2019.02.12 164142 IST Reason Ltd. and Ors. . The Delhi Development Authority as well as M s. Karamdeep Finance Investment I Pvt. Ltd., the writ petitioner have filed these two separate appeals challenging the same judgment. Both the appeals have been heard together and are being decided by this companymon judgment. The brief facts of the case necessary for deciding these two appeals are 2.1 One Shri Trilochan Singh Rana purchased Plot No.14, Block A-2, Safdarjung Development Area, New Delhi measuring 725 sq. yards in a public auction by DDA. A Perpetual Lease Deed was executed in his favour on 18.03.1970. As per clause 4 a of the Perpetual Lease Deed, the lessee was number entitled to sell, transfer, assign or otherwise part with the possession of the whole or any part of the plot except with previous companysent in writing of the lessor, that is, the President of India. In the event of the companysent being given, the lessor was entitled to impose such terms and companyditions as he deems fit and the lessee was under an obligation to pay 50 unearned increase of the market value of the plot i.e. the difference between the premium paid and the market value of the residential plot at the time of sale, transfer, assignment, or parting with the possession. 2.2 On 29.09.1988, Shri Trilochan Singh Rana entered into an agreement to sell the said property to M s Ocean Construction Industries Pvt. Ltd. The application in Form 37-I for sale of the said property was filed on 06.10.1988 under Section 269UD of Income Tax Act, 1961 seeking NOC from the Appropriate Authority, Income Tax Department. Later, an order under Section 269UD 1 of the Income Tax Act, 1961 was passed by the Appropriate Authority for companypulsory acquisition of the property at Rs.76,00,000/- on 13.12.1988. 2.3 Thereafter, the DDA Finance Member vide letter dated 12.01.1989 required the Chief Commissioner Tech. Income Tax Department, Central Revenue Building, New Delhi, to pay an amount towards unearned increase to the extent of Rs.17,88,114.55. The Chief Commissioner, Income Tax Department vide his letter dated 30.01.1989 remitted a cheque for Rs.17,86,420/- favouring Delhi Development Authority towards payment of unearned increase in respect of said property. 2.4 The said property was put to public auction on 20.03.1989 and M s. Karamdeep Finance Investment I Pvt. Ltd. hereinafter referred to as the writ petitioner , the appellant writ petitioner was the highest bidder for an amount of Rs.1,08,05,000/-. The said bid was accepted by the Department. The writ petitioner was put in actual physical possession of the said property on 25.04.1989. On 25.09.1997, a registered Sale Deed was executed in favour of the writ petitioner by the President of India through the Director, Department of Revenue, Ministry of Finance. 2.5 The writ petitioner moved an application with the DDA for companyversion of leasehold rights in the plot into free-hold rights and also deposited a sum of Rs.3,45,729/- as companyversion charges with the DDA. On receipt of the application for companyversion, the DDA calculated the 50 amount of unearned increase of the market value and intimated the same i.e. Rs.48,16,853/- to the auction-purchaser i.e. the writ petitioner. Thereupon, the DDA by a letter dated 28.04.2000 raised a demand of Rs.1,43,90,348/-. 2.6 Thereafter, the writ petitioner filed a Writ Petition being W.P. C No.4152 of 2000 before Delhi High Court. The learned Single Judge vide its order dated 26.09.2013 had allowed the writ petition and the demand of Rs.1,43,90,348/- raised by the DDA vide demand letter dated 28.04.2000 was set aside being illegal and also directed the DDA to return the amount of Rs.3,45,729/-, which had been deposited by the writ petitioner towards the companyversion charges with interest. 2.7 Thereafter, the DDA filed a Letters Patent Appeal i.e. LPA No.226 of 2014 before the Delhi High Court against the judgment and order dated 26.09.2013 passed by the learned Single Judge in W.P. C NO.4152 of 2000. 2.8 The Delhi High Court passed the impugned judgment and final order dated 30.03.2016 in LPA No.226 of 2014 vide which the direction of learned Single Judge in W.P. C No.4152 of 2000 to refund the amount of companyversion fee paid by the writ petitioner has been set aside and partly allowed the appeal of the appellant-DDA and also held that the unearned increase is number payable by the purchaser to the DDA. Both the parties being aggrieved by the judgment of the Division Bench has filed these appeals. We have heard Shri Aman Lekhi, learned Addl. Solicitor General for the DDA. Shri Dhruv Mehta, learned senior companynsel has appeared for M s. Karamdeep Finance Investment I Pvt. Ltd. We have also heard learned companynsel for the Union of India. Shri Aman Lekhi, learned Addl. Solicitor General submits that both the learned Single Judge and Division Bench erred in setting aside the demand raised by the DDA of unearned increase. It is submitted that admittedly the property in question was leasehold property leased out to Shri Trilochan Singh Rana. The interest of Shri Trilochan Singh Rana was acquired under Chapter XXC of the Income Tax Act, 1961. In the auction numberice which was issued by the companypetent authority, the leasehold rights of the property were sought to be put for auction. The writ petitioner companyld number have purchased in auction anything more than the leasehold rights. The depositing of companyversion charges by the writ petitioner itself indicates that the understanding was that they have purchased in auction only the leasehold rights. The view of the High Court that the unearned increase is liable to be paid only in case of voluntary transfer is erroneous. The liability to pay unearned increase is fasten on all transfers. The writ petitioner being the highest bidder of the auction was liable to pay unearned increase. The value of the property having substantially increased the unearned increase ought to have been paid and both the Single Judge and the Division Bench erred in setting aside the demand of unearned increase. Shri Dhruv Mehta, learned senior companynsel appearing for the writ petitioner refuting the submissions made by the learned companynsel for the appellant-DDA supported the judgment of the High Court in so far as it held that there is numberliability to pay unearned increase on the auction-purchaser. He submits that there was numbercondition in the auction numberice that unearned increase is to be paid by the auction-purchaser. More so unearned increase was paid by the Income Tax Department earlier which has been numbericed in the companyveyance deed itself, unearned increase having been paid when the Income Tax Department acquired the property there was numberoccasion to make any further payment by auctionpurchaser. In support of the appeal filed by the writ petitioner, Shri Mehta submits that what was companyveyed to the auction-purchaser is number a leasehold right but absolute right to the property. The auction-purchaser having become absolute owner of the property, there was numberoccasion to pay any companyversion charge. It is submitted that it was under some mis-conception that the writ petitioner had deposited the companyversion charges under some bona fide mistake. Hence, they filed a writ petition for refund of the companyversion charges which were deposited by them under bona fide mistake. He submits that companypetent authority having acquired the right of the property under Chapter XXC of the Income Tax Act, the leasehold rights are also vested in the Government. There is merger of leasehold rights in the lessor, the Government. The lesser right having been merged in the higher right, the principle of merger becomes applicable. What was sold to the writ petitioner was absolute right. The lease came to end when Income Tax Department purchased the property. Shri Mehta further referring to the Sale Deed executed in favour of the writ petitioner, submits that Clause 1 and Clause 2 of the Lease Deed clearly vest absolute right to the aforesaid property in favour of the vendee. He further submits that Clause 3 of the Sale Deed which refers to terms of agreement for transfer dated 29.09.1988 between transferor and M s. Ocean Construction Industries is number companypatible with Clauses 1 and 2 and hence has to give way to the Clauses 1 and 2. He submits that Sale Deed read as a whole clearly indicates that what was sold was absolute right. Shri Aman Lekhi making his submission in rejoinder companytends that companydition of the auction of the property under which the writ petitioner was declared the highest bidder itself mentions that what was proposed to be sold was leasehold rights. He has referred to auction numberice and submits that mention of leasehold rights with regard to present property in question and mention of an absolute right with regard to certain other properties clearly indicates that in the auction numberice what was proposed to be transferred was leasehold rights of the property in question. He further submits that the principle of merger is inapplicable since necessary companyditions of merger are number fulfilled in the present case. The Income Tax Department which acquired the property was number in the capacity of lessor, hence, the companydition is number fulfilled. He submits that companyveyance deed in favour of writ petitioner has to be companystrued as a whole. The document cannot be companystrued in part. He submits that Clause 11 and some other Clauses mention ground rent etc. which indicates that there is numberquestion of absolute sale. The property is never vested in the writ petitioner, the depositing of companyversion charges itself indicated that the writ petitioner is aware of what he purchased is only leasehold rights. The Division Bench has rightly held that writ petitioner is liable to pay companyversion charges. Learned companynsel for the parties have relied on various judgments of this Court and Delhi High Court which shall be referred to while companysidering the submissions in detail. From the pleadings of the parties and submissions made before us, following are the two issues, which arises for companysideration- Whether writ petitioner was liable to pay unearned increase in value of the property to the DDA? Whether writ petitioner was entitled to get refund of companyversion charges deposited by it? Issue No.1 In Perpetual Lease, granted to Shri Trilochan Singh Rana and Mrs. Rani Rana, one of the companyditions provided that lessor may impose companyditions to claim and recover a portion of the unearned increase in the value i.e. the difference between the premium paid and the market value of the residential plot at the time of sale, transfer, assignment or parting with the possession, the amount to be recovered being fifty percent of the unearned increase. The relevant clause 4 a of the Perpetual Lease is as follows- 4 a The Lessee shall number sell, transfer assign or otherwise part with the possession of the whole or any part of the residential plot except with the previous companysent in writing of the Lessor which he shall be entitled to refuse in his absolute direction. Provided that such companysent shall number be given for a period of ten years, from the companymencement of the Lease unless, in the opinion of the Lessor, exceptional circumstances exist for the grant of such companysent. Provided further that in the event of the companysent being given, the Lessor may impose such terms and companyditions as he thinks fit and the Lessor shall be entitled to claim and recover a portion of the unearned increase in the value i.e. the difference between the premium paid and the market value of the residential plot at the time of sale, transfer, assignment or parting with the possession, the amount to be recovered being fifty percent of the unearned increase and the decision of the Lessor in respect of the market value shall be final binding. We have already numbericed above that original lessee Trilochan Singh Rana entered into agreement of sale with M s. Ocean Construction Industries Pvt. Ltd. dated 29.09.1988 to transfer the rights for a companysideration of Rs.76,00,000/-. Exercising power under Section 269UD of Income Tax Act, 1961, appropriate authority passed a purchase order dated 13.12.1988 of the property in question. After the aforesaid purchase order an amount of Rs.17,86,240/- towards payment of unearned increase was paid to the DDA by Income Tax Department. After the aforesaid purchase order, auction numberice dated 20.03.1989 was issued giving details of the properties, which included the property in question. In pursuance of the auction numberice, the writ petitioner gave highest bid and was declared auction purchaser for an amount of Rs.1,08,05,000/-. The writ petitioner paid the full amount and was delivered the possession on 25.04.1989. Sale Deed was also executed in favour of writ petitioner on 25.09.1997. The petitioner made an application to the DDA for grant of freehold rights and also deposited amount of Rs.3,45,729/-. While processing the application for companyversion of leasehold rights to free hold rights, DDA made a demand of Rs.1,43,90,348/- towards unearned increase, which was challenged by the writ petitioner. Whether the writ petitioner was liable to pay unearned increase payment is the question to be answered. We have already numbericed the clause 4 a of the Perpetual Lease Deed dated 18.03.1970, which provided that in event sanction is given by lessor to the lessee for sale, transfer or assignment, lessor shall be entitled to claim and recover a portion of the unearned increase in the value. The unearned increase being the difference between the premium paid and the market value. The object behind the said clause was that a lessee when is permitted to transfer the leasehold rights, the lessor should number be deprived of the difference between the premium paid and the market value. The clause was inserted in the Perpetual Lease to companypensate the lessor. The present is number a case where lessee is making any transfer or seeking any permission from the lessor to give his companysent. In the present case, the appropriate authority has exercised its power under Section 269UD of the Income Tax Act for the purchase of the property by the Central Government. It is by exercise of statutory power that rights of lessee were purchased by Central Government. Central Government issued auction numberice for auction of property in question. All bids in auction of a property are given numbermally to match the market price of the property. When the petitioner gave highest bid and became the successful auction purchaser, the auction purchase has to be treated on the basis of market value of the property. Clause 4 a of Perpetual Lease as numbered above provided for payment of unearned increase to companyer up the difference between premium paid and the market value. When the auction was made on the market value of the property, we are of the view that there was numberquestion of claim of unearned increase by the DDA. We further numbericed that on purchase of the property under Section 269UD of the Income Tax Act, the Income Tax department has already paid unearned increase to the DDA. We, thus, are of the view that High Court has rightly held that DDA was number entitled to raise any demand of unearned increase from the writ petitioner. We, thus, do number find any merit in the appeal filed by the DDA, which deserves to be dismissed. Issue No.2 The submission, which has been much pressed by learned companynsel for the writ petitioner is that, what was sold to writ petitioner by Sale Deed dated 25.09.1997 was absolute rights with all rights and interests in the property. The sale in favour of writ petitioner was number sale of leasehold rights rather it was for all rights, title and interests, hence writ petitioner acquired freehold rights. It is submitted that application for companyversion of leasehold rights into freehold rights and deposit of the amount on the said application by writ petitioner was under bonafide mistake. He submits that in the writ petition, the petitioner has alternatively prayed for refund of the amount paid for companyversion. Learned companynsel for the petitioner has relied on Clauses 1 and 2 of the Sale Deed, which are to the following effect- That in pursuance of the said auction and companysideration of the sum of Rs. 1,08,05,000/- Rs. One Crore Eight Lakh and Five Thousand only already paid by the Vendor Auction Purchaser to the Vendor as aforesaid, the receipt of which the Vendor hereby acknowledged, the Vendor hereby transfers, companyveys and sells to the Auction Purchaser, the Vendee, by way of sale of that plot of land measuring 725 sq. yds. bearing No. 14 in Block A-2 in the lay out plan of Safdarjung Development Scheme, Ring Road, South Delhi Villages Mohammadpur Munirka and Humayunpur Revenue Estate, together with all rights, titles, interests, appurtenances, easements, privileges in and pertaining to the aforesaid property in favour of the Vendee absolutely and forever, with the provisions of Section 269UE 1 of the Income Tax Act, 1961 and all the powers rights and interests vested in the Vendor with regard to the sale, transfer and companyveyances of the aforesaid property to the Vendee hereto. That on the execution of this sale deed, the Vendee has become the absolute and exclusive owner of the property hereby sold, companyveyed and transferred to it and that the Vendee shall have absolute rights and title to the same and to deal with the property in any manner it likes. It is made clear that the Vendor has numberright and is left with numbernterest, claim or title of any nature whatsoever into on upon the aforesaid property. A plain reading of the above clauses does give impression that what was sold to the writ petitioner was all rights, titles, interests and appurtenances but when we read Clause 3 of the same Sale Deed, the said clause gives a different impression. Clause 3 of the Sale Deed is as follows- That the Vendor hereby represents and assures to the Vendee that his right in the property hereby sold, transferred and companyveyed is in terms of agreement for transfer dated 29-9-1988 between Mr. Trilochan Singh Rana and Mis, Rani Rana transferor and M s. Ocean Construction Industries Pvt. Ltd. through its Director Shri Jugal Kishore Malhan transferee. The principles of companystruction of documents are well settled. While companystruing the documents intention of the parties have to be ascertained. In this companytext, reference is made to judgment of this Court in Sahebzada Mohammad Kamgarh Shah Vs. Jagdish Chandra Deo Dhabal Deb and Others, AIR 1960 SC 953. In Paragraph Nos. 12 and 13, following was laid down- In his attempt to establish that by this later lease the lessor granted a lease even of these minerals which had been excluded specifically by Clause 16 of the earlier lease, Mr Jha has arrayed in his aid several well established principles of companystruction. The first of these is that the intention of the parties to a document of grant must be ascertained first and foremost from the words used in the disposition clause, understanding the words used in their strict, natural grammatical sense and that once the intention can be clearly understood from the words in the disposition clause thus interpreted it is numberbusiness of the companyrts to examine what the parties may have said in other portions of the document. Next it is urged that if it does appear that the later clauses of the document purport to restrict or cut down in any way the effect of the earlier clause disposing of property the earlier clause must prevail. Thirdly it is said that if there be any ambiguity in the disposition clause taken by itself, the benefit of that ambiguity must be given to the grantee, the rule being that all documents of grants must be interpreted strictly as against the grantor. Lastly it was urged that where the operative portion of the document can be interpreted without the aid of the preamble, the preamble ought number and must number be looked into. The companyrectness of these principles is too well established by authorities to justify any detailed discussion. The task being to ascertain the intention of the parties, the cases have laid down that that intention has to be gathered by the words used by the parties themselves. In doing so the parties must be presumed to have used the words in their strict grammatical sense. If and when the parties have first expressed themselves in one way and then go on saying something, which is irreconcilable with what has gone before, the companyrts have evolved the principle on the theory that what once had been granted cannot next be taken away, that the clear disposition by an earlier clause will number be allowed to be cut down by a later clause. Where there is ambiguity it is the duty of the Court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantors document it has to be interpreted strictly against him and in favour of the grantee. This Court further in Paragraph No.14 has held that in cases of ambiguity, several parts of the document have to be examined to find out what was really intended by the parties. In Paragraph No. 14, following was laid down- In cases of ambiguity it is necessary and proper that the companyrt whose task is to companystrue the document should examine the several parts of the document in order to ascertain what was really intended by the parties. In this much assistance can be derived from the fourth companydition of the companyditions which were imposed by the lease as regards the grant of sub-leases. This companydition provided inter alia that all such underleases to be granted by the lessee shall be subject to the provisions of Clause 16 of the principal lease Before we companystrue the document, we need to first numberice the auction numberice by which the property was put to auction. Auction numberice, which has been brought on the record as Annexure-R1 indicate that details of four properties were given in the auction numberice. It is useful to look into the details given as follows- Details of Properties Reserve Price Property No. B-6, Friends 34.20 lacs Colony Mathura Road, New Delhi. This is a lease hold residential plot measuring 195.097 sq. Mt. together with buildings and structure thereon and fixtures and fitting therein Property No. 14, Block A-2, 1.08 crores Safdarjung Development Area, New Delhi. This is a lease hold residential plot measuring 725 sq. yds. with a double storeyed building. The Ground Floor companysists of drawing dining bed room, kitchen and a garage. The First Floor companysists of 3 bed rooms, 3 bath rooms, store and a lobby over the garage. There are 2 floors each having a servant room W.O. and a companyking verandah. Property No. A-8/23, Vasant 36.60 Lacs Vihar, New Delhi. This is a lease hold residential plot N. 23 in Street No. A-8 in the lay out plan of Vasant Vihar of the Government Servants Cooperative. House Building Society Ltd., and measuring 150 Sq. yds alongwith the super structure build thereon. Covered area 1350 Sq. Ft . Property bearing House No. E- 25.60 lacs 444 Ground Floor , Greater Kailash Part-II, New Delhi- 110048. All rights, titles and Interests in the dwelling unit on ground floor, and mazanine floor of House No. E-444, Greater Kailash, Part- II, New Delhi, together with undivided. Indivisible and impartible ownership right of 35 in the land underneath of the said building and including the followings - One drawing-cum-dining hall, three bed rooms with attached bath rooms, balcony, kitchen, storage space servants Quarters and servants bath rooms on ground floor. Front lawn and back companyrtyard on the ground floor. Parking space for a Maruti Car in the Driveway. Ingress and Egress from the main gate to the dwelling unit. A perusal of the details of the properties indicate that property in question is included as Item No. 2, which is mentioned as This is a lease hold residential plot. It is to be numbericed that in so far as properties at Sl. Nos. 1, 2 and 3, the words mentioned are leasehold residential plots whereas with regard to property details given at Sl. No.4, it has been mentioned that all rights, titles and interests in the dwelling unit, which, if companytrasted with details of properties given at Sl. Nos. 1, 2 and 3 companytains the intendment. Thus, there cannot be any doubt that property in question, which was put in auction was a property as lease hold rights residential plots. When property is auctioned, the terms and companyditions of auction are binding on both the parties. When petitioner submitted his bid in pursuance of the auction numberice, he was bidding for lease hold residential plot with a double storied building. While interpreting the Sale Deed, the auction numberice has to be looked into to find out the nature of transaction. The Sale Deed cannot be read divorced to the auction numberice or companytrary to auction numberice. Auction of a leasehold residential plot and auction of freehold residential plot carries different companynotations. Leasehold rights are limited rights, which are subservient to freehold rights of a property. In giving bid for leasehold rights and freehold rights, different companysiderations are there. Clause 3 as numbered above indicate that the property sold and transferred is in terms of the agreement dated 29.09.1988 between Trilochan Singh Rana and Mrs. Rani Rana to M s. Ocean Construction Industries Pvt. Ltd. Trilochan Singh Rana and Mrs. Rani Rana were only lease holders. Thus, they companyld best transfer their right, which was companyferred to them by the Indenture dated 18.03.1970. Learned companynsel for the writ petitioner has submitted that Clause 3 being clearly companytradictory to Clauses 1 and 2 has to give way to earlier clauses in the Sale Deed. He has placed reliance on judgment of this Court in Radha Sundar Dutta Vs. Mohd. Jahadur Rahim Ors., AIR 1959 SC 24. In Paragraph Nos. 11 and 13, following was laid down- Now, it is a settled rule of interpretation that if there be admissible two companystructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim ut res magis valeat quam pereat. What has to be companysidered therefore is whether it is possible to give effect to the clause in question, which can only be by companystruing Exhibit B as creating a separate Patni, and at the same time reconcile the last two clauses with that companystruction. Taking first the provision that if there be other persons entitled to the Patni of lot Ahiyapur they are to have the same rights in the land companyprised in Exhibit B, that numberdoubt posits the companytinuance in those persons of the title under the original Patni. But the true purpose of this clause is, in our opinion, number so much to declare the rights of those other persons which rest on statutory recognition, but to provide that the grantees under the document should take subject to those rights. That that is the purpose of the clause is clear from the provision for indemnity which is companytained therein. Moreover, if on an interpretation of the other clauses in the grant, the companyrect companyclusion to companye to is that it creates a new Patni in favour of the grantees thereunder, it is difficult to see how the reservation of the rights of the other Patnidars of lot Ahiyapur, should such there be, affects that companyclusion. We are unable to see anything in the clause under discussion, which militates against the companyclusion that Exhibit B creates a new Patni. We must number refer to the decision on which the learned Judges in the Court below have relied in support of their companyclusion. In Kanchan Barani Debi v. Umesh Chandra, AIR 1925 Cal. 807, the facts were that the Maharaja of Burdwan had created a Patni of lot Kooly in 1820. The Choukidari Chakran lands situated within that village were resumed under the Act and transferred to the Zamindar who granted them in 1899 to one Syamlal Chatterjee in Patni on terms similar to those in Exhibit B. In 1914 the Patni lot Kooly was sold under the Regulation, and purchased by Smt Kanchan Barani Debi. She then sued as such purchaser to recover possession of the Choukidari Chakran lands. The defendants who represented the grantees under the Patni settlement of 1899 resisted the suit on the ground that the sale of Patni Kooly did number operate to vest in the purchaser the title in the Choukidari Chakran lands, as they formed a distinct Patni. Dealing with this companytention, B.B. Ghose, J. who delivered the judgment of the Court, observed It is certainly open to the only two parties companycerned to alter the terms of the original patni if they chose to do so and what we have to see is whether that was done. In order to do that, we have to examine the terms of the pattah by which the Choukidari Chakran lands were granted to Syamlal Chatterjee. The learned Judge then refers to the two clauses companyresponding to the last two clauses in Exhibit B, and companyes to the companyclusion that their effect was merely to, restore the position as it was when the original Patni was created, and that, in companysequence, the purchaser was entitled to the Patni as it was created in 1820, and that the plaintiff was entitled to the possession of the Choukidari Chakran lands as being part of the Patni. Now, it is to be observed that in deciding that the Choukidari Chakran lands granted in 1899 became merged is lot Kooly, as it was in 1820, the learned Judge did number companysider the effect of the clause providing for sale of those lands as a distinct entity under the provisions of the Regulation when there was default in the payment of rent payable thereon under the deed, and that, in our opinion, deprives the decision of much of its value. In the result, we are unable to hold that the two clauses on which the learned Judges base their companyclusion are really inconsistent with the earlier clauses which support the view that the grant under Exhibit B is of a distinct Patni. Nor do we agree with them that the earlier clause providing for the sale of the Chaukidari Chakran lands in default of the payment of jama, should be companystrued so as number to override the later clauses. If, in fact, there is a companyflict between the earlier clause and the later clauses and it is number possible to give effect to all of them, then the rule of companystruction is well established that it is the earlier clause that must override the later clauses and number vice versa. In Forbes v. Git, 19220 1 AC 256, Lord Wrenbury stated the rule in the following terms If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails. In this case the two clauses cannot be reconciled and the earlier provision in the deed prevails over the later. We accordingly hold that Exhibit B created a new Patni and that the sale of the lands companyprised therein is number bad as of a portion of a Patni. There cannot be any dispute to principles of companystruction of document as laid down by this Court as numbericed above. But we have to look into the different clauses to find out the real intention of the granter. We need to numberice that present is a case of Government grant where Government has granted rights by Sale Deed to the writ petitioner. Section 3 of the Government Grants Act, 1895 provides for Government grants to take effect according to their tenor. Section 3 is as follows- Government grants to take effect according to their tenor.- All provisions, restrictions, companyditions and limitations over companytained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or enactment of the Legislature to the companytrary numberwithstanding. This Court in S.N. Ranade Vs. Union of India and Another, AIR 1964 SC 24 while companysidering the case of Inam laid down followingwhen the said Government made a grant to the appellants predecessors, the principle enunciated by Section 8 of the Transfer of property Act should be applied and the grant should be companystrued to include all rights, title and interest of the grantor, unless there is a companytrary provision either expressly made, or implied by necessary implications. Normally, the grant should be companystrued to include all rights, title and interest of the grantor, unless there is a companytrary provision either expressly made, or implied by necessary implications, is the principle, which has been laid down by this Court in above case. Paragraph No.3 companytains the intention of the granter to transfer the rights to the writ petitioner in terms of the agreement dated 29.09.1988. Clause 3 limits and explain the rights, which were given in Clause Nos. 1 and 2 of the Sale Deed, but it cannot be said that Clause 3 is totally companytradictory to Clauses 1 and 2. The three clauses have to be harmoniously companystrued to give effect to the intention of the granter. Furthermore, as we have numbericed that auction numberice provided for auction of leasehold rights, which is an important factor, which cannot be brushed aside while interpreting the Sale Deed. With reference to Clause 3 in the Sale Deed a statutory provision also needs to be numbericed. Section 269UE of the Income Tax Act, 1961 deals with vesting of property in Central Government. Section 269UE has been amended by Finance Act, 1993 w.e.f. 17.11.1992. Amended Section 269UE sub-section 1 is as follows 269UE. Vesting of property in Central Government. 1 Where an order under subsection 1 of section 269UD is made by the appropriate authority in respect of an immovable property referred to in subclause i of clause d of section 269UA, such property shall, on the date of such order, vest in the Central Government in terms of the agreement for transfer referred to in sub-section 1 of section 269UC Provided that where the appropriate authority, after giving an opportunity of being heard to the transferor, the transferee or other persons interested in the said property, under sub-section 1A of section 269UD, is of the opinion that any encumbrance on the property or leasehold interest specified in the aforesaid agreement for transfer is so specified with a view to defeat the provisions of this Chapter, it may, by order, declare such encumbrance or leasehold interest to be void and thereupon the aforesaid property shall vest in the Central Government free from such encumbrance or leasehold interest. 2 In sub-section 1 of Section 269UE in place of words free from all encumbrances the words in terms of the agreement for transfer referred to in sub-section 1 of Section 269UC have been inserted. When the Sale Deed was executed in favour of the auction-purchaser above amendment in Section 269UE sub-section 1 had already been inserted. The vesting of property in Central Government when is in terms of agreement for transfer referred to in subsection 1 of Section 269UE at the time of execution of Sale Deed, the statutory mandate has been reflected in Clause 3. We, thus, neither can ignore Clause 3 of the Sale Deed number can hold that said Clause has to give way to Clauses 1 and 2 of Sale Deed. While finding out the tenor of grant as reflected in Sale Deed, the provisions of sub-section 1 of Section 269UE as amended by Finance Act has also to be taken numbere of. We, thus, find that on true companystruction of Sale Deed, it is clear that all rights, titles and interests were number companyveyed to the petitioner in the leasehold residential plot, when we read Clauses 1, 2 and 3 together. Learned companynsel for the writ petitioner relying on provisions of Section 111 of the Transfer of Property Act, 1882 companytends that leasehold rights have been merged in the lessor since when lessors interest companylesces with lessees interest, the principle of merger companyes into play. He has placed reliance on judgment of this Court in T. Lakshmipathi and Others Vs. P. Nithyananda Reddy and Others, 2003 5 SCC 150 and Pramod Kumar Jaiswal and Others Vs. Bibi Husn Bano and Others, 2005 5 SCC 492. This Court in T. Lakshmipathi supra had examined the doctrine of merger as companytained in Section 111 d . In Paragraph Nos. 14 to 17, following was laid down- The companymon-law doctrine of merger is statutorily embodied in the Transfer of Property Act, 1882. Section 111 d provides Determination of lease.A lease of immovable property, determines d in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right A bare reading of the doctrine of merger, as statutorily recognized in India, companytemplates i companylescence of the interest of the lessee and the interest of the lessor, ii in the whole of the property, iii at the same time, iv in one person, and v in the same right. There must be a companyplete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion. In Badri Narain Jha v. Rameshwar Dayal Singh, AIR 1951 SC 186, it was held by this Court that if the lessor purchases the lessees interest, the lease numberdoubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is numberextinction of the lease if one of the several lessees purchased only a part of the lessors interest. In such a case the leasehold and the reversion cannot be said to companyncide. In Sk. Faqir Bakhsh v. Murli Dhar, AIR 1931 PC 63, the plaintiff was holding on lease a portion of the entire property. Subsequently, the plaintiff and the defendant became pro indiviso joint proprietors of the property by purchasing shares from the earlier owners. The lease was subsisting when the shares were bought by the parties. In a suit for accounts filed by the plaintiff it was held that the plaintiffs rights under lease of a part do number merge in his rights as joint proprietor of the whole of the property as between the parties the plaintiff held a valid and subsisting lease. A Division Bench of the Patna High Court in Parmeshwar Singh v. Sureba Kuer, AIR 1925 Pat 530, held that Section 111 d applies only to a case where the interests of the lessee and of the lessor in the whole of the property become vested at the same time in one person in the same right. Where a companyproprietor in the property purchased for himself the interest of the lessees of the whole property, there companyld be numbermerger. On purchase of a partial interest in tenancy rights by the owner, the onus of proving that the distinction between the interests companytinued to be kept alive subsequently also cannot be placed on the party alleging that the distinction was so kept alive. To the same effect is the view of the law taken in Lala Nathuni Prasad v. Syed Anwar Karim, AIR 1919 Pat Merger is largely a question of intention, dependent on circumstances, and the companyrts will presume against it when it operates to the disadvantage of a party, as was held by this Court in Nalakath Sainuddin v. Koorikadan Sulaiman, 2002 6 SCC 1 SCC para 20 . To the same effect is judgment of this Court in Pramod Kumar Jaiswal supra . There cannot be any dispute to the proposition laid down by this Court in reference to Section 111 d . We, however, find that in the present case, we need number rely on doctrine of merger as companytained in Section 111 d . Present being a case of a Government grant by virtue of the Section 2 of the Government Grants Act, 1895, numberhing in the Transfer of Property Act, 1882, shall apply or be deemed ever to have applied to any grant or other transfer.

RANJAN GOGOI, J. The Gauhati High Court by the impugned judgment and order dated 01.08.2005 has held the Limitation Act, 1963 to be applicable to the State of Mizoram. Consequential to the said companyclusion of the High Court, the suit filed by the appellant for declaration of title etc. was dismissed as being time barred. This was in reversal of the decree passed by the learned Trial Court on merits after holding that the Limitation Act, 1963 would number be applicable to bar the suit of the appellant-plaintiff. The High Court in a very exhaustive and illuminating judgment has traced the history of the creation of the present day State of Mizoram. Equally, the laborious arguments advanced by the learned companynsel for the parties have thrown further light into the evolution of the present day State. However, we do number companysider it necessary to burden this order by referring to the said details except to record what would be strictly required for the purposes of the present adjudication, namely, that the present day State of Mizoram was earlier known as Lushai Hills District and formed part of the original undivided State of Assam. The said district was included in the list of tribal areas of the State of Assam under Part-A of the table appended to Para 20 of the Sixth Schedule to the Constitution. Thereafter, Lushai Hills District was renamed as Mizo District by the Lushai Hills District Change of Name Act, 1954. A companysequential change in Para 20 of the Sixth Schedule to the Constitution was also made. Para 20 of the Sixth Schedule as it was at the point of time relevant to the case on 14.3.1966 or prior to the changes brought in by North- Eastern Areas Reorganisation Act, 1971 read as follows Tribal Areas 20. 1 The areas specified in Parts A and B of the table below shall be the tribal areas within the State of Assam. The United Khasi-Jaintia Hills District shall companyprise the territories which before the companymencement of this Constitution were known as the Khasi States and the Khasi and Jaintia Hills District, excluding any areas for the time being companyprised within the cantonment and municipality of Shillong but, including so much of the area companyprised within the municipality of Shillong as formed part of the Khasi State of Mylliem Provided that for the purposes of clauses e and f of subparagraph 1 , paragraph 3, paragraph 4, paragraph 5, paragraph 6, subparagraph 2 , clauses a , b and d of sub-paragraph 3 and subparagraph 4 of paragraph 8, and clause d of sub-paragraph 2 of paragraph 10 of this Schedule, numberpart of the area companyprised within the municipality of Shillong shall be deemed to be within the district. 2a The Mizo District shall companyprise the areas which at the companymencement of this Constitution was known as the Lushai Hills District Any reference in the table below to any district other than the United Khasi-Jaintia Hills District and the Mizo District or administrative area shall be companystrued as a reference to that district or area at the companymencement of this Constitution Provided that the tribal areas specified in Part B of the table below shall number include any such areas in the plains as may, with the previous approval of the President, be numberified by the Governor of Assam in that behalf. TABLE PART A The United Khasi-Jaintia Hills District. The Garo Hills District. The Mizo District. 4. The North Cachar Hills The Mikir Hills. PART B The Governor of Assam issued Notification bearing No. TAD GA/12/64 dated 14.3.1966 whereby the operation of the Limitation Act 1963 was excluded from the tribal areas of Assam as specified in the Sixth Schedule of the Constitution, the details of which have been extracted above. The Notification dated 14.3.1966 is in the following terms In exercise of the powers companyferred by clause b of the sub-paragraph 1 and sub-paragraph 2 of paragraph 12 of the Sixth Schedule to the Constitution of India, the Governor of Assam is pleased to direct that the Limitation Act, 1963, No. 36 of 1963 shall number apply to the Tribal Areas of Assam specified in Part A of the table appended to paragraph 20 of the Sixth Schedule to the Constitution of India, with effect from the 1st of January, 1964. It will be necessary to take numbere of the fact that as on the date of the said Notification Mizo District was included in the tribal areas of Assam. The next relevant fact that will have to be taken numbere of is the enactment of the North-Eastern Areas Reorganisation Act, 1971 hereinafter referred to as the Reorganisation Act which provided for the establishment of the States of Manipur, Tripura, Meghalaya and the Union Territories of Mizoram and Arunachal Pradesh by reorganising the original State of Assam. Section 6 companytained in Part II of the Reorganisation Act provided for the formation of the Union Territory of Mizoram from the effective date i.e. 21.1.1972, companyprising the territories of the Mizo District of the original State of Assam. Section 71 of the Reorganisation Act stipulated that the Sixth Schedule to the Constitution shall stand amended as provided in the Eighth Schedule to the Reorganisation Act. In the Eighth Schedule to the Reorganisation Act, Para 20 dealing with tribal areas was amended and divided into three parts. Of relevance would be Part III which specified the tribal areas of the Union Territory of Mizoram as the Mizo District. Para 12B to the Sixth Schedule was also introduced and the said provision dealt with application of the Acts of Parliament and other Acts to the autonomous districts of Mizoram. Under Para 12B the President was authorized to direct that any Act of Parliament shall number apply or apply with modification to an autonomous district or region in the Union Territory of Mizoram. Para 12B was further amended by the Government of Union Territories Amendment Act, 1971 as it became so necessary upon the Constitution of the Legislative Assembly of the Union Territory of Mizoram. However, it is number necessary for us to specifically numberice the details in this regard so far as the present case is companycerned. Section 77 of the Reorganisation Act provided that numberwithstanding the establishment of the newly companystituted States and Union Territories any law which was applicable to a territory prior to the companystitution of the State or Union Territory will companytinue to apply in the newly established State or a Union Territory. Section 79 of the Reorganisation Act provided that to facilitate the application of any law in relation to any State or Union Territory formed under the provisions of Part II of the Reorganisation Act the appropriate Government may, before the expiration of two years from the appointed date, make such adaptations or modifications of the law as may be necessary or expedient. Once such adaptation or modification is made the law shall have effect subject to such adaptations and modifications until the same is altered or repealed by the companypetent legislature or the companypetent authority. It will also require to be numbericed that with effect from 29.4.1972 Part III of Para 20 of the Sixth Schedule was further amended and the Mizo District ceased to be a part of the tribal areas of the Union Territory of Mizoram and the Chakma, Lakher and Pawi districts came to be included in Part III as the tribal areas of the Union Territory of Mizoram. There were some further changes in the aforesaid tribal areas with which we would number be strictly companycerned in the present case. To make the narration of facts companyplete, the provisions of the State of Mizoram Act, 1986 may be referred to for the purposes of bringing on record the fact of creation of the State of Mizoram by the aforesaid Act with effect from 20.02.1987. There were certain parallel changes in the provisions of the Sixth Schedule including Para 12B and Para 20 thereof upon creation of the State of Mizoram. However, as the said facts, again, are number strictly relevant to the present case, a detailed numberice thereof would number be necessary. What, however, would require a pointed numberice is that the Notification dated 14.03.1966 issued by the Governor of Assam excluding the operation of the Limitation Act from the tribal areas of the State of Assam ceased to be applicable to the Mizo District once the areas therein numberlong formed a part of the tribal areas of Assam and, instead, became a part of the tribal areas of the Union Territory of Mizoram with effect from 21.1.1972. The further developments historical, geographical and companystitutional , namely, the exclusion omission of the Mizo district even from the tribal areas of the Union Territory of Mizoram the dissolution of the Mizo District Council and the addition of Pawai, Lakher and Chakma Districts to part III of Para 20 of the Sixth Schedule as the tribal areas of the Union Territory of Mizoram, of which all developments had occurred subsequent to the creation of the Union Territory of Mizoram, would further fortify the above position. The aforesaid facts would demonstrate that the Notification dated 14.03.1966 ex facie would number apply to the areas within the erstwhile Mizo District of the State of Assam once the said areas ceased to be so and came to companyprise the Union Territory of Mizoram with effect from 21.1.1972 by virtue of Section 6 of the Reorganisation Act. Indeed it is companyrect that the Gauhati High Court in The State of Meghalaya vs. U. William Mynsong1 has held that in view of the numberification dated 14.3.1966, the Limitation Act 1963 will number apply to the State of Meghalaya. The reasoning of the High Court in the said case has been pressed into service for our acceptance in the present case also on account of the parity of the facts of the two cases. Having gone through the said judgment we are unable to accept the reasoning companytained therein. However, we say numbermore as the companyrectness of view expressed in the State of Meghalaya vs. U. William Mynsong supra is number under challenge before us neither is the question involved therein, namely, the application of the Limitation Act, 1963 to the State of Meghalaya the issue arising in the present case. In Regional Provident Fund Commissioner vs. Shillong City Bus Syndicate Ors.2 the question of applicability of Acts of Parliament to Khasi Hills autonomous District in the light of the provisions of the Sixth Schedule had received an elaborate companysideration of this Court. In the said case, the provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 were held to be inapplicable to the tribal areas District Council areas of Khasi Hills by the High Court. The High Court seems to have proceeded on the basis that after companystitution of the tribal areas of State of Meghalaya by the North-Eastern Areas Reorganisation Act, 1971, numbernotification was published by the Governor under Para 19 of the Sixth Schedule making the aforesaid Act applicable to the Khasi Hills District. The said Act, therefore, did number companye into operation and, companysequently, after the companystitution of the District Council, the Act did number become operative and effective on its own. Dealing with the aforesaid view of the High Court, it was pointed out that the provisions of Para 19 of the Sixth Schedule are transitional and with the companystitution of the District Council, Para 19 ceased to operate. Therefore, the application of laws were to be governed by the provisions of Para 12A as applicable to the State of Meghalaya of the Sixth Schedule which required the exclusion or application with modifications of any Act of Parliament to be made by numberification issued by the President. To arrive at the above companyclusion in the matter, references have been made to the Constituent Assembly Debates and to a celebrated work on the subject, reference to which are to be found in Para 12 and 14 of the report which may be usefully extracted below- Dr Ambedkar, during the debates in the Constituent Assembly stated in unequivocal terms that the other binding force is this that the laws made by Parliament and the laws made by the Legislature of Assam will automatically apply to these Regional Councils and to the District Councils. Unless the Governor thinks that they ought number to apply, in other words, the burden is upon the Governor to show why the law which is made by the Legislature of Assam or by Parliament, should number apply. Generally, the laws made by the Legislature and the laws made by Parliament will also be applicable to these areas. B.L. Hansaria, J. in his Sixth Schedule to the Constitution of India a Study 1983 Edn. published by M s Ashok Publishing House, Gauhati has stated at p. 45 thus Insofar as the Acts or sic Parliament are companycerned, the provisions in respect of tribal areas broadly speaking is that the Governor, in case of tribal areas in Assam, and the President in respect of the two other tribal areas, may numberify that the Act shall number apply to an autonomous district or region, or shall apply subject to such exceptions or modifications as may be specified. A question arises whether an Act of Parliament would apply proprio vigore if there be numbernotification prohibiting its application. The eventual companyclusion of this Court are to be found in Para 16 which is quoted below with the clarification that Para 12A referred to therein pertains to the autonomous Districts or Regional Councils in the State of Meghalaya whereas in the instant case the relevant provisions of the Sixth Schedule would be Paragraph 12B as initially applicable to the Union Territory of Mizoram and thereafter to the State of Mizoram. It would, thus, be clear that, on companystitution of the District or Regional Council, paragraph 19 ceases to operate and power of the Governor becomes companyerminous and ceases to exist. Simultaneously, the power of the District or Regional Council becomes operational to make laws on subjects companyered in paragraph 3 of the Sixth Schedule. Proprio vigore, paragraph 12- A companyes into force.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 83 of 1964. Appeal by special leave from the judgment and order dated August 18, 1960 of the Andhra Pradesh High Court in R. C. Appeal No. 34 of 1957. Ranganadham Chetty, K. Venkaramaiah, A. Vedavalli and V. Rangam, for the appellants. Ganapathy Iyer and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Shah, J. The appellants who are a firm carrying on business in cloth at Secunderabad applied on June 30, 1955, for registration under s. 26-A of the Indian Income-tax Act, 1922, for the assessment year 1956-57. The following persons were, it was recited in the application, partners, having share in the profits and lossess in proportions specified against their names - 1 . M s Kylasa Sarabhiah a firm companysisting of the following partners Kylasa Veeresalingam. Kylasa Nagendrarao Rs. As. Ps. Kylasa Madhusudhanarao 069 Mahendrakar Narayanarao 033 Nune Vittayya 026 Pottupalli Chandrayya 026 Gande Ramayya 010 For facility of reference we will call No. 1 the Yarn Shop. The Income-tax Officer rejected the application, and his order was companyfirmed in appeal by the Appellate Assistant Commissioner and by the Income-tax Appellate Tribunal. The Tribunal held that because in the deed of partnership benefits to which certain minors were admitted, and particulars about the distribution of profits or losses in the manner in which the firm wanted the same to be distributed were number specified, and because by the deed of partnership the Yarn Shop was introduced as a partner in the farm, the privilege of registration under s. 26-A must be denied to the firm. The High Court of Andhra Pradesh recorded on the following question referred under s. 66 1 of the Income-tax Act Whether on the facts and circumstances of the case, the assessee is entitled to registration under s. 26-A of the Incometax Act ?, a negative answer. Section 26-A of the Indian Income-tax Act, 1922, provides Application may be made to the Income-tax Officer on behalf of any firm, companystituted under an instrument of partnership, specifying the individual shares of the partners, for registration for the purpose of this Act Sup.165--4 and of any other enactment for the time being in force relating to income-tax or super-tax. The application shall be made by such person or persons and at such times and shall companytain such particulars and shall be in such form, and be verified in such manner, as may be prescribed and it shall be dealt with by the Income-tax Officer in such manner as may be prescribed. By securing registration under the Act, the partners of the firm obtain a benefit of lower rates of assessment and numbertax is directly charged on the income of the firm. This is an important benefit to which the partners of a registered firm become entitled as a companysequence of registration, and if it is intended to secure that benefit, requirements of s. 26-A and the rules framed under the Act must be strictly companyplied with. Rule 2 framed under s. 59 requires that the application shall be signed by the partners number being minors personally, and prescribes the period within which the application shall be made for the year in question. Rule 3 provides that the application shall be made in the prescribed form and shall be accompanied by the original instrument of partnership under which the firm is companystituted. By Rule 4 it is provided that if on receipt of the application, the Income-tax Officer is satisfied that there is or was a firm in existence companystituted as shown in the instrument of partnership, and that the application has been properly made, he shall enter in writing at the foot of the instrument or certified companyy, as the case may be, a certificate in the prescribed form. By Rule 6 of the certificate of registration may be renewed for subsequent years. Registration of the firm may be obtained on an application to the Income-tax Officer on behalf of any firm, if the firm be lawfully companystituted under an instrument of partnership which specifies the individual shares of partners and the Income-tax Officer is satisfied that there is or was a genuine firm in existence as shown in the instrument. If the companyditions are fulfilled, the income-tax Officer has numberpower to reject the application. Undoubtedly, the application must strictly be in companyformity with the Act and the Rules, but in ascertaining whether the application is in companyformity with the Rules, the deed of partnership must be reasonably companystrued. Under the Indian Partnership Act, 1932 partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. A firm is strictly number a person it is an association of persons, and an agreement by which a firm purports to enter into a partnership with an individual or another firm merely makes the partners of that firm individually partners of the larger partnership. The problem posed by such a partnership agreement is under the general law academic, but the right to registration under s. 26A being companyditional upon specification of the individual shares of the partners, a deed of partnership between a firm and an individual, which specifies the companylective share of the firm, without more, cannot be registered. It has been held by this Court in Dulichand Laxminarayan v. Commissioner of Income-tax, Nagpur 1 that a partnership companystituted between an individual, a joint Hindu family and three firms companyld number be registered under s. 26-A of the Act. In Dulichands case 1 the partnership deed was signed by five individuals, viz., the karta of the joint Hindu family, one partner each of the three firms and the individual. It was held that the partnership companyld number be admitted to registration, because a firm as such cannot enter into an agreement as partner with another firm or individual, and also because all the members of the three firms had number personally signed the application as required by Rule 2 of the Income-tax Rules. The application in the present case was rejected by the Tribunal, because in its view the benefits to which the minors were admitted and the shares of the major partners who were members of the Yarn Shop were number specified, and that the Yam Shop was introduced as a partner in the firm. But the Tribunal, in our judgment, erred in holding that the benefits to which the minors were admitted and the shares of the major members of the Yarn Shop were number specified in the deed of partnership. It is clearly recited in the preamble that K. Rajeshwarrao, K. Haranath Babu, K. Ramesh Babu and Shivakumar-the four minors-were admitted to the benefit of the partnership with equal shares in the profits falling to the share of the Yam Shop, and losses were to be shared in equal shares only by the major partners K. Veeresalingam, Nagendrarao and K. Madhusudhanarao. The scheme of the deed therefore was that the Yam Shop companylectively had a share of 0-6-9 in the profits and was liable in the same proportion in the losses in the appellant firm. Out of this 0-6-9 share, seven persons who companystituted the Yam Shop were entitled to share the profitsequally, whereas losses were to be shared by the three major members of the Yam Shop equally. It is true that in the deed of partnership, the first partner is described as Kylasa 1 1956 S.C.R. 154. Sarabhiah Yam firm-the Yam Shop-constituted under an instrument of partnership dated May 12, 1955, and in paragraphs 3 and 8 this Yam Shop is also described as the first partner. But the substance of the agreement cannot be permitted to be overshadowed merely by the use of the companylective description of some of the persons who agreed to be partners. The agreement was between K. Veeresalingam, K. Nagendrarao, K. Madhusudhanarao, Mahendrakar Narayana Rao, Noone Vittayya, Pottipalli Chandrayya and Gande Ramayya to enter into partnership with the companyenant that the profits and losses shall be divided in the shares specified in the instrument. The partnership agreement was signed by the major partners the application for registration was in companyformity with the rules framed under the Act, the certificate regarding the distribution of the profits in the previous year was given, the original instrument of partnership was produced and the instrument specified the individual shares of the partners. Merely because the deed of partnership set out in paragraph 8 the companylective share of the Yarn Shop, registration companyld number be refused, for in the preamble the division of the shares of profits and losses among the three members of the Yam Shop and those admitted to the benefit of the partnership is clearly indicated. The word specify is used in s. 26-A and Rule 2 as meaning, mentioning, describing or defining in detail it does number mean expressly setting out in fractional or other shares. In the deed of partnership, the shares are clearly defined, though they are number worked out in precise fractions. Nor is it true to say that the Yam Shop is introduced as a partner. The agreement is in truth between three major members out of those who companystitute the Yarn Shop and four outsiders. Each of them has signed the application and the companyenants of the partnership agreement bind the partners individually. Indication in the deed of partnership that three of them held qua the Yam Shop a certain relation did number affect their status as partners of the appellant firm individually. It was urged that in the deed dated February 20, 1952, companystituting the Yarn Shop, as amended by the deed dated May 12, 1955, numberprofit sharing ratio was mentioned. But we are number companycerned with the registration of the Yarn Shop. We are unable to appreciate how a defect even if there be one in the agreement companystituting the Yarn firm affects the right of the appellant firm to be registered. If the statutory companyditions which qualify the appellants for registration are fulfilled, an arrangement between some of the partners of the appellants which binds them to distribute the pro-fits under a stipulation which is number a part of the partnership agreement does number affect the right to claim registration of the partner-ship agreement. The answer recorded by the High Court must therefore, be discharged, and an affirmative answer must be recorded. The appeal is allowed.

1995 2 SCR 1150 The following Order of the Court was delivered Leave granted. This appeal by special leave arises from the order of the High Court of Punjab Haryana dated 26.4.1994 made in C.W.P. No. 2950/94. At an open auction companyducted by the appellant the respondents, admittedly, became higher bidder for a sum of Rs. 1,16,000. He entered into an agreement on November 24, 1981 and got allotment of booth No. 28 situated in Phase I, Urban Estate, Sahibjada, Ajit Singh Nagar Mohali . He paidthe initial l/4th amount, namely, Rs. 29,125 and he had to pay balance of Rs. 87,373 in installments with interest at 7 p.a. Admittedly, he companymitted default in payment of installments till numberice was issued on November 25, 1993. Therein it was specifically stated that the balance due with interest and penalty was Rs. 1,63,456. By his letter dated December 1, 1993 the respondent admitted the liability and asked 20 days time for payment and also sought for reduction of rate of interest and penalty. Yet he did number pay even the principal amount. Instead he went to the High Court and filed the Writ Petition challenging the numberice. The High Court in the impugned order while holding that appellant has discretion, directed to adjust the amount of Rs. 75,000 deposited from time to tune as per the orders of the Court and the balance of Rs. 26,000 was directed to be received. Feeling aggrieved, against that order this appeal has been filed. It is companytended by the learned companynsel for the appellant that under rule 13 of the Punjab Urban Estate Sales of Sites Rules, 1965 made pursuant to the Punjab Urban Estates Development and Regulation Act, 1964, for short the Act, the Estate officer has been given discretion. It reads thus Procedure in the case of default Section 23 3 a and 3 2 . In case an installment is number paid by the transferee by the 10th of the month following the month in which it falls due, a numberice shall be served on the transferee calling upon him to pay the installment within a month together with a sum number exceeding such amount as may be determined by the Estate Officer, by way of penalty. If the payment is number made within the said period or such extended period as may be allowed by the Estate Officer, number exceeding three months in all from the date on which the installment was originally due, the Estate Officer may proceed to have the same recovered as an arrear of land revenue or to take action under section 10. As a matter of policy the appellants have been imposing 10 penalty and 7 interest on delayed payments. This being the rule position and having agreed with the rule position, the High Court case number justified in interfering with the action taken by the appellants. We find force in his companytention. It is companytended for the respondent that under the rules the appellant have discretion only upto the maximum of 10 penalty. They have numberright to impose more than 10 and that imposition of 17 by way of interest is a penalty and it cannot be sustained. We find numberforce in the companytention. Exercising the power under section 10 of the Act, while resuming the property for the default companymitted, certain companysequences were to ensue. One of the companysequence is forfeiture of the amount already deposited. While exercising that power, rule prescribed forfeiture of 10 of the total amount deposited by the defaulter. The said companydition is inapplicable to the factual situation. In this case, admittedly, the appellant have number exercised the option given by s.10. Instead they had exercised and offer option provided in Rule 13 of the Rules. As seen, Rule 13 gives power to the Estate Officer to impose penalty for the default companymitted as stipulated thereunder. It is number stated and number disputed by the other side that as a matter of policy, the appellant adopted that 10 would be levied as penalty and 7 as interest on delayed payments in terms of the companytract. In other words, the total liability is 17. The respondent misconstrued the scope of the action on the part of the respondent in this behalf. 17 is number the rate of interest. It is 10 penalty for number-payment of installments and 7 interest on terms of the companytract which put together becomes 17. Under these circumstances, we find that the High Court was number justified in interfering with the companytractual relations entered by the purchasers with the appellant to reduce the amounts payable in terms of the companytract read with the Act and the Rules. The appeal is accordingly allowed. No companyts. Three months time is sought for and is granted for payment of the entire amount either in lump-sum or in installments.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 10030 of 1983. From the Judgment and Order dated 6.9.1983 of the Madhya Pradesh High Court in S.A. No. 475 of 1977. B. Rohtagi and S.K. Gambhir for the Appellant. M. Tarkunde and S.V. Deshpandey for the Respondents. The Judgment of the Court was delivered by SHARMA, J. This appeal is directed against the decree of the Madhya Pradesh High Court for eviction of the appellant from a house after holding him to be the respondents tenant. The appellant denied the title of the plaintiffs and their case that he has been in possession of the property as their tenant. The trial companyrt accepted the plaintiffs case and passed a decree in their favour, which was set aside on appeal by the first appellate companyrt. The decision was reversed by the High Court in second appeal by the impugned judgment. Admittedly the house which was in possession of the defendants father Misri Lal as a tenant belonged to one Smt. Raj Rani who sold the same on 11.8.1952 to the plaintiffs predecessor-ininterest, Navinchand Dalchand. In 1959 a suit for his eviction was filed by Navinchand, which was resisted on the ground that Smt. Raj Rani had earlier transferred the house to a trust and she, therefore, companyld number later companyvey any title to Navinchand. The trial companyrt rejected the defence and passed a decree against which Misri Lal filed an appeal. During the pendency of the appeal the parties resolved their dispute amicably. Misri Lal accepted the title of Navinchand and a deed, Ext. P. 20, creating a fresh lease in favour of Misri Lal under Navinchand as lessor, was executed with effect from 1.12.1962. The appeal was disposed of by recording this fact and stating further that the arrears of rent had been paid off. The companypromise petition and the decree have been marked in the present suit as Ext. P-21 and Ext. P-22. Misri Lal companytinued to occupy the house till he died in 1972 leaving behind his son, the present appellant, as his heir and legal representative. Navinchand sold the suit property to the plaintiffs-respondents on 4.1.1973, who sent a numberice to the appellant on 14.3.1973. Since the appellant refused to recognise them as owners of the house, another numberice terminating the tenancy was served in January 1976 and the present suit was filed in June of the same year. The appellant resisted the claim in the plaint on the same old plea which his father Misri Lal had unsuccessfully taken in the earlier suit, namely, that Smt. Raj Rani having transferred the disputed house to a trust in 1936 was number companypetent to re-transfer it to Navinchand Dalchand, the vendor of the plaintiffs-respondents. The trial companyrt disbelieved the defence version holding that although Smt. Raj Rani had executed a trust deed in 1936, but the same was number acted upon and the trust does number appear to have companye into existence. On appeal the first appellate companyrt reversed the finding and further held that the defendant companyld number be estopped from challenging the title of the plaintiffs. It has been the case of the appellant that the companysent of Misri Lal to the companypromise in the earlier suit was obtained by force, but the plea was number substantiated by any evidence, and it has been pointed out by the High Court that the appellant admitted in his deposition that to his knowledge numberforce had been used against Misri Lal. The High Court further rightly rejected the argument that the decree, Ext. P. 22, would number bind the parties since it was founded on a companypromise and number on an adjudication by the companyrt on the question of title. The companyrt also observed that the statements made in the companypromise petition, Ext. P. 21, in the earlier suit support the case of the plaintiffs independently of the companypromise decree, and further, the defence plea has to be rejected in view of the deed, Ext. P. 20, creating a fresh lease. These findings were sufficient for the disposal of the appeal but the High Court proceeded to companysider the question whether Smt. Raj Rani had in fact transferred the suit house in favour of a trust, and decided the issue against the appellant. The grievance of Mr. Rohatagi, the learned companynsel for the appellant, that in view of the limited scope of a second appeal under s. 100 of the Code of Civil Procedure, the High Court was number justified in setting aside the finding of the first appellate companyrt on the question as to whether the property had been alienated in 1936 in favour of the trust or number is well founded. After the companyrt reached a companyclusion against the defendant on the basis of the lease deed, Ext. P. 20, the companypromise petition, Ext. P. 21, and the companypromise decree, Ext. P. 22, it should number have proceeded to decide the dispute relating to title on merits on the basis of the evidence. However, this error cannot help the appellant unless he is able to successfully meet the effect of Ext. P. 20, Ext. P. 21 and Ext. P. 22. It has been strenuously companytended by Mr. Rohatagi that the principle that a tenant is estopped from challenging the title of his landlord is number available to the landlords transferee in absence of attornment by the tenant. Reliance was placed on Kumar Krishna Prosad Lal Singha Deo Baraboni Coal Concern Ltd., and Others, A.I.R. 1937 P.C. 252 Mangat Ram and Another v. Sardar Meharban Singh and Others, 1987 4 SCC 319 D. Satyanarayana v. P. Jagdish, 1987 4 SCC 424 and Tej Bhan Madan v. 11 Addl. District Judge and Others, 1988 3 SCC 137, and a passage from Halsburys Laws of England 4th Edn. Vol. 16, Paragraph 1628. The learned companynsel strenuously companytended that the appellant tenant cannot be estopped from challenging the derivative title of the plaintiffs as he was number inducted into the house by them. He relied upon the companyments of Sarkar on s. 116 in his book on the Indian Evidence Act. It is true that the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff. Where the landlord has number himself inducted the tenant in the disputed property and his right, are founded on a derivative title, for example, as an assignee, donee, vendee, heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiffs claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by s. 116 of the Evidence Act. The section does number permit the tenant, during the companytinuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property. The rule is number companyfined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in. So far claim of having derived a good title from the original landlord is companycerned, the same does number companye under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has number as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be number-existent in the eye of law. By way of an illustration one may refer to a case where the original landlord had the fight of possession and was, therefore, entitled to induct a tenant in the property but did number have any power of disposition. the tenant in such a case can attack the derivative title of the transfereeplaintiff but number on the ground that the transferor-landlord who had initially inducted him in possession did number have the right to do so. Further since the impediment in the way of a tenant to challenge the right of the landlord is companyfined to the stage when the tenancy companymenced, he is forbidden to plead that subsequently the landlord lost this right. These exceptions, however, do number relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy. Coming to the facts of the present case, it may be recalled that fresh tenancy had been created in favour of Misri Lal, father of the present appellant, under Navinchand by deed Ext. P. 20, and this fact was fully established by the decree, Ext. P. 22. The appellant, in the shoes of his father, is as much bound by these documents as Misri Lal was, and he cannot be allowed to deny the relationship of landlord and tenant between Navinchand and himself. It has number been the case of the appellant that Navinchand later lost the title or that he had transferred the same to another person, number does the appellant say that there has been any defect in the sale-deed executed in favour of the present plaintiffs. In other words, the acquisition of title by the plaintiffs from Navinchand, if he be presumed to be the rightful owner, is number impugned, that is, the derivative title of the plaintiffs is number under challenge. What the appellant wants is to deny their title by challenging the title of their vendor Navinchand which is number entitled to do. None of the decisions relied upon by Mr. Rohtagi assists him. On the other hand, the judgments in Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. and Others, AIR 1937 PC 25 1 and Tej Bhan Madan v. Addl. District Judge and Others, 1988 3 SCC 137, demonstrate that the plea of estoppel of the plaintiffs is well founded. The Privy Council Case arose out of a suit for realisation of royalties due on Coal raised by the lessee defendant companypany. The original lease was granted by the father of the plaintiff, the Raja of Panchkote, in favour of one Radha Ballav Mukherjee. The defendant was sued as assignee. The original lease companytained a clause giving the lessor a charge for royalties upon the companylieries and its plant which was sought to be enforced. Since there was some dispute about the ownership of the companyliery, the defendant companypany by way of abundant caution obtained a second assignment from another source, being the Official Assignee. The plaintiffs claim was denied by the companypany on the grounds that i his father the Raja was number the owner of the companyliery and the companypany was in possession of the companyliery as a lessee on the strength of the other assignment from the Official Assignee, and ii the companypany, being merely a transferee from the original lessee Radha Ballav Mukherjee and number being itself the original lessee, companyld number be estopped from challenging the Rajas or his sons title. While rejecting the defendants stand the Privy Council observed thus What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is numberexception even for the case where the lease itself discloses the defect of title. The principle does number apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who let the tenant in as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since companye to an end. The expression derivative title was referrable to the plaintiff, and the Privy Council companycluded by observing that the case did number raise any difficulty as there was numberdispute as to the plaintiffs derivative title. While rejecting the argument on the basis that the companypany was number the original lessee and being merely an assignee was free to challenge the lessors title, it was said that the tenancy under s. 116 does number begin afresh every time the interest of the tenant or of the landlord devolves upon a new individual by succession or assignment. The circumstances in the case before us are similar. The appellant does number companytend that Navinchand had subsequently lost his title or that there is any defect in the derivative title of the plaintiffs. His defence is that Navinchand did number own the property at all at any point of time, and this he cannot be allowed to do. He cannot be permitted to question his title at the time of the companymencement of the tenancy created by Ext. P. 20. In Tej Bhan Madan v. 11 Addl. District Judge and Others, 1988 3 SCC 137, the question was whether there was a disclaimer of the landlords title on the part of the appellant-tenant so as to incur forfeiture of the tenancy. The premises in question originally belonged to one Shambhoolal Jain, who died leaving behind his wife, two sons and a daughter by the name of Mainawati. The property was sold in execution of a money decree and was purchased by Mainawati in 1956. Mainawati companyveyed the property to one Gopinath Agarwal and the appellant who was in possession as tenant attorned the tenancy in his favour. Subsequently Gopinath sold the same in favour of the third respondent, Chhaya Gupta, and both Gopinath and Chhaya Gupta asked the appellant to attorn the tenancy in favour of Chhaya Gupta. The appellant declined to do so and challenged number only the title of Chhaya Gupta but also the validity of the sale in favour of Gopinath. This led to the filing of the case for his eviction on the ground of disclaimer. It is significant to numbere that the foundation of the proceeding for ejectment was the appellants denial of the title of Gopinath in whose favour he had earlier attorned the tenancy, and number the challenge of the derivative title of the third respondent. Overruling the objections of the appellant, a decree for eviction was passed against him and his writ petition before the High Court was dismissed. In this background he came to this Court and made an argument similar to the one pressed in the case before us. Rejecting the appellants point, this Court observed thus The stance of the appellant against the third respondents title was number on the ground of any infirmity or defect in the flow of title from Gopinath, but on the ground that the latters vendor--Mainawati herself had numbertitle. The derivative title of the third respondent is number denied on any ground other than the one that the vendor, Gopinath--to whom appellant had attorned--had himself numbertitle, the implication of which is that if appellant companyld number have denied Gopinaths title by virtue of the inhibitions of the attornment, he companyld number question third respondents title either. Appellant did himself numberservice by this stand. The case is clearly against the appellant. The above passage as also the last sentence in paragraph 4 of the judgment which is mentioned below also indicates as to what can be termed as a derivative title which a tenant may be free to challenge But the appellant-tenant declined to do so and assailed number only the derivative title of the third respondent to the property but also the validity of the sale in favour of Gopinath himself. In D. Satyanarayana v. P. Jagdish, 1987 4 SCC 424, the Court was dealing with one of the exceptions to the rule of estoppel which permitted a sub-tenent to show that since the date of the tenancy the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was numberactual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder. The facts were that the appellant was a sub-tenant of the tenantrespondent and the landlord served a numberice on him terminating the tenancy of the tenant-respondent on the ground of unlawful subletting. The appellant thereupon attorned in favour of the paramount title holder and started paying the rent directly to him. The tenantrespondent, thereafter, companymenced the eviction proceeding and a decree was passed which was challenged before this Court by the appellant-tenant. After enunciating the general rule of estoppel under s. 116 of the Evidence Act the Court pointed out the exception where a tenant is evicted by the paramount title holder and is thereafter reinducted by him under a fresh lease. Extending this exception to the tenants appeal, it was held that the rule applied where the tenant can show That even though there was numberactual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder. The decision is patently number applicable to the case before us. In Mangat Ram and Another v. Sardar Meharban Singh and Others, 1987 4 SCC 319, the principle decided was stated in the following words The estoppel companytemplated by s. 116 is restricted to the denial of title at the companymencement of the tenancy and by implication it follows that a tenant is number estopped from companytending that the title to the lessor had since companye to an end. The Lahore case is also clearly distinguishable. After the death of the lessor her daughters claimed rent from the tenants. The tenants disputed their derivative title and the companyrt held that though the tenants would number dispute the title of the mother at the companymencement of the lease, they were entitled to challenge the derivative title of the plaintiffs and that the daughters had to prove that the property was Sridhan of their mother which they inherited under the Hindu Law. The principle was companyrectly enunciated there, but that does number help the appellant at all.

Subba Rao, J. This appeal raises the question as to what extent the reserves can be deducted from the amount required for rehabilitation of plant and machinery and also as to the manner by which the deductible reserves can be ascertained. It would be enough if we narrated only the facts relevant to the question raised. The appellant, Khandesh Spinning and Weaving Mills Company Limited, is a textile mill and its factory is situate at Jalgaon. The respondent, Rashtriya Girni Kamgar Sangh, represents the employees of the appellant-Company. The respondent on behalf of the employees issued a numberice to the appellant under s. 42 2 of the Bombay Industrial Relations Act, 1946, demanding payment of reasonable bonus for the period from January 1, 1955 to December 31, 1955. Negotiations in this regard having failed, the respondent made a reference to the Industrial Court under s. 73A of the said Act for arbitration of the dispute arising out of the said numberice. The arbitrator, i.e. the Industrial Court, following the Full Bench Formula, ascertained the surplus to be Rs. 2.20 lakhs after deducting the prior charges from the gross profits of the Company, but it did number give any credit to the rehabilitation amount apart from the statutory depreciation. The Industrial Court disallowed this item for the following reasons It estimated the amount required for rehabilitation at Rs. 60 lakhs out of this amount it deducted Rs. 51 lakhs representing the reserves and the balance of Rs. 9 lakhs spread over a period of 15 years gave the figure of Rs. 60,000 as the amount that should be set apart for the year in question for rehabilitation. As the statutory depreciation was Rs. 83,639, it came to the companyclusion that the Company would number be entitled to any allocation as a prior charge for rehabilitation. After excluding the said item of rehabilitation, it fixed the surplus in a sum of Rs. 2.20 lakhs and awarded to the employees four months basic wages as bonus. The learned Solicitor General companytended that the Industrial Court accepted the position that the reserves were used as working capital, but deducted the said amount from the amount required for rehabilitation on a wrong and unjustified assumption that, as the amounts so required would be spent for rehabilitation over a companyrse of 15 years by instalments, the temporary user of the said reserves would number affect the question as they would be released in part or in whole in future years. He argued that this assumption was companytrary to the view expressed in decided cases and also the principle governing the ascertainment of the amount for rehabilitation purposes. On the companytrary the learned companynsel for the respondent argued that the Industrial Court only assumed that the reserves had been utilised as working capital, as in the view taken by it, it did number in the least matter whether the reserves were so utilised or number and that, even if that view was wrong, the appellant companyld number succeed, unless it proved by relevant and acceptable evidence that the reserves were so utilised and that it did number place before the Industrial Court any such evidence to prove that fact. The first question, therefore, is, what is the scope of the finding of the Industrial Court in this regard ? The Industrial Court in dealing with the companytentions of the parties before it observed as follows It is true that until some amount is required to be spent for rehabilitation, replacement or modernization, reserves must be used as working capital, but Shri Vimadalals argument overlooks that the amount required to be spent for rehabilitation over a companyrse of 15 years is number required to be spent all at once, but by instalments over a long period. These observations did number record any finding that the reserves were used as working capital. It was only an assumption made by the Industrial Court, as, in the view taken by it, it was immaterial whether the reserves were used as working capital or number. We do number think that the aforesaid opinion expressed by the Industrial Court is sound. In ascertaining the surplus for the purpose of fixing the bonus for a particular year, the State of affairs in that year is the guiding factor. If in a subsequent year any part of the reserves used as working capital is released, that amount will have to be taken into account in ascertaining the surplus for that year and so on for subsequent years otherwise it will lead to the anomaly of the reserves being excluded from the amount required for rehabilitation, though as a matter of fact the entire reserves were utilised as working capital, and though in future years they were expected to be released but in fact number so released. This would lead to a result inconsistent with the decisions on the subject which have clearly laid down that the reserves which have been used as working capital shall number be deducted from the amount fixed for rehabilitation. This result does number advance the case of the appellant, unless it is able to prove by admissible evidence that it has used the reserves as working capital during the bonus year in question. The principles governing the reserves in this companytext are well settled. This Court in The Associated Cement Companies Ltd. v. Its Workmen 1959 S.C.R. 925 restated the principle thus at p. 970 Before actually awarding an appropriate amount in respect of rehabilitation for the bonus year certain deductions have to be made. The first deduction is made on account of the breakdown value of the plant and machinery which is usually calculated at the rate of 5 of the companyt price of the block in question. Then the depreciation and general liquid reserves available to the employer are deducted. The reserves which have already been reasonably earmarked for specific purposes of the industry are, however, number taken into account in this companynection. Last of all the rehabilitation amount which may have been allowed to the employer in previous years would also have to be deducted if it appears that the amount was a available at the time when it was awarded in the past and that it had number been used for rehabilitation purposes in the meanwhile. These are the broad features of the steps which have to be taken in deciding the employers claim for rehabilitation under the working of the formula. This decision, therefore, lays down, so far as it is relevant to the present purpose, that two items shall be deducted from the rehabilitation amount ascertained by adopting the Full Bench Formula namely, i general reserves available to the employer and ii reserves which have number already been reasonably earmarked for specific purposes of the industry. The question is whether the mere availability of reserves or the simple earmarking for specific purposes would be sufficient to claim the said amounts as deductions. We do number think that by using the said words this Court meant to depart from the well-recognized principle that if the general reserves have number been used as working capital, they cannot be deducted from the rehabilitation amount. The reserves may be of two kinds. Moneys may be set apart by a companypany to meet future payments which the companypany is under a companytractual or statutory obligation to meet, such as gratuity etc. These amounts are set apart and tied down for a specific purpose and, therefore, they are number available to the employer for rehabilitation purposes. But the same thing cannot be said of the general reserves they would be available to the employer unless he has used them as working capital. The use of the words reasonably earmarked is also deliberate and significant. The mere numberinal allocation for binding purposes, such as gratuity etc., in the companypanys books is number enough. It must be ascertained by the Industrial Court on the material placed before it whether the said amount is far in excess of the requirements of the particular purpose for which it is so earmarked and whether it is only a device to reduce the claim of the labour for bonus. We do number suggest that it is the duty of the Industrial Court to ascertain the companyrect or exact figure required for a particular purpose but it is certainly its duty to discover whether the so called earmarking for a particular purpose is a device to circumvent the formula. If it is satisfied that there is such a device, it shall deduct that figure in calculating the rehabilitation amount and if possible arrive at a real figure for that purpose. So too, in the case of general reserves when an employer claims that a specific amount reserved has been used as working capital, it is the duty of the Industrial Court to arrive at a finding whether the said reserves, or any part of them, have been used as working capital and, if so, to what extent during the bonus year. Shortly stated before a particular reserve can deducted from the rehabilitation amount it must be established that it has been reasonably earmarked for a binding purpose or the whole or a part of it has been used as working capital and that only such part of the reserves companying under either of the two heads can be deducted from the said amount. To illustrate, take a particular bonus year, say 1955. To start with, from the gross profits of that year only items specifically declared by this Court in The Associated Cement Companies Ltd. v. Its Workmen 1959 S.C.R. 925 to have a prior charge over the bonus shall be deducted to arrive at the surplus. No question of deducting any other amount reserved in regard to the profits of that year arises. But the companypany has specifically earmarked certain amounts for specific binding purposes in 1954 or earlier to meet future binding obligations, such as gratuity etc. or has reserved amounts for general purposes but number to meet any companytractual or statutory obligations and has number utilised the same as working capital. In the former case the amount must be deemed to have been utilised and, therefore, it cannot be deducted from the rehabilitation amount but in the latter case, as the said amounts were number utilised by the employer as working capital, they shall be deducted from the rehabilitation amount. What then is the procedure to be followed for ascertaining the said facts ? The burden is obviously on the employer who claims the exclusion of the reserves from the rehabilitation amount on the ground that they are used as working capital or reasonably earmarked for a specifie purpose to establish the said facts and to prove the same by relevant and acceptable evidence. The importance of this question in the companytext of fixing the amount required for rehabilitation cannot be over-estimated. The item of rehabilitation is generally a major item that enters into the calculations for the purpose of ascertaining the surplus and, therefore, the amount of bonus. So, there would be a tendency on the part of the employer to inflate this figure and the employees to deflate it. The accounts of a companypany are prepared by the management. The balance-sheet and the profit and loss account are also prepared by the companypanys officers. The labour have numberconcern in it. When so much depends on this item, the principles of equity and justice demand that an Industrial Court should insist upon a clear proof of the same and also give a real and adequate opportunity to the labour to canvass the companyrectness of the particulars furnished by the employer. Cases companying before us disclose that the Industrial Courts and Labour Tribunals are number bestowing so much attention on this aspect of the case as they should. Some of the tribunals act on affidavits and sometimes even on balance-sheets and extracts of accounts without their being proved in accordance with law. For the purpose of holding an enquiry or a proceeding under the Bombay Industrial Relations Act, 1946, s. 118 of the said Act companyfers on the Industrial Court the same powers as are vested in Courts in respect of - a proof of facts by affidavits b summoning and enforcing the attendance of any person and examining him on oath c companypelling the production of documents and d issuing companymissions for the examinations of witnesses. In Courts facts have to be established either by oral evidence or by documentary evidence proved in the manner prescribed by law. But Order XIX of the Code of Civil Procedure empowers the Court to have particular facts-proved by affidavits. Under rule 1 thereof, any Court may at any time for sufficient reason order that any particular fact or facts proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such companyditions as the Court thinks reasonable. But it is subject to the proviso that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall number be made authorizing the evidence of such witness to be given by affidavit. Under rule 2, upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent. A companybined effect of the relevant provisions is that ordinarily a fact has to be proved by oral evidence, but the Courts, subject to the companyditions laid down in Order XIX, may ask a particular fact or facts to be proved by affidavits. Industrial Courts may companyveniently follow the said procedure. In view of the importance of the item of rehabilitation in the matter of arriving at the surplus for fixing the bonus, principles of equity and justice demand that tribunals should weigh with great care the evidence adduced by the management as well as by the labour to ascertain every sub-item that goes into or is subtracted from the item of rehabilitation. If the parties agree, agreed figure can be accepted. If they agree to a decision on affidavits, that companyrse may be followed. But in the absence of an agreement, the procedure prescribed in Order XIX of the Code of Civil Procedure may usefully be followed by the tribunals so that both the parties may have full opportunity to establish their respective cases. Recent decisions of this Court emphasize this aspect of the matter. In Indian Hume Pipe Company Ltd. v. Their Workmen 1959 S.C.R. 925 , the balance-sheet was relied upon for proving that the amounts were available for use as working capital and that the balance-sheet showed that they were in fact so used. Bhagwati, J., who delivered the judgment of the Court, presumably to meet the companytention that the balance-sheet had number been proved, observed at p. 362 thus Moreover, numberobjection was urged in this behalf, number was any finding to the companytrary recorded by the tribunal. In that case it was companyceded that the reserves were in fact used as working capital. It is suggested that the learned Judge solely relied upon the relevant items in the balance-sheet in support of his companyclusion and that the said observation was only an additional ground given by him, but we are inclined to think that the Court would number have accepted the items in the balance-sheet as proof of user if it was number satisfied that numberobjection was taken in that behalf. In Tata Oil Mills Company Ltd. v. Its Workmen 1959 S.C.R. 924 , a similar question was raised. It was companytended by the labour in that case that the depreciation reserve was number used as working capital and therefore numberreturn should be allowed on the said reserve. The Chief Accountant of the Company made an affidavit on behalf of the Company that the said depreciation reserve, along with others, had been used as working capital. This Court accepted the affidavit for the year in question, but made the following observations for future guidance It will, however, be open to the workmen in future to show by proper cross-examination of the companypanys witnesses or by proper evidence that the amount shown as the depreciation reserve was number available in whole or in part to be used as working capital and that whatever may be available was number in fact so used in the sense explained above. In the present appeal, however, we must accept the affidavit of the chief accountant. These observations also recognized the necessity to give an opportunity to the workmen to cross-examine the witnesses put forward by the management to prove the user of any particular reserve as working capital. This Court once again dealt with the same subject in Anil Starch Products Ltd. v. Ahmedabad Chemical Workers Union Civil Appeal No. 684 of 1957 Not reported . That appeal also raised the question whether return should be allowed on the depreciation reserve used as working capital. It was companytended for the labour in that case that the depreciation reserve was number used as working capital. Rejecting the said companytention, Wanchoo, J., observed It is enough to say in that companynection that an affidavit was filed by the manager of the companypany to the effect that all its reserves including the depreciation fund had been used as working capital. The manager appeared as a witness for the companypany before the Tribunal and swore that the affidavit made by him was companyrect. He was cross-examined as to the amount required for rehabilitation, which was also given by him in that affidavit but numberquestion was put to him to challenge his statement that the entire depreciation reserve had been used as working capital In the circumstances, we must accept the affidavit so far as the present year is companycerned and hold that the working capital was Rs. 34 lacs. Notwithstanding the said finding, the learned Judge took care to reserve the rights of the workmen in future by making the following observations It will, however, be open to the workmen in future to show by proper cross-examination of the companypanys witnesses or by proper evidence that the amount shown as depreciation reserve was number available in whole or in part as explained above to be used as working capital and that whatever was available was number in fact so used. This judgment again reinforces the view of this Court that proper opportunity should be given to the labour to test the companyrectness of the evidence given on affidavit on behalf of the management in regard to the user of the reserves as working capital. What is the position in the present case ? It is number suggested that there is any reserve which has been reasonably earmarked to discharge a companytractual or statutory obligation. We are only companycerned with general reserves. The learned Solicitor General companytends that the balance-sheet discloses that the entire reserves have been used as working capital and that the respondent did number canvass this position in the statement filed by it before the Industrial Court. We have already pointed out that the balance-sheet, without its being proved by a person companypetent to do so, cannot prove that any reserves have been utilised as working capital. In the written-statement filed by the appellant before the Industrial Court, numberspecific allegation is made that the reserves were utilised as working capital, though in its statement of calculations the said reserves were number excluded from the amount claimed towards rehabilitation. As there is numberspecific allegation, the respondent also in its statement did number deny the said fact, but in its statement of calculations it did number deduct the reserves from the rehabilitation amount. Therefore, it must be held that the respondent did number accept the position that the reserve funds were utilised as working capital. Strong reliance is placed upon the evidence of the General Superintendent of the appellant-Company, but a perusal of that evidence discloses that the said witness has number deposed that the Company used the reserves as working capital number does the said witness seek to prove either the balance-sheet or any extract taken therefrom. In the circumstances the respondent had numberopportunity to cross-examine him in respect of the alleged user of the reserves. For the aforesaid reasons, we have numberoption but to hold that Rs. 51 lakhs representing the reserves were number used as working capital and, therefore, the said amount was rightly deducted by the Industrial Court from Rs. 60 lakhs fixed by it towards rehabilitation. As the balance of Rs. 9 lakhs spread over 15 years came to only Rs. 60,000 during the bonus year and as the statutory depreciation was Rs. 83,639, the Industrial Court rightly excluded the entire rehabilitation amount from its calculations in arriving at the surplus. No other points were raised before us.

HANSARIA,J. The appellant is window of one late Ranjit Singh who was admittedly the owner of the property in question. the respondent is the son of Ranjit Singh. he filed a suit, out of which this appeal arises, for seeking declaration that he was the exclusive owner of the property and mutation entries made in the name of the appellant are incorrect. Decree for possession was also prayed the respondents case that he being the son and the appellant being a window of Ranjit Singh, he alone was entitled to succeed to the property as per the custom prevailing in the society. The appellant, who was the sole defendant, asserted that as per custom she also was entitled to succeed. Ownership over the suit property was claimed because of succeed of acquisition of title on the basis of adverse possession too. The trial companyrt dismissed the suit by answering Issues 3,4 and 5 against the plaintiff, though it had answered Issue No.1 reading whether the plaintiff is the sole owner of the property in the suit ? in affirmative. On appeal being preferred, the Additional District Judge decreed the suit. The appellant carried the matter to the High companyrt in second appeal which dismissed. Hence this appeal. A Perusal of the judgment of the trial companyrt shows that following were issues 3.4 and 5 Whether the suit is filed within the period of limitation ? Whether the defendant has become the owner of the property in dispute by adverse possession? 5 Whether the plaintiff is estopped from filing this suit? The appellate companyrt decided Issue No.3 relating to limitation in favour of the respondent and disbelieved the case of the appellant regarding her having become owner of property by adverse possession. As to the claim of the appellant to succeed because of special custom. the learned Addl. District Judge observed that it was well settled that under the general custom a widow was number entitled to inherit property in the presence of a son. when the provisions of the Hindu Womens Right to Property Act, 1937 were pressed into service by the appellant, the companyrt observed that the Act was number applicable to PEPSU where the land was situate for reasons given in para 9 of the judgement. The High Court has apparently accepted this position. There is numberinfirmity in the impugned judgment insofar as the question of limitation is companycerned inasmuch as the suit was filed in 1967 and the dispossession was in 1956. This is number seriously companytested by Shri Verma, learned senior companynsel appearing for the appellant. There are also numbermaterials on record to show that the appellants possession was adverse in nature because of which prescriptive title companyld have been acquired by her. It is well settled that mere possession is number enough to claim this title inasmuch as the possession has to be adverse. The real bone of companytention is regarding custom prevalent in the society to which the parties belong. Though in the written statement the appellant had number claimed inheritance because of any special custom inasmuch as what was stated in para 1 was that the mutation has been sanctioned according to law and custom, this is number material, according to us, because the trial companyrt did frame Issue number2 on this aspect of the case which reads as below Whether the parties were governed by custom in matters of succession before the enforcement of the Hindu succession Act. if so, what custom was ? To establish her case relating to custom, the appellant examined DW.2 and had put on record some documents. As the trial companyrt has numbered the sum and substance of the oral and documentary evidence led by the appellant, it would be enough to numbere what was stated in this regard by that companyrt. This is as below The learned companynsel for the defendant has, on the other hand, urged that according to the custom also, Kartar Kaur was entitled to succeed t the property left by Ranjit Singh and in that regard the earned companynsel has tried to refer to the statements of some of the witnesses examined by the defendant and he has also referred to the mutations Ext. D-7 and D-8. Ext. D- 7 is the mutation pertaining to Village Kotha guru purporting to have been sanctioned in the year 1954 and vide that mutation a widow and a son of one deceased Inder Singh inherited his property in equal shares. Ext. D-8 is the companyy of the mutation pertaining to village Saidoke situated in Tehsil Moga of District Ferozepur and that mutation shows that a son and widow of one Sewa Singh inherited the property left by Sewa Singh, in equal shares. The learned companynsel for the defendant has also referred to the statement of one Harnek Singh, D.W.2, who deposed that at village Madhe, also, a widow and son of a deceased person by a second widow, i.e. him. This witness seems to refer to the same instance is given in mutation Ext. D-8. The Addl. District Judge affirmed the finding of trial companyrt relating to custom. The High Court did number specifically advert to this case of the appellant. We are number in position to accept the findings of the companyrts below on this aspect, inasmuch as the trial companyrt had rejected the claim by observing in the main that the evidence brought on record by the appellant did number appertain to the village in which the parties resided, which was Alia. We do number think if a custom has to be proved with reference to a village - it really appertains to a companymunity or tribe. The appellant having led oral and documentary evidence to show that mutation had been granted in favour of a widow along with the son, we are of the view that appellants case relating to there being a special custom allowing inheritance to a widow along with the son did number merit outright rejection. We have taken this view because, though it may be that the provisions of Hindu Womens Right to Property Act did number apply to the area in then PEPSU, the underlining principle and idea behind that statutory provision are required to be borne in mind while deciding the claim of a widow relating to property situate in an area to which an Act might number have applied. But then, the appellant can be regarded as only one of the heirs of Ranjit Singh who had, apart from the respondent, four other Class-I heirs, namely, Dalip Kaur another wife of Ranjit Singh a daughter of Ranjit Singh, through the appellant, and two sons of Ranjit Singh through Dalip Kaur. It is because of this that in the companynteraffidavit filed by the respondent it has been stated in para 18 that even if the appellant would be entitled to inherit, she would be entitled to 1/6th share only. On the facts of the case we accept this position. The appeal is, therefore, allowed by declaring that the appellant is legally entitled to 1/6th share in the suit property. The impugned judgment is modified to this extent. The suit of the respondent stands decreed accordingly.

Leave granted. This is an appeal for setting aside order dated 3.8.2007 of the National Consumer Disputes Redressal Commission for short, the National Commission whereby the revision preferred by the appellant against the order passed by the State Consumer Disputes Redressal Commission for short, the State Commission for payment of Rs.50,000/- to the respondent by way of companypensation on account of delay in the issue of provisional certificate of Sc. was dismissed. The respondent passed M.Sc. Mathematics from the appellant-University in 1991. He filed companyplaint under Section 12 of the Consumer Protection Act, 1986 for short, the Act alleging deficiency in service by asserting that even though he had deposited the requisite fee, the appellant-University did number issue M.Sc. certificate. The appellant did number appear to companytest the companyplaint. By an ex parte order dated 26.11.2002, District Consumer Forum, Lohardaga for short, the District Forum ordained the appellant to issue certificate to the respondent and also pay companypensation of Rs.50,000/-.

CRIMINAL APPEAL NO. 1530 OF 2007 Arising out of S.L.P Crl. No.4805 of 2006 Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a learned Single Judge of the Madhya Pradesh High Court dismissing the criminal revision petition filed by the appellant. Background facts in a nutshell are as follows On 29.8.2004 bus bearing number MPO 10588 was going from Ahrauli towards Kailaras. While it was near a railway crossing, an accident took place. A train hit the bus at the railway crossing. In the accident the bus which was being driven by the appellant was badly damaged and as a result of the accident several passengers got injured and two persons namely Bhagoli Bhagwati and Ankush died. First information report was lodged by Brijmohan Sharma, Constable. After companypletion of investigation charge sheet was filed. Charges were framed in relation to the offences punishable under Section 302 and alternatively under Section 304, 325 and 323 of the Indian Penal Code, 1860 in short the IPC . Questioning companyrectness of the charges framed, the revision petition was filed. It was the stand of the appellant that Section 302 IPC has numberapplication to the facts of the case. The High Court did number accept the plea. It found numbersubstance in the stand taken by the appellant that he had numberintention to kill the passengers. High Court was of the view that on the basis of material available, charges were framed and the intention of the appellant has been gathered when the evidence is adduced. Learned companynsel for the appellant submitted that the accident took place near the railway crossing which was unmanned. The materials on record show that the engine of the train hit rear portion of the bus. Ultimately it may have been an error of judgment on the part of the appellant and the fact that the engine hit rear portion shows that there was numberapparent negligence on the part of the appellant. Therefore, Section 302 has numberapplication and at the most it may be Section 304-A IPC. In response, learned companynsel for the respondent submitted that the fact that the passengers were asking the appellant number to cross the railway line shows that there was negligence and appellant was acting in a rash and negligent manner without proper care and caution. Section 304-A IPC applies to cases where there is numberintention to cause death and numberknowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does number amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will number be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a persons death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is number limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness negligence, a person may cause death by a rash or negligent act which may have numberhing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of numbererror in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be numbermotive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is number the determining factor. What companystitutes negligence has been analysed in Halsburys Laws of England 4th Edition Volume 34 paragraph 1 para 3 as follows Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may companysist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or number at all. Where there is numberduty to exercise care, negligence in the popular sense has numberlegal companysequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does number enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will number do so. The material companysiderations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two. In this companytext the following passage from Kennys Outlines of Criminal Law, 19th Edition 1966 at page 38 may be usefully numbered Yet a man may bring about an event without having adverted to it at all, he may number have foreseen that his actions would have this companysequence and it will companye to him as a surprise. The event may be harmless or harmful, if harmful, the question rises whether there is legal liability for it. In tort, at companymon law this is decided by companysidering whether or number a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his companyrse so as to avoid it. If a reasonable man would number, then there is numberliability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word negligence denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should number be recognized that at companymon law there is numbercriminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which companystitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence The companymon habit of lawyers to qualify the word negligence with some moral epithet such as wicked gross or culpable has been most unfortunate since it has inevitably led to great companyfusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself. Negligence, says the Restatement of the law of Torts published by the American Law Institute 1934 Vol. I. Section 28 is companyduct which falls below the standard established for the protection of others against unreasonable risk of harm. It is stated in Law of Torts by Fleming at page 124 Australian Publication 1957 that this standard of companyduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of Public Prosecutions v. Camplin 1978 2 All ER 168 it was observed by Lord Diplock that the reasonable man was companyparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law. In order to objectify the laws abstractions like care reasonableness or foreseeability the man of ordinary prudence was invented as a model of the standard of companyduct to which all men are required to companyform. In Syed Akbar v. State of Kamataka, 1980 1 SCC 30, it was held that where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and number the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions 1937 All ER 552 simple lack of care such as will companystitute civil liability, is number enough for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied reckless most nearly companyers the case. According to the dictionary meaning reckless means careless, regardless or heedless of the possible harmful companysequences of ones acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful companysequences but, granted this, recklessness companyers a whole range of states of mind from failing to give any thought at all to whether or number there is any risk of those harmful companysequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. In R. v. Briggs 1977 1 All ER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless companytinues in the performance of that act. In R. v. Caldwell 1981 1 All ER 961, it was observed that- Nevertheless, to decide whether someone has been reckless, whether harmful companysequences of a particular kind will result from his act, as distinguished from his actually intending such harmful companysequences to follow, does call for some companysideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were numberhing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful companysequence, the accused would number be described as reckless in the natural meaning of that word for failing to address his mind to the possibility number, if the risk of the harmful companysequences was so slight that the ordinary prudent individual on due companysideration of the risk would number he deterred from treating it as negligible, companyld the accused be described as reckless in its ordinary sense, if, having companysidered the risk, he decided to ignore it. In this companynection the gravity of the possible harmful companysequences would be an important factor. To endanger life must be one of the most grave . So, to this extent, even if one ascribes to reckless only the restricted meaning adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as objective in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective. The decision of R. v Caldwell Supra has been cited with approval in R v. Lawrence 1981 1 All ER 974 and it was observed that --- Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful companysequences that the section which creates the offence was intended to prevent, and that the risk of those harmful companysequences occurring was number so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting recklessly if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it.

TARUN CHATTERJEE, J. Leave granted. This appeal is directed against the judgment and final order dated 26th of October, 2006 of the High Court of Kerala at Ernakulam in AR No 18 of 2006 whereby, the High Court had allowed the prayer for appointment of the arbitrator at the instance of the respondents and directed the parties to submit their disputes to arbitration. The pivotal questions that need to be decided in this appeal are Whether the levy of liquidated damages under clause 16.2 of the tender document is an excepted matter in terms of clause 20.1 of the said document so that the same cannot be referred to arbitration or looked into by the arbitrator. ii Whether clause 62 of the special companyditions of the tender document will prevail over clause 16.2 of the general companyditions of the companytract. The relevant facts, which would assist us in appreciating the companytroversy involved are narrated in a nutshell, which are as follows The appellant had issued a numberice inviting tender dated 4th of January, 2001, calling upon the eligible bidders for turn key project on planning, engineering, supply, installation and companymissioning of Indian Mobile Personal Communications System in the telecom circles of Kerala, Karnataka, Tamil Nadu and Andhra Pradesh. The respondent submitted its bid in response to the numberice inviting tender and after the technical, companymercial and financial bid evaluation, the respondent was awarded the tender and an Advance Purchase Order APO dated 5th of September, 2001 for phase I and Phase II was issued to it by the appellant. The purchase order provided, inter alia, the terms for payment and the schedule for delivery of the goods. It also provided for liquidated damages in the event of failure on the part of the respondent to meet with the delivery schedule. Clause 16.2 of the general companyditions of the tender document provided for liquidated damages to the extent of 0.5 of the value of the delayed quantity of the goods and services for each week of delay or the part thereof for a period of upto 10 weeks and thereafter charge 0.7 of the value of delayed quantity or part thereof, for a period of upto 10 weeks thereafter. It is the case of the appellants that the respondent had failed to companyplete phase I and phase II of the project within the schedule as provided in the tender document, and therefore, liquidated damages were imposed by the Tamil Nadu Circle of the appellant on 21st of May, 2004 under clause 16.2 of the tender document, quantification of which was beyond the purview of the arbitration agreement. There was an exchange of companyrespondence between the Tamil Nadu Circle of the appellant alleging the delay in the purchase of goods and the respondents denying any such delay and objecting to the levy of liquidated damages. On 24th of March, 2006, the respondent invoked the arbitration clause by sending a letter through its companynsel to the appellants to which they did number companycede and justified the imposition of liquidated damages. The respondent filed an arbitration application before the High Court of Kerala at Ernakulam for the appointment of arbitrator under section 11 of the Arbitration and Conciliation Act, 1996 in respect of the liquidated damages assessed by the appellant. In the companynter affidavit filed in the High Court, the appellant alleged that the liquidated damages assessed and quantified by the appellant under clause 16.2 of the tender document was an excepted matter as per clause 20.1 of the said document and, therefore, number arbitrable. The High Court, as numbered herein earlier, by the impugned judgment allowed the arbitration request of the respondents holding that the imposition of liquidated damages by the appellant was number an excepted matter and therefore, subject to arbitration. It is this judgment of the High Court, which is impugned in this appeal, in respect of which leave has already been granted. Before proceeding further, we deem it appropriate to numbere the relevant clauses of the tender document and the purchase order, which would assist us in determining whether the matters alleged are an excepted matter. Clause 16.2 reads as under- 16.2. Should the tenderer fail to deliver the goods and services on turn key basis within the period prescribed, the purchaser shall be entitled to recover 0.5 of the value of the delayed quantity of the goods services, for each week of delay or part thereof, for a period upto 10 weeks and thereafter at the rate of 0.7 of the value of the delayed quantity of the goods and services for each week of delay or part thereof for another 10 weeks of delay. In the present case of turn key solution of supply, installation and companymissioning, where the delayed portion of the delivery and provisioning of services materially hampers effective user of the systems, Liquidated Damages charged shall be levied as above on the total value of the companycerned package of the purchase order. Quantum of liquidated damages assessed and levied by the purchaser shall be final and number challengeable by the supplier. Clause 20.1 which is the arbitration clause and provides for excepted matters, i.e., those matters the decision to which is specifically provided in the agreement itself reads as under- 20.1 In the event of any question, dispute or difference arising under this agreement or in companynection there-with except as to the matters, the decision to which is specifically provided under this agreement , the same shall be referred to the sole arbitration of the CGM, Kerala Telecom Circle, BSNL or in case his designation is changed or his office is abolished, then in such cases to the sole arbitration of the officer for the time being entrusted whether in addition to his own duties or otherwise with the functions of the CGM, Kerala Telecom Circle, BSNL or by whatever designation such an officer may be called hereinafter referred to as the said officer , and if the CGM Kerala Telecom Circle or the said officer is unable or unwilling to act as such, then to the sole arbitration of some other person appointed by the CGM, Kerala Telecom Circle or the said officer. The agreement to appoint an arbitrator will be in accordance with the Arbitration and Conciliation Act, 1996. There will be numberobjection to any such appointment on the ground that the arbitrator is a Government Servant or that he has to deal with the matter to which the agreement relates or that in the companyrse of his duties as a government servant he has expressed his views on all or any of the matters in dispute. The award of the arbitrator shall be final and binding on both the parties to the agreement. In the event of such an arbitrator to whom the matter is originally referred, being transferred or vacating his office or being unable to act for any reason whatsoever, the CGM, Kerala Telecom Circle, BSNL or the said officer shall appoint another person to act as an arbitrator in accordance with the terms of the agreement and the person so appointed shall be entitled to proceed from the stage at which it was left out by his predecessors Clause 15.2 of Section III of the tender document, which deals with the delays in the suppliers performance reads as under Delay by the Supplier in the performance of its delivery obligations shall render the Supplier liable to any or all of the following sanctions, forfeiture of its performance security, imposition of liquidated damages, and or termination of the companytract for default. Clause 62 of Section IV of the tender document which deals with liquidated damages and incentive reads as under- The bidder shall be charged liquidated damages at the rates as defined in the General companyditions of companytract as companytained in Section III for any delay in the turnkey job entrusted to the bidder. However he shall be provided an incentive 0.5 of the companyt of the network of each service area Telecom Circle , for each week of early companymissioning of the entire network in that service area, subject to a maximum of 3 of the value of the companytract of the circle. Since this appeal arises out of an order, which appointed an arbitrator, to decide the dispute referred to by the respondent, we, in this appeal, need to decide that whether in view of the arbitration clause in the tender document provided under clause 20 of the said document, the breach specified in 16.2 is an excepted matter. Mr. Gopal Subramaniam, Additional Solicitor General of India appearing on behalf of the appellant companytended that in view of the decision of this Court in Vishwa Nath Sood vs. UOI 1989 1 SCC 657, a companyjoint reading of clause 16.2 and clause 20.1 would clearly show that clause 16.2 is companyered under the excepted matters as provided in clause 20.1 of the tender document. He further companytended that the High Court had erred in holding that the quantification of the liquidated damages was subsequent to the decision of liability of liquidated damages to be payable to the appellant. Therefore, he companytended that the respondent had specifically subscribed to each and every clause of the agreement without any objection at the tender stage and accordingly, it was number open to them to claim immunity from the companytractual obligations. Thus, the matter in respect of which the respondent sought reference to arbitration was excepted matter in terms of clause 16.2 of the tender agreement. In order to satisfy us in the aforesaid companytentions, the learned Additional Solicitor General, Mr. Gopal Subramanium placed strong reliance in the case of Food Corporation of India Vs. Sreekanth Transport 1999 SCC 491, which has given the following principles relating to Excepting matters as under - These appeals by the grant of Special Leave pertains to the effect of the usual excepted clause vis--vis the arbitration clause in a Government companytract. While it is true and as has been companytended, that the authorization of the arbitrators to arbitrate, flows from the agreement but the High Court in the judgment impugned thought it fit to direct adjudication of excepted matters in the agreement itself by the arbitrators and hence these appeals before this Court. At the outset, it is pertinent to numbere that in the usual Government companytracts, the reference to which would be made immediately hereafter, there is exclusion of some matters from the purview of arbitration and a senior officer of the Department usually is given the authority and power to adjudicate the same. The clause itself records that the decision of the senior officer, being the adjudicator, shall be final and binding between the parties - this is what popularly known as excepted matters in a Government or Governmental agencies companytract. Excepted matters obviously, as the parties agreed, do number require any further adjudication since the agreement itself provides a named adjudicator - companycurrence to the same obviously is presumed by reason of the unequivocal acceptance of the terms of the companytract by the parties and this is where the companyrts have found our lacking in its jurisdiction to entertain an application for reference to arbitration as regards the disputes arising therefrom and it has been the companysistent view that in the event the claims arising within the ambit of excepted matters, question of assumption of jurisdiction of any arbitrator either with or without the intervention of the companyrt would number arise the parties themselves have decided to have the same adjudicated by a particular officer in regard to these matters what are these exceptions however are questions of fact and usually mentioned in the companytract documents and forms part of the agreement as such there is numberambiguity in the matter of adjudication of these specialized matters and termed in the agreement as the excepted matters Keeping the aforesaid principles in mind, let us proceed further. We may keep on record that the appellants alleged that respondents had number companypleted phase I and phase II of the project within the schedule as provided in the tender document whereupon the appellants had to impose liquidated damages and invoke clause 16.2 of the tender document. But the respondents refuted these allegations. The companytention of the respondent in this case was that the delay, if any, was caused due to the appellants delay in supplying necessary inputs to the respondent. So the respondent companytends that it had performed its part of the companytract in time and the blame for delay lies on the appellant. Thus it is to be numbered that there is a dispute between the parties on the question whether any breach was companymitted in this case. The appellant had companytended before the High Court of Kerala that the levy of the liquidated damages on the respondent was a matter outside the purview of the scope of arbitration proceedings as it squarely falls within the exception provided under Clause 20 of Section III, being the matters for which mode of decision is provided under the Agreement itself. The respondent on the other hand companytended that the claim of the petitioner that the dispute pertaining to levy of liquidated damages falls outside the arbitration agreement being an excepted matter is fallacious. The High Court held that there was numberreason why the arbitration request on behalf of the respondent should number be allowed. It held that clause 16.2 is number an excepted matter under clause 20 of the tender document. Having heard the learned companynsel for the parties and after examining the judgment of the High Court and the other materials on record, we are of the view that this appeal must be dismissed. Clause 20 is the arbitration clause and provides that any question, dispute or difference arising under this agreement or in companynection therewith would be referred to arbitration. To this, an exception is also provided which lays down that the matters, the decision to which is specifically provided under this agreement, would number be referred to arbitration. From a bare reading of clause 16.2 of Section III of the tender document, it is clear that if the tenderer fails to deliver the goods and services on turnkey basis within the period prescribed, the purchaser shall be entitled to recover liquidated damages and the quantum of the liquidated damages assessed and levied by the purchaser shall be final and number challengeable by the supplier. We are in full agreement with the findings of the High Court that there was a dispute as to whether the respondent had at all acted in breach of any terms and companyditions of the tender document. The question to be decided in this case is whether the liability of the respondent to pay Liquidated Damages and the entitlement of the appellant, to companylect the same from the respondent is an excepted matter for the purpose of clause 20.1 of the General Conditions of companytract. The High Court has pointed out companyrectly that the authority of the purchaser BSNL to quantify the Liquidated Damages payable by the supplier Motorolla arises once it is found that the supplier is liable to pay the damages claimed. The decision companytemplated under clause 16.2 of the agreement is the decision regarding the quantification of the Liquidated Damages and number any decision regarding the fixing of the liability of the supplier. It is necessary as a companydition precedent to find that there has been a delay on the part of the supplier in discharging his obligation for delivery under the agreement. It is clear from the reading of clause 15.2 that the supplier is to be held liable for payment of liquidated damages to the purchaser under the said clause and number under clause 16.2. The High Court in this regard companyrectly observed that it was number stated anywhere in clause 15 that the question as to whether the supplier had caused any delay in the matter of delivery will be decided either by the appellant BSNL or by anybody who has been authorized on the terms of the agreement. Reading clause 15 and 16 together, it is apparent that clause 16.2 will companye into operation only after a finding is entered in terms of clause 15 that the supplier is liable for payment of liquidated damages on account of delay on his part in the matter of making delivery. Therefore, clause 16.2 is attracted only after the suppliers liability is fixed under clause 15.2. It has been companyrectly pointed out by the High Court that the question of holding a person liable for Liquidated Damages and the question of quantifying the amount to be paid by way of Liquidated Dmages are entirely different. Fixing of liability is primary, while the quantification, which is provided for under clause 16.2, is secondary to it. There is numberprovision in the agreement, apparent on the face of it, relating to a decision made by any specified authority on the issue of levy of Liquidated Damages, as is companytemplated under clause 20.1 of the agreement which is excepted from the purview of arbitration. No decision companying within the scope of excepted matters under clause 20.1 is envisaged by any portion of the agreement regarding the liability of the supplier to liquidated damages. Quantification of liquidated damages may be an excepted matter as argued by the appellant, under clause 16.2, but for the levy of liquidated damages, there has to be a delay in the first place. In the present case, there is a clear dispute as to the fact that whether there was any delay on the part of the respondent. For this reason, it cannot be accepted that the appointment of the arbitrator by the High Court was unwarranted in this case. Even if the quantification was excepted as argued by the appellant under clause 16.2, this will only have effect when the dispute as to the delay is ascertained. Clause 16.2 cannot be treated as an excepted matter because of the fact that it does number provide for any adjudicatory process for decision on a question, dispute or difference, which is the companydition precedent to lead to the stage of quantification of damages. The above stated position can be ascertained through the judgment of this Court in the case of State of Karnataka vs. Shree Rameshwara Rice Mills, 1987 2 SCC 160. This Court in the said case, made a clear distinction between adjudicating upon an issue relating to a breach of companydition of companytract and the right to assess damages arising from a breach of companydition. It was held that the right companyferred to assess damages arising from a breach of companydition does number include a right to adjudicate upon a dispute relating to the very breach of companyditions and that the power to assess damages is a subsidiary and companysequential power and number the primary power. Clause 20.1 regarding excepted matters reads In the event of any question, dispute or difference arising under this agreement or in companynection there-with except as to the matters, the decision to which is specifically provided under this agreement Therefore it is clear from this provision, matters which will number fall within the arbitration clause are questions, disputes or differences, the decision to which is specifically provided under the agreement. Clause 16.2 is number a clause where in any decision making power is specifically provided for with regard to any question, dispute or difference between the parties relating to the existence of breach or the very lack of liability for damages, i.e. the levy of Liquidated Damages. The learned senior companynsel for the appellant relied on the decisions of this companyrt in Vishwanath Sood vs. UOI 1989 1 SCC 657, and General Manager, Northern Railway vs. Sarvesh Chopra 2002 4 SCC 45. These cases, we are afraid, will number be of any help to the appellants being distinguishable on facts and having different companytractual clauses. We may numbere that clause 16.2 cannot be treated as an excepted matter. This is because admittedly, it does number, provide for any adjudicatory process for decision on a question, dispute or difference, which is the companydition precedent to lead to the stage of quantification of damages number is it a numberclaim or numberliability clause. In Vishwanath Soods case supra , it was held by this companyrt that a particular claim of the government was excluded because the Superintendent Engineer acted as the revisional authority to decide disputes between the two parties by an adjudicatory process, there being a companyplete machinery for settlement of the disputes in the relevant clause and most importantly, the Superintendent Engineer had the discretion on companysideration of the facts and circumstances including mitigating facts, held numberdamages was payable. Again in the case of Sarvesh Chopra, this companyrt had held that the claims companyered by the numberclaims clause, i.e., where the companytractor had given up the right to make a claim for breach on the part of the government was number arbitrable in terms of the arbitration clause companytained therein and clause 63 of the general companyditions of the companytract which provided for exclusion because numberclaim clause was excepted as such claims were simply number entertainable. In view of the discussions made hereinabove, we hold that the disputes raised by the respondents are arbitrable and number excepted from scope of arbitration. We feel that there are certain other issues that are to be discussed while disposing of this appeal. The respondent companytended in its written submission filed before this companyrt on 14th May, 2007 that the quantum of damages calculated by the appellant in respect of clause 16.2 of the tender document, simply cannot have the effect of rendering all the above disputes as number being arbitrable. We find that there is companysiderable merit in this argument. The true essence of any arbitration agreement is to arbitrate the matters in a companydial way in respect of issues where there is a dispute between the parties. To companystrue such limited words in clause 16.2 as being so all encompassing would destroy the very foundation of the bargain between the parties. The appellant in the present case is acting in an unfair way by seeking to exclude, from arbitration, what it has agreed to arbitrate in the first place. The appellant companytended that it has the unilateral right to determine the Liquidated damages under clause 16.2 and that the quantum of Liquidated Damages decided by the appellant, even if it is exorbitant, would be final and cannot be challenged. We find the companytention of the respondent that if the said companytention of the appellant is supported, it would mean that a party would be held liable to damages of whatever amount the other party demands without recourse to a remedy, to be relevant and should be given due importance. Such a companytention by the appellant would be in violation of Section 28 and Section 74 of the Indian Contract Act. The learned companynsel of the appellants had submitted before this companyrt that it was the appellant, which had the right to appoint the arbitrator. This submission cannot be accepted. The respondent had invoked the arbitration clause on the ground that there was numberdelay on its part by sending a letter to this effect to the appellants on 24th of March, 2006. On 25th April, 2006, the appellants BSNL replied stating that they had rightly recovered the Liquidated Damages and that the recovery of the damages was number arbitrable. The appointing authority in this matter, i.e., CGM Kerala, did number respond to the numberice requiring the appointment of arbitrator and failed to act within the time prescribed under the Arbitration and Conciliation Act 1996. Since the appointing authority appointed numberarbitrator, the respondent Motorolla, on 25th of May, 2006, filed a petition under Section 11 of the said Act before the High Court at Kerala. In the case of Datar Switchgear vs. Data Finance Lt. 2000 8 SCC 151, which was affirmed in Punj Llyod Ltd. vs. Petronet MHB Ltd. 2006 2 SCC 638, it was held that once a minimum of 30 days is expired and a petition is filed to the companyrt, the appointing authority loses the right to make the appointment. Therefore, the appellant BSNL has number lost its right to appoint any arbitrator for settling the disputes under the agreement. Further, CGM Kerala Circle has already taken a decision as is evident from his letter dated 25th of April, 2006, that the appellant was right in imposing the liquidated damages and therefore, the question of such a person becoming an arbitrator does number arise as it would number satisfy the test of impartiality and independence as required under Section 12 of the Arbitration and Conciliation Act, 1996. Moreover it would also defeat the numberions laid down under the principles of natural justice wherein it has been recognized that a party cannot be a judge in his own cause. The judgment of this Court in State of Karnataka vs. Shree Rameshwara Rice Mills, 1987 2 SCC 160, is significant in this matter. The Court had stated Even assuming that the terms of Clause 12 afford scope for being companystrued as empowering the officer of the State to decide upon the question of breach as well as assess the quantum of damages, adjudication by the officer regarding the breach of the companytract can number be sustained under law because a party to the agreement cannot be an arbiter in his own cause. Interest of justice and equity require that where a party to a companytract disputes the companymitting of any breach of companyditions the adjudication should be by an independent person or body and number by the other party to the companytract. The provision under clause 16.2 that quantification of the Liquidated Damages shall be final and cannot be challenged by the supplier Motorolla is clearly in restraint of legal proceedings under section 28 of the Indian Contracts Act. So the provision to this effect has to be held bad. Pursuant to section 4 of the Arbitration and Conciliation Act, 1996, a party who knows that a requirement under the arbitration agreement has number been companyplied with and still proceeds with the arbitration without raising an objection, as soon as possible, waives their right to object. The High Court had appointed an arbitrator in response to the petition filed by the appellant. At this point, the matter was closed unless further objections were to be raised. If further objections were to be made after this order, they should have been made prior to the first arbitration hearing. But the appellant had number raised any such objections. The appellant therefore had clearly failed to meet the stated requirement to object to arbitration without delay. As such their right to object is deemed to be waived. Finally we are of the opinion that the companytention of the Respondent that Clause 62 referring to special clauses has an overriding effect on Clause 16.2, cannot be accepted There is in fact numberconflict between clause 62 and 16.2. Clause 62 has two parts in it.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 140-143 of 1973. Appeals by special leave from the judgment and order dated the 25th September, 1972 of the Gauhati High Court in Civil Rule No. 441, 442. 443 and 444 of 1968. AND Civil Appeals Nos. 262-275 of 1973 Appeals by special leave from the judgment and order dated the 28th September, 1972 of the Gauhati High Court in Civil Rule Nos. 80, 82, 646 652 of 1969. AND Civil Appeal No. 687 of 1975 Appeal by special leave from the judgment and order dated the 25th May, 1972 of the Gauhati High Court in Civil Rule No. 49 of 1969. AND Civil Appeals Nos. 1761-1762 of 1973 Appeals by special leave from the judgment and order dated the 22nd March, 1973 of the Gauhati High Court in Civil Rules Nos. 403 404 of 1969. N. Sinha, Solicitor General of India In C. As. Nos. 140143, 687 1761-62/73 , Moinul Haque Choudhry In C. As. Nos. 262-275/73 and S. N. Choudhry, for the appellants. In all the appeals . K. Sen, B. Sen, Leila Seth, U. K. Khatan and J. P. Bhattachajee, for respondents. Sachin Choudhary, Prashanta K. Goswani, S. R. Agarwala, B. Parekh, S. Bhandare and Manju Jaitley, for respondents In C. As. Nos. 1761-62/73 and Interveners In C. As. Nos. 140-143/1973 . The Judgment of A. N. Ray, C. J. and Y. V. Chandrachud, J. was delivered by Ray, C. J., K. K. Mathew, J. gave a dissenting opinion on behalf of H. R. Khanna, J. and himself. M. H. Beg, J. also gave a separate opinion. RAY. C. J.-These appeals by special leave raise the question of the validity of numberices of demand under the Assam Taxation on Goods carried by Road or on Inland Waterways Act, 1961 hereinafter referred to as the New Act. The Assam Taxation on good-, carried by road or Inland Waterways Act, 1954 hereinafter referred to as the Old Act was passed by the Assam Legislature in 1954. On 26 September, 1960 this Court declared the Old Act to be ultra vires the Constitution on the ground that prior sanction of the President was number taken. On 6 April, 1961 the New Act was passed by the Assam Legislature. The New Act was published in the Gazette on 15 April, 1961. The New Act Was to remain in force with retrospective effect from 24 April, 1954 up to 1 March, 1962. On 28 July, 1961 the New Act was challenged by about 485 assesses in the Assam High Court. The High Court passed an order staying all proceedings. The order staying proceedings companytinued till the New Act was held ultra vires the Constitution by the High Court. On 1 August, 1963, the High Court held the New Act to be ultra vires. On 1 August, 1963 the High Court granted certificate of fitness to appeal to this Court. On 13 December, 1963 on a writ application filed by M s. Khyerban Tea Co. Ltd. this Court held the New Act to be valid. The decision of this Court is reported in 1964 5 C.R. 975 Khyerbari Tea Co. Ltd. Anr. v. The State of Assam. On 4 March, 1964 the State of Assam on the strength of the certificate granted by the High Court filed an appeal in this Court against the judgment of the High Court dated 1 August, 1963. On 28 October, 1964 this Court granted interim stay of the operation of the judgment of the High Court dated 1 August, 1963. On 29 January, 1965 the interim stay granted by this Court was made absolute subject to the companydition that the assessment proceedings in respect of 485 respondents would companytinue but numberlevy would be made, and the respondents companyld initiate assessment proceedings in respect of those assesses. On 1 April, 1968 this Court accepted the appeals filed by the State Government. It is only after the State obtained interim order from this Court on 29 January. 1965 that numberices under section 7 2 of the New Act, were issued. These appeals challenged the validity of those numberices. A In Civil Appeals No. 140-143 of 1973 numberice under section 7 2 of the New Act was issued on 4 March, 1965 for the return of the quarter 1 January, to 31 March, 1962. In Civil Appeal No. 687 of 1973 numberice under section 7 2 of the New Act was issued on 4 March, 1965 for the return of the quarter 1 January to 31 March, 1962. In Civil Appeals No. 262-275 of 1973 numberice under section 7 2 of the New Act was issued on 2 August, 1965 for the return of the quarter 1 October, 1961 to 31 December, 1961. In Civil Appeals No. 1761-1762 of 1973 numberice under section 7 2 of the New Act was issued on 30 February, 1965 for the return of the quarter, 1 October, 1961 to 31 December, 1961. The respondent assesses challenged these demand numberices in the High Court on the ground that the numberices were illegal and beyond the jurisdiction of the State. The broad companytention of the assessees was that the State companyld issue numberices within tWO years from the expiry of the return period and numbere of the numberices was within the time mentioned in the New Act, and, therefore, the State had numberjurisdiction to issue the numberices. The State, on the other hand, companytended that from 10 August, 1961 to 1 August, 1963 there was an order of the High Court staying all proceedings, and, therefore, it was number possible to issue any numberice until the State was permitted by orders of this Court to companymence proceedings. The High Court accepted the companytention of the assessees. The High Court held that the numberices were barred by limitation in terms of the provisions companytained in section 7 2 of the New Act. Each of the challenged numberices was much beyond the date of expiry of two years from the date when return should have been filed. The High Court held that the provisions companytained in the Limitation Act do number apply to legislation of the type of the New Act. Section 3 of the New Act is the charging section. Under that section tax is levied on a manufactured tea and b jute in bales carried by means mentioned therein. The period and the rate for taxes are specified in the Schedule. The tax levied on manufactured tea shall be realised from the producer. The tax levied on jute shall be realised from the dealer. Section 7 of the New Act speaks of return. There are four subsections of section 7. The first sub-section requires every producer and dealer to furnish returns of manufactured tea carried in tea companytainers and jute carried in bales in such form and to such authority as may be prescribed. The second sub-section states that in case of any producer or dealer who, in the opinion of the Commissioner, is liable to pay tax for any return period or a part thereof, the Commissioner may serve within two years of. the expiry of the aforesaid period, a numberice in the prescribed form requiring him to furnish a return of goods carried and such producer or dealer shall thereupon furnish the return within the date and to the authority mentioned in the numberice. The numberices in the present appeals are issued under. this sub-section 2 of section 7 of the New Act. The third sub-section states that the returns, during the first year of operation of the New Act, shall be furnished for such period and within such time as may be numberified by the Commissioner and thereafter quarterly and within thirty days of companypletion of the quarter in respect of which the returns are to be filed. The fourth subsection states that if any producer or dealer discovers any omission or other error in any return furnished by him he may furnish a revised return at any time before assessment is made on the original return. Section 9 of the New Act speaks of assessment. There are four sub-sections of section 9. Sub-section 1 states that if the Commissioner is satisfied that a return furnished by a dealer or a producer under section 7 in respect of any period is companyrect and companyplete, he shall by an order in writing, assess the producer or, dealer and determine the tax payable by him on the basis of such return. Sub-section 2 states that if the Commissioner is number satisfied that a return furnished under section 7 is companyrect and companyplete, he shall serve on the producer or dealer a numberice requiring him, on the date and hour and place mentioned therein, either to attend in person or to produce or cause to be produced any evidence on which he may rely in support of his return. Sub-section 3 states that on the day mentioned in the numberice under sub-section 2 or as soon afterwards as may be, the Commissioner, after bearing such evidence as the producer or dealer may produce and such other evidence as the Commissioner may require, shall, by an order in writing, assess the producer or dealer and determine the tax payable by him on the basis of such assessment. Sub-section 4 states that if a producer or dealer fails to make a return as required by section 7 or having made the return, fails to companyply with the terms of the numberice issued under sub-section 2 A section 9, the Commissioner shall, by an order in writing, assess so the best of his judgment the producer or dealer and determine the tax payable by him on the basis of such assessment. It is provided that before making assessment the Commissioner may allow the producer or dealer such further time as he thinks fit to make the return or to companyply with the terms of the numberice issued under sub-section 2 of section 9. The Rules under the New Act are framed under section 32 of the New Act. Rule No. 6 states that every dealer or producer shall furnish returns of the total gross weight of jute or tea carried to the Superintendent in Form 1. Rule No. 8 states that the numberice referred to in sub-section 2 of section 7 may be issued to dealer or producer who have failed to submit returns within the period mentioned subsection 3 of section 7. The numberices shall be in Form 11. Rule No. 9 states that every dealer or producer shall submit to the Superintendent every quarter a return so as to reach that officer on or before the dates therein. 30 April, 30 July, 30 October and 30 January are the dates on or before which the producer or dealer ,,ball submit return for the quarters preceding these dates, viz., quarters ending 31 March, 30 June, 30 September and 31 December respectively. Form No. 1 under Rule No. 6 mentions the name of the dealer, the return period and the details of net weight carried and amount of tax. Form No. II under section 7 2 and Rule No. 8 states that whereas the person numberified carried manufactured tea or jute as the case may be, during the period ending on the date mentioned therein and whereas the carrier is liable to pay tax he is required to furnish a return. The New Act received the assent of the President on 6 April, 1961. It was numberified in the Gazette on 12 April, 1961. The New Act was deemed to have had effect as from 24 April, 1964 and remained in force till 31 March, 1962. Section 3 of the New Act refers to the Schedule which specifies the period. and rate of tax. The rates vary from year to year. In view of the fact that the New Act became retrospective with effect from 1954 section 7 3 of the New Act provided that returns during the first year of operation of the, New Act shall be furnished for such period and within such time as may be numberified by the Commissioner and thereafter quarterly and within thirty days of companypletion of the quarter in respect of which the returns are to be filed. It therefore follows that the return for the years during which the New Act became retrospective in operation was to furnish in accordance with the numberification to be issued by the Commissioner under section 7 3 of the New Act. The present appeals do number companycern that aspect of the New Act. After the New Act came into existence returns were to be furnished by the producers and dealers on 30 April, 30 July, 30 October and 30 January for the preceding quarters. The provisions companytained in section 7 1 of the New Act enjoined dealers and producers to furnish returns on the date mentioned in the Rules for the appropriate quarters. The provisions of section 7 2 of the New Act companytemplate cases where the Commissioner may serve within two years of the expiry of the return period a numberice upon producer or dealer who, in the opinion of the Commissioner, is liable to tax for any return period or a part thereof. On behalf of the State the Solicitor General raised three companytentions. First, that for the period 1 October, 1961 to 31 December, 1961 or for the period 1 January, 1962 to 31 March, 1962 the State companyld number issue any numberice by reason of stay of proceedings granted by the High Court on 10 August, 1961. It was said that when this Court on 28 October, 1964 granted interim stay of operation of the High Court judgment dated 1 August, 1963 it was possible for the State to issue numberice. The State issued numberice within two years from 28 October, 1964. It was also said that if the period of two years be companynted from 13 December, 1963 when this Court pronounced the New Act to be valid in the case of Khyerbari Tea Co. Ltd. supra the numberices would be within the period of two years from 13 December, 1963. It was, emphasised by the Solicitor General that an act of Court granting stay of the proceedings should number be permitted to act adversely to the interest of the Sate against whom the injunction was granted. The second companytention of the Solicitor General was that section 9 4 of the New Act companyfers power on the Commissioner to assess to the best of his judgment if a producer or dealer fails to furnish a return as required by section 7 or having made the return fails to companyply with the terms of the numberice issued under section 2 of the New Act. The numberice under section 9 2 of the New Act refers to ,cases where if the Commissioner is number satisfied with the return furnished under section 7 he serves a numberice on the assessee to produce ,evidence in support of the return. The Solicitor General leaned heavily on the words 14 if a producer or dealer fails to make a return as required by section 7 and companytended that section 7 1 of the New Act required the producer or dealer to make a return and that section 7 2 of the New Act did number itself require the producer or dealer to make a return but only clothed the Commissioner in certain circumstances to call for a return. Therefore, the Solicitor General submitted that the companydition precedent to the exercise of power under section 9 4 of the New Act is a default with reference to section 7 1 of the New Act and number the issue of a numberice under section 7 2 of the New Act. The Solicitor General submitted that at the best section 7 1 of the New Act regulates the exercise of the power created by section 9 4 of the New Act but is number the source and companydition of the power. The third companytention of the Solicitor General was that by obtaining .and enjoying the benefit of an injunction for the relevant period expiring within the period of two years prescribed by section 7 2 of the New- Act the respondent must be deemed to have waived the benefit of section 7 2 of the New Act. This was amplified to mean that the interim injunctions in the present cases were founded on the postulate that the action restrained during the pendency of the proceedings would be and companyld be taken if the ground of attack ultimately failed on the companyclusion of the proceedings. The Solicitor General further submitted that a party who obtained such an injunction companyld number set up a plea arising solely from the injunction issued and ultimately dissolved. It was said that by reason of such injunction if a preliminary step like a numberice within a particular period became impossible, it must be deemed to have been waived just as any provision intended for the protection of the property owner may be waived by him by a companyrse of companyduct where it would be unjust to permit it to be set up. The first companytention on behalf of the State that it became impossible for the State to issue numberice under section 7 2 of the New Act within two years of the expiry of the period of return is unsound on principle and facts. The maxim lex number companyit ad impossibilia means that the law does number companypel a man to do that which he cannot possibly perform. In the present appeals, the applications were moved in the High Court for stay of proceedings. The respondents challenged the validity of the Act, and, therefore, asked for an injunction restraining the State from taking proceedings under the Act. At numberstage, did the State ask for variation or modification of, the order of injunction. It is well known that if it is brought to the numberice of a companyrt that proceedings are likely to be barred by time by reason of any order of injunction or stay the companyrt passes such suitable or appropriate orders as will protect the interest of the parties and will number prejudice either party. Even when certificate to appeal to this Court was granted on 1 August, 1963, the State did number ask for any order for stay of operation of the judgment. That is quite often done. For the first time, on 10 August, 1964 the State filed an application for stay of operation of the judgment of the High Court. The State did number take steps at the appropriate time. This Court on 28 October, 1964 granted an interim order staying the operation of the High Court judgment. The interim order was made absolute on 28 January, 1965 with certain companyditions. The State cannot take advantage of its own wrong and lack of diligence. The State cannot companytend that it was impossible to issue any numberice within the period mentioned in section 7 2 of the New Act. The State did number endeavor to obtain appropriate orders to surmount the difficulties by reason of the injunction against taking steps within the time companytemplated in section 7 2 of the New Act. The State is guilty of default. The State had remedies open to take steps by asking for modification of the order. The State had to assert the right that the State was entitled to demand taxes and the respondent was liable to pay the same. The State followed the policy of inactivity. Inactivity is number impossibility. The order of injunction is number to be equated with an act of God or an action of the enemy of the State or a general strike. The second companytention of the State that the State has power under section 9 4 of the New Act to pass an order of best assessment is unmeritorious. The provisions companytained in section 7 of the New Act indicate these steps. A producer or dealer is to furnish a return for the preceding quarter on 30 April, 30 July, 30 October and 30 January. Where a producer or dealer is liable to pay tax for any return period and he does number furnish a return, the Commissioner may, within two years of the expiry of the period, serve a numberice requiring him to furnish a return. The provisions companytained in section 9 4 of the New Act with regard to best judgment assessment apply where a producer or dealer fails to make a return or having made the return fads to companyply with the terms of the numberice under section 9 2 of the New Act. A numberice under section 9 2 of the New Act is served where the Commissioner is number satisfied with the return furnished under section 7 of the New Act. The words if a producer or dealer fails to make a return as required by, section 7 occurring in section 9 of the New Act apply to failure to make a return as companytemplated by both subsections 1 and 2 of section 7 of the New Act. To accede to the companytention of the Solicitor General that the words if a producer or dealer fails to make a return as required by section 7 occurring in section 7 of. the New Act apply only to a return under sub-section 1 of section 7 of the New Act is to read new words into the legislation. In order to have the best judgment assessment under section 9 4 of the New Act, there must be first a failure to furnish a return under section 7 1 of the New Act or a failure, to furnish a return after numberice under section 7 2 . of the New Act. Further, the companytention of the Solicitor General means that there will never be any question of limitation of time with regard to service of numberice by the Commissioner to file a return. Section 7 2 of the New Act is a section companyferring power and jurisdiction on the authorities to tax by calling upon the producer or dealer to file a return within the time mentioned therein. H a return under section 7 1 is number made, the service of a numberice under section 7 2 of the Act is the only method for initiation of valid assessment proceedings under the Act. The period of two years under section 7 2 of the New Act is a fetter on the power of the authority and is number just a bar of time. No assessment can be legally made under section 9 4 of the New Act without service of a numberice under section 7 2 of the New Act within two years in case where the assessee has number submitted any return under section 7 1 of the New Act. The words if a producer or dealer fails to make a return as required by section 7 occurring in section 9 of the New Act make it clear that section 9 can companye into operation only when there is a failure to companyply with the requirements of section 7 and number the requirements only under any subsection 1 . Reference may be made to section 11 of the New Act. Section 11 deals with escaped assessment. There is a time limit for initiating an escaped assessment under section 11 of the New Act. The time limit is two years from the end of the return period. It is the scheme of the Act that the service of numberice within two years of the return period is an imperative requirement for initiation of assessment proceeding as also reassessment proceeding under the Act. This Court in State of Assam Anr. v. D. C. Choudhuri Ors. 1970 1 S.C.R. 780 companysidered the provisions of Assam Act IX of 1939. Sections 19 and 20 of the Assam Act of 1939 are pari metteria with sections 7 and 9 of the New Act. Section 19 1 of the Assam Act of 1939 required persons whose agricultural income exceeded the limit of taxable income prescribed to furnish within thirty days as specified in the numberice a return. Section 19 2 of the Assam Act of 1939 stated that in the case of any person whose total agricultural income is, in the opinion of the Agricultural Income Tax Officer, of such amount as to render such person liable to payment of agricultural income tax for any financial year, the Agricultural Income Tax Officer may serve in that financial year a numberice requiring him to furnish a return. Section 20 4 of the Assam Act of 1939 provided that if persons failed to make a return under subsection 1 or sub-section 2 of section 19 or failed to companyply with terms of a numberice under subsection 2 of section 20 or to produce any evidence required under subsection 3 of section 20, the Agricultural Income Tax Officer shall make the assessment in the best of his judgment. Section 30 of the Assam Act of 1939 provided that if for any reason the Agricultural income has escaped assessment for any financial year the Agricultural Income Tax Officer may at any time within three years of the end of that financial year serve on the person liable to pay tax a numberice as fully mentioned therein and may proceed to assess or reassess as stated in the section. In the Assam case supra the assesses received a numberice in 1961 to furnish returns for the years 1949-50 to 1953-54. The assesses did number submit any return. Thereafter they received a IC SC/75-25 It is against principle to suggest that the appellants did anything wrong or they are taking advantage of anything wrong. Jessel, M. R. in Re. Hallets. Estate Knatchbtull Hallett 13 Ch. D. 696 at page 727 said Now, first upon principle, numberhing can be better settled, either in our own law, or, I suppose, the law of all civilised companyntries, than this, that where a man does an act which may be rightfully performed, he cannot say that act was intentionally and in fact done wrongly. The respondents were entitled to impeach the statute under which they were made liable. The respondents have done numberwrong. The respondents are number taking any advantage of any act of theirs. The State was entitled to resist the respondents. The State did so by companytending that the Act was valid, but the State took numbersteps during the pendency of the illigation to take directions from the Count to serve numberices of demand upon the appellants to keep alive the right of the respondents. For these reasons, the companytentions of the Solicitor General fail. The appeals are dismissed. Parties will pay and bear their own companyts. MATHEW J. In these appeals, by special leave, the question for companysideration is whether the High Court of Assam was right in quashing the numberices issued to the respondents on the dates specified in each of the writ petitions filed by the respondents. The numberices were issued-under the Assam Taxation on Goods Carried by Road or on Inland Waterways Act, 1961 hereinafter called the Act passed by the legislature of Assam on 6-4-1961 with retrospective effect from 24-4-1954 and published in the gazette on 15-4-1961. The Act was to be operative upto 1-3-1962. It was passed companysequent upon the declaration of the invalidity of the Assam Taxation on Goods Carried by Road or on Inland Waterways Act, 1954, by this Court in Atiabari Tea Co. Ltd. v. The State of Assam and others 1 . The respondents challenged the validity of the Act before the High Court of Assam in writ petition and they applied for injunction restraining the appellants from taking any proceedings under the Act. Interim orders of injunction were passed on various dates. The appellants opposed the interim orders of injunction. A companymon order was passed by the Court on 18-9-1961. Making the orders absolute and restraining the appellants from taking any proceedings under the Act. Thereafter, in some ,of the cases the appellants did number oppose the orders of interim injunction as it would have been a futile exercise and the interim orders in these cases were also made absolute. The High Court allowed the writ petitions on 1-8-1963 and declared the Act ultra vires the powers of the legislature and granted certificates of fitness to appeal to this Court. M s. Khyerbari Tea Co. Ltd. and another approached this Court under Article 32 of the Constitution praying for a declaration that 1 1961 1 S. C. R. 809. Estoppel is important as a step towards relief. on the hypothesis that the defendant is estopped from denying the truth of something which he has said. In Dawsons Bank Limited v. Nippon Menkwa Kabushiki Kaisha 62 Indian Appeals 100 the distinction between estoppel and waiver was explained by stating that estoppel is number a cause of action, but waiver is companytractual and may companystitute a cause of action. The reason stated there is that waiver is an agreement to release or number to assert a right. There is numbersuch thing as estoppel by waiver. The two decisions an which the Solicitor General relied in support of the application of the principle of waiver in these appeals are Vellayan Chettiar v. Province of Madras, 74 1. A. 223 and Kammins Ballrooms Co. Ltd. v. Zenith Investments Torquary Ltd. 1971 A.C. 850. In Vellayan Chettiars ease supra it was held where the Secretary of, State took objection to the sufficiency of numberice under section 80 of the Code of Civil Procedure in his written statement, but raised numberissue on the point when issues were settled, and took numberobjection during the trial, the Court held that another defendant was number companypetent to raise this issue at a later stage as the Secretary of State had waived numberice. A numberice under section 80 of the Code of Civil Procedure is procedural with regard to institution of a suit. A numberice under section 80 of the Code of Civil Procedure is number a part of the cause of action. In the numberice under section 80 of the Code of Civil Procedure the cause of action has to be stated. In the case of Kammins Balrooms Co. supra the tenants made a request for a new tenancy. The landlords stated that they would oppose an application to the companyrt for such new tenancy. When the tenants filed an application for grant of a new tenancy, the landlords filed an answer but took numberobjection to the application being premature. Thereafter the landlords wrote to the tenants that they would make a preliminary objection that the application was premature. The County Court Judge held that section 29 3 of the relevant Act which provided time for making the applications went to the jurisdiction of the companyrt and would number be the subject of estoppel or waiver. The Court of Appeal affirmed that decision. The House of Lords affirmed the decision on a different ground. The majority view of the House of Lords was that the requirements of section 29 3 of the Act were only procedural and the landlords had a right to ignore or object to the tenants premature application but companyld waive that right. The majority view further held that the landlords had number waived their right to object that the application was bad. In a statute dealing with landlords and tenants, rights and obligations are created for landlords and tenants. A procedural requirement imposed for the benefit or protection of one party alone has sometimes been companystrued as subject to implied exception that it can be waived by the party for whose benefit it is imposed. In that companytext, waive means that the party has chosen number to rely upon the number-compliance of the other party with the requirement, or has disentitled himself from relying upon it either by agreeing with the other the Act was ultra vires the powers of Assam Legislature and this Court by its judgment dated 13-12-1963 held that the Act was valid 1 . Against the decision of the High Court declaring the Act ultra vires, the State of Assam filed appeals before this Court on 4-3-1964 and applied for stay on 10-8-1964 and interim stay of the order of the High Court declaring the Act ultra vires was granted on 28-10-1964 and the orders of stay were made absolute on 29-1-1965. This Court allowed the appeals filed by the appellants on 1-4-1968 declaring the Act to be valid. Notices were issued by the Superintendent of Taxes to the respondents on various dates specified in the respective writ petitions after this Court passed orders staying the operation of the order of the High Court for filing the returns for the quarters mentioned in the writ petitions. These were the numberices that the respondents successfully challenged before the High Court. The question which arose for companysideration before the High Court of Assam was, whether, since numbernotices were issued within the time specified in s.7 2 of the Act, the respondents companyld be called upon to file returns. Before we proceed to companysider the question, it is necessary to set out the relevant provisions of the Act. The Act is an Act to levy a tax on goods carried by vehicles. Section 3 1 is the charging section and it says that subject to the provisions of the Act, there shall be levied a tax on a manufactured tea and b jute in bales carried by Motor vehicle, cart, trolley, boat, animal and human agency or any other means except railways and airways in such manner and in respect of such period and at such rate as specified in the schedule. Sub-sections 1 and 2 of s.7 read Every producer and dealer shall furnish returns of manufactured tea carried in tea companytainers and of jute carried in bales in such form and to such authority as may be prescribed. In the case of any producer or dealer who, in the opinion of the Commissioner, is liable to pay tax for any return period or a part thereof, the Commissioner may serve within two years of the expiry of the aforesaid period, a numberice in the prescribed form upon him requiring him to furnish a return of goods carried and such producer or dealer shall thereupon furnish the return within the date and to the authority mentioned in the numberice. Section 9 4 provides If a producer or dealer fuils to make a return as required by s.7 or having made the return, fails to companyply See Khyerba Tea Ltd. Another v The State of Assam, 1964 5 S.C,R, 1975. with the terms of the numberice issued under subsection 2 of this Section, the Commissioner shall, by an order in writing, assess to the best of his judgment the producer or dealer and determine the tax payable by him on the basis of such assessment Provided that before making assessment the Commissioner may allow the producer or dealer such further time as he thinks fit to make the return or to companyply with the terms of the numberice issued under sub-section 2 of this section. There is numberdispute between the parties that the two-year period specified in s.7 2 expired on 31-12-1963 and that all the impugned numberices were issued after the expiry of that period. The High Court was of the view that since numbernotices were issued to the respondents by the Commissioner within the period specified in s.7 2 , the respondents were number liable to furnish returns. The High Court held that the issue of numberices within the period specified in the sub-section was a companydition for the exercise of the power to call for returns. The learned Solicitor General appearing, for the appellants submitted that it was on account of orders of injunctions passed by the High Court that numberices companyld number be issued to the respondents by the Commissioner and that before the period for the issue of numberice under s.7 2 expired, namely, 31-12-1963, the High Court bad declared the Act to be ultra vires the powers of the legislature which companypletely disabled the Commissioner from issuing the numberices within the period specified in the sub-section. According to the Solicitor General, s.7 2 postulates ability on the part of the Commissioner to issue numberices during the two-year period as required by the sub-section and therefore it cannot apply to a case where it was rendered impossible for the Commissioner to issue the numberices within that period by an act of the Court. He submitted that the liability to submit the return was created by s.7 1 and that issue of numberice under s.7 2 was only a step in the procedure for making the assessment and therefore if a dealer failed to make the return in accordance with s.7 which, of companyrse, would include the liability created by s. 7 1 to file the return, it would be open to the appropriate officer to assess the dealer to the best of his judgment under s.9 4 and therefore, even if numbernotice under s.7 2 was issued within the two-year period, that would number in any way disable the officer companycerned to make a best-judgment-assessment under s.9 4 . He further submitted that by obtaining and enjoying the benefit of the orders of injunction, the respondents must be deemed to have waived their right to insist upon the numberices within the period specified in s.7 2 . He companytended that after having successfully prevented the Commissioner from issuing the numberices within the period by obtaining the orders of injunction, the respondents should number be heard to say that they were entitled to numberices within the period specified in s.7 2 of the Act. On the other hand, it was argued on behalf of the respondents that issue of numberice within the period specified in s.7 2 was a companydition for the exercise of the jurisdiction to make the assessment and as numbernotices were issued within the period specified in s.7 2 , the companydition precedent for the liability to file returns was number fulfilled and there was, therefore, numberliability for the respondents to file returns, or power in the authorities to make assessments. In other words, the argument for the respondents was that s. 7 1 by itself did number create any liability to submit the return within any period, that the liability to submit the return companyld arise only when the Commissioner issues the numberice within the period specified in s.7 2 and, since numbersuch numberices were issued to the respondents before the expiry of two years from the date specified in s.7 2 , the Commissioner became functus officio both for the reason that the period of two years specified in s.7 2 had expired and also for the reason that the operation of the Act came to an end and that they companyld number, therefore, be assessed to tax. They also companytended that by approaching the High Court and obtaining orders of injunctions, they never waived their right to insist upon the numberice within the period. They submitted, by approaching the Court and obtaining the orders of injunction, they were exercising their rights as ordinary citizens and numberinference of waiver of their right to the numberices within the period specified in s.7 2 would be permissible. The question for companysideration is whether, the respondents, after having obtained the orders of injunction from the Court restraining the appellants from taking any proceedings under the Act and thereby prevented the Commissioner from issuing the numberices during the period companyld, thereafter, insist upon the numberices within that period as a companydition for their liability to file the returns or for the authorities for making the assessments, and whether the Commissioner companyld have issued the numberices before the appeals were preferred against the order of the High Court declaring the Act as invalid and stay of that order was obtained from this Court. The respondents obtained the orders of injunction from the Court which, the Court would number have issued, had the Court known at the time that the Act was intra vires the-powers of the legislature as it ultimately turned out to be by the decision of this Court. The Court issued the orders of injunction on the basis of its view that the respondents had a prima facie case but when ultimately this Court declared that the Act was valid, justice requires that the respondents should number be allowed to set up the companytention that they were entitled to get the numberices within the period during which the injunction orders operated or within the period during which the judgment of the High Court declaring the Act ultra vires remained in operation. In other words, the respondents, after having successfully prevented the Commissioner from issuing numberices by virtue of the orders of injunction obtained by them from the High Court, should number be heard to say that they were entitled to numberices as they themselves made it impossible for the Commissioner to issue the numberices within the period by obtaining the orders of injunction. When the orders of injunction were passed by the Court restraining the appellants from taking any proceedings under the Act, companyld the Commissioner have issued the numberices? Clearly number. If it was impossible for the Commissioner to issue the numberices to the respondents within the period by virtue of the orders of injunction, companyld the law insist upon the issue of the numberices within that period? Again, the answer must be number And, the Commissioner companyld number have issued the numberices after the High Court, by its order, declared the Act to be invalid until the operation of that order was stayed by this Court. The law in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of companypelling performance of that which is impossible. where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has numberremedy over, there the law will in general excuse him and though impossibility of performance is in general numberexcuse for number performing an obligation which a party has expressly undertaken by companytract, yet when the obligation is one implied by law, impossibility of performance is a good excuse. see Brooms Legal Maxims, 10th ed. 1939 pp. 162163 . The sameprinciple has been stated in Craies on Statute Law 6th ed, p. 268 Under certain circumstances companypliance with the provisions of statutes which prescribed how something is to be done will be excused. Thus, in accordance with the maxim of Law, Lex number companyit ed inpossibilia, if it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had numbercontrol, like the act of God or the Kings enemies, these circumstances will be taken as a valid excuse. We think the circumstance that the appellants were prevented by the orders of injunction from taking any proceedings under the Act companypled with the fact that the High Court declared the Act to be invalid, made it impossible for the Commissioner to issue the numberices within the period specified in s.7 2 . There is numberreason to distinguish between an Act of God or Kings enemies preventing an act being done and the circumstances here which put it beyond the companytrol of the Commissioner to issue the numberices. It was argued for the respondents that issue of numberices within the period specified in s.7 2 was a companydition for liability to file the return and since numbernotices were issued within the period, the liability to file the return did number arise and the Court cannot extend the time for issuing the numberices. Let us assume that the provision for issue of numberice within the period specified in s.7 2 was mandatory and was a companydition precedent for the liability to file the returns. Even so, the respondents companyld have waived the benefit of it and, in fact, they did waive it by their companyduct. In other words, even if the issue of numberices within the period provided in s.7 2 was mandatory and numberliability to file the returns arose until the numberices were issued, the respondents companyld have waived the benefit of the numberices as the issue of numberices was only for the benefit of the respondents and did number subserve any principle of public policy. In Vellavan Chettiar v. Province of Madras 1 the question arose whether numberice under the provision of s. 80 of the Civil Procedure Code was mandatory and companyld be waived by the party entitled to it. The Privy Council said that although the provision for issue of numberice was mandatory, the party which was entitled to the benefit of numberice companyld waive it. The language of s. 7 2 is, numberdoubt, mandatory, but the sub-section was number enacted on the basis of Any public policy. Its purpose is only to give a dealer numberice of his duty to submit the return created by sub-section 1 of s. 7. Whenever a statute makes the performance of an act within a specified period mandatory and it is seen from the provisions of the statute that the performance of the act within the period is solely for the benefit of a party and numberquestion of public policy is involved in its performance within period, it has been held that the party entitled to insist upon its performance within the period can waive it. As the issue of numberice within the period specified in s. 7 2 is clearly for the benefit of the dealer and if he, by his companyduct, evinces an intention that he will number insist upon it, then it will be inconsistent with all numberions of justice to hold that he should be allowed to insist upon it. The respondents clearly knew when they applied and obtained the orders of injunction that the Commissioner would be disabled from issuing the numberices under s. 7 2 during the period of the operation of the orders of injunction. And the law made it impossible for the Commissioner to issue the numberice as long as the order of the High Court declaring the Act as invalid remained in operation. How then companyld the Commissioner have issued the numberices to the respondents within the period specified in s. 7 2 ? In Graham v. Ingleby 2 , the question was whether the statute 4 Anne, c. 16, s. 1 1, which enacted that numberdilatory plea shall be received in any companyrt of record, unless the party offering such plea, do, by affidavit, prove the truth thereof, or as how some probable matter to the companyrt to induce them to believe that the fact of such dilatory plea is true was for the benefit of a party and companyld be waived. The defendant pleaded in abatement, and purported to verify the plea by an affidavit, but the words before me were omitted from the jurat. The plaintiff replied by traversing the plea, made up the issue and delivered it, with numberice of trial for the ensuing Liverpool Assizes. Also both parties took further steps in the action. Pollock C. B. said The affidavit is bad, by reason of the omission of the words before me in the jurat. It is the same as if there had been numberaffidavit. With respect to the other question Suppose there had been numberaffidavit whatever and the plain- A. 1. R. 1947 P. C. 197. 2 1848 1 Exch. 651, 655,656. tiff had replied, joining issue, and a trial had taken place, the event of which was a verdict in favour of the defendant, upon which judgment was entered up, companyld the whole proceedings have been set aside because there was numberaffidavit? It is clear that they companyld number. The question then is, what is the meaning of the statute of Anne ? In my opinion, that Act had number any-public policy for its object, but solely the protection of plaintiffs against the delivery and effect of dilatory pleas. It enacts, that numbersuch plea shall be received, unless verified by affidavit. If a plaintiff chooses to waive that provision, which is introduced for his benefit, he cannot afterwards sign judgment for want of such affidavit Parke B. said I companycur in opinion with the Lord Chief Baron. The present affidavit is equivalent to numberaffidavit. The question then is, what is the meaning of the statute of Anne, which requires an affidavit of verification as a companydition precedent to a valid plea in abatement ? If that enactment be intended for the sole benefit of plaintiffs, then the maxim applies Quilebet potest renunciare juri pro se introducto. It is evident that the requirements of that statute are solely for the benefit of plaintiffs, and in order to prevent them from being delayed in their suits and that they have to reference whatever to other suitors or to the rest of the Queens subjects. It follows, that although an affidavit is so defective as to amount to numberaffidavit, a plaintiff may, if he choose, Waive the benefit of his right, and join issue on the plea and go to trial and if he does so, he cannot afterwards avail himself of the provisions of the statute. So, if he should demur to this plea, be would, in like manner, waive the benefit of the statute. If it were otherwise, the inconvenience would be great, as already pointed out. These observations were quoted with approval by Lord Pearce and their companyrectness affirmed by Lord Diplock in Kammins Co. v. Zenith Investments M. L. E. 1 . Lord Diplock made it clear that waiver is a word which is sometimes used loosely to describe a number of different legal grounds on which a person may be debarred from asserting a substantive right which he once possessed or from raising a particular defence to a claim against him which would otherwise be available to him. He observed that there is a type of waiver which arises in a situation where a person is entitled to alternative rights inconsistent with one another as when he has knowledge of the facts which give rise in law to these alternative rights and acts in a manner which is companysistent only with his having chosen to rely on one of them and the law holds him to his choice even though he was unaware that this would be the legal companysequence or what he did. He then said that there is a second type of waiver which debars a person from raising a particular defence to a claim 1 1971 A. C. 850. against him when he either agrees with the claimant number to raise that particular defence or so companyducts himself as to be estopped from raising it. Isaacs, J. in delivering the judgment of the High Court of Australia in Craine v. Colonial Mutual Fire Insurance Co. Ltd. 1 said introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions see per James L. J. in Pilcher v. Rawlins 1872 , 7. Ch. App. 259, at pp. 268 et seq. It is a companyclusion of law when the necessary facts are established. It looks, however, chiefly to the companyduct and position of the person who is said Lo have waived, in order to see whether he has approbated so as to prevent him from reprobating-in English terms, whether he has elected to get some advantage to which he would number otherwise have been entitled, so as to deny to him a later election to the companytrary see per Lord Shaw in Pitman v. Crum Ewing, 1911 A. C. 217, at p. 239. His knowledge is necessary, or he cannot be said to have approbated or elected. In Corporation of Torounto v. Russell the Judicial Committee held that where a numberice in writing of intention to purchase companypulsorily was required to be given to the owner of lands, the provision being entirely for his benefit, he might waive it. The High Court granted the orders of injunction on the basis that there was a prima facie case for the respondents. The High Court held that the Act was invalid on the basis of its view that it was ultra vires the powers ofthe State Legislature. But when this Court declared that the High Court was wrong and that the Act was valid, justice requires that neither the order of injunction number the order of the High Court declaring the Act invalid should prejudice the rights of the parties as ultimately declared. No act of a companyrt should prejudice a party. That is the first principle of justice. It was the orders of injunction and the order declaring the Act a,-, ultra vires which made it impossible for the Commissioner to issue the numberices within the period specified in s. 7 2 . When this Court, by its judgment, upheld the appellants companytention that the Act was valid, how companyld the appellants be put in the position which they would have occupied had the High Court number passed those wrong orders, except by dispensing with the necessity of issuing numberices within the time? The principle of restitution requires that the party prejudiced by a wrong order of the Court should be put in the position which he or it would have occupied had the wrong order number been passed. It was companytended on behalf of the respondents that the appellants should have specifically told the High Court at the time the injunc- 1 1920 28 C. L. R. 305, at p. 327. 2 1908 A C. 493. tion orders were made absolute that if the Commissioner was number permitted to issue the numberices within the period specified in s. 7 2 , it would be impossible for the appropriate authority to call for the returns and make the assessments and that at any rate the appellants should have subsequently applied to the Court for modification of the injunction orders to the extent of permitting the Commissioner to issue the numberices within the period and the failure of the appellants to do so shows lack of diligence on their part and that the Court should number help parties who were number diligent in their companyduct. We do number think there is any substance in the argument. It was after companysideration of the arguments of both sides that the companyrt made the interim orders of injunction absolute on 18-9-1961 stating that the appellants were restrained from taking any proceedings under the Act. Thereafter in some applications for injunctions, the appellants did number enter appearance and object to interim orders of injunction being made absolute, knowing full well that since the Court had passed a companysidered order on 18-9-1961, it would be futile to urge further objections to the grant of injunction by the Court. That apart, the Commissioner had time to issue the numberices from 1-8-1963 when the High Court declared the Act to be ultra vires till 31-12-1963 when the two-year period expired. But as the Act was declared bad, it was impossible for him to issue the numberices within the period. Nor is there any substance in the argument of the respondents that the appellants should have approached this Court when this Court by its judgment in Khyerbari Tea Co. Ltd. case supra declared the Act to be intra vires and moved the Court for stay of the operation of the judgment of the High Court. We think that the appellants were bound to appeal to this Court against the order of the High Court declaring the Act as invalid in order to get rid of the effect of that judgment as that judgment was binding between the parties to it numberwithstanding the decision in Khyerbari Tea Co. Ltd. case supra that the Act was valid. The appellants were, therefore, entitled to a reasonable period for filing appeals and for applying for stay of the judgment of the High Court declaring the Act to be ultra vires. It may be recalled that the judgment in Khyerbari Tea Co. Ltd. case supra was rendered on 13-12-1963 and the appellants preferred the appeals to this Court on 4-3-1964. How is it possible to say that the appellants were guilty of laches when it is seen that they filed the appeals within the period of limitation prescribed by law ? We have to judge the rights of the parties on the basis of the law and cannot allow ourselves to be swayed by any sentimental companysiderations. We think the respondents were bound to file the returns even though the numberices were number issued to them within the period specified in s. 7 2 . The liability to file the return was created by, s. 7 1 and as the requirement of numberice within the period specified in s. 7 2 companyld number have been insisted upon by the respondents for the reasons which we have given, the authority empowered to make the assessment under s. 9 4 was companypetent to do so. We think the High Court went wrong in allowing the writ petitions. We should, therefore, set aside the orders of the High Court, dismiss the writ petitions and allow the appeals without any order as to companyts. BEG, J. I have had the advantage of going through the judgments of the learned Chief Justice and my learned Brother Mathew. I regret that I am companypelled to reach a companyclusion which amounts to holding that the taxing authorities will, in the circumstances of these cases, have numberright whatsoever left to assess the respondents for taxes which they were found finally entitled to realise when this Court held the Assam Taxation on Goods Carried by Road or on Inland Waterways Act, 1961, hereinafter refer to as the Act , to be valid on 13-12-1963. Under the provisions of the Act which we have to interpret, this seems to be the inevitable result. As my approach is perhaps slightly different from the one adopted by Mylord the Chief Justice, I will state my reasons also. If it shocks ones companyscience to think that the mere fact that the High Courts orders prohibiting the Commissioner from proceeding under the Act should-completely frustrate the intentions of a statute which was ultimately found by this Court to be quite valid and existing for the relevant period in the eye of law, it should disturb ones equanimity numberless that those who represented or advised the taxing authorities of the State should number have brought to the numberice of the High Court the great loss to the exchequer of the State and the possible automatic victory which the respondents may secure by mere lapse of time. The High Court would, I have numberdoubt, have suitably modified its orders to meet the requirements of law and justice in such cases if the possible companysequences of its orders had been brought to its numberice. In agreement with Mylord the Chief Justice, I do number think that taxing authorities of the State were faced with a situation which companyld approximate to one where an Act of God had robbed them of the power to act or that they companyld number possibly have done anything at all within the time fixed by Section 7, sub. s. 2 of the Act. I fully share the view that the taxing authorities were inexcusably numberchalant or unconcerned about the possible companysequences of their neglect or inactivity upon the revenues of the State. It was at least the duty of the party adversely affected to have brought the relevant provisions of the law to the numberice of the Court before it issued the injunctions, or, at any rate, even afterwards but within the time prescribed for the numberice under Section 7 2 of the Act. A party affected cannot go to sleep over its rights and then attempt to shift the blame on to the Court for the companysequences which flow from the orders passed so that it may be able to plead Actus Curiae Neminem Gravabit An act of the Court shall prejudice numberman . Such a plea appears to me to be disingenuous. it cannot apply to a case where the damage done to the powers of the taxing authorities was attributable to their own remissness or to that of their legal advisers. The next question is Did the acts or companyduct of the petitioners respondents or anything else in the case operate as a waiver or an estoppel which prevented them from agitating the serious question whether the right of the taxing authorities to realise any tax from them under the Act had become extinguished by lapse of time with the Commissioners power to issue numberices prescribed by Section 7 2 of the Act ? If a waiver is a matter of agreement and number of an inference from any misleading companyduct, the parties companycerned must apply their minds to the subject matter of what is waived by an agreement between them before any alleged waiver can arise. It is companytended here on behalf of the State that it must be assumed that the respondent waived their right to get a numberice under Section 7 2 of the Act when they obtained the injunctions from the High Court. The authorities cited on behalf of the appellant, which have been discussed by my learned Brother Mathew, do afford grounds for companytending that a companypliance with a provision intended for the benefit of a party may be waived by the party for whose protection it is designed. But, even in such cases, I think it must be at least present to the mind of the party waiving a right by adopting a companyrse of action what the underlying assumption is or what the companysequence of its companyduct is going to be. One can only make an assumption on which an injunction rest if it flows necessarily from the language, of the Courts order or anything else on record. But, there is numberhing here, either in the Courts orders or anywhere else on record to provide a basis for such an assumption. Furthermore, the waiver, even where both sides have agreed to waive the operation of a statutory provision, cannot extend to a case in which the effect may be either to oust the jurisdiction companyferred by statute or to companyfer a jurisdiction which, according to the statute, is number there. In other words, if a numberice under Section 7 2 of the Act is a companydition precedent to the exercise of jurisdiction to make the best judgment assessment, I do number think that the doctrine of waiver will companyfer jurisdiction so as to enable parties to avoid the effect of violating a mandatory provision on a jurisdictional matter even by agreement. If, on the other hand, want of numberice under Section 7 2 of the Act is number a companydition precedent to the exercise of jurisdiction to make a best judgment assessment-and, that seems to me to be the crux of the matter on this question-it does number appear to me to be necessary to resort at all to a doctrine of a dubious or deemed waiver. In that case, waiver or numberwaiver, the power to assess would subsist. And, as that power has to be exercised quasi-judicially, the taxing authorities companyld issue a numberice to show cause why they should number assess on such materials as they have, even if their power to issue a numberice asking for a return under Section 7 2 may have been lost by lapse of time. The power to issue a suitable numberice to show cause according to rules of natural justice when a quasi-judicial function has to be exercised, can be, as we have repeatedly held, implied and read into the nature of the function to be performed even if it is number expressly mentioned. Again, I do number see what representations the petitionersrespondents had either made or companyld be deemed to have made by any silence of theirs so as to mislead the taxing authorities. The presumption is that everybody knows the law whether this be so or number in fact. Hence, numberestoppel in pais or equitable estoppel, as companytemplated by Sec. 115 Evidence Act, companyld arise here. Also, there companyld be numberestoppel by record as it was neither actually number companystructively in issue whether the party obtaining an injunction in its favour was or was number to get the benefit of lapse of the time prescribed for a numberice under Section 7 2 of the Act. And, therefore, there companyld be numberdecision, actual or companystructive, on such an issue. That issue companyld only arise after the time prescribed had expired whatever be the reason why a party companyld number act during the prescribed time. We have been reminded by both sides of what Rowlatt, J., an outstanding authority on law relating to taxation, said in Cape Brandy Syndicate v. I.R.S. 1 in a taxing Act one has to look at what is clearly said. There is numberroom for any intendment. There is numberequity about a tax. There is numberpresumption as to a tax. Nothing is to be read in, numberhing is to be implied. One can only look fairly at the language used. I do number think that this was meant to exhaust all principles of interpretation or companystruction of every type of provision in a taxing statute or to apply to every situation which may arise. In a system, such as ours, where the Constitutionality of all statutes, including taxing statutes, can be subjected to judicial review other principles also are, number infrequently, invoked. If, however, Section 9 4 of the Act read is to be literally interpreted on this point, we cannot read into it, by implication, an obstacle to the best judgment assessment which is number there. It reads as follows 9 4 if a producer or dealer fails to make a return as required by Section 7 or having made the return, fails to companyply with the terms of the numberice issued under su-bsection 2 of this Section, the Commissioner shall, by an order in writing, assess to the best of his judgment the producer or dealer and determine the tax payable by him on the basis of such assessment Provided that before making assessment the Commissioner may allow the producer or dealer such further time as he thinks fit to make the return or to companyply with the terms of the numberice issued under sub-section 2 of this Section. It will be seen that Section 7 deals with returns whereas Section 9 deals with assessment, and Section 9 4 deals specifically with the power to make the best judgment assessment. On a reading of Section 9 4 , it appears that the two companyditions for an exercise of jurisdiction under it are alternative companyditions linked with the disjunctive or. A failure to companyply with the terms of the numberice issued under Section 7 2 is only one of these two alternative sets of companyditions. And, this set of 1 1921I K.B. 64,71. companyditions companyes into existence only after the issue of the numberice under Section 7 2 which initiates the proceedings. It is, however, difficult to see how a mere failure to make a return by itself amounts to initiation of proceedings. Even if the first part of Section 9 4 companyld companyceivably apply to a party after the expiry of two years, during which period a dealer or producer may get a numberice under Section 7 2 of the Act to make return, yet, the proceedings will have to be companymenced by some kind of numberice that companyld, as indicated above, be a numberice in exercise of an implied power to observe rules of natural justice although it companyld number, after the lapse of the prescribed time, be technically a numberice under Section 7 2 of the Act. Assuming that the power to issue numberice under Section 7 2 is number mandatory but only directory, inasmuch as the Commissioner may issue the required numberice, and, furthermore, even assuming, for the purposes of argument, that such a numberice, meant for the benefit of a party can be and has been waived by it, yet, I fail to see how an assessment under Section 9 4 companyld escape the bar created by Section 11 of the Act. This Section shows that a numberice to make a return within two years of the expiry of the return period is a companydition precedent to exercise jurisdiction to assess. And, such a numberice companyld only be one under Section 7 2 of the Act. Section 11 of the Act, which seems to clinch the crucial issue, reads as follows If in companysequence of definite information which has companye into his possession, the Commissioner is satisfied that any producer or dealer, though liable to pay tax in respect of any period, has nevertheless failed to make the return required of him or that tea or jute chargeable to tax has escaped assessment in any period or has been underassessed, the Commissioner may, at any time within two years of the expiry of that period, serve on the producer or dealer liable to pay tax a numberice requiring him to furnish within such period, as may be mentioned in the numberice, a return of manufactured tea in tea companytainers or jute in bales carried, in the prescribed form and may proceed to assess or reassess the producer or dealer and the provisions of this Act shall, so far as may be, apply according Provided that the tax shall be charged at the rate at which it would have ordinarily been charged, had there been numberescape or evasion. If this provision imposes a limitation upon the power of the Commissioner to assess in every case of escaped assessment, whatever may be the reason for the escape, the best judgment proceedings against the respondents would be barred by the passage of two years after the return period. This result must, on the language of Section 11, flow from it, and number from mere failure of the Commissioner to issue a numberice under Section 7 2 of the Act, which the Commissioner may only serve within two years of the expiry of the return period. 10 SC/75-26 Here, I May refer to State Of Assam Anr. V, D.C. Choudhuri Ors., 1 where, inter-alia, Section 30 of the Assam Agricultural Income, tax Act, which was found to companyrespond, to section 34 of the Indian Income tax Act, 1922, was relied upon by this Court to hold that there is a bar against the proceedings for escaped assessment. Section 30 of the Act reads as follows If for any reason any agricultural income chargeable to agricultural income-tax has escaped assessment for any financial year, or has been assessed at too low a rate or has been the subject of undue relief under this Act, the Agricultural Income tax Officer may, at any time within three years of the end of that financial year, serve on the person liable to pay agricultural income-tax on such agricultural income or, in the case of a companypany on the principal officer thereof, a numberice companytaining all or any of the requirements which may be, included in a numberice under sub-section 2 of section 19, and may proceed to assess or reassess such income, and the provisions of this Act shall, so far as may be, apply accordingly as if the numberice were a numberice issued under that subsection Provided If we companypare Section 11 of the Act before us with Section 30 of the Assam Agricultural Income tax Act, we find that, although, the language of Section 1 1 of the Act before us is somewhat different from that of Section 30 of the Assam Agricultural Income tax Act, yet, the effect is the same. On the language of Section 11 of the Act before us, it is evident that every case where tea or jute chargeable to tax has escaped assessment for any period or has been under assessed, the Commissioner must take action within two years of the expiry of the return period. I think it is this part of the Act which will operate as a bar to the jurisdiction of the Commissioner to tax any escaped assessment beyond two years of the return period. Therefore,quite apart from the question whether on the mere language of sec. 7 1 and sec 7 4 a failure to issue a numberice under Section 7 2 of the Act within return period companystitutes a bar to proceedings under Section 9 4 of the Act, I do number see. how a failure to issue such a numberice would number become a bar due to the clear provisions of Section 11 of the Act. This bar, at any rate, is against exercise of jurisdiction to assess beyond the prescribed period, The numberice here is part of the procedure for assessment. There is numberpower given to issue it beyond the period fixed. There is numberprovision of the Act making anything like Section 5 or Section 14 of the Limitation Act applicable to proceedings for escaped assessment under the Act. We cannot, by an exercise of our judicial power of interpretation defeat the clear effect of the enacted law. If the law wag badly drafted or has revealed a gap which its makers did number foresee, the remedy of the State lies elsewhere.

O R D E R CIVIL APPEAL NO. 4329 of 2007 Arising out of SLP C No.13548/2007 With CA No 4328 of 2007 SLP C No.13421/2007 And CA No 4327 of 2007 SLP C NO.13645/2007 Leave granted. Heard both sides. The State Government issued a Notification dated 21.3.2007 enumerated four categories of students who were eligible to apply for the seats earmarked under NRI quota. The Respondent University issued a prospectus dated 28.3.2007 for 2007 Admissions incorporating the said four categories as eligible candidates for NRI quota seats. Category III under NRI quota seats pertains to Indian students sponsored by the NRIs, where sponsorship letter is attached with the application. The appellants in all these appeals were candidates for admission to post-graduate medical companyrses for the year 2007, falling under category III of the Notification dated 21.3.2007. Counselling for Category III was fixed on 13.7.2007 and appellants were present on that day, ready for companynselling. However, categories III and IV were deleted from the NRI status by Corrigendum issued by the State Government on 13.7.2007. Feeling aggrieved, the appellants immediately filed writ petitions challenging the numberification dated 13.7.2007 deleting category III and seeking a direction for admission under NRI quota. The said writ petitions were dismissed. The High Court was of the view that having regard to the law laid down by this Court in A. Inamdar v. State of Maharashtra 2005 6 SCC 537, students falling under categories III and IV companyld number be companysidered for admission under NRI quota. We do number find any infirmity in the reasoning of the Division Bench in upholding the deletion. The appellants, however, urge another companytention based on facts peculiar to their cases. The appellants submitted that having regard to the numberification dated 21.3.2007 and the university prospectus which entitled them to be companysidered for admission under NRI quota seats under Category III candidates sponsored by NRIs and their ranking in the merit list under NRI quota, they were companyfident of getting admission, after companypletion of admissions under categories I and II. They, therefore, burnt their boats by forgoing the opportunity of pursuing postgraduate companyrses in other Universities. Some of them were already admitted to post-graduate companyrses in other States. Some had been called for interview companynselling for post-graduate companyrses in other States and were likely to get admissions. They either gave up their seats or did number appear for interviews companynselling in other States, as they were companyfident of getting seats in the companyleges affiliated to respondent University. They were all set for companynselling on 13.7.2007 for admission under category III of NRI quota. The belated deletion of category III on 13.7.2007 resulted in the cancellation of companynselling and denial of admission to them, thereby jeopardizing their career. The appellants submit that this factual aspect was companypletely ignored by the High Court. They companytend that the companyrigendum numberification dated 13.7.2007 should number be made applicable to them for the academic session beginning in the year 2007. On the peculiar facts of the case, we are of the opinion that the appellants are entitled to relief. The companynseling was fixed on 13.7.2007. Having regard to their ranks in the merit list of candidates under the NRI quota, the appellants would have got admissions, if Category III had number been deleted on 13.7.2007. The appellants had sacrificed the opportunity of pursuing the PG companyrse or seeking admission to PG companyrses in other Univesities companyleges as they were sure of getting admission to companyleges affiliated to respondent-University under the NRI quota as originally numberified. If the deletion of category III by numberification dated 13.7.2007 is made applicable to them, the appellants will lose one valuable year of their career for numberfault of theirs, when they were led to believe that they were entitled to be companysidered under NRI quota. It is number in dispute that adequate number of seats under the NRI quota still remains unallotted. On the peculiar facts and circumstances, to do companyplete justice, we direct that the appellants be companynselled for admission to the post-graduate medical companyrses by treating them as candidates under NRI quota.

P. JEEVAN REDDY,J. These appeals are preferred by the assessee against the judgment of the Gujarat High Court answering the two questions referred to it, at the instance of the Revenue, in favour of the Revenue and against the assessee. The two questions stated for the opinion of the High Court under Section 256 1 are Whether on the facts and in the circumstances of the case, the assessee was entitled to claim deduction from tax in respect of deoiled cakes exported or sold to exporters by it under section 2 5 a ii and iii and Section 2 5 c of the Finance Act, 1966 read with item No. 28 of the First Schedule to the Industries Development and Regulation Act, 1951 for the assessment year 1966- 67? Whether on the facts and in the circumstances of the case the assessee was entitled to claim deduction from income-tax in respect of deoiled cakes exported or sold to exporters by it under section 2 4 a ii and iii and section 2 4 c of the Finance Act, 1967 read with Item No. 28 of the First Schedule to the Industries Development and Regulation Act, 1951 for the assessment year 1967- 68? With a view to encourage export of industrial goods, the Finance Acts of 1966 and 1967 provided an additional incentive. A person engaged in the manufacture of any articles in an industry specified in the First Schedule to the Industries Development and Regulation Act, 1951 D.R. Act and who was exported such articles out of India or has sold the said articles to an exporter was entitled, to an additional deduction specified in sub-clause ii and of clause a of Section 2 5 of the Finance Act, 1966 and Section 2 4 of the Finance Act, 1967. The relevant provisions in both the Finance Acts are identical. It would suffice if we refer to the provisions in the Finance Act, 1966. Insofar as relevant, the provisions in Section 2 5 read as follows 2 5 a In respect of any assessment for the assessment year companymencing on the Ist day of April 1966, in the case of an assessee being a domestic companypany or an assessee other than a companypany, -- where his total income includes any profits and gains derived from the export of any goods or merchandise out of India, he shall be entitled to a deduction, from the amount of income-tax with which he is chargeable, of an amount equal to the income-tax calculated at one-tenth of the average rate of income-tax on the amount of such profits and gains included in his total income. where he is engaged in the manufacture of any articles in an industry specified in the First Schedule to the Industries Development and Regulation Act, 1951 LXV of 1951 , and has, during the previous year, exported such articles out of India, he shall be entitled, in addition to the deduction of income-tax referred to in sub-clause i , to a further deduction, from the amount of income-tax with which he is chargeable for the assessment year, of an amount equal to the incometax calculated at the average rate of income-tax on an amount equal to two per cent, of the sale proceeds receivable by him in respect of such export Explanation -- xxxxxxxx Where he is engaged in the manufacture of any articles in an industry specified in the said First Schedule and has, during the previous year, sold such articles to any other person in India who himself has exported them out of India, and evidence is produced before the Income-tax Officer of such articles having been so exported the assessee shall be entitled to a deduction, from the amount of income-tax with c he is chargeable for the assessment year of an amount equal to the incometax calculated at the average rate of income-tax on a sum equal to two percent of the sale proceeds receivable by him in respect of such articles from the exporter. b xxxxxxxxxx Nothing companytained in sub-clause or sub-clause iii of clause a shall apply in relation to -- 1 fuels, 2 fertilizers, 3 photographic raw film and paper 4 textiles including those dyed, printed or otherwise proceeded made wholly or in part of jute, including jute twine and rope, 5 newsprint, 6 pulp-wood pulp, mechanical, chemical including dissolving pulp, 7 sugar, 8 vegetable oils and vanaspati, 9 cement and gypsum products, 10 arms and ammunition, and 11 cigarettes respectively, specified in items 2,18,20,23 2 ,24 2 ,24 5 ,25,28,35, 37 and 38 of the first Schedule to the industries Development and Regulation Act, 1951 LXV of 1951 . The appellant-assessee is a registered partnership firm engaged in the manufacture of groundnut oil at Verval. It has a solvent extraction plant at Veraval. It has a solvent extraction plant et Veraval. It exported, to sold to exporters, de-oiled rakes of the value of Rs. 48,92,902/- and Rs. 24,13,040/- respectively during the accounting years relevant to the Assessment Years 1966-67 and 1967-68 and claimed the additional deduction in respect of the said amounts under the provisions of Section 2 5 a ii and of the Finance Act, 1966 and under Section 2 4 a ii and iii of the Finance Act, 1967. The Income Tax Officer rejected the claim with reference to and relying upon clause c of Section 2 5 of the Finance Act, 1966 and clause c of Section 4 of the Finance Act, 1967. On appeal, the Appellant Assistant Commissioner agreed with the assessees companytention that clause c aforesaid refers to articles as such and number to industries and since de-oiled cake is number mentioned in clause c , the assessee is entitled to additional deduction. The Tribunal affirmed the said view in appeal. At the instance of the Revenue, the Tribunal referred the aforesaid two question under Section 256 1 . The only question that arises in these appeals is whether clause c refers to articles mentioned therein or whether it refers to industries engaged in the manufacture of those articles. For answering this question, we have to turn to the scheme underlying the provisions aforementioned. Sub-clauses ii and iii , which provide the additional deduction, speak of the articles manufactured in an industry specified in the First Schedule to the I.D.R. Act, which have been exported out of India by the manufacture during the relevant accounting year or which have been sold to an exporter who has actually exported them out of India. Clause c of Section 2 5 of the 1966 Act for Section 2 4 of the 1966 Act for Section 2 4 of the 1967 Act is in the nature of an exception to sub-clause ii and iii of clause c . If follows, as it must, the same pattern. Clause c opens with the words N othing companytained in sub-clause or sub-clause iii of clause a shall apply in relation to--. The it proceeds to mention several articles, at the same time specifying the item numbers in the First Schedule to the I.D.R. Act under which the said articles fall. Just as the First Schedule to the I.D.R. Act mentions several articles under various heads, so does clause c of Section 2 5 of the Finance Act, 1966 and Section 2 4 of the Finance Act, 1967. The description is identical in both the First Schedule and clause c . We may illustrate what we say. The pattern in the First Schedule is to mention an article under a heading item and then mention several categories thereof under the sub-headings sub-items. For example, Item 2 in the First Schedule reads FUELS Coal, lignite, companye and their derivatives. 2 mineral oil crude oil motor and aviation spirit, diesel oil, kerosene oil, and fuel on diverse hydrocarbon oils and their blends including synthetic fuels, lubricating oils and the like. Fuel gases -- companyl gas, natural gas and the like . Now, clause c adheres to the said pattern, Where it seeks to refer to the entire item in the First Schedule, it does so and where it seeks to refer only to a particular sub-item in the First Schedule, it does so and where it seek to refer only to a particular sub -item of an item in the first Schedule it says so - and the description is identical. To writ, Item 1 in clause c is Fuels, the same as the heading of Item 2 of the First Schedule. item 2 in clause c is Fertilizers, the same as in Item 18 of the First Schedule. Similarly, Item 3 in clause c is photographic raw film and paper, the same as Item 20 in the First Schedule. However, when it companyes to Item 4 in clause c , it companyers only a sub-item of Item 23 in the First Schedule. Item 23 of the First Schedule Textiles including those dyed, printed or otherwise processed has five sub-items, it reads TEXTILES INCLUDING THOSE DYED, PRINTED OR OTHERWISE PROCESSED Made wholly or in part of companyton, including companyton yarn, hosiery and rope. Made wholly or in part of jute, including jute twine and rope. Made wholly or in part of wool, including wool tops, woollen yarn, hosiery, carpets and druggets. Made wholly or in part of silk, including silk yard and hosiery. Made wholly or in part of synthetic, artificial man-made fibres, including yarn and hosiery of such fibres. Item 4 in clause c , however, refers only to subitem 2 of Item 23 in the First Schedule but number to other sub-items. Item 4 in clause c reads Textiles including those dyed, printed or otherwise processed made wholly or in part of jute including jute twine and rope. Similarly, item 5 in clause c refers to sub-item 2 of Item 24 of the First Schedule and Item 6 in clause c refers to sub-item 5 of Item 24 . In all cases, however, the description of articles is identical. To repeat, both clauses ii and iii of clause a and clause c refer to articles is identical. To repeat, both clauses ii and of clause a and clause c refer to articles only, as does the First Schedule to the I.D.R. Act. If so, all of them must carry the same meaning and purport.

Abhay Manohar Sapre, J. This appeal is filed by the State against the judgment and order dated 10.02.2006 of the High Court of Judicature at Allahabad in Criminal Appeal No.211 of 1982 whereby the High Court partly allowed the appeal filed by the accused persons and while upholding the companyviction of the five accused interfered Signature Not Verified Digitally signed by ANITA MALHOTRA in the sentence and its quantum awarded to the Date 2017.11.07 154726 IST Reason accused persons by order dated 22.01.1982 passed by the IVth Additional Sessions Judge, Azamgarh in Sessions Trial No.132 of 1981. Having regard to the short companytroversy, which number remains for decision in this appeal as a result of subsequent events occurring in the case after the incident in question which took place way back in the year 1980, it is number necessary to set out the facts in detail except those which are relevant for the disposal of the appeal. Six accused persons, 1 Tribhuwan 2 Sita Ram Ram Suresh 4 Rajendra 5 Ram Vijay and 6 Jogendra were the residents of a village - Seerpatti District Azamgarh UP . One Ram Lagan deceased was also the resident of same village. The houses of accused persons and Ram Lagan were situated in the same cluster and were in the close vicinity of each other. All the accused persons, Ram Lagan and his family members were known to each other. On 14.06.1980 around 8.00p.m., Tribhuwan was passing in front of Ram Lagans house when pet dog of Ram Lagan sitting in front of his house started barking on Tribhuwan, due to which Tribhuwan got infuriated and started hurling filthy abuses to Shobh Nath-son of Ram Lagan, his family members and Ram Lagan, who were sitting on the door steps of their house. This incident, unfortunately, aggravated and led to filthy verbal exchanges between Ram Lagan, Shobh Nath and Tribhuwan. Tribhuwan then went to his house after threatening Ram Lagan and his son that he would companye back soon to teach them a lesson. After sometime, Tribhuwan came back along with five persons, namely, Sita Ram, Ram Suresh, Ram Vijay, Rajendra and Jogendra with weapons Pistol, Farsa, Lathi, Spear in their hands. This incident attracted many persons living in the area and who were passing on the road. The altercation and the attack by the accused persons resulted in causing injuries to Ram Lagan and one Baij Nath PW-2 . Both injured persons were taken to nearby hospital for treatment. After sometime, Ram Lagan succumbed to his injuries in the hospital whereas Baij Nath survived. After making necessary investigation, six accused persons, named above, were apprehended and put to trial for companymission of the offences punishable under Sections 147, 148, 302, 324/149 and 325/149 of the Indian Penal Code, 1860 hereinafter referred to as IPC in Session Trial No.132 of 1981 before the IVth Additional Sessions Judge, Azamgarh. The Sessions Judge, by his order 22.01.1982, acquitted one accused-Jogendra from all the charges whereas companyvicted remaining five accused and sentenced each of them as under Name of the companyviction sentence accused Jogendra acquitted Ram Vijay U S 302 IPC Life imprisonment Section RI for four years 325/149 IPC Section 148 IPC RI for two years Tribhuwan Section RI for two years 324/149 IPC Section 325/149 IPC RI for four years Section 148 IPC RI for two years Sita Ram Section RI for two years 324/149 IPC Section 325/149 IPC RI for four years Section 147 IPC RI for one year Ram Suresh Section 147 RI for one year IPC Section 324/149 IPC RI for two years Section 325/149 IPC RI for four years Rajendra Section 147 IPC RI for one year Section RI for two years 324/149 IPC Section 325/149 IPC RI for four years The five accused, namely, Tribhuwan, Sita Ram, Ram Suresh, Rajendra and Ram Vijay, who suffered companyviction and sentence, filed Criminal Appeal No.211/1982 before the High Court. So far as the State is companycerned, they did number file any cross appeal against that part of the order of the Sessions Court by which one accused person-Jogendra was acquitted of the charges and other accused persons though companyvicted for other offences but stood acquitted of the charge of murder. As a companysequence, the order of the Sessions Judge so far as the State was companycerned, became final. The High Court, by impugned judgment, partly allowed the appeal and while upholding the companyviction of the five accused interfered in the sentence and its quantum awarded to each accused persons. The High Court modified the sentence of the five accused as under - Name of companyviction sentence the accused Ram Vijay Section 304 Part I RI for 10 years IPC Fine of Rs,3000/- In Section 148 IPC default of payment of fine, to undergo RI for three months Section 325/149 IPC Fine of Rs.10,000/- In default of payment of fine, to undergo RI for one year Tribhuwan Section 148 IPC Fine of Rs,3000/- In default of payment of fine, to undergo RI for three months Section 325/149 IPC Fine of Rs.10,000/- In default of payment of fine, to undergo RI for one year Sita Ram Section 147 IPC Fine of Rs.1000/- In default of payment of fine, to undergo RI for one month Section 325/149 Fine of Rs.10,000/- In IPC default of payment of fine, to undergo RI for one year Ram Section 147 IPC Fine of Rs.1000/- In Suresh default of payment of fine, to undergo RI for one month Section 325/149 Fine of Rs.10,000/- In IPC default of payment of fine, to undergo RI for one year Rajendra Section 147 Fine of Rs.1000/- In IPC default of payment of fine, to undergo RI for one month Fine of Rs.10,000/- Section 325/149 In default of IPC payment of fine, to undergo RI for one year The State, however, felt aggrieved of the judgment of the High Court, filed this appeal by way of special leave before this Court. During pendency of this appeal, two respondents, namely, Sita Ram respondent No.2 and Rajendra respondent No.4 died. As a companysequence thereof, the appeal against Sita Ram and Rajendra stood abated. Ram Suresh respondent No.3 also died and the appeal stood dismissed as abated against him also by this Courts order dated 26.07.2010. So far as the appeal against Ram Vijay respondent No.5 is companycerned, the same was also dismissed by this Courts order dated 26.07.2010 for number-compliance of the orders by the appellant State qua Ram Vijay. As a companysequence thereof, the appeal against Ram Vijay also does number survive for its companysideration on merits. This appeal is number survived only against Tribhuwan respondent No.1 for its companysideration on merits. The short question, which arises for companysideration in this appeal, is whether any case is made out by the State against accused person- Tribhuwan respondent No.1 seeking any kind of interference in his order of companyviction and acquittal or in award of sentence and, if so, to what extent? Heard Mr. Ratnakar Dash, learned senior companynsel for the appellant-State and Mr. Sidharth Dave, learned companynsel for the respondent. Learned companynsel for the appellant State has argued only one legal point in support of the appeal. According to learned companynsel, the Sessions Judge rightly companyvicted respondent No.1 Tribhuwan for an offence punishable under Section 325 read with Section 149 IPC and, accordingly, awarded rigorous imprisonment of four years to him but the High Court though was right in upholding the companyviction fell in error in setting aside the jail sentence of four years awarded to him by the Sessions Court and substituting the same by imposing only a fine of Rs.10,000/-. Learned companynsel urged that imposition of jail sentence and fine both is mandatory once the accused is held guilty for the offence punishable under Section 325 IPC which may extend upto 7 years. Learned companynsel urged that the High Court, in its discretion, companyld reduce the award of jail sentence to any period less than four years but, in numbercase, it companyld set aside the entire jail sentence and substitute it by awarding a sentence of fine of Rs.10,000/-. It is number permissible in law and hence to this extent, the judgment of the High Court deserves to be set aside and the order of the Sessions Judge be restored. In reply, the submission of learned companynsel for respondent No.1 accused-Tribhuwan was that admittedly respondent No.1 has undergone 40 days jail sentence partly as under-trial prisoner and remaining after suffering the companyviction from the Sessions Court. It was, therefore, his submission that such imprisonment can be taken as imposing jail sentence of 40 days to respondent No.1 under Section 325 IPC. In other words, his submission was that though the High Court instead of awarding any jail sentence awarded only the fine of Rs.10,000/- but since respondent No.1 has, in the meantime, already undergone 40 days jail sentence partly after his arrest pending investigation, inquiry and then partly during pendency of trial and appeal, he should be held to have been awarded jail sentence for 40 days for an offence punishable under Section 325 IPC. Learned companynsel urged that respondent No.1 would thus be entitled to take benefit of set off of the period as already undergone by him under Section 428 of the Code of Criminal Procedure, 1973 hereinafter referred to as the Code once he is awarded jail sentence to that extent on his companyviction. Learned companynsel further pointed out that this Court should also take into companysideration the two circumstances appearing in the case, namely, the incident in question occurred in 1980 and in the meantime, 37 years has passed in prosecuting this litigation, and second, both the Courts below, on appreciation of evidence, have companye to a companyclusion that numberinjury was caused by respondent No.1 to the deceased and to injured Baij Nath PW-2 . It was, therefore, his submission that the interest of justice would, accordingly, be met, if respondent No.1s companyviction under Section 325 IPC is maintained by awarding him jail sentence of what he has already undergone, i.e., 40 days with fine amount of Rs.10,000/- which has already been awarded by the High Court. Such order of companyviction would be in companyformity with the requirement of Section 325 of the IPC. Having heard learned companynsel for the parties and on perusal of the record of the case, we find force in the submission of the learned companynsel for the appellant and also of respondent No.1 Tribhuwan . Section 325 of IPC and Section 428 of the Code are relevant for deciding the appeal. These Sections read as under Section 325 of IPC Punishment for voluntarily causing grievous hurt.-Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 428 of Cr.PC Period of detention undergone by the accused to be set off against the sentence of imprisonment.-Where an accused person has, on companyviction, been sentenced to imprisonment for a term, number being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such companyviction, shall be set off against the term of imprisonment imposed on him on such companyviction, and the liability of such person to undergo imprisonment on such companyviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section. So far as Section 325 IPC is companycerned, its reading would show that once the accused is held guilty of companymission of offence punishable under Section 325 IPC, then imposition of jail sentence and fine on the accused is mandatory. In other words, the award of punishment would include both, i.e., jail sentence and fine. So far as jail sentence is companycerned, it may extend upto 7 years as per Courts discretion whereas so far as fine amount is companycerned, its quantum would also depend upon the Courts discretion. So far as Section 428 of Code is companycerned, it provides that the period of detention spent in jail as under-trial or as companyvict will be set off against his total jail sentence once awarded to him in companynection with the same offence. This Court Three Judge Bench had the occasion to interpret Section 428 of the Code in the case of State of Maharashtra Anr. vs. Najakat Alia Mubarak Ali, 2001 6 SCC 311 wherein this Court speaking through Justice K.T. Thomas representing majority view held as under 15We may number decipher the two requisites postulated in Section 428 of the Code During the stage of investigation, enquiry or trial of a particular case the prisoner should have been in jail at least for a certain period. He should have been sentenced to a term of imprisonment in that case. If the above two companyditions are satisfied then the operative part of the provision companyes into play i.e. if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, enquiry or trial, the companyvicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words if any in the section amplify that if there is numberbalance period left after such deduction the companyvict will be entitled to be set free from jail, unless he is required in any other case. In other words, if the companyvict was in prison, for whatever reason, during the stages of investigation, enquiry or trial of a particular case and was later companyvicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be companynted as part of the sentence imposed on him. In our companysidered opinion, the High Court was, therefore, number right in setting aside the entire jail sentence of respondent No.1 while upholding his companyviction under Section 325 IPC. The High Court, in our view, ought to have either upheld the award of jail sentence of four years awarded by the Sessions Court or reduce the jail sentence to any reasonable term but it had numberjurisdiction to fully set aside the jail sentence and substitute it by imposing only fine of Rs.10,000/-. As rightly argued by the learned companynsel for respondent No.1, the period already undergone by respondent No.1 40 days while respondent No.1 was in detention, as under-trial and as companyvict, was also a jail sentence and companyld be treated as jail sentence once awarded to respondent No.1 under Section 325IPC, and accordingly its benefit by way of set off companyld be given to him under Section 428 of Code. In our companysidered opinion, having regard to the time companysumed in the litigation 37 years companypled with the findings of two Courts below wherein it was held that respondent No.1 did number cause any injury to the deceased and injured Baij Nath PW-2 , we are inclined to uphold respondent No.1s companyviction under Section 325 IPC and award to respondent No.1s punishment of imprisonment of 40 days with fine of Rs.10,000/- and in default of payment of fine, to undergo one month rigorous imprisonment. Since respondent No.1 has already undergone the jail sentence of 40 days partly as under-trial and partly as companyvict, he is number required to undergo any further jail sentence in the case at hand.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 108/ 56. Appeal by special leave from the Judgment and decree dated May 27, 1953, of the Punjab High Court in Regular Second Appeal No. 176 of 1949, against the judgment and decree dated December 20, 1948, of the District Judge, Ludhiana, arising out of the Judgment and decree dated February 6, 1948, of the Subordinate Judge, 11 Class, Ludhiana, in Suit No. 918 of 1946. Gopal Singh, for the appellants. B. Aggarwala and K. P. Gupta, for the respondents. 1960. May 6. The Judgment of the Court was delivered by DAS GUPTA, J.-The suit out of which this appeal has arisen was instituted by the respondents I and 2 Sher Singh and Labh Singh, for a declaration that a deed of gift executed by the first appellant, Jai Kaur, in respect of 8 1-10 Bighas of land which she had inherited from her husband, Dev Singh, in favour of her two daughters, the 2nd 3rd appellants before us, shall be null and void against the reversionary rights of the plaintiffs , and defendant Nos. 4 to 6 after the death of defendant No. 1 i.e., Jai Kaur and shall number be binding upon them. The plaintiffs case was that these lands left by Dev Singh were all ancestral lands qua the plaintiffs and according to the customary law which governs the Jats belonging to Grewal got to which these parties belong daughters do number succeed to property left by sonless fathers and so the gift by Dev Singhs widow in favour of her daughters would be null and void as against the plaintiffs and others who would be entitled on Jai Kaurs death to succeed to the estate as reversioners. In the alternative, the plaintiffs companytended that even if the land in suit was number ancestral qua the plaintiffs then also the deed of gift would be null and void as against their reversionary interests inasmuch as even as regards numberancestral property daughters do number succeed among the Grewal Jats. The main companytention of defendants 1 to 3 the appellants before us was that the suit land was number ancestral qua the plaintiffs and defendants Nos. 4 to 6, and that according to the customary law governing the Jats of the Grewal got, daughters exclude companylaterals as regards number-ancestral property and a widow is companypetent to make a gift of such property in favour of her daughters. It was pleaded on behalf of the two daughters that they being preferential heirs in respect of the land in suit as against the plaintiffs, the gift is tantamount to acceleration of succession and is valid in every way. The Trial Judge held that 2B-2B,14-B out of the land in suit was ancestral and the gift was invalid to that extent, because as regards ancestral property a daughter does number succeed in the presence of companylaterals. As regards the remainder of the suit land which he held was number-ancestral, the learned Judge was of opinion that the gift was merely an acceleration of succession as under the customary law governing the parties daughters exclude companylaterals as regards succession to number-ancestral property. Accordingly he gave the plaintiffs a decree as prayed for as regards 2-B-2B, 14-B out of the land in suit and dismissed it as regards the remaining portion of the land in suit. The plaintiffs appealed to the District Judge, Ludhiana, against this decree and cross-objections were filed by the defendants Nos. 1 to 3. The Trial Courts finding about a portion -of the land being ancestral and the rest numberancestral was number disputed before the appeal companyrt. On the question of custom the learned District Judge agreed with the Trial Judges view that among the Grewal Jats of Ludhiana the daughter excluded companylaterals as regards numberancestral property. He held, therefore, agreeing with the Trial Judge that as regards the number-ancestral property the deed of gift was merely an act of acceleration of succession and was, therefore, valid and binding. The appeal was accordingly dismissed and so also were the cross-objections which appear number to have been pressed. On second appeal the learned judges of the East Punjab High Court accepted the companytention urged on behalf of the plaintiffs that a special custom was proved to be in force among the Grewal Jats under which the daughter does number inherit even as regards number-ancestral property. In that view they held that even as regards the number-ancestral property the gift by Jai Kaur would be valid only during her lifetime, and allowed the appeal. Against this decree of the High Court defendants Nos. 1 to 3-Jai Kaur and her two daughters, the donees-have filed this appeal on the strength of special leave granted by this Court. Two questions arise for companysideration in this appeal. The first is whether under the customary law governing the Jats of the Grewal got in Ludhiana to which the parties belong, the daughter or the companylaterals are the preferential heirs as regards number-ancestral property. If the answer to this question be that daughters have preference over companylaterals the plaintiffs here , the other question which arises is whether this gift is such acceleration of succession in favour of the daughters as is permissible under the law. On the question of custom the appellants rely on the statements in paragraph 23 of Rattigans Digest of Customary Law Thirteenth Edition that in regard to the acquired property of her father the daughter is preferred to companylaterals. It is number disputed that numberancestral property is acquired property within the meaning of this statement by Rattigan. Against this the plaintiffsrespondents rely on the answers to question No. 43 relating to Hindu Grewal Jats of Ludhiana as appear in the Riwaji-am prepared at the revised settlement of 1882. The question and the answer are in these words- Question Under what circumstances can daughters inherit ? If there are sons, widows or near companylaterals, do they exclude the daughter ? If the companylaterals exclude her, is there any fixed limit of relationship or degree within which such Dear kindred must stand Answer In our tribe the daughter does number succeed under any circumstances. If a person dies sonless, his companylaterals succeed him. There is numberfixed limit of relationship for purposes of excluding her. If there are numbercollaterals of the deceased, the owners of the Thulla or Patti or village would be owners of his property. The authoritative value of Rattigans companypilation of customary law is number beyond companytroversy, having been recognised in the judicial decisions of the Punjab companyrts too numerous to mention, which have also received the approval of the Judicial Committee of the Privy Council. Therefore it is number, and cannot be disputed that under the general customary law of the Punjab daughters exclude companylaterals in succession to number-ancestral property. The value of entries in the Riwaj-i-am has, also however, been repeatedly stressed. That they are relevant evidence under s. 35 of the Evidence Act is clear and the fact that the entries therein the the result of careful research of persons who might also be companysidered to have become experts in these matters, after an open and public enquiry has given them a value which should number be lightly underestimated. There is , therefore, an initial presumption of companyrectness as regards the entries in the Riwaj-i-am and when the custom as recorded in the Riwaj-i-am is in companyflict with the general custom as recorded in Rattigans Digest or ascertained otherwise, the entries in the Riwaj-i-am should ordinarily prevail except that as was pointed out by the Judicial Committee of the Privy Council in a recent decision in Mt. Subhani v. Nawab 1 , that where, as in the present case, the Riwaj-i-am affects adversely the rights of females who had numberopportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it. In the present appeal the oral. testimony given on behalf of either party is practically valueless to show an-,, instance in favour of the custom pleaded by them. If, therefore, the -Riwaj-i-am does show as urged by the plaintiffs a custom of daughters being excluded by companylaterals in respect of numberancestral property, it is clear that Riwaji-i-am would prevail. The real companytroversy in this litigation is, however, on the question whether the entries in the Riwaj-iam on which A.I. R. 1941 P.C. 21. the plaintiffs rely refer at all to number-ancestral property or number. This companytroversy has engaged the attention of the companyrts in Punjab for a number of years beginning with 1916. In that year in Mst. Raj Kaur v. Talok Singh 1 Sir Donald Johnstone, the Chief Justice held that the Riwaj-i-am as companypiled, did number companyer self-acquired property and that where the Riwaj-i-am talked about succession to land without discrimination between ancestral and self-acquired, the rule laid down companyld usually only be taken to apply to ancestral property. A similar view was taken by Shadilal and Wil be force, JJ., in Budhi Prakash v. Chandra Bhan 2 . The view taken in these cases was followed by other judges of the High Court in Narain v. Mst. Gaindo 3 and Fatima Bibi v. Shah Nawaz 4 . In Sham Das v. Moolu Bai 5 the learned judges LeRossignol and Fforde, JJ. also laid down the same principles, without any reference to the previous decisions, in these words - It is true in the Riwaj-i-ain numberdistinction is made between ancestral and acquired property, but it is a wellrecognised rule that unless there are clear indications to the companytrary, such an entry in a record of custom refers only to the succession to ancestral property. After this view had been followed in several other decisions a different line was struck in Jatan v. Jiwan Singh 6 . That was a case between Grewal Jats and the companytest lay between companylaterals of the last male holder and his married daughter with respect to his number-ancestral property. The learned judges were of opinion that the Question No. 43 in the Riwaj-i-am related to both ancestral and number-ancestral property and so the answer to the question recorded in Riwaj-iam proved that as regards the number-ancestral property also the daughter was excluded by companylaterals. In companying to this companyclusion they laid stress on the fact that in two previous decisions, Ishar Kuar v. Raja Singh 7 and Pratap Singh v. Panjabu 8 the questions and answers in the Riwajiam as regards daughters A.I.R. 1916 Lah. 343. A.I.R 1918 Lah. 304 A.I.R. 1926 Lah. 210 7 1911 9 I.C. 608. A.T.R. 19T8 Lah. 225. A.I.R. 1921 Lah. 180. A.I.R. 1933 Lah. 553. 8 1911 13 I.C. 177 right to succession were interpreted as companyering numberancestral property also and if it was companytemplated that a daughter should succeed to self-acquired property, one would have expected that fact to be mentioned in the answer. It was in view of the companyflicting views which had thus arisen on the question whether Question No. 43 in the Riwaj-i-ani in the absence of a clear indication to the companytrary related to ancestral property only or to both ancestral and numberancestral property that a reference was made by Mr. Justice Abdur Rahman in Mt. Hurmate v. Hoshiaru 1 to a Full Bench of the High Court. The Full Bench reviewed the numerous decisions of the Punjab companyrts in this matter and also took into companysideration the fact that Mr. Gordon Walker who had prepared the Riwaj-i-am in 1882 had stated in the preface that numberdistinction between self-acquired and inherited property in land appeared to be recognised and the rules of succession, restriction on alienation, etc., applied to both alike and after a careful companysideration of all the relevant factors recorded their companyclusion that Question No. 43 of the Customary Law of Ludhiana district relates to ancestral property only and can in numbercircumstances be so interpreted as to companyer self acquired property as well. Mr. Justice Din Mohammad who delivered the leading judgment observed The raison d entre of those cases which lay down that the manuals of Customary Law were ordinarily companycerned with ancestral property only is quite intelligible. Collaterals are, as stated by Addison, J., in 13 Lab. 458, really speaking interested in that property only which descends from their companymon ancestor and this is the only basis of the agnatic theory. What a male-holder acquires himself is really numberconcern of theirs. It is reasonable, therefore, to assume that when manuals of Customary Law were originally prepared and subsequently revised, the persons questioned, unless specific-ally told to the companytrary, companyld numbermally reply in the light of their own interest alone and that, as stated above, was companyfined to the ancestral property only. The fact that on some occasions A.I.R. 1944 Lah. 21, the questioner had particularly drawn some distinction between ancestral and number-ancestral property would number have put them on their guard in every case, companysidering their lack of education and lack of intelligence in general. Similarly, the use of the terms in numbercase or under numbercircumstances would refer to ancestral property only and number be extended so as to companyer self-acquired property unless the companytext favoured that companystruction. One would have thought that after this pronouncement by a Full Bench of the High Court the companytroversy would have been set at rest for at least the Punjab companyrts. Surprisingly, however, only a few years after the above pronouncement, the question was raised again before a Division Bench of the East Punjab High Court in Mohinder Singh v. Kher Singh 1 . The learned judges there chose to companysider the matter afresh and in fact disregarded the pronouncement of the Full Bench in a manner which can only be said to be unceremonious. Teja Singh, J., who delivered the leading judgment said that the Full Bench, though numbericing the cases of Ishar Kaur v. Raja Singh 2 and Pratap Singh v. Panjabu 3 , had number said that those cases had been wrongly decided. It has to be numbericed that the Full Bench in numberuncertain terms expressed their companyclusion that question No. 43 of the Customary Law of the Ludhiana district related to ancestral property only and companyld in numbercircumstances be so interpreted as to companyer self-acquired property as well. In companying to that companyclusion they had companysidered numerous decisions of the Punjab companyrts in support of the general proposition that unless there are clear indications to the companytrary the questions relate to ancestral property, companysidered the cases in which a companytrary view had been taken including the three cases of Jattan v. Jiwan Singh 4 , Ishar Kaur v. Raja Singh 2 and Pratap Singh v. Panjabu 3 and gave their own reasons why the view that unless there are clear indications to the companytrary the manuals of customary law should be taken to refer to ancestral property only, and after companysidering the A.I.R. 1949. East Punjab 328 3 1911 13 I.C. 177. 2 1911 9 I.C. 608. A.I.R. 1933 Lah. 553. question and answer in question No. 43 in the case before them as regards the Mohammadan Rajputs, recorded their final companyclusion. It is neither companyrect number fair to say that the learned judges of the Full Bench did number hold Jattans Case, Pratap Singhs Case and Ishar Kaurs Case to have been wrongly decided in so far as these decisions held the question No. 43 of the Customary Law of the Ludhiana district to refer both to ancestral and number-ancestral property. It is true that they did number say in so many words that these cases were wrongly decided but when a Full Bench decides a question in a particular way every previous decision which had answered the same question in a different way cannot but he held to have been wrongly decided. We had recently occasion to disapprove of the action of a Division Bench in another High Court in taking it upon themselves to hold that a companytrary decision of another Division Bench on a question of law was erroneous and stressed the importance of the well recognised judicial practice that when a Division Bench differs from the decision of a previous decision of another Division Bench the matter should be referred to a larger Bench for final decision. If, as we pointed out there, companysiderations of judicial decorum and legal propriety require that Division Benches should number themselves pronounce decisions of other Division Benches to be wrong, such companysiderations should stand even more firmly in the way of Division Benches disagreeing with a previous decision of the Full Bench of the same companyrt. In our opinion, the view taken by the Full Bench in Mt. Hurmate v. Hoshiaru 1 is companysonant with reasons and companysistent with probability. The fact that the great majority of judges, who brought to bear on the question, an intimate knowledge of the ways and habits of the Punjab peasantry thought that when tribesmen were asked about succession to property, they would ordinarily think that they were being asked about succession to ancestral property, is entitled to great weight. It cannot, we think, be seriously disputed that at least in the early years A.I.R. 1944 Lah 21. when the Riwaj-i-am was in companyrse of preparation most of the property in the companyntryside was ancestral property, and self-acquisitions were few and far between. This fact, it is reasonable to think, had the companysequence of companycentrating the attention of the tribesmen on the importance of having the tribal custom companyrectly recorded by the Settlement Officers and their agents, as regards succession to ancestral property, and of attracting little attention, if any, to matters regarding number-ancestral property. Unless the questions put to these simple folk, were so framed as to draw pointed attention to the fact that the enquiries were in respect of number-ancestral property also, they companyld number reasonably be expected to understand from the mere fact of user of general words in the questions that these referred to both ancestral and number-ancestral property. As Din Mohammad, J., said in his judgment in the Full Bench, even the fact that on some occasions, the questioner had drawn some distinction between ancestral and numberancestral property, companyld number have put themi.e., the persons questioned -on their guard in every case, companysidering their lack of intelligence in general. Their minds being obsessed with the idea that such enquiries would only refer to ancestral property, they would direct their answers to matters in respect of ancestral property only, and in using forceful terms like in numbercase and under numbercircumstances these persons were really saying that in numbercase would ancestral property devolve in a particular way and have a particular incidence and under numbercircumstances would ancestral property devolve in a particular way, and have a particular incidence. These companysiderations, we think, outweigh the statement made by Mr. Gordon Walker that numberdistinction between selfacquired and inherited property in land appeared to be recognised, and the rules of succession, restriction on alienation, etc., applied to both alike. We think, therefore,, that the view taken by the Full Bench, and the many previous cases mentioned in the judgment of the Full Bench, that questions and answers in the Riwaj-i-am refer ordinarily to ancestral property, unless there is clear indication to the companytrary, is companyrect. Question No. 43 in the Ludhiana district, appears to be the same for all the tribes. There is number the slightest indication there that the questioner wanted information about numberancestral property also. The answer given by the Grewal Jats to this question also gives numberreason to think that the persons questioned were thinking in giving the answers of both ancestral and number-ancestral property. We have, therefore, companye to the companyclusion that the entries in the Riwaj-i-am on which the plaintiffs respondents rely do number refer at all to number-ancestral property, and are, therefore, number even relevant evidence to establish the existence of a custom among Grewal Jats of Ludhiana district, entitling companylaterals to succession to numberancestral property, in preference to daughters. Reliance was next placed on behalf of these respondents on the fact that the existence of such a custom was recognised in a number of judicial decisions, viz., Jattan v. Jiwan Singh 1 , I shar Kaur v. Raja Singh 2 and Pratap Singh v. Panjabu 3 . If these decisions in so far as they recognised the existence of such a custom, had been solely or even mainly based on evidence, other than entries in the Riwaji-i-am, they might have been of some assistance. Examination of these cases, however, shows unmistakably that they were either wholly, or mainly based on the entries in the Riwaj-i-am on the assumption that these entries referred to both ancestral and number-ancestral property. This assumption having been established to be baseless, these decisions are valueless, to show that the custom as alleged by the plaintiffs-respondents did exist as regards numberancestral property. Further, the oral evidence produced in the present case is wholly insufficient to prove such a custom. It must, therefore, be held that the customary law among the Grewal Jats of Ludhiana district as regards succession to number-ancestral property is the same as recorded generally for the Punjab in Paragraph 23 of Rattigans Digest-i.e., the daughter is preferred to A.I.R. 1933 Lah. 553. 2 1911 9 I.C. 608. 3 1911 13 I.C. 177. companylaterals, and companysequently, the second and the third appellants, were the next reversioners to that portion of Dev Singhs property which has been found to be numberancestral. This brings us to the question whether the gift of this portion, by the first appellant to these reversioners, gives them a good title, beyond the widows lifetime. We have to remember in this companynection that as regards the ancestral property, these daughters were number the reversioners, and the further fact that out of the ancestral property, the house was number included in the deed of gift. The position, therefore, is that out of the property in which the first appellant held a widows estate, she gave by the deed of gift a portion to the reversioners as regards that portion, a portion to persons who were strangers to the reversion as regards that portion and a portion was retained by her. The doctrine of Hindu law according to which, a limited owner can accelerate the reversion, by surrendering her interest, to the next reversioner, is based on a theory of selfeffacement of the limited owner. That is why it has been laid down that in order that a surrender by a limited owner to a reversioner, may be effective, the surrender must be of the entire interest of the limited owner in the entire property. The exception made in favour of the retention of a small portion of the property for her maintenance, does number affect the strictness of the requirement that a surrender to be effective, must be of the entire interest in the entire property Vide Rangasami Gounden v. Nachiappa Gounden 1 and Phool Kaur v. Pem Kaur 2 . In so far as there is gift to a stranger, there is numbereffacement of the limited owner number is there any effacement in respect of the property which is retained. We find it impossible to say, therefore, that there is such effacement of the limited owner in this case, as would accelerate the daughters rights by companyverting the future companytingent right into a present vested right. On behalf of the appellants it is argued that there is certainly a total effacement in respect of the numberancestral property, so that the right of the next reversioners-the daughters-in that property has 1 1918 L.R. 46 I.A. 72. 2 1952 S.C.R. 793, been accelerated. We do number think we shall be justified in recognising this numberel doctrine of the possibility of effacement of the limited owner vis-a-vis the next reversioner of the number-ancestral property when there is numbereffacement vis-a-vis the reversioner of the ancestral property, and vice versa. Effacement cannot be broken up into two or more parts in this manner and however much the limited owner may wish to efface herself only vis-a-vis those next reversioners whom she wants to benefit, law does number recognise such partial effacement . The Hindu Law doctrine of surrender does number, therefore, make the gift of the number-ancestral property to the daughters valid beyond the widows lifetime. It is number suggested that there is any customary law, by which such surrender can be made. Though, therefore, we have found disagreeing with the learned judges of the High Court that tinder the customary law governing the Grewal got of Jats to which the parties belong, the daughters-the second and the third appellantsare preferential heirs to the number-ancestral portion of the suit land, we hold that their companyclusion that this deed of gift in favour of the daughters is number valid even as regards the number-ancestral property, beyond the donors lifetime is companyrect and must be maintained. As a last attempt Mr. Gopal Singh, companynsel for the appellants, wanted us to hold that under s. 14 of the Hindu Succession Act, which became law in 1956, either the mother or the daughters have become full owners of this property, and so the plaintiffs suit should be dismissed. As the Hindu Succession Act was number on the statute-book, when the written statement was filed or at any time before the suit was disposed of in the companyrts below, the defence under s. 14 of that Act companyld number be thought of and was number raised. The necessary companysequence is that evidence was number adduced, with the facts material for the application of s. 14 in view, by either party. Mr. Agarwala has, on behalf of the plaintiffs-respondents, companytended that as the record stands the mother had ceased to be in possession and companyld number get the benefit of s. 14 of the Hindu Succession Act, and that the daughters in possession, would number become full owners under s. 14. We do number think it would be proper to companysider these questions in the present suit in this haphazard manner when on the all-important question of possession, the appellants themselves do number wish to say whether the mother was in possession actually or companystructively, whether the daughters possession was merely permissive, or whether the daughters were in independent possession, on their own behalf These and other questions of fact, and the questions of law that have to be companysidered in deciding a claim by the first appellant or the other two appellants under s. 14 of the Hindu Succession Act, should properly be companysidered in any suit that -they may bring in future, if so advised. We express numberopinion on any of these questions. For the reasons which have been mentioned earlier, we hold that the High Court rightly decreed the suit in favour of the plaintiffs in respect of the numberancestral property also, and dismiss the appeal.

BANUMATHI, J. This batch of appeals arise out of the companymon judgment of the High Court of Judicature at Allahabad, Lucknow Bench dismissing the writ petitions P.No.6690 of 1996 S S and batch dated 14.09.2009, whereby the High Court upheld the award passed by the Industrial Tribunal and directed the appellant-university to companysider the respondents for regularisation of their services as and when the vacancies arise and till that time they be paid the emoluments, which are being paid by university authorities to similarly situated workmen against the unsanctioned posts. Before we advert to the companytentious points, it would be appropriate to highlight the factual background of the case. In the year 1989, the Finance Officer of the University of Lucknow, Mr.R.S.Vishvakarma engaged the respondents in this batch of appeals as Routine Grade Clerk RGC Peon by oral engagement as daily wagers for the Central Accounts Office and they were being paid from out of the companytingency fund. In order to prevent the abuse of power in engaging daily wagers, the then Vice-Chancellor of the Lucknow University issued Order No.VC/1932/90 dated 03.08.1990 numberifying that the daily wagers would number be allowed to companytinue in any case after 31.12.1990 unless prior written approval was obtained from the Vice-Chancellor. It was further directed that if there was any need of any extra hand, the Section Heads must send a demand for creation of posts to the Deputy Registrar Admn. with details justifying the need so that a companysolidated statement for sanction of new posts in the university be sent to the State Government. As per the appellant-university, the Finance Officer neither dispensed with the respondents daily wagers number did he obtain written approval from the Vice- Chancellor. The engagement of the respondents came to an end with effect from 01.01.1991. The terminated workers sent a legal numberice on 28.01.1992 through Mazdoor Sabha to the Vice-Chancellor stating that they served the university till 31.12.1990 companytinuously and that they were terminated without assigning any reason and put forth the demand for reinstatement in service and backwages. All the ex-daily wagers further filed individual applications to the Deputy Labour Commissioner, Lucknow for companyciliation of the dispute raised by them in February 1992. As numberconciliation companyld be achieved, on the recommendation of the Conciliation Officer, the Deputy Labour Commissioner by his order dated 18.08.1992 referred all the cases to the Labour Court, Lucknow for adjudication of the dispute between respondents and the appellant-university. The Presiding Officer, Labour Court vide order dated 30.01.1996 held that termination of the workmen from 01.01.1991 by the university is illegal and directed the reinstatement of respondent No.1 with full back wages. Being aggrieved, the appellantuniversity filed a Writ Petition before the High Court challenging the award. The High Court disposed of the writ petition and companynected petitions vide a companymon order dated 14.09.2009 affirming the award passed by the Labour Court and inter alia issued direction as aforesaid. The university has filed this batch of appeals assailing the order passed by the High Court. Learned companynsel for the appellants companytended that merely because a casual wage worker or a temporary employee worked companytinuously for more than 240 days in a year, he would number be entitled to be absorbed in regular service or made permanent on the strength of such companytinuance, if the original appointment was made without following the due process of selection as envisaged by the rules. It was submitted the respondents were number engaged as against any sanctioned post and the impugned judgment of the High Court directing regularisation is violative of the principles laid down by this Court in Secretary, State of Karnataka and Others vs. Umadevi 3 and Others, 2006 4 SCC 1. Per companytra, learned Senior Counsel Ms. Shobha Dikshit for the respondents submitted that the services of the respondents were terminated without giving any numberice or retrenchment companypensation and is companytravention of Section 6-N of the U.P. Industrial Disputes Act, 1947. It was argued that the respondents were out of employment since 1991 and they are finding it difficult to survive along with their families with the meagre amount of Rs.650/- awarded to them under Section 17B of the Industrial Disputes Act, 1947. It was further submitted that the respondents juniors were retained and companytinued in service and subsequently, even new hands have been engaged and while so, the respondents were discriminated and the companyrts below rightly directed their regularisation. We have given our thoughtful companysideration to the rival companytentions of both the parties and perused the impugned judgment and material on record. Lucknow University is a statutory body and is governed by the P. State Universities Act, 1973. The Vice-Chancellor is the Principal Executive and exercises general supervision and companytrol over all its affairs including appointments of number-teaching staff. The Registrar of the University is the administrative head who issues orders of appointment duly made and approved by the Vice-Chancellor. The appointments are to be made by the university against the sanctioned posts created by the Government and the Government determines the pay scale and allowances of the employees. The Finance Officer by himself had numberright to appoint any person and university has number created extra post of Routine Grade Clerk or Record Boy or Peon. In the present case, the Finance Officer in the university engaged the respondents as daily wagers for his Central Accounts Section. Admittedly, the respondents were number engaged by following due procedure and their engagement was number against any sanctioned posts. In order to curb the illegal practice of engaging daily wagers, Vice- Chancellor of the University issued an order dated 03.08.1990 clarifying that the daily wagers will number be allowed to companytinue after 31.12.1990 until prior written approval is accorded by the Vice-Chancellor. No such approval was taken qua the respondents for their companytinuance. The respondents were terminated w.e.f. 01.01.1991. When the respondents appointments were illegal, the respondents would number be entitled to any right to be regularized or absorbed. As numbericed earlier, there is numberappointment letter issued to the respondents by the Registrar on which they were engaged. The respondents have based their claim on service certificate issued by Mr. L. Shukla, the then Finance Officer of the University of Lucknow. Mr. L. Shukla in his evidence has stated that the daily wagers were engaged by the then Finance Officer, Mr. R.S. Vishvakarma as daily wage employees in the accounts section as per their need and they were terminated when their services were number required. He further stated that numberparticular nature of work was assigned to the respondents in the accounts section and the respondents were being paid out of recurring expenditure item. So far as the certificate issued to the respondents, Mr. Shukla has stated that those certificates issued to the respondents-workmen only to enable them to seek other job. Learned Senior Counsel for the respondents has submitted that after removal of the respondents, similarly placed employees have been regularized and drawn our attention to regularisation of one such Narendra Pratap Singh. Evidence of Mr. Brij Pal Das Mehrotra, former Registrar of the University would show that the persons who are regularized are only those who were appointed by following due procedure. The said Narendra Pratap Singh was also appointed by following due procedure. As seen from Annexure P-5 filed with rejoinder affidavit, the said Narendra Pratap Singh was appointed by the Registrar of the University as Routine Grade Clerk RGC on daily wage basis, the respondents were number so appointed by the Registrar of the university. The respondents have admittedly number produced any document to show that they were appointed by the university against sanctioned posts in accordance with statutory rules. If the original appointment was number made following due process of selection as envisaged by the relevant rules, the respondents cannot seek regularisation. The Labour Court and the High Court, in our view, fell in error in directing the regularisation of the respondents. In the rejoinder-affidavit filed by the appellant-university, it is stated that the university has requested the State Government for sanction of 755 posts in various categories in order to regularise the persons working in the various departments of the university. The State Government sanctioned only 330 posts in various categories, as a result of which regularisation samayojan of 330 persons were made strictly on the basis of their seniority. A bare perusal of letter No.26/C.S./70-4-99- 3 27 /99 dated 29.09.1999 by Special Executive Officer, Government of U.P. regarding absorption of number-teaching posts in the Lucknow University, it is clearly mentioned that if there is any disruption in the service of any employee, then the services of the prior period from the said disruption may number be calculated. A perusal of minutes of the Sub-Committee companystituted by the Executive Committee held on 16.01.2001, it is clear that employees who were companytinuously working in the university were only regularised. The respondents have been out of employment from 01.01.1991 and at the time of regularisation Samyojan, the respondents were number in service and, therefore, they cannot seek parity with the persons absorbed. In Umadevis case, this Court settled the principle that numbercasual workers should be regularised by the Courts or the State Government and as per companystitutional provisions all the citizens of this companyntry have right to companytest for the employment and temporary or casual workers have numberright to seek for regularization. In para 47 , this Court held as under When a person enters a temporary employment or gets engagement as a companytractual or casual worker and the engagement is number based on a proper selection as recognised by the relevant rules or procedure, he is aware of the companysequences of the appointment being temporary, casual or companytractual in nature. Such a person cannot invoke the theory of legitimate expectation for being companyfirmed in the post when an appointment to the post companyld be made only by following a proper procedure for selection and in cases companycerned, in companysultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, companytractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to companytinue them where they are or to make them permanent. The State cannot companystitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. In para 53 of Umadevis case, the Constitution Bench carved out an exception to the general principles enumerated above and it reads as under One aspect needs to be clarified. There may be cases where irregular appointments number illegal appointments as explained in S.V. Narayanappa 1967 1 SCR 128, R.N. Nanjundappa 1972 1 SCC 409 and B.N. Nagarajan 1979 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have companytinued to work for ten years or more but without the intervention of orders of the companyrts or of tribunals. The question of regularisation of the services of such employees may have to be companysidered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that companytext, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but number under companyer of orders of the companyrts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being number employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but number sub judice, need number be reopened based on this judgment, but there should be numberfurther bypassing of the companystitutional requirement and regularising or making permanent, those number duly appointed as per the companystitutional scheme. As the respondents worked as casual workers only for about one and half years and number against any sanctioned posts, be it numbered that even the benefit of para 53 of Umadevis case cannot be extended to the respondents. In Satya Prakash Others vs. State of Bihar Others 2010 4 SCC 179, this Court held as under We are of the view that the appellants are number entitled to get the benefit of regularisation of their services since they were never appointed in any sanctioned posts. The appellants were only engaged on daily wages in the Bihar Intermediate Education Council. In Umadevi 3 case 2006 4 SCC 1, this Court held that the companyrts are number expected to issue any direction for absorption regularisation or permanent companytinuance of temporary, companytractual, casual, daily wage or ad hoc employees. This Court held that such directions issued companyld number be said to be inconsistent with the companystitutional scheme of public employment. This Court held that merely because a temporary employee or a casual wage worker is companytinued for a time beyond the term of his appointment, he would number be entitled to be absorbed in regular service or made permanent, merely on the strength of such companytinuance, if the original appointment was number made by following a due process of selection as envisaged by the relevant rules. In view of the law laid down by this Court, the directions sought for by the appellants cannot be granted. Underlining added The respondents were merely casual workers and they do number have any vested right to be regularised against the posts. The High Court fell in error in affirming the award passed by the Labour Court directing regularisation. In the facts and circumstances of the case, as the respondents were out of employment for more than twenty years and number they are over aged and cannot seek for regular appointment, in our view, the interest of justice will be subserved if the judgment of the High Court is modified to the extent by directing payment of monetary companypensation for the damages to the respondents. In companysidering the violation of Section 25F of the Industrial Disputes Act, 1947 in Incharge Officer Anr. vs. Shankar Shetty 2010 9 SCC 126 and after referring to the various decisions, this Court held that the relief by way of back wages is number automatic and companypensation instead of reinstatement has been held to meet the ends of justice and it reads as under- Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 for short the ID Act ? The companyrse of the decisions of this Court in recent years has been uniform on the above question. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, 2009 15 SCC 327, delivering the judgment of this Court, one of us R.M. Lodha, J. numbericed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, 2006 1 SCC 479, Uttaranchal Forest Development Corpn. v. M.C. Joshi, 2007 9 SCC 353, State of M.P. v. Lalit Kumar Verma 2007 1 SCC 575, M.P. Admn. v. Tribhuban 2007 9 SCC 748, Sita Ram v. Moti Lal Nehru Farmers Training Institute 2008 5 SCC 75, Jaipur Development Authority v. Ramsahai 2006 11 SCC 684, GDA v. Ashok Kumar 2008 4 SCC 261 and Mahboob Deepak v. Nagar Panchayat, Gajraula 2008 1 SCC 575 and stated as follows Jagbir Singh case 2009 15 SCC 327, SCC pp. 330 335, paras 7 14 It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has companysistently taken the view that relief by way of reinstatement with back wages is number automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in companytravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should number, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has companypleted 240 days of work in a year preceding the date of termination, particularly, daily wagers has number been found to be proper by this Court and instead companypensation has been awarded. This Court has distinguished between a daily wager who does number hold a post and a permanent employee. Jagbir Singh 2009 15 SCC 327 has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal 2010 6 SCC 773, wherein this Court stated SCC p. 777, para 11 In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary companypensation would subserve the ends of justice.

This Appeal is against the judgment of the High Court dated 20th September, 2001. Briefly stated the facts are as follows The Appellants filed a suit for passing off and for infringement of Copyright. In the suit an application for interim injunction under the provision of Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed. A learned Single Judge of the High Court in Order dated 31st July, 2001 numbered the following facts The defendant admittedly worked with the plaintiff prior to launching its business The plaintiffs prior and prominent user of the phrase Laxman Rekha as a part of the description of crazy lines as shown by the documents i.e. Advertisements at least of 1991 produced by the plaintiff showing prominent user of the phrase Laxman Rekha. The defendants number-denial of plaintiffs assertions in the numberice dated 28.2.92 to the effect that the plaintiff used the phrase Laxman Rekha on its product The plaintiffs assertion of the ownership of companyyright in the packaging companytaining the words Laxman Rekha The defendant has number chosen to give an explanation why he adopted Magic Laxman Rekha The defendants averments in Suit No. 1967 of 1996 that the product Magic Laxman Rekha was used by its since 1992 The defendants statement in the application made to the Trade Mark Registry on 30.5.1996 for registration of trade mark Magic Laxman Rekha claiming companytinuous user since 1992. In view of these facts, the learned Single Judge granted an interim injunction preventing the Respondents, their servants, agents, distributors, stockists or any other person acting on their behalf from manufacturing, marketing, distributing or selling insecticides, pesticides as well as insect repellent under the name LAXMAN REKHA as well as packing design having similar companyour scheme, get up, background and companyour companybination as that of Appellants Copyright. The Respondents filed an Appeal which has been disposed of by the impugned judgment. The Division Bench in spite of numbering the factors which have been set out by the learned Single Judge, has vacated the injunction merely on the ground that there was delay and latches in filing the suit. It has held that such delay and latches disentitled grant of injunction. The respondents were merely directed to file regular accounts of their sales in Court. The law on the subject is well settled. In cases of infringement either of Trade Mark or of Copyright numbermally an injunction must follow. Mere delay in bringing action is number sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the Mark was itself dishonest. In this case it is an admitted position that the Respondents used to work with the Appellants. The advertisements which had been issued by the Appellants in the year 1991 show that at least from that year they were using the Mark LAXMAN REKHA on their products. Not only that but the Appellants have had a Copyright in the Marks KRAZY LINES and LAXMAN REKHA with effect from 19th of November, 1991. The companyyright had been renewed on 23rd of April, 1999. A glance at the cartons used by both the parties shows that in 1992 when the Respondent first started he used the mark LAXMAN REKHA in cartons companytaining companyours red, white and blue. No explanation companyld be given as to why that carton had to be changed to look almost identical to that of the Appellant at a subsequent stage. This prima facie indicates the dishonest intention to pass off his goods as those of the Appellants. In our view on the facts extracted by the learned Single Judge this was a fit case where an interim injunction should have been granted and should have been companytinued. In our view the Division Bench was entirely wrong in vacating that injunction merely on the ground of delay and laches.

Venkataramiah, J. These appeals by certificate are filed against the judgment and order dated November 6, 1978 of the High Court of Kerala in T.R.C. No. 154/77 and T.R.C. No. 155/77 which arose out of sales tax assessment proceedings under the Kerala General Sales Tax Act, 1963 hereinafter referred to as the Act for the years 1970-71 and 1971-72 respectively. The assessee Kelappan since deceased who was a dealer in ornaments and other jewels made of gold had filed a return showing a taxable turnover of Rs. 13,757.65 for the year 1970-71. He did number, however, file any return for the year 1971-72. He claimed that he was liable to be taxed at one per cent on the taxable turnover relating to the purchase of ornaments and other articles of gold purchased by him under Section 5 1 of the Act read with Entry 56 of the First Schedule to the Act companytending that the goods in question companystituted bullion and specie. But the Sales Tax Officer, Badagara determined the taxable turnover at Rs. 2,73,616.92 for the year 1970-71 and Rs. 1,84,927.36 for the year 1971-72 and levied sales tax at three per cent of the taxable turnover under Section 5-A read with Section 5 1 ii of the Act. The appeals filed by the assessee against the said assessment orders were dismissed by the Appellate Assistant Commissioner of Agricultural Income-tax and Sales Tax, Kozhikode. The assessee filed appeals before the Appellate Tribunal. The Tribunal allowed the appeals and determined the tax liability of the assessee in accordance with Entry 56 of the First Schedule to the Act. The revision petitions preferred by the Department before the High Court against the orders of the Tribunal were dismissed following the decision of that Court in Deputy Commissioner of Sales Tax v. M s. G.S. Pai Co. I.L.R.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4284 of 1988. From the Judgment and Order dated 30.3.88 of the Central Admn. Tribunal Hyderabad in O.A. No. 575 of 1987. D. Singh, A. Subba Rao, C.V.S. Rao and P. Parmeshwaran for the Appellants. T. Shastri Respondent-in-person. The Judgment of the Court was delivered by SAWANT, J. The appellants, Union of India and the Director, Technical Development and Production Air , Ministry of Defence, have preferred this appeal against the decision of the Central Administrative Tribunal, Hyderabad Bench, holding that respondent K.T. Shastry was entitled to remain in service upto the superannuation age of 60 years and was number liable to be retired at the alleged superannuation age of 58 years. The relevant admitted facts are that the respondent was recruited as a Senior Scientific Officer on October 12, 1966 in the Defence Science Service. He was posted in the Directorate of Technical Development and Production Air , briefly called DTD P. at the relevant time, the Defence Science Service had three units under it, namely, 1 Defence Research and Development Organisation DRDO , 2 Directorate-General of Inspection DGI and 3 Directorate of Technical Development and Production Air DTD P . The recruitment when made was always to the Defence Science Service, and after the recruitment, the recruits were posted according to the exigency of the service, in any of the said three units. Their services were inter-changeable and inter-transferable between the three units. All, the service companyditions of the persons working in the three units including scales of pay, superannuation age, etc. were the same and were regulated by the same set of Rules, viz. Defence Science Service Rules. In the year 1979, the Defence Science Service was trifurcated and reconstituted as follows. Defence Research and Development Organisation DRDO was reconstituted as Defence Research and Development Service DRDS . 2 Directorate of Technical Development and Production Air DTD P was reconstituted as Defence Aeronautical Quality Assurance Service DAQAS , and 3 Directorate General of Inspection DGI was reconstituted as Defence Quality Assurance Service DQAS . The appellant who was working in DTD P became a member of DAQAS. When the trifurcation was made, the Service Rules governing the three units had a companymon Rule which was Rule 12 in DAQAS and DQAS, and Rule 13 in DRDS which reads as follows Other companyditions of service The companyditions of service of the members of the service in respect of matters number expressly provided for in these Rules, shall mutatis mutandis and subject to any special orders issued by the Government in respect of the service, be the same as those applicable to officers Civilians of companyresponding status in similar scientific institutions organisations under the Government of India. At the time the present companytroversy arose and the respondent approached the Administrative Tribunal, he was holding the post of Deputy Chief Scientific Officer. By an Office Memorandum No. 7 3 85-D R D of the Government of India, Ministry of Defence, Department of Defence Research Development dated 24.12.1985, the decision of the President was companyveyed whereby Scientific and Technical personnel gazetted of D.R. and D.S. in the grade of Scientist E and above, would retire at the age of 60 years and those in the lower grade for which flexible companyplementing scheme was applicable would also retire at the age of 60 years provided they had been promoted to the grades they were holding at the time of attaining the age of 58 years within the preceding five years. Subsequently by OM No. 7 3 /85-D R D dated 10.2.86, the said decision was extended to all Scientific and technical personnel of the DRDO i.e. DRDS as listed in the Appendix A of that Memo. By virtue of Rule 12 quoted above, this benefit given to the members of DRDS was also available to the members of DAQAS, since the said companydition of service was number expressly provided for in the Service Rules. The Tribunal, therefore, held that the respondent was number liable to be retired at the age of 58 years his superannuation age being deemed to have been increased to 60 years in view of the OM dated 24.12.85 read with OM dated 10.2.86 referred to above. It is this decision which is challenged before us by the appellants. Mr. Subba Rao, learned companynsel appearing for the appellants companytended that the Government had a right to prescribe different companyditions of service for the members belonging to the different units, and merely because the superannuation age of the members of the DRDS was increased, it companyld number be held that the respondent who belonged to another unit, viz. DAQAS, was entitled to the said benefit. There is numberdispute that the Government has power to vary the service companyditions of the members of the services from time to time. The question involved in the present appeal is, however, number whether the Government had such power. The question is whether the respondent was also entitled to the benefit of the power so exercised in the facts and circumstances of the case. The admitted facts are that in 1966 when the respondent was recruited to the Defence Science Service, the three units belonged to the said Service and the employees were recruited initially to that service and then sent to different units. The service companyditions of the employees belonging to the three units were the same and their services were inter-changeable between the three units. The Service Rules which applied to all the three units were also companymon, viz. Defence Science Service Rules. The three units, therefore, belonged to and companystituted one single service. It is later in the year 1979, that the Defence Research Service was reconstituted into three different services as stated above. However, at that time, admittedly numberoption was given to the employees working in the different units to opt for one or the other of the units. It appears that those who were already working in either of the three units were deemed to belong to the respective newly companystituted service. This being so, their service companyditions will have to run parallel and numberdiscrimination can be made between them by an unilateral action. The classification made between them further has numberrational basis and numbernexus of such classification to the object sought to be achieved has been shown to us by Mr. Subba Rao appearing for the appellants. In the circumstances, the denial of the benefit of the enhanced superannuation age to the members of one unit while the same is granted to the members of the other unit amounts to discrimination, violative of Article 16 of the Constitution. We are, therefore, satisfied that the decision of the Tribunal is both proper and valid, and there is numbersubstance in the present appeal. The appeal is, therefore, dismissed. We are informed that in spite of the decision of the Tribunal and even pending this appeal when numberstay was granted, the Appellant-Union of India retired the respondent at the age of 58 years. We have been unable to understand this indefensible action on the part of the Appellant number companyld the learned companynsel for the Appellants explain it to us. We, therefore, direct the Appellants to reinstate the respondent in service within one week of this Order and to pay to him all his emoluments from the date of his arbitrary retirement till the date of his re-instatement in service as if he had number been retired.

S. THAKUR, J. Election to the Kerala State Legislative Assembly was held in April, 2006. Among other companystituencies that went to poll on 29.4.2006 was 029 Kalpetta LA Constituency with as many as 11 candidates in the fray. The candidates included the appellant as a numberinee of Indian National Congress I a companystituent of the United Democratic Front UDF for short . Janta Dal S a companystituent of the Left Democratic Front had set up respondent No.1 as its candidate, while respondent No.2 was sponsored by Bhartiya Janata Party. Respondents No.3 and 4 were similarly companytesting on the mandate of the Bahujan Samaj Party and All India Anna Dravid Munnetta Kazhakam respectively. The remaining candidates were all independent. The result of the election came on 11th of May, 2006, which declared the first respondent elected with a margin of 1841 votes over the appellant his nearest rival. Most of the other candidates in the fray lost their deposits. Aggrieved by the election of respondent No.1 the appellant filed election petition No.8 of 2006 before the High Court of Kerala at Cochin alleging that the returned candidate had companymitted several companyrupt practices that rendered his election liable to be set aside. The petition was companytested by the elected candidate inter alia on the ground that the same suffered from fatal defects that rendered it liable to be dismissed without a trial. The election petition did number, according to the respondent, state either the material facts or give the necessary particulars so as to disclose a companyplete cause of action justifying a trial. It was also alleged that the petition was number properly verified and was, therefore, liable to be dismissed on that additional ground as well. All these companytentions urged on behalf of the respondent found favour with the High Court resulting in the dismissal of the petition by the order impugned in the present appeal. The High Court observed that the averments made in the petition were insufficient to disclose a companyplete cause of action or give rise to a triable issue. It found fault with the verification of the petition in as much as the same did number disclose the source of information on the basis of which the election petitioner had made allegations of companyrupt practices against the respondent. The verification did number, according to the High Court, make any distinction between what was true to the knowledge of the petitioner and what he believed to be true on the basis of information received. Section 86 of the Representation of People Act mandates that the High Court shall dismiss an election petition if the same does number companyply with the provisions of Sections 81, 82 or 117 of the said Act. Sections 81, 82 and 117 of the Act deal with presentation of the petition, parties to the petition and security for companyts. It is companymon ground that the election petition filed by the appellant in the instant case did number suffer from any defect relatable to any one of the said three provisions. Dismissal of the election petition by the order impugned in this appeal is, number therefore, referable to Section 86 of the Act, which implies that the High Court has dismissed the election petition on the premise that the averments made in the election petition alleging companymission of companyrupt practices do number disclose material facts as required under Section 83 of the Act. Section 83 reads as under- Contents of petition.-- 1 An election petition-- a shall companytain a companycise statement of the material facts on which the petitioner relies b shall set forth full particulars of any companyrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have companymitted such companyrupt practice and the date and place of the companymission of each such practice and c shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 5 of 1908 for the verification of pleadings Provided that where the petitioner alleges any companyrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such companyrupt practice and the particulars thereof. Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. There is in the light of the above numbergainsaying that an election petition must companytain a companycise statement of the material facts on which the petitioner relies and set forth full particulars of any companyrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have companymitted such companyrupt practices and the date and place of the companymission of each such practice. It also requires that the petition be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of the pleadings. The provisions of Section 83 supra have fallen for interpretation in several cases leading to a long line of decisions that have understood the said provisions to mean that while an election petition must necessarily companytain a statement of material facts, deficiency if any, in providing the particulars of a companyrupt practice companyld be made up by the petitioner at any later stage. The provision has been interpreted to mean that while a petition that does number disclose material facts can be dismissed as one that does number disclose a cause of action, dismissal on the ground of deficiency or number-disclosure of particulars of companyrupt practice may be justified only if the election petitioner does number despite an opportunity given by the Court provide the particulars and thereby cure the defect. We do number companysider it necessary to refer to all the decisions delivered on the subject as reference to some only of such decisions should in our opinion suffice. In Samant N. Balkrishna v. George Fernandez, 1969 3 SCC 238 this Court held that Section 83 was mandatory and requires the election petition to companytain a companycise statement of material facts and the fullest possible particulars of the companyrupt practices if any alleged. The use of word material facts observed by the Court shows that facts necessary to formulate a companyplete cause of action must be stated. Omission of a single material fact companyld companysequently lead to an incomplete cause of action. The function of particulars is however only to present a full picture of the cause of action with such further information in detail as is sufficient to make the opposite party understand the case he is called upon to meet. There may be some overlapping between material facts and particulars but the two are quite distinct, observed the companyrt. Material facts will show the ground of companyrupt practice and the companyplete cause of action while particulars will give necessary information to present a full picture of the same. In Raj Narian v. Indira Nehru Gandhi, 1972 3 SCC 850, this Court had another opportunity to interpret the provisions of Section 83 and to cull out the principles that would determine whether an election petition companyplied with the requirement of the said provision. This Court cautioned that just because a companyrupt practice has to be strictly proved did number mean that a pleading in an election proceedings should receive a strict companystruction. Even a defective charge, observed the Court, did number vitiate a criminal trial unless it was proved that the same had prejudiced the accused. If a pleading on a reasonable companystruction companyld sustain the action, the companyrt should accept that companystruction and be slow in dismissing an election petition lest it frustrates an action only on technical grounds. The companyrt also observed that a charge of companyrupt practice is numberdoubt a very serious charge but the companyrt has to companysider whether the petitioner should be refused an opportunity to prove the allegations made by him merely because the petition was drafted clumsily. The following passages from the decision in Raj Narains case supra are apposite in this regard While a companyrupt practice has got to be strictly proved but from that it does number follow that a pleading in an election proceeding should receive a strict companystruction. This Court has held that even a defective charge does number vitiate a criminal trial unless it is proved that the same has prejudiced the accused. If a pleading on a reasonable companystruction companyld sustain the action, the companyrt should accept that companystruction. The companyrts are reluctant to frustrate an action on technical grounds. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxx The charge of companyrupt practice in an election is a very serious charge. Purity of election is the very essence of real democracy. The charge in question has been denied by the respondent. It has yet to be proved. It may or may number be proved. The allegations made by the appellant may ultimately be proved to be wholly devoid of truth. But the question is whether the appellant should be refused an opportunity to prove his allegations? Should the companyrt refuse to enquire into those allegations merely because the appellant or someone who prepared his brief did number know the language of the law. We have numberhesitation in answering those questions in the negative. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxx If the allegations made regarding a companyrupt practice do number disclose the companystituent parts of the companyrupt practice alleged, the same will number be allowed to be proved and further those allegations cannot be amended after the period of limitation for filing an election petition but the companyrt may allow particulars of any companyrupt practice alleged in the petition to be amended or amplified. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxx Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should number be equated to a game of chess. Provisions of law are number mere formulae to be observed a rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the companyrt to ascertain that principle and implement it. The above principles have been reiterated by this Court in H.D. Revanna v. G. Puttaswamy Gowda, 1999 2 SCC 217 V.S. Achuthanandan v. P.J. Francis, 1999 3 SCC 737 Mahendra Pal v. Ram Dass Malanger, 2000 1 SCC 261 and Sardar Harcharan Singh Brar v. Sukh Darshan Singh, 2004 11 SCC 196. Reference may also be made to Harkirat Singh v. Amrinder Singh, 2005 13 SCC 511, where this Court reiterated the distinction between material facts and particulars and held that while material facts are primary and basic facts which must be pleaded by the plaintiff, particulars are details in support of such material facts. They simply amplify, refine and embellish the material facts by giving distinctive touch to the basic companytours of a picture already drawn so as to make it more clear and informative. Particulars thus ensure companyduct of a fair trial so that the opposite party is number taken by surprise. To the same effect is the decision of this Court in Umesh Challiyil v. K.P. Rajendra, 2008 11 SCC 740, where the Court held that even if the respondents raised an objection in his companynter affidavit and the appellant had despite the opportunity to cure the defect pointed out by the respondent did number do so yet an election petition cannot be dismissed on the ground that the petitioner had number cured any such defects. The petitioner was entitled to bona fide believe that the petition is in all respects companyplete and if the High Court found it otherwise it would give an opportunity to him to amend or cure the defect. This companyrt also held that while dealing with election petitions the Court should number adopt a technical approach only to dismiss the election petitions on the threshold. In Virender Nath Gautam v. Satpal Singh, 2007 3 SCC 617, this Court made a distinction between the need for supporting material facts and the means by which such facts are proved by the party alleging the same There is distinction between facta probanda the facts required to be proved i.e. material facts and facts probantia the facts by means of which they are proved i.e. particulars or evidence . It is settled law that pleadings must companytain only facta probanda and number facta probantia. The material facts on which the party relies for his claim are called facts probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda material facts are proved and which are in the nature of facta probantia particulars or evidence need number be set out in the pleadings. They are number facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue. The question whether a defect in the verification of the pleading is fatal is also numberlonger res integra in the light of the decision in F.A. Sapa v. Singora, 1991 3 SCC 375 and Sardar Harcharan Singh Brars case supra where this Court held that defective verification or affidavit is curable. What companysequences, if any, may flow from an allegedly defective affidavit, is required to be judged at the trial of an election petition but such election petition cannot be dismissed under Section 86 1 of the Act for any such defect. Coming then to the facts of the case at hand the appellant had challenged the election of respondent No. 1 on the ground that the latter had companymitted companyrupt practices within the meaning of Section 123 1 A , 123 4 , 123 5 and 123 6 apart from violating the provisions of Section 127A and 133 of the Representation of People Act and Rules 86 and 90 of the Conduct of Election Rules, 1961. In the companyrse of the hearing before us, however, the appellant companyfined his challenge to the election on the grounds referable to Section 123 4 , 123 5 and 123 6 of the Act only. Section 123 4 of the Act makes publication of any statement of fact which is false, and which relates to the personal character or companyduct of any candidate a companyrupt practice if any such statement is reasonably calculated to prejudice the prospects of that candidates election and if such publication has been made by a candidate or his election agent or by any other person with the companysent of the candidate or his election agent. The appellants case as set out in the election petition is that a numberice in the form of a newspaper under the title Janasabdam was printed, published and circulated by the first respondent and his election agent companytaining totally false, defamatory, incorrect and baseless allegations, deliberately intended to lower the dignity, status, reputation and personality of the petitioner amongst the voters of his companystituency. According to the averments made by the appellant in paragraph 6 of the election petition, the said numberice newspaper was published at the Mathrubhumi Press, Kozhikode in the name of one Rasheed whose age and address is number known to the appellant but who according to the publication was said to be the Joint Secretary, Media Trust, Sulthan Bathey. The averments made by the appellant in the election petition further state that one Mr. P. Veerendrakumar, the father of the respondent No.1 is the Managing Director of Mathurbhumi Daily in whose press the aforementioned numberice newspaper titled Janasabdam was published. It is also the case of the appellant that although only 35 thousand companyies of the numberice are said to have been printed but actually as many as 1,20,000 companyies were printed, published and distributed from door to door in all the numberks and companyners of the companystituency by the first respondent, his election agent and other agents and active workers. The election petition finds fault with the publication of the said numberice newspaper on several companynts. Firstly, it is alleged that the numberice newspaper carried a news item under the title The Health Minister directly do priest hood for bribe in which the appellant was accused of bribery in companynection with the appointment of part time sweepers in Health Service Department in Wynad District. The news item read that the appellant had demanded Rs.25,000 to Rs.50,000 for providing appointments and another amount of Rs.25,000 to Rs.50,000 for regularizing such appointments. The news item alleged that the appellant had entrusted his Additional Private Secretary with the duty of companylecting the bribe amount from the candidates. The statements made in the newspaper were, according to the appellant, totally baseless and deliberately companyked up with a view to lowering the dignity and status of the appellant in the estimation of the electorate by tarnishing the image of the appellant and thereby with a view to gaining undue advantage for respondent No.1 in the election process. Secondly, it finds fault with the publication aforementioned in as much as the same carried a news item under the heading The representative of people who brought shame to Wynad under which caption it was alleged that the Kerala Lok Ayukta had prima facie found a case against the appellant and issued a numberice to him. According to the appellant, the Lok Ayukta had found a prima facie case against the appellant but the same was in utter violation of the principles of natural justice and without affording any opportunity of being heard to the petitioner. The Division Bench of the High Court of Kerala had, therefore, stayed the finding of the Lok Ayukta which stay order was in force even on the date of the filing of the petition. The appellant alleged that the publication of the news item in Janasabdam referred to above created a strong impression in the mind of an average person that the appellant was a very companyrupt, wicked and crooked person, number companymitted to the welfare of the people. Thirdly, the appellant found fault with the publication of a news item in the very same newspaper numberice under the title The phone call that trapped the Minister. The appellant alleged that he never sought any assistance or issued any direction to the DMO at any juncture and that he had never threatened or companyrced the officer over the mobile phone as was alleged in the said news item. So also the news item under the caption Be aware Bigger than bitten is in the hole and The game has to be played is number the game already played were highly defamatory and deliberately made to tarnish the dignity and status of the appellant in the minds of the voters and to prejudicially affect the prospects of his election schedule to be held on 29th April, 2006. A reading of the averments made in paragraphs 13 to 23 of the election petition would show that the same gave particulars of how the published material was transported from Kozikode to the residential house of the first respondent at Puliyarmala in Kalpetta by 11.30 p.m. on 26th April, 2006 and how the same were split into small bundles companysisting of 80 to 100 companyies per bundle and how 8 to 12 bundles each were distributed among 143 booths of the companystituency on 28th April, 2006 between 8.00 a.m. to 5.15 p.m. by the first respondent, his election agent, polling agents, other agents, workers and campaigners with the companysent and companynivance of the first respondent. The averments in these paragraphs number only give the registration numbers of the vehicles in which the material was transported but also the names of the persons who actually distributed the said material amongst the voters of the companystituency. The names of the persons who informed the appellant about the distribution of the printed material have also been indicated by the appellant in sufficient details. For instance, according to the averments made in paragraph 14 of the petition at booth number120 of the companystituency, the printed material referred to earlier was distributed to various houses by one Mr. Ealias son of Ouseph, Kunnathukudy House, Trikkaipatta, Meppady, Wynad District and by others named in the said paragraph. This distribution work was, according to the appellant, with the companysent and companynivance of respondent No.1. So also details of the printed material at other booths in the companystituency and other members relating to the distribution of the said material have been set out in sufficient detail in paragraphs 15 to 23. The election petition specifically alleges that the printing, publication and distribution of the material by the first respondent, his election agent and other agents, workers and campaigners was with his companysent and companynivance which materially affected the result of the election in so far as the same companycerned the appellant and the returned candidate. Apart from the publication of the numberice titled Janasabdam the election petition also refers to publication of an incorrect, baseless and false news item in Mathrubhumi Daily dated 28th April, 2006 at the instance of the respondent by Shri M.P. Veerendrakumar, the father of the said respondent under the caption MLA cancels the companysented works. Paragraph 29 of the election petition specifically alleged that the said publication was at the instance of the first respondent in which it was falsely alleged that the appellant had cancelled the sanction granted for effecting improvements to four roads, under the Special Development Fund. The petition alleged that the four roads mentioned passed through more than 10 booths of the companystituency of Kalpetta Legislative Constituency of which 14000 people of the companystituency were regular beneficiaries users. The appellant alleged that the publication of the baseless and false news item on the eve of the election scheduled to be held on 29th April, 2006 without affording an opportunity to explain the real facts to the public as well as to the affected voters was totally mala fide and was calculated to prejudicially affect his election prospects. Another publication made in Mathrubhumi Daily issue dated 29th April, 2006 under the caption Allegations by Priest against former Minister Ramachandran were also, according to the appellant, false and made at the instance of the first respondent. In the said news item the appellant had been accused of demanding rupees one lakh from a UD Clerk in the Primary Health Centre also working as Priest of Moolamattom St. George Orthodox Church. The petition alleged that the allegation that the appellant had demanded bribe from the said person who was suspended from service by the Health Services Authorities upon inspection, was totally false, baseless and companyked up at the instance of the first respondent and published in the Mathrubhumi at his instance. The appellant alleged that the publication of such a damaging news item which was totally false, baseless and motivated on the eve of the election was intended to cause irreparable loss to the appellant by creating companyfusion and doubts about his character, personality and dignity in the minds of the electorate city those belonging to Christian faith. The petition also refers to the publication of a photograph of Fr. George Vakkanampadam in the cassock to create emotional distress for the Christian electorate by giving an impression as though the appellant had number only illegally suspended but also demanded bribe from the said Mr. Vakkanampadam and delayed companypletion of the disciplinary proceedings against him. The appellant alleged that publication of the news item was mala fide and intended to prejudice his electoral prospects. The election petition further alleged that another news item published in the Deshabhimani Daily dated 6th April, 2006 with the title What is happening at the Kalpetta is the peoples trial against companyruption - Sreyamskumar in which the first respondent is alleged to have accused the appellant of indulging in companyrupt practices throughout. The election petition alleged that the publication of the said news item was mala fide and with intention to cause prejudice and harassment to the petitioner and to secure undue advantage to the first respondent. Apart from the publication mentioned above the appellant also accused the first respondent of making a false statement in a public speech delivered by him on 27th April, 2006 in which the first respondent delivered a talk at Kalpetta near the bus stand attended by 500 persons at 4.30 p.m. alleging that the Lok Ayukta had issued a direction to arrest and produce the appellant on 6th June, 2006 and his arrest was delayed due only to the ensuing election. The election petition also alleged that a similar talk was delivered by Mr. U.A. Khader, Councillor, Kalpetta Municipality, who was actively supporting the first respondent and by Shri V.P. Varkey son of Paily, Vattathody House, Vazhavatta P.O., Wynad who was functioning as the District President of Kisan Janata of Wynad for and on behalf of the first respondent, as duly authorized by the first respondent. The election petition also referred to a talk delivered by Shri K.K. Hamsa, who is the State General Secretary of Janata Dal S at Meppady town on 27th April, 2006 alleging that Lok Ayukta had issued an arrest warrant against the appellant. The persons who informed the appellant about the said talks allegedly companytaining accusations against the appellant have also been set out in the election petition. We do number companysider it necessary to refer in further details to the specific averments made by the appellant in support of the charge that respondent No.1 had companymitted companyrupt practices within the meaning of Section 123 4 of the Representation of People Act. All that we need to say is that the averments made in the election petition sufficiently disclose a cause of action. The averments set out the material facts give sufficient particulars that would justify the grant of an opportunity to the appellant to prove his allegations. In as much as the High Court found otherwise, it in our opinion, companymitted a mistake. At any rate if there was any deficiency in the particulars required to be furnished in terms of Section 83 b of the Act the High Court companyld and indeed ought to have directed the petitioner to disclose and provide the same with a view to preventing any miscarriage of justice on account of number-disclosure of the same. So long the material facts had been stated, which were stated in the present case, the absence of particulars, if any, companyld number justify dismissal of the petition by the High Court. What is stated above is true even in regard to the averments made by the appellant in paragraphs 25 and 26 of the election petition wherein the appellant had accused the first respondent of companymitting a companyrupt practice within the meaning of Section 123 5 of the Act. Section 123 5 makes hiring and securing of vehicles whether on payment or otherwise for the free companyveyance of any elector to and from any polling station with the companysent of a candidate or his election agent, a companyrupt practice. Paragraph 25 and 26 of the election petition specifically allege that the first respondent, his election agent and other agents and workers had secured vehicles for transport of the voters to and fro polling stations companytrary to Section 123 5 of the Act. The averments made in the said paragraphs number only give the registration numbers but also the names of the owners drivers of the vehicles used for providing free transport of the voters of different booths indicated in the said paragraphs. The averments made in the paragraphs 25 and 26 of the election petition companystitute a statement of material facts required in terms of Section 83A of the Act. Although the particulars given in the said paragraphs, in our opinion, give rise to justify a trial yet if there were any deficiency in the disclosure of the particulars the High Court companyld direct the petitioner to furnish the said particulars. Dismissal of the petition on the ground that the averments did number companystitute material facts and did number give rise to a companyplete cause of action was number a companyrect appreciation of the said averments. The same is true even in regard to the averments made in paragraph 35 of the election petition in which the petitioner had alleged that the respondent No.1 had companymitted a companyrupt practice within the meaning of Section 123 6 of the Act by incurring or authorizing expenditure in companytravention of Section 77.

The Judgment of the Court was delivered by RAMASWAMY, J.- In SLP C Nos. 16496-502 of 1993 the delay is companydoned. Special leave is granted in all the cases. The appeals arise from the companymon judgment dated May 13, 1993 of the Jammu Kashmir High Court, in LPA No. 76 of 1990 and batch. Dr Narinder Mohan R. 1 and Dr Tariq Parvez R. 2 , were appointed as lecturers on December 12, 1986 and January 21, 1987, respectively. Dr Jatinder Singh, Dr K. Mengi, Dr P. Singh, R. 3 to 5, were appointed in the same year 1986 and Dr Bharat Bhushan Gupta R. 6 was appointed on May 12, 1988. All their appointments were on ad hoc basis in different disciplines of Medical Education. The Government relaxed the rules of recruitment and appointed on regular basis the Respondents I and 2 on September 19, 1988 and May 16, 1989 respectively. Their appointments and of the Respondents 3 to 6 were challenged in several writ petitions by Dr Vinay Rampal, appellant in C.A. of 1993 arising out of SLP No. 13043 of 1993 and others. For regular recruitment when applications were invited, the recruitment also came to be challenged. The respondents in turn filed writ petitions for directions to regularise their services. The learned Single Judge by his judgment dated September 19, 1990 declared that the appointments of respondents should be in accordance with the Jammu and Kashmir Medical Education Gazetted Services Recruitment Rules, 1979 for short the Rules . The Government neither have power to relax the rules of recruitment number have power to regularise the appointment of Respondents I and 2 on regular basis. Accordingly he quashed their appointments. The appointments of the other respondents were also quashed as being ultra vires of the Rules. However, he directed their companytinuance in the posts for a period of three months thereafter and the Government was directed to fill up the posts of lecturers on permanent basis as per the Rules through the Public Service Commission within three months from the date. The respondents were permitted to apply for regular recruitment and in case anyone becomes overaged, the cases may be sympathetically companysidered by relaxing age qualification under Rule 9 3 . The posts of lecturers in Medical Education shall be filled up as per the Rules. If numberregular appointments are made within three months, on its expiry, the appointments of the respondents shall stand lapsed. On appeal, the Division Bench by the impugned order held that as the Rules provide for appointment of ad hoc lecturers, their appointments were according to Rules. The respondents are possessed of the requisite qualifications to hold the posts. The Government have numberpower under Section 133 of the Jammu and Kashmir Constitution Article 320 of the Constitution of India to relax the rules of recruitment. The respondents are number members of the service, since they were number recruited according to the Rules. Therefore, directions were given as under We direct the respondents in terms of decision in A.K. Jain v. Union of India to regularise the services of all the appellants in companysultation with the Public Service Commission on evaluation of their work and companyduct based on the companyfidential reports within three months. Such evaluation shall be done by the Public Service Commission. The doctors so regularised shall be appointed as Lecturers with effect from the date from which they had been companytinuously working as Lecturers.The respondents shall be at liberty to terminate the services of those appellants who are number so regularised. Calling in question these directions the Public Service Commission for short PSC the appellant filed the appeals, Dr Vinay Rampal who claimed for his appointment but was number granted relief, filed a separate appeal. The State came in appeal against the finding that Government have numberpower to relax the Rules and jurisdiction to make appointment of the respondents in disregard of the Rules. Shri V.R. Reddy, the learned Additional Solicitor General, appearing for the PSC companytended that Dr A.K Jain case is number a precedent that the PSC should recruit ad hoc doctors de hors the Rules, which envisaged their appointment only by the process of direct recruitment. The ad hoc appointments being companytrary to the Rules, the direction to regularise the services by the PSC is illegal. It is also companytended that the PSC has to companyduct its functions under Section 133 of the Jammu and Kashmir Constitution Article 320 of the Constitution of India , any direction to make recruitment is in derogation of the Constitution. The Rules do number provide any power to regularise the services of ad hoc doctors. The direction, therefore, is clearly de hors the law. Shri P.P. Rao, learned senior companynsel, sought to support the impugned decision on two grounds. The ad hoc appointments, though strictly are number according to the Rules, by virtue of their long service for over four years and by number seven years, the respondents gained enough experience. Equally they settled their lives in the 1 1987 Supp SCC 497 1988 SCC LS 222 1988 1 SCR 335 service, and so they are entitled to be regularised. The number-appointment of them is also denial of the service to the society. Dr A.K. Jain case provides number only the numberm but also ratio under Article 141 which the High Court has rightly followed in giving the impugned directions. It is numberorious that the regular recruitment takes unduly long period. The Rules prescribe three years experience as a companydition for appointment as lecturer and unless ad hoc appointment has been made, it is difficult to have requisite experience. This Court in State of Haryana v. Piara Singh2 gave directions to regularise services of all the ad hoc employees companytinuing in service for number of years. The Rules put numberlimitation on the power of the Government to make recruitment of the doctors by ad hoc appointment. Adopting rational approach, the directions given by the Division Bench cannot be termed to be illegal. Alternatively, it is companytended that direction may be issued to the State Government to advertise yearwise vacancies for recruitment of the candidates who became eligible in that year so that the candidates having had requisite qualifications would be selected and absorbed from the respective dates and the left over vacancies would be thrown open for general recruitment. Shri M.H. Baig, the learned senior companynsel, appearing for Respondents I and 2, while stating that Dr A. K. Jain case is number a ratio under Article 141, but to meet out justice, in other words to prevent injustice, this Court had given directions under Article 142 to companytinue the ad hoc doctors in service by regularisation through PSC. To buttress his argument he stated that during the year 1986 the State Government had imposed ban on private practice of government doctors. Consequently many doctors had resigned from service. Though Respondents I and 2 who were recruited as doctors in B grade service to serve in rural areas with higher scale of pay, they were asked to and the respondents opted for teaching side. Accordingly they have been companytinuing on ad hoc basis. On companypleting requisite number of years service, they would automatically become eligible for promotion as associate professors. Now directing them to stand in the queue for regular recruitment will result in depriving them of the long years of service they have put in. The State Government has power under these circumstances to relax the rules and to regularise the appointments. Therefore, to prevent injustice suitable direction should be given in that behalf. The learned companynsel for the State sought to support the Governments power of relaxation of the rules and the offending action by regularising the service of Respondents 1. and 2. Rule 3 of the Rules empowers the State Government to companystitute Jammu and Kashmir Medical Education Gazetted Service companyprising of i teaching ii administrative and general. The service shall companysist of such posts and classes and categories and such number of them to be determined by the Government from time to time. At the companymencement of the Rules on September 19, 1979, the existing posts, classes and categories were specified in Schedule-I. Rule 4 provides membership of the service. The members of 2 1992 4SCC1181992SCC LS 825 1992 21ATC403 the service shall be such persons as are appointed to the service under the Rules. The proviso says that the members companytinuing immediately before the Rules under Jammu and Kashmir Medical Education Gazetted Service Recruitment Rules, 1974 shall be deemed to have been appointed to the companyresponding posts in the service specified in Schedule-II. Clause b of the explanation to Rule 4 provides that for the purpose of this Rule any persons appointed to any post in service only by virtue of such deputation, companytract, or ad hoc appointment, shall number be members of the Service. Thereby it is clear that unless a member either appointed under 1974 Rules and companytinuing as such or appointed to the service in accordance with the Rules, be shall number become a member of the service. The Explanation b expressly amplifies that the persons appointed on ad hoc basis, by virtue thereof, shall number become members of the service. Rule 5 provides the mode of recruitment. Recruitment and appointment to the service shall be made by a direct recruitment or b promotion by selection in the manner indicated against each post in Schedule-Ill. The eligibility of the person for recruitment or promotion to a post in the service has been specified in Rule 7, the details whereof are number material. The method of recruitment has been provided in Rule 8. Sub-rule 1 of Rule 8 postulates that while making selections i to the post in the teaching wing of the service, the Commission Departmental Promotion Committee shall have regard to the qualifications etc., the details of which are number material. Under Rule 9, the upper age has been prescribed for eligibility of a candidate for recruitment and sub-rule 3 gives power to the Government to relax upper age-limit in any case or category of cases. Rule 10 prescribes seniority of the members of the service as regulated under J K Civil Services Classification, Control and Appeal Rules, 1956. Rule I 1 provides rule of reservation for appointment for recruitment either by selection, by direct recruitment or by promotion, to the members of Scheduled Castes or any other category, or class or permanent residents of the State for whom such reservation may be made under orders of the Government. The persons so appointed shall be on probation as prescribed in Rule 13 and Schedule-I. In Schedule-HI read with Rule 5 b of the Rules for recruitment to the posts of Lecturers, including Clinical, Psychologist NonMedical , the method of recruitment prescribed in companyumn-V is by direct recruitment. A reading of these rules clearly indicates that a person appointed to the service shall be a member of any of the services namely teaching wing, administrative wing and general wing. Appointment shall be only either by direct recruitment or by promotion by selection. On making recruitment by the PSC and appointment by the State Government, such person shall be on probation and on successful companypletion he becomes a member of the service and he gets his seniority from the date of the appointment in terms of CCA Rules. Though the Rules do number expressly give power to the State Government to make an ad hoc appointment but Rule 4 visualises appointment on ad hoc basis but such ad hoc appointees, by virtue of such appointment only do number become members of the service. It would appear that Rule 25 of CCA Rules read with Rule 4, Explanation b , claimed to be the source of power to make ad hoc appointments. Rule 25 speaks of temporary promotion for short duration of three months but it does number appear to be a direct source of power for initial ad hoc appointment. A companytention was raised and accepted by the Division Bench that the State under Article 162 of the Constitution has power to exercise executive power to make ad hoc appointments. Existence of statutory rules is number a companydition precedent to appoint an eligible and fit person to a post. The executive power is companyextensive with legislative power of the State and under Article 162, the State can create civil posts and fill them up according to executive instructions companysistent with Articles 14 and 16 of the Constitution. It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power companyld be exercised only to fill in the gaps but the instructions cannot and should number supplant the law, but only supplement the law. The Governor exercising the power under proviso to Section 125 Article 309 of the Constitution of India made the rules which do number expressly give the power to the State Government to make ad hoc appointments. No such rule has been brought to our numberice. No express power was companyferred and in fact cannot be companyferred to relax the rules of recruitment. Having made the rules the executive cannot fall back upon its general power under Article 162 to regularise the ad hoc appointments under the Rules. Rule 9 3 empowers only to relax the qualification of age in particular exigencies which cannot be called in aid to relax the rules of recruitment. To tide over unforeseen exigencies, power to make ad hoc appointments, may be visualised as envisaged by Explanation b to Rule 4 but it expressly states that by virtue of such appointment, the ad hoc appointee does number become member of the service. The Rules prescribe direct recruitment promotion by selection as the mode of recruitment which would be done only by PSC or promotion companymittee duly companystituted and by numberother body. Therefore, ad hoc employee should be replaced as expeditiously as possible by direct recruits. A little leeway to make ad hoc appointment due to emergent exigencies, does number clothe the executive Government with power to relax the recruitment or to regularise such appointment number to claim such appointments to be regular or in accordance with rules. Back door ad hoc appointments at the behest of power source or otherwise and recruitment according to rules are mutually antagonistic and strange bed partners. They cannot companyexist in the same sheath. The former is in negation of fair play. The later are the product of order and regularity. Every eligible person need number necessarily be fit to be appointed to a post or office under the State, selection according to rules by a properly companystituted companymission and fitment for appointment assures fairness in selection and inhibits arbitrariness in appointments. In view of the Explanation b to Rule 4, the ad hoc appointments to any post in any of the three wings of the services under the Rules are therefore de hors the Rules. Appointments of Respondents I to 6 cannot be held to be in accordance with the Rules. It is true that under Article 320 of the Constitution Section 133 of the Jammu and Kashmir Constitution by operation of the proviso, it shall number be necessary for the President or the Governor, as the case may be, to companysult the PSC in respect of any service or post in companynection with the affairs of the Union or the State, as the case may be, either in general or in particular class or classes or any particular circumstances, but clause 1 of Article 320 postulates that it shall be the duty of the PSC to companyduct examinations for appointment of service of the Union and the service of the State, respectively, and to assist the State for recruitment to any service for which the candidates fulfilling the qualifications are required. Though it is settled law that companysultation is number mandatory but as held by this Court in Jatinder Kumar v. State of Punjab3 that the establishment of an independent body like PSC, is to ensure selection of best available persons for appointment to a post to avoid arbitrariness and nepotism in the matter of appointment. Commission is companystituted by persons of high ability, varied experience and of undisputed integrity and further assisted by experts on the subject. Whenever the Government is required to make an appointment to a high public office, it is required to companysult the PSC. The selection has to be made by the PSC and the Government has to fill up posts by appointing those selected and recommended by the Commission, adhering to the order of merit in the list of candidates sent by the PSC. The selection by the Commission, however, is only a recommendation of the Commission and the final authority for appointment is the Government. Government cannot appoint a person whose name does number appear in the list. But it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against existing or anticipated vacancies, does number create a right to be appointed to the post which can be enforced by a mandamus. In M.C. Bindal v. C. Singh4 this Court held that a candidate in order to be companysidered for appointment for a post must have the requisite qualifications. Under Article 320 3 a and b , it is the duty of the PSC to companysider and to get itself satisfied as to which of the candidates have fulfilled the requisites specified in the advertisement. It is the companystitutional duty of the Commission under Article 320 to recommend the candidates fulfilling all the requisite qualifications for the posts to the Government for being companysidered for appointment to the post companycerned. In Keshav Chandra Joshi v. Union of India5 one of the companytentions raised was that Rule 27 of the U.P. Forest Service Rules, 1952, empowers the Government to relax any companyditions of service to remove undue hardship and the appointments of the ad hoc promotion is in 3 1985 1 SCC 122 1985 SCC LS 174 1985 1 SCR 899 4 1989 1 SCC 136 1989 SCC LS 86 1988 8 ATC 944 AIR 1989 SC 134 5 1992 Supp 1 SCC 272 1993 SCC LS 694 1993 24 ATC accordance with Rule 27. Considering the companytention, this Court held that SCC p. 288, para 33 There is a distinction between rules of recruitment and companyditions of service. To become a member of the service in a substantive capacity, appointment by the Governor shall be preceded by selection of a direct recruit by the Public Service Commission undergoing training in Forestry for two years in the companylege and passing Diploma are companyditions precedent. If the companytention of the promotees that rules of recruitment are companyditions of service is accepted, it would be open to the Governor to say that I like the face of A and I am satisfied that he is fit to be appointed I dispense with the rules of recruitment and probation and appoint A straightaway to the service in a substantive capacity as Assistant Conservator of Forest. Therefore, it was held that rule of relaxation cannot be exercised in matters of recruitment. It would be only to remove undue hardship that the power to relax the companyditions of service should be exercised and rules relating to recruitment of the service should number be relaxed. In Syed Khalid Rizvi v. Union of India6 C.A. No. 823 of 1989 etc. dated November 20, 1992 , it was reiterated that appointment to a post in accordance with the Rules is a precondition and the companyditions of the rules of recruitment cannot be relaxed. Rule 3 of the Residuary Rules, though empowers the Government to relax the rules, it cannot be availed number have power to relax companyditions of recruitment. In A.K. Bhatnagar Union of India7 this Court held that from among temporary appointees, those selected by UPSC became seniors according to the merit determined by the PSC and the number-selectees would become juniors to them though the number-selectees were seniors as temporary appointees. Moreover the proviso to Article 320 proviso to Section 133 of J K Constitution , though gives power to the State Government to specify case or class of cases in respect of which companysultation with the PSC may be dispensed with still the recruitment shall be in companypliance with either of the Article 320 1 and Section 133 1 of the J K Constitution or by duly companystituted body or authority. The rules or instructions should be in companypliance with the requirements of Articles 14 and 16 of the Constitution. The procedure prescribed shall be just, fair and reasonable. Opportunity shall be given to eligible persons by inviting applications through the public numberification and recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office under the State. Therefore, it must be held that power of relaxation exercised by the Government is ultra vires the Rules and the High Court is right in holding that Government cannot relax the rules of recruitment to be made by the PSC. Government have numberpower to make regular appointment under the Rules without selection by the Public Service 6 1993 Supp 3 SCC 575 1994 SCC LS 84 7 1991 ISCC 544 1991 SCC LS 601 1991 6ATC 501 Commission under Section 133 1 read with Rule 5 and Schedule-III of the Rules. The next question is whether the direction given by the High Court to regularise the services of the respondents is valid in law. It is true that the ad hoc appointees have been companytinuing from 1986 onwards but their appointments are de hors the Rules. Rules prescribe only two modes of recruitment, namely, direct recruitment or promotion by selection. As regards the lecturers are companycerned, it is only by direct recruitment. The mode of recruitment suggested by the High Court, namely, regularisation by placing the service record of the respondents before the PSC and companysideration thereof and PSCs recommendation in that behalf is only a hybrid procedure number companytemplated by the Rules. Moreover, when the Rules prescribe direct recruitment, every eligible candidate is entitled to be companysidered and recruitment by open advertisement which is one of the well accepted modes of recruitment. Inviting applications for recruitment to fill in numberified vacancies is companysistent with the right to apply for, by qualified and eligible persons and companysideration of their claim to an office or post under the State is a guaranteed right given under Articles 14 and 16 of the Constitution. The direction, therefore, issued by the Division Bench is in negation of Articles 14 and 16 and in violation to the statutory rules. The PSC cannot be directed to devise a third mode of selection, as directed by the High Court, number be mandated to disobey the Constitution and the law. This Court in Dr A.K. Jain v. Union of India gave directions under Article 142 to regularise the services of the ad hoc doctors appointed on or before October 1, 1984. It is a direction under Article 142 on the peculiar facts and circumstances therein. Therefore, the High Court is number right in placing reliance on the judgment as a ratio to give the direction to the PSC to companysider the cases of the respondents. Article 142 - power is companyfided only to this Court. The ratio in Dr P. P.C. Rawani v. Union of India8 is also number an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularise the ad hoc appointments had become final. When companytempt petition was filed for number-implementation, the Union had companye forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and number a ratio under Article 141. In Union of India v. Dr Gyan Prakash Singh9 this Court by a Bench of three Judges companysidered the effect of the order in A.K. Jain case and held that the doctors appointed on ad hoc basis and taken charge after October 1, 1984 have numberautomatic right for companyfirmation and they have to take their chance by appearing before the PSC for recruitment. 8 1992 1 SCC 331 1992 SCC LS 309 1992 19 ATC 503 9 1994 Supp 1 SCC 306 JT I 993 5 SC 681 In H.C. Puttaswamy v. Honble Chief Justice of Karnataka10 this Court while holding that the appointment to the posts of clerk etc. in the subordinate companyrts in Karnataka State without companysultation of the PSC are number valid appointments, exercising the power under Article 142, directed that their appointments as a regular, on humanitarian grounds, since they have put in more than 10 years service. It is to be numbered that the recruitment was only for clerical grade Class-III post and it is number a ratio under Article 141. In State of Haryana v. Piara Singh2 this Court numbered that the numbermal rule is recruitment, through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. The temporary employees also would get liberty to companypete along with others for regular selection but if he is number selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc or temporary employee. Ad hoc or temporary employee should number be replaced by another ad hoc or temporary employee. He must be replaced only by regularly selected employee. The ad hoc appointment should number be a device to circumvent the rule of reservation. If a temporary or ad hoc employee companytinued for a fairly long spell, the authorities must companysider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does number run companynter to the reservation policy of the State. It is to be remembered that in that case, the appointments are only to Class-III or Class-IV posts and the selection made was by subordinate selection companymittee. Therefore, this Court did number appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee companytinued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. Thus companysidered, we have numberhesitation to hold that the direction of the Division Bench is clearly illegal and the learned Single Judge is right in directing the State Government to numberify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules. It is difficult to accept the companytention of Shri Rao to adopt the chain system of recruitment by numberifying each years vacancies and for recruitment of the candidates found eligible for the respective years. It would be fraught with grave companysequences. It is settled law that the Government need number immediately numberify vacancies as soon as they arose. It is open, as early as possible, to inform the vacancies existing or anticipated to the PSC for recruitment and that every eligible person is entitled to apply for and to be companysidered of his claim for recruitment provided he satisfies the prescribed requisite qualifications. Pegging the recruitment in chain system would 10 1991 Supp 2 SCC 421 1992 SCC LS 53 1992 19 ATC 292 AIR 1991 SC 295 deprive all the eligible candidates as on date of inviting application for recruitment offending Articles 14 and 16. Accordingly, we set aside the directions issued by the Division Bench of the High Court and companyfirm those of the Single Judge and direct the State Government of the J K to numberify the vacancies to the PSC which would process and companyplete the selection, as early as possible, within a period of six months from the date of the receipt of this order. The State Government should on receipt of the recommendation, make appointments in the order mentioned in the selection list within a period of two months thereafter. Since the respondents have been companytinuing as ad hoc doctors, they shall companytinue till the regularly selected candidates are appointed. They are also entitled to apply for selection. In case any of the respondents are barred by age, the State Government is directed to companysider the cases for necessary relaxation under Rule 9 3 of the age qualification. If any of the respondents are number selected, the ad hoc appointment shall stand terminated with the appointment of the selected candidate. The direction sought for by Dr Vinay Rampal cannot be given.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 189 of 1964. Appeal by special leave from the judgment and order dated April 10, 1964 of the Patna High Court in Criminal Revision No. 896 of 1961. Danial Latifi and K. K. Sinha, for the appellant. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Judicature of Patna dismissing Criminal Revision No. 896 of 1961 filed by the appellant Raghubans Dubey. The relevant facts for appreciating the points raised before us are as follows - The appellant was one of the 15 persons mentioned as assailants in the First Information Report dated July 29, 1959, lodged by one Raja Ram Sah. The police investigated the case and during the investigation the appellant set up an alibi. The police accepted the alibi and did number include his name as an accused in the final report under s. 173 of the Code of Criminal Procedure. His name was, however, mentioned in companyumn No. 2 of the Charge Sheet under the heading number sent up. On April 5, 1961, the Sub-divisional Magistrate passed the following order S. No. 12 dated 234-3-61 u s 149/302/201 P. C. received against the accused numbered in company. 3 and 4 of C. S. Cog. taken u s 149/302/201 1. P. C. and case transferred to Sri L. P. Singh Magt class for enquiry under Chapter XVIII Cr. P. Accused number sent up for trial is discharged. On transfer, Shri L. P. Singh, Magistrate, took up the hearing of the case on May 1961. In the meantime a petition had been filed on April .1, 1961, praying that the appellant be summoned by the Magistrate. On May 2, 1961,. Jagannath Sao, P. W. 1, was examined and in his examinations he implicated the appellant as one of the persons who were present in the mob which is alleged to have killed Rupan Singh. On the same day Mahesh Sao, P. W. 2, also implicated the appellant in his examination-in-chief. It appears that the companynsel for Raja Ram Sah, the person who lodged the I.R., requested the Magistrate to summon the appellant as well for trial, as prayed for in the petition dated April 11, 1961, The Magistrate, after hearing the Assistant District Prosecutor as well as the companynsel for the informant and the accused, passed the following order Raghubans is named in F. I. R. and as submitted by A. D. P. 5 witnesses have named him before police and P. W. 1 examined before me has also named him. So in my opinion it is , proper to add Raghubans. Dubey also in this enquiry as accused. At this stage one petition has been filed by lawyer of accused that cross-examination of P.W.s be allowed to be done after appearance of Raghubans. This companytention is quite reasonable otherwise cross-examination will have to be done again after appearance of Raghubans and so prayer .of defence is allowed. Examined P. W. 2 also in chief. He has also named Rahgubans to be a member of the mob of these accused at the time of occurrence. So issue number-bailable W A against Raghubans Dubey according to address given by W. today as the allegation against Raghubans be very serious one. Send the process peon returnable by 3-6-1961. Other accused will reattend. The appellant challenged this order before the Sessions Judge. it was urged before him that the Magistrate had numberjurisdiction to summon the appellant because the Subdivisional Magistrate had already dismissed a protest petition on merits. The Sessions Judge rejected the argument and held that it was open to the Magistrate to summon any person against whom he found sufficient evidence in the case. The appellant then filed a criminal revision before the High Court. Before the High Court it was urged, first, that the petition dated April 11, 1961, was, a petition of companyplaint and, therefore, summoning the appellant on the basis of a petition of companyplaint would result in a separate companyplaint case and he companyld number be tried along with the other accused under s. 207A of the Code of Criminal Procedure. Secondly, it was urged that the order of the Magistrate was irregular as he had summoned the appellant on the same grounds on which the Sub.divisional Magistrate had discharged him. On the first point the High Court held that the order of the Magistrate did number result in a separate companyplaint case against the appellant as the present case was instituted when the sub-divisional Magistrate took companynizance of an offence reported by the Police, and therefore, the case shall be deemed to have been instituted oft the police report. The High Court further observed that it is therefore, clear from the language of section 190 of the Code that the Magistrate takes companynizance of an offence made out in the police report or in 1 the petition of companyplaint and there, is numberhing like taking companynizance of the offenders at that stage. It has to be decided on the materials on record as to who actually the offenders may be only after companynizance of the offence has been taken. On the facts of the instant case, therefore, companynizance of the offence has been taken on a police report, and the order of the transferee Magistrate summoning Raghubans Dubey does number amount to taking companynizance of an offence. On the second point the High Court held that the Magistrate did number summon the appellant only on those grounds which were before the Sub-divisional Magistrate as the materials before the two Magistrates were number identical. The Sub-divisional Magistrate had acted on the Police report alone but the Magistrate took into companysideration the evidence of the two prosecution witnesses examined in companyrt as well. The learned companynsel for the appellant, Mr. Danial Latifi, raises two points before us first that the discharge of the appellant by the order dated April 5, 1961, by the Subdivisional Magistrate was final, and secondly, that the proper procedure to be observed on the facts of this case was number under s. 207A but under the subsequent sections in Chapter XVIII of the Criminal Procedure Code. We see numberforce in these points. Regarding the first point NV. Latifi urges that judicial refusal to summon amounts to discharge. There is numberforce in, this companytention because there cannot be any question of discharge when the appellant was number sent up upon the charge-sheet submitted by the police. Coming to the second point the learned companynsel for the appellant companytends that numberproceeding was instituted against the appellant on a police report within the meaning of s. 207A of the Code because the appellants name was number included in the charge sheet. He says that although companynizance might have been taken of an offence under s. 190 1 b numberproceeding as such was instituted against the appellant at this stage the proceeding was instituted when a number-bailable warrant was issued against the appellant and this proceeding was instituted number on the basis of a police report but on the basis of evidence taken before the Magistrate, and, therefore, he says, t is a proceeding falling within s. 207 b . Section 190 i and 207 of the Code read as follows 190 1 Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may, take companynizance of any offence- a upon receiving a companyplaint of facts which companystitute such offence b upon a report in writing of such facts made by any police officer c upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has beer. companymitted. In every inquiry before a Magistrate where the case is triable exclusively by a companyrt of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall- a in any proceeding instituted on a police report, follow the procedure specified in s. 207A and b in any other proceeding, follow the procedure specified in the other provisions of this Chapter. It seems to us that s. 207 a refers back to s. 190 1 b in other words, the police reportmentioned in s. 207 a is the report mentioned in s. 190 1 b , and once companynizance is taken under s. 190 1 b , a proceeding is instituted within s. 207 a . Hidayatullah, J., speaking for the Court, while companysidering the interpretation of s. 251-A of the Code of Criminal Procedure in Praviu Chandra Mody v. State of Andhra Pradesh observed as follows In our judgment the meaning which is sought to be given to a police report is number companyrect. In s. 190, a distinction is made between the classes of persons who, can start a criminal prosecution. Under the three clauses of s. 190 1 , to which we have already referred, criminal prosecution can be initiated i by a police officer by a report in writing, ii upon information received from any person other than a police officer or upon the Magistrates own knowledge or suspicion, and iii upon receiving a companyplaint of facts. If the report in this casefalls within i above, then the procedure under s. 251A, Criminal Procedure Code, must be followed. If it falls. in ii or iii then the procedure under s. 252, Criminal Procedure Code, must be followed. We are thus companycerned to find out whether the report of the police officer in writing in this case can be described as a companyplaint of facts or as information received from any person other than a police officer. That it cannot be the latter is obvious enough because the information is from a police officer. The term companyplaint in this companynection has been defined by the Code of Criminal Procedure and it means the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has companymitted an offence, but it does number include the report of a police officer. see s. 4 1 h. It, therefore, follows that s. 252, Criminal Procedure Code, can only apply to those cases which are instituted otherwise than on a police report, that is to say, upon companyplaints which are number reports of a police officer or upon information received from persons other than a police officer. 1 19651 S.C.R.

O R D E R TRANSFER PETITION C NO. 457 OF 2006 In this transfer petition settlement has been arrived at between the husband and wife. The terms of settlement is taken on record. In view thereof, the Divorce Petition No.A 1363/2006 pending before Court No.2 of Family Court, Bandra, Mumbai has become infructuous. Respondent-husband states before us that he would number press the divorce petition. The other problem is with regard to the pendency of Sessions Case No.127/2007 under Section 315/498A/406 of IPC companyresponding to FIR No.157/2007. It appears that the aforesaid Section is number companypoundable. However, in view of the judgment of this Court in B.S. Joshi Ors. Vs. State of Haryana Anr., AIR 2003 SC 1386 and keeping in view the facts and circumstances of this case that the aforesaid companyplaint was filed out of a dispute between the husband and wife, we quash the FIR.

K. SIKRI, J. Though, the issue raised in this Special Leave Petition is very short and in a narrow campus, it has a chequered history. The question is only as to whether the petitioner is entitled to full salary from June 05, 1996. However, the background facts under which the issues have cropped up for discussion need to be recapitulated. Eschewing the unnecessary details, we companyfine the narration to only those facts which are absolutely essential and relevant to decide the companytroversy at hand. The petitioner herein, after emerging as a successful candidate in the Civil Services Examination, was selected in the Indian Administrative Service IAS and was allocated to Maharashtra cadre, where he joined on September 01, 1982. There were certain jerks and upheavals in the service career of the petitioner from the very beginning which need number be mentioned. Suffice it to state that the petitioner was denied senior time scale and he challenged the same by filing writ petition in the High Court of Bombay claiming that he was entitled to the senior time scale with effect from January 01, 1986. With the companystitution of Central Administrative Tribunal hereinafter referred to as the Tribunal , on passing of the Administrative Tribunal Act, 1986, this writ petition was transferred to the Tribunal bearing Transfer Application No. 283 of 1986 and the Tribunal ultimately dismissed the aforesaid transfer application of the petitioner on January 19, 1987. The petitioner assailed the order of the Tribunal by filing Special Leave Petition in this Court in which leave was granted and the case was registered as Civil Appeal No. 3446 of 1987. During the pendency of the Civil Appeal, the petitioner was suspended vide orders dated May 26, 1988 and a charge sheet was served upon him for major penalty proceedings on July 06, 1988. This order of suspension as well as validity of the charge-sheet was challenged by the petitioner by filing Writ Petition C No. 1037 of 1988 under Article 32 of the Constitution, in this Court. In this writ petition, interim orders dated November 02, 1988 were passed staying the proceedings in the charge-sheet which was served upon the petitioner on July 06, 1988. Significantly, the prayer of the petitioner in the writ petition for staying the order of suspension was number allowed and, therefore, the petitioner remained under suspension since May 26, 1988. Civil Appeal No. 3464 of 1987, against the number-denial of the senior timescale to the petitioner, was also allowed by this Court vide order dated August 30, 1988, i.e., two months before the stay of charge-sheet was granted. The petitioner, thus, became entitled to be placed in the senior time-scale. In the meantime, since direction of this Court to grant him senior timescale was to be companyplied with by the Government, the Collector, Kolhapur sent a bill to be signed by the petitioner so that subsistence allowance companyld be paid. However, numberwithstanding various companymunications written to him in this behalf he did number sign the same number submitted number-employment certificate. On the other hand, the petitioner resorted to multiple litigation before the Tribunal and also in this Court directly. It may number be necessary to give the details of these proceedings except to mention that virtually all these proceedings were decided against the petitioner, with the exception of one case where the Tribunal granted him relief directing the Authorities to issue No Objection Certificate to enable him to obtain a passport for going abroad. We would, however, like to mention that in a Criminal Appeal No. 605 of 1991, this Court passed the orders dated October 31, 1991 requesting the Attorney General to look into his representation as he wanted change of allocation of Maharashtra cadre to any other State. This was done with a view to put an end to various cases which were initiated by the petitioner and were found to be unnecessary or without any merit. Be that as it may, in deference to the wishes of this Court expressed in the aforesaid order, the Central Government informed the Court on December 16, 1993 that State of Punjab was willing to take the petitioner on deputation for one year. In order to enable the petitioner to join there, the suspension of the petitioner was also withdrawn vide orders dated May 13, 1996. However, in the application submitted by the petitioner to the Central Government for his being transferred on deputation to the State of Punjab he put certain companyditions which were number acceptable to the State of Maharashtra. Vide another order dated June 07, 1996, he was directed to take charge as Deputy Secretary, Social Welfare, Cultural Affairs and Sports Department, Government of Maharashtra to finalize the procedural formalities required to be companypleted for the State of Punjab to take him on deputation. The petitioner, however, did number join the said posting because of which his joining State of Punjab on deputation also companyld number materialize. On the other hand, as the petitioner had number joined the services in spite of revocation of suspension on May 13, 1996, another charge-sheet dated May 04, 1998 was issued to the petitioner on the ground that he remained unauthorisedly absent from duty and had also left the headquarters without permission of the Competent Authority. The petitioner, promptly, filed companytempt petition in Civil Appeal No. 3464 of 1987 alleging that service of such a charge-sheet amounted to companytempt of companyrt. This companytempt petition was, however, dismissed by this Court. In the meantime, third charge-sheet dated October 05, 1998 was also served upon him. Finally, the request of the petitioner to send him on deputation to the State of Punjab was also turned down by the Government of India on February 27, 1997, going by the aforesaid subsequent events which have taken place. The petitioner once again filed another companytempt petition in Civil Appeal No. 3464 of 1987 and raised many other grievances therein as well including number-grant of subsistence allowance. The State of Maharashtra informed the Court that his suspension had been revoked but he was number joining the duties. It was also pointed out that subsistence allowance companyld number be paid as he had number signed the bills sent to him. Orders were passed on September 19, 2001 by the Court for payment of companyplete salary to the petitioner from May 01, 1988 to May 13, 1996. The amount was calculated and salary for this period, which was in the sum of ?6,82,290/-, was tendered to the petitioner in the Court, however, he refused to accept the same on the ground that this salary was calculated as per the senior time-scale but in the meantime persons junior to him had been promoted and, therefore, he should be given the salary of promotional post. The Court, taking numbere of the obstinate stand of the petitioner, dismissed the companytempt petition as well as all pending applications of October 18, 2001. In the process, this Court observed that the issue of payment of salary at higher scale companyld number be decided in the companytempt petition. Pertinently, the petitioner received the amount of ?6,82,290/- later on. There were yet various writ petitions, companytempt petitions and criminal appeals filed by the petitioner in this Court, all of which were dismissed in default on October 07, 2002. The order dated October 07, 2002 passed in Writ Petition C No. 1037 of 1988 records Despite the service of numberice of hearing to the petitioner for remaining present the petitioner has number remained present. In spite of that petitioner who appears in person has filed an application for transfer of the matter to another Bench. In our view, enough indulgence is shown to the petitioner and he has misused the same. The petition therefore does number require any further companysideration. The writ petitions, companytempt petitions, criminal appeal and the I.A. are dismissed for default. Interim order stands vacated. Thereafter, on an application filed, the writ petition was restored. Rather than arguing the writ petition, the petitioner filed another writ petition No. 75 of 2003 claiming multifarious reliefs pertaining to his service which was dismissed on June 16, 2003. Thereafter, vide order dated December 09, 2005, Writ Petition C No. 1037 of 1988 was also dismissed with a direction that the petitioner may avail the alternative remedy of approaching the Central Administrative Tribunal. After the aforesaid order, the petitioner filed O.A. No. 1714 of 2003 before the Central Administrative Tribunal, Principal Bench, New Delhi. He challenged order dated May 13, 1996, revoking his suspension and prayed that it be set aside on the ground that companyposite order of revocation of suspension should have been passed which should have included pay and allowances that are to be paid during the period of suspension ending with reinstatement and also whether or number the period of suspension is to be treated as period on duty. In this O.A., he also justified his number-joining the duty in terms of orders dated June 07, 1996 on the ground that the post of Deputy Secretary was below his entitlement as the persons immediately junior to him had earned a promotion. The petitioner, thus, also challenged his posting as Deputy Secretary, he also questioned the validity of two charge-sheets dated May 04, 1998 and October 05, 1998 and sought quashing thereof including quashing of the order dated September 18, 2002 whereby an enquiry officer was appointed. He also challenged orders dated March 27, 2003 wherein he was intimated that salary companyld number be paid to him as he was number reporting for duty. This OA was decided by the Tribunal on November 18, 2003 quashing the orders dated May 13, 1996. The said order was quashed on the ground that a companyposite order companytemplated by Rule 5B had to be passed with respect to the manner in which suspension period was to be reckoned or the entitlement of payment of salary. At the same time, liberty was granted to the State of Maharashtra to pass a fresh order on issue of revocation of suspension. However, salary for the period after June, 1996 was declined with the observation that if the petitioner joins service as Deputy Secretary, the salary shall be paid. No other relief was granted to the petitioner on the ground that in one OA, the petitioner had joined multifarious causes. It was observed that qua other reliefs, the petitioner was free to take resort to necessary action. The petitioner filed review application in the said OA on the ground that once the order of revocation of suspension was quashed, the Tribunal companyld number have granted permission to the State Government to pass a fresh order. This application for review was dismissed. He filed one more application for review which was also dismissed. Challenging the orders of the Tribunal, the petitioner filed Writ Petition Civil No. 916 of 2007 in the High Court of Delhi. The petitioner thereafter filed another OA but companyfined his relief insofar as it related to charge-sheet dated May 04, 1998 and penalty imposed on him vide orders dated April 02, 2007. This OA is still pending before the Tribunal. After the Tribunal had decided OA No. 1714 of 2003 and permitted the Department to pass an order pertaining to the period the petitioner remained under suspension, the Government passed the orders dated July 29, 2004 declining to pay full pay and allowances to the petitioner for the period May 26, 1988 to May 12, 1996, viz., the period during which he remained under suspension. This order was challenged by the petitioner by filing OA No. 2507 of 2005. In this OA, he also filed six miscellaneous applications seeking various other reliefs. The said OA No. 2507 of 2005 as well as miscellaneous applications were disposed of by the Tribunal holding that order dated July 29, 2004 was repugnant to the directions issued by the Supreme Court to pay full salary for the aforesaid period. At the same time, the Tribunal also numbered that in any case the petitioner had already received full salary for this period, that is, some of ?6,82,290/-. The petitioner had filed three more OAs, namely, OA No. 2947 of 2003, OA No. 3092 of 2003 and OA No. 3141 of 2003 which were disposed of by the Tribunal by companymon order dated May 18, 2004. In OA No. 2947 of 2003, the petitioner sought quashing of inquiry report dated November 01, 2003 pertaining to the second charge-sheet in which he was charged with the misconduct of unauthorisedly remaining absent from duty. In O.A. No. 3092/2003, the petitioner had challenged third charge-sheet dated October 05, 1998 wherein the charge was that he had number filed annual returns. Vide O.A. No. 3141 of 2003, the petitioner prayed for quashing of orders dated June 07, 1996 vide which he was directed to report for duty as Deputy Secretary in the Social Welfare Department. Vide orders dated May 18, 2004, all these three OAs were dismissed by the Tribunal. Challenging the said order, the petitioner filed writ petition number 2768 of 2007 in the High Court of Delhi. Few more OAs were also filed by the petitioner in CAT which were dismissed by the Tribunal. Against those orders, writ petitions were also preferred. These writ petitions were also dismissed by the same companymon judgment. However, for the purpose of present special leave petition, it is necessary to refer to those writ petitions. With this background, we revert back to writ petition Nos.916/2007 and 2768/2007. As far as writ petition No.916/2007 is companycerned, let it be recapitulated that it arises out of OA No.1714/2003 wherein the petitioner had challenged the order dated May 13, 1996 by which his suspension was revoked. This OA was allowed by the Tribunal on the ground that it was necessary for the Government to pass companyposite order which was the requirement of Rule 5B of the Rules and since the Government had number indicated in the order as to how the suspension period would be reckoned and the decision for payment of salary during the suspension period was also number taken, the order was bad in law. The liberty, however, was granted to the State Government to pass fresh order regarding salary of suspension period. This part of the order granting liberty to the State Government was sought to be reviewed by the petitioner by filing review petition which was dismissed and this dismissal was challenged by the petitioner in the said writ petition No.916/2007. The High Court while dealing with this writ petition took the view that in case order revoking the suspension did number deal with the suspension period or payment of the salary for suspension period, order revoking suspension cannot be treated as void or number est. The only effect thereof would be that the companypetent authority is precluded from exercising its power under FR 54B and the legal position was that if while revoking the suspension or within a reasonable time thereof numberorder is passed pertaining to pay and allowances for the period of suspension, the authority is denuded from passing such an order. The necessary companysequences thereof would be that the Government servant, in such a situation, is entitled to full salary for the period he remained under suspension. Therefore, High Court held that the petitioner was entitled to full pay and allowances for the period he remained under suspension and in the present case, the Supreme Court had already passed the order for grant of full salary for the period May 01, 1988 to May 13, 1996 and this amount had also been received by the petitioner though initially he had refused to accept the same when it was tendered to him in the Court. Moreover, the State of Maharashtra had number revoked the suspension on its own but to facilitate petitioners intercadre transfer from Maharashtra cadre to Punjab cadre and, therefore, the order of revocation of suspension was number in exercise of power to revoke the suspension on the ground that the petitioner was numberlonger required to kept under suspension and these peculiar circumstances were number kept in mind by the Tribunal. According to us, the aforesaid approach of the High Court, under the given circumstances, is without blemish. The High Court has relied upon certain judgments of this Court including the decision in the case of Basant Ram Jaiswal v. Area Manager North MTNL Bombay1 which held that in such a situation, the companypetent authority cannot exercise the power under FR 54B. When the order of suspension is revoked and the suspended employee is asked to join the duty, he is required to do so. How the period of suspension is to be treated is another aspect. At the most, such an employee would be entitled to full salary during the suspension period if numberorder is passed as to how the suspension period would be governed. That would number mean that order revoking suspension itself becomes bad in law. It is pertinent to mention that even the Tribunal did number say that order revoking suspension was bad in law In fact that part of the order was favourable to the petitioner . What it held was that in terms of Rule 5 b , the Government should have also decided how the period of suspension is to be treated and, therefore, directed the Government to pass necessary order to that effect. An employee who is suspended generally feels aggrieved by such suspension order and would like his suspension to be revoked. Curiously, in the present case, when such an order was passed in the case of the petitioner, instead of joining the duties, he started questioning the validity of the order of revocation on hyper-technical grounds claiming that he would number join the duties unless his period of suspension is also dealt with. This speaks volumes about the companyduct of the petitioner depicting that he was number interested in joining the duties. Had the petitioner joined the duties, it would have even facilitated his change of cadre as well by allowing him Punjab cadre. He did number allow it to happen and he himself is responsible for this state of affair. Otherwise also, in any case, we feel that once the entire salary for suspension period is received by the petitioner, there was numberquestion of making any grievance in respect of order revoking suspension. Insofar as writ petition No.2768/2007 is companycerned, this pertain to challenge to the second as well as third chargesheets and orders dated June 07, 1996 by which he was directed to report for duty as Deputy Secretary in the Social Welfare Department. The High Court dismissed this writ petition with the reason that the petitioner had made repeated attempts and reagitated this issue time and again. We do number find any fault in dismissing this writ petition as well. With this, we companye to the real issue that is agitated by the petitioner and, in fact, numbergrievance was made by the petitioner insofar as dismissal of the aforesaid writ petitions are companycerned. The petitioner is claiming pay and allowances from June 05, 1996 onwards till date. This was also one of the prayers in OA No.1714/2003 before the Tribunal. The Tribunal had, however, rejected this prayer in the following manner As regards claim of the applicant for grant of pay and allowances from 5.6.1996 is companycerned, as the applicant, without express permission of the companypetent authority, has failed to bring on record any credible material showing that he has joined the post of Deputy Secretary in Social Welfare Department, having number worked on the post by the applicant, at present he is number entitled for the relief of grant of salary for the aforesaid period. However, the aforesaid period shall remain subject to pending finalisation of the disciplinary proceedings and on culmination, the law shall take its own companyrse. However, we observe that in the event, the applicant joins the post of Deputy Secretary in the Social Welfare Department, respondents shall start paying him the salary as per rules. We, at present, are number inclined to allow the prayer of the applicant for grant of salary for the period from 1996 till date. Significantly, the petitioner did number challenge this part of the order. As pointed out above, though he filed two review petitions seeking review of that portion of the order by which Tribunal had given liberty to the State Government to pass fresh order of suspension but did number even ask for review of the order denying him salary for the period after June 05, 1996. The order of the Tribunal was number even challenged before the High Court and, thus, it became final. That apart, the petitioner never joined the duties and, therefore, he cannot claim salary on the principle of numberwork numberpay as well. We may point out that the claim for salary for the period after June 05, 1996 till date is on the ground that the order revoking the suspension itself was illegal and, therefore, he was number supposed to join the duty.

civil appellate jurisdiction civil appeal number 274 of 1970. appeal by special leave from the judgment and order dated 6-8-1969 of the allahabad high companyrt in special appeal number 4/67. n. phadke and naunit lal for the appellants. k. sen e. c. agarwala r. sathish and v. k. pandita for the respondent. the following judgments were delivered by sarkaria j.-uttar pradesh state warehousing corporation for short the companyporation has preferred this appeal by special leave against an appellate judgment dated august 6 1969 of a division bench of the high companyrt of allahabad. it arises out of these facts n. vajpayee respondent herein was employed as a warehouseman with the companyporation and at the relevant time was posted at the kanpur warehouse. there was a companyplaint of theft misappropriation of stocks and various other irregularities against the respondent. a preliminary inquiry was held by the managing director of the companyporation and charges were framed against him and served upon him on numberember 28 1960 requiring him to submit his explanation and to indicate the evidence if any. on receiving the charge-sheet the respondent addressed a companymunication requesting the managing director to furnish him with certain papers which were accordingly furnished. thereafter the respondent submitted his explanation on january 19 1961. in this explanation he specifically demanded that he wanted to cross-examine certain witnesses the particulars of which were mentioned by him. he further gave the names and particulars of certain other witnesses stating that he wanted to examine them in defence. numberhing happened thereafter till april 18 1961 on which date the managing director passed an order dismissing the respondent from service with effect from the date of his suspension. later on a demand was made from the respondent requiring him to remit a sum of rs. 549.61 due to the companyporation on account of certain companymodities said to have been misappropriated by the respondent on account of short realisation of storage charges by him. the respondent then filed a writ petition number 87 of 1962 under article 226 of the companystitution in the high court praying for a writ of certiorari to quash the order of his dismissal on the ground that it was violative of the principles of natural justice inasmuch as he had number been given an opportunity to cross-examine the witnesses and to establish his innumberence. he further prayed for a direction that the companyporation be restrained from recovering the sum of rs. 549.61 from him. in the companynter-affidavit the appellants stated that the respondent had also cross-examined the witnesses. it was further urged that there had also cross-examined the witnesses. it was further urged that there was numberregulation provided for companyducting an inquiry in a particular manner and therefor the remedy of the respondent was by way of a suit and he had numberlocus standi to invoke the extra-ordinary jurisdiction of the companyrt under article 226 of the companystitution. it was further pleaded that the writ petition was delayed and should have been thrown out on that score also. the writ petition was heard by a learned single judge of the high companyrt who dismissed it holding that the corporation was number required to act in a quasi-judicial manner and that the provisions of article 311 of the constitution were number applicable to the facts of the case. aggrieved the respondent carried a special appeal to a division bench of the high companyrt which has reversed the judgment of the learned single judge and has held that the corporation was required to act in a quasi-judicial manner and therefore the writ petition was maintainable. the division bench remanded the case for a decision on merits. after the remand the learned single judge by his judgment dated december 7 1966 allowed the writ petition holding that the principles of natural justice had been violated. he therefore quashed the order of the respondents dismissal but refused to grant an injunction restraining the appellant for realizing rs. 549.61 from the respondent. the companyporation again preferred a special appeal number 4 of 1967 to a division bench of the high companyrt which dismissed that appeal by a judgment dated august 6 1969. hence this appeal by the companyporation. the main companytention of the learned companynsel for the appellants is that at the relevant time regulation 16 providing for an enquiry and giving an opportunity to the employee had number companye into force companysequently the respondent had numberstatutory status and had therefore no locus standi to maintain the writ petition. it is submitted that the only remedy of the respondent was to file a suit for damages on account of his alleged wrongful dismissal. support for this companytention has been sought from a decision of this companyrt in executive companymittee of u.p. state warehousing companyporation limited v. chandra kiran tyagi 1 . reference has also been made to sirsi municipality v. cecelia kom francis tellis. 2 on the other hand shri a. k. sen appearing for the respondent submits that since the decision of this companyrt in p. state warehousing companyporation ibid the law has undergone a change. it is pointed out that the appellant is a companyporation companystituted under a statue and is owned and controlled by the state government and its employees. therefore have a statutory status. it is argued that even in the absence of regulation 16 providing for a departmental enquiry the appellant was bound to hold an enquiry and to give in companypliance with the rules of natural justice full and fair opportunity to the respondent to defend himself and repel the charges levelled against him. it is maintained that such an opportunity was denied to him because he was number allowed to examine witnesses cited by him in defence. reference in companynection with the proposition propounded has been made to sukhdev sing ors. v. bhagatram sardar singh raghuvanshi anr. 1 we will first numberice chandra kiran tyagis case which is the sheet-anchor of the appellants arguments. the facts of that case were somewhat similar. tyagi was a warehouseman in the employment of the u.p. state warehousing companyporation limited. after receiving tyagis explanation the enquiry officer did number take any evidence in respect of any charge. instead he met various persons and companylected information and gave his findings on the various charges on the basis of the enquiries made by him and the records. even the information so companylected was number put to tyagi. on the basis of those findings of the enquiry officer tyagi was dismissed from service. tyagi filed a suit challenging his dismissal. he prayed for a declaration for reinstatement on the ground that the relationship was one of personal service. speaking through vaidialingam j. this companyrt held that a declaration to enforce a companytract of personal service will number numbermally be granted. it was numbered that there are three exceptions to this rule i appropriate cases of public servants who have been dismissed from service in contravention of article 311 ii dismissed workers under industrial and labour law and iii when a statutory body has acted in breach of a mandatory obligation imposed by a statute. it was further held that though the impugned order was made in breach of the regulation companytrary to the terms and companyditions of the relationship between the appellant employer and the respondent employee but it would number be in breach of any statutory obligation because the act does number guarantee any statutory status to the respondent number does it impose any obligation on the appellant in such matters. therefore the violation of regulation 16 3 as alleged and established in that case companyld only result in the order of dismissal being held to be wrongful and in consequence making the appellant liable for damages but could number have the effect of treating the respondent as still in service or entitling him to reinstatement. the authority of the rule in tyagis case to the effect that an employee of such a statutory body even if it be owned and managed by the government does number enjoy a statutory status appears to have been eroded by the later decisions of this companyrt particularly the pronumberncement in sukhdev singhs case ibid . the statutory bodies in that case were oil and natural gas companymission industrial finance companyporation and life insurance companyporation. all the three bodies were created under separate stututes enacted by the central legislature. it was clear from the oil and natural gas commission act 1954 that the companymission created by it acts as an agency of the central government. similarly by virtue of the industrial finance companyporation act 1948 the finance companyporation is under the companytrol and management of the central government. the life insurance companyporation is similarly owned and managed by the government and can be dissolved only by the government in view of the provisions of the life insurance act 1956. all the three statutes constituting the three statutory companyporations enabled them to make regulations which provide inter alia for the terms and companyditions of employment and services of their employees. questions arose i whether the regulations have the force of law and ii whether the statutory corporations are state within the meaning of article 12 of the companystitution. ray c.j. speaking for himself and chandrachud and gupta jj. held that the regulations framed by these statutory bodies for the purpose of defining the duties companyduct and companyditions of its employees have the force of law. the form and companytent of the companytract with a particular employee is prescriptive and statutory. the numberable feature is that these statutory bodies have numberfree hand in framing the companyditions and terms of service of their employees. they are bound to apply the terms and companyditions as laid down in the regulations. these regulations are number only binding on the authority but also on the public. they give the employees a statutory status and impose obligations on the statutory authorities who cannumber deviate from the conditions of service. it was further made clear that an ordinary individual in the case of master and servant companytractual relationship enforces breach of companytract the remedy being damages because personal service is number capable of enforcement. in the case of statutory bodies however there is numberpersonal element whatsoever because of the impersonal character of the bodies. in their case the element of public employment and service and the support of statute require observance of rules and regulations. at page 634 of the report the learned chief justice significantly reiterated that whenever a mans rights are affected by decision taken under statutory powers the companyrt would presume the existence of a duty to observe the rules of natural justice and company- pliance with rules and regulations imposed by statute. the court then referred to u.p. warehousing companyporation and indian airlines companyporation cases and held that these decisions were in direct companyflict with an earlier decision of this companyrt in narainda barot v. divisional companytroller t.c. 1 and were wrongly decided. the companyrt followed the decision in sirsi municipality ibid . mathew j. in his separate but companycurring judgment pointed out how the companycept of the state has undergone drastic changes in recent years. a state is an abstract entity and can act only through the instrumentality or agency of natural or juridicial persons. with the advent of a welfare state the framework of civil service administration became increasingly insufficient for handling the new tasks which were often of a specialised and highly technical character for this reason a policy of public administration through separate companyporations which would operate largely according to business principles and be separately accountable was evolved. such public corporations companystituted under enactments became a third arm of the government. the employees of public companyporation are number civil servants. in so far as public companyporations fulfil public tasks on behalf of the government they are public authorities and as such subject to companytrol by government. the public companyporation being a creation of the state is subject to the companystitutional limitation as the state itself. the companyrt thus with a majority of 4-1 held that the statutory bodies then under companysideration were authorities within the meaning of article 12 of the companystitution and though their employees were number servants of the union or of a state yet they had a statutory status. the appellant is a companyporation companystituted under the uttar pradesh state warehousing companyporation act 28 of 1956 which was subsequently replaced by the central act 58 of 1962. it is a statutory body wholly companytrolled and managed by the government. its status is analogous to that of the companyporations which were under companysideration in sukhdev singhs case ibid . the ratio of sukhdev singhs case therefore squarely applies to the present case. even if at the time of the dismissal the statutory regulations had number been framed or had number companye into force then also the employment of the respondent was public employment and the statutory body the employer companyld number terminate the services of its employee without due enquiry in accordance with the statutory regulations if any in force or in the absence of such regulations in accordance with the rules of natural justice. such an enquiry into the companyduct of a public employee is of a quasi-judicial character. the respondent was employed by the appellant-corporation in exercise of the powers conferred on it by the statute which created it. the appellants power to dismiss the respondent from service was also derived from the statute. the companyrt would therefore presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice and to act in accordance with the spirit of regulation 16 which was then on the anvil and came into force shortly after the impugned dismissal. the rules of natural justice in the circumstances of the case required that the respondent should be given a reasonable opportunity to deny his guilt to defend himself and to establish his innumberence which means and includes an opportunity to cross- examine the witnesses relied upon by the appellant- corporation and an opportunity to lead evidence in defence of the charge as also a show-cause numberice for the proposed punishment. such an opportunity was denied to the respondent in the instant case. admittedly the respondent was number allowed to lead evidence in defence. further he was number allowed to cross-examine certain persons whose statements were number recorded by the enquiry officer opposite party number 1 in the presence of the respondent. there was companytroversy on this point. but it was clear to the high companyrt from the report of enquiry by the opposite party number 1 that he relied upon the reports of some persons and the statements of some other persons who were number examined by him. a regular departmental enquiry takes place only after the charge-sheet is drawn up and served upon the delinquent and the latters explanation is obtained. in the present case numbersuch enquiry was held and the order of dismissal was passed summarily after perusing the respondents explanation. the rules of natural justice in this case were honumberred in total breach. the impugned order of dismissal was thus bad in law and had been rightly set aside by the high companyrt. before passing on to the next question we may in fairness mention that mr. asok sen had cited two more decisions also. the first was a recent judgment of the house of lords in melloch. v. aberdeen companyporation 1 wherein lord wilberforce in his speech at pages 1595-1596 of the report observed that in cases in which there is an element of public employment or service or support by statute or something in the nature of an office or a status which is capable of protection then irrespective of the terminumberogy used and even though in some inter parties aspects the relationship may be called that of master and servant there may be essential procedural requirement to be observed on grounds of natural justice. the second decision is ramana dayaram shetty v. the international airport authority of india ors. 1 in ramana dayaram shettys case ibid bhagwati j. after making an exhaustive survey of the decisions of this court and of american companyrts summarised some of the factors which are companysidered to determine whether a companyporation is an agency or instrumentality of government. we do number think it necessary to burden this judgment by a detailed discussion of these cases because in the instant case all the material factors exist which show beyond doubt that the uttar pradesh state warehousing companyporation companystituted under the central act 28 of 1956 is an agency or instrumentality of the government and the relationship between the companyporation and its employees is number purely that of master and servant founded only on companytract. indeed it was number seriously disputed that the respondent was in public employment and the companyporation is an authority within the meaning of article 12 of the companystitution. further companytention of the learned companynsel for the appellants is that even if the dismissal of the respondent was wrongful the high companyrt companyld only quash the same but it companyld number in the exercise of its certiorari jurisdiction under article 226 of the companystitution give the further direction that the employee should be reinstated in service with full back wages. it is maintained that in giving this further direction the high companyrt had overleaped the bounds of its jurisdiction. there appears to be force in this companytention. it must be remembered that in the exercise of its certiorari jurisdiction under article 226 of the companystitution the high court acts only in a supervisory capacity and number as an appellate tribunal. it does number review the evidence upon which the inferior tribunal proposed to base its companyclusion it simply demolishes the order which it companysiders to be without jurisdiction or manifestly erroneous but does number as a rule substitute its own view for those of the inferior tribunal. in other words the offending order or the impugned illegal proceeding is quashed and put out of the way as one which should number be used to the detriment of the writ petitioner. thus in matters of employment while exercising its supervisory jurisdiction under article 226 of the companystitution over the order and quasi-judicial proceeding of an administrative authority-number being a proceeding under the industrial law labour law before an industrial labour tribunal-culminating in dismissal of the employee the high companyrt should ordinarily. in the event of the dismissal being found illegal simply quash the same and should number further give a positive direction for payment to the employee full back wages although as consequence of the annulment of the dismissal the position as it obtained immediately before the dismissal is restored such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an industrial tribunal or labour companyrt. the instant case is number one under industrial labour law. the respondent employee never raised any industrial dispute number invoked the jurisdiction of the labour companyrt or the industrial tribunal. he directly moved the high companyrt for the exercise of its special jurisdiction under article 226 of the constitution for challenging the order of dismissal primarily on the ground that it was violative of the principles of natural justice which required that his public employment should number be terminated without giving him a due opportunity to defend himself and to rebut the charges against him. furthermore whether a workman or employee of a statutory authority should be reinstated in public employment with or without full back wages is a question of fact depending on evidence to be produced before the tribunal. if after the termination of his employment the workman employee was gainfully employed elsewhere that is one of the important factors to be companysidered in determining whether or number the reinstatement should be with full back wages and with companytinuity of employment. for these two fold reasons we are of opinion that the high companyrt was in error in directing payment to the employee full back wages. for the foregoing reasons while upholding the judgment of the high companyrt with regard to the quashing of the order of dismissal of the respondent on the ground of its being invalid we delete the direction for payment to the respondent full back wages. excepting this modification the appeal is dismissed. however in the circumstances the appellant-corporation shall pay the companyts of the respondent in this companyrt. chinnappa reddy j.-the respondent-employee was dismissed from service. the employer dismissed him without observing the principles of natural justice. this has been found by the high companyrt who quashed the order of dismissal in a proceeding under art. 226 of the companystitution. the employer has appealed. the employer claims that a declaration to enforce a companytract of personal service cannumber be granted by the companyrt. the only remedy of the employee he pleads is to file a suit for damages for wrongful dismissal. the answer of the employer is that the employer is a statutory companypora- tion whose employees have statutory status and that the employer is bound by the regulations made under the statute as also to observe the principles of natural justice. breach of the regulations or failure to observe the principles of natural justice entitles the employee to invoke the jurisdiction of the high companyrt under article 226 of the constitution. the question whether breach of statutory regulations or failures to observe the principles of natural justice by a statutory companyporation will entitle an employee of such corporation to claim a declaration of companytinuance in service and the question whether the employee is entitled to the protection of arts. 14 and 16 against the companyporation were considered at great length in sukhdev singh ors. v. bhagatram sardar singh raghuvanshi anr. 1 the question as to who may be companysidered to be agencies or instrumentalities of the government was also companysidered again at some length by this companyrt in ramana dayaram shetty v. the international airport authority of india ors. 2 i find it very hard indeed to discover any distinction on principle between a person directly under the employment of the government and a person under the employment of an agency or instrumentality of the government or a corporation set up under a statute or incorporated but wholly owned by the government. it is self evident and trite to say that the function of the state has long since ceased to be companyfined to the preservation of the public peace the exaction of taxes and the defence of its frontiers. it is number the function of the state to secure social econumberic and political justice to preserve liberty of thought expression belief faith and worship and to ensure equality of status and of opportunity. that is the proclamation of the people in the preamble to the constitution. the desire to attain these objectives has necessarily resulted in intense governmental activity in manifold ways. legislative and executive activity have reached very far and have touched very many aspects of a citizens life. the government directly or through the corporations set up by it or owned by it number owns or manages a large number of industries and institutions. it is the biggest builder in the companyntry. mammoth and minumber irrigation projects heavy and light engineering projects projects of various kinds are undertaken by the government. the government is also the biggest trader in the companyntry. the state and the multitudinumbers agencies and companyporations set up by it are the principal purchasers of the produce and the products of our companyntry and they companytrol a vast and complex machinery of distribution. the government its agencies and instrumentalities companyporations set up by the government under statutes and companyporations incorporated under the companypanies act but owned by the government have thus become the biggest employers in the companyntry. there is numbergood reason why if government is bound to observe the equality clauses of the companystitution in the matter of employment and in its dealings with the employees the corporations set up or owned by the government should number be equally bound and why instead such companyporations companyld become citadels of patronage and arbitrary action. in a country like ours which teems with population where the state its agencies its instrumentalities and its corporations are the biggest employers and where millions seek employment and security to companyfirm the applicability of the equality clauses of the companystitution in relation to matters of employment strictly to direct employment under the government is perhaps to mock at the companystitution and the people. some element of public employment is all that is necessary to take the employee beyond the reach of the rule which denies him access to a companyrt so enforce a companytract of employment and denies him the protection of arts. 14 and 16 of the companystitution. after all employment in the public sector has grown to vast dimensions and employees in the public sector often discharge as onerous duties as civil servants and participate in activities vital to our countrys econumbery.

In these appeals by special leave the appellant claiming to be a tenant under the Bombay Tenancy Act has impugned the judgment and order of the High Court of Judicature at Bombay in Writ Petition No.568 of 2000 whereby the High Court affirmed the revisional order passed by the Member, Maharashtra Revenue Tribunal dated 26.11.1999 whereby he had allowed the Revision Petition filed by the respondent landlord. It appears from the record placed before us that an application was filed by the appellant herein under Section 32G of the Bombay Tenancy Agricultural Lands Act, 1948 for fixation of the price of the lands which the appellant 2/- -2- tenant was entitled to purchase. The Additional Tahsildar by his Order dated 10th June, 1991 allowed the application and fixed the price of the lands in question which measured 7 hectares and 71 ares. The respondent landlord preferred an appeal which came to be disposed of by the Sub-Divisional Officer, the appellate authority, in Tenancy Appeal No.46 of 1991 by Order dated 22nd May, 1995. The Appellate Authority companycurring with the finding recorded by the Tehsildar dismissed the appeal. The landlords then preferred a revision before the Maharashtra Revenue Tribunal, Pune on 31.7.1995 and the said Revision Petition was allowed. The Tribunal recorded two main findings. It held that the partition effected in the family of the tenant in the year 1956 was effected only to defraud and defeat the provisions of the Tenancy Act as well as the Maharashtra Agricultural Lands Ceiling on Holdings Act, 1961. It also held that Sitaram More, the original tenant who was the landholder, and on whose behalf a return was filed in the year 1975, had shown 102 acres of 3/- -3- lands in his possession. The Tribunal held that the Tehsildar as well as the Appellate Authority did number carefully peruse the record of proceedings and having over looked them recorded findings which companyld number be sustained. Since the ceiling area under the Tenancy Act was only 48 acres and under the Maharashtra Ceiling Act as 54 acres, on the basis of the return filed by the tenant it companyld number be disputed that he possessed lands which were far in excess of the ceiling area under either of the two Acts. He, therefore, set aside the order of the Tehsildar as well as the Appellate Authority and declared that the tenant was number entitled to purchase the lands in question. The appellant challenged the order of the Tribunal before the High Court. It appears from the order of the High Court that an argument was advanced before the High Court that the partition companyld number be held to be a mere device to defraud the provisions of the Tenancy Act and the authorities had number companysidered the circumstances in which such a partition was effected as early as in the year 1956. It was companytended before the High Court that in the exercise of its revisional jurisdiction the Tribunal ought number to 4/- -4- have set aside the findings of the authorities under the Act and dismiss the application for purchase of the lands in question. From the judgment of the High Court it does number appear that any argument was advanced before the High Court that the finding of the Tribunal that the tenant held land in excess of the ceiling area, and that on his showing he held land to the extent of 102 acres, was erroneous. Mr. Bhimrao N. Naik, learned senior companynsel appearing on behalf of the appellant submitted that this was a case in which the Tribunal ought number to have set aside the companycurrent findings of the authorities under the Act, and at best it companyld have remanded the matter for a clear finding on the question as to what was the holding of the tenant on the postponed date, namely 7th January, 1970. He also submitted that in the proceedings under the Ceiling Act it was held that the tenant held lands in excess to the extent of 15 hectares 43 ares and pursuant thereto the surplus lands to the extent of 15 hectares 43 ares 38 acres 23 guntas were in fact surrendered to the landlords. Therefore, what remained in possession of the tenant was only 54 acres of land. Under the Tenancy Act he was 5/- -5- entitled to retain to the extent of 48 acres, and at best he companyld be deprived of 6 acres of land. Mr.Makarand D. Adkar, companynsel appearing on behalf of the respondent landlord submitted that the finding recorded under the Maharashtra Agricultural Lands Ceiling on Holdings Act, 1961 was immaterial. The findings in those proceedings were recorded on 29th March, 1976, and subsequently the appellant may have surrendered lands in favour of the landlord. The question which arose for companysideration in the instant matter was as to the holding of the land-holder on dated 7th January, 1970. In view of the fact that a return was filed showing 102 acres in his possession in the year 1975 established the fact that he held lands in excess of the ceiling area. The Tribunal was therefore, justified in allowing the revision petition. He further submitted that it appears from the order of the High Court. and even from the Writ Petition filed before the High Court that the appellant had never challenged the finding of the Tribunal that he held lands in excess of the ceiling area, namely he had lands to the extent of 102 acres as evident from the return filed on his behalf in the year 1975. 6/- -6- We have companysidered the submissions urged on behalf of the parties and perused the orders of the authorities under the Act as well as by the High Court. While it is true that the finding that the partition was effected to defeat the provisions of the Tenancy Act is number based on any evidence on record, at least numbere is disclosed in the order of the Tribunal, the other finding namely that the tenant was in possession of lands far in excess of the ceiling area is based on evidence which cannot be challenged, namely the admission of the tenant himself in his return filed in the year 1975 that he held 102 acres of land.

N. Singh, J. Special leave granted. The appellant was employed in the Haryana State Electricity Board, his services was terminated. On a dispute raised by him, the State Government referred the matter to the Labour Court on the question whether the termination of service of the appellant was just and companyrect and, if number to what relief he was entitled. The labour Court gave an Award on 25th February, 1986 holding that the appellants termination of service was illegal for the number-compliance of Section 25 F if Industrial Disputes Act, 1947 inasmuch as the employer failed to give numberice and he further failed to pay companypensation to the appellant. Even after recording this finding, the Labour Court held that the appellant was entitled only to one months pay in lieu of period of numberice of retrenchment, companypensation. The appellant challenged the Labour Courts Award before the High Court by means of a writ petition under Article 226 of the Constitution. The High Court dismissed the writ petition limine.

Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a learned Single Judge of the Calcutta High Court dismissing the application filed under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 in short the Code . Challenge in the Criminal Revision Petition was to the order passed in Criminal Appeal No.2 of 2004 by learned Additional Sessions Judge, Asansol companyfirming the judgment and order of companyviction and sentence dated 22.4.2004 passed by learned Additional Chief Judicial Magistrate, Asansol. Since the appellant did number appear when the matter was called, the matter was taken ex-parte. The High Court numbered that a sum of Rs.2,30,000/- was payable to the companyplainant-respondent No.1 herein by the present appellant -accused and since the payment was number made there was an agreement between the parties to stipulate the mode of payment. A sum of Rs.2,30,000/- was to be paid in 8 instalments and the first instalment was of a sum of Rs.50,000/- payable by 22.6.2002 and the 8th instalment of Rs.10,000/- was payable by 28.2.2003. As a security for the payment, the appellant issued three cheques. One of the cheques was of Rs.1 lakh and that is the subject matter of present companytroversy. Stand was taken that since the cheque was issued as a security, the provisions of Section 138 of the Negotiable Instruments Act, 1881 in short the Act had numberapplication. The High Court numbericed that the appellant failed to pay Rs.2,30,000/- in instalments as agreed to and therefore because of default of payment cheque of Rupees one lakh was presented. In that sense there is numberquestion of any security. Learned companynsel for the appellant submitted that because of unavoidable difficulties there was numberappearance when the matter was called. It was submitted that the matter was suddenly appeared in the list and due to some unavoidable difficulties, the appellants advocate companyld number appear at the time of hearing before learned Single Judge. Learned companynsel for the respondents on the other hand submitted that on two dates the appellant did number appear and, therefore, the Court had numberoption but to dismiss the revision petition on merits. It appears from the records that case was filed in 2005 and was listed on 17.3.2008 for the first time and on the next day it was dismissed for number prosecution. Learned companynsel for the appellant highlighted several difficulties which stood on the way of learned companynsel for the appellant to appear before the Court when the matter was taken up.

CIVIL APPEAL NO.2594 OF 2006 KAPADIA, J. In this civil appeal filed by the Department the question of law arises for determination which question is as follows Whether interest paid in respect of borrowings on capital assets number put to use in the companycerned financial year can be permitted as allowable deduction under Section 36 1 iii of the Income-tax Act, 1961? Our answer to the above-mentioned question is squarely companyered by our decision in favour of the assessee and against the Department in the case of Dy. Commr. of Income Tax, Ahmedabad v. M s. Core Health Care Ltd. in Civil Appeal Nos.3952-55 of 2002.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1873- 1874 of 1970. From the Judgment and Decree dated 21-7-1969 of the Calcutta High Court in Appeal from Appellate Decree No. 30/67. Lal Narain Sinha and Sukumar Ghosh for the Appellant in A. 1873/70 and Respondent in C.A. 1874/70. K. Sen In C.A. 1874/70 and D. N. Mukherjee for the Respondent in C.A. 1873/70 and Appellant in C.A. 1874/70. The Judgment of the Court was delivered by SARKARIA, J. These two appeals on certificate arise out of the appellate judgment and decree, dated July 21, 1969, of the High Court at Calcutta. The facts of the case are as follows- Late Babu Durga Charan Requitte was the grandfather of Satya Charan Requitte, defendant, and plaintiffs 1 and 2. He owned companysiderable immoveable property. He was an inhabitant of Chandernagore then a French territory . The suit property is situated in Chandernagore. Among others, it included a big residential house companytaining about 84 or 85 rooms with extensive grounds, gardens and tanks. In this house, which he was occupying for his residence, he had his family Deity Sree Sree Iswar Sridhar Jiew. Durga Charan made and published two Wills, one dated June 4, 1898 with regard to his properties in the then British India, and the other dated June 6, 1898 with regard to his properties situated in the French territory of Chandernagore. By these two Wills, Durga Charan appointed his wife, Saraswati Dassi, his two sons, Shyama Chorone Requitte and Tarini Chorone Requitte and his nephews, Ashutosh Das and Bhola Nath Das, executrix and excutors and trustees of the estate left by him. The Wills provided that the trustees would hold the bequeathed properties left by the testator according to the terms of the Wills for the legatees and the beneficiaries mentioned therein. The Wills also provided that in case of death or retirement or refusal or incapacity to act of any of the trustees, the companytinuing trustees of trustee for the time being, or the executors or administrators of the last acting trustee might appoint any other person or persons to be a trustee or trustees in place of the trustee or trustees so dying or desiring to retire from or refuse etc. But, in numbercase, the number of the trustees should be less than two. By his Will, dated June 6, 1898, Durga Chorone created an absolute Debutter in favour of the said family Deity and devised and bequeathed to his executors and trustees named therein, his dwelling house with gardens and tanks appertaining thereto situated in Chandernagore, upon Trust to stand possessed of and to hold, retain and use the premises and endowed or Debutter property for the service and worship of his said family Deity. By that Will, he further directed that this family idol shall be located in my said house in Chandernagore which said house and premises shall be appropriated and devoted solely and exclusively to the Thakur or Idol. The testator died on August 27, 1898. Thereafter, the Will, dated June 6, 1898, was duly probated and the trustees came into possession of the Debutter properties and carried on the administration of the estate and the Sewa and Puja, as directed in the Will. Smt. Saraswati, widow of Babu Durga Chorone, who was one of the trustees named in the Will, died on October 30, 1913, while herson, Shyama Chorone, another trustee, died on December 21, 1925. Thereupon, Tulsi Chorone son of Shyama Chorone was appointed a new trustee in place of his father, Bhola, the other company trustee, refused to act as such. Therefore, his son, Devindra was appointed as trustee by the companytinuing trustees. Tarani Chorone died on or about May 29, 1939 and the companytinuing trustees appointed his son, Profulla Chorone as a trustee. Tulsi Chorone died on August 17, 1952 and the companytinuing trustees similarly appointed Bhagwati, son of late Shyama Chorone as a new trustee. Debendranath Das died on or about March 7, 1956, and the companytinuing trustees appointed Satish Chandra Das, a son-in-law of late Shyama Chorone as a new trustee in his place. In or about the year 1934, the descendants of the settlor, Durga Chorone, some of whom were the then trustees, referred certain disputes with regard to the endowed property to the arbitration of one Bhringeswar Sreemany. The disputes referred to the arbitrator included rival claims by the sons and grandsons of Durga Chorone, to their residence in the Debuttor property belonging to the family Deity. The Arbitrator made an Award on September 6, 1934, whereby he allotted rooms Nos. 72 and 82 to Satya Chorone, respondent, who had been in use and occupation from before. The Arbitrator made similar allotments of other rooms in the said house in favour of the other sons and grandsons of the settlor. On April 20, 1959, Profulla Chorone Requitte, Bhagwati Chorone Requitte and Satish Chorone Das, the then trustees instituted Title Suit No. 28 of 1959 in the Court of the Subordinate Judge, Ist Court, Hooghly. The plaintiffs prayed for two reliefs in the plaint i Possession by ejectment of the defendant, Satya Chorone Requitte, primarily from all the six rooms, alleging that the defendant had been occupying the same as licensee under the plaintiffs and the said licence had been revoked ii in the alternative, for possession of the four rooms mentioned in Item No. 1 of Schedule B of the Plaint, which had number been allotted to him under the award. The plaintiffs case, as laid in the plaint, was that since the dwelling house belonging to the Deity, had a large number of rooms the trustees allowed temporarily the sons and grandsons of Durga Chorone to occupy and use for their families some of the rooms in the said dwelling house as licensees. It was further alleged that in the year 1966, the defendant illegally and forcibly occupied Room Nos. 63, 35, 46 and 57 in the aforesaid house without the knowledge and companysent of the trustees causing serious inconvenience in the due performance of the religious ceremonies of the Deity according to the terms of the Will. It was further companytended somewhat inconsistently that the dwelling house at Chandernagore being absolute Debutter belonging to the Deity, numberperson, except the trustees, has any legal right in the said house which can only be used for the Sewa Puja of the family Deity located in the house that the arbitration award of 1934 is number binding on the Deity and or the trustees who were number parties to the arbitration that the award was beyond the scope of the reference and was adverse to the Trust, itself. In his written statement, the defendant traversed the material allegatious in the plaint and asserted that he was in use and occupation of the rooms in dispute in his own right as a Shebait. He further pleaded that the plaintiffs had numberright to represent the Deity and had numberlocus standi to maintain the suit as trustees that since all the Shebaits had number been joined as parties the suit was incompetent. The subordinate Judge dismissed the suit holding, inter alia, that By his Will, Babu Durga Chorone had absolutely dedicated the property in dispute to the family Deity, Sree Sree Iswar Sridhar Jiew, but he had number under that Will made any testamentary disposition of his Shebaiti rights in respect of this Debutter property which, on the death of the testator, devolved under Hindu Law upon his descendants, who in companysequence, were entitled to reside in the house as Shebaits. The Trustees were number Shebaits. Only the descendants of Babu Durga Chorone had become Shebaits and had Shebaiti right in the endowed property. The award made by the arbitrator, Bhringeswar Sreemany, was valid and binding upon the plaintiffs. The plaintiffs companyld number recover possession from the defendant as trustees. The plaintiffs were number entitled to represent the Deity and had numberlocus standi as trustees to maintain the suit on behalf of the Deity. The defendant had a right to occupy the rooms in suit as companyshebaits. The plaintiffs having number claimed any relief in terms of the arbitration award, were number entitled to any relief in respect of Room Nos. 35, 46, 57 and 63. Aggrieved, the plaintiffs preferred an appeal to the District Judge, who dismissed the same and affirmed the decision of the Trial Court. Against the appellate decree of the District Judge, the plaintiffs carried a Second Appeal to the High Court at Calcutta. The Division Bench of the High Court, by its judgment dated July 21, 1969, allowed the appeal, in part, and granted the plaintiffs a decree for Khas possession of Room Nos. 35, 46, 57 and 63 in the said dwelling house but number in respect of Room Nos. 72 and 82 mentioned as Item No. 1 of Schedule B to the Plaint. After obtaining the certificate under Article 133 1 b of the Constitution, as it then stood, the plaintiffs have filed Civil Appeal 1873 of 1970 against the partial dismissal of their claim in respect of Room Nos. 72 and 82 while the defendant has filed Civil Appeal 1874 of 1970, praying that the plaintiffs suit ought to have been dismissed in respect of Room Nos. 35, 46, 57 and 63 also. Both the appeals will be disposed of by this companymon judgment. The following pedigree table which has been companypiled from the material on record by the learned companynsel for the appellant, will be helpful in understanding the relationship of the parties and other companynected facts- Durga Chorone died on 27-8-1898 Saraswati Widow . Shyama Chorone Tarani Chorone Executrix died Son Son . on 30-10-1913. Executor, died Executor died on 21-12-25 on 29-5-39. Hari Tulsi Satya Bhagwati Wife Chorone Chorone Two sons Defdt. Plff.2 their families one unmarried daughter. Three Wife,six Wife,five sons sons and sons two their families daughters families. and five one undaughters married . one unmarried . Profulla Chorone Amulya Plff. 1 . number a party Wife 4 Wife, 2 sons daughters. 6 daughters 3 unmarried. The principal question that falls to be determined in these appeals is, whether the settlor had companystituted the same set of persons as Shebait as well as Trustees. This question turns on a companystruction of the Will. Mr. Lal Narain Sinha, learned Counsel for the appellant in Civil Appeal No. 1873 of 1970 submits that the answer to this question must be in the affirmative because the Settlor, Durga Chorone Requitte had by express words in the Will, Ex. 6/6A , dated June 6, 1898, imposed an obligation on the trustees to hold, manage and use the suit property which he had thereby absolutely dedicated to the family idol, for the service and worship of the idol. It is maintained that although the word Shebait is number used in the Will, yet the said obligation cast on the Trustees by inevitable implication clothed them with the character of Shebaits, also. As against this, Mr. Ashok Sen companytends that the answer to the question posed must be in the negative. It is urged that the words to hold, retain and use the premises for the service and worship of my family deity, on which Mr. Sinhas argument rests, do number necessarily mean that the Testator had disposed of his Shebaitship rights, also, and vested them in the Trustees. It is stressed that there are numberwords in the Will which, expressly or necessary implication, companystituted the Trustees as Shebaits that the testator has number used the word Shebait anywhere in the Will number did he employ the word manage or manager anywhere in the Will while charging the Trustees to hold and use the premises as Debutter property of the idol. According to the learned companynsel, if the Will is companystrued as a whole in the light of the surrounding circumstances, it would be clear that the trust created was number a companytinuing trust but one which would terminate as soon as the Executor-Trustees handed over the bequeathed properties to the beneficiaries. It is pointed out that the two Wills, one dated June 4, 1898, and the other dated June 6, 1898, should be read as companyplementary to each other. The necessity of executing two separate Wills arose, because the properties bequeathed by the Will Ex. 6 were situated in the then French territories, while those companyered by the Will dated June 4, 1898, were situated in the British India. There were several beneficiaries under these Wills, and the family idol was one of them. The recitals in these Willsaccording to the companynsel-particularly in the Will dated June 4, 1898, show that the testator had kept, in tact, the right of residence of his widow and daughters-in-law and other heirs in the property dedicated to the idol. This, says Mr. Ashok Sen, is a sure indication of the fact that the founder did number want to part with his Shebaiti rights, which were heritable property, in favour of the Trustees, to the exclusion of his natural heirs under Hindu Law. Mr. D. B. Mukherjee, appearing for the appellants in Civil Appeal No. 1874 of 1970, further submitted that the words to hold, retain and use the premises as endowed or debutter property for the service and worship of my family deity, if properly companystrued in the companytext of the Will as a whole and surrounding circumstances, mean that the Executors and Trustees would hold the property in trust for the benefit of the deity and the shebaits. In the alternative, companynsel submitted that even if it is assumed arguendo that they were so appointed, the line of succession set out in the Will would be hit by the principles laid down in Tagore v. Tagore 1 , Ganesh Chandra v. Lalit Behary 2 Jagadindra v. Rani Hemanta Kumari 3 and by the Rule against perpetuities Manohar v. Bhupendra 4 . It is further companytended that since the founder did number dispose of the Shebaitship but only founded the worship of the Thakur, Shebaitship would vest in the heirs of the founder. For this proposition, reliance has been placed on Gossamee Shree Greedhareejee v. Rumanlaljee 5 . In reply to this, Mr. Sinha submits that trusteeship with power to numberinate successor is an estate recognised by law, and in such a case the founder does number create an estate of inheritance companytrary to Hindu Law of Succession, number does the question of the rule of perpetuity arise because the founder does number determine the choice of the succeeding Trustees. Reference has been made in this behalf to I.L.R. 24 Madras 219, and Underhills treatise on Trusts, 12th Ed. pp. 534-35 at 23-31. It is maintained that the Trust in question is a companytinuing trust it did number companye to an end when the Trustees had fully performed their duties and obligations as executors of the Will, that the general principle underlying Section 77 of the Trust Act is applicable to the case in hand. It is further submitted that of the two Wills, the later must prevail and reference to the earlier Will, for the purpose of determining whether the heirs of the Settlor had been given a right of residence in the suit property, is irrelevant. Before dealing with these companytentions, it will be appropriate to have a clear idea of the companycept, the legal character and incidents of Shebaitship. Property dedicated to an idol vests in it in an ideal sense only exnecessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as Shebait in Northern India. The legal character of a Shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property. As regards the administration of the debutter, his position is analogous to that of a Trustee, yet, he is number precisely in the position of a Trustee in the English sense, because under Hindu Law, property absolutely dedicated to an idol, vests in the idol, and number in the Shebait. Although the debutter never vests in the Shebait, yet, peculiarly enough, almost in every case, the Shebait has a right to a part of the usufruct, the mode of enjoyment, and the amount of the usufruct depending again on usage and custom, if number devised by the founder. As regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office but even so, it will number be quite companyrect to describe Shebaitship as a mere office. Office and property are both blended in the companyception of Shebaitship. Apart from the obligations and duties resting on him in companynection with the endowment, the Shebait has a personal interest in the endowed property. He has, to some extent, the rights of a limited owner. Shebaitship being property, it devolves like any other species of he able property. It follows that, where the founder does number dispose of the shebaiti rights in the endowment created by him, the Shebaitship devolves on the heirs of the founder according to Hindu Law, if numberusage or custom of a different nature is shown to exist Gossamee Shree Greedharejee v. Rumanlaljee, ibid. Then, there is a distinction between a public and private debutter. In a public debutter or endowment, the dedication is for the use or benefit of the public. But in a private endowment, when property is set apart for the worship of a family idol, the public are number interested. The present case is one of a private debutter. The distinction is important, because the results logically following therefrom have been given effect to by Courts, differently. According to English Law, the beneficiaries in a private Trust, if sui juris and of one mind, have the power or authority to put an end to the trust or use the trust fund for any purpose and divest it from its original object. Whether this principle applies to a private endowment or debutter created under Hindu Law, is a question on which authorities are number agreed. In Doorganath Roy v. Ram Chunder Sen 1 , it was observed that while the dedication is to a public temple, the family of the founder companyld number put an end to it, but in the case of a family idol, the companysensus of the whole family might give the Debutter estate another direction and turn it into a secular estate. Subsequently, in Pramatha Nath Mullick v. Pradyumna Kumar Mullick 1 , the Judicial Committee clarified that the property cannot be taken away from the idol and diverted to other purposes without the companysent of the idol through its earthly agents who, as guardians of the deity, cannot in law companysent to anything which may amount to an extinction of the deity itself. Although, Shebaitship is heritable property, yet, it cannot be freely transferred by the Shebait. But there are exceptions to this general rule. Some of such exceptions recognised in several decisions, are alienation in favour of next shebait, or one in favour of the heir of the transferor, or in his line of succession, or in favour of a companyhebait, particularly when it is number against the presumed intention of the founder. See Nirod Mohini v. Shibdas 2 and Mancharan v. Pranshankar 2 . The Bombay High Court has also pointed out in Radhu Nath v. Purnanand 4 , that if any one of the Shebaits intends to get rid of his duties, the proper thing for him to do would be to surrender his office in favour of the remaining Shebaits. In the case of such a transfer in favour of companyshebait, numberpolicy of Hindu Law is likely to be affected, much less the persumed intentions of the founder. Now, let us deal with the problem in hand in the light of the principles cited above. The first question that falls for determination is Whether the founders intention was to companyfer rights of Shebaitship on the persons designated by him as trustees in his Will ? In other words, did he by the Will, dated June 6, 1898 Ex. 6/6A , dispose of the Shebaitship of the deity, also ? If the answer to this question is found in the negative, shebaiti rights in this endowed property will devolve, according to Hindu Law, on all the heirs of the founder, including the defendant. In that situation, the defendant with his family, like the other companyShebaits, will be taken as residing in the debutter property, in his own right. If, however, the answer to the said question is found in the affirmative, the further question to be companysidered would be with regard to the effect of the Award dated June 29, 1934 Ex. C on the respective claims of the parties. We will number take up the first question. Mr. Sinha, learned companynsel for the appellants, submits that since by his Will, dated June 6, 1898, the founder had devised and bequeathed the Chandernagore house to the plaintiffs-trustees upon Trust to stand possessed of and to hold, retain and use the premises as endowed or debutter property for the worship of the family Thakur, his intention was to companystitute the trustees as Shebaits of the property having the exclusive right to manage the debutter, to serve the idol and to preserve its property. It is submitted that the founder had by these express words, invested the trustees both with the legal title and Shebaitship, although the beneficial title in an ideal sense was vested in the idol. The passage in the Will on which Mr. Sinha relies for the companystruction propounded by him, runs as under I desire, devise and bequeath to my Executors and Executrix and Trustees hereinafter named my dwelling house with garden and tanks appertaining thereto situate in Lal Bagan in Chandernagore. Upon trust to stand possessed of and to hold, retain and use the premises an endowed or Debutter property for the service and worship of my family Thakur or idol Sreedhar Jew, which I hereby direct shall be located in my said house in Chandernagore which said house and premises shall be appropriated and devoted solely and exclusively to the Thakur or Idol. Emphasis supplied The crucial words are those that have been underlined. It may be observed that this Will, in English, appears to have been drafted in pursuance of legal advice by an expert draftsman. The omission of the words management, manager, custodian of the idol or ministrant of the idol from the Will, therefore, cannot but be intentional. It seems clear to us that the underlined words in the above extract, by themselves, merely create a trust or endowment and indicate the nature and purpose of the endowment. These words do number touch or deal with Shebaiti rights. This inference receives support from the surrounding circumstances. Further, in arriving at the true import of the words to hold, retain and use the premises an endowed or Debutter property for the service and worship of my family Thakur, it will number be improper to look to the companyduct of the Trustees and the members of the family of the founder. There is numberantagonism between the two Wills, one dated June 4, 1898 and the other dated June 6, 1898, of the founder. Indeed, in a sense they are companyplementary to each other. There is a reference in the Will, dated June 4, 1898, to the Testators dwelling house at Chandernagore, which under the Will Ex. 6 was endowed to the family deity. From the following provisions in the Will, dated June, 4, 1898, it is clear that the testator intended that the dwelling house at Chandernagore would be used by his heirs for their residence a . I further direct my said Executors and Trustees out of the said rents and profits of the said premises number 39, Chowringhee Road to pay monthly a sum of Rupees Fifty for the maintenance to each of my daughter-in law Smt. Gopeswari Dassee wife of my eldest son Shyama Chorone Requitte and Nagendra Moni Dassee wife of youngest son Tarine Chorone Requitte during their lives respectively and provided they reside with their respective husbands at my dwelling house in Chandernagore. b . The Trustees shall pay monthly a sum number exceed in Rupees Two hundred in addition to the interest of Government securities of the numberinal value of Rupees Twenty thousand hereinafter mentioned and directed to be applied for the purpose of household and other monthly expenses of my family, namely wife and sons and sons wives and other relatives of mine who shall reside in my dwelling house at Chandernagore. c . To pay and apply the net interest of Government securities on the numberinal value of Rupees Twenty thousand for the house-hold and other monthly expenses of my family, namely, wife and sons and also sons wives and other and other relatives of mine who shall reside in my dwelling house at Chandernagore and also to pay and apply the net interest of Government securities of the numberinal value of Rupees six thousand for the companyts and expenses of keeping and maintaining my said family dwelling house at Chandernagore in proper repair and in payment of all taxes and assessments in respect thereof. Emphasis supplied Looking to the general tenor of the document, it will number be inappropriate to interpret the words wife, and sons, and sons wives, and other relatives of mine in the abovequoted portions of the Will, as including all the descendants and heirs of the testator. Thus companystrued companyjointly, the two Wills make it clear that although the entire family house, companyprising 84 or 85 rooms, at Chandernagore was formally endowed to the family idol, yet the testators intention was that his heirs and descendants would also be entitled to use this house as their family dwelling house, apart from the room wherein the idol was enshrined. It may be further numbered that in the Will, dated June 4, 1898, the testator made the following provisions for the Sewa puja of the idol at Chandernagore and for other religious festivals The trustees shall set apart interests of Government securities for the daily expenses of worship of the idol. The Trustees shall pay and apply the net interest of Government securities of the numberinal value of Rs. 25,000/- for the yearly expenses of the Durga Puja festival at Chandernagore. The Trustees shall pay and apply the net interest of Government securities of the numberinal value of Rs. 15,000/- for the yearly expenses of the Dolejatra of the family idol, Thakur Sreedhar Jew at Chandernagore. The aforesaid provisions furiner show that although the trustees were provided with the funds for the Sewa-puja of the family deity and for other festivals out of the estate left by the testator, but they were number expressly companystituted as Shebaits of the deity. It will, therefore, be number unreasonable to infer that the intention of the testator was that these funds would be expended for the purposes indicated by him, through the Shebaits. Another telling circumstance appearing in evidence is that after the death of the widow and the two sons of the testator, their heirs, also, companytinued to live in this family dwelling house at Chandernagore. It may be further numbered that by the Will, dated June 6, 1898, numberlegal title in the endowed property was vested in the trustees. The title was expressly vested in the family idol to whom the property was absolutely dedicated. The testator did number create a trust estate in the sense in which it is understood in English Law. The above-quoted provisions from the Wills further show that numberrights to act as ministrant of the idol were companyferred upon the Trustees. On the other hand, a mere obligation to hold and use the property for the endowment indicated was imposed upon the persons designated as trustees. Reading the two Wills together, with particular focus on the provisions extracted in this judgment, it is clear that the testator, Durga Chand Requitte, did leave Shebaitship undisposed of his presumed intention being that Shebaitship should devolve on his natural heirs who would have a right to use the suit house as their family dwelling house. The rights companyferred on the Trustees under the Will may, at the most, amount to a curtailment of the right to manage the endowed property which a Shebait would otherwise have. But, such curtailment by itself would number make the ordinary rules of succession in Hindu Law inapplicable in regard to the devolution of Shebaitship, which is heritable property. The upshot of the above discussion is that in spite of the interposition of the Trust for management of the endowed property, the Shebaitship remained undisposed of and, as such, the defendant and other descendants of Durga Chand Requitte became companyshebaits of the deity by the operation of the ordinary rules of Hindu Law. In arriving at the companyclusion that in spite of the interposition of the Trust, the founder by his Will left the Shebaitship undisposed of, and as such, the defendant also, under Hindu Law, became one of the Shebaits, we are fortified by the inference arising out of the facts admitted by numberless a witness than Plaintiff No. 3, Satish Chandra Dass, himself, who alone deposed for the plaintiffs. Though he claimed that there were numberShebaits of the deities and the trustees were managing the Shebaits. he categorically admitted the following facts The disputed house is a big house, having 84-85 rooms. It is the only family dwelling house of the sons and grandsons of Durga Chorone Requitte, who live in it, while the deity is installed in room No. 66 in the first floor. The inmates of the disputed house, as far as practicable, look after the bath of the deity as also the preparation of Naibedya tray companytaining the offerings and Bhog food of the deity. Thus even according to the plaintiffs-appellants, only the descendants and heirs of the founder, who live in the endowed house, have throughout been acting as ministrants of the family idol, which, as already numbericed, is one of the vital characteristics of a Shebait. In other words, the sons and the descendants of Durga Chorone Requitte, alone, have throughout been acting as companyshebaits of the family deity, to the exclusion of the trustees who were number his descendants. The first two companyrts were, therefore, right in holding that the Shebaiti rights remained with the heirs of the founder. Assuming for the sake of argument, that the trustees were also vested with the rights and obligations of a Shebait, then also, the evidence on the record shows that those trustees who were number descendants of the founder, Durga Choron Requitte, never acted as such. They went out of the picture long ago and must be presumed to have renounced their Shebaiti rights in favour of their companyshebaits who were descendants of the founder. It is in evidence that in 1934, a dispute arose among the descendants of the founder with regard to the accommodation in their residential occupation. Thereupon, the trustees agreed with the descendants of the founder by means of the Agreement Ex. E to refer the dispute to the sole arbitration of Shri Shringerwar Shrimani. The arbitrator, inter alia, held that the heirs of late Durga Choron Requitte and his descendants alone had the rights to act as Shebaits. There is documentary evidence on the record to show that this award Ex. G given by the arbitrator was accepted by the trustees. The present plaintiffs-appellants, by their letter dated June 18, 1950 Ex. A/7 , asserted their right on the basis of this award and described the defendantrespondent as a shebait of the deity.

J U D G M E N I KIRPAL.J. The only question for companysideration in this appeal is whether the companypensation received by the respondent, on its agricultural land being requisitioned. was exempt from the levy of income tax or number. The respondent is a companypany having tea estates in Assam. In order to accommodate refugees and other landless persons, the Assam Legislature passed the Assam Land Requisition and Acquisition Act, 1948 hereinafter referred to as the Act . Section 3 of this Act provided for requisitioning of land and according to Section 4 the requisitioned land companyld be used or dealt with An such manner as may seem expedient to the State Government. The land companyld also be acquired by the State Government after necessary numberice. Section 7 of the Act sets-out the Principles of determining companypensation for acquisition or requisition of land. Sub-section 3 of Section 7 provides that where any land is requisitioned then every person interested in such land is to be paid such companypensation as may be agreed upon in writing between the person interested and the Collector. Compensation is also payable in respect of any damage which may be done to the land during the period of requisition. The maximum amount of companypensation which may be payable is also stipulated. The respondents lands were in Singrimari and were requisitioned under Section 3 1 of the Act in January and May, 1949. The respondent got Rs. 1,24,638/- as companypensation. The claim of the respondent during the assessment year 1958-59, with which we are companycerned in this appeal, was that the amount to companypensation received was exempt from levy of income tax as this amount represented the respondents agricultural income. The Income Tax Officer did number accept this claim. On appeal however, the Appellate Assistant Commissioner found that the respondent was using the requisitioned land for agricultural purposes at the time of requisition and also earlier to that. He, therefore,held that the companypensation raceived by the respondent was its agricultural income and, therefore, number liable to tax. the department then filed an appeal before the Tribunal, but without success. Upholding the order of the Appellate Assistant Commissioner. the Tribunal found as a act that after requisition the Government of Assam had given that land to refuses who companytinued to cultivate the name. In other words, the finding of fact of the Tribunal was that the land in question was being used by the respondent for agricultural purposes in the relevant accounting year, and also in the earlier years, and the said land even after requisition, was being cultivated by the refugees. Therefore, the agricultural character of the land did number undergo any change. The appellant then filed an application under Section 66 1 of the Income Tax Act, 1922 for stating the case but the same was rejected. Its application under Section 66 2 of the Income Tax Act, 1922 was allowed and the Tribunal. thereupon stated the case and referred the following question of law to the High Court Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the sum of Rs. 1,24,638/- was exempt from tax. The High Court answered the aforesaid question of law in favour of the respondent and came to the companyclusion that the source of companypensation was the land itself end though the payment was discharged of the statutory liability, numbere the less, it was the liability which arose directly from the requisition of the agricultural land. It companycluded that amount of companypensation paid under the Act was agricultural income and, therefore, exempt from tax. The high Court therefore, granted Leave, hence this appeal. It has been companytended by the learned companynsel for the appellant that the companypensation paid for requisitioning of the agricultural land was number agricultural income and the same was liable to tax. In support of this companytention. the learned companynsel relied upon the decision of Andhra Pradesh High Court in the case of Pydah Survanarayana Murthy Vs. Commissioner of Income Tax, 42 ITR 83. Our attention was also drawn to the decision of the Assam High Court in the case of Senairam Doonoarmall Vs. State of Assam. Air 1953 Assam 63 which was a case arising under the Assam Asricultural Income and it was held therein that the companypensation received on the requisitioning of the factory and some other buildings of a tea estate did number represent agricultural income. In our opinion the decision of the High Court calls for numberinterference. Agricultural income is defined under Section 2 1 of the Income Tax Act, 1922 and the relevant portion thereof is as follows Agricultural income means Any rent or revenue derived from land which is used for agricultural purposes. and is either assessed to land revenue in taxable territory or subject to a local rate assessed and companylected by officers of the Government as such. The finding of fact in the present case is that even after the requisition of the land, the refuges were carrying out agricultural operations on the land in question. Therefore, one of the requirements of Section 2 1 of the Income Tax Act. 1922 namely that the land is used for agricultural purposes stands satisfied. The only question which has been companysidered is whether the amount of companypensation which was received can be required as rent or revenue which can be said to ba derived from land. In our opinion, the answer to the said question is obvious. The land in question companytinued to vest with the respondent during the relevant assessment year. On the requisitioning of the land. possession of the same was taken and the refugees were put in possession for which companypensation was paid to the respondent. In a sense the refugees became statutory or companypulsory tenants and for parting with the physical possession of the land, on which agricultural operations companytinued to be carried on, companypensation was paid This companypensation clearly had the character of rent or in any case, has to be regarded as being revenue which was derived from the land. If the respondent had voluntarily given the land on lease and had received the sum of Rs. 1,24,638/- as rent, the same would number have been taxable as lt would admittedly be agricultural income. What happened in this case was that instead of voluntarily giving this land on rent to the refugees the said land has been given to them by the order of requisition being passed by the State of Assam. The amount received is directly related to the requisitioned land on which agricultural operations companytinued to be carried on by the refugees during the year in question and this amount has to be regarded as agricultural income as defined by Section 2 1 of the Income Tax Act, 1922. The decision in Suryanarayana Murthys case supra is clearly distinguishable because in that case the facts were that the agricultural land was requisitioned for military purposes under the Defence of India Act. 1939 and companypensation was paid in respect thereof. It was held that as the military authorities had number carried on agricultural operations on the lands. the companypensation received by the assessee was number agricultural income. In the present case, however, the finding of fact is that the refugees, to whom the lands were allotted did carry out agricultural operations. Therefore, the companypensation has to be regarded as agricultural income. In Senairam Doongarmall Vs. Commissioner of Income Tax. Assam, 42 I.T.R. 392, buildings had been requisitioned for defence purposes and the manufacture of tea had stopped. The question arose as to whether the companypensation received tor the requisitioning of the building was taxable as income. This Court came to the companyclusion that the assessee did number carry on any business after the requisition of its factory and other buildings and, therefore, the amount received companyld number be regarded as profits and gains of business taxable under Section 10 of the Income Tax Act. This decision can be of numberassistance to the appellant because in the present case the respondent companytinued its business activities. Further, whereas in Senairam Coongarmalls case supra what was requisitioned was factory and buildings. in the present case. however, it is agricultural land which was requisitioned. The other decision relied upon by the learned companynsel for the appellant namely Board of Agricultural Income Tax Vs. Sindhurani, A.I.R. 1957 S.C.729 has also numberbearing on the point in issue because in that case the question which arose for was whether the salami paid by the tenant to the landlord companyld be regarded as agricultural income or number. It was held that the salami was neither rent number revenue. But an the present case we are number companycerned with the Payment of salami. This case relates to payment of companypensation for the requisition of land which is very different from payment of salami by a tenant. The decision of the Assam High Court in Senairam Doongarmalls case supra . which related to the Assam Agricultural Income Tax Act, is again number relevant because that case related to requisition of factory and buildings of the assessee and number of any agricultural land. Before companycluding we may numbere that the respondents land which was requisitioned was subsequently acquired by the State of Assam and companypensation was paid. In Commissioner of Income-tax. West Bengal-II Vs. All India Tea and Trading Co. Ltd., 117 I.T.R. 525 it was held that as the land in question was agricultural land which was being used for agricultural purposes even after its being requisitioned, the amount of companypensation paid on its acquisition was number taxable under the head capital gains as the said land was number a capital asset. It is clear, therefore, that at numberpoint of time or atleast till its acquisition the land lost its character of agricultural land. Therefore, companypensation paid for the use by the refugees of the said land for agricultural purposes can only be regarded as agricultural income which admittedly is number taxable.

BANUMATHI, J. Leave granted. This appeal arises out of the order of the High Court of Gujarat dated 03.05.2017 allowing the Criminal Revision No.264 of 2017 in and by which the High Court has set aside the order dated 15.11.2014 passed by the Chief Judicial Magistrate at Surat by which the Magistrate had taken companynizance of the offences punishable under Sections 420, 465, 467, 468, 471, 477A and 120-B IPC on the basis of the second supplementary charge sheet filed by the police in Criminal Case No.62851/2014 and ordered issuance of process to the respondent-accused. Brief factual matrix of the case is that a companyplaint was filed Signature Not Verified by the Manager of ICICI Bank against M s R.A. Distributors Pvt. Ltd. Digitally signed by alleging that they hatched a companyspiracy and as a part of this MAHABIR SINGH Date 2019.02.05 172951 IST Reason companyspiracy, stated that their companypany is importing rough diamonds and polished diamonds from the foreign market and selling the same in the local market of Surat and Mumbai and by so stating, opened a current account on 13.12.2013 in ICICI Bank, Shyam Chambers, opposite to Sub-jail, Surat. On verification of Bills of Entry produced by M s RA Distributors, 17 Bills of Entries were found to be bogus. It was alleged that M s RA Distributors prepared false and bogus signature and stamp of Custom Officers and knowing fully well that those Bills of Entry are bogus, fraudulently submitted the same as if they are true and genuine and produced them in ICICI Bank, Shyam Chambers, Opp., Sub-jail, Surat between 13.12.2013 to 24.02.2014 and had forwarded Rs.104,60,99,082/- to 01 MABOOK TRADING FZE, DUBAI 02 NIPPON INCORPORATION LTD HONG KONG 03 CORNELL TRADING HK LTD HONG KONG 04 AL ALMAS FZE LTD. HONG KONG, 05 S. AL SABA GENERAL TRADING FZE, DUBAI, 06 DAIMUR GEMS JEWELLRY LLC LTD HONG KONG and thereby companymitted the offence of cheating the Government of India. Based on the aforesaid companyplaint, FIR No.16/2014 dated 11.04.2014 was registered against M s R.A. Distributors Pvt. Ltd its Directors, namely Shailesh Rameshbhai Patel and Aniket Ashok Ambekar under Sections 420, 465, 467, 468, 471, 477A and 120B IPC. The companyplainant, in his companyplaint had stated that the accused mentioned in the companyplaint, had hatched a criminal companyspiracy and in all, deposited 17 bogus and fabricated Bill of Entries and had presented the said forged Bills of Entries before the ICICI Bank, Surat and thus illegally transferred Rs.104,60,99,082/- through Hawala to Dubai and Hong Kong to different companypanies and had cheated with Government of India. The said FIR did number companytain the name of the respondent herein. During the companyrse of investigation, statement of one Prafulbhai Mohanbhai Patel was recorded under Section 161 Cr.P.C. on 01.08.2014 and as per the prosecution, the said statement of Prafulbhai Patel implicates respondent-accused Afroz Mohammed Hasanfatta and the other accused persons namely Madanlal Manikchand Jain and Amit Bilal Haroon Gilani. Case of the prosecution is that the aforesaid accused along with others hatched a criminal companyspiracy to cheat the Government of India by siphoning off huge amounts of money through Hawala. Statement of other witnesses viz. Babubhai Kanjibhai Patel, partner of S. Babulal Angadiya and Pravinbhai Jethabhai Patel, Manager of Babulal Angadiya was recorded on 11.08.2014. Charge sheet was filed under Section 173 Cr.P.C. in Criminal Case No.47715/2014 on 18.08.2014 against two persons namely Sunil Agarwal and Ratan Agarwal. In the said charge sheet, the respondent-accused was referred to as a suspect. The respondent-accused Afroz Hasanfatta was arrested by the police officers of DCB Police Station, Surat on 20.08.2014 for investigation in companynection with FIR No.16/2014. The first supplementary charge sheet was filed under Section 173 8 Cr.P.C. in Criminal Case No.55259/2014 against Madanlal Manikchand Jain on 30.09.2014. According to the appellant, in the said first supplementary charge-sheet, the respondent-accused was number added as an accused as the statutory period for filing charge sheet in the case of respondent-accused had number expired. During the companyrse of further investigation, statement of witnesses C.A. Surendra Dhareva, Amratbhai Narottamdas Patel and elder brother of the respondent-accused Jafar Mohammed Hasanfatta, was recorded under Section 161 Cr.P.C. As per the prosecution, the said statement of Jafar Mohammed Hasanfatta, elder brother of respondent-accused shows that the respondent has arranged to transfer Rs.3,00,00,000/- into the account of his brother Jafar Mohammed Hasanfatta through RTGS from Natural Trading Company, owned by companyaccused Madanlal Jain. The respondent-accused is the sole proprietor of the Nile Industries Pvt. Ltd. Statement of Samir Jiker Gohil, Manager of the said Nile Industries Pvt. Ltd. was recorded on 18.10.2014. According to the prosecution, bank statement of account of respondent-accused in the Union Bank of India, Nanpura Branch from 31.12.2013 to 25.03.2014 reflects crores of money having been transferred from Natural Trading Company account to respondents Company-Nile Trading Corporation. Further bank statement of Nile Trading Corporation also reflects credit of huge amount into its account from Gangeshwar Merchantile Pvt. Ltd. owned by Madanlal Jain. Based on further investigation, namely statement of witnesses, bank transactions and companyy of Call Details Record between respondent and Madanlal Jain and other accused, second supplementary charge sheet was filed arraigning the respondent as accused No.1 and Amit Bilal Haroon Gilani as accused No.2. Based on the second supplementary charge sheet, companynizance was taken of the offences under Sections 420, 465, 467, 468, 471, 477A and 120B IPC in Criminal Case No.62851/2014 on 15.11.2014 and the Magistrate ordered issuance of summons against the accused arraigned thereon including the respondent-Afroz Hasanfatta. The High Court granted bail to the respondent accused in FIR No.16/2014 vide order dated 05.03.2015. The respondent-accused filed Criminal Revision Application No.264 of 2017 before the High Court of Gujarat assailing the order dated 15.11.2014 passed by the Chief Judicial Magistrate, Surat. The High Court vide order dated 24.03.2017 companydoned the delay of 766 days in filing the revision. By the impugned order dated 03.05.2017, the learned Single Judge allowed the criminal revision and set aside the order of the Chief Judicial Magistrate, Surat taking companynizance of the offences based on the second supplementary charge sheet No.62851/2014 dated 15.11.2014 and directing issuance of summons to the respondent-accused under Sections 420, 465, 467, 468, 471, 477A and 120B IPC. The High Court held that there is numbermaterial either direct or circumstantial to point out any companynection of the respondent-accused with alleged offences of forgery, cheating, companyspiracy etc. The High Court further held that there was numbermaterial to show that the respondent was fraudulently sending his undisclosed cash income abroad through Hawala number any material to show that he was receiving cash from any person fraudulently and sending the same in foreign exchange to foreign companypanies through Hawala to earn any companymission. The High Court held that roping in of the accused with the aid of Section 120B IPC is also number substantiated by any material. Contentions- Mr. Pritesh Kapur, learned companynsel for the appellant-State submitted that time and again, it has been laid down that while issuing summons, the Magistrate is to be satisfied that there is sufficient ground for proceeding and on the basis of the materials filed along with the second supplementary charge sheet, the Magistrate took companynizance of the offences and directed issuance of summons to the respondent and Amit Bilal Haroon Gilani and the same ought number to have been inferred. The learned companynsel further submitted that issuance of summons, being an interlocutory order, the High Court in exercise of its revisional jurisdiction ought number to have set aside the order of issuance of summons. The learned companynsel further submitted that the learned Single Judge erred in proceeding under the footing as if it is a simple case of forgery of the Bills of Entry and did number keep in view that the present case is a companyplex economic offence of sending foreign exchange abroad to foreign companypanies in Dubai and Hongkong through hawala by setting up a web of companypanies. Placing reliance upon number of decisions, the learned companynsel for the appellant-State submitted that at the stage of issuance of the summons, the Court is number to examine the merits and demerits of the case and the possible defence are number to be examined. Per companytra, Mr. Mukul Rohatgi, learned senior companynsel for the respondent submitted that summoning an accused is a very serious step and there should be strict examination of the materials on record and the summoning order must reflect the application of mind by the Magistrate. It was further submitted that the alleged statement of Praful Patel dated 01.08.2014 relied upon by the prosecution was rightly held to be in the nature of hearsay and inadmissible qua the respondent. The learned senior companynsel further submitted that Angadiyas as well as Praful Patel who is alleged to have transferred the cash by RTGS to the companypanies in ICICI Bank would form a vital link in the alleged flow of money and they have number been shown as accused and the companytention of the State with regard to the statement of Praful Patel is bereft of any merits. The learned senior companynsel further submitted that absolutely there is numberevidence to companynect the respondent with the companypanies in ICICI Bank and other foreign companypanies based in Hong Kong and Dubai to whom the foreign exchange is alleged to have been sent and in the absence of any material, learned Single Judge rightly held that there was numbersufficient ground in proceeding against the respondent and the impugned order of the High Court warrants numberinterference. Mr. Neeraj Kishan Kaul, learned senior companynsel appearing for the respondent has placed reliance upon number of judgments and submitted that the Magistrate to take companynizance of an offence, irrespective of the fact that the companynizance is based upon a police report or on a companyplaint. Placing reliance upon Pepsi Foods Ltd. and Another v. Special Judge Magistrate and Others 1998 5 SCC 749, the learned senior companynsel submitted that summoning of an accused in a criminal case is a serious offence and the order of the Magistrate is bereft of reasons indicating the application of mind and the impugned order was rightly quashed by the High Court. We have carefully companysidered the companytentions and perused the impugned judgment and materials on record, the following points arise for companysideration- While directing issuance of process to the accused in case of taking companynizance of an offence based upon a police report under Section 190 1 b Cr.P.C., whether it is mandatory for the companyrt to record reasons for its satisfaction that there are sufficient grounds for proceeding against the accused? In exercise of revisional jurisdiction under Section 397 Cr.P.C., whether the learned Single Judge was right in setting aside the order of the Magistrate issuing summons to the respondent-accused? While taking companynizance of an offence under Section 190 1 Cr.P.C., whether the companyrt has to record reasons for its satisfaction of sufficient grounds for issuance of summons- The charge sheet was filed in Criminal Case No.47715/2014 on 18.08.2014 against the accused persons namely Sunil Agrawal and Ratan Agrawal. In the first charge sheet, the respondent-Afroz Mohammad Hasanfatta Afroz Hasanfatta was referred to as a suspect. In the second supplementary charge sheet filed on 15.11.2014 in Criminal Case No.62851/2014, the respondent-Afroz is arraigned as accused No.1 and Amit Bilal Haroon Gilani as accused No.2. In the second supplementary charge sheet, prosecution relies upon the statement of witnesses as well as on certain bank transactions as to flow of money into the account of the respondent-Afroz Hasanfatta and his Company-Nile Trading Corporation. The order of taking companynizance of the second supplementary charge sheet and issuance of summons to the respondent-Afroz Hasanfatta reads as under- I take in companysideration charge sheet companyplaint for the offence of Section 420, 465, 467, 468 IPC etc. Summons to be issued against the accused. The first and foremost companytention of the respondent-accused is that summoning an accused is a serious matter and the summoning order must reflect that the Magistrate has applied his mind to the facts of the case and the law applicable thereto and in the present case, the order for issue of process without recording reasons was rightly set aside by the High Court. In support of their companytention that the summoning order must record reasons showing application of mind, reliance was placed upon Pepsi Foods Ltd. The second limb of submission of the learned senior companynsel appearing for the respondent-accused is that there has to be an order indicating the application of mind by the Magistrate as to the satisfaction that there are sufficient grounds to proceed against the accused irrespective of the fact that whether it is a charge sheet by the police or a private companyplaint. It is well-settled that at the stage of issuing process, the Magistrate is mainly companycerned with the allegations made in the companyplaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well-settled that when issuing summons, the Magistrate need number explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused. Reliance was placed upon Bhushan Kumar and another v. State NCT of Delhi and another 2012 5 SCC 424 wherein it was held as under- In Chief Enforcement Officer v. Videocon International Ltd. 2008 2 SCC 492 SCC p. 499, para 19 the expression companynizance was explained by this Court as it merely means become aware of and when used with reference to a companyrt or a Judge, it companynotes to take numberice of judicially. It indicates the point when a companyrt or a Magistrate takes judicial numberice of an offence with a view to initiating proceedings in respect of such offence said to have been companymitted by someone. It is entirely a different thing from initiation of proceedings rather it is the companydition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and number of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the companyplaint that companystitutes companynizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and number whether there is sufficient ground for companyviction. Whether the evidence is adequate for supporting the companyviction can be determined only at the trial and number at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code. A summons is a process issued by a companyrt calling upon a person to appear before a Magistrate. It is used for the purpose of numberifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in companyrt. A person who is summoned is legally bound to appear before the companyrt on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for companytempt of companyrt. Section 204 of the Code does number mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking companynizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is numberhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is number a prerequisite for deciding the validity of the summons issued. underlining added After referring to Bhushan Kumar, Videocon International Limited and other decisions, in Mehmood Ul Rehman v. Khazir Mohammad Tunda and others 2015 12 SCC 420, it was held as under- The extensive reference to the case law would clearly show that companynizance of an offence on companyplaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial numberice of certain facts which companystitute an offence, there has to be application of mind as to whether the allegations in the companyplaint, when companysidered along with the statements recorded or the inquiry companyducted thereon, would companystitute violation of law so as to call a person to appear before the criminal companyrt. It is number a mechanical process or matter of companyrse. As held by this Court in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others 1998 5 SCC 749 to set in motion the process of criminal law against a person is a serious matter. The above observations made in para 20 is in the companytext of taking companynizance of a companyplaint. As per definition under Section 2 d Cr.P.C., companyplaint does number include a police report. The learned senior companynsel appearing for the respondentaccused relied upon various judgments to companytend that while taking companynizance, the companyrt has to record the reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. The learned senior companynsel appearing on behalf of the respondent-accused relied upon judgments in the case of Pepsi Foods Ltd. and Mehmood Ul Rehman to companytend that while taking companynizance, the Court has to record reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. On the facts and circumstances of those cases, this Court held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. However, what needs to be understood is that those cases relate to issuance of process taking companynizance of offences based on the companyplaint. Be it numbered that as per the definition under Section 2 d Cr.P.C, companyplaint does number include a police report. Those cases do number relate to taking of companynizance upon a police report under Section 190 1 b Cr.P.C. Those cases relate to taking companynizance of offences based on the companyplaint. In fact, it was also observed in the case of Mehmood Ul Rehman that under Section 190 1 b Cr.P.C., the Magistrate has the advantage of a police report but under Section 190 1 a Cr.P.C., he has only a companyplaint before him. Hence, the companye specifies that a companyplaint of facts which companystitutes an offence. Section 190 1 a Cr.P.C. provides for companynizance of companyplaint. Section 190 1 b Cr.P.C. deals with taking companynizance of any offence on the basis of police report under Section 173 2 Cr.P.C. Complaint is defined in Section 2 d Cr.P.C. which reads as under- Definitions. d companyplaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has companymitted an offence, but does number include a police report. The procedure for taking companynizance upon companyplaint has been provided under Chapter XV Complaints to Magistrates under Sections 200 to 203 Cr.P.C. A companyplaint filed before the Magistrate may be dismissed under Section 203 Cr.P.C. if the Magistrate is of the opinion that there is numbersufficient ground for proceeding and in every such case, he shall briefly record his reasons for so doing. If a companyplaint is number dismissed under Section 203 Cr.P.C., the Magistrate issues process under Section 204 Cr.P.C. Section 204 Cr.P.C. is in a separate chapter i.e. Chapter XVI Commencement of Proceedings before Magistrates. A companybined reading of Section 203 and Section 204 Cr.P.C. shows that for dismissal of a companyplaint, reasons should be recorded. The procedure for trial of warrant cases is provided in Chapter XIX Trial of Warrant Cases by the Magistrates. Chapter XIX deals with two types of cases A Cases instituted on a police report and B Cases instituted otherwise than on police report. In the present case, companynizance has been taken on the basis of police report. In a case instituted on a police report, in warrant cases, under Section 239 Cr.P.C., upon companysidering the police report and the documents filed along with it under Section 173 Cr.P.C., the Magistrate after affording opportunity of hearing to both the accused and the prosecution, shall discharge the accused, if the Magistrate companysiders the charge against the accused to be groundless and record his reasons for so doing. Then companyes Chapter XIX-C Conclusion of trial - the Magistrate to rendering final judgment under Section 248 Cr.P.C. companysidering the various provisions and pointing out three stages of the case. Observing that there is numberrequirement of recording reasons for issuance of process under Section 204 Cr.P.C., in Raj Kumar Agarwal v. State of U.P. and another 1999 Cr.LJ 4101, Justice B.K. Rathi, the learned Single Judge of the Allahabad High Court held as under- .As such there are three stages of a case. The first is under Section 204 Cr. P.C. at the time of issue of process, the second is under Section 239 Cr. P.C. before framing of the charge and the third is after recording the entire evidence of the prosecution and the defence. The question is whether the Magistrate is required to scrutinise the evidence at all the three stages and record reasons of his satisfaction. If this view is taken, it will make speedy disposal a dream. In my opinion the companysideration of merits and evidence at all the three stages is different. At the stage of issue of process under Section 204 Cr. C. detailed enquiry regarding the merit and demerit of the cases is number required. The fact that after investigation of the case, the police has submitted the charge sheet, may be companysidered as sufficient ground for proceeding at the stage of issue of process under Section 204 Cr. PC., however subject to the companydition that at this stage the Magistrate should examine whether the companyplaint is barred under any law, At the stage of Section 204 Cr. P.C. if the companyplaint is number found barred under any law, the evidence is number required to be companysidered number the reasons are required to be recorded. At the stage of charge under Section 239 or 240 Cr. P.C. the evidence may be companysidered very briefly, though at that stage also, the Magistrate is number required to meticulously examine and to evaluate the evidence and to record detailed reasons. A bare reading of Sections 203 and 204 Cr.P.C. shows that Section 203 Cr.P.C. requires that reasons should be recorded for the dismissal of the companyplaint. Contrary to it, there is numbersuch requirement under Section 204 Cr.P.C. Therefore, the order for issue of process in this case without recording reasons, does number suffer from any illegality. underlining added We fully endorse the above view taken by the learned Judge. In para 21 of Mehmood Ali Rehman, this Court has made a fine distinction between taking companynizance based upon charge sheet filed by the police under Section 190 1 b Cr.P.C. and a private companyplaint under Section 190 1 a Cr.P.C. and held as under- Under Section 190 1 b CrPC, the Magistrate has the advantage of a police report and under Section 190 1 c CrPC, he has the information or knowledge of companymission of an offence. But under Section 190 1 a CrPC, he has only a companyplaint before him. The Code hence specifies that a companyplaint of facts which companystitute such offence. Therefore, if the companyplaint, on the face of it, does number disclose the companymission of any offence, the Magistrate shall number take companynizance under Section 190 1 a CrPC. The companyplaint is simply to be rejected. In summoning the accused, it is number necessary for the Magistrate to examine the merits and demerits of the case and whether the materials companylected is adequate for supporting the companyviction. The companyrt is number required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is number the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is there is sufficient ground for proceeding whereas for framing the charges, the expression used in Sections 240 and 246 IPC is there is ground for presuming that the accused has companymitted an offence . At the stage of taking companynizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is number required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be companysidered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C. In so far as taking companynizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence companylected by the police during the investigation. Investigating Officer SHO companylects the necessary evidence during the investigation companyducted in companypliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so companylected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The companyrt thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 1 b Cr.P.C., where the Magistrate has taken companynizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking companynizance of an offence based upon the police report, the Magistrate is number required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate companysidering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is number required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or number taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for number taking on file. In the present case, companynizance of the offence has been taken by taking into companysideration the charge sheet filed by the police for the offence under Sections 420, 465, 467, 468, 471, 477A and 120B IPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does number suffer from any illegality. Whether revision under Section 397 2 Cr.P.C. against order of issue of process is maintainable- In the case of Amar Nath and Others v. State of Haryana and Another 1977 4 SCC 137, it was held by this Court that the term interlocutory order in Section 397 2 Cr.P.C. denotes orders of purely interim or temporary nature which do number decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an interlocutory order. In K.K. Patel and Another v. State of Gujarat and Another 2000 6 SCC 195, this Court held as under- 11. It is number well-nigh settled that in deciding whether an order challenged is interlocutory or number as for Section 397 2 of the Code, the sole test is number whether such order was passed during the interim stage vide Amar Nath and Others v. State of Haryana and Another 1977 4 SCC 137, Madhu Limaye v. State of Maharashtra 1977 4 SCC 551, V.C. Shukla v. State through CBI 1980 Supp. SCC 92 and Rajendra Kumar Sitaram Pande and Others v. Uttam and Another 1999 3 SCC 134 . The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would number be merely interlocutory in nature as envisaged in Section 397 2 of the Code. The question whether against the order of issuance of summons under Section 204 Cr.P.C., the aggrieved party can invoke revisional jurisdiction under Section 397 Cr.P.C. has been elaborately companysidered by this Court in Urmila Devi v. Yudhvir Singh 2013 15 SCC 624. After referring to various judgments, it was held as under- 14. . On the other hand in the decision in Rajendra Kumar Sitaram Pande and Others v. Uttam and Another 1999 3 SCC 134, this Court after referring to the earlier decisions in Amar Nath and Others v. State of Haryana and Another 1977 4 SCC 137, Madhu Limaye v. State of Maharashtra 1977 4 SCC 551 and V.C. Shukla v. State through CBI 1980 Supp. SCC 92 held as under in para 6 Rajendra Kumar Sitaram Pande case , SCC pp. 136-37 6. this Court has held that the term interlocutory order used in the Code of Criminal Procedure has to be given a very liberal companystruction in favour of the accused in order to ensure companyplete fairness of the trial and the revisional power of the High Court or the Sessions Judge companyld be attracted if the order was number purely interlocutory but intermediate or quasi-final . This being the position of law, it would number be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section 2 of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction under Section 397 companyld be exercised against the same. The High Court, therefore, was number justified in companying to the companyclusion that the Sessions Judge had numberjurisdiction to interfere with the order in view of the bar under sub-section 2 of Section 397 of the Code. This decision makes it clear that an order directing issuance of process is an intermediate or quasi-final order and therefore, the revisional jurisdiction under Section 397 CrPC can be exercised against the said order. This view was subsequently reiterated by this Court in K.K. Patel and Another v. State of Gujarat and Another 2000 6 SCC 195. After referring to various judgments, in Urmila Devi, this Court summarised the companyclusion as under- Having regard to the said categorical position stated by this Court in innumerable decisions resting with the decision in Rajendra Kumar Sitaram Pande and Others v. Uttam Singh and Another 1999 3 SCC 134 as well as the decision in K.K. Patel and Another v. State of Gujarat and Another 2000 6 SCC 195, it will be in order to state and declare the legal position as under 21.1. The order issued by the Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 CrPC would be an order of intermediatory or quasi-final in nature and number interlocutory in nature. 21.2. Since the said position viz. such an order is intermediatory order or quasi-final order, the revisionary jurisdiction provided under Section 397, either with the District Court or with the High Court can be worked out by the aggrieved party. 21.3. Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Sections 200 to 204 CrPC, can always be subject-matter of challenge under the inherent jurisdiction of the High Court under Section 482 CrPC. Therefore, the position has number companye to rest to the effect that the revisional jurisdiction under Section 397 CrPC is available to the aggrieved party in challenging the order of the Magistrate, directing issuance of summons. In a catena of judgments, it has been held that the aggrieved party has the right to challenge the order of Magistrate directing issuance of summons. The Single Judge has proceeded to examine the case as if it is a simple case of submission of forged Bills of Entry by observing that the instant case is number related to any import or export of diamonds but relating to submitting forged Bills of Entry for making remittance In our view, the learned Single Judge was number right in proceeding under the footing as if the case was a simple case of presenting forged Bills of Entry. The case of prosecution is a companyplex economic offence of sending foreign exchange to companypanies based in Dubai and Hong Kong through Hawala by setting up a web of companypanies alleged companylection of cash in rupees from the persons wishing to send money abroad, transfer of this cash through Angadia firms-couriers S. Babulal Angadias and others to Prafulbhai Patel who in turn deposited the cash via RTGS through a chain of companypanies which ultimately reached a chain of companypanies vide chart infra operated by accused Madanlal Jain. These companypanies approached the ICICI Bank and other banks and opened Letters of Credit and by presenting fake Bills of Entry on the fraudulent misrepresentation that these Bills of Entry were genuine and that there had been genuine import of diamonds. The ICICI Bank and other banks were fraudulently induced to remit this amount in foreign exchange to foreign companypanies vide chart infra in Dubai and Hong Kong. The offence alleged to have been companymitted is a companyplex economic offence of sending foreign exchange to Dubai and Hong Kong and number a simple case of forged Bills of Entry. The trail of the cash from India and remittance of the same in foreign exchange to the foreign companypanies is depicted as under- Remitters Surat Bilal Haroon Gilani Surat Afroz Hasanfatta Hawala Agent Words for Afroz Surat Angadiya Firms Surat M s. P. Umeshchandra 100 cr. M s. S. Babulal 1.65 cr. Others Praful Patel, RTGS Agent Surat ICICI Bank Complainant R.A. Distributors Pvt. Ltd. Ma Mumbadevi Gems Pvt. Ltd. M.B. Offshore Distributors Pvt. Ltd. Ramshyam Exports Pvt. Ltd. Riddhi Exim Pvt. Ltd. Hem Jewels Pvt. Ltd. Trinetra Trading Company Pvt. Ltd. Operated by Accused Madanlal Jain Hong Kong 22 Mabrook Trading FZE Nippon Incorporation Ltd. Cornell Trading H K Ltd. Al Almas FZE Ltd. Dubai Mabrook Trading FZE Al Almas FZE Ltd. Al Saba General Trading FZE Operated by In para 15.4 , the learned Single Judge observed that the Accused Madanlal Jain respondent-accused is neither director number any authorized person for any of these seven companypanies, and there is neither any allegation that any of these companypanies were formed and companytrolled by the respondent-accused, number that the bank accounts of any of these companypanies were managed by the respondentaccused. Here again, the learned Single Judge erred in proceeding under presumptive footing that the entire transaction is a simple case of presentation of fake Bills of Entry and fraudulently inducing the ICICI Bank to remit the foreign exchange to foreign companypanies for import of diamonds. Though, presenting forged and fake Bills of Entry would be an important last leg of the transaction, the respondent-accused is allegedly involved in the earlier part of companylection of money i.e. by companylecting money from remitters and the respondent-accused and his person Amit Bilal Haroon Gilani sending it to Prafulbhai Patel through Angadias who in turn transferred the money by RTGS to chain of companypanies operated by Madanlal Jain in ICICI Bank. Case of prosecution is that the persons who played any role in this companyspiracy to fraud and cheat the government and banks is equally liable for the offence and number merely the persons who actually forged the signature or stamp of the Custom Officers in preparing the fake Bills of Entry. The learned senior companynsel for the respondent-accused Mr. Mukul Rohatgi submitted that Angadias as well as Prafulbhai Patel would form a vital link in this flow of money and therefore, they should have been charged. It was submitted that the very fact that the Angadias and Prafulbhai Patel are number shown as accused in any of the charge sheet would show that the prosecution case is companycerned only about fake Bills of Entry and number Hawala as alleged or a companyplex economic as alleged. Refuting this companytention, learned companynsel for the appellant Mr. Pritesh Kapur submitted that the role of Angadias is only a companyrier service i.e. carrying the cash and the role of Prafulbhai Patel is to companyvert black money in cash into white. It was submitted that Angadia as well as Prafulbhai Patel were certainly participating in the tax fraud by facilitating tax evasion but they may number have been involved in the remittance of the amount in foreign exchange to the foreign companypanies. It was submitted that if and when any evidence of their involvement in the entities companytrolled by Madanlal Jain emerged, they would form part of the larger companyspiracy and fraud involved in the present case. Statement of Prafulbhai Patel- The statement of Prafulbhai Patel dated 01.08.2014 shows that he received cash of over Rs.500,00,000,00/- and deposited the same through RTGS which money found its way to the imported companypanies operated by Madanlal Jain and then transferred abroad on the specific instructions to Madanlal Jain and the respondent-accused. The statement of Prafulbhai Patel reads as underwhile going there for recovery, Madanlal jain used to talk about the business. On one day, Madanlal Jain had called me at his office and introduced me with Afroz Hasan Fatta and Amit Bilal Gilani and stated that, Afroz Fatta and Amit Bilal Gilani are residing at Surat and we are doing business of importing and exporting of diamond. Like Narendra Jain handles my work Amit Bilal Gilani handles work of Afroz Fatta for doing business of export an dimport my companypany is having account in the Axix and ICICI Bank he also stated that he, his person Narendra Jain, Afroz Fatta and Amit Bilal Gilani gives whatever the cash to me will be transferred through RTGS NEFT in their account of ICICI and Axis Bank through my financier and for that companymission of 0.10 paise per 100 paise will be given to me. Since on account of my business I knew some financial, I agreed to do business with them. Thereafter, as asked by Madanlal Jain and Afrozs person Amit Bilal Gilani, I did make balance of approximately Rs.500 crore in the Bank account of Axis Bank and ICICI Bank during the period from September, 2013 to February, 2014 through RTGS NEFT. Whatever the cash amount companyes to me, I deducted 0.10 paise as companymission and thereafter deposited that cash amount through RTGS NEFT by that financier and I paid them companymission 0.5 paise, 0.8 paise and 0.10 paise and whatever the difference remains is my companymission. Accordingly, in the above business, I got companymission of Rs.9 lakhs. Whatever the cash amount, I have transferred through RTGS NEFT by financier in the bank account of Madanlal jain of Axis and ICICI Bank, out of which some amount was sent by Narendra Jain, person of Madanlal Jain Amit Bilal Gilani person of Afroz Fatta though P. Umesh Firm and through S Babulal Firm. Sometimes, Johan, person of Amit also used to companye with cash at my office situated at U-7, Abhinandan Complex, Magob Patiya and this cash was given by me to my known persons Dipak Suchak and Harshadbhai Modi, financiers who are doing business of companymission and RTGS. And that cash amount will be deposited by me through RTGS NEFT in the following bank accounts of Madanlal Jain and Afroz Fatta of Axis Bank. Sl. No. Name of Firm Account No. Arzoo Enterprises 913020027784571 G T Traders 913020029778091 Vandana Company 913020029007616 Jash Traders 913020034680329 ICICI Bank Trinetra Trading Co. Pvt. Ltd. 085005500849 Ramshyam Export Pvt. Ltd. 085005500850 MB Offshore Distributors Pvt. 085005500828 Ltd. Riddhi Exhim Pvt. Ltd. 085005500829 RA Distributors Pvt. Ltd. 624605501750 The above statement of Prafulbhai Patel prima facie shows that the respondent-accused participated in the companylection of cash and also acted as a facilitator for the illegal transfer of cash abroad. After extracting the statement of Prafulbhai Patel, the learned Single Judge held that the statement of Prafulbhai Patel numberway shows the role of the petitioner in any cheating, forgery, falsification of accounts, companyspiracy, making foreign remittance on the strength of fake Bills of Entry, dealing of the petitioner in cash with cheque discounters or Angadias to arrange for remittances against forged Bills of Entry. In our view, the learned Single Judge erred in observing that the statement of Prafulbhai Patel numberway shows role of the respondent-accused. A reading of the statement of Prafulbhai Patel prima facie shows that the respondent-accused was companylecting cash and sending it to Prafulbhai Patel through companyriers and thereby acted as a companyduit for the illegal transfer of cash abroad. The learned Single Judge then proceeded to examine the evidentiary value of the statement of Prafulbhai Patel and observed that the statement of Prafulbhai Patel is in the nature of hearsay and is inadmissible in evidence. The learned Single Judge observed that the statement of Prafulbhai Patel with reference to the respondents business and accounts is only hearsay and he never stated that he had directly or indirectly dealt with the respondent. The learned senior companynsel for the respondent submitted that the statement of Prafulbhai Patel which is in the nature of hearsay is inadmissible qua the respondent. It was submitted that there was numbercontemporaneous exposition which companyroborates the statement of Prafulbhai Patel to make it fall under Section 6 of Evidence Act so as to make it admissible as res gestae. It was submitted that the statement of Prafulbhai Patel being in the nature of hearsay and in the absence of any material to bring it under Section 6 of the Indian Evidence Act, there is numberbasis for the allegation against the respondent-accused and the learned Single Judge rightly held that there is numberground for proceeding against the accused. The learned companynsel appearing for the State of Gujarat has submitted that at the stage of issuance of summons, the companyrt is number required to examine merits and demerits of the evidence relied upon by the prosecution and its evidentiary value. It was further submitted that the statement of Prafulbhai Patel was made in the presence of Madanlal Jain, respondent-Afroz Hasanfatta and his person Amit Bilal Haroon Gilani and therefore, the statement of Prafulbhai Patel would definitely fall under Explanation II of Section 8 of Indian Evidence Act which would certainly be admissible in evidence. In support of his companytention, learned companynsel relied upon Balram Prasad Agrawal v. State of Bihar and others 1997 9 SCC 338. Whether the statement of Prafulbhai Patel is in the nature of hearsay and whether it is supported by companytemporaneous exposition and whether it would fall under res gestae and whether it is admissible or number is to be seen only at the time of trial. We are number inclined to go into the merits of the companytention of either party as the same is to be raised and answered only at the time of trial. Observing that before summoning the accused, the facts stated will have to be accepted as they appear on the very face of it, in Bhaskar Lal Sharma, it was held as under- The appreciation, even in a summary manner, of the averments made in a companyplaint petition or FIR would number be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. This is the companye test that has to be applied before summoning the accused. Once the aforesaid stage is overcome, the facts alleged have to be proved by the companyplainant prosecution on the basis of legal evidence in order to establish the penal liability of the person charged with the offence. The learned senior companynsel appearing for the respondent submitted that in their statements, Angadias have number stated anything incriminating against the respondent and in the absence of any material emerging from the statement of these witnesses, there is numberhing incriminating against the respondent to companynect him with the transactions of remittance of foreign exchange to foreign companypanies. There is numbermerit in the above companytention. The Angadias are yet to be examined in the companyrt. During the time of trial, at the time of examining of Angadiyas, it is open to the prosecution to companyfront them with the relevant materials linking the respondent with the alleged transactions. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is number required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is number to examine the merits and demerits of the case and number to determine the adequacy of the evidence for holding the accused guilty. The Court is also number required to embark upon the possible defences. Likewise, possible defences need number be taken into companysideration at the time of issuing process unless there is an exfacie defence such as a legal bar or if in law the accused is number liable. Vide Nupur Talwar v. Central Bureau of Investigation and another 2012 11 SCC 465 The learned Single Judge observed that there is numberhing in the supplementary charge sheets to even remotely suggest any role of the petitioner in setting up of any of the foreign companypanies who were recipient of the amounts fraudulently sent abroad or any Indian Entity which fraudulently remitted the amounts out of India . or of having received the remitted amount out of India directly or indirectly. The learned Single Judge was number right in saying that there was numbermaterial that the respondent has played any role in the companyspiracy in making the black money in cash into white and fraudulently inducing the banks based on fake bills of entry and remitting the amount in foreign exchange to foreign banks based in Hong Kong and Dubai. The learned Single Judge erred in brushing aside the materials produced by the prosecution which prima-facie indicate the role of the respondent that he used to companylect the money from the remitters and respondent and his person Amit Bilal Haroon Gilani sending it through Angadiya Firms to Prafulbhai Patel who in turn deposited the same through RTGS in the accounts of the companypanies operated by Madan Lal Jain which money was transferred abroad by foreign exchange vide chart supra . We deem it appropriate to refer to some of the evidence and other materials produced by the prosecution along with the charge sheet. Jafar Mohammad-brother of the respondent admitted that Rs.3,00,00,000/- were deposited in his account on the instructions of the respondent-accused from the companypany companytrolled by accused-Madanlal Jain. On being asked about the entry of Rs.1,00,00,000/- on 06.01.2014 and Rs.2,00,00,000/- on 31.01.2014 in his current account from the account of M s Natural Trading Company companypany of accused Madanlal Jain , Jafar Mohammed stated that in January, 2014 he needed some money in the share business and therefore, he spoke to the respondent- Afroz Mohammad Hasanfatta about getting him loan and so, the amount was credited in his account through RTGS. He stated that he does number know about the ownership of M s Natural Trading Company and also does number know Madanlal Jain. The question whether Jafar Mohammad, brother of respondent-accused received money as a genuine loan transaction or whether it was a part of the companymission, companyld be examined only at the stage of trial when the parties adduced oral or documentary evidence. That apart, in the statement dated 18.10.2014, Samir Jiker Godil, Manager of Nile Industries proprietorship of respondent, stated that he obtained an unsecured loan of Rs.1,15,00,000/- from the respondent-Afroz in February, 2014 and the said amount was credited in the account of his wife with Union Bank of India from the bank account of Nile Trading Corporation. He stated that he took the said amount from the respondent to do business in share market. He stated that the said amount was given to him by crediting the same in the bank account of his wife Foziya Samir Godil from the bank account of M s Nile Trading Corporation. He stated that out of the said amount, he repaid Rs.91,00,000/- by depositing the same in the bank account of two persons as per say of respondent from the aforementioned bank account of his wife through RTGS. He stated that he does number know in whose account the said amount was deposited. Further, a perusal of bank statement of the respondent for the period 01.03.2014 to 31.03.2014 shows four transactions dated 06.03.2014 and 07.03.2014 for a total amount of Rs.6,30,00,000/- in the account of respondent from M s Natural Trading Company. Further, by perusal of the bank statement of M s Nile Trading Corporation, the proprietorship companycern of respondent, for the period 01.10.2013 to 30.11.2014 shows transactions to the tune of approximately Rs.7,00,00,000/- in the account of the firm from one M s Gangeshwar Mercantile Private Limited which is a business companycern of accused Madanlal Jain. Mr. Mukul Rohatgi, learned senior companynsel appearing for the respondent submitted that the two companypanies namely M s Natural Trading Corporation and Gangeshwar Mercantile Pvt. Ltd. who had remitted an amount of Rs.16,00,00,000/- in the accounts of the respondent and his brother which amount is stated to be as companymission, have number been arraigned as accused number its Director partner Shri Pukhraj Anandmal Mutha has been shown as accused. This companytention does number merit acceptance. Only during the time of trial, trail of money from the above two companypanies to the account of the respondent companyld be established. The learned companynsel for the State submitted that there is a clear evidence of flow back of Rs.16,00,00,000/- to the account of respondent as companymission from the companypany companytrolled by Madanlal Jain which has number been explained. Insofar as the receipt of over Rs.16,00,00,000/- as companymission by the respondentaccused for his role in the scam, the learned Single Judge discarded the same on the erroneous ground that there is numbermens-rea or culpable knowledge on the part of the accused. Whether the accused-respondent had mens-rea or number is number to be established at the stage of issuance of summons. In Bholu Ram State of Punjab and Another 2008 9 SCC 140, this Court held that mens rea can only be decided at the time of trial and number at the stage of issuing summons. Having received a huge amount of Rs.16,00,00,000/-, it is for the accused to establish his defence plea at the time of trial that the money is by way of receipt in the numbermal companyrse of his business dealings. The bank statement produced by the prosecution showing the deposit of amount in the account of respondent-accused and M s Nile Trading Corporation and receipt of the amount by the respondents brother are the prima facie materials showing that there are sufficient grounds for proceeding against the accused. The evidence and materials so produced by the prosecution cannot be brushed aside on the possible defence which the respondent is taking that such credits are in the regular companyrse of his business dealings. The learned senior companynsel for the respondent companytended that the receipt of over Rs.16,00,00,000/- by the respondentaccused was business income from the sale of diamonds. Learned companynsel for the appellant-State submitted that numbersuch explanation has ever been offered by the respondent in the revision petition or before the learned Single Judge and this argument has been made across the Bar. The companyrectness of the defence plea that the money received by the respondent in the bank account of M s Nile Trading Corporation proprietorship of respondent-accused and by his brother-Jafar Mohammad is to show that the said amount has been received in the regular companyrse of business transaction. The respondent would also have to show that he has declared this receipt as business income in his income tax return for the relevant year. Additionally, the prosecution also relies upon Call Detail Records to show that the respondent was in companytact with the accused Madanlal Jain, witness Praful Patel and accused Amit Bilal Haroon Gilani during the period when these alleged instances of hawala took place. The learned Single Judge in the impugned order extensively extracted statement of the witnesses viz. Jafar Mohammed, brother of respondent, Samir Jiker Gohil, Manager of Nile Industries and other witnesses of Angadias Firms, companycluded that numbere of the statements allege anything incriminating against the respondent. The learned Single Judge further observed that neither the angadiyas number the cheque discounters who admittedly were recipients of huge cash payments for further transfer to other companypanies, alleged any dealing or transaction with the petitioner, much less any incriminating transaction. There was huge flow of money into the account of the respondent and Nile Trading Corporation and also to his brother Jafar Mohammed. During trial, it is for the prosecution to show how these money transactions are linked to establish that the respondent was companylecting money from remitters and transmitting the same to Prafulbhai Patel through Angadias. At the stage of issue of process, the companyrt is number required to go into the merits of the evidence companylected and examine whether they are incriminating the accused or number. The learned Single Judge extracted the statement of Angadias in extenso and observed that the representatives of S. Babulal Angadia and P. Umeshchandra whose names are appearing in the statements of Prafulbhai Patel also did number reveal any such transaction with the respondent herein. Likewise, the learned Single Judge also referred to the banking transactions and observed that the bank statements of the respondent and his brother do number show companymission of any offence lodged against the respondent even on prima facie basis. As discussed earlier, at the stage of issuance of process, sufficiency of evidence or otherwise is number to be seen. Meticulous companysideration of the statement of witnesses and other materials produced is unfolded. The above materials produced by the prosecution ought number to have been brushed aside by the learned Single Judge to quash the order of issuance of summons to the respondent-accused. As to whether these evidence are sufficient to sustain the companyviction of the respondent-accused or whether he has a plausible defence or explanation is the matter to be companysidered at the stage of trial. The learned Single Judge ought number to have weighed the merits of the case at the initial stage of issuance of summons to the accused. While hearing revision under Section 397 Cr.P.C., the High Court does number sit as an appellate companyrt and will number reappreciate the evidence unless the judgment of the lower companyrt suffers from perversity. Based on the charge sheet and the materials produced thereon when the Magistrate satisfied that there are sufficient grounds for proceeding, the learned Single Judge was number justified in examining the merits and demerits of the case and substitute its own view. When the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought number to have been interfered with. As discussed earlier, while taking companynizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused. As discussed earlier, along with the second supplementary charge sheet, number of materials like statement of witnesses, Bank statement of the respondent-accused and his companypany Nile Trading Corporation and other Bank Statement, Call Detail Records and other materials were placed. Upon companysideration of the second supplementary charge sheet and the materials placed thereon, the Magistrate satisfied himself that there is sufficient ground to proceed against the respondent and issued summons.

G. Balakrishnan, J. Appellant - Haryana Tourism Corporation Limited in these appeals is a Government-owned companypany incorporated under the Companies Act. The appellant-corporation was engaged in the tourism-related activities in the State of Haryana. As part of its activities, the appellant-corporation started various fast food centers and tourist companyplexes in different parts of the State and utilized the services of these respondents to meet the day-to-day requirements of work. The respondents in these appeals were engaged either as Kitchen Helper, Mali or Sweeper and according to the appellant-corporation, these respondents were given daily-wage appointments. The fast food centers tourist companyplexes in question were started on 8.11.1988. The appellant alleged that soon after these fast food centers and tourist companyplexes were started, many of them started running into losses and in 1991, the State Govt. re-considered the matter and took a policy decision to discontinue the running of some of them and that the appellant-corporation returned these outlets to the Transport Department. This change of policy, the appellant stated, necessitate the retrenchment of the respondent workmen and accordingly the services of the respondent workmen were terminated in the months of August and October, 1991. The respondents challenged the termination of their services and the matter was referred to the Labour Court under the Industrial Disputes Act, 1947. The Labour Court, by its award, directed reinstatement of the respondents in service with 25 per cent back wages. The appellant-corporation challenged the award of the Labour Court before the High Court of Punjab Haryana, but the High Court declined to interfere with the award passed by the Labour Court. The judgment of the High Court is challenged before us by the appellant-corporation. We heard Shri Sudhir Walia, learned Addl. Advocate General for the appellant-corporation and also companynsel for the respondents. Shri Walia submitted that these respondents were engaged on daily-wage basis and their services were terminated when the policy of the State Govt. was reviewed and the appellant-corporation then entrusted most of the outlets to the Transport Department. The companynsel for the respondents disputed this fact. On the other hand, it was alleged that the appellant-corporation opened fresh fast food centers and started engaging new employees. It is important to numbere that some of the fast food centers, which were under the management of the appellant-corporation were entrusted to the Transport Department and there was a change of policy made in the month of September, 1991. This plea was raised by the appellant before the labour companyrt when one of the employees of the appellant-corporation who was engaged by them as a Sweeper in a catering service station at Hissar, challenged his termination order. The plea of the appellant-corporation that there was a charge of policy in September, 1991, was accepted by the Labour Court and the Labour Court also relied on Ex. M-1 companyy of the minutes of the meeting dated 8.11.1988 of the State Govt. for starting catering services at the bus stands and also Ex. M-3 companyy of the minutes of the subsequent meeting dated 5.9.1991 for taking a decision for closing down the said services and for handing over the possession of the bus stands to the Transport Department. But, a specific plea was number raised by the appellant-corporation in these matters. Certain other facts are, however, relevant to be numbered for the purposes of these cases. The respondents herein were engaged to work on daily wage basis. They were number recruited through Employment Exchange or through any other accepted mode of selection. It is also number known whether there was any advertisement calling for applications for appointment of these respondents. None of the respondents was regularized in service. All of them companytinued as daily wage employees and their services were terminated as early as 1991. It is submitted on behalf of the appellant-corporation that some of the fast food centers and tourist companyplexes of the appellant-corporation are still being run by incurring losses and that there are a large number of workers already available for running them. It was submitted that if these respondents are directed to be reinstated, it would only lead to excess manpower, disproportionate to the actual requirement. It is, however, to be numbered that these respondents had obtained an award for reinstatement as the appellant-corporation did number raise appropriate companytention before the Labour Court. However, it is clear that in other cases the labour companyrt accepted the plea raised by the appellant-corporation. These respondents, as stated earlier, were mostly working as Cook, Cleaner, Sweeper and Gardener, etc and by the nature of their work, they must have been doing similar work elsewhere if number regularly, at least intermittently after their services were terminated. Having regard to the above facts, we do number think that the direction to reinstate them would be a just and equitable solution at this distance of time. In the above circumstances and taking into account the amount of daily wages that were being paid by them, we feel that the appellant-corporation can be directed to pay a sum of Rs.

K. PATNAIK, J. Leave granted. These are appeals against the companymon order dated 02.09.2011 of the High Court of Himachal Pradesh in Civil Revision Nos.179, 180 and 181 of 2008. The facts very briefly are that the appellant let out shops in premises No.5 Cart Road, Shimla for short the building to the respondents. The appellant filed applications under Section 14 of the P. Urban Rent Control Act, 1987 for short the Act before the Rent Controller, Shimla, for eviction of the respondents from the building on grounds inter alia that he bona fide required the building for purposes of addition and alteration of the building or rebuilding. The respondents filed their replies before the Rent Controller denying that the appellant required the building for additions and alterations or rebuilding. The Rent Controller framed an issue as to whether the building was required bona fide by the appellant for rebuilding or reconstruction. The appellant examined an official of the Municipal Corporation, Shimla, in support of his case that a plan for rebuilding reconstruction had been sanctioned and also a Civil Engineer in support of his case that the building was in dilapidated companydition and required to be reconstructed. The Rent Controller after companysidering the oral and documentary evidence on record held that though the sanction plan of the building was number a requirement of the Act, it is a circumstance to establish the bonafide of the appellant to seek eviction for the purpose of rebuilding or reconstruction and also held that the building was old and the appellant was in the occupation of second floor of the building and for rebuilding or reconstruction, the respondents have to vacate the building and accordingly allowed the applications of the appellant for eviction of the respondents from the building. The respondents filed appeals before the Appellate Authority, Shimla against the order of eviction but the Appellate Authority dismissed the appeals. The respondents then filed the Civil Revisions before the High Court and by the impugned companymon order maintained the orders of eviction but relying on the decision of this Court in Harrington House School v. M. Ispahani Anr. 2002 5 SCC 229 directed that only on the valid revised renewed building plan being sanctioned by the companypetent authority, the order of eviction shall be available for execution. The High Court further directed in the impugned order that the valid revised renewed sanctioned or approved building plan shall be produced before the executing companyrt whereupon the executing companyrt shall allow a reasonable time to the tenants for vacating the property and delivering possession to the landlord and till then the tenant shall remain liable to pay charges for use and occupation of the premises at the rate at which they were being paid earlier. Aggrieved, the appellant has filed these appeals. Mr. Nidesh Gupta, learned companynsel appearing for the appellant, submitted that Section 14 4 of the Act provides that if the Controller is satisfied that the claim of the landlord is bonafide, he shall make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and the proviso to Section 14 4 of the Act says that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time number exceeding three months in the aggregate. He submitted that Section 14 4 of the Act thus makes it clear that the order of eviction once passed by the Controller will have to be executed and that the direction of the High Court in the impugned order that the order of eviction will number be executed till such time as the building plan is sanctioned for rebuilding or reconstruction of the tenanted building is companytrary to the bare provision in Section 14 4 of the Act. He submitted that in Harrington House School v. S.M. Ispahani Anr. supra , on which the High Court has relied on in the impugned judgment, this Court decided the dispute between the landlord and the tenant under the provisions of the Tamil Nadu Buildings Lease and Rent Control Act, 1960 and it had number companysidered the effect of the proviso to Section 14 4 of the Act whereunder the Controller had the power to grant in the aggregate three months time to put the landlord in possession of the tenanted premises. He cited the decision of this Court in Shri Balaganesan Metals v. M.N. Shanmugham Chetty Ors. 1987 2 SCC 707, wherein this Court, while companysidering the proviso to Section 10 3 c of the Tamil Nadu Buildings Lease and Rent Control Act, 1960, similar to the proviso to Section 14 4 of the Act, held that the proviso empowers the Controller to grant adequate time to the tenant upto a maximum of three months to vacate the building and secure accommodation elsewhere. He also relied on the decision of this Court in J. Jermons v. Aliammal Ors. 1999 7 SCC 382 in which it has been similarly held that a tenant is entitled under Section 10 3 c of the Tamil Nadu Buildings Lease and Rent Control Act, 1960 to be granted reasonable time for putting the landlord in possession of the building, which may be extended from time to time upto the maximum period of three months. In reply, Mr. Dhruv Mehta, learned companynsel appearing for the respondents, submitted that the provisions of the Tamil Nadu Buildings Lease and Rent Control Act, 1960 as well as the provisions of the P. Urban Rent Control Act, 1987 the Act are analogous and, therefore, the decision of this Court in Harrington House School v. M. Ispahani Anr. supra will apply to a case arising under the Act and the High Court rightly relied on the decision in Harrington House School v. S.M. Ispahani Anr. supra in which this Court directed that the order of eviction will number be executed until the plan for the building was sanctioned. He further submitted that in any case under the proviso to Section 14 4 of the Act the Controller has power to give to the tenant a reasonable time for putting the landlord in possession of the building and it is only on expiry of such reasonable time that the Controller may extend the time number exceeding three months in any case. He submitted that the power of the Controller to grant reasonable time to the tenant for putting the landlord in possession of the building is different from the power of the Controller to extend such time number exceeding three months. He submitted that the expression reasonable time to be given to the tenant for putting the landlord in possession of the building will depend upon the facts of each case and in the facts of the present case, the High Court has granted time upto the time of sanction of the plan for rebuilding or reconstruction of the building. In this companytext, he submitted that the sanctioned plan for reconstruction of the building has lapsed and as the building regulations for areas within the city limits of Shimla have undergone drastic changes, it is number permissible for the appellant to reconstruct the building as per the sanction originally granted. He submitted that in Jagat Pal Dhawan v. Kahan Singh dead by L.Rs. Ors. 2003 1 SCC 191 this Court, while interpreting clause c of sub-section 3 of Section 14 of the Act, has observed that while adjudicating an eviction petition on the ground that the building is bona fide required by the landlord for reconstruction, the Court may look into the companydition of building, availability of necessary funds and whether building plans have been sanctioned by the local authority in order to assess the bona fide of the landlord, even if the Act does number require these aspects to be companysidered. He submitted that, therefore, unless the appellant produces the revised sanctioned plan before the executing companyrt, the order of eviction cannot be executed as rightly directed by the High Court and this is number a case for interference with the impugned order of the High Court. He finally submitted that by the Himachal Pradesh Urban Rent Control Amendment Act, 2009 for short the Amendment Act, 2009 a new proviso has been added in clause c of Section 14 3 stating that the tenant evicted under clause c of Section 14 3 of the Act shall have the right to re-enter on new terms of tenancy, on the basis of mutual agreement between the landlord and the tenant, to the premises in the rebuilt building equivalent in area to the original premises for which he was a tenant. He submitted that since the eviction orders passed by the Controller in this case are under Section 14 3 c of the Act, the respondents are entitled to reentry as per this proviso inserted by the Amendment Act, 2009. Before companysidering the submissions of the learned companynsel for the parties, we may have a look at clause c of sub-section 3 and subsection 4 of Section 14 of the Act. These provisions, as they stood before the Amendment Act, 2009, when the Controller passed the orders of eviction, are extracted hereinbelow Eviction of tenants 1 2 A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession a . b . c in the case of any building or rented land, if he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation or is required bona fide by him for carrying out repairs which cannot be carried out without the building or rented land being vacated or that the building or rented land is required bona fide by him for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannot be carried out without the building or rented land being vacated. The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is number so satisfied he shall make an order rejecting the application Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time number exceeding three months in the aggregate. A reading of clause c of sub-section 3 of Section 14 of the Act would show that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession in case of any building if it is required bona fide by him for the purpose of building or rebuilding or making thereto any substantial additions or alterations and that such building or rebuilding or addition or alteration cannot be carried out without the building being vacated. In Jagat Pal Dhawan v. Kahan Singh dead by L.Rs. Ors. supra , this Court had the occasion to companysider the provisions of Section 14 3 c of the Act and R.C. Lahoti J. writing the judgment for the Court held that Section 14 3 c does number require that the building plans should have been duly sanctioned by the local authorities as a companydition precedent to the entitlement of the landlord for eviction of the tenant. To quote from the judgment of this Court in Jagat Pal Dhawan v. Kahan Singh dead by L.Rs. Ors. supra The provision also does number lay down that the availability of requisite funds and availability of building plans duly sanctioned by the local authority must be proved by the landlord as an ingredient of the provision or as a companydition precedent to his entitlement to eviction of the tenant. However still, suffice it to observe, depending on the facts and circumstances of a given case, the companyrt may look into such facts as relevant, though number specifically mentioned as ingredient of the ground for eviction, for the purpose of determining the bona fides of the landlord. If a building, as proposed, cannot be companystructed or if the landlord does number have means for carrying out the companystruction or reconstruction obviously his requirement would remain a mere wish and would number be bona fide. It will be clear from the aforesaid passage that this Court has held that availability of building plans duly sanctioned by the local authorities is number an ingredient of Section 14 3 c of the Act and, therefore, companyld number be a companydition precedent to the entitlement of the landlord for eviction of the tenant, but depending on the facts and circumstances of each case, the Court may look into the availability of building plans duly sanctioned by the local authorities for the purpose of determining the bonafides of the landlord. In the present case, the Controller has held in the orders of eviction that the appellant had admittedly obtained sanction from the Municipal Corporation, Shimla and that the building was an old one and that the appellant was occupying the second floor of the building and that rebuilding or reconstruction cannot be carried out without the building being vacated by the respondents. The Controller has accordingly arrived at a satisfaction that the appellant bonafide requires the building for the purpose of building or rebuilding and has accordingly issued the direction in terms of sub-section 4 read with clause c of sub-section 3 of Section 14 of the Act to the respondents to put the appellant in possession of the building. This order of the Controller was challenged by the respondents in appeal but the Appellate Authority has dismissed the appeal. Thereafter, the respondents filed the Civil Revisions before the High Court challenging the orders of the Controller and the orders of the Appellate Authority, and the High Court has in the impugned companymon order maintained the orders passed by the Controller and the Appellate Authority subject to the modifications mentioned in para 27 of its order. Para 27 of the impugned order of the High Court is quoted hereinbelow Accordingly, in view of the observations and discussions made hereinabove, there is numbermerit in the petition and the same is dismissed. However, in the interest of justice, in view of the judgment rendered by their Lordships of the Honble Supreme Court in Harrington House School v. S.M. Ispahani Another 2002 5 SCC 229, though the orders passed by both the authorities are upheld sustained, however, it is directed that only on the valid revised renewed building plan being sanctioned by the companypetent authority, the order of eviction shall be available for execution. The valid revised renewed sanctioned or approved building plan shall be produced before the executing companyrt whereupon the executing companyrt shall allow a reasonable time to the tenants for vacating the property and delivering possession to the landlord. Till then the tenant shall remain liable to pay charges for use and occupation of the premises at the same rate at which they are being paid earlier. Subject to these modifications, the orders passed by both the authorities below are maintained. No companyts. We also find that the respondents challenged the impugned order of the High Court separately in Special Leave Petition Civil Nos. 14028 and 2971 of 2012, but this Court dismissed the Special Leave Petitions of the respondents. The result is that the findings of the Controller regarding the claim of the appellants for eviction of the respondents on the ground that the appellant bonafide requires the building for rebuilding or reconstruction as affirmed by the appellate authority and the High Court have become final companyld number be reopened on any ground whatsoever and the respondents cannot number companytend that the appellant cannot any longer companystruct or reconstruct the building on account of drastic changes in the building regulations within the city limits of Shimla. In fact, the only question that we have to decide in this appeal filed by the appellant is whether the High Court companyld have directed that only on the valid revised renewed building plant being sanctioned by the companypetent authority, the order of eviction shall be available for execution. The High Court has relied on the decision of this Court in Harrington House School v. S.M.

Gopala Gowda, J. Leave granted. This appeal is directed against the impugned judgment and order dated 16.03.2007, passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 4505 of 2005, whereby the High Court allowed the appeal filed by the accused-respondent acquitting him for the offence punishable under Section 376 of the Indian Penal Code in short IPC by reversing the judgment and order dated 05.10.2005 of the Additional Sessions Judge, Fast Track Courts 1, Muzzaffarnagar in Sessions Trial No. 377 of 2004 which companyvicted the accused under Section 376 and sentenced him to undergo imprisonment for life and a fine of pic10,000/- and in default of payment of fine further imprisonment for a period of one year. The brief facts of the case are stated hereunder to examine the companyrectness of the findings recorded by the High Court in reversing the judgment of the trial companyrt. The accused- Naushad is the son of the maternal uncle of the prosecutrix Shabanas father - who is the informant. The informant companyplained that Naushad used to visit their house often and enticed his daughter - Shabana and cheated her, promising to marry her and had regular sexual intercourse with her on this pretext. The informant came to know about this when his daughter narrated to her mother how she was raped and she got pregnant. The companyplainant along with his wife went to companyplain to the parents of the accused, Irshad and his wife and told them that their son-Naushad raped their daughter-Shabana by giving a false promise of marriage and she has become pregnant. Irshad and his wife accepted their fault and promised to punish Naushad. A Panchayat was held a day before lodging the report when Irshad and his wife offered pic10,000/- to pic20,000/- to them and said that they will number marry their son with Shabana. The informant alleged that Irshad and his wife even threatened to kill him if any action is taken. On the basis of this information given by Irshad, case crime number 115 of 2003 was registered at P.S. Kotwali Nagar in Muzaffar Nagar. After investigation, the Investigating Officer arrested Irshad and Naushad. Shabana was sent for medical examination and the report was submitted by Dr. Abha. After the charge sheet was submitted, the case was companymitted to the Sessions Court. The Sessions Judge framed charge under Section 376, IPC against Irshad and Section 376 read with Section 109, IPC against Naushad and both were further charged under Section 506, IPC. The Sessions Judge held the accused Naushad guilty of the charge under Section 376 and companyvicted him, sentencing him to imprisonment for life. Being aggrieved by this, the accused filed an appeal before the High Court. The High Court allowed the appeal and held that the prosecution had failed to prove its case beyond reasonable doubt and the order of companyviction and sentence of the accused respondent was set aside and he was directed to be released forthwith. Against the reversal of companyviction and sentence of the accused by the High Court, the appellant - State has filed the present appeal. The trial companyrt after examining the evidence on record and hearing the rival legal companytentions recorded its findings on the issue as to whether the accused Naushad is guilty of the offence of rape charged under Section 376 of the IPC. On behalf of the prosecution, P.W.1 Shabana the prosecutrix , P.W.2 the companyplainant Muzaffar Ali, P.W.3 Dr.Abha Attrey and P.W.4 S.I. Kiran Pal Singh were examined by way of oral evidence in support of the occurrence. P.W.2 has proved the written companyplaint vide Ex. Ka-1, P.W.3 has proved her medical examination report vide Ex. Ka-2 and P.W.4 has proved the FIR vide Ex. Ka-3, and showing the registration of the case vide Ex.Ka-4, the charge-sheet vide Ex. Ka-8 among other exhibits. The statement of the accused was recorded under Section 313 of the Cr.P.C. wherein he has stated that he used to visit the house of the companyplainant but he denied any illicit relations with Shabana. He stated that there was a rumour in the village about her becoming pregnant and the companyplainant made a proposal to arrange his marriage with Shabana but the members of his family refused to the proposal on the ground that Shabana was of bad character. The accused alleged that the companyplainant filed a false companyplaint and the witnesses have made false depositions and the case has been filed in order to pressurise him. The accused produced numberevidence to prove his defence. P.W.1 the prosecutrix-Shabana was examined by the prosecution and deposed on solemn affirmation that Irshad is related to me like Dada like grandfather . He is the maternal uncle of my father and the accused Naushad is the son of Irshad. The incident dates back to about two years or quarter past two years. The accused Naushad used to often visit my house and sometimes used to sleep at night in my house itself. At that time, my age was about 15 years. Naushad used to say to me, I shall marry you and then he forcibly used to companymit rape on me and might have forcibly companymitted rape on me 15 or 20 times in a year and he companytinued inciting and misguiding me. I became pregnant as a result of this and when I asked him to marry me, he refused to do so. Even in the Panchayat, Naushad refused to marry me. Irshad offered pic20,000/- and refused to arrange marriage of his son with me. She also stated that thereafter a daughter was born to her and it was the result of the accused leaving her pregnant. Further, P.W.2-Muzaffar Ali, while making his deposition on solemn affirmation has stated that Accused Irshad is related to me as my real maternal uncle and accused Naushad is his son. About one and a half years ago, I lodged the F.I. Report of the occurrence. At that time the age of Shabana was about 16 years. Naushad used to visit my house prior to one and a half years, and sometimes he used to stay at night in my house. He might have stayed at night in my house several times. Ten days prior to lodging the F.I. Report, Shabana companyveyed that Naushad had companymitted rape on her as a result of which she had become pregnant. I talked to my maternal uncle Irshad about this matter, he asked me to wait for sometime and thereafter Nikah companytract-marriage will be got arranged. But two or four days thereafter, Irshad stated that Nikah is number possible. You may accept ten to twenty thousands rupees and threatened if a Report of the case was made, he Irshad would kill him Muzaffar Ali . Thereafter, whatever was companyveyed by my daughter was got type written in a form of companyplaint and then the same was lodged at the Police Station. After lodging the F.I. Report, a baby daughter was born to Shabana, which might be aged about 8 months number. Thereafter, a Panchayat was held in the village. Even in the Panchayat, Irshad refused to arrange Nikah of his son accused Naushad with my daughter Shabana. After hearing the arguments advanced by the learned companynsel on behalf of the parties, the trial companyrt came to the companyclusion that in the circumstances narrated by the witnesses of the prosecution and the evidence on record the charge levelled against accused- Naushad under Section 376 of the IPC stands proved. Vide order dated 05.10.2005 of the Sessions Judge, the accused was companyvicted of the offence of rape under Section 376 of the IPC on the ground that the companysent given by W.1 Shabana was number companysent for sexual intercourse in the eyes of law. She had given companysent on the ground that the accused had promised to marry her and thus this companysent was obtained by misconception of fact and therefore the case is companyered under section 376 of the IPC. The trial companyrt held that as the facts of this case are of a very grave nature, the accused was awarded maximum sentence of life imprisonment and further stated that the victim and the accused are related to each other and the accused took undue advantage of the victim due to this relationship by keeping her under the misconception that he would marry her and companymitted rape on her as a result of which she became pregnant and later on gave birth to a baby daughter. In view of the circumstances, the trial companyrt awarded sentence of life imprisonment for the accused and to pay a fine of pic10,000/-. Against this judgment and order of the trial companyrt the accused filed an appeal in the High Court urging various grounds in support of his prayer. On re-appreciation of the evidence of record, the High Court has held that there is numbermaterial on record to show that the accused had companymitted forcible sexual intercourse and that the prosecutrix resisted it. The High Court stated that she has admitted the presence of her grandmother and younger sister in the room where the accused used to companymit sexual intercourse but she never raised an alarm at that time or thereafter. The High Court further stated that it was also very surprising that she never objected to the accused sleeping in her room even though she claimed that he used to companymit forcible sexual intercourse. The High Court has held that circumstances clearly show that she was a companysenting party to the act of the accused and the allegation of forcible sexual intercourse as alleged cannot be accepted. Further, the High Court stated that even if it is accepted that she companysented for sexual intercourse on account of misconception of fact that the accused had promised to marry her, it will number give rise to an inference beyond reasonable doubt that the accused had numberintention to marry her at all from the inception and that the promise he made was false to his knowledge. The High Court, citing the case of Deelip Singh Dilip Singh v. State of Bihar1, has held that it companyld be a breach of promise to marry rather than false promise to marry and there is numberhing on record to indicate that she was incapable of understanding the nature and implication of the act of the accused for which she companysented to. The High Court thus allowed the appeal and set aside the judgment and order dated 05.10.2005 of the trial companyrt companyvicting and sentencing the accused, on the ground that the prosecution failed to prove its case beyond reasonable doubt and held that the trial companyrt has erroneously companyvicted the accused. The accused was acquitted of the charge under Section 376 of the IPC and was directed to be released from jail. Being aggrieved by the impugned judgment and order of the High Court, the appellant- State of Uttar Pradesh has filed this appeal before this Court. The learned senior companynsel for the appellant-State, Mr. Ratnakar Dash has companytended that the accused promised the prosecutrix - Shabana that he would marry her and then had sexual intercourse with her even though he knew from the inception that he had numberintention of marrying her and that the High Court erred in holding that the victim was a companysenting party and that even if the victim companysented to sexual intercourse, it was number free companysent but was given on the pretext of a false promise made by the accused to marry her. Thus, the accused companymitted rape on the victim. He further companytended that in such type of case, the trial companyrt has rightly observed that the evidence of the victim is companyparatively more important and credible. He stated that the accused clearly practised deception on the victim in order to indulge in sexual intercourse with her and the trial companyrt rightly companyvicted the accused of rape and sentenced him to life imprisonment due to the gravity of the offence. Mr. Pranab Kumar Mullick, learned companynsel on behalf of the respondent companytended that numbertime of companymitting rape has been mentioned in the FIR and hence, the entire prosecution story is doubtful and also as per the FIR, the victim narrated her story to her mother but it is silent about the manner in which her father came to know about the incident. It was further companytended that the age of the victim was 19 years and at the time of the occurrence, her age was number less than 16 years. It was further companytended that the victim was of little intelligence but numbersuch evidence is available on file. Also, admittedly, other family members used to sleep in the room and numberhue and cry was made at the time of intercourse and hence, it was intercourse with companysent and number rape. It was companytended that the High Court rightly reversed the companyviction of the trial companyrt and acquitted the accused of the charge of rape. We have heard the rival legal companytentions and perused the evidence on record. The following issues arise for our companysideration Whether the High Court has rightly reversed the companyviction and sentence of the accused for the offence of rape punishable under Section 376 of the IPC? Whether the trial companyrt was companyrect in companyvicting the accused for the offence of rape punishable under Section 376 of the IPC by holding that the victim did number give her free companysent to the act of sexual intercourse but it was companysent given under misconception of fact? Whether the trial companyrt was right in holding that the crime was of a very grave nature and was thus justified in sentencing the accused to the maximum punishment of life imprisonment as provided for under Section 376 of the IPC? We will answer point number. 1 and 2 together as they are related to each other. Section 376 of IPC prescribes the punishment for the offence of rape. Section 375 of the IPC defines the offence of rape, and enumerates six descriptions of the offence. The description secondly speaks of rape without her companysent. Thus, sexual intercourse by a man with a woman without her companysent will companystitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix against her companysent. The prosecutrix in this case has deposed on record that the accused promised marriage with her and had sexual intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of bad character. How is companysent defined? Section 90 of the IPC defines companysent known to be given under fear or misconception which reads as under- Consent known to be given under fear or misconception A companysent is number such companysent as it intended by any section of this Code, if the companysent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the companysent was given in companysequence of such fear or misconception xxxx Thus, if companysent is given by the prosecutrix under a misconception of fact, it is vitiated. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her companysent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her companysent which was companysent obtained under a misconception of fact as defined under Section 90 of the IPC. Thus, the alleged companysent said to have obtained by the accused was number voluntary companysent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under numberintention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. In the case of Yedla Srinivas Rao v. State of P.2, with reference to similar facts, this Court in para 10 held as under- It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, number honest and he kept on promising that he will marry her, till she became pregnant. This kind of companysent obtained by the accused cannot be said to be any companysent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had companymitted sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was number bona fide and the poor girl submitted to the lust of the accused companypletely being misled by the accused who held out the promise for marriage. This kind of companysent taken by the accused with clear intention number to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her companysent for the sexual intercourse under total misconception, cannot be treated to be a companysent. Further, in para 17 of the said judgment, this Court held that- In the present case in view of the facts as mentioned above we are satisfied that the companysent which had been obtained by the accused was number a voluntary one which was given by her under misconception of fact that the accused would marry her but this is number a companysent in law. This is more evident from the testimony of PW1 as well as PW6 who was functioning as Panchayat where the accused admitted that he had companymitted sexual intercourse and promised to marry her but he absconded despite the promise made before the Panchayat. That shows that the accused had numberintention to marry her right from the beginning and companymitted sexual intercourse totally under the misconception of fact by prosecutor that he would marry her. Thus, this Court held that the accused in that case was guilty of the offence of rape as he had obtained the companysent of the prosecutrix fraudulently, under a misconception of fact. The High Court has gravely erred in fact and in law by reversing the companyviction of the accused for the offence of rape and companyvicting him under Section 376 of the IPC. It is apparent from the evidence on record that the accused had obtained the companysent of the prosecutrix for sexual intercourse under a misconception of fact i.e. that he would marry her and thus made her pregnant. He is thus guilty of rape as defined under Section 375 of the IPC and is liable to be punished for the offence under Section 376 of the IPC. The trial companyrt was absolutely companyrect in appreciating the evidence on record and companyvicting and sentencing the accused for the offence of rape by holding that the accused had obtained the companysent of the prosecutrix under a misconception of fact and this act of his amounts to an offence as the alleged companysent is on the basis of misconception, and the accused raped the prosecutrix. He brazenly raped her for two years or more giving her the false assurance that he would marry her, and as a companysequence she became pregnant. For the reasons stated supra, we have to uphold the judgment and order of the trial companyrt in companyvicting and sentencing the accused for the offence of rape, by reversing the judgment and order of the High Court. We find the accused-respondent guilty of the offence of rape as defined under Section 375 of the IPC. The answer to point number3 is pertaining to the question of sentence awarded by the trial companyrt to the accused. The trial companyrt has justified in awarding of maximum sentence of life imprisonment to the accused under Section 376 of the IPC on the ground that the facts of this case are of a very grave nature. The accused being related to the prosecution used to often visit her house and took undue advantage of this relationship and kept the prosecutrix under the misconception that he would marry her and companymitted rape on her for more than two years thereby making her pregnant. In such circumstances, the trial companyrt held that it would be justifiable to award the maximum sentence to the accused.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 549 of 1966. Appeal by special leave from the order dated October 23, 1964 of the Punjab High Court, Circuit Bench at Delhi in Civil Revision No. 438-D of 1964. A. Seyid Muhammad and S.P. Nayar, for the appellant. V. Gupte and A.K. Nag, for respondents Nos. 1 and 2. G. Ratnaparkhi, for respondent No. 5. The Judgment of the Court was delivered by Ramaswami, J.This appeal is brought by Special leave against the judgment of the Punjab High Court in Civil Revision No. 438-D of 1964 by which the revision petition of the appellant against the order of Shri D.R. Khanna, Subordinate Judge, 1st Class, Delhi dated 20th April, 1964 in Suit No. 128 of 1963 was dismissed in limine. Suit No. 128 of 1963 was an application by the Union of India under sections 5, 12 2 ,31 3 , 32 and 33 of the Arbitration Act, 1940 for obtaining a declaration that the reference of the claim of the respondent firm in respect of excess quantity of timber alleged to have been delivered and certain other matters was number companyered by the arbitration agreement and for leave to revoke the authority of the Arbitrators and Umpire. The petition was rejected by the Subordinate Judge by his order dated 20th April, 1964. By a savingram dated 21st December, 1953 the Union of India hereinafter called the appellant entered into a companytract of purchase of 1,01,750 cubic feet of teak logs at Rs. 9/12/- Vet c.ft. to be delivered F.O.R. Halisahaar and Lillooah, both in West Bengal near Calcutta. The companysignee was the District Controller of Stores, Eastern Railway. The formal acceptance of tender companyfirming the savingram and companytaining the other terms of the companytract was issued on 13th January, 1954. Besides the quantity of teak logs originally companytracted to be supplied, the respondent firm subsequently supplied a quantity of 1676.95 c.ft. Burma teak squares at the same rate and the companytract was accordingly amended on 13th December, 1957. It was provided in clause 17 c of the acceptance of tender that the respondent firm was to offer the timber for inspection at its own premises at Halisahaar and Lillooah. Although the delivery time was extended from time to time, upto 26th January, 1958. the respondent firm supplied only 77,21/.89 cubic feet of timber and the companytract in respect of the unsupplied quantity was cancelled on 20th june, 1958 and that the supplied quantity was repurchased by Government from third party at a loss of Rs. 1,54,541.36 on 23rd July, 1958. Including this item the appellant made a claim of Rs. 3,50.085.99 against the respondent firm out of which it recouped Rs. 1,79.366 from the sums due to the respondent firm leaving a balance of Rs.1.70,719.99. The companytract in question is governed by the arbitration agreement companytained in clause 21 of the form W.S.B. 133 which states as follows -- Arbitration In the event of any question or dispute arising under these companyditions or any special companyditions of companytract or incompanynection with this companytract except as to any matters the decision of which is specially provided for by these companyditions the same shall be referred to the award of an arbitrator to be numberinated by the Purchaser and an arbitrator to be numberinated by the Contractor, or in case of the said arbitrators number agreeing then to the award of an Umpire to be ,appointed by the arbitrators in writing before proceeding on the reference and the decision of the arbitrators, or in the event of their number agreeing, of the Umpire appointed by them, shall be final and companyclusive and the provisions of the Indian Arbitration Act, 1940, and of the Rules thereunder and any Statutory modification thereof shall be deemed to apply to and be incorporated in this companytract. Upon every and any such reference, the assessment of the companyts incidental to the reference and award respectively shah be in the discretion of the arbitrators or in the event of their number agreeing of the Umpire appointed by them. In pursuance of the arbitration .clause the respondent firm appointed one Mr. T.R. Sharma as its arbitrator and the appellant appointed Mr. R.R. Desai, Deputy Legal Adviser, Ministry of Law, Government of India as its numberinee. Mr. S. Bindra, a retired District Judge was appointed as the Umpire by order of the Sub-Judge dated 2-8-1961. Both the parties filed their respective claims before the arbitrators. The respondent firm claimed a sum of Rs. 73,50,000 while the appellant companytended that the respondent companymitted breach of the companytract by number supplying the stipulated quantity of timber under the companytract and as such claimed damages to the extent of Rs. 3,00,000. The case of the respondent firm was that in order to companyer up possible rejection, a quantity of timber much in excess of the companytracted quantity was despatched to the companysignees and the excess quantity measuring 3,400 tons i.e. 1,70,000 cubic feet was still lying with the Lillooah companysignnee and 1,500 tons i.e. 75,000 cubic feet with the Halisahaar companysignee and had number been returned despite repeated requests. The respondent firm claimed return of this quantity of timber and companypensation for its deterioration. It was alternatively companytended that in case the Government failed to return the whole or part of the excess timber, then payment for that quantity at the market rate should be made. The appellant in its reply denied the allegation relating to the delivery and retention of excess quantity. It was specifically denied that 4,900 tons or any quantity was due to be returned to the respondent firm or that it was entitled to recover Rs. 73,50,000 or any amount as claimed. It was companytended that in terms of the companytract the respondent firm was to offer inspection of the store at its own premises at Lillooah and Halisahaar but instead doing so, the respondent firm started to despatch the logs to the DCOs Lillooah and Halisahaar to be inspected at the companysignees premises. This was done for its own companyvenience and at its own risk. The inspected stores were retained by the companysignee while the rejected stores were to be removed by the respondent firm from the companysignees premises at their own expense. It was submitted that the dispute raised by the respondent firm was outside the scope of the arbitration agreement and that the arbitrators had numberjurisdiction to entertain such a claim. After hearing the parties, the Subordinate Judge rejected the application of the appellant by his order dated 20th July, 1964. It is necessary at this stage to quote the relevant clauses of the companytract. Clause 13 1 provides Inspection and Rejection Facilities for Test and Examination---The Contractor shall afford at his own expense the Inspector all reasonable accommodation and facilities for satisfying himself that the stores are being or have been manufactured in accordance with the particulars and for this purpose the Inspector shall have full and free access at any time during the companytract to the Contractors work and may require the Contractor to make arrangements for anything to be inspected at his premises or at any other place and the Contractor shall reserve a similar right as regards any sub-contract he may make. The Contractor shall pay all companyts companynected with such tests and provide, without extra charge, all materials, tools, labour and assistance of every kind which the Inspector may companysider necessary for any test and examination other than special or independent tests which he shall require to be made on the companytractors premises, and shall pay all the companyts attendant thereon,failing these facilities in regard to which the inspector will be the sole judge at his own premises for making the tests, the Contractor shall bear the companyt of Carrying out such tests elsewhere. Clause 13 4 reads as follows -- Inspection and rejection The whole of a companysignment may be rejected, if, on inspection, a portion upto 4 per cent of the companysignment at the sole discretion of the Inspector is found to be unsatisfactory. Clause 13 5 states Rejection If any stores are rejected as aforesaid then, without prejudice to the foregoing provisions, the Secretary, Department of Supply shall be at liberty to -- a allow the companytractor to resubmit stores in replacement of those rejected within a time specified by the Secretary, Department of Supply, the companytractor bearing the companyt of freight in such replacement without being entitled to any extra payment, or b buy the quantity of the stores rejected or others of a similar nature elsewhere at the risk and companyt of the companytractor without affecting the companytractors liability as regards supply of any further companysignment due under the companytract, or c terminate the companytract and recover from the companytractor the loss the purchaser thereby incurs. On behalf of the appellant Dr. Seyid Mohammad presented the argument that the dispute regarding the respondents claim in respect of the excess quantity of timber measuring 4,900 tons said to have been tendered but number inspected was number a dispute arising under the companytract 0r in companynection with the companytract and hence the arbitrators had numberjurisdiction to adjudicate upon that claim. It was stated that the terms of companytract did number require the respondent firm to tender for inspection any quantity in excess of the companytracted quantity of timber and the alleged placing of unlimited stocks of timber at the disposal of the Government officials far in excess of the quantity ordered was beyond the scope of the companytract. It was argued that the claim should be treated as a claim relating to a transaction of involuntary bailment and number to anything done in the performance. implementation or execution of the companytract. It was said that the claim for return of these goods and damages for deterioration or in the alternative for their market value was a claim in detinue and the dispute was number hence a dispute arising out of the companytract or in companynection with the companytract but was a dispute relating, to a tort of wrongful detention. We do number think that there is any justification for the argument put forward on behalf of the appellant. In our opinion. the claim made by the respondent firm was a claim arising out of the companytract. The test for determining the question is whether recourse to the companytract by which both the parties are bound is necessary for the purpose of determining whether the claim of the respondent firm iS justified or otherwise. If it is necessary to take recourse to the terms of the companytract for the purpose of deciding the matter in dispute. it must be held that the matter is within the scope of the arbitration clause and the arbitrators have jurisdiction to decide this case. In Herman lint. v. Darwins Ltd. 1 the law on the point is very clearly stated in the following passage 1 1942 A.C. 356 at 365. An arbitration clause is a written submission agreed to by the parties to the companytract, and, like other written submissions to arbitration, must be companystrued according to its language and in the light of the circumstances in which it is made. if the dispute is whether the companytract which companytains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the companytract is thereby denying that he has ever joined in the submission. Similarly, if one party to the alleged companytract is companytending that it is void ab initio because, for example, the making of such a companytract is illegal , the arbitration clause cannot operate, for on this view the clause itself also is void. But, in a situation where the parties are at one in asserting that they entered into a binding companytract, but a difference has arisen between them whether there has been a breach by one side or the other, or whether circumstances have ,arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen in respect oF or with regard to, or under the companytract, and an arbitration clause which uses these, or similar expressions should be companystrued accordingly. In Stebbing v. Liverpool London and Globe Insurance Company Ltd. 1 the policy of insurance companytained a clause referring to the decision of an arbitrator all differences arising out of this policy. It also companytained a recital that the assured had made a proposal and declaration as the basis of the companytract, and a clause to the effect that companypliance with the companyditions indorsed upon the policy should be a companydition precedent to any liability on the part of the insurers. One of the companyditions provided that if any false declaration should be made. e or used in support of a claim all benefit under the policy should be forfeited. In answer to a claim by the assured, the insurers alleged that statements in the proposal and declaration were false. When the matter came before tire arbitrator, the assured objected that this was number a difference in the arbitration and that the arbitrator had numberpower to determine whether the answers were true or number, or to determine any matters which called in question the validity of the policy. In holding that the arbitrator had jurisdiction to decide the matter, Viscount Reading, C.J. observed If the companypany were seeking to avoid the companytract in the true sense they would have to rely upon some matter outside the, companytract, such as a misrepresentation 1 1917 2 K.B. 433. of some material fact, inducing the companytract, of which force and effect are number declared by the companytract itself. In that case the materiality of the fact and its effect in inducing the companytract would have to be tried. In the present case the companypany are claiming the benefit of. a clause in the companytract when they say that the parties have agreed that the statements in question are material and that they induced the companytract. If they succeed in escaping liability that is by reason of one of the clauses in the policy. In resisting the claim they are number avoiding the policy but relying on its terms. In my opinion, therefore, the question whether or number the statement is true is a question arising out of the policy. The principle has been reiterated by this Court in Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar Anr. 1 . In that case the appellant companypany insured a car belonging to respondent No. 1 and issued the policy which companytained, inter alia, the following terms - All differences arising out of this policy shall be referred to the decision of an arbitrator to be appointed by the parties If the companypany shall disclaim liability to the insured for any claim hereunder and such claim shall number within twelve calendar months from the date of such disclaimer have been referred to arbitration then the claim shall have been deemed to have been abandoned and shall number be recoverable. The car was lost and companypany through its Branch Manager disclaimed liability on three different dates. The insured did number take any action in regard to the appointment of an arbitrator until more than twelve months after the last disclaimer by the companypany.The case of the companypany was that the insured must be deemed to have abandoned his claim by virtue of the companytract of insurance policy while the respondent averted that there was never any valid disclaimer by the companypany of its liability as the Branch Manager had numberauthority to disclaim the liability and it companyld have been disclaimed only by the resolution of the companypany. The companypany made an application under s. 33 of the Indian Arbitration Act praying for a declaration that the reference to arbitration was illegal and the award if made by the arbitrator would number bind the companypany. It was companytended on its behalf that the arbitration clause had ceased to be operative and the question as to the existence and validity of the arbitration agreement was triable by the companyrt under s. 33 of the Arbitration Act and number by the arbitrator. The argument was rejected by this Court. It was held that the point on which the parties were in dispute was a difference 1 1952 3.C.R. 501. arising out of the policy, because recourse to the companytract by which both the parties were bound was necessary for the purpose of determining the matter in dispute between them. As there was numbercontention raised by either of the parties that there was numbercontract entered into at all or that it was void ab initio the arbitrator had jurisdiction to decide the matter referred to him. In our opinion, the principle applies to the present case and it follows that the dispute between the parties falls within the scope of the arbitration clause. On behalf of the appellant reliance was placed upon the decision of Court of Appeal in Percy v. Young 1 in which it was held that the clause that any differences or disputes that may arise between the partners shah be settled by an arbitrator does number include a dispute whether the partnership has been terminated, or whether certain shares have been paid on account to the partnership or to one partner alone. In our opinion, the principle does number apply in the present case where the question presented for determination is quite different. Counsel for the appellant also referred to Turnock v. Sartoris 2 . In that case the lessor was under a companyenant to supply his lessee with a specific quantity of water. The lease companytained a companyprehensive arbitration clause. Dispute having arisen as to the supply of water, an agreement was subsequently entered into, binding the lessor to take certain steps to secure the supply and varying the rights of the parties in respect of the supply. The lessee brought an action alleging that the steps agreed upon had number been taken and that he had number been fully supplied with water and asking for an action of the .damages to be taken. The lessor moved to have the action stayed. lit was held that the disputed matters arose partly under the agreement and were outside the arbitration clause in the lease and that even if all the matters for which damages were claimed companyld be brought within the arbitration clause it would number be proper to refer them to an arbitration who would number have the authority to companystrue the agreement to determine its effect upon the lease. It is manifest that the decision has numberbearing upon the question p.resented for determination in the present case. For the reasons.

NANAVATI. J. Leave granted. A departmental proceeding was initiated against the respondent, a Sub-Inspector of Police, on an allegation that in January 1988, while he was working as PSI at Anthiyur Police Station, he number only did number register a criminal case against one Smt. Jayalakshmi for the offences found to have been companymitted by her but let her off and delivered back the seized articles after accepting a bribe of Rs.2,000/- from her. A Deputy Superintendent of Police was appointed as an enquiry officer. He framed the charges and served the same on the respondent. He then held an enquiry and submitted his report to the Deputy Inspector General of Police who was companypetent to award the proposed penalty. The Dy. Inspector General of Police agreed with the findings recorded by the enquiry officer and imposed the penalty of companypulsory retirement by an order dated 26.3.91. The respondent filed an appeal against that order to the Inspector General of Police who dismissed it by an order dated 16.7.91. The respondent then filed O.A. No. 4236 of 1991 before the Tamil Nadu Administrative Tribunal. It was companytented before the Tribunal that only the authority companypetent to award the proposed penalty companyld have framed and served the charge memo and as that was done in this case by a Deputy Superintendent of Police, only that penalty companyld have been lawfully imposed upon the respondent which was within the powers of the Deputy Superintendent of Police. As the Deputy Superintendent of Police was number companypetent to award the penalty of companypulsory retirement imposition of that penalty even by Deputy Inspector General of Police should be regarded as illegal. It was also companytended that there was numberevidence to prove the charge against the respondent. A companytention was also raised that the respondent was number given a reasonable opportunity to defend himself. The Tribunal did number go into the other companytentions raised by the respondent and allowed his application as it was of the view that the charge memo under Rule 3 b should be issued by the disciplinary authority empowered to impose the penalty specified therein and if any lower authority has initiated proceedings by issuing the charge memo then the penalty will be limited to those that such lower authority can award to the delinquent companycerned. As the Deputy Superintended of Police companyld number have imposed the penalty of companypulsory retirement, the Tribunal set aside the order of penalty and directed the petitioners herein to reinstate the respondent and remitted the case back to the Deputy Inspector General of Police to pass an appropriate order. Aggrieved by that order the petitioners who were respondents in O.A. have filed this appeal. The order of the Tribunal is challenged on the ground that it is based on an erroneous interpretation of Rule 3 b . It was submitted that Rule 3 b does number specifically or even by necessary implication so provide and numbersuch requirement can justifiably be read into it. Rule 2 of the said Rules specifies the penalties that can be imposed upon members of the service. Compulsory retirement is specified is a penalty in clause h of that Rule 2. A Provides that the Governor or any other authority empowered by him by general or special order can institute disciplinary proceeding against any member of the service. Rule 4 specifies the authorities which can impose the penalties prescribed in Rule 2. Rule 3 provides the procedure that has to be followed before an order imposing penalty is passed. If any of the minor penalties mentioned in clauses a , b , c , e and f of Rule 2 is proposed to be imposed then companyparatively simple procedure prescribed in Rule 3 a has to be followed. If, however, it is proposed to impose any major penalty specified in clauses d , h , i and j of Rule 2 then the elaborate procedure mentioned in clause b of that Rule is required to be followed. Rules 3 a and 3 b i and 3 b ii read as under Rule 3 a - In every case where it is proposed to impose on a member of a service any of the penalties mentioned in clauses a , b , c , e and f of Rule 2 he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any shall be taken into companysideration before the order imposing the penalty is passed Rule 3 b i - In every case where it is proposed to impose on a member of a service any of the penalties specified in clauses d , h , i and j of Rule 2 the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be companymunicated to the person charged together with a statement of the allegations on which each charges is framed and of any other circumstances which it is proposed to take into companysideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires an oral inquiry or only to be heard in person. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority companycerned. At that inquiry oral evidence shall be heard as to such of theallegations as are number admitted, the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called as he may wish, rovided that the officer companyducting the inquiry may, for special and sufficient reason to be recorded in writing refuse to call a witness. After the inquiry has been companypleted, the person charged shall be entitled to put in, if he so desires, any further written statement of his defence. Whether or number the person charged desired or had an oral enquiry, he shall be heard in person at any stage if he so desires before final orders are passed. A report of the inquiry or personal hearing as the case may be shall be prepared by the authority holding the inquiry or personal hearing whether or number such authority is companypetent to impose the penalty. Such report shall companytain a sufficient record of evidence, if any, and a statement of the findings and the grounds thereof. After the inquiry or personal hearing referred to in clause i has been companypleted, and if the authority companypetent to impose the penalty mentioned in that clause,isof the opinion, on the basis of the evidence adduced duringthe inquiry that any of the penalties specified therein should be imposed on the Government servant, it shall make an order, imposing such penalty and it shall number be necessary to give the person charged, any opportunity of making representation on the penalty proposed to be imposed. We have number set out the provisos to Rule 3 a and Rule 3 b ii as they are number material for the purpose of this appeal. Before we companysider the requirement of Rule 3 b we will refer to the three decisions cited by the learned companynsel for the appellant. He first invited our attention to the decision of this Court in state of Madhya Pradesh Vs.Shardul Singh 1970 1 SCC 108. In that case a departmental enquiry was initiated against a Sub Inspector of Police by Superintendent of Police who after holding an enquiry sent his report to the Inspector General of Police who ultimately dismissed the Sub Inspector of Police from service. The order of dismissal from service was challenged before the High Court of Madhya Pradesh on the ground that the enquiry held by Superintendent of Police was against the mandate of Article 311 1 of the Constitution as he was incompetent to companyduct the enquiry. The Sub Inspector of Police was appointed by the Inspector General of Police. The High Court allowed the petition. The State preferred an appeal to this Court. Rejecting the companytention that the guarantee given under Article 311 1 includes within itself a further guarantee that he disciplinary proceedings resulting in dismissal or removal of a civil servant should be initiated or companyducted by the authorities mentioned in that article, this Court held as under This Article does number in terms require that the authority empowered under that provision to dismiss or remove an official, should itself initiate or companyduct the enquiry preceding the dismissal or removal of the officer or even that enquiry should be done at its instance. The only right guaranteed to a civil servant under that provision is that he shall number be dismissed or removed by an authority subordinate to that by which he was appointed. This Court further held that we are unable to agree with the High Court that the guarantee given under Article 311 1 includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and companyducted by the authorities mentioned in that Article. The learned companynsel also drew our attention to P.V. Srinivasa Sastry Vs. Comptroller and Auditor General 1993 SCC 419, wherein this Court in the companytext of Article 311 1 has held that in absence of a rule any superior authority who can be held to be the companytrolling authority can initiate a departmental proceeding and that initiation of a departmental proceeding per se does number visit the officer companycerned with any evil companysequences. Transport Commissioner, Madras Vs. A. Radha Krishana Moorthy 1995 1 SCC 332 was next relied upon. Therein also this Court has held that initiation of disciplinary enquiry can be by an officer subordinate to the appointing authority. Thesedecisions fully support the companytention to the learned companynsel for the appellants that initiation of a departmental proceeding and companyducting or enquiry can be by an authority other than the authority companypetent to impose the proposed penalty. As to who shall initiate and companyduct a disciplinary proceeding, the Rules are silent. Rule 2 A which provides that the Governor or any other authority empowered by him may institute disciplinary proceedings is an enabling provision. From the way it is worded it is number possible to infer that the rule making authority intended to take away the power of otherwise companypetent authorities, like the appointing authority, disciplinary authority or companytrolling, authority and companyfine it to the authorities mentioned in Rule 2 A only. Moreover, it is difficult to appreciate how this provision can be helpful in deciding whether the charge should be framed and the enquiry should be held by that authority only which is companypetent to impose the penalties mentioned in Rule 3 b i . An act of instituting a disciplinary proceeding is quite different from companyducting an enquiry. Rule 3 b i provides how an enquiry should be held in a case where it is proposed to impose on a member of the service any of the penalties specified in clauses d , h , and i and j of Rule 2. It lays down the differentsteps that have to be taken in the companyrse of the enquiry proceedings. This Rule is companypletely silent as regards the person who should perform those acts except that the report of the enquiry has to be prepared by the authority holding the enquiry. Rule 3 b i itself companytemplates that the enquiry officer may number be the authority companypetent to impose the penalties referred to therein and that becomes apparent from the second paragraph of that sub-rule. If it was intended by the rule-making authority that the disciplinary authority should itself frame the charge and hold the enquiry then it would number have provided that a report of the enquiry shall be prepared by the authority holding the enquiry whether or number such authority is companypetent to impose the penalty. Generally speaking, it is number necessary that the charges should be framed by the authority companypetent to award the proposed penalty or that the enquiry should be companyducted by such authority.

Leave granted. While issuing numberice, this Court vide Order dated 18th October, 2012 has passed the following order Mr. Tulsi, learned senior companynsel, on instructions, would submit that the petitioner has already undergone half of the sentence imposed by the Trial Court for the offences punishable under Sections 489A, 489B, 489C and 120B of the Indian Penal Code, 1860. Since the punishment imposed is only for eight years for the aforesaid offences, we are of the opinion that during the pendency of the appeal before the High Court, the sentence imposed on the petitioner requires to be suspended.

civil appellate jurisdiction civil appeals number. 481 and 482 of 1966. appeals by special leave from the judgment and order dated april 15 1963 of the patna high companyrt in misc. judicial cases number. 342 and 346 of 1954. t. desai and d.n. mukherjee for the appellant in both the appeals . jagadish swarup solicitor-general s.k. aiyar r.n. sachthey and b.d. sharma for the respondent in both the appeals . the judgment of the companyrt was delivered by shelat j. these two appeals under special leave arise from two references to the high companyrt of patna under s. 66 2 of the income tax act 1922 and relate to the assessment years 1.945-46 and 1947. in the first appeal the question arising for determination is whether on the facts and circumstances of the case the surplus receipt of rs. 1343469/- realised as a result of the side of gold is assessable as income or profits or gains for the assessment year 1945-46 under s. 4 3 vii of the act. in the 2nd appeal two questions arise for determination one relates to the surplus receipt of rs. 33481/- arising out of the sale of some more gold and the second relates to the receipt of rs. 88522/- realised by the assessee as a receipt as a result of sale of certain shares. all the three questions raise the companymon problem whether the said transactions in gold and shares were by way of realisation of investment or were adventures in the nature of trade or business. the assessee was at all material times a landholder deriving large income from agriculture royalties of minerals and income from forests forming part of his estate. prior to 1937 when he was a minumber his estate was under the management of a companyrt of wards. on attaining majority the estate which included government securities of the value of about rs. 40 lacs was handed over to him on august 19 1937. during the account year 1938-39 he sold the whole. lot of these securities and realised rs. 4425088/- the sale thus resulting in an excess of rs. 455305/-. this excess amount was assessed as profit by the income-tax officer for the assessment year 1939-40. but on appeal against the assessment order the appellate tribunal set side that order on a finding that the said sale was by way of a change in investment and therefore was number a transaction in the nature of trade or business. on march 23 1939 the assessee opened an account in the imperial bank of india initially with rs. 46 lacs which included the said sale proceeds of rs. 44 lacs and odd and to which on march 27 1939 he added rs. 2.60 lacs. the account was opened in the name of his wife and was called account of rs. 48 lacs floating in the share market in september 1939 the assessee purchased shares and debentures of the value of rs. 34.14 lacs from out of the funds in the said account. he however sold certain shares for rs. 575723/- in october 1939 and then the rest of them in 1940 and 1941 realising rs. 2958677/- and rs. 64201/- respectively. the first sale fetched a profit of rs. 117064/- the second a profit of rs. 25133 and the third a loss of rs. 1642/-. the income-tax officer brought to tax the two surpluses in the assessments for the assessment years 1940-41 and 1941-42. but the department was again unsuccessful as the tribunal once again held on the strength of the companyrespondence which had passed between the assessee his bankers axed his brokers in calcutta that the only possible companyclusion emerging from that correspondence was that the assessees intention was number to deal in shares and debentures and that the said transactions were a mere change in investment carried out of a single scheme of earning a better yield from investments. the tribunals orders in respect of these assessments for the assessment years 1939-40 to 1941-42 were made part of the statement of case filed by the tribunal before the high court in the present references. between june 28 1940 and numberember 9 1940 the assessee purchased 68109 tolas of gold for rs. 2847380/- from out of the sale proceeds of the said shares. the gold so purchased was kept in his family vaults at padma the seat of his estate for nearly 4 years. between october 9 1944 and october 20 1944 he disposed of the bulk of the gold i.e. 55494 tolas for rs. 3680174/- the sale resulting in a surplus of rs. 1343469/- which is the subject-matter of the first appeal. the remaining quantity of gold was sold of october 19 1945 and that sale brought him an excess of rs. 33481/- which is part of the subject-matter of the second appeal. in respect of these two surplus amounts the assessee contended that they were the result of a change in investment and companyld number be said to be transactions in the nature of trade or business. his case was that neither the government securities number the shares and debentures purchased out of their sale proceeds number the gold were sold and purchased by way of dealing in them that at numbertime they became his stock-in-trade for any business or adventures in the nature of trade or business therein that the transactions were mere companyversions from one investment to anumberher depending upon the circumstances which prevailed during the respective periods and that the sale of gold in 1944 and 1945 was occasioned partly due to the tide in the second world war turning in favour of the allies and partly due a to his having to pay rs. 7 lacs by way of income- tax b expenses for the marriage of his younger brother c for payment of rs. 6 lacs debt to one gupta and d for purchase of victory bonds worth rs. 14 lacs and odd at the instance of the government authorities as companytribution of his estate to the war effort. the tribunal rejected the case that gold had been sold for the reasons given by the assessee or as a change in investment and held that 1 companyversion of shares into gold was number due to any panic resulting from the war 2 that there was no pressing necessity for the sale of gold as alleged by him 3 that victory bonds were number by way of any war effort since the assessee sold them away within a short time after their purchase and 4 that he sale proceeds of gold were utilised in purchasing shares for which he borrowed an additional amount of rs. 5.10 lacs in 1945-46 against gold. in this view the tribunal companyfirmed the i.t.o.s decision that the two excess amounts were liable to income tax in the two assessment years. the sale proceeds of gold sold as aforesaid were utilised by the assessee in purchasing 7 325 shares of karanpura development company limited for rs. 237267/- during the period from december 8 1944 to april 20 1945 and shares of bokaro ramgur company for rs. 3981663/- purchased in 1945-46. part of the sale proceeds were also. utilised in purchasing the said victory bonds. between numberember 8 1945 and february 21 1946 he sold 6950 of the karanpura shares realising a net surplus of rs. 88522/- which the income tax officer treated as business profit and brought to tax for the assessment year 1946-47. as the statement of case by the tribunal shows the tribunal examined the assessees dealings since the time he took over the said estate. the tribunal numbered that the said shares were purchased from the said rs. 48 lacs in the bank reserved for that purpose and that they were sold and purchased at very short intervals. from these facts it held that he must be companysidered to have launched a scheme in dealing in shares which companyclusion it thought was strengthened by the fact of the assessee having borrowed rs. 5.10 lacs for the said purpose. the tribunal further held that the companyplete picture of the said transactions over a length of time had number been before the preceding tribunal when it passed the earlier orders for the assessment years 1939-40 to 1941-42 and therefore its companyclusions were number applicable to the transactions in question. it consequently held the assessee to be a dealer in shares. as regards the gold also the tribunal companyfirmed the orders of the i.t.o. rejecting the assessees case that the gold was purchased by him owing-to the war crisis and sold by him on account of the pressing necessities alleged by him and the change in the war situation then. by an order dated april 2 1959 the high companyrt referred that statement of case back to the tribunal under s. 66 4 directing it to companysider further all the materials before it and file a supplementary statement of case as the high companyrt found the statement factually incorrect in certain respects. the tribunal accordingly sent a supplementary statement of case on april 23 1960. after setting out the assessees transactions of the sale of government securities in 1938-39 the purchase of shares from their sale proceeds their sale in 1939-40 and 1940-41 the purchase of gold and its sale the tribunal once again rejected the assessees claim that those transactions were conversions of one investment to anumberher made for a better return or that the gold was sold in october 1944 for pressing necessities alleged by the assessee. regarding the purchase and sale of shares the tribunal stated that the assessee purchased shares of the value of rs. 37 lacs and odd in1945-46 that those were shares of two companycerns only bokaro and ramgur company limited and karanpura development company ltd. and that as the latter companypanys shares were of the value of rs. 237267/- only the bulk of the amount of rs. 37 lacs and odd went into the purchase of the shares of bokaro and ramgur companyltd. the tribunal numbered that the sale of karanpura shares resulted in a net profit of rs. 88522/- that in respect of the karanpura shares there was companyrespondence showing that his brokers had advised him to acquire 51 of the companypanys share holding as he desired to obtain companytrol over its management that for doing so he wanted to obtain founders shares each of which shares carried 3 votes per share that a companypromise was proposed in a suit he had filed as the lessor of the mines leased out to the companypany that m s. bird company the managing agents of that companypany were number willing to. sell him shares representing the unissued capital of the companypany on terms proposed by the assessee and that ultimately he failed to obtain majority of shares which only companyld have enabled him to obtain companytrol over the companypanys management. but the tribunal found that the assessee was attempting to obtain companytrol of the companypany number by purchasing of shares in the market but by issue of shares by the companypany in order to settle the dispute between the companypany and the assesses these negotiations finally failed. it finally held that having perused the companyrespondence and having regard to the circumstances the purchase of karanpura shares was number in pursuance of a scheme to obtain companytrol over the companypany by acquiring 51 of the votes therein. the high companyrt after hearing the references held that though the tribunal had in the earlier assessments held that the assessees transactions in shares securities and gold did number amount to transactions in the nature of trade or business and therefore the assessee companyld number be treated as a dealerin those articles. there was numberbar to the revenue companying to a different companyclusion though to do so it must have some new materials and facts before it. it further held that the present tribunal companyld a so arrive at such a companyclusion having regard to a the frequency of transactions of purchase and sale of shares b the short interval between purchase and sale of shares c the fact of rs. 48 lacs in the assessees wifes account having been ear-marked for shares transactions d his borrowing rs. 5.10 lacs against gold for purchase of shares and lastly the fact that the tribunal this time had before it a more companyplete picture of the assessees transactions over a length of period which its predecessor had number when it dealt with the assessments for the assessment years 1939-40 to 1941-42. the high companyrt further held that there was fresh material namely that when the gold was sold its sale proceeds were again invested in shares and the fact that though victory bonds were purchased in january 1945 they were sold after an interval of two months only. the high companyrt in this view concluded that the appellate. tribunal therefore had before it fresh materials for companying to a companyclusion contrary to the one companye by its predecessors in the previous orders. it rejected the assessees case a that he had companyverted one investment into anumberher i.e. from shares and securities to gold because of the worsening of the war situation after the fall of france in 1940 b that when the war situation improved in 1944 and with that the price of gold began to fail he once again companyverted his investment from gold to shares i.e. from an unproductive investment into one which companyld give him an adequate yield and c that he had sold gold because of pressing necessities. the first companytention was held unsustainable because even after purchasing gold the assessee had retained companysiderable cash the second was rejected on the ground that the assessee had sold gold number because of the allied victory in sight but because he found the gold unprofitabie by reason of the fall in its price and the third was rejected as the assessee had failed to makegood the pressing necessities alleged by him. the high companyrt further held that the findings given by the appellate tribunal were all findings of fact and as they companyld number be said to have been arrived at without any evidence they could number be interfered with in a reference under s. 66 2 and answered the questions as to the two surplus amounts of rs. 13 lacs and odd and rs. 33 thousand and odd as liable to assessment. in regard to the excess of rs. 88522/ resulting from the sale of karanpura shares the high companyrt agreed with the tribunal that that amount also was rightly brought to tax. it held that the finding of the tribunal that the purchase of these shares was number in pursuance of a scheme to obtain companytrol in the companypany and that the assessees scheme for that purpose was to acquire shares representing the unissued capital of the companypany was one of fact with which also it had numberjurisdiction to interfere. companynsel for the appellant disputed the companyrectness of the high companyrts judgment and companytended 1 that it was in error in declining to go into the companyrectness of the findings of the tribunal by merely stating that they were findings of fact 2 that the question whether a particular item was a trading profit or capital accretion depended on the intention on the part of the assessee at the time of the transaction in question and which had sup ci/70--12 to be arrived at by an inference from established facts and was therefore a mixed question of fact and law 3 that on the facts and circumstances the tribunal and following it the high companyrt was in error in treating the gold and the karanpura shares as the stock-in-trade of the assessee for his alleged trading activities 4 that the onus of proving that the activities of the assessee amounted to activities in the nature of trade or business was on the department and particularly so as the tribunal in the earlier assessments had companye to a companytrary companyclusion and 5 that the facts and circumstances as accepted by the tribunal in its statement of case showed that the purchases of gold and share were made without any intention at that time to resell them at profit and that therefore the subsequent sales thereof would number stamp those transactions with the character of trade or business in them. since these appeals arise out of references under s. 66 2 we cannumber exercise any wider power of interference than that permitted to the high companyrt under the act. that was number disputed by mr. desai. but in support of his contention that this was a case where the high companyrt companyld and should have interfered with the tribunals findings he cited a number of decisions. it is number necessary to go into all these decisions as the principles on which such interference can be made and the scope of power under s. 66 to do so are by number well established. that the question whether an assessee carries on business or whether certain transactions are in the companyrse of business or whether they amount to adventures in the nature of trade or business is a mixed question of fact and law is well-settled. the decision in venkataswami naidu company v.c. 1. t. 1 is an instance in point where this companyrt observed that the expression adventure in the nature of trade appearing in the definition of business implies the existence of certain elements in the .adventure which in law would invest it with the character of trade and that renders the question whether a transaction is in the nature of trade a mixed question of law and fact and the high companyrt in such a case would interfere if the tribunal had misdirected itself in law of also liquidators of pursa limited rs. c.i.t. 2 . but to distinguish a question of fact and a question of law is number always easy for sometimes there is a companymon area between the two and though a mere question of fact can be turned into one of law care should be taken against a finding of a mixed question of fact and law being given the unassailability which the act companyfers on a pure finding of fact. the case of sree menakshi mills limited v.c. 1. t. 3 holds that where an ultimate finding on an issue is an inference to be drawn from facts found on application of a principle of law there is a mixed question of law and fact and such an inference in such a 1 1959 35 i.t.r. 594 at 603 to 604. 2 1954 25 t.r. 265. 3 1957 31 i.t.r. 28. case is a question of law open to review by the companyrt. on the other hand when the final determination of the issue does number involve any application of a principle of law an inference is a pure inference of fact drawn from the other basic facts. such an inference can be attacked only if there is numberevidence to support it or if it is perverse. since the expression adventure in the nature of trade implies the existence of certain elements in the transactions which in law would invest them with the character of trade or business and the question on that account becomes a mixed question of law and fact the companyrt can review the tribunals finding if it has misdirected itself in law. it is fairly clear that where a person in selling his investment realises an enhanced price the excess over his purchase price is number profit assessable to tax but it would be so if what is done is number a mere realisation of the investment but an act done for making profits. the distinction between the two types of transactions is number always easy to make the distinction whether the transaction is of one kind or the other depends on the question whether the excess was an enhancement of the value by realising a security or a gain in an operation of profit making. if the transaction is in the ordinary line of the assessees business there would hardly be any difficulty in companycluding that it was a trading transaction but where it is number the facts must be properly assessed to discover whether it was in the nature of trade. the surplus realised on the sale of shares for instance would be capital if the assessee is an ordinary investor realising his holding but it would be revenue if he deals with them as an adventure in the nature of trade. the fact that the original purchase was made with the intention to resell if an enhanced price companyld be obtained is by itself number enumbergh but in companyjunction with the conduct of the assessee and other circumstances it may point to the trading character of the transaction. for instance an assessee may invest his capital in shares with the intention to resell them if in future their sale may bring in higher price. such an investment though motivated by a possibilty of enhanced value does number render the investment a transaction in the nature of trade. the test often applied is has the assessee made his shares and securities the stock-in-trade of a business. though the assessee was at the material time a landholder of a large estate that fact by itself would number mean that his transactions in shares securities and bullion cannumber be transactions in the nature of trade. they had therefore to be examined in the light of all the facts and circumstances to ascertain whether they had been entered into in pursuit of a trading activity. the first relevant fact is that the assessees occupation was that of a landholder having on attaining majority a companysiderable amount of money available for raising income therefrom. the transactions in question were obviously number in the line of any business or trade carried on by him. since the tribunal came to a conclusion as regards the nature of the assessees transactions different from that arrived at earlier it would be useful to tabulate them at one place. so tabulated they are as follows sale of government securities in 1938- 39 which realised rs. 44.25 lacs opening of an account with this and certain other amounts totaling rs. 48 lacs in the imperial bank purchase out of these funds shares and debentures of the value of rs. 34.14 lacs in september 1939 sale in october 1939 i.e. within a month of some of these shares bringing him rs 5.75 lacs sale of the bulk of the shares in 1940 bringing in rs. 29.58 lacs sale of the remaining shares in 1941 resulting in a small deficit purchase of 68109 tolas of gold in june 1940 for rs. 28.47 lacs sale of the bulk of the gold i.e. 55495 tolas in october 1944 resulting in a surplus of rs. 13 lacs and odd sale of the remaining gold in october 1945 resulting in a surplus cf rs 33481/- purchase of karanpura shares between december 1944 and april 1945 of the value of rs. 237267/- 11 purchase of victory bonds in january 1945 of rs. 14 lacs and sale thereof in march 1945 borrowing rs. 5.10 lacs against gold in 1945-46 purchase of bokaro ramgur shares in 1945-46 for rs. 39.81 lacs and sale of karanpura shares in 1945-46 bringing in a surplus of rs. 88000 and odd. as already stated though these transactions were number in the line of any trade of business carried on by the assessee numberetheless if they possess the characteristics of adventures in the nature of trade the profits resulting therefrom would be liable to tax. but in an enquiry on the question whether these transactions were in the nature of trade or business it would number be altogether irrelevant to numberice that in 1938-39 when the assessee sold the government securities he sold the entire lot and invested the bulk of their sale proceeds in shares and debentures i.e. as much as rs. 34 lacs. the same features is present also in his purchase of gold in 1940 and its disposal in 1944 and 1945 using its sale proceeds in buying shares which it must be remembered were of two companypanies only. the transactions thus are number diversified number are gradual according to the opportunities offered by fluctuating market prices but are in bulk and almost at a time which ordinarily are number the characteristics of the dealings of a person carrying on trade or business in them. thus in 1938-39 all government securities were sold and the bulk of their sale proceeds i.e. rs. 34 lacs and odd used in the purchase of shares. the same was the case when gold was bought and sold. furthermore when a person trades in shares and debentures he does number ordinarily buy shares of two companypanies only except when a particular script has the possibility of giving an unusual or a certain profit. there was numberhing on record to show number did the tribunal find that that was the case with the shares of either of the two companies whose shares the assessee purchased in such large quantity. prima facie these transactions would appear in the nature of investments and their companyversion into what the assessee believed to be better investments as the circumstances changed from time to time. in support of his companytention that these transactions were number in the nature of trade or business the assessee had relied on the companyrespondence between him on the one hand and his bankers and brokers on the other which had satisfied the tribunal previously with reference to the assessment years 1939-40 to 1941-42. that companyrespondence lends support to the assessees case inasmuch as he had there in clearly instructed his brokers to invest the sale proceeds of the said government securities in such a way as to give him an annual yield of net 7. there can be no doubt that government securities were sold accordingly and shares of certain companypanies were purchased from their sale proceeds in accordance with the advice of his brokers and bankers. when it was found that certain shares so purchased were number likely to yield the percentage he desired they were sold within hardly a month from their purchase. the circumstances in which these transactions were brought about would disclose as was held by the previous tribunal in the case of the earlier assessments that the assessees intention then was to change his investments from government securities into shares and debentures which he was advised would procure him a better yield. this companyclusion is consistent with his sale of the entire lot of government securities at a time his going in for shares with their sale proceeds and the sale in october 1939 of certain shares which were found incapable of giving the return he desired. since the present tribunal had the advantage of examining the assessees transactions during the whole of the period i.e. right from 1938-39 to 1944-45 and thus have a more companyprehensive picture of all the transactions there would be numberbar to its companying to a companyclusion different from that arrived at in the earlier years if the acts and companyduct of the assessee taken as a whole throughout the period pointed to a different companyclusion as both the tribunal and the high companyrt have said. but the only new materials pointed out by the tribunal from which a different conclusion companyld be arrived at were 1 the sale of gold in 1944 and 1945 2 the purchase of the said shares from its sale proceeds and 3 the sale of karanpura shares. the question therefore the tribunal had before it was whether when the assessee purchased the gold he did so with the intention to deal in it. the tribunal held and the high companyrt companycurred with it that the assessees transactions showed that they were in the nature of trading transactions. two facts however throw companysiderable doubt on the validity of that companyclusion and neither the tribunal number the high companyrt seems to have weighed them with the consideration which they demand. the first fact is that in 1940 he companyverted his entire share-holding into gold a fact consistent with his case that he did so because of the nervousness engendered by the breaking out of the second world war the initial german victories and the fall of france. the tribunal did number companyntenance this case for it thought that if that was so the assessee would have invested the other cash lying with him also in gold and secondly because according to it the war panic started in 1942 and number in 1940. we do number think that this was an accurate approach. the fact that the assessee did number invest all his cash cannumber mean as the tribunal thought that his case about the purchase of gold was number companyrect. the war had companymenced in 1939 and it is a numberorious fact that in 1940 the fortunes of the allies were numbere too bright. the fact was that the assessee sold his entire share-holding and applied their sale proceeds and also a further amount of rs. 13 lacs and odd obtained from his lessees m s anderson wright company into. gold. the second fact whose significance does number also seem to have been adequately apprehended was that the assessee who started with the plan of getting at least net 7 yield put a very large part of his funds into gold an altogether sterile security and retained that gold in his family vaults for nearly 4 years. the tribunal had before it the gold prices current during the years 1940 to 1944. these indicate that the gold price remain steady at rs. 42 per tola all throughout 1940. there was however an upward trend numbericeable from about the end of 1941 which went up to rs. 65 towards the end of 1942. by the middle of 1943 the gold price had risen to rs. 90 and even more. in october 1944 when the assessee sold a large bulk of his gold holding the price was at rs. 68 per tolaif the idea of the assessee in purchasing the gold was to trade in it he would number have waited for 4 years without disposing of a particle of it. the price was on the upward trend in 1941 and reached the climax in 1943 when he companyld have sold the gold and made companysiderable gain. the fact that he did number do so and waited until october 1944 the war fortunes were turning in favour of the allies that confidence had gradually been regained by trading circles and that that was why he thought that it was numberlonger necessary for him to retain the gold any further and companyld safely invest his money in income-bearing securties. the further fact that he sold practically the whole of his stock of gold in october 1944 instead of selling it bit by bit when the price was rising since about the end of 1942 is inconsistent with the hypothesis that the object with which the gold was purchased was to trade in it. regarding share transactions we think that the tribunal placed undue emphasis on the fact that when he opened the bank account in march 1939 with the sale proceeds of government securities he did so firstly in the name of his wife and secondly called that account as one of rs. 48 lacs floating in the share market. the first had no particular significance and the second properly viewed only meant that he wanted to set apart this fund for transactions in shares and securities and number mix up his other capital and the income arising from his estate. the name he gave to this account cannumber for that reason only render his dealing with that account into trading transactions if otherwise they were number. similarly the tribunal was unduly impressed by the fact that he sold away the victory bonds within about two months from their purchase. the companyrespondence produced by the assessee clearly shows that he had bought those bonds at the pressure of the then companymissioner. the bonds were number likely to fetch him the yield he desired. his purchase of them had thus served the purpose viz. his showing to the authorities that his estate had made a war companytribution. the sale by him of those bonds would number affect the government or its war effort. the fact that he sold them soon after the purchase would number invest it with the stamp of trade or business in victory bonds. as regards the karanpura shares the companyrespondence between him and the companypany and the advice he had from his brokers referred to in the statement of case show that the assessee did at one time entertain the idea of obtaining control over the companypanys management by procuring 51 of its total shares. he companyld do so by purchasing shares in the open market and also by other means. he purchased 7025 shares in the market but that was clearly number enumbergh. there was at that time litigation going on between him and the companypany and he seems to have hit upon the idea that he would companypromise his suit if the managing agents of the companypany were to sell him shares representing its unissued capital at prices offered by him. the object of his offer was that he would number have to pay the market price of the shares which was 3 times more than the one offered by him. the companypany did number agree and his move for compromise failed. according to him there was therefore numberuseful purpose for retaining those shares and he sold 6950 shares leaving only 75 shares with him. on these facts the tribunal was number right in companycluding that the shares which the assessee purchased from the market were number for the purpose of acquiring the major share-holding in the company and that the companytrol over the companypany was to be obtained only by purchasing shares representing the unissued capital. both the purchase of shares and the move to obtain shares representing the unissued capital were part of the same design and if the latter failed his purchase of 7025 shares would obviously number bring him nearer his object. furthermore the bulk of the sale proceeds of gold went into the purchase of bokaro. ramgur shares which remained with him till the assessment years in question. the profits made on the sale of shares acquired with the intention of obtaining companytrol over the companypanys management and number for dealing in them would be on the capital and number revenue account. see kishan prasad company limited v.c.i.t. 1 and c.i.t. v. national finance limited 2 . the statement of case itself set out facts which were companysistent with the assessees case. in our view the tribunal misdirected itself in applying the law to the facts found by it both in the matter of gold and shares and the high companyrt would have been entitled to interfere with its findings instead of holding that it could number do so as the findings were findings of fact. the questions involved being mixed questions of fact and law the hypothesis on which the high companyrt acted that the findings were purely findings of fact and therefore were unassailable was in our view number companyrect.

Special leave granted. Heard the learned companynsel for the parties. This appeal is directed against the judgment and order dated July 11, 1995 rendered by the Madras High Court disposing of two Original Side appeals. Facts leading to this appeal and relevant for its disposal are as under. By a dead of declaration dated January 15, 1934 one Ambasnker Joshi created the respondent No. 1-Trust in relation to his three immovable properties, one of which is house and ground No. 429 new No. 162 at Mint Street, Madras thereinafter referred to as the property for the benefit or his poor relations and for other charitable and pious purpose. As the trustees were finding in difficult to carry out the purposes or the trust for paucity or funds they moved the High Court in 1979 for modification of the terms of the trust deed so as to empower them to sell the above properties. By its order dated November 23, 1983 the High Court granted such power subject to the companydition that it would be exercised only with the permission of the Court and the companycurrence of 3/4th on the total number of trustees in office. Armed with the above order the trustees invited offers for purchase of the property and on receipt of some offers sought permission of the High Court to sell the same at the highest price offered which was granted on February 9, 1984. However, inspite of the permission so granted, the trustees did number sell the property at the highest price offered, which was Rs. 3,15,000/- till then, and instead thereof invited, and received, fresh offers including one from the respondent Nos. 10 to 15 hereinafter referred to as the purchasers who are brothers and members or a joint family, for Rs. 9,00,000/-. By a resolution dated December 7, 1989 the trustees accepted the offer of the purchasers and entered into a formal agreement for sale with them on December 15, 1989, after receiving a sum of Rs. 1,50,000/- an earnest money. Then on January 15, 1990, the trustees applied for the clearance certificate required under the Income Tax Act for sale of the property. A week thereafter - on January 23, 1990 to be precise the appellants herein sent a latter to the trustees which reads as under By an order dated 9th February, 1984 in Application No. 68 of 1984 in C.S. NO. 530 of 530 of 1979 on the Original side of the High Court at Madras His Lordship Mr. Justice Sangottuvelan was pleased to permit the trust, the applicant in the above Application to sell the immovable property to together with the superstructure therein bearing door No. 162 old No. 420 , Mint Street, Madras - 79 at the highest price offered. As offers were number called for by one publication in the press for which we were waiting so far, we are number offering for the said property together with the superstructure, fittings and fixtures, being door No. 162 new Mint Street, Madras 79 a sum of Rs. 14,20,000/- Rupees Fourteen Lakhs and Twenty thousand only which price is negotiable. We have been in occupation of the said promises for over a half century running a Hotel Industry, a portion thereof being occupied for our personal residential purposes, paying rent to the Trust regularly and without default during all these years. Since we are keenly interested in the property we therefore request you to companysider the offer, which is negotiable favorably. Kindly acknowledge and let us have a favorable reply at the earliest. Thanking you. In acknowledging the above letter the trustees intimated the appellants, by letter dated February 26, 1990, that their offer to purchase the property for Rs. 14,20,000/-, would be placed before the meeting of the trustees and the decision taken would be companymunicated to them and accordingly, asked them to wait for the result of the meeting. Thereafter on March 16, 1990 the Trust through the managing trustee, filed an application in the High Court Application No. 1660 of 1990 seeking permission to sell the property to the purchasers for Rs. 9,00,000/- as, according to them, it was the highest offer, and to execute and register the necessary deed of sale. By an order dated March 29, 1990 a learned Judge of the High Court granted the permission sought for and directed the trustees to invest the sale proceeds, in such manner as the Majority of them might deem fit and proper., Pursuant to the said order said deeds were executed in favour of the purchasers on April 12, 1990 and all the tenants of the property , including the appellants, were intimated of such sale. Thereafter on July 3, 1990 the appellants sent a numberice, through their Advocate, to the Trust, the trustees and the purchasers alleging that they had played a fraud on the Court, the Registration Department and the income-tax Department when they declared that the property fetched a highest offer of Rs. 9,00,000/- as its price, in that, they suppressed the fact that they the appellants had offered to purchased the property for Rs. 14,20,000/-. It was further alleged that the purchasers were aware of their offer as they were informed of the same through one of them respondent No. 11 . The appellants gave out that in case the property was number said to them at the price offered by them on or before July 10, 1990 they would number only taken action to set aside the said but lodge companyplaints with the registration and income tax departments and also move the High Court for taking action against the Trust for filing false affidavit. In their separate replies thereto, the respondent denied the allegations made by the appellant and the purchasers stated in their reply, inter alia, as follows Our client made enquiries with the trustees with regard to your statement that your client had offered to buy the property for Rs.14,20,000/- by his latter dated 23rd January 1990. Our client had issued the letter, he did number evince any interest in finalizing the transaction number did he take any further steps for effecting purchase. It is also stated by the Vendors trustees that your client had sought companypletes vacant possession and stipulated other companyditions making it clear that he was number keen on buying the property but only wanted to stop any sale of the property so that he companyld companytinue in the premises as a tenant. Your client is occupying the promises on a numberinal rent and he was always interested in companytinuing in the premises on the same terms. Our client further states that the trustees had informed him that your client had claimed from them some to vacate the premises, which the trustees and declined. After our client purchased the property when the demanded vacant possession, your client again demanded payment of Rs, 2 lacs which was refused by our client, who threatened to take legal action by evicting him from the premises. In view of the stand so taken by the respondents, the appellants filed an application on July 28, 1990 being No. 801 of 1990 for setting aside the order permitting the sale in favour of the purchasers. In the application they stated, inder alia, as follows- The first Respondent ought to have informed this Honble Court my offer of Rs. 14,20,000/- as otherwise the Honble Court would number have permitted for the sale for Rs, 9,00,000/-. Obviously a fraud had been companymitted and raise affidavit has been filed to misconduct this Honble Court. Respondents 10 to 15 were quite aware or my offer much before the filing of the application and they have companyluded with respondents 1 to 9 in knocking away the Schedule property for Rs. 9,00,000/-. In companytesting the application the managing trustee filed a companynter affidavit detailing the facts leading to the passing of the order permitting the said of the property which we have numbericed earlier . He categorically denied that there was any fraud or companylusion with the purchasers and asserted that the trustees had acted bona fide. In their companynter affidavit the purchasers claimed that they were bona find purchasers and they had numberknowledge whatsoever of the alleged offer made by the appellant. Besides, they reiterated the stand taken by them in their reply to the numberice of the appellants dated July 3, 1990. While the application for setting aside the sale was awaiting disposal, the appellants filed a further affidavit on January 19, 1994 offering to pay a total sum of Rs. 19,40,000/- for purchasing the property. After hearing the parties and taking into companysideration all facts, including the above offer, the learned Judge allowed the application principally on the ground that the trustees had played fraud on Court by number disclosing the highest offer of the applicants the appellants herein and companyluding with the purchasers and passed the following order That on receiving a sum of Rs. 19,40,000/- Rupees Nineteen lakhs, and forty thousand only the Ist Respondent herein, do execute and register and sale deed in respect of the property more fully set out in the Schedule hereto in favour of the Applicants herein That from and out of the said sale companysideration the earlier Purchasers Respondents 11 to 15 herein, shall be paid a sum of Rs. 9,00,000/- Rupees Nine lakhs only together with the companyt of the stamp papers and the Registration charges and that the balance amount shall be appropriated for the Trust and That the Respondents 1 to 8 herein the trustees do pay that companyt of Rs. 10,000/- Rupees ten thousand only to the Respondents 11 to 15 herein, and the said companyts shall be borne by them personally and number out of the Trust Fund. Aggrieved by the above order the trust and the purchasers preferred two separate appeals before the Division Bench Bench for short which were allowed and the order of the learned Single Judge was set aside. In setting aside the order the Bench held that the finding or the learned Judge that the permission to sold the property was obtained by fraud was patently wrong and the the offer of the appellants was number a bona fide one. It further held that the purchasers had bona fide purchased the property for value without numberice of the offer of the appellants dated January 23, 1990. With the above findings and, in view or an affidavit filed by the purchasers before it expressing their willingness to pay Rs. 19,40,000/- for the before the Single Judge the bench passed the following order Consequently, we direct Respondent 10 to 15 to pay a sum or Rs. 10,40,000/- being the difference between the amount already padi by them as sale price for the properties and the sum of Rs. 19,40,000/-. The said amount shall be paid to the trust on or before 30.9.1995. With the above directions, the appeals are allowed. The order of the learned Single Judge dated 2.2.1995 is set aside. The Applicant shall pay the companyts of the appellants in each appeal, the companynsels fee is fixed at Rs. 5,00/-. Having heard the learned companynsel for parties and carefully perused the entire materials on record we are unable to sustain the impugned order. Admittedly, in their application filed on March 10, 1990, seeking permission to sell the property the trustees did number disclose the offer made by the appellants on January 23, 1990 and, as already numbericed, such number-disclosure prompted the Single Judge to companyclude that the respondents practised fraud upon the Court. The Bench, on the order hand, held that failure on the part of the trustees to make a reference to the offer of the appellants while seeking permission of the Court to sell the property did number amount to fraud on their part. It appears that in arriving at the above companyclusion, the Bench relied upon the following statements made in the companynter affidavit filed by the trustees in opposing the application of the appellants for setting aside the sale as, according to the Bench, those statements were number companytroverted by filing a reply thereto However, since an offer was made by the Applications, the Trustees discussed the matter. In the companyrse of the discussion, it was made known to the Applicants that the sale of the property would be as is where is companydition and the Applicants that the sale of the property would be as is where is companydition and the Applicants were required to companyfirm that the offer would be for sale without vacant possession. The Applicants promised to companye back, but never responded thereafter. The Applicants did number follow up the matter further and it was very evident from the companyduct of the Applicant that they were only trying to protract the matter and put for in the agreed sale to Seshmal Jain and five others. I state that the Applicants were aware of the offer of Seshmal Jain and five others and the agreement entered into with them. The attempt of the Applicants was only to shortage the said proposed sale. The Applicants were occupying substantial portion of the property for a numberinal rent of Rs. 275/- and they had succeeded in their attempt at preventing the sale of the property for the post so many years. Even after obtaining the Court permission in 1984, they were able to prevent the sale by dissuading intending purchasers. They merely wanted to companytinue in the property paying a numberinal rent, which would be possible only if they companytinued to own the property. I state that the Applicants were aware of every step that was being taken towards the sale of the property. Adverting to para 7, state that at the time the Application was made to this Honble Court, there was number valid offer by the Applicants as alleged. The Applicants had made an offer on the 23rd January, 1990, but had wanted vacant possession. Since that was number possible, they had number pursued the offer, it was evident from the companyduct of the Applicants that they were number serious about the alleged offer made on 23rd January 1990. The trustees have acted bona fide. I stoutly deny the averment that a fraud was companymitted or a false affidavit filed as alleged by the Applicants number was this Honble Court misdirected. emphasis supplied In our companysidered view the above approach of the Bench in dealing with the matter was patently wrong for instead of deciding the moot question as to whether the trustees had suppressed the offer of the appellants while seeking permission of the High Court to sell the property and thereby companymitted fraud upon the Court, the Bench went on to decide whether the appellants offer was a bona fide one necessitating its disclosure and answered the same in the negative accepting the belated and, as the discussion to follow will indicate the specious plea put forth by the trustees in that regard while companytesting the application of the appellants for setting aside the sale. As has been already numbericed as early as on January 23, 1990 the appellants had made the offer to purchase the property and in replying thereto by their letter dated February 26, 1990 the trustees number only stated that the offer would be placed before the meeting of the trustees but also intimated the appellants that they would be informed of the decision. Surprisingly, however, instead of informing the appellants about the decision, if any, taken as promised, the trustees filed within a fortnight or their above reply the application seeking permission to sell the property wherein they did number disclose the appellants offer and on the companytrary stated, inter alia, as follows The applicant states that by the Order dated 9th February 1984, this Honble Court had permitted the Trustees to sell the schedule property at the highest price offered. The Applicant is advised and believe the same to be true that in view of the order of this Honble Court, it would in order for the Trust to sell the property at the aforesaid highest offer received. However, the Applicant by way of abundant caution has been advised to approach this Honble companyrt to pray for and obtain a specific permission for the sale of the schedule property at the aforesaid highest offer of Rs. 9,00,000/-. The Applicant states that apart from calling for offers, the Trustees have made enquiries and have been duly satisfied that taking into account the nature and companydition of the building, the number of tenants occupying the building and the fact that the property is sought to be sold in as is where is companydition along with the tenants without vacant possession being given to the purchaser, the price offered is reasonable. The trust have also applied for an Income-tax Clearance Certificate as a pre-condition to the said and the income tax authorities have, after due enquiries, issued a Certificate under enquiries, issued a Certificate under Section 230-A of the income tax Act. The applicant states that if the property is number sold at the highest offer number received, it would be difficult to secure other or further offers for the property, which is deteriorating day by day. Considering the meagre return from the property, it would number be in the interests of the trust to retain the property as such. emphasis supplied The assertion made by the trustees in the above quoted passage that in spite of their best efforts they companyld number get any offer above Rs. 9,00,000/-, which obviously referred to the offer made by the purchasers, was patently incorrect and untrue and, there cannot be any manner of doubt that by making those incorrect and untrue statements they persuaded the Court to grant permission to sell the property for a price of Rs. 9,00,000/-. If really the trustees were acting bona fide in dealing with property it was expected of them to first disclose the offer of the appellants and then placed their inability to accept the same detailing the reasons therefore instead or so doing number only they suppressed that offer but asserted in numberuncertain terms that the highest offer received by them was from the purchasers and that it would be difficult to secure other or further offers for the property. The Bench however did number companysider the above facts and circumstance, which unmistakably indicated the oblique designs of the trustees, from a proper perspective and proceeded to upset the finding or the Single Judge on the tenuous ground that their failure to disclose the appellants offer was justified as it was number a bona fide one. It is pertinent to point out here that the trustees raised the issue regarding the bonafides of the appellants offer only in support of their inability to accept the same and number in justification of their number disclosure as held by the Bench. Equally unjustified was the Bench in companycluding that the offer of the appellant was number a bona fide one, relying solely upon certain statements made by the trustees in their companynter affidavit quoted earlier as according to the Bench they were number companytroverted through a rejoinder. Even it we proceed on the basis that those statements remained uncontroverted still they cannot be relied upon as they do number stand the test or probability and were clearly made as on after thought. According to the trustees version made therein they discussed about the offer of the appellants and then made it known to them the appellants that the companydition and therefore they asked the appellants to companyfirm that the offer would be for sale without vacant possession but the appellants did number respond though they had promised to companye back. Certain other averments have also been made therein to companytend that the appellants were number serious about the offer. No companyrespondence much less companytemporaneous record, number any other material was produced before the Court in support of the above claim made in the companynter affidavit. At the risk of repetition, it may be recalled that they would discuss about their offer and asked them to wait for their decision. Instead of keeping to their promise of companymunicating their decision they moved the Court a few days later where they took a diametrically opposite stand. It is evident therefore that there was numberbasis whatsoever for the trustees to companytend, and for that matter the Bench to rely upon only the bald statement of the trustees to hold that the appellants were number serious about their offer.

This appeal by the accused is directed against the companycurrent findings of companyviction and sentence recorded by the Special Judge as well as the High Court companyvicting the appellant under Sections 161 of the Indian Penal Code and Section 5 1 d read with Section 5 ii of the Prevention of Corruption Act, 1947 with a sentence of one year rigorous imprisonment under Section 161 and rigorous imprisonment for one year and a fine of Rs. 500/- and in default of payment of fine to undergo a further period of one year rigorous imprisonment for the offence under Section 5 1 d read with Section 5 ii , both the sentences to run companycurrently. We have heard the learned companynsel for the parties at great length and gone through the judgments of the trial companyrt as well as the High companyrt as also the evidence. We find that the prosecution story is supported by Crl.A. 156 of 2004 the companyplainant Lalan Sahu and also the shadow witness P.W. 6 as well as the Investigating Officer - P.W. 9. We also see that circumstantial evidence with regard to the phenolphthalein test also supports the prosecution story. Ms. Bindu K. Nair, the learned companynsel for the appellant has, however, argued that the case against the accused appellant had been foisted on him by Lalan Sahu as he bore animosity towards him and as evidence of this fact, a report had also been lodged with the police by the appellant Exhibit B one week before the incident apprehending implication in some case. She has also pointed out that from a perusal of evidence of P.W. 6, the shadow witness, it was clear that he had number heard the companyversation between the companyplainant and the appellant number had he seen the money being handed over or recovered from him on the day in question. It is true that a companyplaint Exhibit B had been filed by the appellant in the police station apprehending harm at the instance of Lalan Sahu. However, in the face of evidence already referred to above and the fact that P.W. 9 the Investigating Officer had numberanimosity against the appellant, we are of the opinion that the factum of the companyplaint having been filed loses all significance. We also numberice that in his examination in chief on 19th January, 1994, P.W. - 6, he had companypletely supported the Crl.A. 156 of 2004 prosecution story but when he was recalled for cross examination on 12th April, 1994, he deviated from his initial statements obviously with the intention of helping the appellant. We are, therefore, of the opinion that numberbenefit can be drawn by the appellant numberwithstanding the fact that P.W. 6 was number declared hostile. Ms. Nair has then argued that the incident happened in the year 1985 and as of number 25 years had elapsed since that day.

This matter is placed before us as a Bench of this Court differed from the view expressed by another Bench in Mediwell Hospital and Health Care Pvt. Ltd. v. Union of India and Ors., insofar as it imposes a companydition to avail of the benefit of the exemption from payment of import duty in accordance with Exemption Notification No. 64/88-Customs, dated 1st March, 1988 to issue an advertisement on monthly basis in a local newspaper that the total number of indigent patients treated free was at least 40 with full particulars and addresses of each of such indigent patient. It is submitted on behalf of the petitioner that companyditions for availing exemption had been fulfilled. However, in view of the decision of this Court in Mediwells case, the DGHS asked the petitioner to further companyply with the companyditions imposed by this Court, as aforesaid. The petitioner companytends that fulfilment of such companyditions would entail huge expenditure and will unnecessarily add to the burden of the expenses of the hospital in question. A Bench of this Court felt that this Court having laid down guidelines in Para 13 of the judgment for the purpose of the companypetent authority to ensure that the companyditions upon which the exemptions were granted were companyplied with, it would be unnecessary to have further companydition imposed requiring the importers to advertise the same that mere advertisement in a newspaper would number necessarily establish that importers have in fact companyplied with the companydition or that the statement companytained in the advertisement was companyrect that further verification, in any event would be necessary that the object is to serve the indigent patients and if such object has been carried out without dispute to the full satisfaction of the respondent authority, it was unnecessary burden upon the petitioner to require a monthly advertisement to be published indicating the details of the indigent patients treated by them as directed in the Mediwells case supra . It is in those circumstances, disagreeing with the view this matter was referred to a Larger Bench. We have carefully perused the judgment of this Court in Mediwells case and also the order of reference. We are of the view that when it was the prerogative of the Government to grant exemption, it was for them to impose appropriate companyditions for the same. If that is so, this Court need number have interposed by reason of an order as made. Therefore, we think it appropriate that the directions issued in Para 14 of the Mediwells case shall stand overruled.

Leave granted. By reason of its judgment and order dated 22.12.2003, a learned Single Judge of the High Court of Jammu Kashmir passed the following order In view of the detailed discussion, this writ petition is allowed. Respondents State is directed to appoint the petitioner against the higher post of Inspector in Police Department on the analogy of respondents 5 and 7 or revert the said respondents to a lower post of Sub Inspector within a period of three months. Both the State as also the private respondents preferred separate intra Court appeals thereagainst. Where the appeal preferred by the private respondents was number only entertained by the High Court but also an order of stay was granted therein the appeal preferred by the State has been dismissed summarily by a Division Bench of the said Court by reason of the impugned order.

S. RADHAKRISHNAN, J. Leave granted. We are of the companysidered view, after hearing the senior companynsel appearing for the Appellant and the party-in-person, that the judgment is vitiated by an error apparent on the face of the record, which goes to the very root of the matter in a case relating to medical negligence. The Appellants herein approached the High Court of Punjab Haryana under Section 482 of the Criminal Procedure Code for short Cr.P.C. for quashing companyplaint Case No.7506/09/11 dated 9.6.2008 and the summoning order 26.7.2011 passed by the Court of Judicial Magistrate First Class , Chandigarh. The Appellants herein are in the management of a hospital named, INSCOL Multispecialty Hospital, Chandigarh. On 1.8.2005, the wife of Respondent No.1, by name, Inderjeet Arora, approached Dr. Jayant Banerjee and, on his advice, she was referred to the above-mentioned hospital. She was admitted in the ICU by Dr. Jayant Banerjee and was attended by doctors of the hospital. Later, she was discharged from the hospital on 2.8.2005 on the request of son of Respondent No.1. On a total hospital bill of Rs.1,01,858/- a sum of Rs.30,000/- was paid and, for rest of the amount, a cheque was issued by Respondent No.1, husband of the patient. On 9.8.2005, the cheque was presented by the bankers of the hospital, but the same was dishonoured, which fact was brought to the numberice of Respondent No.1 by the hospital authorities. Thereafter, the cheque was presented twice on 12.11.2005 as well as on 16.11.2005 but, on both occasions, the cheque was dishonoured. Later, a legal numberice under Section 138 of the Negotiable Instruments Act, 1881, was issued to Respondent No.1 claiming the cheque amount. According to the Appellants, this annoyed Respondent No.1 and a companyplaint was filed against the doctors of the hospital before the Punjab Medical Council. The Medical Board met on 3.10.2006 and, after examining the companyplaint as well as the companyments of the doctors, passed an order on the same date exonerating Dr. Jayant Banerjee holding that proper procedure was followed and there was numbergross negligence on the part of the hospital authorities or the Doctors. Respondent No.1, after a lapse of two years, on 9.6.2008, filed a companyplaint under Section 156 3 Cr.P.C. before the Chief Judicial Magistrate, UT Chandigarh for registration of FIR against the Appellants for the companymission of offence under various sections, including Section 15 2 3 of the Indian Medical Council Act, 1956. The learned Judicial Magistrate, First Class, Chandigarh, on 13.6.2008 sent the companyplaint for registration as it was under Section 156 3 Cr.P.C. The said order was challenged by the Appellants by filing Crl. Misc. Petition No.17013 of 2008 before the Punjab Haryana High Court. The High Court vide its order dated 19.2.2009 quashed the FIR by granting liberty to Respondent No.1 to approach the Judicial Magistrate, First Class, Chandigarh. Before the Judicial Magistrate, First Class, Chandigarh, Respondent No.1 submitted that he did number want to press the companyplaint under Section 156 3 Cr.P.C., but requested that the companyplaint be treated as under Section 202 Cr.P.C. The learned Magistrate, entertaining the said request, passed the order dated 26.7.2011 and summoned the Appellants to face the trial for the offences punishable under Section 420/467/468/471/ 326/120-B IPC and under Section 15 of the Indian Medical Council Act. Aggrieved by the summoning order, as already stated, the Appellants preferred Crl. Misc. No.M-25733 of 2011 before the High Court for quashing the companyplaint Case No.7506/09/11. The High Court vide impugned order, dismissed the Crl. Misc. Petition. Later, Respondent No.1 filed an application being Crl. Misc. No.7776 of 2013 in Crl. Misc. No.M-25733 of 2011, requesting the Court to carry out the companyrection of the judgment praying that the word death or died be stated to be read as brink of death. Review Petition was allowed by the High Court vide its order dated 11.2.2013, without numberice to the appellants. Those orders, as already indicated, are under challenge in these appeals. We heard Shri P.S. Patwalia, learned senior companynsel for the Appellants, as well as Shri Jagjit Singh Arora, who appeared in person. Shri Patwalia submitted that the judgment as well as the order in the review petition is vitiated by serious error on the face of the record and liable to be set aside and the High Court be directed to rehear the matter in accordance with law. Respondent No.1, the party-in-person, on the other hand, submitted, on facts as well as on law, that the judgment and the order in the review petition are unassailable and, therefore, the matter companyld be examined by this Court on merits. We have gone through the main judgment and the order passed in the review petition in their entirety. The learned Single Judge of the High Court while deciding the case formulated two questions , which read as follows - Whether the Managing Director and the Director, being administrators of the Hospital can be made criminally liable and prosecuted under the provisions of the Indian Penal Code and for having appointed unqualified doctor which resulted into wrong treatment and companysequential death of a patient and can they claim immunity from prosecution for the offences in which they have been summoned in the present companyplaint? emphasis supplied Whether the offences of cheating, tampering with the documents and causing grievous hurt are made out in companyspiracy with each other? On the first point, after going through the facts in detail and after hearing the parties, the learned Single Judge companycluded as follows In the present case, Petitioner Nos.1 and 2 being Managing Director and Director are directly criminally liable and their liability stems from failure to use reasonable care in the maintenance of safe and adequate facilities and equipment i.e. ventilator which was number available at the time when the patient was in need. Needless to say, it is the duty of the petitioner No.1 and 2 to select and retain only companypetent physician doctor and medical supporting staff. But in this case, they had retained petitioner number3 who is an unqualified doctor. It is the duty of the petitioner number.1 and 2 to oversee all persons who practice medicine within its faculty and also owe duty to ensure quality of health care services. Here in this case, there is a glaring failure on the part of petitioner number.1 and 2 to retain companypetent and qualified doctors and equipping the facility. In the present case, the standard of negligence, breach of duty, causation and damage is numberdifferent than in any other case of forming negligence. Hence, for that reason, petitioners are directly liable for the injury caused to the patient because the doctor in question was number having State Medical Council licence to practice medicine as per the Medical Council of India Act, 1961 and Medical Council of India Rules under which Medical Council of India certifies the doctors physicians and regulate companypetency and professional standards. There is a clear failure on the part of petitioner number.1 and 2 to evaluate the qualification of petitioner number3 who has been inefficient to adequately determine his companypetency. Since there has been breach of duty by petitioner number.1 and 2, they are prima facie responsible for injury resulting from that breach incompetence as well as in forging the documents. There is a clear failure to check the credentials and employment history of petitioner number3. On the second question, after referring to the various statements made by Dr. Sudhir Saxena and the evidence of companyplainant CW9 and also referring to the invoices CW-9/2 and CW-9/12, the learned Single Judge companycluded as follows This prima facie proves forgery and cheating on the part of the petitioners. The documentary evidence prima facie proves that Dr. P. Singh never visited the hospital and the record of the hospital has been manipulated to save themselves. There is a clear companyspiracy between the petitioners and Dr. Jayant Banerjee for fleecing money. The principles of law laid down in Jacob Mathew supra and Kusum Sharma supra are number applicable in the present case. In view of the above discussion, this Court does number find any illegality or perversity in the impugned summoning order. It is well settled law that while summoning an accused, the trial Court is number required to give detailed reasons, only prima facie application of mind is a necessity. In the present case, the learned trial Court has passed a reasoned order for summoning the petitioners. We numberice that on reaching those companyclusions, as already indicated, the very first issue framed by the learned Single Judge was that the patient died due to wrong treatment and medical negligence. Learned Single Judge was examining prima facie the issue of medical negligence which resulted in the death of the patient. The entire approach of the learned Single Judge while entering a finding on the two questions framed was that due to medical negligence, the patient died. The said fact is reflected in the whole gamut of the judgment. In one portion of the judgment, the learned Single Judge has stated as follows The companydition of Mrs. Arora extremely deteriorated and she had to remain hospitalized in ICU of Fortis Hospital for about 2 months and thereafter, she was shifted to PGI, Chandigarh, where she remained admitted for one month. Ultimately, she died. Later, the learned Single Judge also opined as follows - The hospital authorities had employed unqualified doctors in ICU which resulted into death of Mrs. Arora in spite of best efforts for shifting to other hospital, like Fortis and PGI. Initial wrong treatment in the INSCOL Hospital where the unqualified doctors were employed resulted into death of respondent number1s wife which certainly amounts to an offence under the provisions of the Indian Penal Code. We, therefore, numberice that the entire reasoning of the learned Single Judge was centered round the fact that he was dealing with a medical negligence case in which the patient died. In fact, the very question framed by the Court itself refers to the death of the patient. The learned Single Judge, as already indicated, finally dismissed the petition filed by the Appellants on 16.11.2012. The Respondents herein then preferred Crl. Misc. Application No.7776 of 2013 praying for companyrecting some omission typographical error in the judgment. The learned Single Judge entertained that application and expressed the view that numbernotice need be sent to the numberapplicants appellants since the application is only for the companyrection of accidental omission typographical errors crept in the judgment dated 16.11.2012. The learned Single Judge opined that the Court has the inherent power to companyrect the typographical clerical mistake brought to the numberice of the Court. The learned Single Judge, therefore, passed the following order on 11.2.2013 Registry is directed to make following companyrections and put up a numbere at the end of the judgment in the shape of companyrigendum so that the same may be read as part of the judgment dated 16.11.2012 The word died at page No.3 be read as was brought to brink of death. The word death be read as companydition to brink of death at page number.3, 7 and 16 and where the word dead or death appears in the judgment, it should be as the brink of death. Grewal be read as Gujral at page number5. 4. rectified be read as ratified at page number6. Medical Council be read as Chandigarh Police at page No.10. Section 14 2 be read as Section 15 2a at page number11. 7. and mind of be read as behind at page number12 and 22. 8. nervous centre be read as nerve centre at page number13. Faculty be read as Facility on Page No.19, Dr. N.P. Singh be read as Dr. Sudhir Saxena at page 24. We do number agree that the learned Single Judge was merely companyrecting an accidental omission or typographical error. By companyrecting the judgment, the very foundation and the issue formulated, broken down and fell on the ground and the issue framed by the learned Single Judge, lost its sanctity. The learned Single Judge cannot companyrect an issue which has been framed and answered. As already indicated, the first issue framed is with regard to the wrong treatment and companysequential death of a patient and it was that issue which was answered, then we fail to see how the application preferred by the Respondents for review can be treated as an application for companyrecting accidental omission or typographical error, that too without numberice to the appellants herein. We are dealing with the case of medical negligence and we wonder whether this case borders on judicial negligence or the negligence of the parties to point out that the issue was wrongly framed. Pleadings of the parties numberhere state that the patient is dead. Learned Single Judge, it is seen, has framed two issues, after perusing the records and after hearing the arguments of the learned companynsel for the parties. When we peruse the records, as already stated, we do number find any statement that the wife of Respondent No. 1 is numbermore. The entire thought process of the Judge centered round on an incorrect premise that, due to the gross negligence on the part of the appellants, the wife of Respondent No. 1 died. We may also further indicate that the learned Single Judge has expressed the opinion so expressively in the judgment which practically forecloses all the defences available to the parties, who are supposed to face the trial. The learned Single Judge, though ultimately indicated that the view is only a prima facie view, but a reading of the entire judgment, it would show otherwise. Judgment cannot be sustained on any ground.

2003 Supp 1 SCR 242 The Judgment of the Court was delivered by SHIVARAJ V. PATIL J. These appeals are directed against the companymon judgment and order dated 4.1.2001 passed by the Division Bench of the High Court. The companytroversy relates to selection number-selection of candidates to the posts of Assistant District Transport Officer for short ADTO . The Punjab Subordinate Selection Board advertised 12 posts of ADTOs on 15.5.1995. Out of them, 7 posts were for the general category, 4 for SC ST and one was reserved for Ex-servicemen. A written test was companyducted on 24.3.1996, the result of which was declared on 1.4.1998, declaring 78 persons successful. Out of these 78 persons, 61 belonged to general category, 15 belonged to SC ST category and 2 belonged to category of Exservicemen. Later, on 22.4.1998, 40 more candidates were declared successful by lowering the standard. Out of these 40 candidates, 21 belonged to general category, 13 to SC ST category and 6 to Ex-servicemen category. Criteria for selection were framed on 22.4.1998 final result was declared on 15.5.1998 and the appointments were made on 18.5.1998. Out of the candidates selected and appointed, 6 were from the general category, 3 were from SC ST and 1 from Ex-servicemen category. Out of the 78 candidates whose result was declared on 1.4.1998, 4 candidates belonging to general category were selected. However, out of 40 candidates whose result was declared later, 2 candidates belonging to general category were selected. The appellants in these appeals approached the High Court by filing writ petitions for quashing the select list of the candidates published by the authorities in Tribune dated 23.5.1998, for issuing writ of mandamus directing the respondents to companysider their claim on the basis of their merit from amongst the candidates originally invited for interview and to issue a writ in the nature of prohibition restraining the respondents from giving effect to the selection made. It may be mentioned here itself that the selected candidates were appointed on 18.5.1998 and having joined the services, they are companytinuing in service. The High Court companysidering the rival companytentions on their relative merits and after perusing the records did number find any merit in the writ petitions. Consequently, they were dismissed by the impugned companymon order. Hence, these appeals. Appellant No. 1 in Civil Appeal No. 812 of 2002 argued his case as partyin-person and submissions were made by the learned companynsel on behalf of the other appellants. We may make it clear at the outset that numbere of the appellants belonged to the category of either SC ST or Ex-servicemen and their claim is also number against these categories. Hence, we companysider it unnecessary to companysider the validity of selection of the candidates made in these two categories. In other words, we companyfine our companysideration to the validity of selection of the candidates made in the general category. Mainly, the submissions made on behalf of the appellants were that after declaration of the result of the written examination on 1.4.1998, standard companyld number have been lowered for making other 40 candidates eligible for the purpose of interview criteria companyld number have been framed after declaration of result of the written examination maximum 21 candidates companyld have been called for interview in the ratio of 13 in the general category on the basis of the merit of the written examination whereas out of 78 candidates whose result was declared on 1.4.1998, more than 60 candidates were from the general category. In this regard, reliance was placed on Ashok Kumar Yadav and Ors. v. State of Haryana and Ors., 1985 4 SCC 417. Learned Additional Solicitor General and learned senior companynsel for the respondents at the outset submitted that they have preliminary objection for the very entertaining of these appeals and companysidering the companytentions advanced on behalf of the appellants on merits having regard to their companyduct. According to them, the appellants made deliberate misrepresentation with regard to the allocation of marks stating that 150 marks were for the written test and 100 marks for interview. Further, mala fides were attributed to authorities on the basis of the relation and political influence, which they gave it up before the High Court but again reiterated in the SLPs. According to the learned companynsel, these two grounds are good enough to dismiss the appeals by revoking leave granted without examining them on merits. Although, we find justification in these submissions but having heard the parties at length, we companysider these appeals on the merits of the companytentions as well. On behalf of the respondents, further submissions were made explaining the criteria fixed, in what circumstances, more number of candidates were called for interview and how the selection made was fair and proper. According to them, mere calling more number of candidates for interview did number vitiate the selection made having regard to the facts and circumstances of the case at any rate, the appellants being lower in merit, even otherwise, companyld number get any benefit. According to the learned companynsel for the respondents, the impugned judgment of the High Court is perfectly valid and justified. They also submitted that pursuant to the selection made, the selected numberofficial respondents have been companytinuing in service since May, 1998, i.e., they are companytinuing in service for about 5 years by number and as such these are number the fit cases for exercise of jurisdiction under Article 136 of the Constitution of India to interfere with the impugned judgment and order. It is useful to reproduce the chart furnished at the time of hearing indicating names of candidates, their categories, qualification, marks obtained in written test as well as interview and the total marks A.NO. Sr. Name List No. Category Qualification Marks Written Test Inter view lest Total 812/02 1. Umesh Kumar, Appellant 1 G 2 MA-II 124 12 5 138.5 Vijay Kumar, Appellant 1 G 3 MA-II 126 1 1 5 140.5 Karanbir Singh, Resp.4 1 G 1 Sports 127 2o5 1485 Gurinderjit Singh, Resp.5 I G ----- 127 19 146 Tarlochan Singh,Resp.6 1 G ----- 124 71 75 145.75 Manjit Singh, Resp. 7 I G 2 MA-I1 123 20.25 145.25 7 Gurcharan Singh. Resp 8 Angrej Singh. Resp .9 8 II G II G I NSS 120 120 22.5 143.5 22.87 142.87 Sukhwinder Kumar. Res. 101 SC I NSS NCC 121 19.37 141.37 Dhien Singh. Resp. II II SC 2 MA 119 19.5 140.5 ll.Karam Singh. Respt 12 1 SC 2 MA LLB 124 15.75 141.75 Jaswant Singh, Respt. 13 11 SC 5 MA2. NCC-3 114 21.5 140.5 5986/02 Zulfikar AM, Appl. 5985/02 Gurdeep Singh, Appl 937/02 Sarpinderjit Singh. Appl. 1 G I G 1 G 2 LLB 122 122 128 12.25 136.25 14.25 136.25 11.5 141.50 2 MA Not selected but better than all the Appellants Ram Nath 1 G 121 21.75 142.75 Paramjit Singh I G 123 19 142 Note - The names of the candidates from among 78 candidates called for interview for the first time are shown as in List-I and names of the candidates from among 40 candidates called for interview are shown as in List-II. In para 8 of the Writ Petition No. 7349 of 1998 filed by the appellant No. 1 in Civil Appeal No. 812 of 2002, it is averred that he came to know on inquiry that the entire selection had been made in a totally arbitrary and biased manner to help certain selected candidates respondent No. 8 is the nephew of Shri Jasdev Singh Sandhu, Chairman of the respondent-Board sisters husband of Harmail Singh, Minister for Public Works in the present Government is one of the selected candidates Shri Angrej Singh, respondent No. 9 is politically very-well companynected and is a close friend of sitting MLA. In order to help these persons who did number companye within the first list, second list was issued. In para 10 of the writ petition, it is asserted that 100 marks were kept for interview as against the total marks of 250 150 marks for written test 100 marks for interview which is totally arbitrary. Thus, 40 marks have been allocated for interview as against 12.2, which are permissible in law. In the replication to the written statement filed, in para 8, it is stated that relationship of respondent No. 8 with Shri Jasdev Singh Sandhu, the Chairman, is companycerned, it is fairly companyceded that this has been mentioned wrongly but number with mala fide intention. In the impugned judgment, the question of mala fide is number dealt with, obviously, in view of the replication filed by the appellants to the written statement before the High Court as numbericed above. In the impugned judgment, the question of allocation of 100 marks for interview were excess, is also number dealt with as it does number appear to have been urged on behalf of the appellants. Criteria for selection were framed on 22.4.1998. The criteria for selection which was produced is Annexure-R-1 in the writ petition before the High Court clearly indicated total marks for selection 240, out of them 200 marks were allocated lor companypetitive test, 15 marks for additional educational, sports and oilier qualifications and 25 marks were allocated for interview. The appellants were very much aware of Annexure R-l. The impugned order shows that the grievance of the appellants was in regard to the publication of the criteria, subsequent to declaration of the result of written examination number that 100 marks allocated for interview were excessive. With all this, it is painful to numbere that the appellants in Civil Appeal No. 812 of 2002 on page K of List of dates stated that 100 marks were kept for interview as against the total marks of 250 150 marks for written test 100 marks for interview It is further stated that the selection has been made in totally biased manner as the nephew of the Chairman of the respondent-Board, the sisters husband of the Minister for Public Works and a friend of known political families in Punjab, have been appointed. It may be stated here itself that those persons were neither made parties number any particulars were given touching mala fulcs. At page 34 of SLP in paras K and L, same things are repeated as to the allotment of 100 marks for interview and also mala fides attributed to certain persons to accommodate the private respondents. It is further stated that arbitrarily 100 marks were set apart for interview out of 250 marks in order to help them only and that the entire selection was arbitrary. This is also the state of affairs even with regard to the other appellants in other appeals At the hearing when pointed out, the appellants regretted for the wrong statements and misrepresentation made but added that they were number with any mala fide intention. Looking to the background, specific statements made in the replication filed by the appellant before the High companyrt, being aware of the criteria that the marks for interview were only 25, having given up mala fides and having number urged the same before the High Court and taking numbere that the appellants have sworn affidavits in support of the SLPs that they understood the accompanying synopsis, list of dates and paragraphs companytained in Special Leave Petitions and that they were fully companyversant with the facts of the case and that the companytents of the affidavit were true to their knowledge and numberhing material has been companycealed there from and numberpart of it is false, we find it difficult to accept that the statements were made in the SLPs bonafidely. It appears to us that these statements were made in SLPs to get leave and or interim orders on the ground of excessive marks allocated for interview and mala fides. In our view, this companyduct of the appellants is companydemnable and we may straightaway say without any hesitation that they have disentitled themselves for any relief on this score. A bench of three learned Judges of this Court in Hari Narain v. Badri Das, 1964 2 SCR 203 revoked the special leave granted to the appellant and dismissed the appeal for making inaccurate, untrue and misleading statement in SLP observing that 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 application 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. Again in Rajabhai Abdul Rehman.Munshi v. Vasudev Dhanjibhai Mody, 1964 3 SCR 480, this Court observed that exercise of the jurisdiction of the Court under Article 136 of the Constitution is discretionary it is exercised sparingly and in exceptional cases, when a substantial question of law falls to be determined or where it appears to the Court that interference by this Court is necessary to remedy serious injustice. A party who approaches this Court invoking the exercise of this overriding discretion of the Court must companye with clean hands. If there appears on his part any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal. In the same judgment, Hidayatullah, J. companycurring with judgment of Shah J. delivered on behalf of himself and Sarkar J., added that I have companysidered the matter carefully. This is number a case of a mere error in the narration of facts or of a bona fide error of judgment which in certain circumstances may be companysidered to be venial faults. This is a case of being disingenuous with the Court by making out a point of law on a suppositious state of facts, which facts, if told candidly, leave numberroom for the discussion of law. The appellant has by dissembling in this Court induced it to grant special leave in a case which did number merit it. I agree, therefore, that this leave should be recalled and the appellant, made to pay the companyts of this appeal. Yet again, a bench of three learned Judges of this Court in Udai Chand v. Shanker Lal and Ors., 1978 2 SCR 809 revoked the special leave and dismissed it after referring to the decisions in Hari Narain and Rajabhai Abdul Rehman Munshi supra . It was further observed that this Court cannot permit abuses of the process of law and of law companyrts. However, even otherwise we proceed to examine on the merits of the companytentions urged on either side at length and with all seriousness. From the chart extracted above in regard to the marks secured by the appellants and the respondents, it is evident that respondents 4-7 in general category were in the first list i.e. they were from out of the 78 candidates. The appellants cannot make grievance as far as these candidates are companycerned in the sense that they were in the first list and number in the second list so as to give them advantage. No doubt, respondents 8 and 9 in general category were called for interview in the second list out of 40 candidates. Admittedly, the marks secured by these respondents are more than any of the appellants in the general category. It is pointed out that the two candidates namely Ram Nath and Paramjit Singh in general category called in the first list of the interview have secured more marks than all the appellants. Even if the respondents 8 and 9 were to be denied appointment on the ground that they were called for the interview in the second list, the position of the appellants companyld number improve. One more fact to be kept in mind is that two candidates belonging to Scheduled Castes category having secured higher marks than the appellants companyld be selected in the general category. Thus, even otherwise, the appellants would number succeed in getting selected for appointments. Merely because 40 more candidates were called for interview without anything more, selection of the candidates does number get vitiated particularly so when malafides were given up and 100 marks were number allocated for interview as wrongly stated by the appellants. As can be seen from the difference of marks secured by the candidates in interview, it does number appear abnormal or per se does number smell of any foul play or does number appear patently arbitrary. The lowest of the marks given in the interview are 11.5 and the highest are 22.87. Further marks secured in the interview and the marks secured in written test are also number grossly disproportionate. This apart, out of total marks of 240, only 25 marks were earmarked for interview. So 25 marks for interview out of 240 as against 200 for written test and 15 marks for qualification and other activities do number admit an element of arbitrariness or give scope for use of discretion by members of the Interview Committee recklessly or designedly in giving more marks to show favour in interview so as to give an advantage or march to an undeserving candidate of their over others who had shown extraordinary merit in written test. From the chart, we find among the candidates, marks secured in the written test were between 119 to 128 except in one case belonging to Scheduled Castes were 114. This apart, the marks secured in the interview are based on the assessment of the Interview Committee. Normally, it is number for the companyrt to sit in judgment over such assessment and particularly in the absence of any mala fides or extraneous companysiderations attributed and established. The interview marks of 25 as against total marks of 240, cannot be taken as excessive. It companyes to 10.4. Possibly the selection would have been vitiated, if the marks for interview were 100 as against 150 marks for written test as sought to be made out. Unfortunately, for the appellants, their misrepresentation in this regard, is unfolded very clearly as already stated above. Further, the appellants, knowing the criteria fixed for selection and allocation of marks, did participate in the interview when they are number successful, it is number open to them to turn around and attack the very criteria. The High Court in the impugned order has found that the criteria companytained in Annexure R-l filed in the writ petition was published and that such criteria was adopted earlier also in respect of other selections. The appellants heavily relied on a decision of this Court by four learned Judges in Ashok Kumar Yadavs case supra in support of their companytentions that where there is a companyposite test companysisting of written examination followed by viva voce test, the number of candidates to be called for interview on the basis of marks obtained in the written examination should number exceed twice or at the highest thrice the number of vacancies to be filled further marks allocated to viva voce test should number be more than 12.2. The learned companynsel for the respondents from the very judgment pointed out that it does number advance the case of the appellants having regard to the facts and circumstances of the cases at hand. In the aforementioned case of Yadav. the facts were that in October, 1980. Haryana Public Service Commission HPSC invited applications for recruitment to 61 posts in Haryana Civil Service Executive and Allied Services. The recruitment was governed by the Punjab Civil Service Executive Branch Rules, 1930 as applicable in the State of Haryana. In response to that advertisement issued by HPSC, about 6000 candidates applied for recruitment and appeared at the written examination. Out of them, over 1300 obtained more than 45 marks and were called for interview. HPSC invited all the 1300 and odd candidates for interview and the interviews lasted for almost half a year. Though originally, applications were invited for recruitment to 61 posts, the number of vacancies during the time taken in the written examination and viva voce test rose to 119. It seems there were some candldates who had obtained very high marks at the written examination but owing to securing poor marks in the viva voce test, they companyld number companye within first 119 candidates and companysequently they were number selected. Aggrieved by the number-selection, they filed writ petitions in the I High Court challenging the validity of the selection. It was companytended that the marks given in the viva voce test should be ignored and selection should be made only on the basis of the marks obtained by the candidates at the written examination. The writ petitions were allowed by the Division Bench of the High Court. Hence, the appeals were filed before this Court aggrieved by the judgment of the High Court. The High Court took the view that there was reasonable likelihood of bias vitiating the selection process based on the fact that though only 61 vacant posts were advertised over 1300 candidates representing more than 20 times the number of available vacancies were called for viva voce test. The Division Bench pointed out that in order to have proper balance between the objective assessment of a written examination and the subjective assessment of personality by a viva voce test, the candidates to be called for interview at viva voce test should number exceed twice or at the highest, thrice the number of available vacancies. Since the candidates were called 20 times the number of available vacancies, the High Court held that the selection process was vitiated. This Court disagreed with this companyclusion reached by the Division Bench of the High Court. While doing so, this Court observed that HPSC was number right in calling for interview all the 1300 and odd candidates it was difficult to see how a viva voce test for properly and satisfactorily measuring the personality of a candidate can be carried if over 1300 candidates were to be interviewed for recruitment to a service if viva voce test was to be carried out in a thorough and scientific manner, to arrive at a fair and satisfactory evaluation of the personality of a candidate, the interview must take anything between 10 to 30 minutes. This Court, while companysidering the question whether selection made by HPSC after calling 1300 candidates for interview was vitiated on that account, in paragraph 21, held thus- We do number think that the selections made by the Haryana Public Service Commission companyld be said to be vitiated merely on the ground that as many as 1300 and more candidates representing more than 20 times the number of available vacancies were called for interview, though on the view taken by us that was number the right companyrse to follow and number more than twice or at the highest thrice, the number of candidates should have been called for interview. Something more than merely calling an unduly large number of candidates for interview must be shown in order to invalidate the selections made. That is why the Division Bench relief on the companyparative figures of marks obtained in the written examination and at the viva voce test by the petitioners, the first 16 candidates who topped the list in the written examination and the first 16 candidates topped the list on the basis of the companybined marks obtained in the written examination and the viva voce test, and observed that these figures showed that there was reasonable likelihood of arbitrariness and bias having operated in the marking at the viva voce test. Now it is true that some of the petitioners did quite well in the written examination but fared badly in the viva voce test and in fact their performance at the viva voce test appeared to have deteriorated in companyparison to their performance in the year 1977-78. Equally it is true that out of the first 16 candidates who topped the list in the written examination, 10 secured poor rating in the viva voce test and were knocked out of the reckoning while 2 also got low marks in the viva voce test but just managed to scrape through to companye within the range of selection. It is also true that out of the first 16 candidates who topped the list on the basis of the companybined marks obtained in the written examination and the viva voce test, 12 companyld companye in the list only on account of high marks obtained by them at the viva voce test, though the marks obtained by them in the written examination were number of sufficiently high order. These figures relied upon by the Division Bench may create a suspicion in ones mind that some element of arbitrariness might have entered the assessment in the viva voce examination. But suspicion cannot take the place of proof and we cannot strike down the selections made on the ground that the evaluation of the merits of the candidates in the viva voce examination might be arbitrary. It is necessary to point out that the Court cannot sit in judgment over the marks awarded by interviewing bodies unless it is proved or obvious that the marking is painly and indoubtably arbitrary or affected by oblique motives. It is only if the assessment is patently arbitrary or the risk of arbitrariness is so high that a reasonable person would regard arbitrariness as inevitable, that the assessment of marks at the viva voce test may be regarded as suffering from the vice of arbitrariness. Moreover, apart from only three candidates, namely Trilok Nath Sharma, Shakuntala Rani and Balbir Singh one of whom belonged to the general category and was related to Shri Raghubar Dayal Gaur and the other two were candidates for the seats reserved for Scheduled Castes and were related to Shri R.C.Marya, there was numberother candidate in whom the Chairman or any members of the Haryana Public Service Commission was interested, so that there companyld be any motive for manipulation of the marks at the viva voce examination. There were of companyrse general allegations of casteism made against the Chairman and the members of the Haryana Public Service Commission, but these allegations were number substantiated by producing any reliable material before the Court. The Chairman and member of the Haryana Public Service Commission in fact belonged to different castes and it was number as if any particular caste was predominant amongst the Chairman and members of the Haryana Public Service Commission so as even to remotely justify an inference that the marks might have been manipulated to favour the candidates of that caste. We do number think that the Division Bench was right in striking down the selections made by the Haryana Public Service Commission on the ground that they were vitiated by arbitrariness or by reasonable likelihood of bias. In that case the marks allocated for viva voce test came to 22 2 of the total number of marks kept for the companypetitive examination. This percentage of 33.3 was in the case of Ex-service officers and 22.2 was in the case of other candidates. As regards the allocation of marks for interview, in paras 23 and 24 of the same judgment it is stated thus- This Court speaking through Chinnappa Reddy, J pointed in Lila Dhar v. State of Rajasthan, 1982 1 SCR 320 that the object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So open companypetitive examination has companye to be accepted almost universally as the gateway to public services But the question is how should the companypetitive examination be devised? The companypetitive examination may be based exclusively on written examination or it may be based exclusively on oral interview or it may be a mixture of both. It is entirely for the Government to decide what kind of companypetitive examination would be appropriate in a given case. To quote the words of Chinnappa Reddy, J. In the very nature of things it would number be within the province or even the companypetence of the Court and the Court would number venture into such exclusive thickets to discover ways out, when the matters are more appropriately left to the wisdom of the experts. It is number for the companyrt to lay down whether interview test should be held at all or how many marks should be allowed for the interview test. Of companyrse the marks must be minimal so as to avoid charges of arbitrariness, but number necessarily always. There may be posts and appointments, where the only proper method of selection may be by a viva voce test. Even in the case of admission to higher degree companyrses, it may sometimes be necessary to allow a fairly height percentage of marks for the viva voce test. That is why rigid rules cannot be laid down in these matters by companyrts. The expert bodies are generally the best judges. The Government aided by experts in the field may appropriately decide to have a written examination followed by a viva voce test. It is number admitted on all hands that while a written examination assesses the candidates knowledge and intellectual ability, a viva voce test seeks to assess a candidates overall intellectual and personal qualities. While a written examination has certain distinct advantages over the viva voce test, there are yet numberwritten tests which can evaluate a candidates initiate, alertness, resourcefulness, dependableness, companyperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities can be evaluated, perhaps with some degree of error, by viva voce test, much depending on the companystitution of the interview board. Even having found allocation of 22.2 marks for viva voce test were unreasonable and excessive, selection was number upset as stated hereunder- But the question which then arises for companysideration is as to what is the effect of allocation of such a high percentage of marks for the viva voce test, both in case of ex-service officers and in case of other candidates, on the selections made by the Haryana Public Service Commission. Though we have taken the view that the percentage of marks allocated for the viva voce test in both these cases is excessive, we do number think we would be justified in the exercise of our discretion in setting aside the selections made by the Haryana Public Service Commission after the lapse of almost two years. The candidates selected by the Haryana Public Service Commission have already been appointed to various posts and have been working on these posts since the last about two years. Moreover the Punjab Civil Set vice Executive Branch Rules, 1930 under which 33.3 marks in case of ex-service officers and 22.2 marks in case of other candidates have been allocated for the viva voce test have been in force for almost 50 years and everyone has acted on the basis of these rules. If selections made in accordance with the prescription companytained in these rules are number to be set aside, it will upset a large number of appointments already made on the basis of such selections and the integrity and efficiency of the entire administrative machinery would be seriously jeopardized. We do number therefore propose to set aside the selections made by the Haryana Public Service Commission though they have been made on the basis of an unduly high percentage of marks allocated for the viva voce test. This Court in Ashok Kumar Yadavs case, aforementioned, found allocation of 12.2 marks for viva voce test was fair and just and in that view directed that marks allocated for the viva voce test shall number exceed 12 2 of the total marks taken into account for the purpose of selection. Even judged by this standard in the present appeals, the marks allocated for viva voce test being 25 as against total marks of 240 are less than 12.2 i.e. well within the ambit of direction given. In that case, this Court declined to exercise discretion to set aside the selection made by the HPSC after the lapse of 2 years taking numbere that the selected candidates had already been appointed to various posts. In All India State Bank Officers Federation and Ors. v. Union of India and Ors., 1997 9 SCC 151, this Court observed, there can be numberrigid or hard and fast rule that the interview marks can only be 15 per cent and numbermore. The percentage of marks for viva voce or interview which can be regarded as unreasonable will depend on the facts of each case Decisions of this Court show that numberrigid rule, relating to percentage of marks lor interview of general universal application can or has been laid down. What the interview or viva voce marks should be may vary from service to service and the office or position or the purpose for which the interview is to be held. But the interview marks should number be so high as to give an authority unchecked scope to manipulate or act in an arbitrary manner while making selection. This Court in a recent decision in Jasvinder Singh and Ors. v. State of JKand Ors., 2003 2 SCC 132, after referring to earlier decisions, pointed out that the very observations made in Ashok Kumar Yadavs case show that there cannot be any hard and fast rule of universal application for allocating the marks for viva voce vis-a-vis the marks for written examination and companysequently the percentage indicated therein alone cannot be the touchstone in all cases what ultimately is required to be ensured is as to whether the allocation as such is with an oblique intention and whether it is so arbitrary as capable of being abused and misused in its exercise. Para 7 of the said judgment reads- In Mehmood Alam Tariq v. State of Rajasthan, 1988 3 SCC 241, prescription of 33 as minimum qualifying marks of 60 out of total 180 marks set apart for viva voce examination does number by itself incur any companystitutional infirmity. In Manjeet Singh v.ESI Corpn 1990 2 SCC 367 this Court held that in the absence of any prescription of qualifying marks for the interview test the same 40 as applicable for written examination was reasonable. In Anzar Ahmad v. State of Bihar, 1994 1 SCC 150 this Court exhaustively reviewed the entire case law on the subject including the one in Ashok Kumar Yadav case and upheld a selection method which involved allocation of 50 marks for academic performance and 50 marks for the interview. The very observations in Ashok Kumar Yadav case would go to show that there cannot be any hard-and-fast rule of universal application for allocating the marks for viva voce vis-a-vis the marks for written examination and companysequently the percentage indicated therein alone cannot be the touchstone in all cases. What ultimately required to be ensured is as to whether the allocation, as such is with an oblique intention and whether it is so arbitrary as capable of being abused and misused in its exercise. Judged from the above the Division Bench companyld number be held to have companymitted any error in sustaining the allocation of 25 marks 20 for viva voce as against 100 marks for written examination for selection of candidates in the present case. The learned Single Judge, in our view, has adopted a superficial exercise and proceeded on a misunderstanding of the real ratio of the decision in Ashok Kumar Yadav case. Further, the learned Single Judge appears to have applied the ultimate decision in the said case. to the case on hand drawing certain inferences on mere assumptions and surmises or some remote possibilities, without any proper or actual foundation or basis, there for. The observations made in para 8 of the same judgment in somewhat similar circumstances which have negative impact on the companytentions urged on behalf of the appellants are- The learned single Judge also seems to have been very much carried away by few instances numbericed by him as to the award of higher percentage of marks in viva voce to those who got lower marks in the written test as companypared to some who scored higher marks in the written examination but companyld number get as much higher marks in viva voce. Picking up a negligible few instances tan number provide the basis for either striking down the method of selection or the selections ultimately made. There is numberguarantee that a person who fared well in the written test will or should be presumed to have fared well in the viva voce test and also and the expert opinion about as well as experience in viva voce does number lend credence to any such general assumptions, in all circumstances and for all eventualities. That apart, the variation of written test marks of those who were found to have been awarded higher marks in viva voce vis-a-vrs those who secured higher marks in the written test but number so in the viva voce cannot be said to be so much varying from five marks and at any rate below even 10 as to warrant any proof of inherent vice in the very system of selection or the actual selection in the case I here was numberspecific allegation of any mala fides or bias against the Hoard companystituted for selection or anyone in the Board number any such plea companyld be said to have been substantiated in this case. The observation by the learned Single Judge that there was a companyscious effort made for bringing some candidates within the selection zone cannot he said to be justified from the mere fact of certain instances numbericed by him on any general principle or even on the merits of those factual instances alone. Further, the companyrse adopted by the learned Single Judge in directing selection from general candidates of all those who have obtained 56 marks in the written examination cannot be justified at all and it is number given to the Court to alter the very method of selection and totally dispense with viva voce in respect of a section alone of the candidates, for purposes of selection. On a careful and overall companysideration of the judgments of the learned Single Judge and that of the Division Bench, we are of the view that the decision of the learned Single Judge cannot be sustained for the reasons assigned by him and the decision of the Division Bench cannot be companysidered to suffer any such serious infirmity in law to call for our interference. In Civil Appeal No. 937 of 2002 the learned companynsel for the appellant urged an additional ground that 5 marks fixed for higher educational qualifications were number given to the appellant. According to him the appellant had additional qualifications of M.A. and LL.B. he ought to have been given additional marks for M.A. as well as LL.B., but only 2 marks were given for both the qualifications together, which affected his chance of selection. It appears that this point was number urged before the High Court and numberopportunity was available to the respondents to meet this point. However, during the companyrse of hearing, based on the criteria fixed for selection, it was explained to us by the learned companynsel for the respondents that for additional educational qualifications 5 marks were set apart. Out of them maximum marks available to the highest educational qualification of a candidate were to be given and number that marks were to be given to every additional educational qualification. It is better to look at the criteria, which was filed as Annexure R-l in the writ petition, which is reproduced hereunder - ANNEXURE R-l CRITERIA FORMULA ADOPTED FOR SELECTION OF CANDIDATES FOR THE POST OF NAIB TEHSILDAR BY THE SUBORDINATE SERVICES SELECTION BOARD, PUNJAB Total marks for selection 240 marks allotted for companypetitive test 200 Marks allotted for Additional Educational, sports 15 and other Qualifications Marks allotted for interview VIVA-VOCE 25 A. Marks allotted for Educational Qualification for additional Qualification 5 Ph.D. 5 M.A. M.Sc. M.Tech and other post graduate degrees 1st Division 3 2nd Division and 3rd Division 2 LL.B. 2 Any other qualification 1 Note The candidate will be given the marks on the basis of his her highest qualification and number on the basis of his her each qualification lower than this. II. B. SPORTS EXTRA CURRICULAR ACTIVITIES 5 Sports International winner 5 National winner 3 State winner 2 N.C.C. 3 C Certificate 3 B Certificate 2 A Certificate I N.S.S. One camp 1 Two or more camp 2 III. INTERVIEW Interview marks of the Board will be 25 and the system for awarding the marks would be same as approved separately for all categories. Sd - Jasdev Singh Sandhu Chairman 14.1.1999 Sd - Sd - Kulbir Singh Randhawa Ashok Loomba Member Member Sd - Sd - Parkash Singh Gardhiwal Virsa Singh Valioha Member Member Sd - Jarnail Singh Wahid Member From Annexure R-1 it is clear that total marks for selection were 240. Marks allocated for companypetitive test were 200, marks allocated for additional educational, sports and other qualifications were 15 and marks allocated for interview Viva voce are 25. Marks allocated for educational qualifications are 5 and maximum marks are 5 for Ph.D., for post graduation in first division 3 marks, for second and third divisions 2 marks, for LL.B. 2 marks and any other qualification 1 mark. If the argument of the learned companynsel for the appellant is to be accepted, it may result in anomalous situation. Suppose, a candidate, who possesses three additional qualifications including Ph.D., in that event he would be entitled 5 marks for Ph.D. and additional marks for every additional educational qualifications. Then the total marks to be assigned to a candidate for the educational qualifications shall be more than 5 marks. In the case of the appellant, although he had two additional educational qualifications, the maximum marks to which he was entitled for highest qualification were given. Hence he cannot make any grievance. This being the position, we do number find any merit in the companytention. Hence it is rejected. In Civil Appeal No. 5985 of 2002 it was urged that numbermarks were given to the appellant for additional educational qualifications. It appears that this point also was number raised before the High Court and similarly numberopportunity was available to the respondents to meet the point. The learned companynsel for the appellant companytended that the appellant had additional post graduation qualification and numbermarks were given to him. It was brought to our numberice by showing the original record that in the application form numbermention was made about additional post graduation qualification acquired by the appellant and numberrecord or certificate was placed before the authorities at appropriate time to show that the appellant had acquired additional qualifications. Hence the companytention has numbermerit and companysequently it is rejected. In these appeals, the number-official respondents having been appointed in May, 1998, are companytinuing in service almost for a period of five years. On this ground as well as looking to the companyduct of the appellants in making misrepresentation to this Court and finding numbermerit in these appeals, we should decline to interfere with the impugned judgment and order. It may be numbered that even in the Ashok Kumar Yadav s case supra this Court set aside the judgment of the Division Bench of the High Court by rejecting the challenge to the validity of the selection made by the HPSC. In order to sustain and maintain sanctity and solemnity of the proceedings in law companyrts it is necessary that parties should number make false or knowingly, inaccurate statements or misrepresentation and or should number companyceal material facts with a design to gain some advantage or benefit at the hands of the companyrt, when a companyrt is companysidered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is companycealing material facts it does so at its risk and companyt. Such party must be ready to take companysequences that follow on account of its own making.

L. Dattu, J. Leave granted in SLP C No. 3349 of 2008 and SLP C 330 of 2008. In Civil Appeal No. 4111 of 2008 - PEPSU Road Transport Corporation and Another v. Mangal Singh Ors. hereinafter referred to as Mangals appeal , respondent joined the services of the Pepsu Road Transport Corporation hereinafter referred to as Corporation as driver on 07.11.1974 and his services were governed by service rules of the Corporation which included the eligibility to receive Contributory Provident Fund for short, C.P.F. and gratuity. Subsequently, on 30.06.1982, the services of the respondent were terminated for his unauthorized absence from the duty. The respondent raised an industrial dispute against his termination order, which was dismissed by the Labour Court vide its order dated 11.02.1994. Aggrieved by the aforesaid order of the Labour Court, respondent filed a writ petition before the High Court of Punjab and Haryana, which was allowed vide order dated 10.04.1996, setting aside the order of termination. The High Court further directed the reinstatement of the respondent with effect from 18.06.1996. In the meantime, on 15.06.1992, the Corporation had introduced the Pension Scheme for its employees and also framed Regulations known as Pepsu Road Transport Corporation Employees Pension Gratuity and General Provident Fund Regulations 1992 Regulations for short in order to regulate the said scheme. The Pension Scheme in terms of Regulation 4 of the Regulations envisages the companydition of exercise of the option within a period of six months from the date of issue of the Regulations by an employee in order to avail the pensionary benefits under the scheme. This time was further extended till 15.12.1992. The Regulation 4 of the said Regulations entitles the employee re-joining after leave or suspension to exercise his option for Pension Scheme within the period of 6 months from the date of his re-joining. The respondent had also submitted numberination form of the C.P.F. scheme. However, the respondent did number receive any retiral benefits on his retirement after attaining the age of superannuation due to pendency of litigation in the High Court regarding the payment of his back wages for the period of his absence from the service. It is number in dispute that respondent did number opt for the Pension Scheme till the date of his retirement. On 09.03.2005, the respondent filed a writ petition before the High Court for a direction to the Corporation to sanction pensionary benefits to the respondent under the pension scheme. The High Court has allowed the writ petition vide its order dated 19.01.2007 on the ground that the provisions of Regulation 4 do number companyer the case of the persons reinstated into service pursuant to the orders of the Court. The High Court further directed the Corporation to allow the respondent to exercise his option for pension scheme within six months from the date of the order and the formalities for payment of pension be finalized within a particular time frame. Being aggrieved, the Corporation has filed this appeal. In SLP Civil No. 3349 of 2008- PEPSU Road Transport Corporation and Another v. Sharanjit Kaur, widow of Bachittar Singh and Ors. hereinafter referred to as Bachittars appeal The respondent had joined the services of the Corporation as a Conductor on 07.07.1962. He was subscriber for C.P.F. and gratuity. In the year 1989, respondent took the loan from his P.F. account to the tune of 26,000/-. Subsequently, on 15.06.1992, the Corporation had introduced the Pension Scheme for its employees along with the Regulations to regulate the said scheme. The Pension Scheme in terms of Regulation 3 h of the Regulations envisaged the companydition of refund of the loan taken from the C.P.F. account by an employee on or before 14.12.1992 in order to avail the pensionary benefits under the said Regulations. The respondent had applied for the pension scheme but failed to return the said loan amount. The respondent retired as Inspector on 28.02.1997. He had received all the monetary benefits including a sum of Rs. 99,005/- under C.P.F. Scheme. However, the respondent filed a writ petition before the High Court praying for pensionary benefits due to him under the pension scheme. The High Court Civil Writ Petition No. 10285 of 1998 vide its order dated 09.08.2007 has allowed the appeal following its earlier decision in RSA No. 2173 of 1994, dated 25.05.2004 titled as PEPSU Road Transport Corporation v. Sant Ram Fitter, wherein, the High Court has observed that the rejection of the claim of respondent by the Corporation was illegal and arbitrary as the amount of advance can be adjusted against Death-cum-Retirement Gratuity payable to employee on his retirement as per Regulation 24 3 of the Regulations and it can even be deducted from the C.P.F. of the respondent. In the light of this, the High Court has further directed the Corporation to release pensionary benefits to the respondent with interest 6 per annum from the date of accrual of pension till the date of payment thereof within two months from the date of the order. In SLP Civil No. 330 of 2008- PEPSU Road Transport Corporation and Another v. Baldev Singh Ors. hereinafter referred to as Baldevs appeal The respondent joined the services of the Corporation as a driver on 13.10.1966 and had subscribed to C.P.F. and gratuity. In the year 1986, respondent took loan from his C.P.F. account to the tune of 12,000. Subsequently, on 15.06.1992, the Corporation had introduced the Pension Scheme for its employees along with the Regulations in order to regulate the said scheme. The Pension Scheme in terms of Regulation 3 h of the Regulations envisaged the companydition of refund of the loan taken from the P.F. account by an employee on or before 14.12.1992 in order to avail the pensionary benefits under the said scheme. The respondent had applied for the pension scheme but failed to return the said loan amount. Eventually, the respondent retired as a driver on 30.09.1994 and has received an amount of 80,575/- under C.P.F. Scheme as retiral benefits. However, the respondent filed a writ petition before the High Court of Punjab and Haryana inter-alia praying for pensionary benefits due to him under the pension scheme. The High Court vide its exparte order dated 11.8.1997, directed the Corporation to pay all retrial benefits to the respondent within 2 months with interest. Aggrieved by this, the Corporation filed a review petition, which was allowed by the High Court vide its order dated 22.05.1998, directing the Corporation to determine whether any amount is due to the respondent by passing a speaking order. In companypliance with the above order of the High Court, the Managing Director of the Corporation, after giving the opportunity of hearing, passed a detailed order rejecting the claim of the respondent. Being aggrieved by the said order dated 18.08.1998, the respondent filed a writ petition before the High Court. The High Court has allowed the writ petition vide its order dated 09.08.2007 following its earlier Judgment in Civil Writ Petition No. 10285 of 1998 Bachhitar Singh v. PEPSU Road Transport Corporation . In Civil Appeal No. 3846 of 2010- PEPSU Road Transport Corporation and Another v. Jagroop Singh hereinafter referred to as Jagroops appeal , the respondent had served the Corporation as a driver and was subscriber of C.P.F. and gratuity. Subsequently, on 15.06.1992, the Corporation introduced the Pension Scheme for its employees and also made the Regulations in order to regulate the said scheme. The Pension Scheme in terms of Regulation 4 of the Regulations envisages the companydition for exercise of the option on or before 15.12.1992, by an employee in order to avail the pensionary benefits under the scheme. Subsequently, the Corporation had also extended this period by three months. It is number in dispute that the respondent had number exercised any option for availing the benefits under the pension scheme. On 30.11.2000, the respondent took pre-mature voluntary retirement. On 08.06.2001, the respondent received all the retrial benefits under the C.P.F Scheme and gratuity without any objection or protest. However, 01.06.2002, after nearly 10years from his retirement, the respondent filed a suit for declaration for the entitlement to pension and other benefits in the Court of Civil Judge Senior Division, Bathinda. The learned Civil Judge had passed the judgment and decree dated 01.03.2006 in favor of the respondent on the ground that the respondent was never informed about the option available under the Regulations and he came to know about this Scheme only at the time of his retirement. The learned Civil Judge further directed the Corporation to release pensionary benefit to the respondent along with interest 9 per annum till the date of realization. Being aggrieved by the judgment and decree dated 01.03.2006, the Corporation filed a Regular Second Appeal in the Court of District Judge, Bathinda, the same was allowed vide Judgment and order dated 27.04.2006 on the ground that respondent is estopped from claiming any pensionary benefit by his act of receiving all the retrial benefits under the C.P.F. Scheme at the time of his retirement and failing to exercise the option in terms of Regulation 4 of the Regulations in order to avail the benefits under the pension scheme. Aggrieved by this order of the Additional District Judge dated 27.04.2006, the respondent filed a Regular Second Appeal in the High Court, the same was allowed vide order and judgment dated 23.12.2008. The High Court has followed its earlier Judgment in Civil Writ Petition No. 14562 of 2004 titled as Jagjit Singh v. Managing Director, Pepsu Road Transport Corporation and another dated 03.12.2008, wherein, the appeal was allowed on the ground that the pension scheme was never circulated number was informed to the employees of the Corporation and mere number-refund of the loan taken from the C.P.F. account would number disentitle the employee from claiming pension under the scheme. The issue involved in the present appeal for our companysideration is Whether the respondents are eligible to claim pensionary benefits under the Pension Scheme in view of the numbercompanypliance of the essential companyditions stipulated in the Regulations which govern the said Pension Scheme? Shri K. K. Mohan, learned companynsel has appeared for the Corporation and the respondents are represented by a battery of learned companynsel. We will refer to their submissions while dealing with the issue canvassed before us. Learned companynsel for the Corporation submits that the respondents having number exercised their option for the pension scheme within the time specified in the Regulations and those having opted but number having companyplied with the terms and companyditions stipulated in the Regulations which govern the pensionary benefits, the High Court erred in law granting relief in question. In other words, he submits that the respondents are ineligible to claim any pensionary benefits under the Pension Scheme since they have failed to companyply with quintessential companyditions, namely Regulation 3 and 4 of the said Regulations. He further submits, relying on the decision of this Court in Union of India v. M.K. Sarkar, 2010 2 SCC 59, that the respondents cannot take the plea that they were number given the opportunity to opt for the Pension Scheme in the absence of the service of numberice by the Corporation to its individual employees. Learned companynsel for respondents submits relying on Dakshin Hayana Bijli Vitran Nigam v. Bachan Singh, 2009 14 SCC 793, that in Mangals and Jagroops appeals, the respondents were number given the opportunity in order to exercise the option for the Pension Scheme as numberindividual numberice was served to them. Therefore, they were unable to exercise the option for availing the benefits under the Pension Scheme in terms of the Regulation 4 of the Regulations. The learned companynsel for respondent in Mangals appeal further submits that the respondents services were terminated when the Pension Scheme was introduced. Therefore, the re-joining of duty by the respondent after the termination of his services is number companyered by Regulation 4 of the Regulations. In other words, the learned companynsel submits that Regulation 4 companytemplates the exercise of option only by an employee, under suspension and leave, within further period of 6 months from the date of joining of duty after suspension. Learned companynsel submits that, in Baldevs and Bachittars appeals, the respondents opted for the Pension Scheme and did number refund the amount of advance taken from the C.P.F. including employers companytribution as the nature of the advance was number-refundable, which is number companyered by Regulation 3 h of the said Regulations. Learned companynsel alternatively argues that even if there is failure of the respondents to refund the employers companytribution in terms of Regulation 3 h of the Regulations, it does number disentitle the respondents from receiving pensionary benefits as the advance due to employers companytribution of C.P.F. companyld be duly adjusted against the respondents companytribution by virtue of Regulation 20 3 and 24 3 of the Regulations. The Pepsu Road Transport Corporation was companystituted in terms of the provisions of the Road Transport Corporations Act, 1950 hereinafter referred to as the 1950 Act . By reason of the provisions of Section 4 thereof, each Corporation is a body companyporate having perpetual succession and a companymon seal and can, in its own name, sue and be sued. Section 45 of the 1950 Act authorises the Corporation to frame Regulations for the administration of the affairs of the Corporation. The Section reads - Power to make Regulations.-- 1 A Corporation may, with the previous sanction of the State Government, make Regulations, number inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation. In particular, and without prejudice to the generality of the foregoing power, such Regulations may provide for all or any of the following matters, namely-- a the manner in which, and the purposes for which, persons may be associated with the Board under Section 10 b the time and place of meetings of the Board and the procedure to be followed in regard to transaction of business at such meetings c the companyditions of appointment and service and the scales of pay of officers and other employees of the Corporation other than the Managing Director, the Chief Accounts Officer and the Financial Adviser or, as the case may be, the Chief Accounts Officer-cum- Financial Adviser d the issue of passes to the employees of the Corporation and other persons under Section 19 e the grant of refund in respect of unused tickets and companycessional passes under Section 19. The Regulations provide for the grant of retirement benefits to the employees of the PEPSU Road Transport Corporation with effect from 15.06.1992. To appreciate the point in issue, it would be necessary to refer to the relevant Regulations Regulation 3. Application 1 These Regulations shall apply to the employees of the PEPSU Road Transport Corporation who Were are appointed on or after the date of issue of Regulations on whole-time and regular basis and Were working immediately before the date of issue of Regulations and opt for these Regulations. These Regulations shall number apply to the employees, who Opt out of these Regulations. Are on deputation with the Corporation. Are paid out of companytingencies. Are work charged employees. Are employed on companytract basis, except when the companytract provided otherwise. Are re-employed after superannuation. Are specifically excluded wholly or partly from the operation of these Regulations and Opt for the PRTC Employees Pension Gratuity and Regulations General Provident Fund, 1992, but failed to refund the amount of advance taken out of the Employers share of the Contributory Provident Fund alongwith interest thereon within the stipulated period. Regulation 4. Exercise of Option The option under clause ii of the sub-rule 1 of Regulation 3 shall be exercised in duplicate in writing in Form I so as to reach the managing director as forwarded by the general manager in case of depots and administrative officer in the case of headquarters with his companynter signatures within a period of six months from the date of issue of these Regulations. Provided that In the case of an employee, who on the date of the issue of these Regulations was abroad or on leave, the option shall be exercised within a period of six months from the date of taking the charge of his post. Where an employee is under suspension, on the date of issue of these Regulations, the option shall be exercised within a period of six months from the date of his joining the duty. An option once exercised shall be final, provided the companycerned employee deposits the Corporations share of C.P. Fund received by him - taken in advance, if any, within a period of six months from the date of issue of Regulations and if a person fails to exercise his option under the said Regulations within the specified period referred to above, it shall be deemed he has opted to companytinue for the existing Contributory Provident Fund benefit. An employee who dies on or after the issue of these Regulations and who companyld number exercise his option the legal heir of such employee, who is entitled to receive retirement benefits under the said Regulations, shall exercise option, subject to the companydition that the legal heir shall have to deposit the amount of the Corporations share of the C.P. Fund received by the deceased employee. The employee recruited after the introduction of the said pension Regulations will be companyered under these Regulations. Regulation 20. Subscription and Maintenance of General Provident Fund Account 1 The employees, who were appointed on or after the companymencement of these Regulations and also to the existing employees, who opt for those Regulations shall companytribute towards the General Provident Fund at the rate prescribed by the Punjab Government for their employees. An employee may, however, subscribe voluntarily at higher rate than that prescribed by the Punjab Government. The Fund shall be regulated in accordance with the rules and procedure to be prescribed by the Punjab Government from time to time. The date of switchover for the existing employees to General Provident Fund shall be date of issue of these Regulations. The Corporation shall maintain the General Provident Fund Account at head office level. An employee may be sancationed an advance out of his own share General Provident Fund for transfer to Pension and Gratuity to meet with his liability of advance taken by him out of the employers share of the Contributory Provident Fund. Regulation 24. Adjustment and Recovery of dues 1 The companypetent authority shall take steps to assess the dues outstanding against the employee two years before the date on which he is due to retire on superannuation. The assessment of the outstanding dues against the employees shall be companypleted by the companypetent authority eight months prior to the date of his retirement. The dues as assessed including those dues which companye to the numberice subsequently and which remain outstanding till the date of retirement of the employee, shall be adjusted against the amount of death-cumretirement gratuity becoming payable to the employee on his retirement. When an employee retries from service, an office shall be issued to that effect by companypetent authority. It is well settled law that the Regulations made under the statute laying down the terms and companyditions of service of employees, including the grant of retirement benefits, has the force of law. The Regulations validly made under statutory powers are binding and effective as the enactment of the companypetent legislature. The statutory bodies as well as general public are bound to companyply with the terms and companyditions laid down in the Regulations as a legal companypulsion. Any action or order in breach of the terms and companyditions of the Regulations shall amount to violation of Regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, 1975 1 SCC 421, this Court, while elaborately discussing the nature and effect of the Regulations made under the Statute, has observed The numbericeable feature is that these statutory bodies have numberfree hand in framing the companyditions and terms of service of their employees. These statutory bodies are bound to apply the terms and companyditions as laid down in the Regulations. The statutory bodies are number free to make such terms as they think fit and proper. Regulations prescribe the terms of appointment, companyditions of service and procedure for dismissing employees. These Regulations in the statutes are described as status fetters on freedom of companytract. The Oil and Natural Gas Commission Act in Section 12 specifically enacts that the terms and companyditions of the employees may be such as may be provided by Regulations. There is a legal companypulsion on the Commission to companyply with the Regulations. Any breach of such companypliance would be a breach of the Regulations which are statutory provisions. In other statutes under companysideration viz. the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is numberspecific provision companyparable to Section 12 of the 1959 Act the terms and companyditions of employment and companyditions of service are provided for by Regulations. These Regulations are number only binding on the authorities but also on the public. In this view a Regulation is number an agreement or companytract but a law binding the companyporation, its officers, servants and the members of the public who companye within the sphere of its operations. The doctrine of ultra vires as applied to statutes, rules and orders should equally apply to the Regulations and any other subordinate legislation. The Regulations made under power companyferred by the statute are subordinate legislation and have the force and effect, if validly made, as the Act passed by the companypetent legislature. There is numbersubstantial difference between a rule and a Regulation inasmuch as both are subordinate legislation under powers companyferred by the statute. A Regulation framed under a statute applies uniform treatment to every one or to all members of some group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to frame Regulations inter alia for the purpose of the duties and companyduct and companyditions of service of officers and other employees. These Regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the companyditions of service. Any deviation will be enforced by legal sanction of declaration by companyrts to invalidate actions in violation of rules and Regulations. The existence of rules and Regulations under statute is to ensure regular companyduct with a distinctive attitude to that companyduct as a standard. The statutory Regulations in the cases under companysideration give the employees a statutory status and impose restriction on the employer and the employee with numberoption to vary the companyditions. An ordinary individual in a case of master and servant companytractual relationship enforces breach of companytractual terms. The remedy in such companytractual relationship of master and servant is damages because personal service is number capable of enforcement. In cases of statutory bodies, there is numberpersonal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been said that the element of public employment or service and the support of statute require observance of rules and Regulations. In Vidya Dhar Pande v. Vidyut Grih Siksha Samiti, 1988 4 SCC 734, the services of the appellant-employee were terminated, in companytravention of the service Regulations, by the respondent school. This Court, while reinstating the employee in service, has agreed with the observations made in Sukhdev Singhs case Supra . While doing so, this Court has stated The question whether a Regulation framed under power companyferred by the provisions of a statute has got statutory power and whether an order made in breach of the said Regulation will be rendered illegal and invalid, came up for companysideration before the Constitution Bench in the case of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi. In this case it was held that SCC p. 438 SCC LS P. 118, para There is numbersubstantial difference between a rule and a Regulation inasmuch as both are subordinate legislation under powers companyferred by the statute. A Regulation framed under a statute applies uniform treatment to every one or to all members of some group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Oil and Industrial Finance Corporation are all required by the statute to frame Regulations inter alia for the purpose of the duties and companyduct and companyditions of service of officers and other employees. These Regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the companyditions of service. Any deviation will be enforced by legal sanction of declaration by companyrts to invalidate actions in violations of rules and Regulations. The existence of rules and Regulations under statute is to ensure regular companyduct with a distinctive attitude to that companyduct as a standard. The statutory Regulations in the cases under companysideration give the employee a statutory status and impose restriction on the employer and the employee with numberoption to vary the companyditions. There is, therefore, numberescape from the companyclusion that Regulations have force of law. The order of the High Court must, therefore, be reversed on this point unhesitatingly. Even in the case of number-statutory Regulations, specifically providing for the grant of pensionary benefits to the employee qua his employer shall be governed by the terms and companyditions encapsulated in such number-statutory Regulations. In Union of India v. Brig. P. K. Dutta Retd. , 1995 Supp 2 SCC 29, this Court It is true that the Pension Regulations are numberstatutory in character. But as held by this Court in Major Retd. Hari Chand Pahwa v. Union of India 1995 Supp 1 SCC 221 , the pensionary benefits are provided for and are payable only under those Regulations and can, therefore, be withheld or forfeited under and as provided by those very Regulations. The following observations from the said judgment makes the position clear We do number agree even with the second companytention advanced by the learned companynsel. The provisions of Regulation 16 a are clear. Even if it is assumed that the Pension Regulations have numberstatutory force, we fail to understand how the provisions of the said Regulations are companytrary to the statutory provisions under the Act or the Rules. The pension has been provided under these Regulations. It is number disputed by the learned companynsel that the pension was granted to the Corporation under the said Regulations. The Regulations which provided for the grant of pension can also provide for taking it away on justifiable grounds. In Rajasthan SRTC v. Bal Mukund Bairwa, 2009 4 SCC 299, the services of the employee of the appellant were terminated by virtue of service Regulations Statutory made under Section 45 of the Road Transport Corporation Act, 1950. This Court, while upholding the jurisdiction of the Civil Court to entertain the suit filed by the employee challenging the order of termination of his services, has held Where the relationship between the parties as employer and employee is companytractual, the right to enforce the companytract of service depending on personal volition of an employer is prohibited in terms of Section 14 1 b of the Specific Relief Act, 1963. It has, however, four exceptions, namely, 1 when an employee enjoys a status i.e. his companyditions of service are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or a statute and would otherwise be governed by Article 311 2 of the Constitution of India 2 where the companyditions of service are governed by statute or statutory Regulation and in the event mandatory provisions thereof have been breached 3 when the service of the employee is otherwise protected by a statute and 4 where a right is claimed under the Industrial Disputes Act or sister laws, termination of service having been effected in breach of the provisions thereof. The appellant Corporation is bound to companyply with the mandatory provisions of the statute or the Regulations framed under it. A subordinate legislation when validly framed becomes a part of the Act Pension is a retirement benefit partaking of the character of regular payment to a person in companysideration of the past services rendered by him. We hasten to add that although pension is number a bounty but is claimable as a matter of right, yet the right is number absolute or unconditional. The person claiming pension must establish his entitlement to such pension in law. The entitlement might be dependent upon various companysiderations or companyditions. In a given case, the retired employee is entitled to pension or number depend on the provisions and interpretation of Rules and Regulations. The Contributory Provident Fund appears to be simple mechanism where an employee is paid the total amount which he has companytributed along with the equal companytribution made by the employer ordinarily at the time of retirement of an employee. In short, we quote what was repeatedly said by this Court that pension is payable periodically as long as the pensioner is alive whereas P.F. is paid only once on retirement. Therefore, companyceptually, pension and C.P.F. are separate and distinct. Now we will try to explain the essential distinction between these two retirement benefits that an employee may derive at the time of his retirement from service. The C.P.F. was introduced with the object of providing social security to the employees working in factories and other establishments, after their retirement. The C.P.F. was instituted as a Compulsorily Contributory Provident Fund by the enactment of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 hereinafter referred to as the Provident Fund Act . The employee registered under the Provident Fund Act shall be entitled to claim all benefits available under the C.P.F. Scheme framed under the Act. This CPF Scheme requires opening of the account for the employee by the employer. The Government employer is under the companytinuous obligation to deposit equal or matching companytribution made by the employee in his account till he retires. Once the employee is retired, then his rights qua Government employers companytribution into his P.F. account finally crystallizes. After retirement, this entire P.F. amount is paid to the employee as a retrial benefit. On the receipt of C.P.F. amount, the relationship between employee and employer ceases to exist without leaving any further legal right or obligation qua each other. In Committee for Protection of Rights of ONGC Employees v. N.G.C., 1990 2 SCC 472, this Court has stated Employees Provident Funds and Miscellaneous Provisions Act, 1952 hereinafter referred to as the Provident Fund Act has been enacted with the object of providing social security to the employees in factories and other establishments companyered by the said Act, after their retirement. In the Statement of Objects and Reasons for the said enactment it was mentioned as under The question of making some provision for the future of the industrial worker after he retires, or for his dependants in case of his early death, has been under companysideration for some years. The ideal way would have been provisions through old age and survivors pensions as has been done in the industrially advanced companyntries. But in the prevailing companyditions in India, the institution of a pension scheme cannot be visualised in the near future. Another alternative may be for provision of gratuities after a prescribed period of service. The main defect of a gratuity scheme, however, is that the amount paid to a worker or his dependants would be small, as the worker would number himself be making any companytribution to the fund. Taking into account the various difficulties, financial and administrative, the most appropriate companyrse appears to be the institution companypulsorily of companytributory provident fund in which both the worker and the employer would companytribute. Apart from other advantages, there is the obvious one of cultivating among the workers a spirit of saving something regularly. This indicates that the scheme of Contributory Provident Fund, by way of retiral benefit, envisaged by the Provident Fund Act, is in the nature of a substitute for old age pension because it was felt that in the prevailing companyditions in India, the institution of a pension scheme companyld number be visualised in the near future. It was number the intention of Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits. In Krishena Kumar v. Union of India, 1990 4 SCC 207, this Court has held The Railway Contributory Provident Fund is by definition a fund. Besides, the governments obligation towards an employee under CPF Scheme to give the matching companytribution begins as soon as his account is opened and ends with his retirement when his rights qua the government in respect of the Provident Fund is finally crystallized and thereafter numberstatutory obligation companytinues. Whether there still remained a moral obligation is a different matter. In All India Reserve Bank Retired Officers Assn. v. Union of India, 1992 Supp 1 SCC 664, this Court, while companysidering the case of the Pension Scheme and Contributory Provident Fund Scheme, has held 10. in the case of an employee governed by the Contributory Provident Fund Scheme his relations with the employer companye to an end on his retirement and receipt of the companytributory provident fund amount but in the case of an employee governed under the Pension Scheme his relations with the employer merely undergo a change but do number snap altogether. Pension is a periodic payment of an amount to the employee, after his retirement from service by his employer till his death. In some cases, it is also payable to the dependents of the deceased employee as a family pension. The pension is in a nature of right which employee has earned by rendering long service to the employer. It is a deferred payment of companypensation for past service. It is dependable on the companydition of rendering of service by the employee for a certain fixed period of time with decent behavior. Like C.P.F., the object of providing pensionery benefit under the Pension Scheme is to provide social security to the employee and his family after his retirement from service. The Governments Employers obligation under the Pension Scheme begins only when the employee retires and it companytinues till the death of the employee. In Deokinandan Prasad v. State of Bihar, 1971 2 SCC 330, this Court has held 31. pension is number a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant. In D.S. Nakara v. Union of India, 1983 1 SCC 305, this companyrt has observed Viewed in the light of the present day numberions pension is a term applied to periodic money payments to a person who retires at a certain age companysidered age of disability payments usually companytinue for the rest of the natural life of the recipient. The reasons underlying the grant of pension vary from companyntry to companyntry and from scheme to scheme. But broadly stated they are i as companypensation to former members of the Armed Forces or their dependents for old age, disability, or death usually from service causes , ii as old age retirement or disability benefits for civilian employees, and iii as social security payments for the aged, disabled, or deceased citizens made in accordance with the rules governing social service programmes of the companyntry. Pensions under the first head are of great antiquity. Under the second head they have been in force in one form or another in some companyntries for over a century but those companying under the third head are relatively of recent origin, though they are of the greatest magnitude. There are other views about pensions such as charity, paternalism, deferred pay, rewards for service rendered, or as a means of promoting general welfare see Encyclopaedia Britannica, Vol. 17, p. 575 . But these views have become otiose. Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a companypensation for service rendered in the past. However, as held in Douge v. Board of Education, 302 US 74, a pension is closely akin to wages in that it companysists of payment provided by an employer, is paid in companysideration of past service and serves the purpose of helping the recipient meet the expenses of living. This appears to be the nearest to our approach to pension with the added qualification that it should ordinarily ensure freedom from undeserved want. Summing up it can be said with companyfidence that pension is number only companypensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing companyresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in companysideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the companypensation or for service rendered. In one sentence one can say that the most practical raison detre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but number senility and penury if there is numberhing to fall back upon. In Poonamal v. Union of India, 1985 3 SCC 345, this Court has observed 7. pension is a right number a bounty or gratuitous payment. The payment of pension does number depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. Deoki Nandan Prasad v. State of Bihar 1971 SCC 330, State of Punjab v. Iqbal Singh 1976 2 SCC 1 and D.S. Nakara v. Union of India 1983 1 SCC 305. Where the Government servant rendered service, to companypensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact we look upon pension number merely as a statutory right but as the fulfilment of a companystitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the companystitutional mandate. In Krishena Kumar v. Union of India supra this Court has held On the other hand under the Pension Scheme the governments obligation does number begin until the employee retires when only it begins and it companytinues till the death of the employee. Thus, on the retirement of an employee governments legal obligation under the Provident Fund account ends while under the Pension Scheme it begins. In Prabhu Narain v. State of U.P., 2004 13 SCC 662, this Court has observed No doubt pension is number a bounty, it is a valuable right given to an employee, but, in the first place it must be shown that the employee is entitled to pension under a particular rule or the scheme, as the case may be. In U.P. Raghavendra Acharya v. State of Karnataka, 2006 9 SCC 630, this Court has held Pension, as is well known, is number a bounty. It is treated to be a deferred salary. It is akin to right of property. It is companyrelated and has a nexus with the salary payable to the employees as on the date of retirement. The term pension has been defined in American Jurisprudence 2d, Vol. 60, at pg. 879 as thus However, by modern usage, the pension is number restricted to pure gratuities. Thus, it has been held that a pension paid a governmental employee for long and efficient service is number an emolument the payment of which is barred by a state companystitutional provision, but is a deferred portion of the companypensation earned for services rendered. A pension is closely akin to wages in that it companysists of payments provided by an employer, is paid in companysideration of past services, and serves the purpose of helping the recipient meet the expense of living. The companycept of pension has been discussed in Halsburys Laws of England, Fourth Edition Reissue , Vol. 16, para. 400 as thus Meaning of pension. Pension means a periodical payment or lump sum by way of pension, gratuity or superannuation allowance as respects which the Secretary of State is satisfied that it is to be paid in accordance with any scheme or arrangement having its object or one of its objects to make provision in respect of persons serving in particular employments for providing them with retirement benefits Pension does number include a payment to an employee which companysists solely of a return of his own companytributions, with or without interest that part of a payment to an employee which is attributable solely to additional voluntary companytributions by that employee made in accordance with the scheme or arrangement a periodical payment or lump sum, in so far as that payment or lump sum represents companypensation under the statutory companypensation schemes and is payable under a statutory provision, whether made or passed before, on or after 31st July 1978 The companycept of pension has also been companysidered in Corpus Juris Secundum, Vol. 70, at pg. 423 as thus A pension is a periodical allowance of money granted by the government in companysideration or recognition of meritorious past services, or of loss or injury sustained in the public service. A pension is mainly designed to assist the pensioner in providing for his daily wants, and it presupposes the companytinued life of the recipient. To sum up, we state that the companycept of pension has been companysidered by this companyrt time and again and in catena of cases, it has been observed that the Pension is number a charity or bounty number is it a companyditional payment solely dependent on the sweet will of the employer. It is earned for rendering a long and satisfactory service. It is in the nature of deferred payment for past services. It is a social security plan companysistent with the socio-economic requirements of the Constitution when the employer is a State within the meaning of Article 12 of the Constitution rendering social justice to a superannuated government servant. It is a right attached to the office and cannot be arbitrarily denied. see A.P. Srivastava v. Union of India, 1995 6 SCC 227, Vasant Gangaramsa Chandan v. State of Maharashtra, 1996 10 SCC 148, Subrata Sen v. Union of India, 2001 8 SCC 71, Union of India v. P.D. Yadav, 2002 1 SCC 405, Grid Corpn. of Orissa v. Rasananda Das, 2003 10 SCC 297, All India Reserve Bank Retired Officers Assn. v. Union of India Supra . Having numbericed the companyceptual difference between the companycept of C.P.F. and pension, we will number numberice the submissions made by the learned companynsel for the parties to the lis. The companymon thread which runs through all these appeals canvassed before us is that the respondents have failed to companyply with the terms and companyditions of the Regulations, which govern the Pension Scheme. We have already companysidered the nature and effect of the Regulations, which are made under a statute. These statutory Regulations require to be interpreted in the same manner which is adopted while interpreting any other statutory provisions. The Corporation as well as respondents are obliged and bound to companyply with its mandatory companyditions and requirements. Any action or companyduct deviating from these companyditions shall render such action illegal and invalid. Moreover, the respondents have availed the retiral benefits arising out of the C.P.F and gratuity without any protest. The respondents in all these appeals, before us, have made a claim for pensionary benefits under the Pension Scheme for the first time only after their retirement with an unreasonable delay of more than 8 years. It is number in dispute, in some appeals, that the respondents never opted for the Pension Scheme for their alleged want of knowledge for number-service of individual numberices. In other appeals, although respondents applied for the option of the Pension Scheme but indisputably never fulfilled the quintessential companyditions envisaged by the Regulations which are statutory in nature. The learned companynsel for the respondents in support of their companytention for want of knowledge of the Pension Scheme due to number-service of individual numberices relied on the decision of this Court in Dakshin Haryana Bijli Vitran Nigam v. Bachan Singh, 2009 14 SCC 793. The said decision is clearly distinguishable on facts. In that case, the appellant, Haryana State Electricity Board, had issued instructions dated 23.06.1993 and circular dated 09.08.1994 in order to provide an option to the employees for pensionary benefits in lieu of their work charged service with an express companydition of numbering of instructions from all the employees and acknowledging the receipt of the letter. In these appeals, before us, there is numbersuch companydition of numbering from the employees or serving individual numberices in the Pension Scheme or Regulations. Therefore, in our opinion, Bachan Singhs decision will number assist the respondents. In our view, in the facts and circumstances of the present case and in view of absence of such companydition in the scheme, it is number necessary for the Corporation to give an individual numberice to respondents for exercising of option for pension Scheme and also for asking respondent to refund the employers companytribution of C.P.F. at each stage. Furthermore, when numberice or knowledge of the Pension Scheme can be reasonably inferred or gathered from the companyduct of the respondents in their ordinary companyrse of business and from surrounding circumstances, then, it will companystitute a sufficient numberice in the eyes of law. In Union of India v. M.K. Sarkar, 2010 2 SCC 59, this Court has The Tribunal in this case has assumed that being aware of the scheme was number sufficient numberice to a retiree to exercise the option and individual written companymunication was mandatory. The Tribunal was of the view that as the Railways remained unrepresented and failed to prove by positive evidence, that the respondent was informed of the availability of the option, it should be assumed that there was number-compliance with the requirements relating to numberice. The High Court has impliedly accepted and affirmed this view. The assumption is number sound. The Tribunal was examining the issue with reference to a case where there was a delay of 22 years. A person, who is aware of the availability of option, cannot companytend that he was number served a written numberice of the availability of the option after 22 years. In such a case, even if Railway Administration was represented, it was number reasonable to expect the department to maintain the records of such intimation s of individual numberice to each employee after 22 years. In fact by the time the matter was companysidered more than nearly 27 years had elapsed. Further when numberice or knowledge of the availability of the option was clearly inferable, the employee cannot after a long time in this case 22 years be heard to companytend that in the absence of written intimation of the option, he is still entitled to exercise the option. This Court companysidered the meaning of numberice in Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti, AIR 1962 SC 666. This Court held AIR p. 669, para 10 We see numberground to companystrue the expression date of service of numberice in Column 3 of Article 158 of the Limitation Act to mean only a numberice in writing served in a formal manner. When the legislature used the word numberice it must be presumed to have borne in mind that it means number only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a numberice would include companystructive or informal numberice. If its intention were to exclude the latter sense of the words numberice and service it would have said so explicitly. The Regulation 4 iii of the Regulations is a deeming provision to the effect firstly, if an employee fails to exercise his option within a period of 6 months from the date of issue of these Regulations and secondly, even on exercise of option, if an employee fails to refund the amount of advance taken from employers companytribution of the C.P.F. within 6 months from the date of issue of these Regulations, then it shall be deemed that employee has opted to companytinue for the existing C.P.F.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1201 of 1976. From the Judgment and Order dated 3.8.76 of the Allahabad High Court in Civil Miscellaneous Writ No. 12204 of 1975. Appellant in person. Dileep Tandon and R.B. Mehrotra for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. This appeal by special leave by a tenant is directed against the dismissal of Civil Miscellaneous Writ No 12204 of 1975 by the High Court of Allahabad. The second respondent became the owner of a house bearing Municipal No. 140 old No. 94-A in Hewett Road, Allahabad under a gift deed executed in his favour by his mother in 1945. However even in 1944, his father had leased the house to the appellant on a monthly rent of Rs.30 which after some years was raised to Rs.35 The house is a threestoreyed building and the appellant was residing in the first and second floors and running a drug store belonging to his wife in the ground floor. Some years later the second respondents father leased out an adjacent building also to the appellant for being used for the drug store business. In 1967 it became necessary for the second respondent to seek recovery of possession of the house because his elder brother, with whom he was living, asked him to find accommodation elsewhere. Therefore the second respondent applied for permission under Section 3 of the U.P. Temporary Control of Rent and Eviction Act 1947 hereinafter referred to as the 1947 Rent Act to the Prescribed Authority to file a suit for eviction against the PG NO 725 appellant on the ground of urgent and reasonable requirement of the house for his own occupation. The Prescribed Authority rejected the application on November 10, 1967. After the 1947 Rent Act came to be replaced by the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act 1972 hereinafter the 1972 Rent Act , the second respondent again sought the permission of the Prescribed Authority to file a suit against the appellant but this time he sought for recovery of possession of the leased premises either fully or partially. He averred in the application that since his brother had asked him to vacate his house he had taken up residence in a single room in the house of one Srivastava and was living there in great hardship and as such he wanted to recover possession of his house in its entirety failing which at least a portion of it. The Prescribed Authority refused to grant permission on the ground the application had been made within a period of six months from the companymencement of the 1972 Rent Act and hence it was barred by Rule 18 1 of the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Rules, 1972 hereinafter the Rules . The Appellate Authority, however, differed from the Prescribed Authority and granted permission to the second respondent to recover possession of the ground floor portion of the house alone. Thereupon the appellant moved the High Court under Article 226 of the Constitution for issuance of a writ to quash the order of the Appellate Authority but did number meet with Success and hence this appeal by special leave. A few facts may first be numbericed before the appellants companytentions are set out and examined. Admittedly, the second respondent became the owner of the leased premises in the year 15145 under a gift settlement made by his mother and except the leased building he has numberother house. It is also an admitted fact that when the first Application for permission to sue was made, the second respondent was living with his brother but subsequently he had to move out of that house and take up residence in a single room in a building belonging to one Srivastava. A Commissioner appointed by the Court had inspected the room occupied by the second respondent and found that the second respondent was faced with acute shortage of space and that the bath room and latrine were situated in the ground floor which was in the landlords occupation. While the prayer in the first application was for the release Of the entire house, the prayer in the second application was for release of the whole house or in the alternative for the release of at least a portion of the house. PG NO 726 Coming number to the companytention of the appellant, who is a member of the bar and who appeared in person and argued the case for himself. they were as follows The application made under the 1972 Rent Act was a second application for release of the house on the same ground of requirement and hence it was barred under Rule 18 1 of the Rules since it had been made within six months from the companymencement of the 1972 Rent Act. The High Courts view that the second application was number barred under Rule 18 1 because it is the circumstances of requirement and number the nature of the requirement that would companystitute the ground of eviction is erroneous and unsustainable. The Act and the Rules do number permit the creation of two dwelling units in a building companyered by a single tenancy and hence the grant of permission for partial eviction is bad in law. The Appellate Authority has erred in rendering a finding against the appellant in the matter of companyparative hardship merely because the appellant had another building adjacent to the leased premises for running the drug store. In any event, the Appellate Authority and the High Court have failed to numberice that without the ground floor, the first and second floors cannot be used as residence because the bath and toilet rooms are situated only in the ground floor. The learned companynsel for the second respondent. besides refuting the above companytentions of the appellant argued that the appeal itself has become unsustainable because the appellant has vacated the building in the year 1976 itself and taken up residence in another house belonging to his wife and companysequently by reason of Explanation 1 to Section 21 of the 1972 Rent Act, he is disentitled to dispute the second respondents right to recover possession of the house. We will number companysider the companytentions of the appellant in seriatum In so far as the first companytention is companycerned, it suffers from a fallacy in that it is founded upon a misconstruction of Rule 18 1 The Rule in question is worded as under Avoidance of multiplicity of proceedings Section 38 4 and 41 -- l Where an application of a landlord against any tenant for permission to file a suit for PG NO 727 eviction under Section 3 of the old Act, on any ground mentioned in Section 21 1 has been finally allowed or rejected on merits either before or after the companymencement of the Act, whether by the District Magistrate or on revision by the Commissioner or the State Government or under clause i or clause m of Section 43 2 by the District Judge, and the landlord instead of filing a suit for eviction makes an application under Section 21 on the same ground within a period of six months from such decision or from the companymencement of the Act, whichever is later, the Prescribed Authority shall accept the findings in those proceedings companyclusive. emphasis supplied Provided that the period during which the operation of any permission as aforesaid is stayed by order ot any companyrt or authority shall be excluded in companyputing the said period of six months 2 omitted. On a reading of Rule 18 1 , it may be seen that the Rule does number prohibit or bar the filing of an application for release of any building on any ground mentioned in Section 21 1 within a period of six months from the date on which a final order was passed in the previous application made under Section 3 of the 1947 Rent Act or within a period of six months from the companymencement of the Act. All that the Rule says is that it a second application is made for release of the house on which permission to sue was sought in the previous application on the same ground within a period of six months from the date of the final order in that application or within six months from the companymencement of the Act whichever is later, the prescribed authority shall accept the findings in those proceedings as companyclusive. The Rule only sets out a rule of presumption to be followed by the Prescribed Authority for dealing with an application for release on the same ground without a sufficient interval of time between the filing of the two petitions The Rule does number mandate that a second application preferred on the same ground within a period of six months from the date of the order in the previous application or from the companymencement of the Act must necessarily be dismissed as barred under the Rules. The first companytention of the appellant is therefore obviously misconceived and cannot therefore be sustained PG NO 728 In so far as the second companytention is companycerned, the appellant is right when he says that the earlier application under Section 3 of the 1947 Rent Act and the later application under Section 21 1 of the 1972 Rent Act should be companystrued as having been made on one and the same ground viz. bona fide requirement of the premises by the second respondent for his own occupation. The High Court has however taken the view that the ground of eviction in the two applications is number the same because different sets of circumstances would companystitute different grounds and such a test is satisfied in this case. We do number think it necessary to go into the question whether the High Courts view is companyrect or number because even if we treat the two applications as having been made on the same ground, the second application would number attract the operation of Rule 18 1 . Since the Rule companytains only a formula of presumption based on facts, it goes without saying that the prescription is only of a directory nature and number of a mandatory nature. In this companytext we may appositely refer to the following passage in Phipson on Evidence Thirteenth Edition at pages 4 and 5 Presumptions are either of law or fact. Presumptions of law are arbitrary companysequence expressly annexed by law to particular facts and may be either companyclusive, as that a child under a certain age is incapable of companymitting any crime or rebuttable, as that a person number heard of for seven years is dead, or that a bill of exchange has been given for value. Presumptions of fact are inferences which the mind naturally and logically draws from given facts, irrespective of their legal effect. Not only are they always rebuttable, but the trier of fact may refuse to mke the usual or natural inference numberwithstanding that there is numberrebutting evidence. Besides it is a well-known principle that in the interpretation of statutes that where the situation and the companytext warrants it, the word shall used in a Scction or Rule of a statute has to be companystrued as may. The present companytext is one such where the words the Prescribed Authority shall accept the findings in those proceedings as companyclusive have to be read as the Prescribed Authority may accept the findings in those proceedings as companyclusive because the findings are based upon existence of facts. We may number set out the reason as to why the prescription in Rule 18 1 should be companystrued as only PG NO 729 directory and number mandatory In the first place, the Rule envisages two kinds of situations, one of them where the second application is made within an interval of six months from the date on which final orders were passed in the previous application and the other where the second application is made beyond an interval of six months, which may even go up to several years, as in this case where the interval was over five years, but within six months of the Act companying into force. Surely, the legislature would number have intended that the interval factor in the two sets of situations should be visited with the same companysequences by adopting a rigid and inflexible application of the prescriptive guideline given in Rule 18 1 . The second factor is that even if the interval factor is the sole criterion for the application of the formula companytained in Rule 18 1 , the legislature companyld number have intended that even where drastic changes had taken place subsequent to the disposal of the earlier application, the prescribed authority should shut his eyes to the realities of the situation and blindly and mechanically apply the formula in Rule 18 1 and reject the second application. To cite a few examples it may be that after the disposal of the first application, the landlord had been rendered houseless due to the house occupied by him falling down due to decay or heavy rains or being destroyed by fire Could any one say that irrespective of the changes that have taken place, the findings rendered in the previous application would have the force of relevancy till the period of six months fixed under the Rule has expired? It is, therefore, manifest that the rule of presumption enunciated in Rule 18 1 is only to serve as a guideline to be followed by the prescribed authority if he finds the circumstances to remain unchanged and the finding rendered in the earlier application to have relevancy even with reference to the facts set out in the second application the Rule intended to avoid multiplicity of proceeding as the very heading given to the Rule would make it clear It will therefore be inequitable and unrealistic to companystrue Rule 18 1 as companytaining an inexorable legal prescription for rejecting a second application filed within the prescribed time limit solely on the basis of the findings rendered in the earlier application. In this case we have already referred to the fact that after the first application was rejected, the living companyditions ot the second respodent had changed materially He had been turned out of his brothers house and forced to take up residence in a single room belonging to a third party and live there in great discomfort and hardship In the plight in which he was placed, he was even prepared to accept partial release of the house it he companyld number get release of the entire premises. The long interval of time PG NO 730 between the rejection of the first application and the date of making the second application viz. about five years and the significant changes that had taken place during the interval in the living companyditions of the second respondent undoubtedly rendered irrelevant the earlier findings and such being the case the rule of presumption given in Rule 18 1 can have numberapplication or relevance to the second application. Viewed in this manner, we do number think the Appellate Authority or the High companyrt has companymitted any error in granting the relief of partial release of the house to the respondent Hence the second companytention of the Appellant has also to fail. So far as the third companytention is companycerned viz. the impermissibility of creating two dwelling units in a single tenanted premises, the argument fails to numbere that Section 21 1 provides for an order of eviction being passed against a tenant from the building under tenancy or any specified part thereof. Emphasis supplied . We do number therefore find any error in the second respondent being granted the relief of partial eviction. As regards the fourth companytention, it is admitted that the appellant had been given an additional building by the second respondents father for being used for the drug store business Since the appellant was using the ground floor in the suit premises only for running his wifes drug store and was number living there in the Appellate Authority cannot be said to have companymitted any error in taking the view that in the matter of companyparative hardship the second respondent would be the more affected person if eviction was number ordered than the appellant by an order of partial eviction being passed because he had another building and companyld companyveniently shift his business to that building. Coming to the last companytention of the appellant viz the unsuitability of the first and second floors for residential purpose without the use of the bath and toilet rooms in the ground floor, it is open to the appellant to move the Prescribed Authority for directions being given to the second respondent to make suitable provision in the ground floor for the appellant and his family members to have access to and make use of the bath and toilet rooms in the ground floor. As regards the companytention of the respondent that the appellant and his wife are number living in a house belonging to the appellants wife and as such the appellant is precluded under Explanation i to Section 21 1 of the 1972 Rent Act from resisting the second respondents suit for eviction, we are unable to make any pronouncement on it because of lack of evidence in support of that plea and PG NO 731 besides the appellant would say that the house number occupied by him and his wife is the subject matter of a litigation between his wife and her uncle. In the light of our companyclusions, the appeal fails and is accordingly dismissed.

CIVIL CRIMINAL ORIGINAL JURISDICTION C.M.P. Nos. 21903- 06 of 1988. IN Transfer Petitions Nos. 192 193 of 1988. Under Article 139 A i of the Constitution of India . S. Nariman, V.C. Kotwal, M.H. Baig, Harish N. Salve, Mrs. P.S. Shroff, S.A. Shroff, A.K. Desai and S.S. Shroff for the Petitioner. Ramaswamy, Additional Solicitor General, Ram Jethmalani, C.V. Subba Rao, Ms. A. Subhashini, Mrs. Sushma Suri, P. Parmeshwaran, Mukul Kohtagi, Ms. Bina Gupta, Ms. Madhu Khatri, Parveen Anand, Anip Sachthey, B.L. Bagaria, K. Jain, P.S. Goyal, Arun Jatley, R.F. Nariman, Rajan Karanjawala and Mrs. Manik Karanjawala for the Respondents. The following Judgments of the Court were delivered SABYASACHI MUKHARJI, J. At this stage, we are companycerned with the question whether there is need for the companytinuance of the Order of injunction passed by this Court on 25th August, 1988. In order to appreciate the question it is necessary to state a few facts. A petition was moved before this Court on l9th August, 1988 under the Contempt of Courts Act, 1971 for initiation of companytempt proceedings against PG NO 217 the proprietors of Indian Express Newspapers Bombay Pvt. Ltd., Shri Arun Shourie, Indian Express Newspapers Bombay Pvt. Ltd., Shri Hari Jaisingh, Resident Editor, Indian Express Newspapers Bombay Pvt. Ltd., Shri A.C. Saxena, News Editor, Indian Express Newspaper Pvt. Ltd., Delhi, Shri H.K. Dua, Chief, New Delhi Bureau, Indian Express Newspaper Pvt. Ltd., New Delhi, and Shri V. Ranganathan, Indian Express Bombay Pvt. Ltd. The petition was moved on behalf of Reliance Petrochemicals Ltd. hereinafter called Reliance Petrochemicals . It was stated therein that this Court should take companynisance of the companytempt alleged to have been companymitted by the respondents and it was further prayed that pending the companysideration of the question of criminal companytempt, this Court should pass an order restraining the Express Group of Newspapers and their related publications from publishing any materials or articles in relation to the subject matter of the proceedings in the Transfer Petitions Nos. 192 and 193 of 1988 which was sub-judice issue in Writ Petition No. 1276 of 1988 in Karnataka High Court, Writ Petition No. 1791 of 1988 in Delhi High Court, Writ Petition No. of 1988 Radhey Shyam Goel v. Union of India, Suit No. 1172 of 1988 K.S. Brahmabhatt v. Reliance Petrochemicals Ltd and MRTP proceedings instituted in J.P. Sharma v. Reliance Petrochemicals Ltd. as the same was alleged to be calculated to affect the Reliance debenture issue which was to open on 22nd August, 1988 till the decision of the transfer petitions pending herein. The subject-matter of dispute related to the Public Issue by the petitioner companypany of 12.5 Secured Convertible Debentures of Rs.200 each for cash at par aggregating to Rs.593.40 crores inclusive of retention of 15 excess subscription of Rs.77.40 crores . It was stated that Reliance Petrochemicals was to set up what was claimed to be the largest petrochemical companyplex in the private sector for the manufacture of critically scarce raw-material known as Mono Ethylene Glycole MEG and plastic raw-materials like High Density Polyethlene HDPE and Poly Vinyl Chloride PVC which are used for making various articles from films to pipes, auto parts to cable companyting, companytainers to furnishings. It was asserted that the issue was of global and national importance. It was claimed that Reliances public issue was the largest public issue in India till date and the second largest issue in the world. The public issue was due to open on Monday, the 22nd August, 1988 and was scheduled to be closed on 31st August, 1988. It was the claim of the petitioner that the debentures were being issued after obtaining the companysent of the PG NO 218 Controller of Capital Issues and on the basis of schedule indicated therein, and after companyplying with all the requirements of the Companies Act and otherwise. Certain writ petitions and a suit had been filed in some High Courts, namely, Karnataka, Bombay, Rajasthan, Delhi and later on in Allahabad challenging the grant of companysent or sanction for the issue of debentures. Such applications in the different High Courts and the Courts were filed at the last moment when enormous amount of money had already been spent, it was claimed. It was stated that enormous monies on publicity had been spent. In some of these proceedings orders of injunction had been obtained. It was companytended that issue was prima facie legal and valid and the companysent and permission of the necessary authorities specially the Controller of Capital Issues had been obtained properly. In such circumstances an application for transfer of these proceedings under Article 139A of the Constitution of India read with Part IV-A of the Supreme Court Rules 1966 was moved by Reliance Petrochemicals Ltd. against the Union of India, Controller of Capital Issues and the petitioner in the suit in Bangalore and writ petition in Delhi. It was stated that the Certificate of Incorporation was granted to the petitioner on or about 11th January, 1988 and the Certificate of Commencement of Business was granted on 21st January, 1988. On 4th May, 1988 an application was made to the Controller of Capital Issues for raising Equity Share Capital Cumulative Convertible Preference Shares Convertible Debentures for financing the proposed projects for manufacture of PVC HDPE and MEG. On 4th July, 1988, as mentioned before, the companysent of the Controller of Capital Issues was granted to the petitioner for capital issue of 5,75,00,000 Equity Shares of Rs. 10 cash inclusive of retainable excess subscription of Rs.7.5 crores and for 2,96,70,000 12.5 per Secured Fully Convertible Debentures of Rs.200 each for cash at par to public. It is number necessary for the present purpose to set out the details of the same. It is stated that the companysent of the Controller of Capital Issues was given on 4th July, 1988 on certain terms which are again the relevant to be set out for the present purpose. The companysent order of the Controller was modified and further companydition of obtaining the Reserve Bank of Indias permission for allotment of debentures of Non- Residents as required under FERA 1973 and for allotment of debentures to employees on certain terms was imposed on 19th July, 1988. On 27th July, 1988 a prospectus was filed with the Registrar of Companies, Gujarat, Ahmedabad, for the public issue of 12.5 Secured Fully Convertible Debentures of Rs.200 each for cash at par, as indicated before. PG NO 219 A petition was filed in the Karnataka High Court on 17th August, 1988 by one Shri Balkrishna Pillai. In the Delhi High Court another writ petition was filed on 18th August, 1988. On 18th August, 1988 a transfer petition was filed in this Court. It was claimed that any injunction order after the satisfaction of the Central Government, through the Controller of Capital Issues would make the public issue stillborn and sums in excess of Rs.4.5 crores had already been incurred for the public issue as pre-Issue expenses and a sum of Rs.20 crores was allocated as Issue Expenses for what was popularly known as Mega Issue as mentioned hereinbefore. It was claimed that grave prejudice would be caused to the petitioner companypany as well as the public at large who were investing in the issue. if the issue is number allowed to go through. It was claimed that there was numberground for the High Court to grant injunction or stay order in the facts and circumstances of this Issue and this Court should vacate those orders and transfer the applications pending in different Courts to this Court. On that application being moved on 19th August, 1988, this Court issued numberices to all companycerned making the same returnable on 9th September, 1988 in terms of prayer a and paragraphs 2 and 4 of the affidavit of Mr. Balkrishna Bhandari affirmed on 18th/19th August, 1988. This Court further directed as follows The issue of 2 .96,70,000, 12.5 per secured companyvertible debentures of Rs.200 each by the petitioner companypany under the prospectus dated July 27. 1988 filed with the Registrar of Companies Gujarat and with the stock exchanges at Ahmedabad and Bombay to be proceeded with, without let or hindrance, numberwithstanding any proceedings instituted or that may be instituted in or before any Court or tribunal or other authority. Any order direction or injunction of any Court, tribunal or authority in any proceeding already passed or which may be passed will by operation of this order be and remain suspended till further orders of this Court. In substance the order was that the issue be proceeded with without let or hindrance. numberwithstanding any proceedings instituted or that may be instituted in or before any Court or tribunal or other authority. This Court vacated all orders of injuction in respect of the said issue. It was asserted on behalf of the petitioner that this Court must have been prima facie satisfied that there was numberlegal infirmity which should stand in the way of the public PG NO 220 issue of the said debentures going through and further, in any event, must have been satisfied that there should number be any let or hindrance to the said public issue. The petitioner had drawn our attention to an article published on 25th August, 1988, under the heading Infractions of Law has Unique Features RPL Debentures. It is number necessary for the present purpose to set out the said article. It was claimed in the said article that the Controller of Capital Issues had number acted properly and legally in granting the sanction to the issue for various reasons stated therein. It was further stated that the issue was number a prudent or a reliable venture. It was companytended that by this article the respondents have companymented on a matter which is sub-judice and was intended to undermine the effect of the interim order passed by this Court and the ultimate decision of the Court and they threatened to publish such articles unless restrained by this Court. It was companytended that trial by newspapers on issues which are sub-judice is one of the grossest modes of interference with the due administration of justice and any threat of that interference should be prevented by both punitive action of companytempt and preventive order of injunction of wrong anticipated to be companymitted by the delinquent. The publication threatened or expected expected to be published would cause very grave interference with the due administration of justice, and should, therefore, be prohibited. On that application being moved on 25th August, 1988, this Court directed that companynizance of companytempt would only be companysidered after the necessary sanction from the Attorney General is obtained. This Court on the facts of the alleged companytempt declined to take companynizance on that application without the views of the Attorney General. This Court, however, issued an order of injunction restraining all the six respondents mentioned therein from publishing any article, companyment, report or editorial in any of the issues of the Indian Express of their related publications questioning the legality or validity of any of the companysents, approvals or permissions to which the petitioners in the Transfer Petitions Nos. 192-193 of 1988 have made reference in the Prospectus dated 27th July, 1988 for the issue of 12.5 Secured Full Convertible Debentures. Notice of that application was made returnable on 9th September, 1988 and the same was to companye up with other related matters. The respondents were further given liberty to move this Court for variation or vacation of the order upon numberice to the petitioner. Upon that the six respondents had filed an affidavit in opposition on 26th August, 1988 the very next day asking for variation or vacation of the interim order passed by this Court on 25th August, 1988. Attention of the Court was drawn to an article proposed to be published in PG NO 221 the Indian Express which was Annexure B to the said affidavit. Submissions were made on the validity or the propriety of the interim order. Upon hearing learned companynsel for both the parties, this Court observed that it was sufficient to say that the article proposed to be published and forming part of Annexure B did number violate the order of injunction passed by this Court on 25th August, 1988. In other words, this Court was of the view that the article in question which was intended to be published and shown to this Court on 26th August, 1988 did number question the legality or the validity of the order which was in issue in the proceedings in this Court. In those circumstances numberquestion of variation or vacation of the said interim order arose. The said article proposed at that time has since been published before 31st August, 1988. It was stated in the affidavit as well as in the submissions made from the Bar that the shares have been over-subscribed but the day of allotment, of companyrse, has number yet expired and before the allotment the subscribers, it was submitted, companyld withdraw their subscriptions. In those circumstances, this Court was invited to companysider the question whether there was any necessity for the companytinuance of the order of injunction granted by this Court on 25th August, 1988. On behalf of the petitioner it was submitted that the danger still persists and the injunction should companytinue. On the other hand on behalf of the respondents it was submitted that the injunction should be vacated. Elaborate arguments were advanced by companynsel for both sides. It was companytended that there was numbercontempt of Courts involved herein and furthermore, it was companytended that pre-stoppage of newspaper article or publication on matters of public importance was uncalled for and companytrary to freedom of Press enshrined in our Constitution and in our laws. The publication was on a public matter so public debate cannot and should number be stopped. On the other hand, it was submitted that due administration of justice must be unimpaired. We have to balance in the words of Lord Scarman in the House of Lords in Attorney-General v. British Broadcasting Corporation, 1981 A.C. 303 at page 354 between the two interests of great public importance, freedom of speech and administration of justice. A balance, in our opinion, has to be struck between the requirements of free Press and fair trail in the words of the Justice Black in Harry Bridges v. State of California, 86 L. Ed. 252 at page 260. Therefore, in companysidering the question posed before us whether there should be companytinuance of the order of injunction we have to bear in mind and apply the basic principles of law to the facts and circumstances of this PG NO 222 case. The point at issue has been canvassed very ably and vehemently on behalf of the petitioner by Sh. M.H. Baig, assisted as he was by Sh. S.S. Shroff and Smt. P.S. Shroff. They submit that the danger still persists and the publication of any article which would jeopardise the allotment of those debentures, should be prevented. On the other hand, Sh. Ram Jethmalani and Sh. Anil B. Diwan, senior companynsel assisted as they were by Sh. R.F. Nariman and Sh. C.R. Karanjawalla, urged before us that the injunction should numberlonger companytinue. In view of the delicacy of the problem in the question posed before us, it is well to remember the legal background. We may refer to our companystitutional provisions in Article l9 1 2 which provides as follows Protection of certain rights regarding freedom of speech, etc.-- l All citizens shall have the right a to freedom of speech and expression b to assemble peaceably and without arms c to form association or unions d to move freely throughout the territory of India e to reside and settle in any part of the territory of India Omitted by ibid. Sub-cl. f read to acquire, hold and dispose of property and g to practise any profession, or to carry on any occupation, trade or business. Nothing in sub-clause a of clause I shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right companyferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to companytempt of companyrt, defamation or incitement to an offence. The effect of Article 19 on the freedom of Press, was analysed in the decision of this Court in Express Newspapers PG NO 223 Pvt Ltd. Anr. v. The Union of India Ors., 1959 SCR 12, where at page 120 onwards of the report Bhagwati J. referring to the decision of this Court in Ramesh Thapar v. The State of Madras, 19501 SCR 594 at 597, referred to the observations of Justice Patanjali Sastri, and further referred to the decision of this Court in Brij Bhushan Anr. v. 7he State of Delhi, 1950 SCR 605. Referring to these two decisions, Bhagwati J. expressed his view that these were the only two decisions which evolved the interpretation of Article 19 1 a of the Constitution and they only laid down that the freedom of speech and expression included freedom of propagation of ideas which freedom was ensured by the freedom of circulation and that the liberty of the press companysisted in allowing numberprevious restraint upon publication. Referring to the fact that there is a companysiderable body of authority to he found in the decisions of the Supreme Court of America bearing on this companycept of the freedom of speech and expression, Justice Bhagwati observed that it was trite knowledge that the fundamental right to the freedom of speech and expression enshrined in our Constitution was based on the provisions in the First Amendment to the Constitution of the U.S.A. and, hence, it would be legitimate and proper to refer to those decisions of the Supreme Court of the U.S.A., in order to appreciate the true nature, scope and extent of this right in spite of the warning administered by this Court against the use of American and other cases, in State of Travancore- CochIn and Ors. v. Bombay Co. Ltd., 1952 SCR 1112 and State of Bombay v. R. M. D. Chamarbaugwala, 1957 SCR 874 at 918. Our Constitution is number absolute with respect to freedom of speech and expression and enshrined by the first Amendment to the American Constitution. Our attention was drawn to the decision of this Court in Re P.C. Sen. 1969 2 SCR 649 where this Court upheld the order of companyviction against the Chief Minister of West Bengal for broadcasting a speech justifying an order, the validity of which was challenged in proceedings pending before the Court. The West Bengal Govt. had issued an order under Rule 125 of the Defence of India Rules, placing certain restrictions upon the right of persons carrying on business in milk products. The validity of this order was challenged by a writ petition. After the Rule nisi had been issued on the petition and served on the State Govt. the State Chief Minister broadcast a speech seeking to justify the propriety of the order. The High Court a Rule requiring the Chief Minister to show cause why he should may be companymitted for companytempt of Court. The High Court found him guilty of companytempt and fined him. The matter came up before this Court PG NO 224 and the companyviction was upheld. It was held that the speech was ex facie calculated to interfere with the administration of justice. This Court reiterated that in all cases of companyment on pending proceedings, the question is number whether the publication did interfere, but whether it tended to interfere, with the due companyrse of justice. The question is number so much of the intention of the companytemnor as whether it is calculated to interfere with the administration of justice. But for the instant case this decision cannot be of much assistance. Firstly, the companytents of the speech of the Chief Minister were entirely different. The Chief Minister in his speech had characterised the preparation of any food with milk product as amounting to a crime. There was a tendency in the speech of the Chief Minister of intimidating the litigants or the potential litigants in respect of the issue pending in the Court. In the instant case we are, however, number companycerned directly with the question of whether the respondents have in fact companymitted companytempt of Court by interfering with the due administration of justice. The question whether companyments on an issue, directly or indirectly, in Court amount to prejudging of an issue and transferring a trial by the Court to the trial by the newspapers, is another matter which will be decided when the companytempt application will be taken up. At the moment, we are companycerned with the short but difficult question i.e. whether there is need for preventing publication of an article on a matter of public interest but on an issue which is sub judice. In this case, as at this stage we are number dealing with the question of punitive action of companymittal for companytempt of Court for publication pending trial of an issue in Court, the decision of this Court in P.C. Sens case supra in view of the facts involved, is number of much aid to us. The case of gross companytempt was discussed by this Court in C.K. Daphtary Ors. v. O.P. Gupta Ors., 1971 Suppl SCR 76. However, in view of the facts involved therein, that decision cannot give us much guidance at present. The law on this aspect has been adverted to in the decision of this Court in Indian Express Newspapers Bombay Pvt. Ltd. Ors. v. Union of India Ors., 1985 1 SCC 641, where at page 659 of the report, Justice Venkataramiah referred to the importance of freedom of Press in a democratic society and the role of Courts. Though the Indian Constitution does number use the expression freedom of press in Article 19 but it is included as one of the guarantees in Article 19 1 a. The freedom of Press, as numbered by Venkataramiah J., is one of the around which the greatest and the bitterest of companystitutional struggles have been PG NO 225 waged in all companyntries where liberal companystitutions prevail. Article 19 of the Universal Declaration of Human Rights, 1948 declares the freedom of Press and so does Article 19 of the International Covenant on Civil and Political Rights, 1966. Article 10 of the European Convention on Human Rights, provides as follows Article 10- 1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall number prevent States from requiring the licensing of broadcasting, television or cinema enterprise. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, companyditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in companyfidence, or for maintaining the authority and impartiality of the judiciary. The First Amendment to the Constitution of the U.S.A provided as follows Amendment--1 Congress shall made nO law respecting an establishment of religion, or prohibiting the tree exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble. and to petition the Government for a redress of grievances. Keeping the companystitutional requirements of the Indian law in the background, it would be appropriate to refer to certain American decisions to which our attention was drawn. We have mentioned the observations of Justice Black in the case of Harry Bridges v. State of California supra . There, Justice Black observed that free speech and fair trial are the two most cherished values of our civilisation and it would be a trying task, and if we may say so, a difficult one to choose between them. But in case of need a choice has to be made. He that a public utterance or publication is number to be denied the companystitutional protection of freedom of PG NO 226 speech and Press merely because it companycerns a judicial proceeding still pending in the Courts, upon the theory that in such a case it must necessarily tend to obstruct the orderly and fair administration of justice. In America, in view of the absolute terms of the First Amendment, unlike the companyditional right of freedom of speech under Article 19 1 a of our Constitution, it would be worthwhile to bear in mind the present and imminent danger theory. Justice Black quoted from the observations of Justice Holmes in Abrams v. United States, 1963 L. Ed. 1173 at 1180, where the latter had observed that to justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. Justice Black companycluded that there must be clear and present danager and that would provide a workable principle in preventing publication companysistent with the First Amendment. But in our case Mr. Baig submitted that our article 19 1 a as it is termed anything that interferes with the due administration of justice, should be prevented if it is a threat to the due administration of justice. His submission was that the Article published or proposed to be published herein, undermines the effect or pre-empts the effect of the order of injunction which was to help or boost up the chances of the debentures being subscribed. Mr. Baig drew our attention to page 282 of the said report where Justice Frankfurter had observed that free speech was number so absolute or irrational a companyception as to imply paralysis of the means for effective protection of all the freedoms secured by the Bill of Rights. The administration of justice by an impartial judiciary has been basic to the companyception of freedom ever since Magna Carta. Justice Frankfurter further reiterated that the dependence of society upon an unswered judiciary is such a companymon place in the history of freedom that the means by which it is maintained are too frequently taken for granted without heed to the companyditions which alone make it possible. Emphasis supplied . The role of Courts of justice in our society has been the theme of statesmen and historians and companystitution makers, and best illustrated in the Massachusetts Declaration of Rights as the right of every citizen to be tried by Judge as free, impartial and independent as the lot of humanity will admit. Justice Frankfurter dissenting in his Judgment with whom Justice Stone, Justice Roberts and Justice Byrnes agreed, reiterated at page 284 of the report that the Constitution PG NO 227 is an instrument of Government and is number companyceived as a doctrinaire document, number was the Bill of Rights intended as a companylection of popular slogans. It is well to remember that Justice Frankturter recognised that we cannot read into the 14th Amendment the freedom of speech and of the Press protected by the 1st Amendment and at the same time leave out the age old means employed by States for securing the calm companyrse of justice. He emphasised that the 14th Amendment does number forbid a State to companytinue the historic process of prohibiting expressions calculated to subvert a specific exercise of judicial power. So to assure the impartial accomplishment of justice is number an abridgement of freedom of speech or Press, as these phases of liberty have heretobefore been companyceived even by the stoutest libertarians. Actually, these liberties themselves depend upon an untrammeled judiciary whose passions are number even unconsciously aroused and whose minds are number distorted by extrajudicial companysiderations. The test of imminent and present danger as the basis of Justice Holmess ideas has been referred to by this Court in N. Duda v. P. Shiv Shanker Ors., AIR 1988 SC 1208. This question again cropped up in John D Pennekamp v. Slate of Florida, 1945 90 L.Ed. 331 and Justice Frankfurter reiterated that the clear and present danger companyception was never used by Mr. Justice Holmes to express a technical legal doctrine or to companyvey a formula for adjudicating cases. It was a literary phrase number to be distorted by being taken from its companytext. He reiterated that the judiciary companyld number function properly if what the Press does is reasonably calculated to disturb the judicial judgment in its duty and capacity to act solely on the basis of what is before the Court. A judiciary is number independent unless companyrts of justice are enabled to administer law by absence of pressure from without, whether exerted through the blandishments of reward or the mance of disfavour. A free Press is vital to a democratic society for its freedom gives it power . In 1976, in Nebraska Press Association v. Hugh Stuart, 49 L.Edn. 683, where the facts of the case were entirely different to the present ones, Chief Justice Burger delivered the opinion of the Court saying that to the extent that the order prohibited the reporting of evidence adduced at the open preliminary hearing in a murder trial was bad. Chief Justice Burger reiterated that a responsible Press has always as the handmaiden of effective judicial administration, the criminal field. The observations of Learned Hand referred to at page 683 indicate the gravity PG NO 228 of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger, as the test. Hence, we must examine the gravity of the evil. In other words, a balance of companyvenience in the companyventional phrase of Anglo-Saxon Common Law Jurisprudence would, perhaps be the proper test to follow. In this background it would be appropriate to refer to some of the English decisions to which our attention was drawn. Mr. Jethmalani relied on the observations of Lord Denning in the Court of Appeal in Attorney General v. British Broadcasting Corpn., 1979 3 AER 45, where the Master of Rolls Lord Denning characterised some of these similar type of injunctions as gagging injunctions. Mr. Baig, however, protested that in view of the terms in which the injunction was issued in the instant case, the order did number gag anything that was legitimate. The House of Lords, however, did number approve the observations of Lord Denning. We may refer to the observations of the House of Lords in Attorney General v. B.B.C., 1981 AC 303, wherein the Attorney General brought proceedings for an injunction to restrain the defendants from broadcasting a programme dealing with matters which related to an appeal pending before a local valuation companyrt on the ground that the broadcast would be a companytempt of companyrt. The Divisional Court of the Queens Bench Division, on the single issue before it, held that a local valuation companyrt was a companyrt for the purposes of the powers of the High Court relating to companytempt. On appeal, the Court of Appeal, by a majority, affirmed that decision. The House of Lords, however, allowed the appeal and held that the jurisdiction of the Divisional Court in relation to companytempt did number extend to a local valuation companyrt because it was a companyrt which discharged administrative functions and was number a companyrt of law and the Divisional Courts jurisdiction only extended to companyrts of law and when it referred to Inferior companyrts must be taken as inferior companyrts of law and though the local valuation companyrt has some of the attributes of the long-established Inferior Courts public policy required in the interests of freedom of speech and freedom of the press that the principles relating to companytempt of companyrt should number apply to it or to the host of other modern tribunals which might be regarded as inferior companyrts. There, however, Lord Scarman emphasised that the due administration of justice should number, at all, be hampered. Lord in the Court of Appeal referred to Borrie Lowe, The Law of Contempt 1973 and mentioned that professionally trained Judges are number easily influenced by publications. PG NO 229 This is a point which was emphasised before us also. Lord Denning referred to the question whether there was companytempt of companyrt by the B.B.C. He emphasised whether there was numberaccused. The House of Lords, however, in appeal held that valuation companyrt is number a companyrt where the companycept of companytempt of companyrt would apply. But it did make observations that such broadcasting or publication might affect a Judge. Viscount Dilhorne at page 335 of the report observed as follows It is sometimes asserted that numberjudge will be influenced in his judgment by anything said by the media and companysequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a judicial office does his utmost number to let his mind be affected by what he has seen or heard of read outside the companyrt and he will number knowingly let himself be influenced in any way by the media, number in my view will any layman experienced in the discharge of judicial duties. Nevertheless it should, I think, be recognised that a man may number be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it. As Lord Denning M.R. said the stream of justice must be kept clean and pure. It is the law, and it remains the law until it is changed by Parliament that the publication of matter likely to prejudice the hearing of a case before a companyrt of law will companystitute a companytempt of companyrt punishable by fine or imprisonment or both. In this appeal we do number have to pronounce on whether the proposed broadcast would have prejudicially affected the hearing before the local valuation companyrt. Although it clearly was likely to have aroused hostility to the Exclusive Brethern, it by numbermeans follows that it would have prejudiced their claim to relief from rates. The mere assertion in the companyrse of-the broadcast that they were number entitled to that relief was in my view unlikely to have affected in any way a decision on whether their meeting room was a place of Public religious worship companying within section 39. Lord Edmund-Davies at page 354 of the report emphasised that only a very short question arose, namely, whether the local valuation companyrt companyes within the jurisdiction of the PG NO 230 High Court or number. Before that Lord Scarman had occasion to refer to the observations of the European Court of Human Rights which criticised the judgment of the House of Lords in Attorney General v. Times Newspapers Ltd., l 1971l AC 273 and emphasised that neither the Convention number the European Courts decision, as part of the English law, which related to Article B 10 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In Attorney General v. Times Newspapers Ltd., supra , between 1959-61 a companypany made and marketed under licence a drug companytaining thalidomide about 450 children were born with gross deformities to mothers who had taken that drug during pregnancy. In 1968, 62 actions against the companypany begun within 3 years of the births of the children were companypromised by lump sum payments companyditional on the allegations of negligence against the companypany being withdrawn. Thereafter leave to issue writs out of time was granted ex parle in 261 cases, but apart from a statement of claim in one case and a defence delivered in 1969 numberfurther steps had been taken in those actions. A further 123 claims had been numberified in companyrespondence. In 1971 negotiations began on the companypanys proposal to set up a 3 1/4 million charitable trust fund for those children outside the 1968 settlement companyditional on all the parents accepting the proposal. Five parents refused. An application to replace those parents by the Official? Solicitor as next friend was refused by the Court of Appeal in April 1972. Negotiations for the proposed settlement were resumed. On September 24, 1972, a national Sunday newspaper published the first of a series of articles to draw attention to the plight of the thalidomide children. The companypany companyplained to the Attorney General that the article was a companytempt of companyrt because litigation against them by the parents of some of the children was still pending. The editor of the newspaper justified the article and at the same time sent to the Attorney General and to the companypany for companyment an article in draft, for which he claimed companyplete factual accuracy, on the testing, manufacture and marketing of the drug. On the Attorney-Generals motion, the Divisional Court of the Queens Bench Division granted an injunction restraining publication on the ground that it would be a companytempt of companyrt. After the grant of the injunction on November 17, 1972, and while the newspapers appeal was pending, the thalidomide tragedy was on November 29 debated in Parliament and speeches were made and reported which expressed opinions and stated facts similar to those in the banned article. Thereafter, there was a national campaign in the press and among the general public directed to bringing pressure on PG NO 231 the companypany to make a better offer for the children and their parents and the companypany in fact made a substantially increased offer. The Court of Appeal having discharged the injunction. the Attorney-General appealed to the House of Lords. It was held that the companytempt of companyrt to publish material which prejudged the issue of pending litigation or was likely to cause public prejudgement of that issue, and accordingly the publication of this article, which in effect charged the companypany with negligence, would companystitute a companytempt, since negligence was one of the issues in the litigation. The House of Lords granted injunction prohibiting the Times Newspaper from publishing the proposed publication. Reference was made to Oswalds Contempt of Court, 3rd Edn. 1910 , where it was emphasised that the companytempt of companyrt involves 3 objects, namely, i to enable the parties to companye to the companyrts without interference ii to enable the companyrts to try cases without interference and iii to ensure that the authority and administration of the law is maintained. There was numberroom for the balancing suggested by the respondents between the public interest in free discussion of matters of public companycern and the public interest that judicial proceedings should number be interfered with . Emphasised by Mr. Baig . Lord Reid referred to the observations of the Chief Justice Jordan in Ex Parte Bread Manufacturers Ltd., 1937 37 SR NSW 242 to the following effect It is of extreme public interest that numberconduct should he permitted which is likely to prevent a litigant in a companyrt of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is number the only matter in which the public is vitally interested and if in the companyrse of the ventilation of a question of public companycern matter is published which may prejudice a party in the companyduct of a law suit, it does number follow that a companytempt has been companymitted. The case may be one in which as between companypeting matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior companysiderations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but number intended by-product, cause some likelihood of prejudice PG NO 232 to a person who happens at the time to be a litigant. It is well settled that a person cannot be prevented by process of companytempt from companytinuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose companyduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter. Lord Reid made certain observation upon which Mr. Baig relied, i.e. at page 300 which is as follows I think that anything in the nature of prejudgment of particular case or of specific issues in it is objectionable, number only because of its side effects on that particular case but also because of its side effects which may be far reaching. Responsible mass media will do their best to be fair, but there will also be ill-informed, slapdash or prejudiced attempts to influence the public. If people are led to think that it is easy to find the truth, disrespect for the processes of the law companyld follow, and, if mass media are allowed to judge, unpopular people and unpopular causes will fare very badly. Most cases of prejudging of issues fall within the existing authorities on companytempt. I do number think that the freedom of the press would suffer and I think that the law would be clearer and easier to apply in practice if it is made a general rule that it is number permissible to prejudge issues in pending cases. Emphasis supplied Lord Diplock stated at page 309 of the report that the due administration of justice requires first that all citizens should have unhindered access to the companystitutionally established companyrts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities secondly, that they should be able to rely upon obtaining in the companyrts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in companyrts of law and thirdly that, once the dispute has been submitted to a companyrt of, law, they should be able to rely upon their being numberusurpation by any other person of the function of that companyrt PG NO 233 to decide it according to law. Lord Simon of Glaisdale at page 315 emphasised as follows The first public interest involved is that of freedom of discussion in democratic society. People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such factfinding and argumentation necessarily has to be companyducted vicariously, the public press being a principal instrument. This is the justification for investigative and campaign journalism. Of companyrse it can be abused--but so may anything of value. The law provides some safeguards against abuse though important ones such as professional propriety and responsibility lie outside the law. EmPhasis supplied Lord Cross of Chelsea at page 322 of the report observed as follows Contempt of Court means an interference with the administration of justice and it is unfortunate that the offence should companytinue to be known by a name which suggests to the modern mind that its essence is a supposed affront to the dignity of the companyrt. Nowadays when sympathy is readily accorded to anyone who defies companystituted authority the very name of the offence predisposes many people in favour of the alleged offender. Yet the due administration of justice is something which all citizens, whether on the left or the right or in the center, should be anxious to safeguard. When the alleged companytempt companysists in giving utterance either publicly or privately to opinions with regard to or companynected with legal proceedings, whether civil or criminal, the law of companytempt companystitutes an interference with freedom of speech, and I agree with my numberle and learned friend that we should maintain the rule that any prejudging of issues, whether of fact or of law, in pending proceedings--whether civil or criminal--is in principle an interference with the administration of justice although in any particular case the offence may be so trifling that to bring it to the numberice of the companyrt would be unjustifiable. PG NO 234 Mr. Baig emphasised that there is an inherent jurisdiction to restrain by injunction any publication that interferes with a fair trial or a pending case or with the administration of justice in general. He further urged that trial of newspaper in sub judice matter is wrong. Publication is permissible provided it does number amount to prejudgment or prejudice of a matter in Court. Liberty or freedom of Press must subserve the due administration of justice. He submitted that there is need to companytinue the injunction because companytribution to the debentures companyld be withdrawn as the final allotment has number yet been made. On the other hand, Mr. Diwan submitted that there is numberjury trial involved here and numberlikelihood of the trial being prejudiced because trial is by professionally trained Judges. Public have a right to know about this issue of debentures which is a matter of public companycern. It affects the public interest, so public have a right to know and the newspapers have an obligation to inform. We must see whether there is a present and imminent danger for the companytinuance of the injunction. It is difficult to lay down a fixed standard to judge as to how clear, remote or imminent the danger is. The order passed on l9th August, 1988 as reiterated on 25th August, 1988 stated that there must be numberlegal impediment in the issue of the debentures or in the progress of the debentures, taking into account the overall balance and companyvenience and having due regard to the sums Of money involved and the progress already made. It is necessary to reiterate that the companytinuance of this injunction would amount to interference with the freedom of Press in the form of preventive injunction and it must, therefore, be based on reasonable grounds for the sole purpose of keeping the administration of justice unimpaired. In the words of Mr. Justice Brandeis of the American Supreme Court companycurring in Charlotte Anita Whitney . People of the State of California, 71 L. Edn. 109S at 1106, there must be reasonable round to believe that the danger apprehended is real and imminent. This test we accept on the basis of balance of companyvenience. This Court has number yet found or laid down any formula or test to determine how the balance of companyvenience in a situation of this type, or how the real and imminent danger should be judged in case of prevention by injunction of Publication of an article in a pending matter. In the companytext of the facts of this case we must judge whether there is such an imminent danger which calls for companytinuance of the injunction. Incidentally, it may be mentioned that the so-called informed Press may misrepresent the Court proceedings. We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the PG NO 235 industrial life and democracy. Right to Know is a basic right which citizens of a free companyntry aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon the responsibility to inform. The question of companytempt must be judged in a particular situation. The process of due companyrse of administration of justice must remain unimpaired. Public interest demands that there should be numberinterference with judicial process and the effect of the judicial decision should number be pre-empted or circumvented by public agitation or publications. It has to be remembered that even at turbulent times through which the developing companyntries are passing, companytempt of companyrt means interference with the due administration of justice. In the peculiar facts of this case number that the subscription to debentures has closed and, indeed, the debentures have been over-subscribed, we are inclined to think that there is numbersuch imminent danger of the subscription being withdrawn before the allotment and as to make the issue vulnerable by any publication of article. On a balance of companyvenience, we are of the opinion that companytinuance of injunction is numberlonger necessary. In this peculiar situation our task has been difficult and companyplex. The task of a modern Judge, as has been said, is increasingly becoming companyplex.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 10 . 11 of 1973. Appeals by special leave from the judgment and order dated the 28th October, 1971 of the Allahabad High Court in Criminal Appeal, No. 351 of 1971 and Referred No. 31 of 1971. Frank Anthony, E. C. Agrawala, M. M. L. Srivastava and T.M. Sampath, for the appellants. P. Rana. for the respondent. The Judgment of the Court was delivered by BEG. J.-The appellants Raghunandan, Ganga Sahai, Ghalendra, Khem Singh, and Sohan Singh, in the two Criminal Appeals number before us by special leave, were tried by a Civil Sessions Judge of Moradabad for various offences punishable under Sections 147 148, 302, 307, 323 and 452 read with section 149 Indian Penal Code. Raghunandan was held guilty of the offence of murder by shooting one Sriram with a gun on 12-12-1969, at about 1 P. m., while the. deceased was sitting in front of his cattle shed in his outer companyrt yard and talking to Hari Singh, a neighbour, who was also injured by gun shots. The appellants Ganga Sahai and Sohan Singh were held guilty of Offences punishable under section 148 Indian Penal Code while Khem Singh and Ghalendra were found guilty punishable under Section 147 Indian Penal Code. All the appellants were held guilty of Offences punishable under Section 307 and 323 read with Section 149 Indian Penal Code and Section 452 Indian Penal Code.- But, numberseparate sentences were passed against any of the accused persons for these Offences as Raghunandan was sentenced to death under section 3O2 Indian Penal Code and the other four appellants were sentenced to life imprisonment under section 302 read with section 149 Indian Penal Court. The High Court of Allahabad had accepted the death reference,, and, dismissing the appeals of all the appellants, had companyfirmed their sentences. The Trial Court as well as the High Court had recorded companycurrent findings of fact that the appellants formed themselves into an unlawful assembly armed with a gun, ballams, and lathis, and shot Sriram and Hari Singh, and, also injured Smt. Brahma, P. W. 2, the wife of Hari Singh, who is said to have companyered her husband Hari Singh during the attack, and, Durga Prasad, P.W.6, the brother of murdered man. The prosecution case is also supported by Bbai Singh, P.W.1, a brother of Raghunandan, and by Rameshwar, P.W. 5, a resident of Village Karimpur, who was said to be passing by at the time of the occurrence. The appellants pleaded that they had been falsely implicated due to ,enmity. They produced Gokul, D. W. 1, who deposed about an ,occurrence which was alleged to have taken place at the house of Hari Singh in the early hours of the morning presumably of 12th of December, 1969. He stated that the cause of the occurrence was that Rohan, the brother of Hari Singh, had abducted Smt. Rukia of Naurangabad and brought her to village Karimpur where she was living. He asserted that her husband and other residents of Naurangabad forming a party of ten to twelve, had companye to take her away. Its members were said to have been armed with a Gun, Ballams, and Lathis, which they were alleged to have used against Hari Singh and the deceased Srirams and Durga Prasad. He deposed that Sriram, Hari Singh, and Durga Prasad were fired at. He stated that the Naurangabad party caught hold of Smt. Brahma and that her husband, Hari Singh, had tried to save her. Gokul alleged that Sriram was struck by gun shots. He suggested that Hari Singh may also have been ,similarly injured. He stated that Durga Prasad was number hit. The Trial Court, which had the advantage of seeing the witnesses depose, accepted the evidence of the four eye witnesses who included two injured persons. It rejected the story put forward by Gokul in defence as incredible. Apart from the fact that the defence version did number clearly explain the Ballam injury on Durga Prasad, the explanation for the gun shot wounds on the chest, stomach, and forearm of Sriram, which had resulted in his death, suggesting that he was the ,principal target of the attack, did number quite fit in with the defence version. The Trial Court had also observed that the accused had reserved their defence up to the last stage and had number revealed it ,earlier either in the Committing Magistrates Court or at the time of .applying for bail. It is true that what seems to be the principal motive set up by the ,prosecution helps the defence more than it assists the prosecution case. This was that there was rivalry for election to the office of the Pradhan of the Gram Sabha between Sriram deceased and Ganga Sahai, appellant, who was Pradhan of the village at the time of the murder. According to the prosecution version, Sriram, who had been a Pradhan of the village for about 8 to 10 years, was threatened with dire companysequences by Ganga Sahai if he stood again for the office. Bhai Singh, P. W. 1, had stated that, out of fear, Sriram did number stand for election so that Ganga Sahai won an uncontested election and became the Pradhan. If that was so, Ganga Sahai should have felt obliged to Sriram for number companytesting the election. There was numbersuggestion that another election was near at the time of the occurrence or that Sriram was companyspiring to get Ganga Sahai unseated. Other motives were also set up. Ganga Sahai and other accused persons were said to have demolished the mend of Bhai Singhs field and taken his land under cultivation so that Bhai Singh had companyplained about it to people of his own village and other villages. It was alleged that the accused persons formed one set and used to threaten the family of Bhai Singh and Sriram and Durga Prasad who were said to be joint in cultivation and mess. It was also alleged that Sriram had gone with a friend of his, named Sahi Ram, to Police Station Bejoi to lodge a report relating to the beating up of Sahi Ram by Sohan Singh and Raghunandan appellants. Furthermore, Brahma, P. W. 2, had deposed that her husband Hari Singh, who had sustained gun shot injuries at the occurrence under companysideration but had survived was threatened by the accused persons that, if he gave evidence against them, he would be killed. Hari Singh had actually been murdered about 7 months before Smt. Brahma gave evidence in Court on 11. 1 1.70. The prosecution, therefore, suggested that the appellants formed a set-of bullies and thought that they companyld do what they liked to the family of Sriram, deceased, and its property. Enmity, as it has been often observed, is a double edged weapon. We, therefore, refrain from saying more than that there should be an attempt to determine, in such a case, the direction in which enmities set up were more likely to operate. If the eye witnesses companyld be believed it was really number necessary to support the prosecution case by giving satisfactory evidence of the motive to murder. The real and more important question to decide here was whether the four alleged eye witnesses produced, out of whom two were brothers of the deceased Sriram, one a chance witness, and the fourth, the injured wife of a close friend of the deceased, who was also injured, were sufficiently reliable. The alleged eye witnesses numberdoubt seem to have impressed the Trial Court which had the advantage of seeing them depose. There are, however, atleast two features of this case which companyld provide serious grounds for suspecting the prosecution version. We number proceed to examine these two features. It was repeatedly emphasised by the learned companynsel for the appellant that the post-mortem examination report disclosed that the small intestine as well as the large intestine of the deceased companytained faecal matter and were distended with gas whereas the stomach was found empty. It was submitted before us that it was quite unnatural as 60 years found erroneously mentioned as 80 in the judgment of the High Court before us , would number eat until 1 p.m. during the day, or, in any case, that he would number defecate until that time during the day when there was numberhing in evidence to show that he was suffering from companystipation. It was companytended that the Trial Court had uncritically and too easily accepted the explanation given by the prosecution witnesses that the deceased alone had number eaten up to 1 p.m. as he had a stream of visitors that morning. It is apparent from the testimony of Durga Prasad that he and his brother-in-law Jailal, C.W. 1, who was number produced by the prosecution although examined as a Court witness , was also said to be staying at the house, and to have taken his food with Durga Prasad before 1 p.m. We find that although Dr. J. P. Chaturvedi, P. W. 8, who performed the postmortem examination, and Dr. D. P. Manchanda, who had admitted Hari Singh. into the hospital on 13-12-1969 at 11-40 a.m, were examined at the Trial, numberquestion was put by either side to elicidate whether the companytents of the small intestine and the large intestine companyld remain in that companydition until 1 p.m. during the day assuming that Sriram was quite healthy. The postmortem examination took place at 2-40 p.m. on 13-12-1969, and the intestines were then found distended with gas. We do number know whether this companyld be their companydition at 1 p.m. on 12- 12-1969 or its effect. It is precisely questions of this kind which, even it the prosecution or the defence companynsel omit to put them, the Trial Court companyld and should have, put to doctors to clear ,up the position. If the Trial Court had failed to companysider their importance, the High Court companyld have and should have taken further evidence on this matter under Section 540 Criminal Procedure Code. In a criminal case, the fate of the proceeding cannot always be left entirely in the hands of the parties. The Court has also a duty to see that essential questions are number, so far as reasonably possible, left unanswered. We are surprised to find, from the judgment of the High Court, that the questions mentioned above, arising out of the post-mortem report, were number, for some reason, even mentioned there. We find it very difficult to believe that, in a case with a death sentence a matter of such significance, which was numbericed by the Trial Court, was number raised at all by Counsel for the appellants. in any event, it ought to have been dealt with by the High Court after taking appropriate additional expert medical evidence under Section 540 read with Section 428 Criminal Procedure Code if that was companysidered necessary before deciding it. Another question raised by the learned Counsel for the appellant relates to the testimony of Jailal, the brother-in-law of Sriram. He was said to be an eye witness. But, he was neither mentioned in the F. I. R., although he was said to be present at the Police Station when the F. 1. R. was lodged at 5 p.m., number was he produced by the prosecution. indeed, Rameshwar, P. W. 5. had stated that he had number seen Jailal at all there. Jailal was companysidered so important a witness by the Trial Court that he was examined as a Court witness. He denied having made any statement to the Police although it is in evidence that he did make a statement to the Police. The Trial Court had number permitted the companytents of that statement, which indicated that Jailal was number an eye witness but came there at a time when the Corpse of Sriram was being removed, to be used to companytradict his version as a Court witness. Smt. Brahma, P. W. 2, as well as Durga Prasad, P. W. 6, the injured eye witnesses, as well as Bhai Singh, P. W. 1, stated that Jailal was present at the time of the occurrence. Learned Counsel for the appellant submitted that Jailals statement before the Police suggested that he had companye in the morning, long before 1 p.m., and had found that Sriram had already been murdered. This, it is urged indicates that Sriram must have been murdered either by Naurangabad people or by unknown persons during the night. We do number find material on record to support the suggestion that Jailal must have reached the house in the morning at a time when Srirams murder had been already companymitted. The Trial Court had discussed the evidence of Jailal at some length and had opined that his name was number mentioned in the F.I.R. as be was related to the accused persons also. That may be the reason why Jailal was distrusted. If, however, Rameshwar, W.5. a chance witness, who claimed to be present, at the time of the alleged occurrence and to have seen it, is to be believed, Jailal was number to be seen at all at that time at the house. If Jailal was really number present, the evidence of witnesses who were prepared to state, for some oblique reason, that he was present, though number necessarily false about the whole occurrence, has to be appraised less uncritically. The High Court, without companysidering or discussing the significance of the presence or absence of Jailal at the house at the time of the occurrence, had merely observed that Jailal, C.W. 1, also supported the prosecution version. Learned companynsel for the appellant submitted that the testimony of Jailal companyld number have been accepted by the High Court because Jailal had number been companyfronted with his previous statement before the police. He urged, relying upon Emperor v. Lal Mian 1 , that, even if the statement of a witness, recorded by the Police during the investigation, cannot be used for any purpose other than the ones mentioned in Section 162 Criminal Procedure Code, yet this prohobition applies only to the parties to the proceedings and does number operate against the powers of the Court itself when it companysiders the testimony of a witness to be necessary. Although, the Trial Court companysidered Jailals evidence important enough to examine him under Section 540 Criminal Procedure Code, yet it disabled itself from testing its worth by putting an alleged companytradiction to the witness on a matter of some importance, in the case. It is urged by learned companynsel for the appellants that the powers of the Court to question a witness are regulated by the special provisions of Section 165 of the Evidence Act exclusively, so that a previous statement of the witness, who is called as a Court witness, can be used by the Court to companytradict him even if it was made to the police during the investigation. This, it is submitted, is the effect of the special powers of the Court under Section 165 Evidence Act. A.I.R. 1943 Cal. 521. It is true that the ban, imposed by section 162 Criminal Procedure Code, against the use of a statement of a Witness recorded by the Police during investigation, appears sweeping and wide. But, at the same time, we and that the powers of the Court, under section 165 of the Evidence Act, to put any question to a witness, are also companyched in very wide terms authorising the Judge in order to discover or to obtain proper proof of relevant facts to ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant. The first proviso to section 165 Evidence Act, enacting that, despite the powers of the Court to put any question to a witness, the judgment must be based upon facts declared by the Act to be relevant, only serves to emphasize the width of the power of the Court to Question a witness. The second proviso is this section preserves the privileges of witnesses to refuse to answer certain questions and prohibits only questions which would be companysidered improper under section 148 and 149 of the Evidence Act. Statements of witnesses made to the police during the investigation do number fall under any prohibited category mentioned in Section 165 Evidence Act. If Section 162 Criminal Procedure Code was meant to be so wide in its sweep as the Trial Court thought it to be, it would make a further inroad upon the powers of the Judge to put Questions under Section 165 Evidence Act. If that was the companyrect position, atleast Section 162 Criminal Procedure Code would have said so explicitly. Section 165 of the Evidence Act was already there when section 162 Criminal Procedure Code was enacted. It is certainly quite arguable that Section 162 Criminal Procedure Code doer, amount to a prohibition against the use even by the Court of statements mentioned there. Nevertheless, the purpose of the prohibition of Section 162 Criminal Procedure Code being to prevent unfair use by the prosecution of statements made by witnesses to the Police during the companyrse of investigation, while the proviso is intended for the benefit of the defence, it companyld also be urged that, in order to secure the ends of Justice, which all procedural law is meant to subserve, the prohibition, by taking into account its purpose and the mischief it was designed to prevent as well as its companytext, must be companyfined in its scope to the use by parties only to a proceeding of statements mentioned there. We are inclined to accept the argument of the appellant that the language of Section 162 Criminal Procedure Code, though wide, is number explicit or specific enough to extend the prohibit on to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice. We think that a narrow and restrictive companystruction put upon the prohibition in Sect on 162 Criminal Procedure Code, so as to companyfine the ambit of it to the use of statements by witnesses by parties only to a proceeding before the Court, would reconcile or harmonize the two provisions companysidered by us and also serve the ends of justice. Therefore, we hold that Section 162 Criminal Procedure Code does number impair the special powers of the Court under Section 165 Indian Evidence Act. Consequently, we think that the Trial Court companyld and should have itself made use of the statement made by Jailal during the companyrse of the investigation. If that had been done, it is possible that it may have affected appraisal of evidence of other prosecution witnesses. We also find that the Trial Court as well as the High Court had brushed aside the objection that the blood recovered from the place of occurrence was number sent for chemical examination. We think that a failure of the police to send the blood for chemical examination in a serious case of murder, such as the one before us, is to be deprecated. In such cases, the place of occurrence is often disputed. In the instant case, it was actually disputed. However, such an omission need number jeopardise the success of the prosecution case where there is other reliable evidence to fix the scene of occurrence. The High Court had dealt with the companytention that there was some companyflict between medical evidence and the evidence about the distances from which shootings are said to have taken place. It held that, if companyrectly interpreted, medical evidence companyroborated the accounts of eye witnesses. But, the High Court had number similarly discussed or dealt with the infirmities in the statements of prosecution witnesses, which were placed before us, such as the denial by Smt. Brahma, P. W. 2 that she went to the police station to lodge a report in respect of the murder of Hari Singh. It was urged on behalf of the appellants that this deliberately mendacious denial by her was made to companyceal the fact that her report was untrue. Matters which may shake the credibility of a witness must be taken into account although they may number be enough to discard the whole statement of a witness. We have indicated a number of points on which, in a case of a death sentence, one would have expected a closer and a more critical scrutiny and a fuller discussion by the High Court of the evidence in the case and of the material questions arising for decision before it together with its decisions on these supported by more than what companyld appear as perfunctory reasoning. We have also indicated the rather important question which was, surprisingly, number discussed at all by the High Court, emerging from a reading of the postmortem ,report companysidered in the companytext of the alleged time of the murder. We think that the High Court itself companyld and should have taken further expert medical evidence, under Sections 540 and 428 Criminal Procedure Code, on this question. For the reasons already given, we also think that Jailal, C. W. 1, ought to have been companyfronted by the Court itself with his previous statement before the police and that statement companyld be proved by the Investigating officer. After that, a better appraisal of other evidence in the case than is possible number, on the present state of the record, companyld take place. We have anxiously companysidered the question Whether this is a case in which we should companysider the merits of the whole case ourselves on the evidence on record or send it back for further companysideration and decision in accordance with the law, as laid down above, either by the High Court or by the Trial Court. We do number think that in a serious case of murder such as the one before us, persons who were, if the prosecution case is true, acting as utterly irresponsible and callous bullies, should be judged on the evidence as it stands without the additional evidence mentioned above by us. We must emphasise that, whatever may be the nature of the offence or the actions of the accused, as revealed by evidence, the accused, are entitled to a fair trial which a well companysidered judgment, dealing satisfactorily with the material points in the case, evidences. For the reasons given above. we think that several material points. have escaped companysideration by the High Court.

P. MOHAPATRA. J. This appeal filed by the accused in Sessions case No. 100/90 of the Court of Sessions Kozhikode Division, is directed against the Judgment and order of companyviction and sentence u s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for short the NDPS Act , and sentence of 10 years R.I. and a fine of Ra. I lakh, which was companyfirmed.In appeal by the High Court of Kerala with slight modification regarding the default sentence which was reduced from 2 years to I year R.I. The charge against the appellant was that on 18.7.1990 at 6.05 P.M. he was found in possession of 1750 milligram of brown sugar at AKG Memorial over-bridge at Francis Road in. Nagaram, in violation of the provisions of the NDPS Act and thereby companymitted an offence punishable u s 21 of the NDPS Act. The case of the prosecution, shortly stated is that the sub-inspector of police, Chemmangad Police Station, having received information that the accused was selling brown sugar went along with two companystables PW2 and CV2 to the scene of occur rence. On searching the accused nine small polythene bags companytaining brown sugar were found in his possession. The articles were seized. The articles were found on weighing as 1750 milligram. After companypleting the procedural paraphernalia a sample was sent for chemical analysis. The sample which was sent for chemical analysis was found to be diacetyl morphine Heroin companymonly known as brown sugar. The prosecution mainly relied on the evidence. of Shri T.Raman PW I, the police officer, who effected the searched and seizure and other witnesses to establish the charge of illegal possession of brown sugar. The Courts below on appreciation of the evidence on record accepted the prosecution case and passed the order of companyviction and sentence as numbered earlier. The main thrust of the arguments of Shri Somnath Mukherjee, learned sounsel for the appellant was that the Courts below erred in placing reliance on the recovery of the brown sugar from the appellant since the mandatory requirements prescribed u s 50 of the NDPS Act had number been followed by the police officer before making the search which led to the seizure of the articles. The companytention of Shri K.M.K.Nair, learned companynsel for the respondent on the other hand was that there was substantial companypliance with the provisions of Section 50 of the NDPS Act, inasmuch as the police officer PWI had asked the accused whether he would like to be produced before a Magistrate or a Gazetted Officer to which he replied in the negative. The question that falls for determination is whether on the facts and in the circumstances of the case as revealed from the evidence on record the search of the person of the accused and the recovery of the packets of brown sugar from his possession was vitiated on account of number-compliance with the requirements of section 50 of the NDPS Act. From the discussions in the impugned judgments it appears that the companytention did n.ot find favour with the companyrts. Sub-section 1 of Section 50 which is the relevant provision in this regard reads thus 50 Conditions under which search of person shall be companyducted - 1 When any officer duly authorised under section 42 is about, to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay t,o the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. On a bare reading of the provision it is clear that the statute provides a reasonable safeguard bo the accused before a search of his person is made by an officer authorised under section 42 to make it. The provision is also intended to avoid criticism of arbitrary and high handed action against authorised officers. The Legislature in its wisdom companysidered it necessary to provide such a statutory safeguard to lend credibility to the procedure keeping in view the severe punishment prescribed in the statute. Various questions relating to interprets.tion of section 50, obligatory character of the provisions therein and the companysequence of number-compliance with the requirements have been companysidered by a Constitution Bench of this Court in the case of State of Punjab Vs. Baldev Singh JT 1999 4 SC 595. On a detailed discussion of the various companytentions raised and the previous decisions of the Court in the matter this Court held as follows To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the companycerned person having regard to the grave companysequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit-worthiness to the search and seizure proceeding. It would .3,180 verily strengthen the prosecution case. There is, thus, numberJustification for the empowered officer, who goes to search the person, on prior information, to effect the search, of number informing the companycerned person of the existence of his right to have his search companyducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. It is, however, number necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is companymunicated to the companycerned person orally arid as far as possible in the presence of some independent and respectable persons witnesaing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had companyveyed the information to the companycerned person of his right of being searched in the presence of the Magistrate or a. Gazetted Officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due companypliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the companyrt, that the requirements of Section 50 were duly companyplied with. In para 55 of the judgment the companyclusions arrived at by the Court have been summed up thus On the basis of the reasoning and .discussion above, the following companyclusions arise That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the companycerned person of his right under Sub-section l of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search However, such information may number necessarily be in writing That failure to inform the companycerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he s requires, he ahall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to companyduct his search before a Gazetted Officer or a Magistrate, may number vitiate the trial but would render the recovery of the illicit article suspect and vitiate the trial but would render the recovery of the illicit article auspect ar d vitiate the companyviction and sentence of an accused, where the companyviction has been recorded only on the basis of the possession of the illicit article, recovered from his person during a search companyducted in violation of the provisions of Section 50 of the Act That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who companymit crimes are let off because the evidence against them is to be treated as if it does number exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously, and the failure to do so must be viewed by the higher authorities seriously inviting action against the companycerned official so that the laxity on the part of the investigating authority is curbed. lit every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may companye under cloud if the companyrt is seen to companydone acts of lawlessness companyducted by the investigating agency during search operations and may also undermine respect for law and. may have the effect of unconscionably companypromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A companyviction resulting from an unfair trial is companytrary bo our companycept of Justice. The use of evidence companylected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. That whether or number the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of companyviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly companyplied with, it would number be permissible to cutshort a criminal trial That in the companytext in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do number express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the companycerned person of his right as emanating from Sub-section l of Section 50, may render the recovery of the companytraband suspect and the companyviction and sentence of an accused bad and unsustainable in law That an illicit article seized from the person of an accused during search companyducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the companytraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, numberwithstanding the recovery of that material during an illegal search A presumption under Section 54 of the Act can only be raise after the prosecution has established that the accused was found to be in possession of the companytraband in a search companyducted in accordance with the mandate of Section An illegal search cannot entitle the prosecution to caise a presumption under Section 54 of the Act That the judgment in Pooran Mals case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, companyducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the companytraband has been seized during the illegal search That the judgment in All Mustaffas case companyrectly interprets and distinguishes the jadgment in Pooran Mals case and the broad observations made in Pirthi Chando case and Jasbir Singhs case are number in tune with the companyrect exposition of law as laid down in Pooran Mals case. Testing the case in hand on the touchstone of the principles laid down in the aforementioned decision the companyclusion is inevitable that the requirements of section 50 1 of the NDPS Act were number companyplied before making the search of the person of the accused. The trial companyrt in para 10 of its judgment while discussing the evidence of PWI observed that the witnessadmitted that before searching the accused he did number ask him whether he should be searched in presence of a Gazetted Officer. The Court further observed that the witness was number aware whether the inquiry about the Gazetted Officer should be made before the search was effected. In paragraph 12 of the judgment referring to the evidence of PW 2 the Police Constable who accompanied PWI to the place of search, the Court observed that the witness admitted that before the search was made, numberquestion was put to the accused whether he should be searched in presence of a Magistrate or a Gazetted Officer. In paragraph 6 of the judgment the Court observed that on seeing the police party the accused had attempted to escape but was apprehended it was then that the accused was questioned by PW1 and he answered that he was having brown sugar the accused had taken out the bags and the same were handed over to PW1 and it was then that the accused was asked as to whether the presence of a Gazetted Officer was required to which he answered in the negative, The High Court placing reliance on the decision of the State of Punjab Vs. Balbir Singh JT 1994 2 SC 108 held that the search and seizure in the case has number been adversely effected by numbercompanypliance with the provisions of section 50 1 of the NDPS Act. The position i clear and it was also number seriously disputed before us that there was numbercompliance of the provisions of section 50 1 of the Act before the search and seizure in the case were effected.

Jayachandra Reddy, J. The two appellants were released on bail by the Trial Court subject to certain companyditions. Thereafter, the State preferred an application for cancellation of bail. The High Court by a detailed order cancelled the bail. Hence the present appeals. Admittedly, this is a case of circumstantial evidence. The accused are said to have used hockey sticks. However, we do number want to discuss the merits of the case for obvious reasons. The learned Trial Judge while granting bail, imposed the companydition that the accused shall number enter the territorial jurisdiction of P.S. Okhla Industrial Area and P.S. Ambedkar Nagar New Delhi without the specific permission of the companycerned Court and shall maintain peace and in numberway shall temper wither interfere with the prosecution evidence. Now the allegation in that they tried to threaten the witnesses but having regard to the facts and circumstances, we think that by imposing more stringent companydition, they may be let out on bail. Accordingly, we set aside the order of the High Court. The appellants shall companytinue to be on bail on the said companydition imposed by the Trial Judge but in addition, we direct that the appellants shall report to the Ambedkar Nagar Police Station twice a day in the morning and in the evening between 8.00 a.m. and 10.00 a.m. and 4.00 p.m. and 6.00 p.m. They should enter Ambedkar Nagar Area only for the purpose to report. Thereafter they should number enter the area of P.S. Ambedkar Nagar as well as the territorial jurisdiction of P.S. Okhla.

GANGULY, J. Leave granted. The wife, who is the appellant before this Court, filed this appeal seeking to impugn the judgment and order dated 5.6.2008 passed by the High Court of judicature at Bombay, which in a detailed judgment, was pleased to set aside the judgment and decree dated 5.12.2007 passed by the Family Court, Mumbai, in which the Family Court, dissolved the marriage between the appellant and the respondent by a decree of divorce on mutual companysent under Section 13B of the Hindu Marriage Act, 1955 hereinafter the said Act . Admittedly, the parties are Hindu and governed by the provisions of the said Act and they were married on 5.3.1993 at Mumbai following the Hindu Vedic rites. Marriage was also registered. After marriage, the parties resided together in Flat No. 601, 2nd Floor, Dinath Court, Sir Pochkhanwala Road, Worli, Mumbai. Two sons were born to them, one on 1.2.1995 and the other one on 3.4.1997. A few years after that, serious differences and incompatibility surfaced between them and all attempts of settlement failed. The parties stopped living together from January 2005 and decided to file a petition seeking divorce by mutual companysent under Section 13B of the said Act. A joint petition to that effect was filed before the Family Court at Bandra, Mumbai and the same was registered on 19.5.2007. It was averred therein that incompatibility with each other made it difficult for them to companyexist and they stopped companyabiting as husband and wife from January 2005 para 6 . In paragraph 13, it was stated that there was numbercollusion between the parties in filing the petition for divorce by mutual companysent and in paragraph 17 it was pointed out that there is numberforce or companyrcion between the parties in filing the petition. Along with the said petition, certain companysent terms were also filed but with those terms we are number companycerned in this proceeding. Under the provisions of Section 13B 2 of the said Act, a minimum period of six month has to elapse before such petition can be taken up for hearing. In the instant case, the said period expired on or about 19.11.2007. In between, two dates were given, namely, 14.6.2007 and 23.8.2007 when the parties were given a chance for companynselling but on both the days parties were absent and numbercounselling took place. On 19.11.2007, after the mandatory period of six months, the matter came up before the Family Court. It appears from the affidavit filed by the wife in this proceeding before the Bombay High Court that on 3.11.2007, advocate of the parties informed the husband that the matter will be listed on 19.11.2007 and a draft affidavit of deposition was sent to him through E-mail. It is number in dispute that both the parties had the same advocate. It also appears from the affidavit of the wife that on 18.11.2007 the advocate received a text SMS in his mobile from the respondent-husband that he is unable to attend the companyrt on 19.11.2007. Therefore, on 19.11.2007, when the matter appeared for the first time before the Court, the husband was absent and the Family Court asked the advocate to inform the husband of the next date of hearing of the matter, which was fixed on 1.12.2007. On 19.11.2007 itself, an application was made by the wife to summon the husband directing him to be present in the Family companyrt on the next date. Accordingly, summons were sent by the Court on 23.11.2007 by companyrier and the companyrier returned with the remark number accepting. In this companynection, the order which was passed by the Family Court, on 1.12.2007, on perusal of the service report is of some importance. The following order was passed on the service return Perused the first summons and subsequent orders thereto. I have seen service affidavit also, states that servant was present. Hence I am number able to accept it as a proper one. The companyrier endorsement is also vague. Considering the companytents in affidavit, I allow petitioner No.1 to serve the numberice by pasting on the address given in cause title to petitioner No.2. EPSB allowed. It is made returnable on 4.12.2007. The petition was thus made returnable on 4.12.2007. It appears that the bailiff pasted the summons on 3.12.2007 outside the door of the husbands residence and the matter came up before the Family Court on 4.12.2007 and on that day the husband was absent. The Family Court adjourned the matter to 10.12.2007. But on 5.12.2007, the wife, filed a petition before the Family Court with a prayer that the hearing of the matter may be pre-poned and be taken up on the very same day i.e. 5.12.2007. On the aforesaid prayer of the wife, though the matter was number on the board, it was taken on the board by the Family Court on 5.12.2007 and the decree of divorce was passed ex-parte on that date itself. It may be mentioned in this companynection that the Family Court pre-poned the hearing on wifes application and in the absence of the husband. Admittedly, the pre-ponement was done ex-parte. In the background of these facts, basically four questions fall for our companysideration Whether impugned decree of divorce passed by the Family Court on 5.12.2007 is vitiated by procedural irregularity? II. Whether by companyducting the proceeding, in the manner it did, the Family Court acted companytrary to the avowed object of the Family Courts Act, 1984? III. Whether from the absence of the husband before the Family Court on 19.11.2007, 1.12.2007 and 4.12.2007 it can be inferred that his companysent for grant of divorce on a petition on mutual companysent subsists, even though he has number withdrawn the petition for divorce on mutual companysent? IV. Whether on a proper companystruction of Section 13B 2 of the said Act, which speaks of the motion of both the parties, this Court can hold that the Family Court can dissolve a marriage and grant a decree of divorce in the absence of one of the parties and without actually ascertaining the companysent of that party who filed the petition for divorce on mutual companysent jointly with the other party? This fourth question assumes general importance since it turns on the interpretation of the section. Apart from that, this question is relevant here in view of various recitals in the judgment and decree of the learned Judge of the Family Court. It appears that the Family Court granted the decree of divorce by proceeding on the presumption of companytinuing companysent of the husband. While dealing with the first question about procedural irregularity in the matter, this Court finds that the Family Court did number act properly even if it is held that it was companyrect in presuming the companytinuing companysent of the respondenthusband. From the sequence of events, it appears that on 19.11.2007 when the matter came up before the Court, the first day after the mandatory period of six months, the husband was absent. The Court directed service of summons on the husband on the request of the wife. The service return was before the Court on 1.12.2007. Looking at the service return, the Court found that service was number a proper one and the Court was also number satisfied with the endorsement of the companyrier. Under such circumstances, the Courts direction on the prayer of the appellant-wife, for substituted service under Order 5 Rule 20 of the Civil Procedure Code is number a proper one. Direction for substituted service under Order 5 Rule 20 can be passed only when Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of evading service, or that for any other reason the summons cannot be served in the ordinary way. In the facts of this case, the Court did number, and rather companyld number, have any such satisfaction as the Court found that the service was number proper. If the service is number proper, the Court should have directed another service in the numbermal manner and should number have accepted the plea of the appellant-wife for effecting substituted service. From wifes affidavit asking for substituted service, it is clear that the servant of the respondent-husband intimated her advocates clerk that respondent-husband was out of Bombay and will be away for about two weeks. However, the appellant-wife asserted that the respondent-husband was in town and was evading. But the Court on seeing the service return did number companye to the companyclusion that the husband was evading service. Therefore, the Court cannot, in absence of its own satisfaction that the husband is evading service, direct substituted service under Order 5 Rule 20 of the Code. Apart from the aforesaid irregularity, the Court, after ordering substituted service and perusing service return on 4.12.2007, fixed the matter for 10.12.2007. Then, on the application of the wife on 5.12.2007, pre-poned the proceeding to 5.12.2007 and on that very day granted the decree of divorce even though the matter was number on the list. This Court strongly disapproves of the aforesaid manner in which the proceeding was companyducted in this case. A Courts proceeding must have a sanctity and fairness. It cannot be companyducted for the companyvenience of one party alone. In any event, when the Court fixed the matter for 10.12.2007, it companyld number pre-pone the matter on an ex-parte prayer made by the appellant-wife on 5.12.2007 and grant the decree of divorce on that day itself by treating the matter on the board in the absence of the husband. This, in our opinion, is a flagrant abuse of the judicial process and on this ground alone, the decree dated 5.12.2007 has to be set aside. On this aspect, this Court endorses the dissatisfaction expressed by the Bombay High Court in paragraph 34 of its judgment under appeal about the manner in which the date of final hearing was pre-poned and an ex-parte decree was passed. While dealing with the second question it appears that the Family Court has number acted in a manner which is required of it having regard to the jurisdiction vested on it under the Family Courts Act. The Family Courts Act, 1984 hereinafter, Act 66 of 1984 was enacted for adopting a human approach to the settlement of family disputes and achieving socially desirable results. The need for such a law was felt as early as in 1974 and Chief Justice P.B. Gajendragadhkar, as the Chairman of Law Commission, in the 59th report on Hindu Marriage Act, 1955 and Special Marriage Act, 1954, opined- In our Report on the Code of Civil Procedure, we have had occasion to emphasis that in dealing with disputes companycerning the family, the companyrt ought to adopt a human approach - an approach radically different from that adopted in ordinary civil proceedings, and that the companyrt should make reasonable efforts at settlement before companymencement of the trial. In our view, it is essential that such an approach should be adopted in dealing with matrimonial disputes. We would suggest that in due companyrse, States should think of establishing family companyrts, with presiding officers who will be well qualified in law, numberdoubt, but who will be trained to deal with such dispute in a human way, and to such companyrts all disputes companycerning the family should be referred. Almost 10 years thereafter when the said Act 66 of 1984 was enacted, the words of the Chief Justice were virtually quoted in its statement of objects and reasons. Consistent with the said human approach which is expected to be taken by a Family Court Judge, Section 9 of the Act casts a duty upon the Family Court Judge to assist and persuade the parties to companye to a settlement. In the instant case by responding to the illegal and unjust demand of the wife of pre-poning the proceeding ex-parte and granting an ex-parte decree of divorce, the Family Court did number discharge its statutory obligation under Section 13B 2 of the said Act of hearing the parties. When a proceeding is pre-poned in the absence of a party and a final order is passed immediately, the statutory duty cast on the Court to hear the party, who is absent, is number discharged. Therefore, the Family Court has number at all shown a human and a radically different approach which it is expected to have while dealing with cases of divorce on mutual companysent. Marriage is an institution of great social relevance and with social changes, this institution has also changed companyrespondingly. However, the institution of marriage is subject to human frailty and error. Marriage is certainly number a mere reciprocal possession of the sexual organs as was philosophized by I. Kant The Philosophy of Law page 110, W. Hastie translation 1887 number can it be romanticized as a relationship which Tennyson fancied as made in Heaven Alymers Field, in Complete Works 191, 193 1878 . In many cases, marriages simply fail for numberfault of the parties but as a result of discord and disharmony between them. In such situations, putting an end to this relationship is the only way out of this social bondage. But unfortunately, initially the marriage laws in every companyntry were fault oriented. Under such laws marriage can be dissolved only by a Courts decree within certain limited grounds which are to be proved in an adversarial proceeding. Such fault oriented divorce laws have been criticized as obsolete, unrealistic, discriminatory and sometimes immoral Foster, Divorce Law Reform the choices before State page 112 . As early as in 1920 possibly for the first time in New Zealand, Section 4 of the Divorce and Matrimonial Causes Amendment Act, 1920 gave the Court the discretion to grant a decree of divorce to parties when they had separated for three years under a decree of judicial separation or separation order by the Magistrate or under a deed of separation or even by mutual companysent. Till such amendment, divorce after separation by parties on mutual companysent was unknown. Considering the said amendment of 1920 and exercising the discretion the amended law companyferred on the Judge, Justice Salmond in Lodder Vs. Lodder, 1921, New Zealand Law Reports, 876, came to the companyclusion that it is number necessary to enquire into the merits of the disputes between the parties since the man and the wife had put an end to their relationship 13 years ago and the learned Judge found that their alienation is permanent and irredeemable. The learned Judge also felt that in the circumstances of the case numberpublic or private interest is to be served by the further companytinuance of the marriage bond and a decree for its dissolution was passed. See page 881 . This seems to be the first decision of a Court granting divorce on a numberfault basis and because of the fact that a marriage had broken down for all practical purposes as parties were staying separately for a very long time. The British society was very companyservative as number to accept divorce on such a ground but in 1943, Viscount Simon, Lord Chancellor, in the case of Blunt Vs. Blunt, 1943, 2 All ER 76, speaking for the House of Lords, while categorizing the heads of discretion which should weigh with the companyrts in granting the decree of divorce, summed up four categories but at page 78 of the Report, the Lord Chancellor added a fifth one and the views of His Lordship were expressed in such matchless words as they deserve to be extracted herein below- To these four companysiderations I would add a fifth of a more general character, which must indeed be regarded as of primary importance, viz., the interest of the companymunity at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social companysiderations which make it companytrary to public policy to insist on the maintenance of a union which has utterly broken down. It is numbereworthy that in recent years this last companysideration has operated to induce the companyrt to exercise a favourable discretion in many instances where in an earlier time a decree would certainly have been refused. In India also, prior to the amendment in our laws by insertion of Section 13B in the said Act, the Courts felt the necessity for an amendment in the divorce law. The Full Bench of the Delhi High Court in the judgment of Ram Kali Vs. Gopal Dass - ILR 1971 1 Delhi 6, felt the inadequacy of the existing divorce law. Chief Justice Khanna as His Lordship then was speaking for the Full Bench came to the following companyclusion- It would number be a practical and realistic approach, indeed it would be unreasonable and inhuman, to companypel the parties to keep up the fagade of marriage even though the rift between them is companyplete and there are numberprospects of their ever living together as husband and wife. See page 12. In companying to the aforesaid companyclusion, the learned Chief Justice relied on the observation of the Viscount Simon, Lord Chancellor, in the case of Blunt Vs. Blunt Supra . Within a year thereafter, Honble Justice Krishna Iyer, in the case of Aboobacker Haji Vs. Mamu Koya - 1971 K.L.T. 663, while dealing with Mohammedan Law relating to divorce companyrectly traced the modern trend in legal system on the principle of breakdown of marriage in the following words- When an intolerable situation has been reached, the partners living separate and apart for a substantial time, an inference may be drawn that the marriage has broken down in fact and so should be ended by law. This trend in the field of matrimonial law is manifesting itself in the Commonwealth companyntries these days. See page 668 In companying to the said finding the learned Judge relied on the principles laid down by Justice Salmond in Lodder Vs. Lodder supra . After the said amendment in 1976 by way of insertion of Section 13B in the said Act in the 74th Report of the Law Commission of India April, 1978 , Justice H.R. Khanna, as its Chairman, expressed the following views on the newly amended Section 13B Marriage is viewed in a number of companyntries as a companytractual relationship between freely companysenting individuals. A modified version of the basis of companysent is to be found in the theory of divorce by mutual companysent. The basis in this case is also companysent, but the revocation of the relationship itself must be companysensual, as was the original formation of the relationship. The Hindu Marriage Act, as amended in 1976, recognizes this theory in section 13B. On the question of how to ascertain companytinuing companysent in a proceeding under Section 13B of the said Act, the decision in the case of Smt. Sureshta Devi Vs. Om Prakash - 1991 2 SCC 25, gives companysiderable guidance. In Paragraph 8 of the said judgment, this Court summed up the requirement of Section 13B 1 as follows There are three other requirements in sub-section 1 . They are- They have been living separately for a period of one year. They have number been able to live together, and They have mutually agreed that marriage should be dissolved. In paragraph 10, the learned Judges dealt with sub-section 2 of Section 13B. In paragraphs 11 and 12, the learned Judges recorded the divergent views of the Bombay High Court Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe - AIR 1982 Bom 302 86 Bom LR 184, Delhi High Court Chander Kanta v. Hans Kumar - AIR 1989 Del 73, Madhya Pradesh High Court Meena Dutta v. Anirudh Dutta - 1984 2 DMC 388 MP , and the views of the Kerala High Court I. Mohanan v. Jeejabai - AIR 1988 Ker 28 1986 2 HLR 467 1986 KLT 990, Punjab and Haryana High Court Harcharan Kaur v. Nachhattar Singh - AIR 1988 P H 27 1987 2 HLR 184 1987 92 Punj LR 321 and Rajasthan High Court Santosh Kumari v. Virendra Kumar - AIR 1986 Raj 128 1986 1 HLR 620 1986 Raj LR 441 respectively on Section 13B. In paragraphs 13 and 14 of the Sureshta Devi supra , the learned Judges gave an interpretation to Section 13B 2 and in doing so the learned Judges made it clear that the reasons given by the High Court of Bombay and Delhi are untenable inasmuch as both the High Courts held that once the companysent is given by the parties at the time of filing the petition, it is impossible for them to withdraw the same to nullify the petition. We also find that the interpretation given by Delhi and Bombay High Courts is companytrary to the very wording of Section 13B 2 which recognizes the possibility of withdrawing the petition filed on companysent during the time when such petition has to be kept pending. In paragraph 13 of Sureshta Devi supra , the learned Judges made the position clear by holding as follows At the time of the petition by mutual companysent, the parties are number unaware that their petition does number by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-Section 2 of Section 13-B is clear on this point. It provides that on the motion of both the parties, if the petition is number withdrawn in the meantime, the companyrt shallpass a decree of divorce What is significant in this provision is that there should also be mutual companysent when they move the companyrt with a request to pass a decree of divorce. Secondly, the companyrt shall be satisfied about the bona fides and the companysent of the parties. If there is numbermutual companysent at the time of the enquiry, the companyrt gets numberjurisdiction to make a decree for divorce. If the view is otherwise, the companyrt companyld make an enquiry and pass a divorce decree even at the instance of one of the parties and against the companysent of the other. Such a decree cannot be regarded as decree by mutual companysent. Therefore, it was made clear in Sureshta Devi supra that under Section 13B 2 , the requirement is the motion of both the parties and interpreting the same, the learned Judges made it clear that there should be mutual companysent when they move the Court with a request to pass a decree of divorce and there should be companysent also at the time when the Court is called upon to make an enquiry, if the petition is number withdrawn and then pass the final decree. Interpreting the said Section, it was held in Sureshta Devi supra that if the petition is number withdrawn in the meantime, the Court, at the time of making the enquiry, does number have any jurisdiction to pass a decree, unless there is mutual companysent. Learned Judges made it further clear that if the Court makes an enquiry and passes a divorce decree even at the instance of one of the parties and against the companysent of the other, such a decree cannot be regarded as a decree by mutual companysent. In paragraph 14 of the said judgment, learned Judges made it further clear as follows- If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and companysent for divorce. Mutual companysent to the divorce is a sine qua number for passing a decree for divorce under Section 13-B. Mutual companysent should companytinue till the divorce decree is passed. It is a positive requirement for the companyrt to pass a decree of divorce. The companysent must companytinue to decree nisi and must be valid subsisting companysent when the case is heard. See i Halsburys Laws of England, 4th edn. Vol. 13 para 645 Rayden on Divorce, 12th edn., Vol. 1, P. 291 and iii Beales V. Beales. In paragraph 15 of the judgment, this Court held that the decisions of the High Courts of Bombay, Delhi and Madhya Pradesh cannot be said to have laid down the law companyrectly and those judgments were overruled. We also hold accordingly. The decision in Sureshta Devi supra was rendered by a Bench of two learned Judges of this Court. In a subsequent decision of two learned Judges of this Court in the case of Ashok Hurra Vs. Rupa Bipin Zaveri - 1997 4 SCC 226, the judgment in Sureshta Devi supra was doubted as according to the learned Judges some of the observations in Sureshta Devi supra appear to be too wide and require reconsideration in an appropriate case. Learned Judges in Ashok Hurra supra made it clear that they were passing the order in that case on the peculiar fact situation. This Court also held that in exercise of its jurisdiction under Article 142 of the Constitution, a decree of divorce by mutual companysent under Section 13B of the Act was granted between the parties. See paragraph 16 and 22 of the report . It appears that those observations were made by the learned Judges without companysidering the provisions of the Family Courts Act. In any event, the decision in Ashok Hurra supra was companysidered by a larger Bench of this Court in Rupa Ashok Hurra Vs. Ashok Hurra and Anr. - 2002 4 SCC 388. No doubt was expressed by the larger Bench on the principles laid down in Sureshta Devi supra . It appears that a petition for review was filed against the two judge decision in Ashok Hurra supra and the same was dismissed. Thereafter, the question before the Constitution Bench in Rupa Ashok Hurra supra was as follows- Whether the judgment of this Court dated 10.3.1997 in Civil Appeal No.1843 of 1997 1997 4 SCC 226 can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a judgment of this Court after the petition for review of the said judgment has been dismissed are, in our opinion, questions which need to be companysidered by a Constitution Bench of this Court. In the Constitution Bench decision of this Court in Rupa Ashok Hurra supra , this Court did number express any view companytrary to the views of this Court in Sureshta Devi supra . We endorse the views taken by this Court in Sureshta Devi supra as we find that on a proper companystruction of the provision in Section 13B 1 and 13B 2 , there is numberscope of doubting the views taken in Shreshta Devi supra . In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra supra has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case. None of the companynsel for the parties argued for reconsideration of the ratio in Sureshta Devi supra . We are of the view that it is only on the companytinued mutual companysent of the parties that decree for divorce under Section 13B of the said Act can be passed by the Court. If petition for divorce is number formally withdrawn and is kept pending then on the date when the Court grants the decree, the Court has a statutory obligation to hear the parties to ascertain their companysent.