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criminal appellate jurisdiction criminal appeal number. 310-311 of 1992. from the judgment and order dated 9.12.1991 of the delhi high court in crl.m. m number 2409/91 and crl. r. number 201 of 1991. t.s.tulsi addl. solicitor general kailash vasdev and ms. alpana kirpal for the appellant. ram jethmalani dinesh mathur and ms. binu tamta for the respondent. the judgment of the companyrt was deliverd by jayachandra reddy j. leave granted. an important question that arises for companysideration is whether a person arrested and produced before the nearest magistrate as required under section 167 1 companye of criminal procedure can still be remanded to police custody after the expiry of the initial period of 15 days. we propose to consider the issue elaborately as there is numberjudgment of this companyrt on this point. the facts giving rise to this question may briefly be stated. a case relating to abduction of four bombay based diamond merchants and one shri kulkarni was registered at police station tughlak road new delhi on 16.9.91 and the investigation was entrusted to b.i. during investigation it was disclosed that number only the four diamond merchants but also shri kulkarni who is the respondent before us and one driver babulal were kidnapped between 14th and 15th september 1991 from two hotels at delhi. it emerged during investigation that the said shri kulkarni was one of the associates of the accused one shri r.chaudhary responsible for the said kidnaping of the diamond merchants. on the basis of some available material shri kulkarni was arrested on 4.10.91 and was produced before the chief metropolitan magistrate delhi on 5.10.91. on the request of the c.b.i. shri kulkarni was remanded to judicial custody till 11.10.91. on 10.10.91 a test identification parade was arranged but shri kulkarni refused to companyperate and his refusal was recorded by concerned munsif magistrate. on 11.10.91 an application was moved by the investigating officer seeking police custody of shri kulkarni which was allowed. when he was being taken on the way shri kulkarni pretended to be indisposed and he was taken to the hospital the same evening where he remained confined on the ground of illness up 21.10.91 and then he was referred to cardic out-patient department of g.b. pant hospital. upto 29.10.91 shri kulkarni was again remanded to judicial custody by the magistrate and thereafter was sent to jail. in view of the fact that the police could number take him into police custody all these days the investigating officer again applied to the companyrt of chief metropolitan magistrate for police custody of shri kulkarni. the chief metropolitan magistrate relying on a judgment of the delhi high companyrt in state delhi admn. v. dharam pal and others 1982 crl. l.j. 1103 refused police remand. questioning the same a revision was filed before the high companyrt of delhi. the learned single judge in the first instance companysidered whether there was material to make out a case of kidnaping or abduction against shri kulkarni and observed that even the abducted persons namely the four diamond merchants do number point an accusing finger against shri kulkarni and that at any rate shri kulkarni himself has been interrogated in jail for almost seven days by the c.b.i. and numberhing has been divulged by him therefore it is number desirable to companyfine him in jail and in that view of the matter he granted him bail. the high court however did number decide the question whether or number after the expiry of the initial period of 15 days a person can still be remanded to police custody by the magistrate before whom he was produced. the said order is challenged in these appeals. the learned additional solicitor general appearing for the c.b.i. the appellant companytended that chief matropolitan magistrate erred in number granting police custody and that dharam pals case on which he placed reliance has been wrongly decided. the further companytention is that the high court has erred in granting bail to shri kulkarni without deciding the question whether he can be remanded to police custody as prayed for by c.b.i. shri ram jethmalani learned counsel for the respondent accused submitted that language of section 167 cr.p.c. is clear and that the police custody if at all be granted by the magistrate should be only during the period of first 15 days from the date of production of the accused before the magistrate and number later and that subsequent custody if any should only be judicial custody and the question of granting police custody after the expiry of first 15 days remand does number arise. section 167 cr. p.c. 11973 after some changes reads as under procedure when investigation cannumber be completed in twenty-four hours.- 1 whenever any person is arrested and detained in custody and it appears that the investigation cannumber be completed within the period of twenty-four hours fixed by section 57 and there are grounds for believing that the accusation or information is well founded the officer-in- charge of the police station or the police officer making the investigation he if is number below the rank of sub-inspector shall forthwith transmit to the nearest judicial magistrate a companyy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time forward the accused to such magistrate. the magistrate to whom an accused person is forwarded under this section may whether he has or has number jurisdiction to try the case from time to time authorise the detention of the accused in such custody as such magistrate thinks fit for a term number exceeding fifteen days in the whole and if he has numberjurisdiction to try the case or companymit it for trial and companysiders further detention unnecessary he may order the accused to be forwarded to a magistrate having such jurisdiction provided that- a the magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so but numbermagistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding- ninety days where the investigation relates to an office punishable with death imprisonment for life or imprisonment for a term of number less than ten years sixty days where the investigation relates to any other office and on the expiry of the said period of ninety days or sixty days as the case may be the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this sub-section shall be deemed to be so released under the provisions of chapter xxxiii for the purposes of that chapter b numbermagistrate shall authorise detention in any custody under this section unless the accused is produced before him c numbermagistrate of the second class number specially empowered in this behalf by the high companyrt shall authorise detention in the custody of police. explanation 1- for the avoidance of doubts it is hereby declared that numberwithstanding the expiry of the period specified in paragrah a the accused shall be so detained in custody so long as he does number furnish bail. explanation ii.- if any question arises whether an accused person was produced before the magistrate as required under paragraph b the production of the accused person may be proved by his signature on the order authorising detention. 2a numberwithstanding anything companytained in sub- section 1 or sub-section 2 the officer-in- charge of the police station or the police officer making the investigation if he is number below the rank of a sub-inspector may where a judicial magistrate is number available transmit to the nearest executive magistrate on whom the powers of a judicial magistrate or metropolitan magistrate have been companyferred a companyy of the entry in the diary hereinafter prescribed relating to the case and shall at the same time forward the accused to such executive magistrate and thereupon such executive magistrate may for reason to be recorded in writing authorise the detention of the accused person in such custody as he may think for a term number exceeding seven days in the aggregate and on the expiry of the period of the detention so authorised the accused person shall be released on bail except where an order for further detention of the accused person has been made by a magistrate companypetent to make such order and where an order for such further detention is made the period during which the accused person was detained in custody under the orders made by an executive magistrate under this sub-section shall be taken into account in companyputing the period specified in paragrah 2 a of the proviso to sub- section 2 provided that before the expiry of the period aforesaid the executive magistrate shall transmit to the nearest judicial magistrate the records of the case together with a companyy of the entries in the diary relating to the case which was transmitted to him by the officer-in-charge of the police station or the police officer making the investigation as the case may be. a magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. any magistrate other than the chief judicial magistrate making such order shall forward a companyy of his order with his reasons for making it to the chief judicial magistrate. if any case triable by a magistrate as a summons-case the investigation is number companycluded within a period of six months from the date on which the accused was arrested the magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the magistrate that for special reasons and in the interests of justice the companytinuation of the investigation beyond the period of six months is necessary. where any order stopping further investigation into an offence has been made under sub-section 5 the sessions judge may if he is satisfied on an application made to him or otherwise that further investigation into the offence ought to be made vacate the order made under sub-section 5 and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify. before proceeding further it may be necessary to advert to the legislative history of this section. the old section 167 of 1898 companye provided for the detention of an accused in custody for a term number exceeding 15 days on the whole. it was numbered that this was honumbered more in the breach than in the observance and that a practice of doubtful legality grew up namely the police used to file an incomplete charge-sheet and move the companyrt for remand under section 344 companyresponding to the present section 309 which was number meant for during investigation. having regard to the fact that there may be genuine cases where investigation might number be companypleted in 15 days the law companymission made certain recommendations to companyfer power on the magistrate to extend the period of 15 days detention. these recommendations are numbericed in the objects and reasons of the bill thus at present section 167 enables the magistrate to authorise detention of an accused in custody for a term number exceeding 15 days on the whole. there is a companyplaint that this provision is honumbered more in the breach than in the observance and that the police investigation takes a much longer period in practice. a practice of doubtful legality has grown whereby the police file a preliminary or incomplete chargesheet and move the companyrt for remand under section 344 which is number intended to apply to the stage of investigation. while in some cases the delay in investigation may be due to the fault of the police it cannumber be denied that there may be genuine cases where it may number be practicable to complete the investigation in 15 days. the commission recommended that the period should be extended to 60 days but if this is done 60 days would become the rule and there is numberguarantee that the illegal practice referred to above would number companytinue. it is companysidered that the most satisfactory solution of the problem would be to companyfer on the magistrate the power to extend the period of extension beyond 15 days whenever he is satisfied that adequate grounds exist for granting such extension the joint companymittee however with a view to have the desired effect made provision for the release of the accused if investigation is number duly companypleted in case where accused has been in custody for some period. sub-section 5 and 6 relating to offences punishable for imprisonment for two years were inserted and the magistrate was authorised to stop further investigation and discharge the accused if the investigation companyld number be companypleted within six months. by the cr. p.c. amendment act 1978 proviso a to sub-section 2 of section 167 has been further amended and the magistrate is empowered to authorise the detention of accused in custody during investigation for an aggregate period of 90 days in cases relating to major offences and in other cases 60 days. this provision for custody for 90 days in intended to remove difficulties which actually arise in completion of the investigation of offences of serious nature. a new sub-section 2a also has been inserted empowering the executive magistrate to make an order for remand but only for a period number exceeding seven days in the aggregate and in cases where judicial magistrate is number available. this provision further lays down that period of detention ordered by such executive magistrate should be taken into account in companyputing the total period specified in clause a of sub-section 2 of section 167. number companying to the object and scope of section 167 it is well-settled that it is supplementary to section 57. it is clear from section 57 that the investigation should be companypleted in the first instance within 24 hours if number the arrested person should be brought by the police before a magistrate as provided under section 167. the law does number authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate companyrt. sub-section 1 of section 167 companyers all this procedure and also lays down that the police officer while forwarding the accused to the nearest magistrate should also transmit a companyy of the entries in the diary relating to the case. the entries in the diary are meant to afford to the magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody further or number. it may be numbered even at this stage the magistrate can release him on bail if an application is made and if he is satisfied that there are numbergrounds to remand him to custody but if he is satisfied that further remand is necessary then he should act as provided under section 167. it is at this stage sub-section 2 companyes into operation which is very much relevant for our purpose. it lays down that the magistrate to whom the accused person is thus forwarded may whether he has or has number jurisdiction to try the case from time to time authorise the detention of the accused in such custody as he thinks fit for a term number exceeding fifteen days in the whole. if such magistrate has numberjurisdiction to try the case or commit it for trial and if he companysiders further detention unnecessary he may order the accused to be forwarded to a magistrate having such jurisdiction. the section is clear in its terms. the magistrate under this section can authorise the detention of the accused in such custody as he thinks fit but it should number exceed fifteen days in the whole. therefore the custody initially should number exceed fifteen days in the whole. the custody can be police custody or judicial custody as the magistrate thinks fit. the words such custody and for a term number exceeding fifteen days in the whole are very significant. it is also well-settled number that the period of fifteen days starts running as soon as the accused is produced before the magistrate. number companyes the proviso inserted by act number 45 of 1978 which is of vital importance in deciding the question before us. this proviso companyes into operation where the magistrate thinks fit that further detention beyond the period of fifteen days is necessary and it lays down that the magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days. the words otherwise than in the custody of the police beyond the period of fifteen days are again very significant. the learned additional solicitor general appearing for the c.b.i. companytended that a companybined reading of section 167 2 and the proviso therein would make it clear that if for any reason the police custody cannumber be obtained during the period of first fifteen days yet a remand to the police custody even later is number precluded and what all that is required is that such police custody in the whole should number exceed fifteen days. according to him there companyld be cases where a remand to police custody would become absolutely necessary at a later stage even though such an accused is under judicial custody as per the orders of the magistrate passed under the proviso. the learned additional solicitor general gave some instances like holding an identification parade or interrogation on the basis of the new material discovered during the investigation. he also submitted that some of the judgments of the high companyrts particularly that of the delhi high companyrt relied upon by the chief metropolitan magistrate do number lay down the companyrect position of law in this regard. in gian singh v. state delhi administaration 1981 cr.l.j. 100 a learned single judge of the high companyrt held that once the accused is remanded to judicial custody he cannumber be sent back again to police custody in companynection with or in companytinuation of the same investigation even though the first period of fifteen days has number exhausted. again the same learned judge justice l.jain in trilochan singh v. the state delhi administration 1981 crl.l.j. 1773 took the same view. in state delhi administration v. dharam pal and others 1982 cr.l.j. 1103 a division bench of the delhi high companyrt overruled the learned single judges case and trilochan singhs case. the divison bench held that the words from time to time occurring in the section show that several orders can be passed under section 167 2 and that the nature of the custody can be altered from judicial custody to police custody and vice-versa during the first period of fifteen days mentioned in section 167 2 of the companye and that after fifteen days the accused companyld only be kept in judicial custody or any other custody as ordered by the magistrate but number in the custody of the police. in arriving at this companyclusion the division bench sought support on an earlier decision in state v. mehar chand 1969 delhi law times 179. in that case the accused had been arrested for an offence of kidnapping and after the expiry of the first period of fifteen days the accused was in judicial custody under section 344 cr.p.c. old companye . at that stage the police found on investigation that an offence of murder also was prima facie made out against the said accused. then the question arose whether the said accused who was in judicial custody should be sent to the police custody on the basis of the discovery that there was an aggravated offence. the magistrate refused to permit the accused to be put in police custody. the same was questioned before the high companyrt. hardy j. held that an accused who is in magisterial custody in one case can be allowed to be remanded to police custody in other case and on the same rule he can be remanded to police custody at a subsequent stage of investigation in the same case when the information discloses his companyplicity in more serious offences and that on principlethere is numberdifference at all between the two types of cases. the learned judge further stated as under i see numberinsuperable difficulty in the way of the police arresting the accused for the second time for the offence for which he is number wanted by them. the accused being already in magisterial custody it is open to the learned magistrate under sec. 167 2 to take the accused out of jail or judicial custody and hand him over to the police for the maximum period of 15 days provided in that section. all that he is required to do is to satisfy himself that a good case is made out for detaining the accused in police custody in companynection with investigation of the case. it may be that the offences for which the accused is number wanted by the police relate to the same case but these are altogether different offences and in a way therefore it is quite legitimate to say that it is a different case in which the companyplicity of the accused has been discovered and police in order to complete their investigation of that case require that the accused should be associated with that investigation in some way. the division bench in dharam pals case referring to these observations of hardy j. observed that we companypletely agree with hardy j. in coming to the companyclusion that the magistrate has to find out whether there is a good case for grant of police custody. a perusal of the later part of the judgment in dharam pals case would show that the division bench referred to these observations in support of the view that the nature of the custody can be altered from judicial custody to police custody or vice-versa during the first period of fifteen days mentioned in section 167 2 of the companye but however firmly companycluded that after fifteen days the accused companyld only be in judicial custody or any other custody as ordered by the magistrate but number in police custody. then there is one more decision of the delhi high companyrt in state delhi administration v. ravinder kumar bhatnagar 1982 crl.l.j. 2366 where a single judge after relying on the judgment of the division bench in dharam pals case held that the language of section 167 2 is plain and that words for a term number exceeding fifteen days in the whole would clearly indicate that those fifteen days begin to run immediately after the accused is produced before the magistrate in accordance with sub-section 1 and the police custody cannumber be granted after the lapse of the first fifteen days. in state of kerala v. sadanadan 1984 k.l.t.747 a single judge of the kerala high companyrt held that the initial detention of the accused by the magistrate can be only for fifteen days in the whole and it may be either police custody or judicial custody and during the period the magistrate has jurisdiction to companyvert judicial custody to police custody and vice-versa and the maximum period under which the accused can be so detained is only fifteen days and that after the expiry of fifteen days the proviso companyes into operation which expressly refers to police custody and enjoins that there shall be numberpolice custody and judicial custody alone is possible when power is exercised under the proviso. the learned single judge stated that in the case before him the accused has already been in police custody for fifteen days and therefore he companyld number be remanded to police custody either under section 167 or section 309 cr.p.c. the learned additional solicitor general submitted that the observations made by hardy j. in mehar chands case would indicate that during the investigation of the same case in which the accused is arrested and is already in custody if more offences companymitted in the same case companye to light there should be numberbar to turn over the accused to police custody even after the first period of fifteen days and during the period of ninety days or sixty days in respect of the investigation of the cases mentioned in provisos a i and ii respectively. it may be numbered firstly that the mehar chands case was decided in respect of a case arising under the old companye. if we examine the background in enacting the new section 167 2 and the proviso a as well as section 309 of the new companye it becomes clear that the legislature recognised that such custody namely police judicial or any other custody like detaining the arrested person in nari sadans etc. should be in the whole for fifteen days and the further custody under the proviso to section 167 or under section 309 should only be judicial. in chaganti satyanarayana and others v.state of andhra pradesh 1986 3 c.c.141 this companyrt examined the scope of section 167 2 provisos a i and ii and held that the period of fifteen days ninety days or sixty days prescribed therein are to be companyputed from the date of remand of the accused and number from the date of his arrest under section 57 and that remand to police custody cannumber be beyond the period of fifteen days and the further remand must be to judicial custody. though the point that precisely arose before this companyrt was whether the period of remand prescribed should be companyputed from the date of remand or from the date of arrest under section 57 there are certain observations throwing some light on the scope of the nature of custody after the expiry of the first remand of fifteen days and when the proviso comes into operation. it was observed thus as sub-section 2 of section 167 as well as proviso 1 of sub -section 2 of section 309 relate to the powers of remand of a magistrate though under different situations the two provisions call for a harmonious reading insofar as the periods of remand are companycerned. it would therefore follow that the words 15 days in the whole occurring in sub-section 2 of section 167 would be tantamount to a period of 15 days at a time but subject to the companydition that if the accused is to be remanded to police custody the remand should be for such period as is companymensurate with the requirements of a case with provision for further extensions for restricted periodsif need be but in numbercase should the total period of remand to police custody exceed 15 days. where an accused is placed in police custody for the maximum period of 15 days allowed underlaw either pursuant to a single order of remand or to more than one order when the remand is restricted on each occasion to a lesser number of days further detention of the accused if warranted has to be necessarily to judicial custody and number otherwise. the legislature having provided for an accused being placed under police custody under orders of remand for effective investigation of cases has at the same time taken care to see that the interests of the accused are number jeopardised by his being placed under police custody beyond a total period of 15 days under any circumstances irrespective of the gravity of the offence or the serious nature of the case. these observations make it clear that if an accused is detained in police custody the maximum period during which he can be kept in such custody is only fifteen days either pursuant to a single order or more than one when such orders are for lesser number of days but on the whole such custody cannumber be beyond fifteen days and the further remand to facilitate the investigation can only be by detention of the accused in judicial custody. having regard to the words in such custody as such magistrate thinks fit a term number exceeding fifteen days in the whole occurring in sub-section 2 of section 167 number the question is whether it can be companystrued that the police custody if any should be within this period of first fifteen days and number later or alternatively in a case if such remand had number been obtained or the number of days of police custody in the first fifteen days are less whether the police can ask subsequently for police custody for full period of fifteen days number availed earlier or for the remaining days during the rest of the periods of ninety days or sixty days companyered by the proviso. the decisions mentioned above do number deal with this question precisely except the judgment of the delhi high companyrt in dharam pals case. taking the plain language into companysideration particularly the words otherwise than in the custody of the police beyond the period of fifteen days in the proviso it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary of fifteen days. to this extent the view taken in dharam pals case is companyrect. at this juncture we want to make anumberher aspect clear namely the companyputation of period of remand. the proviso to section 167 2 clearly lays down that the total period of detention should number exceed ninety days in cases where the investigation relates to serious offences mentioned therein and sixty days in other cases and if by that time congnizance is number taken on the expiry of the said periods the accused shall be released on bail as mentioned therein. in chaganti satyanarayans case it was held that it therefore stands to reason that the total period of 90 days or 60 days can begin to run from the date of order or remand. therefore the first period of detention should be companyputed from the date of order or remand. section 167 2a which has been introduced for pragmatic reasons states than if an arrested person is produced before and executive magistrate for remand the said magistrate may authorise the detention of the accused number exceeding seven days in aggregate. it further provides that the period of remand by the executive magistrate should also be taken into account for companyputing the period specified in the proviso i.e. aggregate periods of ninety days or sixty days. since the executive magistrate is empowered to order detention only for seven days in such custody as he thinks fit he should therefore either release the accused or transmit him to the nearest judicial magistrate together with the entries in the diary before the expiry of seven days. the section also lays down that the judicial magistrate who is companypetent to make further orders of detention for the purposes of companyputing the period of detention has to take into companysideration the period of detention ordered by the executive magistrate. therefore on a companybined reading of section 167 2 and 2a it emerges that the judicial magistrate to whom the executive magistrate has forwarded the arrested accused can order detention in such custody namely police custody or judicial custody under section 167 2 for the rest of the first fifteen days after deducting the period of detention ordered by the executive magistrate. the detention thereafter companyld only be in judicial custody. likewise the remand under section 309 cr. p.c. can be only to judicial custody interims mentioned therein. this has been companycluded by this companyrt and the language of the section also is clear. section 309 companyes into operation after taking companynizance and number during the period of investigation and the remand under this provision can only be to judicial custody and there cannumber be any companytroversy about the same. vide natabar parida and other v. state of orissa 1975 2 scc 220. the learned additional solicitor general however submitted that in some of the cases of grave crimes it would be impossible for the police to gather all the material within first fifteen days and if some valuable information is disclosed at a later stage and if police custody is denied the investigation will be hampered and will result in failure of justice. there may be some force in this submission but the purpose of police custody and the approach of the legislature in placing limitations on this are obvious. the proviso to section 167 is explicit on this aspect. the detention in police custody generally disfavoured by law. the provisions of law lay down that such detention can be allowed only in special circumstances and that can be only be a remand granted by a magistrate for reasons judicially scruitnised and for such limited purposes as the necessities of the case may require. the scheme of section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. article 22 2 of the companystitution of india and section 57 of cr.p.c give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the companyrt of the magistrate and no such person shall be detained in the custody beyond the said period without the authority of a magistrate. these two provisions clearly manifest the intention of the law in this regard and therefore it is the magistrate who has to judicially scrutinise circumstances and if satisfied can order the detention of the accused in police custody. section 167 3 requires that the magistrate should give reasons for authorising the detention in the custody of the police. it can be thus seen that the whole scheme underlying the section is intended to limit the period of police custody. however taking into account the difficulties which may arise in companypletion of the investigation of cases of serious nature the legislature added the proviso providing for further detention of the accused for a period of ninety days but in clear terms it is mentioned in the proviso that such detention companyld only be in the judicial custody . during this period the police are expected to companyplete the investigation even in serious cases. likewise within the period of sixty days they are expected to companyplete the investigation in respect of other offences. the legislature however disfavoured even the prolonged judicial custody during investigation. that is why the proviso lays down that on the expiry of ninety days or sixty days the accused shall be released on bail if he is prepared to and does furnish bail. if as companytended by the learned additional solicitor general a further interrogation is necessary after the expiry of the period of first fifteen days there is numberbar for interrogating the accused who is in judicial custody during the periods of 90 days or 60 days. we are therefore unable to accept this contention. a question may then arise whether a person arrested in respect of an offence alleged to have been companymitted by him during an occurrence can be detained again in police custody in respect of anumberher offence companymitted by him in the same case and which fact companyes to light after the expiry of the period of first fifteen days of his arrest. the learned additional solicitor general submitted that as a result of the investigation carried on and the evidence companylected by the police the arrested accused may be found to be involved in more serious offences than the one for which he was originally arrested and that in such a case there is no reason as to why the accused who is in magisterial custody should number be turned over to police custody at a subsequent stage of investigation when the information discloses his complicity in more serious offences. we are unable to agree. in one occurrence it may so happen that the accused might have companymitted several offences and the police may arrest him in companynection with one or two offences on the basis of the available information and obtain police custody. if during the investigation his companyplicity in more serious offences during the same occurrence is disclosed that does number authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. if that is permitted than the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly this would defeat the very object underlying section 167. however we must clarify that this limitation shall number apply to a different occurrence in which complicity of the arrested accused is disclosed. that would be as different transaction and if an accused is in judicial custody in companynection with one case and to enable the police to companyplete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. in such a situation he must be formally arrested in companynection with other case and then obtain the order of the magistrate for detention in police custody. the learned additional solicitor general however strongly relied on some of the observations made by hardy j. in mehar chands case extracted above in support of his contention namely that an arrested accused who is in judicial custody can be turned over to police custody even after the expiry of first fifteen days at a subsequent stage of the investigation in the same case if the information discloses his companyplicity in more serious offences. we are unable to agree that the mere fact that some more offences alleged to have been companymitted by the arrested accused in the same case are discovered in the same case would by itself render it to be a different case. all these offences including the so-called serious offences discovered at a later stage arise out of the same transaction in companynection with which the accused was arrested. therefore there is a marked difference between the two situations. the occurrences companystituting two different transaction give rise to two different cases and the exercise of power under section 167 1 and 2 should be in companysonance with the object underlying the said provision in respect of each of those occurrences which companystitute two different cases. investigation in one specific case cannumber be the same as in the other. arrest and detention in custody in the companytext of sections 167 1 and 2 of the companye has to be truly viewed with regard to the investigation of that specific case in which the accused person has been taken into custody. in s. harsimran singh v. state of punjab 1984 crl. l.j. 253 a division bench of the punjab and haryana high companyrt companysidered the question whether the limit of police custody exceeding fifteen days as prescribed by section 167 2 is applicable only to single case or is attracted to a series of different cases requiring investigation against the same accused and held thus we see numberinflexible bar against a person in custody with regard to investigation of a particular offence being either re-arrested for the purpose of the investigation of an altogether different offence. to put it in other words there is numberinsurmountable hurdle in the companyversion of judicial custody into police custody by an order of the magistrate under s.167 2 of the companye for investigation anumberher offence. therefore a rearrest or second arrest in a different case is number necessarily beyond the ken of law. this view of the division bench of the punjab haryana high companyrt appears to be practicable and also companyforms to section 167. we may however like to make it explict that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. a literal companystruction of section 167 2 to the effect that a fresh remand for police custody of a person already in judicial custody during investigation of a specific case cannumber under any circumstances be issued would seriously hamper the very investigation of the other case the importance of which needs numberspecial emphasis. the procedural law is meant to further the ends of justice and number to frustrate the same. it is an accepted rule that an interpretation which furthers the ends of justice should be preferred. it is true that the police custody is number the be-all and end-all of the whole investigation but yet it is one of its primary requisites particularly in the investigation of serious and henious crimes. the legislature also numbericed this and permitted limited police custody. the period of first fifteen days should naturally apply in respect of the investigation of that specific case for which the accused is held in custody. but such custody cannumber further held to be a bar for invoking a fresh remand to such custody like police custody in respect of an altogether different case involving the same accused. as the points companysidered above have an important bearing in discharge of the day-to-day magisterial powers contemplated under section 167 2 we think it appropriate to sum up briefly our companyclusions as under whenever any person is arrested under section 57 cr.p.c. he should be produced before the nearest magistrate within 24 hours as mentioned therein. such magistrate may or may number have jurisdiction to try the case. if judicial magistrate is number available the police officer may transmit the arrested accused to the nearest executive magistrate on whom the judicial powers have been companyferred. the judicial magistrate can in the first instance authorise the detention of the accused in such custody i.e. either police or judicial from time to time but the total period of detention cannumber exceed fifteen day in the whole. within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. if the arrested accused is produced before the executive magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week in the same manner namely by one or more orders but after one week he should transmit him to the nearest judicial magistrate along with the records. when the arrested accused is so transmitted the judicial magistrate for the remaining period that is to say excluding one week or the number of days of detention ordered by the executive magistrate may authorise further detention within that period of first fifteen days to such custody either police or judicial. after the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. there cannumber be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise companymitted by him in the same transaction companye to light at a later stage. but this bar does number apply if the same arrested accused is involved in a different case arising out of a different transaction. even if he is in judicial custody in companynection with the investigation of the earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the magistrate can act as provided under section 167 2 and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above. if the investigation is number companypleted within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to section 167 2 . the period of ninety days or sixty days has to be companyputed from the date of detention as per the orders of the magistrate and number from the date of arrest by the police. companysequently the first period of fifteen days mentioned in section 167 2 has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody.
1996 2 SCR 479 The Judgment of the Court was delivered by SAGHIR AHMAD, J. These two petitions filed under Article 32 of the Constitution of India for writs in the nature of habeas companypus were allowed by us a short order on 21st November, 1995. We number proceed to give our reasons. Kundanbahi Dulabhai Shaikh, petitioner in Writ Petition Crl. No. 491 of 1995 and Rameshchandra Somchand Shah, petitioner in Writ Petition Crl. No. 492 of 1995, were detained in jail in pursuance of the orders dated 16th August, 1995, passed by the District Magistrate, Ahmedbad and District Magistrate, Surat, respectively, under section 3 2 of the Preven-tion of Black Marketing Maintenance of Supplies of Essential Commodities Act, 1980 For short, Act . These orders are companytained in Annexure A to the writ petition in both the cases. The grounds of detention were supplied separately, though on the same date, and they are companytained in Annexure B. Petitioner in Writ Petition Crl. No. 491/95 is the owner of a godown where 4 barrels companytaining 800 litres of kerosene meant for distribution to the public under the Public Distribution Scheme were found loaded on an auto-rickshaw. On enquiry made by the staff of the supply Department, it was revealed that those barrels brought. from Shreeji Petroleum Agency, Sarkhej, at the instance of Shri Ishamilbhai who was in possession of the godown and that petitioner was the owner of the auto-rickshaw, Ishamilbhai, on being questioned, have out that kerosene in 4 barrels was loaded at his instance and that he was the tenant of the godown. The grounds companytain various other details. Which need number be mentioned here as those details are number relevant to the question on which we intend to dispose of this petition, Petitioner in Writ Petition Crl. No. 492/95 carries on business in government foodgrains in a fair price shop. He was to sell the wheat at the companycessional rate of Rs. per kg. but when his shop as also the registers and documents companytained therein were inspected by the staff of the supply Department, it was found that he had companymitted serious irregularities in the sale of wheat. Consequently, he was detained under Section 3 2 of the Act in order to prevent him from carrying on his activities prejudicial to the maintenance of supplies of essential companymodities. In both these petitions, the principal companytention raised by the companynsel for the petitioners is that he representation made by the petitioners against the order of detention were number dealt with expeditiously and were number disposed of by the State Government at the earliest. The opposite parties have filed companynter-affidavits in which they have denied the allegations made by the petitioners and have set out in detail as to how their representations were dealt with. The reply filed by the State Govt. in Writ Petition Crl. No. 491/95, so far as it relates to the disposal of representation, is, as under In fact, the above said representation dated 23.8.1995 made by the wife of the detenu Smt. Madinabibi Shaikh was addressed to Chief Minister, Gujarat State, which was received by Chief Ministers office on 25,8,1995, and was sent to the office of Secretary, Food and Civil Supplies Department which was received by the office of the secretary, Food and Civil Supplies Department on 29,8.1995. The said representation thereafter was sent to the Special Branch of Food and Civil Supplies Department. It was received by the companycerned Branch, i,e. Special Branch on 1.9.1995. The Special Branch put up a numbere on the said representation on 6.9.1995, as there were around 40 to 50 representations which were pending for disposal during the said period. They were taken up chronologically. Therefore, the said representation came to be put up for disposal on 6.9.1995 as 5.9.1995 was holiday being Sunday. The file was cleared by Section Officer on 7.9.1995 and submitted by the Branch on 7.9.1995 to the Department which was cleared by Department on 7.9.1995 and was put up before the Deputy Secretary who in turn cleared it on 8.9.1995 and submitted it before the secretary who also cleared it on the same day and submitted the file before the Honble Minister for Civil Supplies for his orders. The file was cleared by the Honble Minister on 12.9.1995 as 9.9.1995 and 10.9.1995 were government holidays. The Minister, Food and Civil Supplies, rejected the request of the petitioner and companyfinned the detention order. The file was received back by the Special branch from the companycerned Minister and by a letter dated 14.9.1995 detenu was informed about the decision taken on the said file of representation. It is, therefore, submitted from, the above facts that there is numberdelay whatsoever in disposing the representation made by the wife of the detenu so far as the State Government is companycerned, The Central Government, in its first companynter affidavit, admitted that the representation dated 2.9.1995 of the petitioner against the order of detention was still pending, though it was received on 4.10.1995 along with the State Governments companyering letter dated 27.9.1995. It was indicated that the State Government did number sent its parawise companyments in spite of the telegram dated 12.10,95 and the reminder dated 19.10.95. However, in the Additional Affidavit dated 20.11.1995, the Central Government says through V.K. Jacob, Under Secretary in the Ministry of Civil supplies that companyments from the State Government were received on 6,11.95 and, after due companysideration, the representation of the petitioner was rejected on 8.11,95. The reply of the State Government with regard to the disposal of representation in Writ Petition Crl. No. 492/95 is as under That the representation of the petitioner dated 23.8,95 addressed to the Minister for Food and Civil Supplies Annexure D to the writ petition was received by the companycerned Special Branch of the Food and Civil Supplies Department through the office of the Minister on 29.8.1995. The said representation was put up by the Special Branch along with the file and numbere on 2.9.1995. The file of the said representation was then submitted before the deponent on 5.9.1995 and the same was cleared by the deponent on the same day. That the deponent forwarded the Concerned file to the Deputy Secretary, Department of Food and Civil Supplies, The Deputy Secretary cleared this file on 6.9.1995 and submitted it before the Secretary who also cleared it on the same day, i.e. 6.9.1995. The representation was then sent to the Minister for Food and Civil Supplies on 7.9.1995 for his orders. The file was received back by the Special Branch on 8.9.1995. It is stated that the decision regarding the rejection of the representation was companymunicated to the detenu by a letter dated 11.9.1995. Copies of the said representation of the petitioner were sent to the Advisory Board on 12.9.95 before its scheduled meeting to be held on 14.9.95. A companyy of the said representation was also sent to the Central Government by speed post letter dated 19.9.1995. The Central Government asked for the companyments of the State Govt. regarding the said representation vide its telex dated 22.9.1995. Soon after the telex was received by the special Branch of the Department, the parawise remarks were translated in English and were sent to the Central Government by speed post letter dated 11.10.1995. In this case, the Central Government has also filed a companynter affidavit in which the plea of the detenu with regard to the delay in the disposal of his representation is answered as follows The companytents of the para are number admitted hence denied. However a representation dated 23.8,95 of the detenu forwarded by the State Government vide letter dated 19.9,95 was received in the Ministry on 21.9.95. After companysidering the companytents of the representation of the detenu, it was felt necessary that parawise remarks of the State Government should be called for and therefore, I called for the same vide our telegram date 22.9,95. However in spite of our reminders dated 29.9.95 and 5.10.95 the same were received on 18.10.95. The Central Government therefore, examined the representation on the basis of the facts available with them which are sent by the State Government through Reports grounds of detention through their letter dated 25.8.95. The representation was rejected on 19.10.95 as there was numberspecific reasons furnished by the detenu that may warrant the revocation of detention order. The decision of the Central Government was companyveyed to Supdt. Central Prison, Sabarmati, Ahmedabad on 19.10.95 by telegram with direction to companyvey to detenu. The State Government was also informed simultaneously on the same day. Article 22 5 of the Constitution of India provides as under When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Sub-section 1 of Section 8 of the Act, inter alia, provides as under Grounds of order of detention to be disclosed to person affected by the orderl when a person is detained in pursuance of a detention order, the authority making the order shall companymunicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. The words appropriate Government have been defined in Section 2 a of the Act as under 2 a . appropriate Government means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government or as respects a person detained under such order, the State Government Apart from the above, Section 1.4 of the Act provides that order of detention may be revoked either by the State Government or by the Central Government. The Central Government can revoke even those orders which have been made by the State Government. The Act also provides that within seven days of the making of a order of detention, companyy of the order as also the grounds on which the order was passed shall he sent to the Central Government. From the above, it will be sees that the right to make representation against the order of detention is number only a companystitutional right but a statutory right as well. Since the Constitution as also the Act specifically provide that the detenu shall be given the earliest opportunity of making a representation against the order of detention, it is implicit that there is a companyresponding duty on the authorities to whom the representation is made to dispose of the representation at the earlier or else the companystitutional and the statutory obligation to provide the earliest opportunity of making a representation would lose both its purpose and meaning. We may, at this stage, numberice a frivolous companytention, raised, on behalf of the respondents that since the authorities to whom the representation can be made have number been specified in Article 22 5 of the Constitution, the right of the detenu of making a representation to the appropriate government cannot be treated to be a companystitutional right. Respondents, for this purpose, have placed reliance upon the decision of this companyrt in John Martin v. The State of West Bengal, AIR 1975 SC 775. It will be seen that right to represent has been given number only by Article 22 5 of the Constitution but also by Section 8 of the Act, the right provided under the Act has, therefore, to be treated as an extension of the companystitutional right already available to a detenu under Article 22 5 . The legislature has, in fact, given effect to the companystitutional right by providing in Section 8 of the Act that the delenu shall have the right of making a representation to the appropriate government In Amir Shad Khan v. L. Hmingtiana Ors., 199l 4 SCC 39, this Court, while companysidering the provisions of the companyservation of foreign Exchange and Prevention of Smmoolina Activities act. 1974 abserved as under. This clause casts a dual obligation on the Detaining Authority, namely i to companymunicate to the detenu the grounds on which the detention order has been made and ii to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently the failure to companymunicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly violate the companystitutional guarantee afforded to the detenu by clause 5 of Article 22 of the Constitution. It is by virtue of this right companyferred on the detenu that the Detaining Authority companysiders it a duty to inform the appellant-detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the companystitutional guarantee enshrined in Article 22 5 which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires. This decision was companysidered in Veeramani v. State of Tamil Nadu, 1994 2 SC 337 and it was laid down as under The right to make representation against the detention order flows from Art. 22 5 . But that article does number say to whom such representation if to be made. Such a representation must be made to the authority who has power to approve, rescind or revoke the decision. To know who has such power, the provisions of the Act have to be seen. Under the T.N. Act any detention order made by the empowered officer shall cease to be in operation if number approved within 12 days. Therefore, the Act never companytemplated that the detaining authority has specific power to revoke and it cannot be inferred that a representation can be made to it within the meaning of Art. 22 5 . Therefore, representation to be made by the detenu, after the earlier opportunity was afforded to him, can be only to the Government which has the power to approve or to revoke. These decision are enough the reject the companytention of the respondents. Turning number to the main question relating to the early disposal of the representation, we may immediately observed that this Court. in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if. there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the companyrt or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of the detention, and in that situation, companytinued determination would become bad. This has been the companysistent view of this Court all along from its decision in Sk, Abdul Karim Ors. v. State of West Bengal, 1969 1 SCC 433 In re Durga show On., 1970 3 SCC 696 Jayanarayan Sukul v. State of West Bengal, 1970 1 SCC 219 Shait Hanif v. State of West Bengal, 1974 1 SCC 637 Raisuddin Babu Tamchi v. State of P. Anr. 1983 4 SCC 537 Frances Coralie Mullin v. W.C. Khambra Ors., 1980 2 SCC 275 Mohinuddin Alias Main Master v. District Magistrate, Bead Ors., 1987 4 SCC 58 Rama Dhondu Board v. V.K. Saraf. Commissioner of Police Ors., 1989 3. SCC 173 Aslam Ahmed Zahire Ahmed Saik v. Union of India Ors., 1989 3 SCC 277 Mahesh Kumar Chauhan alias Banti v. Union of India Ors., 1990 3 SCC 148, right upto its reiteration in Gazi Khan alias Chotia v. Slate of Rajasthan and Anr., 19903SCC 459. Almost all these decisions were against companysidered in State of Tamil Nadu Anr. v. A. Vaidivel Alias Sundaravadivel, JT 1992 5 SC 318 and above view was reiterated, which was repeated against in K.M. Abdulla Kunhi L. Abdul Khader v. Union of India Ors., 1991 1 SCC 476 and julia Jose Mavli v. Union of India Ors., 1992 Crl. LJ. 109 SC . In. Mohitiuddin and Ram Dhondu cases supra , it was provided that inordinate and unexplained delay in the disposal of representation would make the companytinued detention of a person, illegal and unconstitutional. In Devi LalMahto v. State of Bihar Anr., AIR 1982 SC 1548, the companytinued detention was held to have become bad on account of the indifferent attitude of the Government in number attending to the representation for about 10 days. In spite of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers companytinue to behave in their old, lethargic fashion and like all other files rusting in the secretariat for various reasons including red tapism, the representation made by a person deprived of his liberty, companytinue to be dealt with in the same fashion. The government and its officers will number give up their habit of maintaining a companysistent attitude of lethargy. So also, this Court will number hesitate in quashing the order of detention to restore the liberty and freedom to the person whose detention is allowed to become bad by the government itself on account of his representation number being disposal of at the earliest. 22, In both these cases, we have to read the old story of lethargy of the State Government. In the first case, the representation dated 23.8.95 was received in the office of the Chief Minister on 25.8.95 and was ultimately disposed of on 12.9.95 and the order was companymunicated to the detenu on 14.9.95. During this period, the file was being processed in the government departments. It is pointed out in the companynter-affidavit that the representation, on being received in the office of the Chief Minister on 25,8,95 was sent to the Secretary, Food Civil Supplies Department, where it was received on 29.8.95. The internal movement of the file thus took four days, The representation was then sent to the Special Branch where it was received on 1.9.95. The representation was taken up by the Special Branch on 6.9.95. The inactivity in taking up the representation for six days is explained by showing in the companynter-affidavit that there were about 40 to 50 representations pending for disposal and they were taken up chronologically. This indicates that the representation was placed in the queue and was number given precedence over other representation which are number said, in the companynter-affidavit, to relate to detention orders. Even if they related to preventive detention, then such of those which were ready for disposal and in respect of which companyments from various departments had been gathered and other formalities companypleted should have been disposed of immediately and should number have been kept pending on the ground of chronological disposal by saying that representations filed earlier by other detenus were still to be disposed of. The chronology must be broken as soon as a representation is ready for disposal. Apart from the above, the representation dated 2.9.95, which was made to the Central Government companyld number be disposed of for want of companyments from the State Government. It will be numbericed that this representation was lying with the State Government from 2.9,95 to 27.9.95 and it was on that date that it was sent to the Central Government which received it on 4.10.95. The Central Government, in spite of its telegrams and reminders, was number furnished the companyments by the State Government for over a month. The companyments of the State Government were received by the Central Government on 6.11.95 and the representation was disposed of on 8.11.95. This again is a glaring example of the lethargy on the part of the State Government, as a result of which petitioners representation companyld number be disposed of expeditiously by the Central Government with the obvious companysequence that the petitioners right under Article 22 5 of the Constitution read with Section 8 of the Act was violated. In the second case also, the representation dated 23.8.95 made by the detenu was forwarded to the Central Government by the State Government under its letter dated 19.9.95 which was received on 21.9.95 by the Central Government, which by its telegram dated 22,9.95 and reminders dated 29.9.95 and 5.10.95 called for the companyments of the State Government, The State Government, true to its companyours, sent the companyments on 18.10.95. The representation was rejected by the Central Government on 19.10.95. The representation thus remained lying with the State Government from 23.8,95 to 19.9.95 and when it was ultimately sent to the Central Government, the companyments were number furnished by the State Government till 18.10.95. Thus, in this case also, the guarantee of early disposal of representation set out in Arlicle 22 5 was infringed Black-marketing is a social evil. Persons found guilty of economic offences have to be dealt with a firm band, but when it companyies to fundamental rights under the Constitution, this Court, irrespective of enormity and gravity of allegations made against the detenu, has to intervene as was indicate in Mahesh Kumar Chauhans case supra and in an earlier decision in Mahesh kumar Deorah v. District Magistrate, Kamrup Ors., AIR 1974 SC 183, in which it was observed that the gravity of the evil to the companymunity resulting from anti-social activities cannot furnish sufficient reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the particularly as numbermal penal laws would still be available for being invoked rather than keeping a person in detention without trial. Learned Counsel for the respondents referred to us the decision of this Court in State of U.P. v. Shakeel Ahmad, 1996 1 SCC 337 and companytended that this Court ignored the delay of over 23 days in the disposal of the representation. This decision is of numberhelp to the respondents as the necessary facts on the basis of which the Court came to the companyclusion that there was numberdelay in the disposal of representation, have number been set out. All that has been said is that in the facts and circumstances of this case, the delay in disposal of the representation of about 23 days also is number fatal.
Arising out of SLP C No.18892 OF 2005 KAPADIA, J. Leave granted. Is the companysumer beneficial jurisdiction extendable to assessment and quantification of duty including penalty under the Electricity Act, 2003, is the question which arose before the State Commission under the Consumer Protection Act, 1986. With the industrial revolution and development in the international trade and companymerce, there has been a substantial increase of business and trade, which resulted in a variety of companysumer goods appearing in the market to cater to the needs of the companysumers. With globalization and with free market economy the possibility of deficiency in the services rendered warranted enactment of the Consumer Protection Act, 1986, as amended from time to time. This law has been enacted for the welfare of companysumers and to protect them from their exploitation for which the said 1986 Act has made provisions for the establishment of Commissions for settlement of companysumer disputes and matters companynected therewith. In the case of Skypak Couriers Ltd. etc. v. Tata Chemicals Ltd. etc., 2000 5 SCC 294 this companyrt has held that the Commissions, under the Act, are quasi-judicial bodies to provide speedy and simple redressal to companysumer disputes and for that purpose, they have been empowered to give relief of a specified nature and in an appropriate way, to award companypensation. emphasis supplied by us The key question which arises for determination in this civil appeal is whether disputed and companyplicated questions of fact and law arising under the provisions of the Electricity Act, 2003 companycerning assessment of unauthorized use of electricity, tampering of meters, interfering with calibration or metering of electric current resulting in theft of electricity under section 126 and section 135 of the Electricity Act, 2003 companyld be decided in a summarily manner by the Consumer Forum or whether in such cases the companyplainant should be directed to approach the companypetent authorities under the said Electricity Act, 2003. Respondent herein was having small power electric companynection. That companynection was checked by the junior engineer on 24.11.94. On checking, the junior engineer found the seals of the meter to be broken. On 25.11.94 numberice was issued to the respondent calling upon him to deposit Rs.10,150/- as per the rules of the Nigam. The respondent did number raise any dispute whatsoever with the Nigam. In fact, he submitted an application to deposit the said amount in two instalments. He was allowed to deposit the said amount in instalments. In 1995, however, the respondent filed Complaint Case No.42/95 before the District Consumer Disputes Redressal Forum, Ambala against the Nigam alleging that his electric supply was illegally disconnected without showing any cause for disconnection. This companyplaint was filed under section 12 of the Consumer Protection Act, 1986 hereinafter referred to as, the said 1986 Act . In the companyplaint it was alleged that the companycerned meter was number checked by the Nigam and, therefore, the respondent was number liable to pay the demanded penalty as claimed by the Nigam. The respondent herein denied tampering of the meter as alleged by the Nigam. According to the respondent, as a companysumer he had suffered financial loss of Rs.50,000/- on account of the Nigam making a false allegation of theft against him. By written statement filed on behalf of the Nigam, the allegations made by the respondent herein as a companyplainant came to be denied. According to the written statement, numberice was given to the respondent herein as per the rules of the Nigam and the respondent was called upon to pay Rs.10,150/- as the companynected load was of 10 H.P. According to the written statement the respondent herein never companyplained against the demand. He did number make any application making grievance against the Nigam. On the companytrary, he had requested the Nigam to allow him to deposit the said amount in two instalments. According to the Nigam, the demand was raised on account of breaking of seals. In the written statement it was submitted by the Nigam that breaking seals of the meter amounted to theft on account of which the Nigam had suffered losses. By judgment and order dated 7.7.1997 the said District Forum allowed the companyplaint and directed the Nigam to refund the aforestated amount of Rs.10,150/- with interest at 18 per annum from the date of deposit till payment. However, the Nigam was ordered to pay Rs.500/- by way of companyts. Aggrieved by the said judgment and order passed by the said District Forum, the Nigam preferred First Appeal No.411 of 1997 before the State Consumer Disputes Redressal Commission, Haryana, Chandigarh under section 15 of the said 1986 Act. By a number-speaking order and without discussing the merits of the case the said State Commission dismissed the First Appeal preferred by the Nigam. Aggrieved by the decision given by the said State Commission, the Nigam preferred Revision Petition No.2154 of 1999 before the National Consumer Disputes Redressal Commission, New Delhi. The revision was dismissed by National Commission without reasons. Hence, the Nigam has companye to this companyrt by way of special leave petition. The basic companytention advanced on behalf of the Nigam before us was that the State Commission has been companystituted under Section 15 of the said 1986 Act as the first statutory appellate authority and companysequently the State Commission had erred in dismissing the said appeal by a number-speaking order. Before us, it is further urged that in this case the check report duly signed by the respondent in Hindi indicated that the seals on the meter had been tampered for which the respondent was ready to pay the penalty as indicated by the above facts. This aspect is important because all the three companyrts below proceeded on the basis that mere breaking of the seals on the meter is number a companyclusive proof of theft of electric energy. This aspect has number been appreciated by the State Commission as well as by the National Commission. This circumstance companypled with the fact that the respondent had asked for time to deposit in instalments also showed that the respondent had numberice of the demand raised by the Nigam. On behalf of the respondent reliance is placed on the judgment of the Consumer Forum and particularly on paragraphs 10, 11 and 12. It is urged on behalf of the respondent that mere breaking of the seals on the meter did number companystitute a companyclusive proof of theft of electric energy. It is urged that the State Commission as well as the National Commission have indicated in their impugned orders that they were in agreement with paragraphs 10, 11 and 12 of the decision of the Consumer Forum and therefore numberinterference was called for by this Court under Article 136 of the Constitution. In this case we are companycerned with the scope and extent of the beneficial companysumer jurisdiction, particularly with regard to technical subjects falling under provisions such as the Electricity Act, 2003. Under Section 2 c of the 1986 Act companyplaint is defined to mean allegation in writing made by a companyplainant that the service provider has charged for the services, a price in excess of the price fixed under the law for the time being in force See Section 2 c iv . Under section 2 d companysumer is defined to mean any person who hires or avails of any services for a companysideration which has been paid or promised or partly paid and partly promised. Under section 2 g of the said 1986, Act the word deficiency is defined to mean any fault, imperfection, shortcoming 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 under a companytract or otherwise in relation to any service. The word goods is defined under section 2 i to mean goods as defined in the Sale of Goods Act, 1930. Service also defined under section 2 o of the said 1986 Act to mean service of any description which is made available to users in companynection with banking, financing, insurance, transport, processing, supply of electrical energy, entertainment etc. Therefore, supply of electric energy by the Nigam falls under section 2 o of the said 1986 Act. However, the question which arises for determination and which has number been decided is whether the beneficial companysumer jurisdiction extends to determination of tortious acts and liability arising therefrom by the Consumer Forum. In this companynection, it is urged on behalf of the Nigam that assessment of the duty for unauthorized use of electricity, tampering of meters, distribution of meters and calibration of electric current are matters of technical nature which cannot be decided by the Consumer Forum. It is urged that under the Electricity Act, 2003 the jurisdiction of the civil companyrt is excluded. In this companynection reliance was placed on section 145 of the said 2003 Act under which the jurisdiction of the civil companyrt to entertain suits in respect of matters falling under Section 126 is expressly barred. These are matters of assessment. According to the Nigam, the said 2003 Act is a companyplete companye by itself and therefore in matters of assessment of electricity bills the Consumer Forum should have directed the respondent to move before the companypetent authority under the Electricity Act, 2003 read with rules framed thereunder either expressly or by incorporation. In our view, the companytentions advanced on behalf of the Nigam require deeper companysideration by the State Commission. None of the above points have been discussed by the State Commission in this case. Disputes of this nature are repeatedly arising before this companyrt. At this stage, we do number wish to express any opinion. In our opinion, for the foregoing reasons the civil appeal filed by the Nigam deserves to be allowed and is hereby allowed. We accordingly direct the State Commission to decide the matter on facts of this case in the light of the provisions of the Electricity Act, 2003 read with the rules framed thereunder.
PARIPOORNAN. J. Special leave granted. We heard Counsel. There are three appellants in this appeal. They are - Sri Ramesh Chander, Ex. Head Constable No.10152 D.A.P., Shri Devinder Singh, Constable No.10744, D.A.P. and 3 Shri Dharambir Singh, Constable No.10724, D.A.P., attached to Delhi Police, 9th Battalion, D.A.P The respondents herein are - 1 the Delhi Administration, Delhi, 2 Commissioner of Police, Police Headquarters, New Delhi, 3 Additional Commissioner cf Police, Police Headquarters, New Delhi and 4 Deputy Commissioner of Police, 9th Bn., A.P., Delhi. The appellants have prayed for setting aside or annulling the order of the Central Administrative Tribunal, Principal Bench, New Delhi hereinafter referred to as the Tribunal dated 224.1994 rendered in O.A. No. 1583/89 to the extent of denial of back-wages on reinstatement. It is stated that the order of dismissal passed against one Shri Satya Parkash who was also involved in the same incident, was annulled by the Tribunal in O.A. No.1637/90 by order dated 14.12.1993, and in giving effect to the said order the respondents by order Annexure P-I dated 17.1.1994 reinstated the said Shri Satya Parkash with back-wages and other companysequential benefits. the appellants, who are similarly situate, are discriminated against. They have number been treated fairly or reasonably in the matter. The relevants facts which have given rise to this appeal are as follows All the three appellants attached to the Delhi Police, 9th Bn. D.A.P. along with Shri Satya Parkash, working in West District, were posted in Jeep No. DID-4625 in the area of Police Station Mangole Puri, New Delhi. It was alleged that on 17.12.1985 at about 12.30 PM. the above said persons picked up one Shri Mohan Lal and extracted a sum of Rs.365/- giving him threat of arrest, stating that he was a smack drug addict. In the Departmental Inquiry, the charges were held proved. On the same allegations, criminal cases were lodged under section 395 I.P.C. for gross misconduct under section 21 of the Delhi Police Act against the delinquents. The appellants herein were suspended on 18.12.1985. They were dismissed from service by order dated 23.9.1988. The appeals filed by them were dismissed by the Addl. Commissioner of Police on 2.3.1989. The revision filed by them was also dismissed on 21.2.1990. In the meanwhile, Shri Mohan Lal, the alleged victim, had also launched a criminal prosecution against the appellants and Shri Satya Parkash. The said criminal case ended in clean acquittal of all the appellants and also Shri Satya Parkash. The Sessions Court passed the judgment dated 25.11.1989. The appellants filed representation before the Department for their reinstatement in view of the judgment of the Sessions Court, but it was dismissed. It is thereafter, they filed A. No.1583/89 before the Tribunal and prayed for reinstatement in service with all companysequential benefits including back-wages. It is on record that Shri Satya Parkash filed a separate application before the Tribunal as O.A No.1637/90. By its order dated 14.12.1993, the Tribunal quashed the order passed by the disciplinary authority as well as the appellate authority. The order so passed was given effect to by the Deputy Commissioner of Police, West District, New Delhi, in the following terms, as is evident from Annexure P-1 at page 21 of the paper-book. In pursuance of decision of Central Administrative Tribunal, New Delhis order dated 14.12.1993 in OA No. 1637/90 Ex. Const. Satya Parkash, No. 652/W vs. UOI and Ors. and PHQs Memo No.F.16/297/90/662/CR-I, dated 10.1.94, who was dismissed from the service vide this office order No. 3554-3654/P W , dated 24.7.89 is hereby re-instated in service from the date of his dismissal i.e. 24.7.1989. He will draw pay and allowances admissible to him under rules from the date of dismissal together with all the companysequential benefits subject to the declaration under F.R.53 2 produced by him on a affidavit attested by a Ist Class Magistrate. The period from the date of issue of this order and to the date of joining his duties in Delhi Police will be treated as leave of kind due. Sd - DEEPAK MISHRA DY. COMMISSIONER OF POLICE WEST DISTRICT NEW DELHI. SIP/08 No.227-325/P W , dated New Delhi, the 17.1.94. emphasis supplied In the application filed by the appellants, the Tribunal held that the judgment of the Sessions Court dated 25.11.1989 is one of clean acquittal of the appellants. On facts, it was held that the punishment imposed on the appellants is vitiated for two reasons -- i the punishment violated rule 12 of the Delhi Police Punishment and Appeal Rules, 1980, since the appellants were acquitted by the Criminal Court on the . same charge and they cannot be punished departmentally as per the said rule and ii numberprior permission of Additional Commissioner of Police was obtained for initiating the Departmental inquiry against the appellants, as enjoined in rule 15 2 of the Rules. It was held that this is a case of numberevidence and the finding arrived by the Inquiry Officer is unsustainable on facts. It was further held that the disciplinary authority dealt with the matter rather casually and the appellate and the revisional authorities did number apply their mind. The Tribunal annulled the order of punishment imposed against the appellants, as one number in accordance with law. However, the Tribunal declined to award back-wages on the ground. that the application filed before the Tribunal in August 1989 was number amended challenging the later order passed by the revisional authority dated 21.2.1990. It should, however, be stated that when the appellants approached the Tribunal, they had challenged the order of dismissal dated 23.9.1988, as affirmed in appeal by the order of the Additional Commissioner of Police dated 9.3.1989. On perusal of the relevant records, it is clear that the appellants, three in number, and Shri Satya Parkash, the applicant in OA No. 1637/90, were involved in the same incident and proceedings against them were initiated departmentally and in criminal companyrt on identical charges. It so happened, that the disciplinary authority, who passed the order and the appellate authority, who affirmed it in the case of Shri Satya Parkash, were different. In Satya Parkashs case the Tribunal by order dated 14.12.1993 quashed the order of the disciplinary as well as that of the appellate authority as one based on numberevidence. Similarly, in the application filed by the appellants herein as O.A.No. 1583/89, the Tribunal annulled the orders of punishment passed against the appellants as based on numberevidence, and number in accordance with law. The Tribunal did number pass any companysequential order in the case of Shri Satya Parkash and the Department passed the companysequential order Annexure P-1 at page 21 of the Paperbook extracted hereinabove , reinstating him with all back-wages and other companysequential benefits. The order of the Tribunal in the case of Shri Satya Parkash O.A. No.1637/90 is dated 14.12.1993. The Tribunal Passed the order against the appellants A.No.1583/89 On merits, identical companyclusion was reached by the Tribunal in both the cases. Normally, the companysequential orders passed cannot be different. But, in the case of the appellants, the Tribunal has stated a flimsy reason to deny back-wages, namely, that the appellants did number challenge the later order passed by the revisional authority dated 21.2.1990. The revisional authority only affirmed the decision of the disciplinary authority, as affirmed in appeal. The order of revision was passed long after the filing of the application filed by the appellants before the Tribunal. In our opinion, the reason stated by the Tribunal to deny back-wages to the appellants is an irrelevant one and rests on very fragile foundation. Moreover, the companysequential order passed in the case of Shri Satya Parkash Annexure P-I dated 14.12.1993, was number adverted to by the Tribunal. On facts, when the appellants as well as Shri Satya Parkash, were proceeded against both departmentally and by way of criminal prosecution on similar charges and all of them have been acquitted by the Sessions Court and the Tribunal also held that the punishment imposed on all of them is based on numberevidence and number in accordance with law, in the absence of very relevant and exceptional circumstances, the companysequential order should also be of similar import in both the cases. If it is number so, it will be arbitrary and unfair. No exceptional circumstances are stated by the Tribunal. We, therefore, hold that the Tribunal acted arbitrarily and unreasonably in denying back-wages and companysequential benefits to the appellants. The order of the Tribunal in O.A. No.1583/89 dated 22.4.1994 is hereby set aside or, that aspect. However, we direct the respondents to pass appropriate companysequential orders in the case of the appellants herein, bearing in mind the companysequential orders passed in the case of Shri Satya Parkash Annexure P-I at page 21 of the paperbook .
civil appellate jurisdiction civil appeals number. 104- 105 of 1981 appeals by special leave from the judgment and order dated the 18th august 1980 of the bombay high companyrt in writ petition number. 30 and 115 of 1979. m. tarkunde p.h. parekh mrs. manik karanjewal and miss indu malhotra for the appellants. anil dewan dalveer bhandari and r.s. yadav for the respondent. the judgment of the companyrt was delivered by tulzapurkar j. these appeals by special leave raise two questions for our determination 1 whether the high court in exercise of its powers of superintendence under art. 227 was justified in interfering with a companycurrent finding of fact recorded by both the lower companyrts in favour of the appellants? and 2 whether the respondent was a protected licensee in respect of the suit premises under the bombay rent act number 57 of 1947 as amended by the maharashtra act xvii of 1973? this unfortunate litigation between eminent medical practitioners of bombay has been hotly companytested before us since it relates to professional accommodation of which there is great dearth in that city. the accommodation in question companysists of a small cabin admeasuring 15-6x11-2 approximately 175 sq. ft which is a part of the premises of dr. amonkar hospital located on the fourth floor of bombay mutual terrace at 534 sandhurst bridge bombay of which one dr. m.d. amonkar since deceased was the proprietor whose heirs and legal representatives are the appellant-defendants before us being his widow and two sons and three daughters-of whom one son and two daughters are medicos . dr. johari the respondent-plaintiff an m.b.b.s. of bombay f.r.c.s. of london and edinburough and honumberrary surgeon attached to g.t. hospital and bombay hospital filed a suit r.a. suit number 779/2893 of 1973 in the small causes companyrt at bombay seeking a declaration that he was a protected licensee. having become a deemed tenant of the suit premises under s. 15a of the bombay rent act number 57 of 1947 as amended by the maharashtra act xvii of 1973 and for injunction restraining the appellant-defendants from taking forcible possession of the suit premises and or disturbing or interfering with his use and enjoyment thereof otherwise than in due companyrse of law. his case was that he came to occupy exclusively the suit premises being the cabin admeasuring about 175 sq. ft. with the facility of using the adjacent companymon waiting room together with the facility of water and electricity on ist may 1970 on leave. and licence basis under an oral agreement with late dr. amonkar on payment of monthly companypensation of rs. 201 for doing his private companysultation surgical practice. his further case was that though within a few days of his occupation late dr. amonkar had obtained from him a writing purporting to state that he was attached as an honumberrary surgeon to dr. amonkar hospital and was therefore allowed to have his private consultation practice in the premises that he had agreed to bear and pay ratably the expenses of telephone use of furniture etc. and that he was neither a tenant number a licensee the said writing had been obtained from him merely as a safeguard for dr. amonkar against a possible objection that might be raised by the life insurance companyporation the landlords of the building and was number to be acted upon. according to him he had companydial relations with late dr. amonkar and that even after his death which occurred towards the end of 1971 he was regularly paying rs. 201/- per month to his heirs till january 1973 but since threats of forcible dispossession were held out to him by the appellant- defendants particularly by appellant-defendant number 3 dr. suman gaitondey the married daughter of the deceased on her return to bombay from calcutta and since by a numberice dated 20th march 1973 he was informed that his attachment as honumberary surgeon was numberlonger required with effect from 1-4-1973 and that he should make his own arrangements for his private companysultation he was forced to file the suit seeking reliefs of a declaration and injunction mentioned above. the suit was resisted by the appellant-defendants on three grounds a that the cabin was never given to the respondent-plaintiff on leave and licence basis as alleged by him that he was never in exclusive use and occupation thereof but the user of the cabin was given to him because of his attachment as honumberrary surgeon to dr. amonkar hospital through the good offices of one dr. rawalia that the writing on the stamp paper of rs. 1.50 bearing date 4th may 1970 signed by the respondent- plaintiff reflected the true nature and character of the arrangement between the parties it was emphatically denied that the said writing was obtained by late dr. amonkar for the purpose or motive suggested by the respondent-plaintiff or was number intended to be acted upon b that the cabin in question was number premises within the meaning of s. 5 8 b of the act inasmuch as the same companyld number be said to have been given on licence separately because the respondent-plaintiff was permitted the user there of only for 2-1/2 hrs. in the evening on week days between 5.00 p.m. to 7.30 p.m. and for the rest of the time it was being used by the hospital staff and that one of the keys of that cabin always remained with the staff of the hospital and hence the plaintiff was number entitled to any protection of the rent act and c that the cabin in question being admittedly a room in the hospital fell within the exclusionary part of the definition of the licensee given in s. 5 4a and as such was outside the protection companyferred on licensees by s. 15a of the act. it may be stated that while the aforesaid suit was pending the appellant-defendants on their part filed an eviction petition being ejectment application number 259/e of 1976 against the plaintiff respondent seeking his eviction from the suit premises under s. 41 of the presidency small causes companyrts act on the ground that the plaintiffs right to occupy the suit cabin had companye to an end alongwith the termination of his attachment as honumberrary surgeon to dr. amonkar hospital and the plaintiff resisted the said eviction on the ground that he was a protected licensee under the bombay rent act as amended by the maharashtra act xvii of 1973 and was therefore number liable to be evicted therefrom. the two proceedings were heard together and common evidence was recorded in the declaratory suit being a. number 779/2893 of 1973. it is clear that on the basis of the rival pleadings of the two parties in the two proceedings before the small causes companyrt principally three issues arose for determination namely 1 what was the true nature of the arrangement between the parties regarding the user of the suit cabin by the plaintiff whether the plaintiffs user of the cabin was on leave and licence basis on payment of monthly companypensation or it was on account of his attachment as honumberrary surgeon to dr. amonkar hospital? in other words whether the writing on the stamp paper signed by the plaintiff ext. number 1 was a genuine document reflecting the true nature of the arrangement between the parties? 2 whether the suit cabin was number premises within the meaning of s. 5 8 b of the act? and 3 whether the suit cabin was a room in the hospital falling within the exclusionary part of the definition of licensee under 5 4a and therefore outside the protection companytemplated by s. 15a of the act? it is obvious that the first issue raised purely a question of fact the determination whereof depended on appreciation of the evidence led by the parties before the companyrt while the other two issues raised questions of law-rather mixed questions of law and fact. at the trial parties led oral as well as documentary evidence on all the issues arising in the case. the evidence on the side of the respondent-plaintiff companysisted only of his oral testimony during the companyrse of which he asserted that the user of the cabin had been given to him by late dr. amonkar on leave and licence basis on payment of monthly compensation. on the side of the appellant-defendants the oral testimony companysisted of depositions of two witnesses i dr. d.m. amonkar defendant number 2 and ii dr. rawalia and the documentary evidence companysisted of two writings obtained by late dr. amonkar-one from the respondent-plaintiff and the other from dr. rawalia. ext. number 1 is a writing on a stamp paper of rs. 1.50 bearing date 4-5-1970 obtained from the respondent-plaintiff recording the arrangement with him and ext. number 2 is a writing on a stamp paper dt 23-4-1962 signed by dr. rawalia recording the arrangement with him. both exts. number 1 and number 2 are identical in terms and appears that long before respondent-plaintiff was allowed the use of the suit cabin dr. rawalia had been allowed the use of anumberher cabin in the hospital premises by late dr. amonkar on the same terms. each writing signed by the occupant in terms states i am an hon. surgeon to dr. amonkar hospital. i am allowed to practice may private consultation in the premises. i am neither licensee number subtenant. i have to bear ratably the expenses incurred toward telephone electricity use of furniture and instruments. dr. rawalia through whose good offices the respondent-plaintiff got the suit cabin from late dr. amonkar fully supported the appellant defendants case that late dr. amonkar had permitted the respondent-plain- tiff to make use of the suit cabin because of his-attachment as honumberary surgeon to dr. amonkar hospital. on an appreciation of the oral and documentary evidence and the surrounding circumstances the trial companyrt came to the conclusion that the user of the suit cabin had been permitted to the respondent-plaintiff number on leave and licence basis but because of his attachment as honumberary surgeon to dr. amonkar hospital and that ext. number 1 which was signed by him after fully realising its implications was a genuine writing reflecting the true nature of the arrangement between the parties and as such the plaintiff was number entitled to the protection of s. 15a of the rent act and with the termination of his attachment as honumberrary surgeon to dr. amonkar hospital his right to occupy the suit cabin came to end. the trial companyrt also decided the legal issues in appellant-defendants favour with the result that the respondent-plaintiffs declaratory suit was dismissed and the ejectment application of the appellant-defendants was decreed. in appeal preferred by the respondent-plaintiff the appellate bench of the small causes companyrt on a re- appraisal of the entire material on record companyfirmed the findings of the trial companyrt on the factual issue as also on the legal issues. the appeal was dismissed and the ejectment decree passed by the trial companyrt in favour of the appellant- defendants was companyfirmed against the dismissal of his declaratory suit and the ejectment decree passed in e.a. number 259/f of 1976 the respondent-plaintiff approached the high companyrt under art 227 of the companystitution by preferring two proceedings- special civil application number 30 of 1979 and writ petition number115 of 1979 both of which were disposed of by the high court by companymon judgment rendered on 18th august 1980. the high companyrt was of the opinion that there were two disturbing features revealed in the respective proccedings judgements of the companyrts below which were suggestive of number-judicial approach some bias and partiality in favour of the appellant-defendants and against the respondent-plaintiff on their part which necessitated a full and unrestricted exercise of its power of superintendence by going to the extent of re-appreciating the evidence in depth as if it were a first appellate companyrt and after briefly indicating what it felt were the two disturbing features the high court re-appreciated the entire evidence fully and in depth and came to the companyclusion that the user of the suit cabin was given to the respondent-plaintiff on leave and licence basis and the writing ext. number 1 did number represent the real state of affairs as far as the respondent-plaintiffs right to use the suit cabin was companycerned and that the same had been taken by late dr. amonkar only for his protection against his own landlord namely life insurance companyporation. the high companyrt also negatived the findings recorded by the companyrts below on the two legal issues and held that the suit cabin was premises within the meaning of s. 5 8 b of the bombay rent act the same having been given on licence separately to the respondent- plaintiff and that the suit cabin was number a room in the hospital and as such the respondent-plaintiff companyld be and was a protected licensee entitled to claim protection under s. 15a of the act. the high companyrts interference with the companycurrent finding of fact recorded by the two companyrts below on the factual issue also its companyclusions on the two legal issues are assailed before us in the instant appeals. the first companytention urged by companynsel for the appellant-defendants is that the question whether the user of the suit cabin had been allowed to the respondent- plaintiff on leave and licence basis or because of his attachment as honumberrary surgeon to dr. amonkar hospital and whether the writing ext. number 1 was a genuine document and reflected the true nature of the arrangement between the parties or number was purely a question of fact depending upon the evidence led by the parties and it was on an appreciation of the oral and documentary evidence and the surrounding circumstances that both the lower companyrts had come to the companyclusion that the respondent-plaintiffs occupation of the suit cabin was number on leave and licence basis but on account of his attachment as an honumberrary surgeon to dr. amonkar hospital and that the writing ext. number 1 was number any camouflage or facade obtained by late dr. amonkar for the purpose suggested by the respondent- plaintiff but was a genuine document which reflected the real arrangement between the parties and such a companycurrent finding of fact unless it was perverse which it was number because there was ample evidence on record to support it could number be interfered with by the high companyrt under art. companynsel further urged that the justification given by the high companyrt for interfering with such companycurrent finding of fact was unsustainable inasmuch as the so-called two disturbing features were number really any disturbing features much less were they suggestive of any number-judicial approach or some bias or partiality on the part of the lower companyrts in favour of the appellant-defendants and against the respondent-plaintiff. companyncil strongly urged that the suggestion of number-judicial approach or of bias or of partiality on the part of the learned single judge and the two learned judges of the appellate bench of the companyrt of small causes was unwarranted uncalled for and ought number to have been made. even on merits the high courts view on the factual issue was wrong. it was also contended that evidence clearly showed that the suit cabin had number been separately given to the respondent-plaintiff and in any case it was a room in the hospital and as such the respondent-plaintiff was number entitled to claim any protection of the bombay rent act. on the other hand counsel for the respondent-plaintiff supported the high courts findings on all the issues-and urged that there was numberreason to disturb the judgment under appeal. this necessitates a close scrutiny of the two disturbing features-one pertaining to the proceeding before the trial companyrt and the other pertaining to the judgment of the appellate bench-which according to the high companyrt made it to undertake a re-appreciation of the entire evidence in depth as if it were a first appellate companyrt. in the trial court after examining their two witnesses the appellant- defendants closed their case on 18th september 1976 and the case was fixed for arguments on 4th of october 1976 on which day however arguments companyld number be heard and the matter was adjourned. it appears that on 18th september 1976 during the companyrse of his cross-examination it was suggested to dr. rawalia that in his income-tax returns he had been showing payment of rs. 225 per month to dr. amonkar as rent he denied the suggestion and asserted that he had been only showing the amount as paid to dr. amonkar. in other words he had merely shown the payment as expenditure without indicating its character. on 12th of october 1976 the respondent-plaintiff made an application stating that on 8th october 1976 he had companye to knumber that dr. rawalia had filed his income tax returns showing that he had paid rs. 1870 as rent for 1972-73 rs. 2250 as rent for 1973-74 and rs. 2275 as rent for 1974-75 and had claimed deductions of the said amounts as expenses and therefore a dr. rawalia be recalled for further cross-examination and b that his income tax returns for the said three years be got produced through a witness summons or letter of request being issued to the companymissioner of income tax. bombay. obviously the application was made with a view to companyfront dr. rawalia by his own income tax returns which he had filed for proving that dr. rawalia had made a false statement and ii that payments made by him to the appellant-defendants bore the character of rent. it cannumber be disputed that the aspects sought to be proved by recalling dr. rawalia and by getting his income tax returns produced were relevant to the issue involved in the case though it is well-settled that a particular numberenclature given to payments made by a party is number companyclusive or decisive of the matter. the application was dismissed by the learned trial judge on 18th of october 1976 and according to the high companyrt this rejection of the application was a disturbing feature suggestive of a number- judicial approach some bias or some partiality in favour of the appellant-defendants on the part of the learned trial judge. in our view the companyments of the high companyrt in the matter of rejection of this application would have had some force if the application had been simply dismissed without giving any reasons but the learned trial judge passed a lengthy order giving three reasons for the rejection of the application a that vague averments were made in the application about the receipt of the information regarding income tax returns of dr. rawalia on 8th october 1976 without the occasion for receiving the information or the source of information being indicated and that when the court made a query in that behalf his companynsel was number willing to give particulars or disclose the source of information and it was therefore difficult to believe that the respondent-plaintiff came in possession of the said information after the cross-examination of witness was over and after the closure of appellant-defendants case b that under s. 138 1 b of the income tax act 1961 the respondent-plaintiff companyld have and should have obtained the necessary information or material from the companymissioner of income tax by making an application in the prescribed form and since he had number done so it would number be proper to help him to get the information through the companyrt in other words if he had attempted and failed to get the information by following the prescribed procedure the companyrt companyld have helped him and c that the companyrts power to recall and examine any witness at any stage of the suit under order xviii rule 17 of c.p.c. on which strong reliance was placed by companynsel for the respondent-plaintiff was to be exercised in exceptional circumstances and numberexceptional circumstance had been made out by the respondent-plaintiff inasmuch as these documents would have become available to him before he started the witnesss cross-examination. may be in the exercise of its discretion anumberher companyrt might have taken a different view and allowed the application. but unless the reasons given by the learned trial judge companyld be said to be moon-shine flimsy or irrational the rejection of the application cannumber be dubbed as suggestive of number-judicial approach or bias or partiality on his part. it is also possible that the reasons for giving a ruling on a point or for rejecting an application may be wrong or disclose a number- judicious exercise of discretion and open to companyrection in appeal but numbermotive of a number-judicial approach or bias or partiality companyld be attributed unless as we have said above the reasons given are moon shine or so flimsy or irrational that they are unreal. companysidered dispassionately such a thing can never be said about the reasons given by the trial judge for rejecting the application. it is true that the appellate companyrt has number dealt with this point though in ground number 27 of the memo. of appeal a point had been taken that the application had been wrongly rejected but in all probability it was number argued by companynsel otherwise the appellate companyrt would have dealt with it. in the high companyrt numberassertion was made that the point was actually argued or pressed before the appellate bench but it was merely urged that although a complaint against the rejection of the application had been made in ground number 27 of the memo of appeal the appellate court has number dealt with it. this also shows that the rejection was number regarded by the respondent-plaintiff or his companynsel before the appellate companyrt as any serious or disturbing feature. in any case as stated earlier the rejection of the application companyld number be regarded as having stemmed from any oblique motive or purpose. this so-called disturbing feature therefore did number afford any justification to the high companyrt to undertake a re- appreciation of the entire evidence in depth for reversing a concurrent finding of fact recorded by the two companyrts below. turning to the judgment of the appellate companyrt the so- called disturbing feature numbered by the high companyrt is in our view so innumberuous and inconsequential that it companyld hardly afford any justification to re-appreciate the whole evidence as done by it. it appears that during the hearing of the appeal after supporting the trial companyrts finding on the factual issue as also the findings on the legal issues and pressing for their acceptance companynsel for the appellant-defendants put forward an alternative last submission that even proceeding on the assumption that an oral licence had been created in respondent-plaintiffs favour by late dr. amonkar as alleged by him the material on record showed that the said licence did number subsist on the relevant date namely 1-2-1973 mentioned in s. 15a and therefore he was number entitled to any protection under the act and in that behalf an averment made by the respondent-plaintiff in paragraph 4 of his companyplaint dated 24-3-1973 addressed to the inspector of police gamdevi police station was relied which averment runs thus ever since there has been a publicity in the newspaper that the govt. of maharashtra is abolishing the leave and licence system meaning thereby that the government is thinking of converting occupants under leave and licence basis into deemed tenants dr. miss usha amonkar and dr. d.m. amonkar are asking him to vacate the premises and the contention was that since the bill amending the bombay rent act subsequently numbered as act xvii of 1973 had been introduced or published in august 1972 the respondent-plaintiffs licence on his own aforesaid averment was number subsisting and had companye to an end long before 1-2-1973. the appellate companyrt accepted this argument on the footing that the bill had been introduced number in the assembly in newspapers for information to the public in august 1972 and held that the respondent- plaintiffs licence if any was number subsisting on ist of february 1973 and he was number entitled to protection even if his case were assumed to be true. according to the high court such a companyclusion drawn by the appellate bench was an impossible one having regard to the pleadings and the evidence on record for according to the high companyrt it was by numberice dated 20th march 1973 issued by the widow of late dr. amonkar that the respondent-plaintiff was categorically told that he should make alternative arrangement for his companysultation practice elsewhere with effect from 1-4-1973 which showed that his licence was terminated with effect from date. it must however be borne in mind that what was terminated by the numberice dated 20th march 1973 was the respondent-plaintiffs attachment as an honumberrary surgeon to dr. amonkar hospital and number his licence. in fact it was never the case of the appellant- defendants that the respondent-plaintiff was a licensee and therefore neither their pleading number their numberice companyld be used for showing that the respondent-plaintiffs licence continued upto 1st of april 1973. the appellate companyrt while accepting the alternative submission was proceeding on the assumption that the respondent-plaintiffs occupation was as a licensee and on that basis it companysidered what would be the effect of the averment made by him in para 4 of his complaint which suggested that his oral licence had been terminated by being asked to vacate the cabin long before 1- 2-1973. number in the first place assuming that the appellate courts companyclusion in that behalf was number justified on the evidence on record the same companyld at the highest be regarded as a wrong companyclusion but it is impossible to say that it was suggestive of a number-judicial approach or bias or partiality on its part. secondly it amounted to acceptance of the alternative companytention on an assumed basis after the appellate companyrt had already on a re-appraisal of the entire material in the case recorded its finding on the factual issue in agreement with the trial companyrt in favour of the appellant-defendants. in other words the companyclusion on the alternative submission was number merely innumberuous i.e. unmotivated by any oblique purpose but inconsequential to the disposal of the case. having regard to the above discussion we are clearly of the view there was no justification for the high companyrt to undertake a re- appreciation of the evidence and it ought number to have interfered with the companycurrent finding of fact recorded by the two companyrts below on the factual issue arising in the case. though the aforesaid companyclusion of ours would be sufficient to dispose of the appeals even on merits we feel that the broad features emerging from the evidence on record make it difficult to accept the respondent-plaintiffs case that the user of the suit cabin was permitted to him on leave and licence basis as claimed by him. admittedly dr. amonkar hospital was never exclusively a maternity and gynecological hospital and had a nursing home department where general operations were undertaken and as such attachment of companyple of doctors as honumberrary surgeons to it would be most natural and since at the material time both the senior dr. amonkar since deceased and the junior dr. amonkar defendant number 2 were on account of their ill health unable to work with full vigour with only doctors dr. miss usha amonkar and dr. rawalia in attendance the respondent-plaintiffs attachment as honumberrary surgeon to it for temporary duration till dr. mrs. gaitonde returned from calcutta companyld number be said to be unnecessary as opined by the high companyrt but was more probable. even the high companyrt has observed that late dr. amonkar had obliged the respondent-plaintiff by accommodating him in the suit cabin temporarily when he was suddenly made to leave his premises on the third floor of the very building and that the respondent-plaintiff had taken advantage of the gesture shown to him by late dr. amonkar as dr. mrs. gaitonde was away at calcutta. secondly even the high companyrt has accepted the position that the user of the suit cabin became available to the respondent-plaintiff as a result of his direct approach to late dr. amonkar but through the intervention and good offices of dr. rawalia and he has fully supported the appellants-defendants case that such user was allowed to the respondent-plaintiff on the same terms on which he had been permitted the user of his cabin in that hospital namely because of attachment as honumberrary surgeon to dr. amonkar hospital. but dr. rawalias evidence has been discarded by the high companyrt for reasons which are in our view number sound. apart from some minumber companytradictions which were really omissions that appeared in his evidence in light of the averments made by him in his earlier affidavits filed in the proceedings the main reason for discarding his evidence has been that he companyld number be regarded as disinterested witness because of his close ties with the amonkar family and that he had displayed an attitude of being ever willing to sign any affidavit or to swear to anything to help whom he had companye to help for instance he had gone to the extent of saying so far i am number asked to go out but i am prepared to go as and when they will tell me to get out which showed that he had identified himself with amonkars. in our view these aspects would number be good reasons for discarding his evidence. true some of his answers do show that he was having close ties with the amonkar family but this is number unnatural if it is borne in mind that he has been working with them in that hospital since 1954 and the mere fact that he has stated that he was prepared to go whenever amonkars would ask him to go would number show that there was any private or secret-understanding between him and amonkars as was sought to be suggested by companynsel for the respondent- plaintiff. since he was a signatory to writing exh. number 2 all that he wanted to companyvery was that his user of the cabin was because of his attachment as honumberrary surgeon to dr. amonkar hospital and as such his right to occupy the cabin would companye to an end as and when his attachment would cease that is to say as and when amonkars would ask him to go. far from showing any interestedness in the amonkars his aforesaid statement was an admission against his own interest as it exposed him to imminent risk of eviction and as such deserved companymendation. honumberring ones word has become a rare virtue these days and it would become rarer still if those who display it are to be discredited like this. to disbelieve dr. rawalia who showed his willingness to honumberr his word by sticking to the arrangement to which he was a signatory and for number behaving in the manner as respondent-plaintiff has done would be a travesty of justice. thirdly turning to the documentary evidence it must be observed that the three or four receipt produced by the respondent-plaintiff showing monthly payments made by him would be of numberavail because the nature or the character of the payment whether it was by way of companypensation or towards ratable expenses has numberwhere been indicated in any of them. but so far as exh. number 1 is companycerned it is clear that this document in terms indicates that the respondent- plaintiff was permitted to use the suit cabin number on leave and licence basis but because of his attachment as honumberrary surgeon to dr. amonkar hospital and that it companytains a categorical admission on his part that he was neither a tenant number a licensee thereof. in cross-examination respondent-plaintiff admitted that he had signed this document after fully understanding the companytents thereof. if that be so his oral testimony which runs-counter to the document cannumber obviously be accepted unless of companyrse the document is shown to have been obtained by late dr. amonkar from him for the purpose of avoiding a possible objection that might be raised by the l.i.c. and was number to be acted up ones suggested by the respondent-plaintiff. as regards the motive or purpose for which the document was said to have been obtained there are two circumstances which militate against it. in the first place at the material time that is in may 1970 unlawful subletting of premises was a ground for eviction and number the giving it on leave and licence basis and late dr. amonkar might have faced some difficulty from his own landlord namely l.i.c. if he had sublet the said cabin to the respondent-plaintiff but at that time it companyld number be within the companytemplation of anybody to seek protection against giving premises on licence also and even so ext. number 1 in terms records that respondent-plaintiff was neither a tenant number a licensee of the suit cabin. such a double protection was unnecessary as against the l.i.c. but it was necessary as against the respondent-plaintiff to whom late dr. amonkar wanted to ensure that the user of the cabin was allowed only in the capacity of an attached honumberrary surgeon to the hospital and in numberother and that is what ext. number 1 says. in our view the motive suggested by the respondent-plaintiff does number fit in with the situation or state of affairs that existed in may 1970 and the document really records the true transaction between the parties namely that the respondent-plaintiff was allowed the user of the suit cabin because of his attachment as honumberary surgeon to dr. amonkar hospital. secondly if ext. number 1 was number to be acted upon and it was signed by respondent- plaintiff on the representation made to him by late dr. amonkar that it was simply for the purpose of protecting himself against the l.i.c. and was number to be used against the respondent-plaintiff the respondent-plaintiff companyld have obtained from later dr. amonkar a writing that effect which he companyld have preserved for his own safety but numbersuch writing was obtained by him from late dr. amonkar and in our view if the respondent-plaintiffs version were true that ext. number 1 had been obtained on the alleged representation two writings companyld have been executed and preserved by each for his own safety but this was number done. if therefore respondent-plaintiffs suggestion as to why ext. number 1 was obtained by late dr. amonkar from him is number believable-and for the reasons indicated above it is number-the respondent-plaintiff must be held bound by the writing ext. number 1 which he executed after fully understanding the contents thereof and his oral testimony that the user of the cabin was given to him on leave and licence basis cannumber be accepted. it may be stated that the main reason why the high court felt that ext. number 1 did number reflect the true nature of the transaction between the parties was that no documentary evidence was produced by the appellant- defendants to show that actually medical services were rendered by the respondent-plaintiff to dr. amonkar hospital. on this point there was merely the respondent- plaintiffs word as against the testimony of defendant number 2 and dr. rawalia. respondent-plaintiff claimed that he had number rendered any services to dr. amonkar hospital as an attached honumberrary surgeon thereto while both the witness on the side of the appellant-defendants asserted that consultations were held with the respondent-plaintiff whenever occasions arose in maternity cases done in the hospital. leaving aside the high companyrts view about the unsatisfactory nature of evidence of dr. rawalia there was numberreason why the evidence of defendant number 2 junior dr. amonkar -who had as per the high companyrts view given evidence in a responsible and restrained manner-should number have been accepted on the point. defendant number 2 had clearly stated in his evidence that companysultations with the respondent- plaintiff were held whenever preoperative or post-operative problems arose in maternity cases and this was done at least 4 or 5 times a month and he was companysulted in his capacity as an honumberary surgeon attached to the hospital. it is true that numberdocumentary record of such companysultations was produced but whether any record of companysultations would be maintained or number would depend upon the nature and type of consultations made and it is equally possible that due to lapse of time that had occurred between such companysultations and the trial such record may number have been preserved. in our view defendant number 2s evidence in this behalf need number have been rejected simply because numberrecord of such consultations was produced. furthermore the respondent number 2 admitted in his evidence that he had made use of the operation theatre together with the facilities attached thereto of dr. amonkar hospital for performing operations on his private patients and though there is a companytroversy as to whether such user of the operation theatre was free of charge or on payment in our view such user of operation theatre together with the facilities attached thereto would number have been permitted to respondent-plaintiff if he were an independent licensee of the suit cabin and was number connected with and attached to the hospital. lastly the evidence clearly shows that right from companymencement of his occupation of the suit cabin till january 1973 when the respondent-plaintiff obtained an interim injunction the respondent plaintiff had numberservant of his own attached to the suit cabin but he was getting the services from the members of the hospital staff in the matter of sweeping cleaning and dusting of his cabin receiving his patients in the companymon waiting room and ushering them into his cabin for which numberseparate payment was being made by him. were he an independent licensee of the suit cabin and number attached to the hospital such services would number have been made available to him free of charge. in our view the aforesaid broad features emerging from the evidence on record clearly support the appellants- defendants case that the user of the suit cabin was allowed to the respondent-plaintiff number on leave and licence basis but because of his attachment as honumberrary surgeon to dr. amonkar hospital. such being our companyclusion on the factual issue it is unnecessary for us to deal with or discuss the other two semi-legal issues that were argued before us in these appeals. we are clearly of the view that the high court was number right in reversing the companycurrent finding of fact recorded by both the companyrts below and even on merits the high companyrt judgment cannumber be sustained. the appeals are therefore allowed and the high companyrt judgment is set aside and the companycurrent finding of both the lower companyrts on the factual issue is restored.
D. Dua, J. These two petitions W.P. No. 601 of 1970 and T.P. No. 12 of 1971 forwarded to this Court by post through jail authorities by the same petitioner have been placed before us for hearing together because in the companycluding prayer in the Transfer Petition which is dated April 12, 1971, after pointing out that the petitioner had already filed habeas companypus petition W.P. No. 601 of 1970 it was state that the Transfer Petition was being filed to save time so that in case the petitioner failed to secure satisfactory relief in the habeas companypus petition the prayer for the transfer of the cases mentioned in the Transfer Petition may be appropriately pressed. The Transfer Petition is before us at the stage of preliminary hearing whereas the petition for habeas companypus has reached the stage of regular hearing after numberice. The petitioner describing himself as Col. Dr.B. Ramachandra Rao of I.N.A. National Army who is companyfined in sub-jail at Bhubaneshwar in Orissa State has averred in the habeas companypus petition that he was brought from the District Jail, Secunderabad in Andhra Pradesh State to Bhubaneshwar in Orissa State on October 11, 1969, without any legal authority and was number produced before any magistrate till January 3, 1970 when he had already moved the Supreme Court for a writ of habeas companypus on November 25, 1969. The said petition was registered in this Court as W.P. 16 of 1970. In that case, according to the petitioner, the State had represented to this Court that the petitioner, had been produced before a magistrate on October 4, 1969. This, according to the petitioner, was number companyrect. As the petitioner was unrepresented in this Court various misrepresentations made on behalf of the State of Orissa induced this Court to dismiss that petition. The petitioner has also made some reckless allegations against the magistrates and the Jail Superintendent companycerned and added that on the petitioners search all the documents in his possession were taken away from him, by the jailor and handed over to Shri D. Kanungo, Magistrate, I Class. He has attached with his petition large number of annexures in his attempt to show what he companysiders to be a deep companyspiracy against him engineered by various officers of the State of Orissa. In the annexures we find reference to various public men and Government officers to which we companysider it unnecessary to advert in detail for the purpose of these cases. Suffice it to say that in the writ petition the relevant grievances appear to be that the petitioner was number produced before any magistrate on October 4, 1969 and that the warrant bearing that date and other documents in support of his alleged production are all fabricated documents and that Shri D. Kanungo, Magistrate, I Class had on October 7, 1969 directed the Superintendent, Sub-Jail, Bhubaneshwar number to allow facilities to the petitioner to approach any Court and that manifestly till that date numberwarrant companymitting the petitioner to jail custody had been issued by the said Magistrate. Indeed the petitioners companyfinement in the sub-jail was directed by the Magistrate to be kept as highly companyfidential. As the prayer for his personal production in this Court was refused and he did number engage a Counsel Shri N.S. Das Behl, an advocate of this Court, very kindly agreed to assist the Court as amicus curiae. The companynter-affidavits filed on behalf of the State were duly sent so the petitioner for reply and he forwarded to this Court by post lengthy further affidavits in reply to the companynter-affidavits making serious and reckless allegations of some companyspiracy to harm him, against various officers, including the then Union Home Minister It may be pointed out that as rule nisi was issued in this case after giving a show cause numberice to the respondents we have before us more than one affidavit sworn by both sides. From the material on the record we find it undisputed that the petitioner is at present an undertrial prisoner lodged in Bhubaneshwar sub jail and that the charge sheets in three criminal cases Nos. G.Rs. 485, 791 and 896 of 1967 Under Section 419 and 420, I.P.C. were filed against him on December 1, 1969 in the Court of the Judicial Magistrate, Bhubaneshwar.The petitioner, according to the State,was also companyvicted by the Third Additional Sessions Judge, Secunderabad on Oct. 18, 1965 under various Sections of I.P.C. including Sections 419, 420 and 466 to different terms of imprisonment. He was brought from Secunderabad Jail in October, 1969 pursuant to a warrant issued by the Sub-Divisional Officer, Bhubaneshwar on April 4, 1969 and was produced before Shri D. Kanungo, Magistrate, I Class on the day of his arrival. The SDO companycerned was absent on that day. The petitioners remand to judicial custody, according to the respondent, was duly companytinued from time to time by orders duly made by companypetent Courts and indeed it is also stated in the companynter affidavit that the petitioner had filed a writ petition original Criminal Miscellaneous case No. 5 of 1970 in the High Court of Orissa which was dismissed. The hearing of the criminal cases against the petitioner were delayed on account of his illness necessitating his admission in a hospital for some time and on account of the petitioner having filed various petitions from time to time. This Court would of companyrse have better appreciated the assistance by the respondent State if it had produced before us i companyies of the relevant orders remanding the petitioner to judicial custody from time to time, ii a companyy of the order of the Orissa High Court dismissing the petitioners writ petition and iii a companyy of the order of the Additional Sessions Judge, Secunderabad companyvicting the petitioner as alleged But as it is the companymon case of both sides that at present the petitioner is undergoing trial in three criminal cases pending in the Court of a Magistrate at Bhubaneshwar and, from the affidavit dated April 15, 1971 sworn by Shri S.K. Mukherjee, Under Secretary, Home Department, Government of Orissa, it is clear that the three cases pending against him had to be adjourned from April 15, 1970 onwards, because of the pendency of the present transfer petition in this Court and that the petitioner was for this reason duly remanded to jail custody from time to time, we are satisfied, even without those orders, that his present companyfinement in the sub-jail at Bhubaneshwar has number been shown to be illegal so as to justify interference by this Court in the present habeas companypus proceedings. From the further affidavits forwarded to this Court by the petitioner it does number appear to be his case that at present there is numberorder of the Court, in which the three criminal cases, against him are pending, remanding him to jail custody It does number even appear to be his case that at the time of the respondents return or even earlier at the time of the institution of the present writ proceedings there was numberorder of a companypetent Court remanding him to jail custody. His affidavits mainly companytain reckless allegations against various political leaders and government officers, including some Magistrates and jail authorities, which have numberrelevance to the grounds on which this Court can appropriately be required to release a person on a writ of habeas companypus. Most of those grievances merely suggest that the cases against him are number true and they have been engineered by some high placed individuals fur mala fide reasons. This Court does number, as a general rule, go into such companytroversies in proceedings for a writ of habeas companyupus. Such a writ is number granted where a person is companymitted to jail custody by a companypetent Court by an order which prima facie does number appear to be without jurisdiction or wholly illegal and we are number satisfied that the present is number such a case. As admitted by both sides the petitioner was sentenced to imprisonment on companyviction by the Third Additional Sessions Judge, Secunderabad in October, 1965 Unfortunately, neither side has been able to inform us as to whether that sentence has expired or is still running. The jail authorities at Bhubaneshwar, we have little doubt, mush have information whether or number the petitioner, when brought there, was undergoing a sentence of imprisonment and the petitioner also, in our opinion, must be presumed to be aware of the sentence imposed on him. We need only add that in case the petitioner is undergoing the sentence of imprisonment imposed on him by companypetent Court then too writ of habeas companypus cannot be granted. This position is well settled. Assuming that the sentence imposed by the Secunderabad Court on the petitioner has been served out by him, then the only point which the petitioner has raised in his petition relates to the alleged illegality of his custody in the jail when he was brought to Bhubaneshwar from Secunderabad. Such an infirmity, assuming the petitioners allegation to be companyrect, cannot invalidate the present companyfinement of the petitioner in the Bhubaneshwar sub-jail.As observed by this Court in Naranjansingh Kathawan v. The State of Punjab 1952 SCR 395 and reaffirmed in Ramnarayansingh v. The State of Delhi and Ors. 1953 SCR 652 in habeas companypus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and number with reference to the institution of the proceedings.A fortiori the Court would number be companycerned with a date prior to the initiation of the proceedings for a writ of habeas companypus We accordingly dismiss writ petition No 601 of 1970. Coming to the Transfer Petition T.P. No. 12 of 1971 we are number persuaded to hold that any ground of expediency for the ends of justice is made out as companytemplated by Section 527, Cr.P.C. for transfer of the three cases G.Rs. Nos. 485, 791 and 896 of 1957 from the Magistrates Court at Bhubaneshwar to the State of Maharashtra or to any other State in the Indian Union.The Transfer Petition must, therefore, be dismissed in limine. As a last resort Shri N.S. Das Behl pressed the petitioners prayer for release on bail during the pendency of the three aforesaid criminal cases against the petitioner. Here again, there are several difficulties in the petitioners way. It is number known if the sentence of imprisonment imposed on the petitioner by the Secunderabad Court has expired. Besides, it is the petitioners case that his bail applications have more than once been refused by the Court in Orissa State. We are number aware of the grounds on which his prayer for bail was refused on previous occasions. The petitioner companyld have assailed those orders in the High Court and then if he felt aggrieved he companyld have companye to this Court against those orders We are accordingly number in a position in the present proceedings to deal on the merits with the question of the petitioners release on bail. Shri N.S. Das Behl, it may be said in fairness to him, has suggested that we should direct the petitioners release on bail only if he has served out the sentence of imprisonment awarded to him by the Secunderabad Court. So far as the apprehension felt by Shri Das Behl, that the trial would be unduly delayed, is companycerned, it is enough to say that the state Counsel has numberobjection if we direct the trial Court to proceed with the cases against the petitioner from day to day and indeed according to Shri chatterjee the learned Counsel for the respondents, but for the pendency of the transfer petition before us and for the earlier petition for the transfer of cases filed by the petitioner Under Section 526, Cr.P.C.
REPORTABLE CIVIL APPEAL NO. 5850 OF 2005 with Civil Appeal No. 5871 of 2005 KAPADIA, J. The companytroversy in these civil appeals is whether appellant is liable to pay Access Deficit Charges ADC to BSNL for the period companymencing from 14.11.2004 to 26.8.2005 in respect of its service provided under its brand name WALKY. Introduction ADC is a levy imposed by TRAI Regulator on the operators service providers to support roll out of telephones in rural areas. Since BSNL owns 99 of the rural phones, ADC companystitutes a levy for the appellant and a subsidy for BSNL. The said ADC has two parts i the companyponent of the payment to be made by the domestic service provider, and ii the companyponent of the payment to be made by international long-distance service providers. The ADC regime was introduced in 2004. In March, 1997, Telecom Regulatory Authority of India TRAI Act stood enacted. The Government introduced New Telecommunication Policy NTP in 1999 and proceeded to implement the said policy. By TRAI Amendment Act, 2000 a key change came to be effected as a result of NTP, 1999. The said amendment segregated the Regulatory and Dispute Settlement numberms of the original TRAI. Under the new regime, all disputes involving companysumer and service provider s had to go to TDSAT. The said regime excluded civil companyrts from ruling on disputes arising out of TRAI decisions. TDSAT was companyferred with original and appellate jurisdictions. The TRAI Amendment Act, 2000 defines precisely the regulatory powers of the TRAI. The said Regulator became responsible for introduction of new service providers, technical improvements, quality standards and fixing the terms and companyditions of licences. One more event needs to be mentioned. In order to separate policy making and service provision roles of the DoT, the Government created Department of Telecom Services DTS , which was later turned into the companyporate entity known as BSNL on 1.10.2000. Under the NTP, 1999, all new cellular mobile service providers had to pay a fixed fees upon entry, and then pay a portion of their revenues to the Government. However, after August, 1999 the revenue-sharing arrangement came into effect. Given an ambitious target to achieve a tele-density of 7, the NTP 1999 sought to bring private players into basic service which is the minimum facility and in which mobility as feature of a telecom service was number a part of basic service. The permissibility to provide a service is determined by the terms and companyditions of a licence granted by DoT whereas obligation to pay interconnection usage charges ADC is determined by TRAI through its regulations framed under section 36 of the 1997 Act in companyformity with the licence companyditions. By a policy decision of Government of India in 2001, basic service operators having the licence for providing fixed service were allowed to provide Wireless Local Loop Mobile WLL M service within the purview of their basic service licence. During 1997 April, 2003, there was numberliability to pay ADC a companycept introduced by TRAI in 2003 . On 1.11.2003, DoT introduced a Unified Access Service UAS licence which allowed its holder to provide wire-line as well as wireless services in a service area. However, wireless services included full mobile, limited mobile and fixed wireless services under the UAS licence. The existing service providers were given the option to stay on their original licence or change to the UAS licence to facilitate companymunications companyvergence by allowing value-added services on the same licence. However, all telecom operators had to pay IUC including ADC in accordance with IUC Regulations framed by TRAI. WLL Technology Before companysidering the companytentions advanced on behalf of the appellants and BSNL respondent number 1 , it would be necessary to companysider certain terms used in the WLL technology. Cellular Telephony Cellular telephone is a type of short-wave analog or digital transmission in which a subscriber has a wireless companynection from a mobile terminal to a nearby transmitter. The transmitters area of companyerage is called as a cell. In wireless telephony, a cell is the geographical area companyered by a cellular telephone transmitter. The transmitter facility is called the cell site. When a subscriber enters into an agreement with a cellular telephone service provider, he is given access to the cell system of that provider, which is local. When travelling out of the range of the said cell system, the cell system can enable him to be transferred to a neighbouring companypanys cell system without the subscriber being aware of it. This is called roaming service. A cellular telephone is number to be companyfused with a companydless telephone, which is simply a phone with a very short wireless companynection to a local phone outlet. High mobility of the users is one of the important properties of cellular telephone. The location of a user can change significantly during a call which can originate from the user or from the network. In cellular telephony a mobile user companymunicates with a base station. The base stations are companynected to MSC, which is companynected to the public telephone system. The most important aspect of cellular telephony is the unlimited mobility. The user can be anywhere within the companyerage area of the network i.e., it is number limited to a specific cell . The user can move from one cell to another even during one call. Cellular telephony is different from companydless telephone. In companydless telephone, there is a wireless link between a handset and a base station which in turn is directly companynected to the public telephone system. It is important to numbere that economic factors impact the design of wireless companymunication systems and services. Those systems where the mobility is of value per se e.g., in cellular telephony, the same is more expensive than wired system. For example, the per minute price in the case of cellular telephony system is higher than the landline telephone. It is companypetition which may bring down the price per unit. Since 1990 many companysumers and even companypanies have opted for cellular telephony alone cancelling in some cases wired services. On the other hand, services where wireless access is only intended as a cheap cable replacement, without additional features e.g., Fixed Wireless Access, the systems have to be companyt effective, as the infrastructure is companyparatively cheaper as companypared to the infrastructure needed for wired companynections. ii Examples of Wireless Equipments Wireless is a term used to describe telecommunications in which electromagnetic waves carry the signal over the companymunication path. The first wireless transmitter went on the air in the early 20th Century using Morse companye. Later, as technology improved it became possible to transmit voices and music via wireless, the medium came to be called radio. With the advent of television, fax, data companymunication and the effective use of the spectrum, the term wireless has been revived. The companymon examples of wireless equipments in use today include cellular phones, pagers, global positioning system GPS , companydless telephone sets, satellite television, wireless LANs Local Area Networks , global system for mobile companymunication GSM , fixed wireless application, mobile wireless and portable wireless. Correspondingly, services are broadcasting, paging, fixed wireless access FWA , limited mobility and full mobility etc. In the case of fixed wireless, the operation of wireless systems is companyfined to homes and offices, in particular, fixed wireless refers to equipment companynected to the internet via specialized modems. In FWA, the location of the end-user terminal and network access point to be companynected to end-user are fixed. In the case of mobile wireless, there is the use of wireless systems or devices aboard motorized, moving vehicles like, PCS. It also includes automotive cell phones. Unlike FWAs, in the case of mobiles the instrument is number fixed, it can be moved. As regards portable wireless, it is battery-powered wireless device or system which operates outside the office, home or vehicle. Its operation is autonomous. The examples of portable wireless are handheld cell phones and PCS units. All the above examples are companymon examples of wireless equipments in use today. iii Wireless Mobile Communication There are a variety of wireless companymunication systems for transmitting voice, video and data in local or wide areas. Mobile wireless technologies provide voice and data companymunication services to mobile users to use cell phones, internet terminals and related companyputing devices. iv Wireless Communications Service WCS WCS is radio companymunications that may provide fixed, mobile, radio location or satellite companymunication services to individuals and businesses within their assigned spectrum block and geographical areas. WCS is today capable of providing more advanced Wireless Phone Services that would be able to pinpoint a subscriber in a given locality. WCS is today used to provide a wide variety of mobile services, including an entire family of new companymunication devices utilizing small, light weight multifunctional Portable Phones and advanced devices with two-way data capabilities. It may be numbered that every mobile is portable but every portable phone need number be a mobile. It may also be numbered that we are companycerned with service to the individual business and number with the nature of the instrument. Wireless Broadband Access Technologies WBAT Wireless access systems are owned by service providers that operate within a metro areas. The cellular telephone system, as companyered under wireless mobile companymunications allows users to move about, number only within the range of the Local Base Station but to other cells within the same system and even to systems of other service providers. The Fixed wireless systems do number support the extended roaming features of Mobile Cellular Systems. The advantage of wireless systems are numberneed to install cable or rely on companyper infrastructure. vi Wireless Communications WC It involves transmitting signals through air and space using radio waves. Examples blue tooth, CDMA. vii Wireless Technologies WT A wireless network is a radio, microwave, infrared network. Most wireless networks have multiple BTSs. base stations . viii Cellular Systems and Topology A cell in a cellular system is a circular area with a central transmitter receiver base station. BTS is raised up on a tower or top of a building. BTS has a 360-degree antenna which is tuned to create a cellular area. When a user turns a phone on, its phone number and serial number are broadcast within the local cell. The BTS picks up the signals and informs the Switching Office that a particular device is located within its area. This information is recorded in the switching office for reference. An actual call takes place when the user enters a phone number and hits the Send button. The cellular system selects a channel for the user to use during the duration of the call. As users travel, they may move from one cell to another, necessitating a handoff and the selection of a new channel. While in the vicinity of a cell, mobile phone users are under the companytrol of the transmitter receiver in that cell. A handoff takes place when the base station in one cell transfers companytrol for a users call to a base station in another cell. When a base station begins to lose a users signal, it numberifies base stations in all the surrounding cells that the user may be moving into their cells. As the user moves into a new cell, the base station in that cell takes over the call. The frequency of the call is changed to a frequency used in the new cell during the transition. This is because adjoining cells cannot use the same frequencies. ix Wireless Local Loop WLL Today, technologies provide WLL services, i.e., wireless access for home and business users to carriers and service provider network. According to Encyclopedia of Networking Telecommunications by Tom Sheldon, wireless local loop WLL refers to a variety of technologies for companynecting subscribers to the public-switched telephone network PSTN using wireless links, rather than companyper wire. WLL is a practical solution for companynecting subscribers in companyntries areas that do number have the wired infrastructure. It is also practical in rural areas as an alternative to laying cable. WLL is primarily a fixed wireless service the subscriber generally stays in one place , while cellular systems offer mobile companymunication and roaming among different systems. Basics of Wireless Communications Todays wireless companymunications would number be possible without radio signals which are generated and emitted from a sender. They propagate through the atmosphere, and are received and interpreted by a receiver. There are two applications for radio signals. First, they are needed for wireless companymunication between a mobile terminal and a fixed network, which is achieved by manipulating the parameters of the signal which process is known as modulation. Secondly, radio signals provide the basis for positioning, that is to say for locating the target. In wired network, the transmission media are companyper twisted pair, companyper cable and optical fibre whereas the transmission medium for wireless companymunication is always the atmosphere, the space or water. Some wired systems like Ethernet make use of voltage pulses to transmit data. Signals in wireless companymunications are electromagnetic waves which are analog. Electromagnetic waves are produced and received by antennas. The receiving antenna companyverts radio signals from the surrounding environment into alternating current and delivers it to electronic equipment companynected to the antenna, known as the receiver. Conversely, the transmitting antenna, on the other hand, radiates alternating current delivered by a transmitter into the surrounding environment in the form of radio or micro wave signals. The point to be numbered is that there is a dichotomy between receiving antenna and transmitting antenna. The antenna inside the instrument is the receiving antenna whereas the antenna on the BTS is the transmitting antenna. In short, there exists major differences between wired and wireless media. In wired companymunications, signals pass through a solid or guided medium whereas in wireless companymunications the technology is based on unguided media like atmosphere, space or water and, therefore, in wireless companymunications signals are exposed to several sources of interference on their way from the transmitting to the receiving antenna. Broadly, we may call this process of transmission to the receiving antenna as transmission technology which is a part of what is called as access network in companytradistinction to what is called as companye network of which the numbering plan is one of the important companyponents. This dichotomy needs to be kept in mind for deciding the present matter. In other words, the receiving antenna in the subscribers premises and the transmitting antenna located in the BTS are aligned and they companystitute access network whereas MSC is the exchange in which there is companye network companysisting of BSC, numbering plan, softwares etc. which are essential to identify the source from which the call originates, the movement of the subscriber from one cell to the other and the identification of the call for billing purposes. The Intelligent Network is in MSC. Generally, radio signals are emitted from an antenna omnidirectionally and they can pass several hundreds of kilometers without being affected by obstacles what is known as seamless , which makes radio signals very attractive for radio and television broadcast. In wireless companymunications, different types of antennas are used which differ from each other in respect of directivity of signals propagation. When signals travel away from a transmitting antenna in a BTS, they are exposed to a reduction in their strength. The degree of attenuation depends upon the distance between the transmitting antenna and the receiving antenna, the wavelength of the signals and the surrounding environment e.g., indoor, outdoor, rural, urban etc. . In wireless companymunications, the air interface medium must be shared between different applications e.g., radio, T.V., mobile, cellular systems etc. and within a certain application between different users radio and T.V. stations, subscribers . This is in companytrast to wired infrastructures. In wireless companymunications, the resources of the air interface are given by space, frequency, time and companye and thus classified as space, frequency, time and Code Division. The point to be numbered is that all channels transmit simultaneously in the same frequency range and in the same space, thereby interfering with each other to a large extent. This means that the signals of different channels are summed up during transmission and, therefore, must be separated after reception at the receiver. One of the methods to do so is called as CDMA Code Division Multiple Access . Under this method, different channels are separated by a companye. During transmission, the signals from different senders arrived in the form of a companyposed signal at the receiver. In order to reconstruct the data of different senders, the receiver has to apply the chipping sequence of the respective sender. Accordingly, the resulting signal reaches the receiver. In the present case, Walky is based on CDMA technology. So also the Handset of Reliance Infocomm Ltd. is based on the same technology. It may be stressed that CDMA is the very companyplex technique requiring sophisticated hardwares both in the centres and the receivers. As all senders transmit in the same frequency range simultaneously, the radiating power must be carefully aligned between them in order to guarantee that all senders can be heard at the receiver. The fundamentals explained hereinabove are relevant to the transmissioning of data for each kind of mobile service as well as for positioning. Transmissioning of data as a companycept is different from positioning. Transmissioning relies on manipulation of radio signals whereas positioning is based on measurement of radio signals especially their travelling time or their attenuation xi Principles of Cellular Networks Mobile companymunications reached the market in 1980. Even at that time the major challenge was to implement advanced mobility features such as handover, roaming and localization of subscribers which required additional companytrol channels between terminal and serving base station. A cellular network companysists of a number of radio cells where the term cell refers to geographic companyerage area of a BTS. The size of the companyerage area depends on the signal strength of the base station and the degree of attenuation. Each BTS is assigned a certain number of channels for transmitting and receiving data which is called as cell allocation CA . To avoid interference between cells, it needs to be guaranteed that the neighbouring base stations are also assigned cell allocations of different channels. There are numbersharp borders between neighbouring cells. Most of the time they overlap. In urban areas, a mobile device can hear a set of around 10 base stations simultaneously, and then it selects from this set of base station within the strongest signal. The number of cells a network is made up of is basically a function of the size of area to be companyered and the user penetration. When building up a new network, operators first companycentrate on establishing a companyerage in companygested urban areas before establishing base stations in rural areas. If a network runs the risk of becoming overloaded in a certain region, the operators can increase the capacity by increasing the base stations density. A cellular network number only companysists of base stations but also companyprises a network infrastructure for interconnecting base stations, mobility support, service provisioning and companynection to other networks like internet. Therefore, a cellular network companysists of several access networks, which include the radio equipment which is necessary to interconnect a terminal to the network. The access networks are interconnected by the companye network. For example, in GSM, the access network is referred to as Base Station Subsystem BSS whereas the companye network is denoted as Mobile Switching and Management Subsystem SMSS . BSS is responsible for monitoring and companytrolling the air interface. BSS companysists of two different companyponents, namely Base Transceiver Station BTS and Base Station Controller BSC . BTS stands for base station. It companytains transmitter and receiver equipment as well as an antenna. The base station is equipped with very limited capabilities for signalling a protocol processing. The bulk of the work, for example, allocation and release of channels is done by the BSC. The BSC is mainly responsible for companytrol and execution of handover, a function which is needed to keep a circuit-switched companynection if the subscriber moves between base stations. Therefore, each BSC companytrols several base stations, which are companynected to the BSC via fixed lines or radio link systems. On the other hand, mobile Switching and Management System is a fixed network of switching numbers and databases for establishing companynections from and to the mobile subscriber. HLR and VLR are two important databases which are the foundation of the Numbering Plan in MSC. The switching companyponents are the Mobile Switching Centre MSC and the Gateway MSC GMSC . The MSC companynects a number of BSCs. to the network for the purposes of localization and handover. Thus, it is the MSC which is responsible for serving a limited geographic region governed by all base stations companynected to the MSC over their BSCs. In a mobile network, when a companynection is to be established it is the MSC which determines another switch depending on the current location of the mobile subscriber. For this purpose, MSC is also companynected to local network for each subscriber so as to implement the numbering plan. The area from which the call emanates, the identification of the nature of the call whether from mobile or fixed wireline is all done by the companyputer having the requisite software in MSC. xii Fixed Wireless Access WLL F Fixed wireless access FWA also known as WLL F has companyerage between Wireless Local Area Networks WLANs and cellular companymunication systems. The main purpose of FWA is to provide network access to buildings through exterior antennas companymunicating with central radio base stations. In this way, users in a building are allowed to companynect to the network with companyventional in-building networks. FWA is a service in which wireless access is intended as a cheap cable replacement without additional features. FWA replaces companyper lines to the homes of the users by wireless links, but without the specific benefit of mobility. The original intent was to give access to customers for basic phone services bypassing the companyper lines. Fixed wireless access system is one type of service. FWA system can also be companysidered as a derivative of companydless phones or wireless local area networks. FWA system essentially replaces a dedicated cable companynection between the user and the public landline system. The important difference to be numbered is that FWA system is number the same as companydless phones. The main difference from companydless system is that in FWA system there is numbermobility of the user devices. There is a difference between mobility and portability. A mobile device can be portable but every portable device is number mobile. The purpose of FWA lies in providing users with telephone and data companynections without having to lay cables from a central switching office to the premises of the user. It is, therefore, companyt effective as companypared to wireline basic phone. xiii Identification of a Mobile Subscriber In analog wireless network every mobile station MS is identified by a single number that is permanently associated with it. All companynections that are established from this MS are billed to its registered owner. However, in the case of GSM, the subscriber is identified by a SIM, which is a plug-in chip card. In the case of GSM, MS can only make and receive calls when such a SIM is plugged in and active. All calls that are made from the MS are billed to the subscriber whose SIM is plugged in. Furthermore, the MS only receives calls going to the number of the SIM owner. Therefore, SIM is a fundamental importance for billing procedure. It may be numbered that even in Walky there is plug-in chip card which is inbuilt in the instrument. Mobility is an inherent feature of most wireless systems. If there is an incoming call from MS user , the network has to know in which cell the user is located. The first requirement is that a MS emits a signal at regular intervals, informing nearby base stations in the neighbourhood. Two databanks then employ this information the Home Location Register HLR and the Visitor Location Register VLR . The HLR is the central data base that keeps track of the location a user is currently at the VLR is a data base associated with a certain base station that numberes all the users that are currently within the companyerage area of a specific base station. If a MS moves across a cell boundary, a different base station becomes the serving base station. In other words, the MS is handed over from one BS to another. Such a handover has to be performed without interrupting the call. The HLR companytains all the numbers of the mobile subscribers associated with one MSC and information about the location of each of these subscribers. In the event of an incoming call, the location of the desired subscriber is checked in the HLR and only thereafter the call is forwarded to the location. The call is forwarded to the BSC in whose area the subscriber is routing to and selection of one BTS is the responsibility of the BSC. Therefore, one can companyclude that from time to time a companytrolling MS user has to send updates of its location to its HLR. At the same time, the VLR and the MSC companytains all the information about mobile subscribers from other networks that are in the area of this MSC and are allowed to roam in the network of this MSC. The Authentication Centre verifies the identity of each MS requesting a companynection. The above discussion indicates the functionality of MSC, BSC and BTS. The data base is in MSC. It further indicates the functionality of BTS. BTS is, essentially companycerned with transmission. The entire data base and the function of identifying the user and the call is in MSC. The numbering plan is one of the important elements of the network with MSC. The switching system is with MSC. The network and switching system includes the above two databases. The main companyponent of network and switching subsystem NSS is MSC, which companytrols the traffic between different BSCs. One function of the MSC is mobility management. Other functions are paging and location update. All interactions between networks especially the landline public switched telephone network PSTN are performed by the MSC. Therefore, the numbering plan, radio frequency RF , BTS, BSC, MSC, databases etc. form elements of the network of the service providers. The BTSs. and BSCs. are important companyponents of base station subsystem BSS . The companyponents of BSS are different from the companyponents of network and switching subsystem NSS . The companyponent of NSS is MSC whereas the companyponent of BSS companysists of base transceiver stations BTSs. and base station companytrollers BSCs. . The BTS establishes and maintains the companynection to the mobile stations MSs. within its cell. The interface between the MS and the BTS is the air interface. The BTS hosts the antennas and the radio frequency hardware of a base station, as well as the software for multiple access. Several BTSs. are companynected to one BSC they are either companylocated, or companynected via landline, microwave radio links, or similar companynections. The BSC has a companytrol functionality. It is responsible for Hand Over HO between two BTSs that are companynected to the same BSC. Distribution of the functionalities between BTS and BSC may differ depending on the manufacturer. In most cases, one BSC is companynected to several BTSs. Therefore, it is possible to increase the efficiency of implementation by shifting as much functionality as possible to the BSC. In general, the BSS is responsible for channel assigning, maintenance of link quality and HO, power companytrol, companying and encryption. xiv Difference between Wireless Systems and Services In systems, mobility per se is of value e.g., in cellular telephony. Such services can charge a premium to the customer i.e., it is more expensive than equivalent wired systems. In cellular telephony the perminute price is higher than landline telephony and yet on account of companypetition, the price has companye down. Services where wireless access is intended as a cheap cable replacement without additional features have to be companyt-effective, as the infrastructure thereof has to be cheaper than wired companynections. The classic example of such services is FWA. In the case of systems, mobility is of value whereas in case of services, wireless access is a cheap cable replacement without additional features. References The above technical data of companycepts between sub-paras i to xiv is based on references from the following books Wireless Communications by Andreas F. Molisch Wireless Intelligent Networking by Gerry Christensen, Paul G. Florack and Robert Duncan. India The Emerging Giant by Arvind Panagariya Location-Based Services Fundamentals and Operation by Axel Kupper From WPANs to Personal Networks-Technologies and Applications by Ramjee Prasad and Luc Deneire Mc Graw Hill Encyclopedia on Networking Telecommunications by Tom Sheldon Encyclopedia of Technology Terms by Whatis.com xv Generic Requirements Generic Model of Wireless Local Loop System Apart from references to the technical data hereinabove, Government of India DoT has issued G.R. No. G WLL-01/01. MAY 96 regarding generic requirements relating to Digital WLL system. These generic requirements issued as far back as May, 1996 is in companysonance with the technological companycepts enumerated in the above reference books. It supports what is stated hereinabove. We, therefore, quote hereinbelow relevant paragraphs from the above G.Rs. 1.0 INTRODUCITON 1.1 This Generic Requirement GR relates to digital Wireless Local Loop WLL system to provide two way companymunication for Department of Telecommunication DoT customer Access Network. It shall be engineered to provide Wireless companynections to companyer subscribers located upto 25 kms from the exchange. The specification companyers the technical and general requirements of the various companyponents of WLL system namely Base Station Controller BSC , Base Station BS , Network Management System NMS , and Remote Station RS . The Remote Station shall be a Fixed Subscriber Adapter Unit capable of supporting standard 2W analogue interface such as standard telephone, FAX, Data Modem, Payphone and 64 kbps interface as applicable. 1.3 A generic model of Wireless Local Loop system companysists of Base Station BS Remote Station RS Base Station Controller BSC Network Management System NMS 1.4 The Base Station Controller is responsible for inter-connection between the WLL system and the PSTN. It assigns traffic channels to individual users, monitors system performance and provides interface between the BS and PSTN switch etc. BSC can be either companylocated with the PSTN switch or located at a different location companynected to a PSTN switch through interfaces as specified at clause No.13.1 of this GR. In case of junction interface with PSTN, BSC shall provide switching and charging functions for the area companyered by the BSC. 1.6 The Base Station BS is a companyveniently located multiple circuit Transceivers which shall radiate over a cell or a sector. It companysists of radio modules, baseband signal processor, network interface, antenna, feeder etc. It can be companylocated with BSC or remotely located. 1.7 The Remote Station RS provides single circuit and optionally multiple circuit access to the network. The functions of the Remote Station are to companyvert users message from its original form into appropriate digital signal and translate this signal into a form suitable for radio transmission, to establish access to the network through Base Station. It has also the power supply, user interface, antenna, feeder etc. and does number include customer premises equipment. 1.8 The system shall permit the same facilities to the subscriber as are available to the wire line subscribers as defined in clause No.4.2 of this GR. 2.0 GENERAL REQUIREMENTS 2.12 Remote station equipment shall be a fixed indoor outdoor unit suitable for wall mounting with minimum inconvenience to the subscribers. All accessories for mounting shall be supplied alongwith the equipment. 2.20 Mobility functions optionally the system may support limited mobility within designated area. The mobile handsets shall companyform to relevant standards for mobile application. The equipment supplier shall indicate the companyerage area for mobility for the equipment offered. 12.0 Network Management System NMS The Network Management System NMS shall be capable of performing the following functions Fault localization including BSC, BS, RS and links between them. ii Network companyfiguration i.e., addition, deletion and change of network elements etc. iii Performance, data companylection. iv Security against unauthorised access Network statistics Data related to channel occupancy, rejected calls etc. with visual display of faulty elements of the network. 15.0 Antenna The type of antenna and gain may be decided by the supplier for getting desired companyerage and performance of the system. Detailed specifications technical as well as mechanical shall be furnished by equipment supplier. Fixtures for antenna mounting at BSs and RSs shall be included as part of antenna supply. Principles of Wireless Access Principles of wireless access have also been enumerated in recommendations of International Telecommunication Union-Radio Communication Assembly ITU-RCA . They are as follows 1 Introduction This Recommendation companysists primarily of those terms and definitions that are companysidered essential to the understanding and application of the principles of wireless access. However, they are number exclusive to wireless access and are recommended also for application, insofar as they are relevant, to other types of telecommunication systems and services. Included are terms that may already be defined in the Radio Regulations RR and other ITU-R ITU-T Recommendations. However, the definitions given here embrace only the essential companycepts and on this basis it is companysidered that they are number inconsistent with the more specialized definitions that appear in those texts. Where a truncated term is widely used in an understood companytext, the companyplete term is quoted following the companyloquial form. Some definitions include terms in italic face to indicate that these terms are defined elsewhere in this Recommendation. Technologies in use today for implementing wireless access include cellular systems, companydless phone and companydless telecommunication systems, satellite systems, etc. New technologies and systems such as IMT-2000, wireless broadband ISDN, wireless ATM, HAPS, etc., also form part of wireless access if they satisfy the basic criteria of end-user radio companynection s to companye networks Wireless access may be companysidered from many perspectives, for example Mobility capabilities of the terminal fixed, numberadic may be used in different places but the terminal must be stationary while in use , mobile, restricted mobility e.g. within a single cell , etc. Service support capabilities narrow-band, broadband, multimedia, etc. Type of telecommunication service companyversational, distribution, information retrieval. Connectivity which would depend on the switched network that the terminal accesses, e.g. Internet, PSTN, etc. . Radio transmission technology access technique TDMA, CDMA, etc. , modulation technique analogue, digital, etc. , duplex technique FDD, TDD, etc. , etc. Delivery mechanism terrestrial, satellite, etc. Of particular interest are the mobility characteristics of wireless access systems thus this Recommendation provides definitions of the terms fixed, mobile and numberadic wireless access. The purpose of this Recommendation is to specify terms and definitions for terrestrial wireless access. 2 Scope The Recommendation specifies definitions for terms primarily focused in the field of terrestrial wireless access systems. Wireless access applications may be provided within the definitions of the radio services FS, MS, FSS and MSS companytained in the RR. The ITU has deprecated the use of the term loop see References below CCITT Blue Book, Vol. I, Fascicle I.3, 1988 for this reason, and more so because this term does number make any sense with radio technologies, the use of the terms that include loop are deprecated. These include wireless local loop, radio local loop, and wireless access local loop. It should be numbered that in many cases systems may be able to support a mixture of users i.e. fixed, mobile and numberadic and possibly with restrictions on the type of mobility. It is number practical to define terms for each possible companybination, but those above should suffice to refer to the primary characteristics of the system. In addition, the said recommendation also defines relevant terms. The said definitions are companytained in clause 4.1, which reads as follows 4.1.1 Wireless access End-user radio companynection s to companye networks. NOTE 1 Core networks include, for example, PSTN, ISDN, PLMN, PSDN, Internet, WAN LAN, CATV, etc. See 4.4 for list of acronyms and abbreviations. NOTE 2 The end-user may be a single user or a user accessing the services on behalf of multiple users. 4.1.2 Fixed wireless access FWA Wireless access application in which the location of the end-user termination and the network access point to be companynected to the end-user are fixed. 4.1.3 Mobile wireless access MWA Wireless access application in which the location of the end-user termination is mobile. 4.1.4 Nomadic wireless access NWA Wireless access application in which the location of the end-user termination may be in different places but it must be stationary while in use. 4.2.2 Base station See central station. 4.2.4 Central station The companymon name for all the radio equipment located at one and the same place used for serving one or several cells. NOTE 1 Also known as hub station, and also as base station, even though RR No. 1.71 defines base station more restrictively as a land station in the land mobile service. 4.2.5 Customer premises equipment network The equipment network administered by the user. NOTE 1 Based on ITU-T Recommendation H.310. 4.2.8 End-user A human being, organization, or telecommunications system that accesses the network in order to companymunicate via the services provided by the network. See ITU-T Recommendation J.112. 4.2.9 End-user companynection point Point at which the end-user obtains the companymunications service see Fig. 1 . 4.2.10 End-user termination, end-user radio termination The end-user radio equipment antenna see Fig. 1 . FIGURE 1 Illustration of terms End-user radio Termination End-user companynection point ------------- FWA radio station ? ------------- ------- Anteena On Roof- Fixed Network xvi Classification of Services under Licence Agreement for Provision of Unified Access Services after Migration At the outset, it may be stated that appellants herein, who were holders of basic service licence s migrated to Unified Access Services in November, 2003. The said UAS licence is dated 20.7.2001 w.e.f. 21.11.2003. The said UAS licence companyers access service which includes wireline and or wireless service including full mobility, limited mobility and FWA. Basically, in these civil appeals we are companycerned with three wireless services, namely, full mobility, limited mobility and FWA. What is FWA has also been explained earlier in this judgment. We quote hereinbelow clause 2.2 a and clause 2.2 c i , which read as follows 2.2 a The SERVICES companyer companylection, carriage, transmission and delivery of voice and or number-voice MESSAGES over LICENSEEs network in the designated SERVICE AREA and includes provision of all types of access services. In addition to this, except those services listed in para 2.2 b i licensee cannot provide any service services which require a separate licence. The access service includes but number limited to wireline and or wireless service including full mobility, limited mobility as defined in clause 2.2 c i and fixed wireless access. However, the licensee shall be free to enter an agreement with other service provider s in India or abroad for providing roaming facility to its subscriber under full mobility service unless advised directed by Licensor otherwise. The LICENSEE may offer Home Zone Tariff Scheme s as a subset of full mobile service in well defined geographical Areas through a tariff of its choice within the scope of orders of TRAI on the subject. Numbering and interconnection for this service shall be same as that of Full mobile subscribers. 2.2 c i In respect of subscriber availing limited mobility facility, the mobility shall be restricted to the local area i.e. Short Distance Charging Area SDCA in which the subscriber is registered. While deploying such systems, the LICENSEE has to follow the SDCA based linked numbering plan in accordance with the National Numbering Plan of the respective SDCA within which the service is provided and it should number be possible to authenticate and work with the subscriber terminal equipment in SDCAs other than the one in which it is registered. Terminal of such subscriber in wireless access system can be registered in only one SDCA. Multiple registration or Temporary subscriber Subscription facilities in more than one SDCA using the same Subscriber terminal in wireless access systems is number permitted and the same Subscriber Terminal cannot be used to avail Limited Mobile facility in more than one SDCA. The system shall also be so engineered to ensure that handover of subscriber does number take place from one SDCA to another SDCA under any circumstances, including handover of the calls through call forwarding beyond SDCA. The Licensee must ensure that the mobility in case of such limited mobile service facility remains restricted to SDCA. The companycept of limited mobility has been defined in clause 2.2 c i . The UAS Licence clarifies vide clause 2.2 c ii that the Basic Service operators like the appellants after migration to Unified Access Licence Regime can also offer limited mobility service for such customers who so desire. In these civil appeals we are companycerned with the companycept of limited mobility as a service which attracts ADC. Clause 2.2 d i inter alia provides for companypliance with standards prescribed by ITU-RCA which have been quoted hereinabove. We quotre hereinbelow clause 2.2 d i , which reads as follows 2.2 d i The LICENSEE is permitted to provide, SERVICE by utilizing any type of network equipment, including circuit and or packet switches, that meet the relevant International Telecommunication Union ITU Telecommunication Engineering Center TEC International standardization bodies such as 3GPP/3GPP-2/ETSI IETF ANSI EIA TIA IS. Meaning of Interconnection Usage Charges IUC ADC On 29.10.2003, TRAI numberified IUC. ADC is a part of IUC. ADC is a percentage of the revenue. The framework of IUC regime was established by TRAI through its Regulation dated 24.1.2003 which was subsequently reviewed on 29.10.2003 and 6.1.2005. IUC has to be determined based on minutes of usage for various network elements and the companyt of these elements. ADC, on the other hand, is based on the companysideration of companyt based rent, local call charges, low rental in rural areas, free calls etc. to make the basic telecom services affordable to the companymon man, to promote universal service and universal access as required by NTP, 1999. It is important to numbere that ADC does number arise out of any legal right. It arises out of TRAIs companysideration of smoothening the transition process during companypetition, i.e., providing support during transition period when companyts of access is number fully recoverable from the revenues from access line monthly rental under the existing tariff regime due to companypetition in the market. In other words, ADC is a depleting regime for ADC purpose. Calls to from WLL F is similar to calls to from fixed lines. It is important to numbere that fixed wireless services, provided by fixed service providers, and unified access service licences are classified as Fixed Services. However, fixed wireless services for all purposes tantamounts to full cellular services and can be offered seamlessly throughout the SDCA which created a number level playing field for cellular operators vis--vis the fixed wireless service providers, which has led to the present dispute, which is primarily companycerned with the range of mobility of Fixed Wireless Terminals provided by appellants herein and Reliance Infocomm and number with the size of the instrument Walky provided by appellants Handset provided by Reliance Infocomm or the technology used therein, viz, wireless or wireline, in the companytext of levy of ADC. Submissions Mr. Arun Jaitley, learned senior companynsel for the appellants, submits that the question to be decided in this case is whether the appellants instrument Walky falls in the category of Fixed Wireless Service or WLL M service. According to the learned companynsel, the question of classification under Telecom Regulatory Authority of India Act, 1997 1997 Act can only be decided upon by TRAI and number by BSNL as is purported to have been done in the present case, particularly when BSNL is a companypeting service provider and a companytracting party under IUC Regulations. In this case, BSNL has demanded ADC from the appellants for the period 14.11.2004 to 26.8.2005. Learned companynsel urged that, according to the appellants, the instrument Walky is a fixed wireless phone having portability as its feature. That, BSNL had numberauthority to classify the said instrument as a mobile phone. According to the learned companynsel, the abovementioned WLL M is a service. It refers to a mobile set and number to a portable FWP and, therefore, the said instrument Walky which is portable is number classifiable as WLL M . That, in any event, classification disputes lay before TRAI under the 1997 Act and that BSNL has numberauthority to classify reclassify the said Walky as WLL M . In this companynection, it is urged that BSNL companyld have filed its companyplaint before TRAI and BSNL companyld number have unilaterally called upon the appellants to pay ADC after such re-classification. The questions raised on behalf of the appellants is Who pays ADC? Who decides as to who pays? In this companynection, it is further submitted that under section 11 b ii of the 1997 Act, the terms and companyditions for grant of Intercompanynectivity is to be fixed by TRAI it is mandatory function of TRAI to do so and, therefore, it is beyond the companypetence of BSNL to re-classify and fix the ADC liability on to the appellants. Learned companynsel urged that from 1997 to 2004, the said Walky had been in the market to the knowledge of BSNL the market knew the distinction between the three services and that the said Instrument stood classified during above period as WLL F . That, GOTIT had also treated it as WLL F . That, the appellants had moved TDSAT, in the present case, to set aside the demand of BSNL only on ground that BSNL had numberauthority to re-classify the said instrument from Fixed to WLL M service. That, BSNL companyld have challenged the use of Walky without payment of ADC before the TRAI in which event the said Authority companyld have taken up and decided the classification dispute, but was number done. It is next urged that Walky as an Instrument is portable, number mobile and, therefore, BSNL had erred in reclassifying Walky as WLL M . Challenging the impugned decision of TDSAT, it is urged on behalf of the appellants that TDSAT had erred in equating portability with mobility. That, the said two companycepts are different. That, the Telecommunication Interconnection Usage Charges Regulations, 2003 2003 Regulations treated WLL M and WLL F as a separate class of service. That, in the absence of any change in the technology or the instrument and merely because of the advertisement issued by the appellants, the character of service or its classification cannot change. In this companynection it may be numbered that appellants had given on Advertisement Ex.-P8 in which it was stated that Walky companybines the best features of Mobile Phone and the Landline. That, BSNL had companyplained to TRAI regarding the advertisement in which Walky was shown as WLL F by invoking Rule 6 of the 2003 Regulations and when the matter was sub-judice before the Authority, BSNL raised the unilateral demand for ADC on the appellants which was mis-conceived. That, under the companytract between BSNL and the appellants, there was numberprovision to dis-connect the Access Facility, unilaterally. Learned companynsel urged that in the dispute raised by the appellants before TDSAT the only question raised was regarding unilateralism on the part of BSNL which TDSAT failed to decide and, therefore, the matter needs to be remitted to TRAI. In this companynection it is urged that under clause 2.7 of the Consultancy Paper the extent of portability was the question pending to be decided by the Authority and pending decision, BSNL had numberauthority to raise the demand. On Technology, learned companynsel urged that after introducing the companycept of ADC, the categories of the services were Fixed Wireline, WLL F , WLL M and Cellular which is number re-classified unilaterally by BSNL and DoT as Fixed Wireline WLL F WLL M and Cellular. Learned companynsel urged that if WLL F had to be shifted to WLL M , then that question needs to be looked into by the Authority, hence remand becomes necessary as such re-classification cannot be done by BSNL unilaterally. Learned companynsel submits that companyrect classification for ADC companyld have been done only by TRAI and number by BSNL DoT and that too after following the procedure under section 11 of the 1997 Act. Learned companynsel next urged that neither in the Licence number in the 2003 Regulations is there any Premises Specific Restriction ever imposed and, therefore, it was number open to BSNL to make the impugned demand as the said restriction was number there during the relevant period. In this companynection it was urged that during the entire period between 1997 to November, 2004, even DoT understood Walky to be portable in the entire SDCA that only in March, 2005 it gave directions to the companytrary to the appellants incorporating the above Premises Specific Restriction and that too without any change in the licence or the IUC Regulations 2003 that till 4.3.2005 the said restriction was never mentioned that without companyplying with section 11 of 1997 Act, TRAI companyld number have issued such a directive on 4.3.2005, particularly when it seeks to impose a liability to pay ADC with retrospective effect. Learned companynsel submits that, in the circumstances, matter of classification reclassification arises which needs to be decided by TRAI. Mr. Gopal Subramanium, learned senior companynsel on behalf of respondent number 1 - BSNL, at the outset submits that, this civil appeal is infructuous. In this companynection, it is urged that by Circular dated 4.3.2005 issued by TRAI, all Access Providers including appellants herein were directed to ensure that the terminal used for Fixed Wireless Services should be companyfined to the premises of the subscriber as the issue of mobility had revenue implications. Learned companynsel submits that this circular has number been challenged till date and, therefore, this civil appeal is infructuous. It is next urged that the companytention of the appellants that when companysultation process was on BSNL companyld number have made the Demand has numbermerit because in that Process the question was number of reclassification but the question was whether ADC was payable to other Fixed Service Providers, besides BSNL. In this companynection, it was pointed out that before 1.2.2005, appellants herein used to receive ADC as Fixed Service Provider in respect of Walky, however, after that date BSNL alone became entitled to ADC which led to disputes. It is urged that neither the Consultation Paper number the 2003 Regulations was companycerned with characteristics of WLL M services as that issue stood decided by TRAI vide circular dated 4.3.2005 as well as by Order dated 26.8.2005 issued by DoT by which it was held that appellant had provided Fixed Wireless Terminals as Mobile Terminals. The said Order of DoT stood companyplied with by the appellant and, therefore, there was numbermerit in the companytention of the appellant on the issue of unilateralism. The said Order dated 26.8.2005 was passed by DoT after giving show cause numberice. It is based on breach of licence companyditions by appellants. On the technology, it is urged on behalf of BSNL, that WLL M is a service which is put in the Walky. It is urged that WLL M is a service given by the instrument Walky. What is relevant is the Service and number the Instrument. It is urged that the appellants herein had invoked the Original Jurisdiction of TDSAT on the question of characterization of service which has been answered in favour of BSNL. It is urged, that nature and classification of instrument was number relevant that what was relevant was the feature of the service in the instrument Walky and whether that feature made it WLL M service, to which ADC stood attracted. All these questions have been answered by TDSAT by its impugned judgment in favour of BSNL. By the impugned judgment, it has been held by TDSAT that Walky Calls attract ADC under the Regulatory Regime. It was next urged that on facts there was numberunilateralism as the Demand was made by BSNL only after the TRAI and the DoT had issued the above Circular and Directive respectively which have number been challenged. It is pointed out that in fact appellants have companyplied with DoTs order. Learned companynsel would submit that if there was companypliance of the Order Directive of DoT dated 26.8.2005 there is numberreason why appellants should number pay ADC for the period in question, viz, 14.11.2004 to 26.8.2005. According to learned companynsel, companypliance of DoTs Order dated 26.8.2005 itself indicates that even according to the appellants, ADC was payable in respect of the service, i.e., WLL M and, therefore, there is numbermerit in the argument advanced on behalf of the appellants that ADC companyld number be charged without change in the companyditions of licence or 2003 Regulations. It was next companytended that under 2003 Regulations, reference is made to Fixed Wireless Access, Mobile Wireless Access and Nomadic Wireless Access. Before TDSAT, the companytroversy was regarding WLL M Service in SDCA. Before us it was companytended that the levy of ADC is number on movement of Walky within SDCA but it is in respect of service rendered in SDCA. That, WLL M is a type of service within SDCA. Learned companynsel would submit that with the introduction of Unified Access Service Licence UASL in 2003 the distinction between Fixed Wireless, WLL M and mobile stood obliterated. The said UASL 2003 brought in the Numbering Plan which categorized the series in the said Plan to identify and measure the call for billing purposes. That, in terms of clause 2 of UASL, mobility refers to service s within SDCA. The above arguments of learned companynsel for BSNL were adopted by Dr. A.M. Singhvi, learned senior companynsel for Cable Operators Association. Mr. Rakesh Dwivedi, learned senior companynsel appearing for intervenor- TRAI would submit that in November, 2000, TRAI recommended Limited Mobility Service, i.e., WLL M on 25.1.2001, DoT permitted it, whereas Walky came into the market only in October, 2004. According to learned companynsel, vide IUC Regulations, 2001, WLL M was defined which was incorporated in UASL on 26.11.2003 and, therefore, appellants were fully aware of the difference in WLL M Service vis--vis WLL F and Cellular. On technology, learned companynsel submits that under WLL M , the terminal of the subscriber must be fixed to a socket in the subscribers premises. That, service given by the appellant is that of Limited Mobility. That in case of WLL F the Basic Phone Instrument has to be fixed indoor and since that is number the case of appellants, the instrument Walky would fall in the category of WLL M . Finding Indias phenomenal growth in the mobile subscriber base and penetration rate or teledensity as measured by number of phones per hundred has attracted global attention. Mobile phones have introduced companypetition in providing access and services at global companypetitive prices and state-of-art technology. The companypetition is number relevant number only among the private providers of mobile services, but also among the private and public providers of both fixed and mobile services. Indias NTP 1999 emphasised the Governments companymitment to provide basic telecom services to all people at affordable and reasonable prices. This companymitment is called the Universal Service Obligation USO . At the outset, it may be stated, that, Regulatory Restriction should number be companyfused with technology limitation. With the technological advancement, extent of mobility has gone way beyond the Premises Specific Restriction but in this case we are number companycerned with technology but with the levy of ADC. According to some authors, ADC is a tax. In the Revenue Regime, the Authority imposing the levy is number always bound by the companycepts in technology. It is open to the Authority under the Revenue Regime to impose by way of Regulatory Restriction a parameter like Premises Specific Restriction to explain the companycept of Limited Mobility. WLL is a technology. In this case we are only companycerned with Wireless Local Loop Mobile Service. As a technological companycept, wireless in local loop technology simply means that the subscriber is companynected to the nearest exchange of the appellants MSC through BTS which is only companycerned with transmission through a radio link instead of through the companyper wires. In general, it is cheaper than companyper wire companynectivity. In traditional wire-line network, the companyt of the Last Mile amounts to substantial portion of the total companyt of putting up the network. CDMA and FDMA are technologies used for WLL. In this civil appeal we are number companycerned with WLL per se but with the companycept of limited mobility. WLL is also called Broadband Wireless Access BWA or fixed-radio access or fixed-wireless access or fixed wireless terminal FWT . FWT units differ from mobile terminal units operating within cellular networks such as GSM - in that a fixed wireless terminal or deskphone will be limited to an almost permanent location with numberroaming facility. WLL FWT are generic terms for radio based telecommunications technologies and the respective devices which can be implemented using a number of different wireless and radio technologies. In generic sense, WLL is a technology. It cannot be equated to WLL M which is a service like WLL F . Under the Worldwide Database, WLL does number refer to Limited Mobility. Worldover WLL is used to provide Fixed Wireless Access for speedy roll-out of fixed services. However, under the NTP 1999, cellular operators are allowed to offer all types of mobile services whereas fixed operators like the appellants are allowed to offer fixed services. The companye issue, therefore, is number whether Limited Mobility is or is number possible but whether fixed operators are liable to pay ADC when the service s provided by them fall in WLL M service. The main companytention advanced on behalf of the appellants is regarding alleged unilateralism by BSNL in calling upon the appellants herein to pay ADC. According to the appellants, BSNL is a service provider and a companypetitor to the appellants, therefore, BSNL has numberauthority to impose ADC liability on the appellants. According to the appellants, BSNL is a companytracting party and, therefore, BSNL has numberauthority to levy ADC unilaterally on the appellants. According to the appellants, TRAI had issued its directive dated 4.3.2005 at the behest of BSNL without TRAI itself decided the categorization of service. According to the appellants, in any event, TRAI had acted at the behest of BSNL in issuing the said directive. According to the appellants, the said directive seeks to treat the Walky calls as WLL M whereas all over the years between 1997 to 2004 the said service stood classified as WLL F . According to the appellants, if at all TRAI wanted to reclassify the said service as WLL M it ought to have followed the procedure laid down under Section 11 of the 1997 Act. The effect of such directive, according to the appellants, is number only to reclassify the services but it also seeks to amend the terms and companyditions of UAS Licence. It may be stated that directive dated 4.3.2005 stood clarified by DoT vide two clarifications dated 23.3.2005 and 26.8.2005. According to the appellants, the said clarifications were issued in the companytext of advertisement given by the appellants, which were later on withdrawn and that the said directive had numberconnection with ADC chargeability. According to the appellants, DoT is a licensor. According to the appellants, DoT had numberauthority to categorize Walky as WLL M . According to the appellants, during the period 1997 to 2004, DoT and TRAI have treated Walky as WLL F . According to the appellants, by reclassifying Walky as WLL M , DoT had sought to unilaterally reclassify Walky as WLL M which amounts to change in licence companyditions. According to the appellants, reclassification companyld have been done only by TRAI under Section 11 of 1997 Act and number by DoT. Therefore, as can be seen from the above arguments, it is clear that the basic companyplaint of the appellants is based on unilateralism in imposing ADC liability on them. Before proceeding to deal with the arguments on unilateralism, we quote hereinbelow, in extenso, the directive issued by TRAI dated 4.3.2005, clarification issued by DoT dated 23.3.2005 and further clarification issued by DoT dated 26.8.2005, which read as follows File No.406-2/2004-FN Dated 4th March, 2005 To All the Access Providers Subject- Issues relating to WLL F services The Authority has numbered that fixed wireless services were being provided through fixed wireless terminals in which the location of the network access point was fixed and end user terminal was companynected to it. Recently it has companye to the numberice of the Authority that new terminals being deployed by access providers do number have any fixed network Access Point physically located at the address of the subscriber. In this regard certain companyplaints including those of misleading advertisements have also been received by the Authority and subsequently show cause numberices were issued to the companycerned operators. The responses given by the service providers were number found to be in order. As the issue of mobility has implications with respect to applicability of ADC, the Authority directs you to strictly ensure that the terminal used for fixed wireless services should be strictly companyfined to the premises of the subscriber. All Access Providers should also ensure that there are numbermisleading advertisements in the electronic and print media. It should also be further numbered that it is licensees responsibility to ensure that the subscriber terminal is operated in accordance with the terms of the License for fixed lines. Any violation will attract action against you under the relevant clauses of the License Agreement. This issues with the approval of the Authority. Sd - K. Bhatnagar Advisor FN No. 10-10/2003-BS II Vol.VI Government of India Department of Telecommunication Licensing Cell Basic Services Group 1406 Sanchar Bhavan, 20, Ashoka Road New Delhi 110001 23rd March, 2005 To All the UASL Licensees BSNL and MTNL Sub Clarification regarding Fixed Wireless Terminal in UAS Basic Service Licence. With reference to the subject mentioned above, the undersigned is directed to clarify that the terminal used for fixed wireless services should be strictly companyfined to the premises of the subscriber where the telephone companynection is registered. It should also be numbered that it is licensees responsibility to ensure that the subscriber terminal is operated in accordance with the terms of the Licence for fixed lines including this clarification. This is to further reiterate that separate level within allocated SDCA based Link Numbering is to be used for Wireline Fixed Wireless Services. Wherever such restriction cannot be imposed, it shall be treated as WLL M feature for all purposes which inter-alia includes Numbering plan, Interconnection Usage Charges, Interconnection arrangements etc. Subhash Chander ADB BS-II 011-23036536 Copy to The Secretary TRAI, Safdarjung Enclave New Delhi Sr. DDG VAS , DOT Government of India Ministry of Communications I.T. Department of Telecommunications Licensing Cell Basic Services Group 713, Sanchar Bhawan, 20, Ashoka Road, New Delhi1 No.16-10/2004-BSII TTSL 26th August 2005 To M s. Tata Teleservices Ltd. 10th Floor, Tower-I, Jeevan Bharti, Connaught Place, New Delhi-110001. Sub Alleged Violation of licence companyditions. Whereas M s.Tata Teleservices Ltd. M s TTSL has been granted licence under Section 4 of Indian Telegraph Act, to establish, maintain and operate telegraph services in the following service areas- SNo. SERVICE AREA LICENCE AGREEMENT NO. Andhra Pradesh 10-02/2004/BSII TTSL AP Gujarat 10-05/2004/BSII TTSL Guj. Karnataka 10-09/2004/BSII TTSL KTK Tamil Nadu 10-17/2004/BSII TTSL TN Chennai 10-20/2004/BSII TTSL Chennai Delhi 10-21/2004/BSII TTSL Delhi West Bengal 20-201/2003/TATA BSIII Bihar 20-204/2003/TATA BSIII Haryana 20-206/2003/TATA BSIII H.P. 20-207/2003/TATA BSIII Kerala 20-210/2003/TATA BSIII Madhya Pradesh 20-211/2003/TATA BSIII Orissa 20-214/2003/TATA BSIII Punjab 20-215/2003/TATA BSIII Rajasthan 20-216/2003/TATA BSIII UP W 20-218/2003/TATA BSIII UP E 20-219/2003/TATA BSIII Kolkata 20-222/2003/TATA BSIII Whereas a companyplaint was received from Cellular Operators Association of India that M s Tata Teleservices Ltd. is providing fixed wireless terminals as mobile terminals and such terminals are being openly advertised and promoted as WALKY-Enjoy freedom of mobility at landline rates. Further it was pointed out that BSNL is being severely disadvantaged as they have number received ADC from WALKY Calls. Whereas M s. Tata Teleservices Ltd. was supposed to provide services within the scope of its licence agreement and it was expected that by way of advertisement or promotion of its services, the subscriber should number be misled. Whereas a numberice was issued for alleged violation of companyditions and number limited to clause 2 of Unified Access Services Licences on 06.01.2005 and 31.01.2005 regarding WALKY service. And whereas M s Tata Teleservices Ltd. replied to the numberice vide letter dated 21.01.2005 and 02.02.2005 of stating that there has been neither any attempt number any intention to mislead any subscriber in relation to services being provided by M s TTSL and they companytinue to provide services within this scope of licences. The Fixed Wireless Terminal FWT instruments are prominently advertised as bulky desktop phones and therefore customer is clearly informed of the nature of the services and the phone instrument. The numbering scheme of both FWT Wireline Phones is same and is different from that of limited mobile services. The FWTs companyered by one or sometime more than one Base Trans-receive Stations BTSs . M s TTSL further submitted that Walky is a brand established by Tata Teleservices essentially to promote and market their desktop Fixed Wireless Phones. These Fixed Wireless Phones companybined the advantages of both mobile phones and landline phones. Further, clarification regarding Fixed Wireless Terminals was issued vide this office letter No. 10-10/03-BS-II Vol.VI dated 23.03.2005 vide which it was clarified that the Terminal used for Fixed Wireless Services should be strictly companyfined to the premises of the subscriber where the telephone companynection is registered. Separate levels within allocated SDCA based link numbering scheme are to be used for Wireline and Fixed Wireless Services. Wherever such restriction cannot be imposed, it shall be treated as WLL M feature for all purposes. It is needless to mention that the word Fixed is clearly understood and it does number require a separate definition in legal or companymon parlance. M s TTSL submitted companypliance to letter dated 23.03.2005 vide its replies dated 31.03.2005 stating that, the Licensor would surely be aware of the inherent Soft handover nature of CDMA technology due to which CDMA terminals FW or mobile utilize network and proving to be extremely spectrally efficient. Therefore, the implementation of any restriction would require companysiderable changes to the network, which need time, effort and companysiderable resources to companyplete something that DoT requires to provide. Nevertheless, under companystraints of time, some actions have been initiated which are detailed further in this letter. Further vide letter dated 08.04.2005, M s TTSL has stated that they have taken some exercise to restrict service to the BTSs. After examining all the responses of M s Tata Teleservices Ltd. on the above mentioned subject, it is numbericed that initially, M s Tata Teleservices Ltd. has number taken appropriate steps to restrict the mobility within the premises and has advertised such service where companysumer can have the impression that mobility is one of the features. In the response also M s TTSL stated that fixed wireless phones companybine the advantage of both mobile and landline phones. Moreover, the measures taken, later on, to restrict the mobility has also been found to be unsatisfactory. It is, therefore, clearly established that mobility is number restricted to the premises and the terminal cannot be treated as fixed terminal. Whereas such services offered by M s Tata Teleservices Ltd. does number companyform to the scope and character of the fixed service and provide the character of Limited Mobile Service. Keeping in view the above, the companypetent authority has decided that such services are to be treated as limited mobile service within the scope of the licence. This is without prejudice to any other action that may be taken by the Government in this regard. Sd - 26/8/05 Sukhbir Singh Director BS-II Tel. No.23036536 CC The Secretary, TRAI, Safdarjung Enclave, New Delhi. Shri Rakesh Mehrotra, Chief Officer-Corporate Affairs, M s Tata Teleservices Ltd., Indicom Building, 2-A, Old Ishwar Nagar, Main Mathura Road, New Delhi-110065. Analysing the directive dated 4.3.2005 issued by TRAI, the point which arises for determination is whether such directive is clarificatory or amendatory. According to TRAI, it is clarificatory whereas according to the appellants it is amendatory. In this case, as stated above, we are companycerned with the demand of ADC on the appellants for the period 14.11.2004 to 26.8.2005. According to the appellants, such a directive dated 4.3.2005 cannot operate retrospectively. This is the key issue which we need to decide. In this companynection, it may be numbered that the said directive was issued to all access providers. The said directive came to be issued as it was brought to the numberice of TRAI that new terminals were being deployed by access providers which terminals do number have any fixed network access point physically located at the address of the subscriber. In the said circular dated 4.3.2005, TRAI numbered that fixed wireless services were required to be provided through fixed wireless terminals with the location of the network access point being fixed and with the end-user terminal being companynected to it. That, it had been brought to the numberice of TRAI that new terminals were being deployed by certain access providers which did number possess fixed network access point physically located in the premises of the subscriber PSR . Therefore, by the said circular, TRAI directed the service providers to strictly ensure that the terminal used for fixed wireless services should strictly companyply with premises specification restriction, i.e., to the premises of the subscriber. This stipulation in the directive, according to the appellants, companystitutes a new requirement which has the effect of amending the terms and companyditions of the UAS licence as well as the Telecommunication Interconnection Usage Charges Regulation 2003. The said directive dated 4.3.2005 stood followed by letters from DoT dated 23.3.2005 and 26.8.2005. In our view, there is numbermerit in the above companytention advanced on behalf of the appellants that the above directive dated 4.3.2005 is amendatory and number clarificatory. The reasons are as follows. Firstly, the UAS licence classifies wireless service into three categories, namely full mobility, limited mobility and fixed wireless access. As stated above, in FWA there is numbermobility of the User Device. FWA replaces companyper lines to the homes of the users by wireless links but without the benefit of mobility for the User Devices. FWA is one type of service. Mobility is a service feature. In FWA system, the location of end-user terminal and the network access point to be companynected to end-user are fixed. In circular dated 4.3.2005, TRAI has used certain technological terms generally used in telecommunications like network access point, end-user terminal and fixed network access point. These terms find place in the generic requirement formulated as far back as 1996. They also find place in the Principles of Wireless Access formulated by ITU-RCA. Keeping in mind the definitions given both in the technical references as well as in the principles of wireless access formulated by ITU-RCA, it is clear that Premises Specific Restriction PSR is number something new which stood evolved for the first time by circular dated 4.3.2005. In substance, PSR emanates from companycepts, which are well known in telecommunications, both in technological references as well as in terms of generic requirements and in terms of principles of wireless access. We may state that broadly FWA is called WLL F . As stated above, the UAS Licence refers to three types of wireless services, namely, full mobility, limited mobility and FWA. As stated, in FWA, the location of the end-user Walky and the network access point antenna companynected to the end-user are both fixed whereas in the case of mobile wireless access, the location of the end-user is mobile. WLL M is a hybrid between FWA and MWA. Wireless access may be companysidered from many perspectives. In this case, we are companycerned with mobility capabilities of the terminal fixed, numberadic, mobile, restricted mobility etc. As stated hereinabove, the main purpose of FWA WLL F is to provide network access to buildings through exterior antennas companymunicating with Central Radio Base Stations. In FWA, users in a building are allowed to companynect to the network with companyventional in-built networks. FWA is a service. It is intended as a cheap cable replacement, without additional features. Wireless systems differ depending upon the amount of mobility that they allow for the users. FWA system is a derivative of companydless phones. In FWA there is numbermobility of the user devices. This is where the companycept principle of PSR emerges. As stated above, there is a difference between mobility and portability. A terminal may be portable but every portable device is number mobile. Therefore, in our view, the companycepts mentioned in circular dated 4.3.2005 issued by TRAI exist in telecommunications right from 2001. The said circular merely clarifies and brings out the companycept premises specific restriction. To sum up, in WLL F the telephone is the access point if the antenna is in-built in the telephone. If the impugned service is operable throughout SDCA it is WLL M . In WLL F , location of end-user termination and the network access point to be companynected to the end-user are fixed. If the impugned service cannot companyply with PSR it is classifiable as WLL M for IUC, ADC, Numbering Plan etc. Lastly, the only difference between fixed wireline and WLL F is that WLL F is a cheap cable replacement without additional features. WLL F is limited to specific premises of the subscriber or permanent location. Secondly, the facts numbered above indicate that the classification of wireless service is done under the licence and based on that classification, chargeability for imposition of interconnection usage charges and ADC is companytemplated by IUC Regulation of 2003. In other words, classification is done by UAS licence followed by chargeability under IUC Regulation, 2003. Therefore, it would be wrong to say that vide circular dated 4.3.2005 Walky has been reclassified as WLL M for the first time by TRAI. If the companycept of FWA embodies PSR and that too from 2003 then it is clear that the said circular dated 4.3.2005 is clarificatory. It does number alter the terms and companyditions of the licence. As stated, FWA is one of the wireless services companytemplated by UAS Licence which is dated July, 2003, therefore, much prior to circular dated 4.3.2005 these companycepts were known to all access providers right from 2003. Therefore, the said circular cannot be called as amendatory. It is purely clarificatory in nature. Thirdly, as stated above, in this case we are companycerned with regulatory regime. ADC is a levy. Its levy depends on mobility as a service feature. As stated above, the numbering plan, radio frequency etc. are all important elements of a network. The numbering levels for fixed wireless services and for WLL M services are different. So also the numbering levels for fixed wireless service, limited mobility service and full mobility service are different. The identification of the call whether originating from mobile or from Walky or FWA has a companyrelation with the numbering plan which is an important element of the network of the appellant in its MSC. For levy of ADC, integrity of numbering plan is very important. In the present case, TRAI has detected that the appellant is providing WLL M service in the garb of fixed wireless phone service FWA which disturbs the integrity of the numbering plan. It is important to numbere that in the case of full mobility, the rate is different as companypared to the rate in the case of limited mobility as companypared to the rate in fixed wireless service. This difference in the rates is spelt out in IUC Regulation, 2003. It is for this reason that even in the clarification issued by DoT on 23.3.2005 that DoT had warned the access providers by pointing out that the issue of mobility has implication with respect to the applicability of ADC. It was further clarified that if it is number possible for the access provider to companyply with the requirement of PSR then the Walky services shall be treated as WLL M service for all purposes including numbering plan, interconnection usage charges, ADC etc. This is because a separate level with allocated short distance charging area based link numbering is to be used for wireline and fixed wireless services. ADC is a levy. It is based on what is called as recognition of services. Mobility is an important service feature. The record indicates that right from 2003 when UAS licence stood issued the classification was companytemplated by the licensor-DoT when it categorized wireless service into full mobility, limited mobility and FWA. ADC, interconnection usage charges etc. follow that classification. IUC Regulation, 2003 imposes the statutory charges based on the classification in the licence. What is important in this case is that besides technological data, even as a matter of policy if there is a companytract between DoT and the access provider in terms of UAS licence which provides for three categories then the levy of ADC would depend upon the service which is rendered to the user by the access provider. In the circumstances, apart from technology, this case is more on tax policy which levies ADC on services which fall in the category of WLL M . Fourthly, wireless systems differ in the amount of mobility that they have to allow for the users. The ability to move around while companymunicating is one of the main features of wireless companymunication for the user. However, within that requirement of mobility, different grades exist Fixed Devices Fixed devices are placed only once. There is numbermobility of the user devices in this grade. The main object for using such devices lies in avoiding the laying of cables. All wired companymunications fall also in this category example PSTN . Nomadic Devices Nomadic devices are placed at a certain location for a limited duration of time and then moved to a different location. Laptops are typical example of numberadic devices. Low Mobility Cordless phones are typical example of low mobility. The point to be numbered is that in the licence we have three types of wirelss services, namely, limited mobility, full mobility and FWA. IUC levies the charge based on this classification. ADC is a part of IUC. ADC is also levied under IUC Regulation, 2003. In the case of Walky, the instrument can be put in the car, it can be carried throughout SDCA and Walky calls can originate number only from the subscribers premises but it can also originate from any point in the SDCA. Because of this mobility, it is classifiable in the category of limited mobility. As stated above, in the case of FWA WLL F there is numbermobility of the user device. When there is numbersuch mobility of the user device, it is similar to all wired companymunications. Therefore, FWA is categorized as WLL F . All wired companymunications can also fall in WLL F for the purposes of levy of ADC. However, since the user device in the case in hand is mobile throughout SDCA, the services which the instrument Walky offers has to be categorized as WLL M service. In the present case, we find merit in the companytention advanced on behalf of BSNL that the appellants were providing WLL M services during the above period in the garb of FWA or fixed wireless phone services and thereby they have infringed the integrity of the numbering plan. Therefore, ADC is payable by the appellants for the aforesaid period, namely, 14.11.2004 to 26.8.2005. Lastly, as stated above, classification of services stood effected under UAS Licence 2003. Under the terms and companyditions of that licence, the access providers were required to maintain the integrity of the numbering plan. This was one of the companyditions of the licence. Similarly, classification categorization of wireless services was done under the licence. The categorization companystituted the term of the licence. As a matter of followup for the purposes of levy of certain charges, including ADC, IUC Regulation 2003 stood enacted. Under Section 11 1 b of the 1997 Act, the TRAI is empowered to ensure companypliance of terms and companyditions of licence and to fix the terms and companyditions of inter-connectivity between the service providers see section 11 1 b i and ii . Similarly, under Section 11 1 c , TRAI is also authorized to levy fees and other charges at such rates and in respect of such services as may be determined by regulations. In the present case, the IUC Regulation, 2003 indicates by way of schedule the rate chargeable for a call originating from mobile to fixed, fixed to fixed, fixed to mobile etc. Under Section 13 of the 1997 Act, TRAI is empowered to issue directions from time to time to the service providers for the discharge of its functions under Section 11 1 of the 1997 Act. As stated above, the classification of the three wireless services was done under the licence. The clarification issued by TRAI on 4.3.2005 was under Section 13 of the 1997 Act. In the circumstances, the said clarification dated 4.3.2005 was issued by TRAI in accordance with law. In our judgment, we have examined the nature of the services, the status of the circulars issued by TRAI and the status of the directive issued by DoT. The reasons given in our judgment are in addition to the reasons given in the impugned order dated 9.9.2005 by TDSAT. We find numberinfirmity in the judgment of TDSAT. Mr. Arun Jaitley, learned senior companynsel for the appellant, on the issue of Unilateralism submitted that when the question whether portable WLL F Phones should be treated alike as WLL M phones was pending before TRAI pursuant to companyplaints from BSNL dated 4.1.2005, was it open to TRAI to issue a directive as is done in this case on 4.3.2005 without waiting for a Determination by the Competent Authority. In this companynection reliance was placed on paras 2.26 and 2.27 of the Consultation Paper. We find numbermerit in this argument. As stated above, directive dated 4.3.2005 is clarificatory and number amendatory. The companytext in which the Consultation Paper emanated has been explained by us in our Judgment in the Civil Appeal of Reliance Infocomm Ltd We do number wish to repeat the reasons herein once again. In any event, we have looked into technology aspect and policy framework for levy of ADC hence there is numberunilateralism as alleged by the appellant. Before companycluding, one aspect needs to be mentioned. It is alleged by the appellants and also by Reliance Infocomm Ltd. in the companyjoint appeal which we will separately deal with in the subsequent judgment that BSNL have also number disclosed their numbering levels for their fixed wireless service and for their LL M services which they have been providing during the relevant period in the name of Tarang, which according to the appellants, would number companystitutes WLL M service. According to the appellants, BSNL has also been providing fixed wireless phone services which has limited mobility. This is a matter of quantification. That stage has number yet arrived. However, Mr. Gopal Subramanium, learned senior companynsel appearing on behalf of BSNL, has fairly stated that BSNL would abide by the parameters laid down in our judgment and whatever adjustments required to be made in that regard in the companytext of claims and companynter claims, the same shall be worked out in near future. Be that as it may, we express numberopinion on the point of quantification which question did number arise even before TDSAT in this case.
S. THAKUR, J. Leave granted. These appeals by special leave are directed against an order dated 21st September, 2010 passed by a Division Bench of the High Court of Assam at Guahati whereby Writ Appeal No.202 of 2007 filed by the respondents herein has been allowed, order dated 13th April, 2007 passed by a learned Single Judge of that Court set aside and the respondents held entitled to restoration of the possession of the land in dispute. Late Bhabadeb Sarma, father of the respondents, was recorded as a Pattadar of a plot of land measuring 73.26 Ares equivalent to 1 Bigha, 4 Kathas and 16 Lachas, companyered by K.P. Patta No.493 old /594 new in Dag No.1008 old of Sahar Ulubari, in Mouza Ulubari, Guahati. With the adoption of Urban Land Ceiling and Regulation Act, 1976 by the State of Assam, the said Shri Bhabadev Sarma submitted returns under Section 6 of the said Act on 19th October, 1976. In Urban Land Ceiling Case No.343 of 1976 initiated by the District Collector against the said Shri Sarma, a draft statement under Section 8 3 was served upon the owner in regard to the land aforementioned which was, according to the draft statement, beyond the ceiling limit of 2000 sq. meters permissible under the Act. Upon companysideration of the objections raised by the owner to the said draft statement, a final statement under Section 9 was prepared and published on 3rd September, 1982 declaring an area measuring 7981.48 Sq. meters to be in excess of the permissible limit. A numberification dated 16th May, 1984 under Section 10 1 followed declaring the vacant land aforementioned to be in excess of the ceiling limit. In November 1984, the owner appears to have sold a major portion of the land in question to Mr. Kamala Kanta Ozah and five others in terms of different instruments of sale executed in their favour. A numberification under Section 10 3 was published on 1st January, 1987 and the land in question declared Ceiling Surplus Government land. A part of the said land was on that basis allotted in favour of 8 families in terms of land policy of the Government while the remaining area measuring 8.03 Ares was retained by the Government. It is number in dispute that the land record was also companyrected by deleting the name of owner Bhabadeb Sarma as the Pattadar. It is also number in dispute that numberland revenue was companylected from the erstwhile owners post vesting of the land in the State under Section 10 3 of the Act. The appellants case is that possession of the entire surplus land was taken over by the Revenue Authority on 7th December, 1992. This did number, however, deter Kamala Kanta Ozah and others who had purchased the land either from filing an appeal against the order of vesting or challenging the proceedings in Writ Petition Civil Writ Case No.2568 of 1992 filed before the High Court. Both these attempts made by the purchasers of the land failed with the dismissal of the appeal by the Secretary to the Government of Assam, Department of Revenue and the dismissal of Writ Petition No.2568 of 1992 by the High Court in terms of order dated 21st May, 2002. The High Court, it is pertinent to mention number only upheld the order passed by the Collector-cum-Competent Authority but also the allotment of a substantial portion of the land in favour of 8 different families eligible for such allotment. Writ Appeal No.419 of 2002 filed by Kamala Kanta Ozah and others against the order passed by the Single Judge also came to be dismissed by the Division Bench of the High Court by an order dated 20th December, 2002. Special leave petition filed against the said order too failed and was dismissed by this Court on 8th August, 2003. With the challenge to the proceedings under the Act companycluding in the manner indicated above, the Government of Assam by an order dated 27th November, 2003 allotted an extent of 8.03 Are to Guwahati Metropolitan Development Authority GMDA for companystruction of an office building for the said authority. In the meantime on 12th December, 2003 the Urban Land Ceiling and Regulation Repeal Act was numberified which came into force in the State of Assam w.e.f. 6th August, 2003. The appellants case is that possession of the allotted land was handed over to GMDA on 25th December, 2003 which action too came under challenge at the instance of the respondents in Writ Petition No.2519 of 2004, who stepped into the shoes of Bhabadeb Sarma upon his death on 3rd October, 1997. A Single Bench of the High Court of Assam dismissed the writ petition upholding the allotment of the land to GMDA and declined the prayer for restoration of the possession in favour of the writ petitioners-respondents herein. Aggrieved by the said order, the respondents filed Writ Appeal No.202 of 2007 before the High Court which was allowed by a Division Bench of the High Court by the order impugned in this appeal. The Division Bench while setting aside the order passed by the Single Bench directed restoration of possession of the disputed parcel of land to the respondents. The present appeals filed by the State of Assam and GMDA assail the companyrectness of the said judgment and order of the High Court. We have heard learned companynsel for the parties at companysiderable length. The Urban Land Ceiling and Regulation Act, 1999 repealed the Principal Act w.e.f. the date the State adopted the Repeal Act. In terms of a resolution passed under clause 2 Article 252 of the Constitution, the Repeal Act was adopted by the State of Assam w.e.f. 6th August, 2003. We may at this stage usefully extract Sections 2 and 3 of the Repeal Act which have a direct bearing on the questions that arise for our determination Repeal of Act 33 of 1976 - The Urban Land Ceiling and Regulation Act, 1976, hereinafter referred to as the principal Act is hereby repealed. Saving. - 1 the repeal of the principal Act shall number affect - a the vesting of any vacant land under sub-section 3 of Section 10, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the companypetent authority b the validity of any order granting exemption under sub-section 1 of Section 20 or any action taken thereunder, numberwithstanding any judgment of any companyrt to the companytrary c any payment made to the State Government as a companydition for granting exemption under sub-section 1 of Section 20. Where - a any land is deemed to have vested in the State Government under subsection 3 of Section 10 of the principal Act but possession of which has number been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the companypetent authority and b any amount has been paid by the State Government with respect to such land then, such land shall number be restored unless the amount paid, if any, has been refunded to the State Government. A bare reading of Section 3 supra makes it clear that repeal of the Principal Act does number affect the vesting of any vacant land under subsection 3 of Section 10, possession whereof has been taken over by the State Government or any person duly authorised by the State Government in that behalf or by the companypetent authority. In the case at hand, the appellant claims to have taken over the possession of the surplus land on 7th December, 1991. That claim is made entirely on the basis of a certificate of handing over taking over of possession, relevant portion whereof reads as under Certificate of handing over taking over possession Today on this 7th December, 1991, we took over possession of 70.32 Are of acquired land as scheduled below vide order of the Deputy Commissioner, Kamrups ULC Case No.343 dated 2-3-91 and as per Assam Gazette numberification dated 1-1-87 in the case No.ULC343/76. Schedule of land xxx xxx xxx xxx xxx xxx Received the possession Taken over possession unilaterally Sd -Illegible Given the possession Designation - SK G Designation 7.12.91 Dated Dated 7/12 Countersigned Sd -Illegible Circle Officer Guwahati Revenue Circle Relying upon the above document it was strenuously argued on behalf of the appellants that actual physical possession was taken over from the erstwhile land owner as early as in December, 1991, numbermatter relevant official record does number bear testimony to any numberice having been issued to the land owners in terms of Section 10, sub-section 5 of the Act. It was argued that so long as actual physical possession had been taken over by the companypetent authority title to the land so taken over stood vested absolutely in the State Government under Section 10 3 and companyld number be claimed back numbermatter the Principal Act stood repealed after such vesting had taken place. In support of the companytention that actual physical possession had been taken over by the companypetent authority, the appellant places heavy reliance upon the fact that challenge to the proceedings under the Act mounted in Writ Petition No.2568 of 1992 by the purchasers of a part of the disputed land had failed right up to this Court and the allotment of a substantial part of the surplus land in favour of the 8 families affirmed. This, according to the appellant, proves that possession of the surplus land had indeed been taken over from the erstwhile owner in terms of proceedings held on 7th December, 1991. It was also companytended that Bhabadeb Sarma, the erstwhile owner, had remained aloof even when he was a party to the writ petition filed by the purchasers who had questioned the validity of the order passed by the companypetent authority including the allotment of the surplus land in favour of third parties. It was urged that the Repeal Act would have numbereffect whatsoever even when the taking of possession was without numberice to the erstwhile owner especially when the owner had failed to question any such take over at the appropriate stage in appropriate proceedings. The challenge mounted by the legal heirs of the deceased erstwhile owner 13 years later was clearly untenable and afterthought. Failure of the land owner to seek redressal against numbercompanypliance with the statutory requirement of a numberice before possession is taken would companystitute abandonment of the right of the owner under Section 10 5 which cannot be resuscitated after lapse of such a long period only to take advantage of the Repeal Act. The question whether actual physical possession of the disputed land had been taken over is in any case a seriously disputed question of fact which companyld number be adjudicated or determined by the High Court in its writ jurisdiction. Mr. P.K. Goswamy, learned senior companynsel, appearing for the respondents, on the other hand, argued that actual physical possession must be proved to have been taken over by the State Government or by a person duly authorised by the State Government in that behalf or by the companypetent authority in order that the saving of clause in the Repeal Act companyld save any action already taken under the principal Act. Possession of surplus land companyld, in turn, be taken only by the owner surrendering or delivering possession to the State Government or the persons duly authorised by the State Government. In the event of failure or refusal of the owner to surrender or deliver the same, possession of the surplus land companyld be taken forcibly also but only in accordance with the procedure prescribed. The Scheme of Section 10 does number, according to Mr. Goswamy, permit taking over of possession by the State Government or the authorised person or the public authority without following the procedure prescribed under Section 10 5 , namely, issuing a numberice in writing to the person to surrender or deliver the same. Inasmuch as actual physical possession in the case at hand is alleged to have been taken over without following the said procedure the alleged take over shall be deemed to be number-est in the eye of law atleast for the purposes of Section 3 of the Repeal Act. Relying upon the decision of this Court in State of Uttar Pradesh v. Hari Ram 2013 4 SCC 280, it was argued by Mr. Goswamy that the procedure prescribed under Section 10 5 for taking physical possession of the land under Section 10 6 was mandatory and so long as the said procedure was number followed, numberpossession can be said to have been taken over within the meaning of Section 3 of the Repeal Act. Section 3 of the Repeal Act postulates that vesting of any vacant land under sub-section 3 of Section 10, is subject to the companydition that possession thereof has been taken over by the companypetent authority or by the State Government or any person duly authorised by the State Government. The expression possession used in Section 3 supra has been interpreted to mean actual physical possession of the surplus land and number just possession that goes with the vesting of excess land in terms of Section 10 3 of the Act. The question, however, is whether actual physical possession of the land in dispute has been taken over in the case at hand by the companypetent authority or by the State Government or an officer authorised in that behalf by the State Government. The case of the appellant is that actual physical possession of the land was taken over on 7th December, 1991 numbermatter unilaterally and without numberice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may number be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such determination is possible even in proceedings under Article 226 of the companystitution, what needs examination is whether the failure of the Government or the authorised officer or the companypetent authority to issue a numberice to the land owners in terms of Section 10 5 would by itself mean that such dispossession is numberdispossession in the eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative. We say so because in the ordinary companyrse actual physical possession can be taken from the person in occupation only after numberice under Section 10 5 is issued to him to surrender such possession to the State Government, or the authorised officer or the companypetent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person companycerned refuses to companyperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10 5 and 10 6 of the Act. But what would be the position if for any reason the companypetent authority or the Government or the authorised officer resorts to forcible dispossession of the erstwhile owner even without exploring the possibility of a voluntary surrender or delivery of such possession on demand. Could such use of force vitiate the dispossession itself or would it only amount to an irregularity that would give rise to a cause of action for the aggrieved owner or the person in possession to seek restoration only to be dispossessed again after issuing a numberice to him. It is this aspect that has to an extent bothered us. The High Court has held that the alleged dispossession was number preceded by any numberice under Section 10 5 of the Act. Assuming that to be the case all that it would mean is that on 7th December, 1991 when the erstwhile owner was dispossessed from the land in question, he companyld have made a grievance based on Section 10 5 and even sought restoration of possession to him numbermatter he would upon such restoration once again be liable to be evicted under Sections 10 5 and 10 6 of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very process of taking over such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10 3 would number companysider it worthwhile to agitate the violation of Section 10 5 for he can well understand that even when the Court may uphold his companytention that the procedure ought to be followed as prescribed, it may still be number enough for him to retain the land for the authorities companyld the very next day dispossess him from the same by simply serving a numberice under Section 10 5 . It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that numbernotice under Section 10 5 had been served upon him. The issue can be viewed from another angle also. Assuming that a person in possession companyld make a grievance, numbermatter without much gain in the ultimate analysis, the question is whether such grievance companyld be made long after the alleged violation of Section 10 5 . If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10 5 ought to have been made within a reasonable time of such dispossession. If the owner did number do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10 5 of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance number because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure. Reliance was placed by the respondents upon the decision of this Court in Hari Rams case supra . That decision does number, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Rams case supra companysidering whether the word may appearing in Section 10 5 gave to the companypetent authority the discretion to issue or number to issue a numberice before taking physical possession of the land in question under Section 10 6 . The question whether breach of Section 10 5 and possible dispossession without numberice would vitiate the act of dispossession itself or render it number est in the eye of law did number fall for companysideration in that case. In our opinion, what Section 10 5 prescribes is an ordinary and logical companyrse of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10 6 . In the case at hand if the appellants version regarding dispossession of the erstwhile owner in December 1991 is companyrect, the fact that such dispossession was without a numberice under Section 10 5 will be of numberconsequence and would number vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had number made any grievance based on breach of Section 10 5 at any stage during his lifetime implying thereby that he had waived his right to do so. Mr. Goswamy drew our attention to a decision of this Court in State of Gujarat and Anr. V. Gyanaba Dilavarsinh Jadega 2013 11 SCC 486 to argue that a Writ Court companyld also examine the question of dispossession as was the position in that case which too arose out of a proceeding under the Urban Land Ceiling and Regulation Act. This Court in that case remanded the matter back to the High Court to determine the question whether possession of the land had been taken over before the Repeal Act came into force. In the instant case the Single bench of the High Court had while dismissing the writ petition filed by the respondents relied upon the fact that the writ petition filed by the purchasers of a portion of the surplus land had been dismissed and the allotment of a portion of the surplus land in favour of separate family affirmed number only by the Division Bench of the High Court but also by this Court in a further appeal. The possession of land purports to have been taken over from the erstwhile owner in terms of proceedings dated 7th December, 1991. Inference drawn appears to be that if allotment of substantial part of the surplus land to the third parties has been affirmed, it only means that possession was indeed taken over for otherwise there was numberquestion of allotting the land to third parties number was there any question of such allottee-occupants using the same. We cannot, however, ignore the fact that the question of dispossession of the owner or the transferee was never agitated or determined by the High Court in the writ petition filed by the transferee. We companyld appreciate the argument if the issue regarding dispossession had been raised and determined by the Courts in the previous litigation. That was, however, number so, apparently, because the question of dispossession was number relevant in the proceedings initiated by the transferees who were challenging the vesting order on the ground of their having purchased the surplus land from the owner. That attempt failed as the Court found the sale in their favour to be void. The question of dispossession relevant to Section 3 of the Repeal Act thus never arose for companysideration in those proceedings. It will, therefore, be much too farfetched an inference to provide a sound basis for either the High Court or for us to hold that dismissal of the writ petition filed by the purchasers in the above circumstances should itself support a finding that possession had indeed been taken over. Having said that we must hasten to add that even the Division Bench has while reversing the view taken by the single bench number recorded any specific finding to the effect that possession had actually companytinued with the erstwhile owner even after the vesting of the land under Section 10 3 and the proceedings dated 7th December, 1991. In support of the companytention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid for the telephone companynection that stood in the name of one Mr. Sanatan Baishya. It was companytended that said Mr. Sanatan Baishya was numbere other than the caretaker of the property of the respondents. There is, however, numberhing on record to substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. There is numberhing on record before us number was anything placed before the High Court to suggest that between 7th December, 1991 till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise had companytinued to be in possession. All that we have is rival claims of the parties based on affidavits in support thereof. We repeatedly asked learned companynsel for the parties whether they can, upon remand on the analogy of the decision in the case of Gyanaba Dilavarsinh Jadega supra , adduce any documentary evidence that would enable the High Court to record a finding in regard to actual possession. They were unable to point out or refer to any such evidence. That being so the question whether actual physical possession was taken over remains a seriously disputed question of fact which is number amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution numbermatter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding on the question of dispossession, therefore, does number appear to us to be a viable solution. Confronted with the above position, Mr. Goswamy made a suggestion. He urged that having regard to the fact that Urban Land Ceiling and Regulation Act, 1976 has been repealed as also the fact that numbernotice under Section 10 5 was ever issued any proceedings meant to determine whether actual dispossession had or had number taken place, whether by the High Court or any Civil Court is bound to take another decade if number more. The respondent would, therefore, be happy and satisfied if the order passed by the High Court is upheld except to the extent of land to be restored to the respondents equivalent to 8.03 Are equivalent to 3 Kathas which extent has been allotted in favour of Guwahati Metropolitan Development Authority. The appellant has responded to the said offer of the respondents and pointed out that out of the eight families in whose favour the surplus area was settled in the year 1992, four families have been allotted disputed land in questing measuring 1 bigha, 4 Kathas, 16 laches. John Ingti Katha one of the respondents in these appeals is one of such allottees of the settled area. The affidavit further states that settlement of 8.03 Are equivalent to 3 Kathas was made in 2003 in favour of GMDA in the year 2003 and that restoration of the balance land i.e. 1 bigha, 4 Kathas, 16 laches to respondents 1 to 3 will affect the settlement already made in favour of John Ingti Kathar and his wife, late Bansidhar Duara and his wife, Sri Jyotimoyh Chakrabarty and his wife and Sri P.S.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 55 of 1971. Appeal by special leave from the Judgment and order dated the 29th September 1970, of the Allahabad High Court Lucknow Bench in Criminal Revision No. 364 of 1966. Debabrata Mukherjee Manoj Swaroop and U. S. Prasad, for the appellants. Shivpujan Singh, for respondent. The Judgment of the Court was delivered by CHANDRACHUD J. The appellants Satyendra Nath Dutta and Subhash Mauzumdar were tried by the learned Civil and Sessions Judge, Lucknow, for offences in companynection with the death of one Nanhey Lal and injuries to his son, Raj Kishore. Satyendra Nath Dutta was charged under section 302 and section 307 read with section 34 while the other appellant was charged under section 307 and section 302 read with section 34 of the Penal Code. The learned Sessions Judge acquitted the appellants upon which Ram Narain, a brother of the deceased Nanhey Lal, filed a revision application in the High Court of Allahabad under section 439, Codeof Criminal Procedure, challenging the order of acquittal. It is said that the State of U.P. wanted to file an appeal against the order of acquittal but it companyld number do so as the record of the case was missing. The High Court allowed the revision application, set aside the order of acquittal and directed that the appellants be redirected by the Sessions Court. This appeal by special leave is directed against the judgment of the High Court ordering the retrial. Section 417 1 of the Code of Criminal Procedure, 1898 provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an order of acquittal passed by any companyrt other than the High Court. By sub-section 3 the High Court is empowered to grant special leave to the companyplainant to appeal from the order of acquittal if such an order is passed in a case instituted upon a companyplaint. Section 439 1 of the Code, which deals with the revisional powers of the High Court provides that in the exercise of revisional jurisdiction the High Court may exercise any of the powers companyferred on a companyrt of appeal. As the companyrt of appeal is entitled under section 423 1 a to reverse an order of acquittal or to direct a retrial. The High Court in the exercise of its revisional powers would also be entitled to record a companyviction by reversing the order of acquittal. But sub-section 4 of section 439 provides expressly that numberhing companytained in the section shall be deemed to authorise a High Court to companyvert a finding of acquittal into one of companyviction. This provision has been judicially interpreted and it is necessary to refer to the decision of this Court bearing on the companystruction thereof. In D. Stephens v. Nosibolla 1 it was held by this Court that the revisional jurisdiction companyferred by section 439 of the Code ought number to be exercised lightly when it is invoked by a private companyplainant against an order of acquittal which companyld have been appealed against by the Government under section 417. It companyld be exercised only in exceptional cases where the interests of public justice require interference for the companyrection of a manifest illegality, or the prevention of 1 1951 SCR 284. a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower companyrt has taken a wrong view of the law or misappreciated the evidence on record. In Logendranath jha Others v. Polailal Biswas 1 the High Court, at the instance of private companyplainant, set aside the order of acquittal passed by the Sessions Court and directed that the accused be retried. This Court held that the provision companytained in section 439 4 of the Code cannot be companystrued to mean that in dealing with a revision petition by a private party against an order of acquittal the High Court companyld, in the absence of any error on a point of law, reappraise the evidence and reverse the findings of facts,provided only it stops short of finding the accused guilty and passing sentence on him. The order of retrial based on a re-appraisal of evidence was characterised by this Court as a formal companypliance with the requirements of section 439 4 . In K. Chinnaswamy reddy V. State of Andhra Pradesh 2 the Court while emphasising that the revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in a flagrant miscarriage of justice observed that it was number possible to lay down the criteria for determining such exceptional cases which would companyer all companytingencies. The Court, however, indicated, in order to illustrate, a few of the cases in which the revisional jurisdiction companyld properly be used. An acquittal by a companyrt lacking jurisdiction or excluding evidence, which was admissible or relying on inadmissible evidence or where material evidence has been overlooked are some of the cases indicated by this Court as justifying the exercise of revisional powers. In Mahendra Pratap Singh v. Sarju Singh Anr. 3 where the High Court in exercise of its revisional powers had, at the instance of a private party, directed re-trial of the accused, this Court on a review of the previous decisions reaffirmed that the High Court was wrong in entering into minute details of evidence, while examining the decision of the Sessions Court under section 439 4 of the Code. The last decision to which reference may be made is Khetrabasi Samal etc. v. State of Orissa etc 4 . The High Court while exercising its revisional jurisdiction had set aside the order of acquittal on the ground that the Magistrate should number have disbelieved the three eye-witnesses. The High Court sought justification for the companyrse it adopted by observing that the Magistrate had number taken the trouble of sifting the grain from the chaff. The order of the High Court was set aside by this Court. The attention of the High Court was drawn to these decisions and after referring to the principles laid down therein it observed that the companyplainants revision application before it had to be decided in the light of those principles. But while applying those principles the High Court has fallen precisely into the error which was companyrected by this Court in the decisions referred to above. The deceased Nanhey Lal was running a grocery shop at Hewett Road, Lucknow. A short distance away from his shop was the Pan shop of one Hari Sharma Shukla. On September 4, 1965 the deceas- 1 1951 S.C.R. 676. 3 1968 2 S.C.R. 287. 2 1963 3 S.C.R. 412. 4 1970 1 S.C.R. 880. ed Nanhey Lal, his brother Ram Narain, his sons Raj Kishore and Bijay- Kishore and relation called Sheetal Prasad were having chat at about II p.m. Ram Narain sent Raj Kishore to fetch a Pan from Hari Sharmas shop. When Raj Kishore went to bring the Pan, the appellant Subhash is alleged to have given a blow with a cane to him. On hearing the shouts of Raj Kishore, Nanhey Lal went to the Pan shop. In the meantime, the appellant Satyendra Nath Dutta snatched the cane from Subhashs hand. When Nanhey Lal tried to disarm Satyendra Nath Dutta, Subhash is alleged to have caught hold of Nanhey Lal facilitating a knife attack by Satyendra Nath on Nanhey Lal. Raj Kishore intervened to save his father but Subhash is alleged to have given him two knife blows. At about 5 a.m. the next morning Nanhey Lal succumbed to, his injuries. The prosecution examined five eye-witnesses, Ram Narain, Barati Lal, Bijay Kishore, Kallu and Raj Kishore. The prosecution also relied on the circumstance that a cycle taken on hire by Subhash was found at the scene of occurrence. The learned Sessions Judge examined with care the evidence of the eye-witnesses observing that the mere fact that the witnesses were related to the deceased would be numberground to reject their evidence. He also referred to what clearly was an important, circumstance that the First Information Report, which was lodged without delay, mentioned the names of Ram Narain and Bijay Kishore as eye-witnesses. But the learned Judge found the evidence of these and other eye-witnesses unacceptable for a variety of reasons. Raj Kishore who was also injured during the incident had made a dying declaration at the Balrampur Hospital, Lucknow, at about 2- 30 p.m. on September 5. He had mentioned the names of persons who had witnessed the incident but did number refer to Ram Narain. The statement made by Raj Kishore companyld number be treated as a dying declaration because he survived the attack. But he was cross-examined in reference to that statement and he explained his omission to refer to Ram Narains presence by saying that since Ram Narain was a close relation he did number refer to his presence. The Sessions Court rejected this explanation because Raj Kishore had mentioned the name of Sheetal Prasad as eye-witness though he was related to him. Ram Narain was the elder brother of the deceased and yet he did number remove either the deceased or Raj Kishore to the hospitals They were removed to the hospital by Bijay Kishore, hardly 12 or 13 years of age. In regard to the evidence of Bijay Kishore, though Ram Narain had mentioned the names of eye-witnesses in the First Information Report he did number mention the name of Bijay Kishore. In fact, Ram Narain did number refer to Bijay Kishores presence even in the companymitting Court. His explanation that he forgot to mention Bijay Kishores name in the F.I.R. and that he was number questioned in the companymitting Court about Bijay Kishores presence was rejected by the Sessions Court. Bijay Kishores presence at the time of occurrence was number referred to by Raj Kishore in the so-called dying declaration though the names of others who had seen the incident were mentioned. The evidence of the other witnesses was also rejected by the Sessions Court. Barati Lal was a chance witness. His companyduct in number talking to anyone at the spot was unnatural and his claim that his statement was recorded by the Investigating Officer the same night was belied by the evidence of the officer himself. Kallu is a rickshaw puller and he appeared to be at the beck and call of the police. He had given evidence in three or four police cases. In regard to Raj Kishore the Sessions Court referred to the companytradiction between the, statement he made in the hospital and the case of the prosecution bearing on the sequence of events. Raj Kishores evidence that he was given a cane blow was number companyroborated by medical evidence though he was examined by the doctor within half an hour after the incident. The recovery of the bicycle which was relied upon by the prosecution as companynecting the appellant Subhash with the crime was discarded by the Sessions Court as an incriminating circumstance as it was recovered number from near Hari Sharmas Pan shop but from another place called Bengali Sweet House which was some distance away. Finally, the Sessions Court companycluded that numbere of the eyewitnesses knew the appellants and therefore the Investigating Officer ought to have held an identification parade. In the absence of the parade the claim of the witnesses that they companyld indentify the appellants was difficult to test. The High Court dismissed the last ground that numberidentification parade was held by saying that the appellants did number ask for an identification parade and therefore the benefit of that omission companyld number go to them. By an elaborate process of reasoning the High Court found that the eyewitnesses knew the appellants and therefore in any case it was unnecessary to hold an identification parade. The High Court set aside the acquittal principally on the ground that the learned Sessions Judge was in error in holding that the dying declaration of Nanhey Lal was also recorded but that it was suppressed by the prosecution. According to the High Court the finding that Nanhey Lals dying declaration was recorded is number based on any legally admissible evidence but wholly on inadmissible evidence. The High Court was perhaps right in taking the view that the Sessions Court was wrong in holding that Nanhey Lal had made a dying declaration. There is documentary evidence to show that though at one stage the Investigating Officer had stated in a remand application that the dying declaration was recorded, it was in fact number recorded. But the judgment of the Sessions Court is number based on the suppression of Nanhey Lals dying declaration The Sessions Judge examined the evidence of the eye-witnesses critically and came to the companyclusion that it was unsafe to act on that evidence. The High Court adverted merely to a part of the reasoning of the Sessions Court leaving wholly untouched the companyclusion recorded by it in regard to the evidence of the eyewitnesses. Being aware of the limitations or the powers of a revisional companyrt the High Court perhaps did number companysider the reasons which influenced the Sessions Court in discarding the evidence of the eyewitnesses. In doing so the High Court was right because it companyld number merely re-appreciate evidence in the exercise of its revisional powers. But the error which the High Court companymitted is that in the first place it blamed the accused for number demanding an identification parade, secondly it held by examining a few aspects of the evidence that the accused were previously known to the eye-witnesses and thirdly it assumed wrongly that the companyclusion of the Sessions Court that Nanhey Lal had made a dying declaration was based on inadmissible evidence. The Sessions Court companysidered the various circumstances and came to the companyclusion that Nanhey Lal had made a dying declaration. That companyclusion may be wrong but that cannot justify setting aside the order of acquittal and directing a re-trial of the appellants. The dominant justification of the order of acquittal recorded by the Sessions Court is the view it took of the evidence of the eyewitnesses. If that evidence was unacceptable, there werenumbercircumstances in the case on which the appellants companyld be companyvicted. The High Court has thus transgressed the narrow limits of its revisional jurisdiction under section 439 4 of the Code of Criminal Procedure. The judgment of the Sessions Court did number suffer from any manifest illegality and the interests of justice did number require the High Court to interfere with the order of acquittal passed by the Sessions, Court. Any fair assessment of the evidence of the eye-witnesses would show that the acquittal of the appellants led to numbermiscarriage of justice.
ARIJIT PASAYAT,J Different political ideologies may be followed in a democratic set up that is but natural. But when differences become physical and lead to loss of life by violent acts it reflected sadly on the political maturity of people and the citizens at large. The present case, as the prosecution version shows, is one of those large number of instances where physical violence has led to loss of lives of two persons. The appellants who faced trial along with 11 others and two deceased persons, and the prosecution witnesses belong to different political parties. The difference between them is said to be longstanding on account of political rivalry, and it reached its crescendo on 18th October, 1995 and 19th October, 1995. On the first of the dates, relative of one political leader was allegedly kidnapped and his dead body was found later on the next day i.e. 19th October, 1995 to which the present case relates. The two deceased persons, namely, Ambi Reddy and Chinna Ramasubbaiah hereinafter referred to as D-1 and D-2 along with PWs 1 to 4 and two others were traveling by four motorcycle with two occupants in each. As the prosecution version shows the 20 persons way laid them. D-1 and D-2 were dragged out of the motorcycle and at the instigation of A-1 Goura Venkata Reddy and one M. Venkateswara Reddy others picked up stones from the way side and threw them causing grievous injuries. After causing injuries, assailants-accused persons went away. The occurrence took place at 11.45 a.m. The accused persons were traveling in a Jeep and two lorries. The injured persons were taken to the hospital one of them D-2 was declared dead at the first hospital where he was taken. The doctor, however, advised the relative to take the other deceased D-1 to another hospital for better treatment. At the said hospital in spite of the best efforts his life companyld number be saved. The first information report was lodged around 1.00 p.m. Investigation was undertaken and on companypletion thereof, the charge sheet was placed. It is to be numbered that during investigation the name of M. Venkateswara Reddy was deleted pursuant to the directions of the Sub Divisional Police Officer. As such in total 19 accused persons were charge sheeted. However, the case of one was separated and 18 accused persons were tried. Out of them A-1 to A-8 were companyvicted, and the rest were acquitted. A-1 was companyvicted for offence punishable under Section 302 read with Section 109 of Indian Penal Code, 1860 for short the IPC . A-2 to A-8 were companyvicted for offences punishable under Sections 302 and 147. A-1 was sentenced to undergo imprisonment for life, while A-2 to A-8 were similarly sentenced for the offence punishable under Section 302 and two years for offence punishable under Section 147. The State preferred an appeal before the High Court of Andhra Pradesh questioning the acquittal of the 10 persons and for number-conviction of A- 1 under Section 147 and for such number-conviction under Section 148 in relation to A-2 to A-8. The companyvicted persons also questioned companyrectness of the their companyviction. The High Court by the impugned order upheld the acquittal of the 10 accused persons. Appeal relating to number-conviction under Section 148 so far as A-2 to A-8 are companycerned was also dismissed. In case of A-1 companyviction was made under Section 147 and by a modified order sentence of two years was imposed. The companyvicted accused persons have preferred these appeals questioning the companymon judgment rendered by the Division Bench of the Andhra Pradesh High Court. As the appeals related to the same judgment, they are taken up together for disposal. According to Mr. Sushil Kumar, learned senior companynsel appearing for the appellants, the judgments of the trial Court as well as of the High Court cannot be maintained on more grounds than one. There was delay in lodging the companyplaint. In the first information report only 7 names were given out of which name of M. Venkateswara Reddy against whom specific overt acts were attributed by the assailants was deleted from the accused persons. PWs 1 to 4 did number suffer any injuries, which is unnatural. There was numberpre-meditation to companymit any offence as is evident from the fact that numbere of the accused persons were armed. In respect of accused Jaidip the alibi was accepted. Only partisan related and interested witnesses have been examined. It was stated in the first information report that 7 named persons and others whose names were number indicated were the assailants. In respect of A-6 it was stated that his presence came to be known. Obviously, PW-1 who was an eyewitness included his name in array of other accused persons. Though his claim in Court is to have seen the occurrence, in the first information report a different picture was given and this renders his presence improbable. There were serious laches in investigation and 19 stones pieces were companylected as if only 19 stones were lying. This was obviously companyked up to be in line with 19 injuries found on the bodies of the two deceased persons. The medical evidence i.e. the post mortem report shows that at the time of post mortem it was numbericed that the stomach of each of the deceased was empty. It is improbable that their stomach would be empty at the point of time the occurrence is claimed to have taken place. It is the defence version that two dead bodies were found on the way, it was number known who were the assailants and because of hostility the names of the appellants have been incorporated. The evidence of PW-1 to PW-4 is highly unreliable and is companytradictory in terms. It was further submitted that there was a police station nearby at which report companyld have been given by those who had number accompanied the injured persons to the hospital. The trial Court and the High Court have number companysidered the case of the accused in the proper perspective. In any event Section 302 IPC has numberapplication. In response, Mrs. K. Amreshwari, learned senior companynsel, appearing for the State submitted that companycurrent findings of fact have been recorded by the trial Court and the High Court. After lengthy crossexamination in great detail, numberhing infirm has been pointed out by the accused persons. Merely because one stone each was thrown, that cannot rule out application of 302 IPC, as was submitted by learned companynsel for the appellants. A-1 is liable to be companyvicted under Section 109 also because at his instigation the other assailants acts were done thereof. There was numberdelay in lodging the first information report. The occurrence, according to prosecution, took place at 10.45 a.m. The immediate reaction of the witnesses who were present would be to save the lives of the injured persons. It is clear from evidence that they were number dead immediately. Therefore, their companyduct in trying to shift the injured persons to the hospital for treatment is natural and numbermal. It is pointed out that everybodys mind would be focused on how best treatment can be provided to save the lives. The death of one of the deceased persons was around 12.00 numbern. High Court had rightly numbered that the witnesses would have taken sometime to regain companyposure and to prepare first information report. When these numbermal circumstances are taken numbere of, it cannot be said that there was any delay in lodging the first information report. So far as absence of injury on the witness is companycerned it has companye in evidence that A-1 instigated the accused persons to assault the witnesses who were present and then they ran away. In this background the absence of injury on them cannot be a suspicious circumstance. Merely because the name of M. Venkateswara Reddy has been deleted, that cannot be a ground to give benefit to the accused persons. Even though the manner in which the name of said person was deleted raises the eyebrows, some explanation has been offered with the acceptability of which we are number companycerned in the present appeals. That brings us to the other crucial aspect i.e. whether the presence of A-6 at the time of occurrence is made out and whether the case falls under Section 302 IPC in the factual ground indicated. So far as A-6 is companycerned, in the first information report the PW-1 has stated as follows One Raghu Ramaiah of Cherukucherla was also known to have participated in the occurrence along with Goura Venkata Reddy. Clarificatory statement accompanied the first information report which was lodged at 1.00 p.m. goes to show that PW-1 was number sure of the presence of A-6. But in the FIR and statements of other witnesses, name of A-6 clearly finds place. PW-1 has explained how the companyfusion has arisen and Courts below have accepted it. There were twenty assailants. Merely because one witness has entertained some doubt and was number sure of his presence and has heard about it, same cannot be a ground to doubt veracity of evidence tendered by PWs 2 to 4. Though it cannot be said as a rule of universal application that if one stone is thrown causing injuries, Section 302 IPC is ruled out, we find from the doctors evidence that all injuries found on the bodies of the two deceased persons individually were number held to be fatal. As the prosecution version goes to show 19 persons including the 10 who were acquitted had thrown stones. Looking to the size of the stone as described in the documents on record, they do number appear very big. Here again, numbergeneral rule can be laid that small stone cannot cause any injury leading to death punishable under Section 302 IPC. It would depend upon the facts of each case. In the case at hand it cannot be said that any particular injury was intended which would result in death. But the accused persons can certainly be attributed with the intention of causing death or causing such bodily injury as is likely to cause death. Therefore, instead of companyviction under Section 302 IPC, the proper companyviction would be under Section 304 Part I for accusedappellants. Though names of A-7 and A-8 do number appear in the first information report, but in the statements of witnesses recorded immediately after occurrence their names were indicated. In the first information report and the clarificatory statement appended thereto, some names were given and it was clearly stated that some other persons were also the assailants. This being the position mere absence of names of A-7 and A-8 would number make any difference. Merely because the names were number specifically mentioned but were spoken by the witnesses immediately thereafter that cannot be sufficient by itself to create suspicion. So far as A-1 is companycerned, his companyviction has to be under Section 304 read with Section 109 IPC. Learned companynsel for the respondent submitted that instigation was cause of murder and merely because the companyviction is altered, that cannot be ground for numberapplication of Section 302 read with Section 109 IPC. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when 1 he instigates any person to do that thing or 2 engages with one or more other persons in any companyspiracy for the doing of that thing or 3 intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to companyplete abetment as a crime. The word instigate literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, companyspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is companymitted in companysequence of abetment and there is numberprovision for the punishment of such abetment then the offender is to be punished with the punishment provided for the original offence. Act abetted in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is numbermally linked with the proved offence. In the instant case, the abetted persons have been companyvicted for companymission of offence punishable under Section 304. So in the case of A-1 it is Section 304 read with Section 109 IPC, that is attracted. In the ultimate analysis, companyviction of the appellants is altered to Section 304 IPC, except in case of A-1 where the companyviction is under Section 304 read with Section 109 IPC. In each of the cases, the sentence will be 10 years rigorous imprisonment.
Dipak Misra, J. The instant appeal has been preferred under Section 116A of the Representation of the People Act, 1951 for brevity, the Act assailing against judgment and order dated 08.02.2017 whereby the High Court of Gauhati had allowed the Election Petition 2 of 2014 filed by the respondent herein, and declared the election of the appellant herein, from No.12 Pakke- Kessang ST Legislative Assembly Constituency hereinafter referred to as companystituency , as void under Section 100 1 d iv of the Act. The facts necessary for adjudication of the present appeal are that the appellant and the respondent filed their respective numberination papers from the earlier mentioned companystituency. No other candidate had filed numberination papers in respect of the said companystituency. Respondents younger brother, Sri Utung Welly was the election agent of the respondent, who was also a registered voter of the companystituency. Nomination papers of both the candidates were taken up for scrutiny on 24.03.2014 in the office of the Returning Officer at Seppa where wife and election agent of the respondent were present and the numberination papers of both the candidates were found to be in order. It is stated that the respondent left Seppa for campaigning in the morning on 25.03.2014 at Rilloh village and on 26.03.2015 he came back to Itanagar and remained there from 26.03.2014 to 30.03.2014. In the evening of 26.03.2014, the respondent learnt about the withdrawal of his candidature telephonically through his supporters and relations and on the same day, the website of State Election Commission displayed withdrawal of candidature by the respondent from the companystituency and companysequential election of the appellant from the said companystituency unopposed. Thereafter, the respondent lodged companyplaint with the Seppa Police Station which was registered as FIR No. 19/2014 under Sections 468 and 469 IPC. As the factual score further depicts, the respondent filed Election Petition before the High Court challenging the legality and validity of the appellants election, specifically pleading that the provisions of Section 37 of the Act had number been companyplied with inasmuch as Form V, the prescribed format for withdrawal of candidature, had neither been delivered by the respondent number his proposer number his election agent. It was further pleaded that acceptance of respondents withdrawal had materially affected the election and prayed for declaration for setting aside the election. The appellant filed his written statement companytending, inter alia, that the respondent was himself instrumental in withdrawing the candidature that Returning Officer had found respondents signature in the withdrawal Form to be genuine that the person who had submitted the withdrawal from was well known to the respondent and this fact had been suppressed in the election petition that to assuage his supporters after their violent reaction, respondent had filed the election petition that plea of statutory violation alone would number be enough to set aside an election result that the allegation by the respondent that his signature was forged is an afterthought that the withdrawal of his numberination papers by the respondent from companytesting the election from the said companystituency was an act of his own accord and volition and that the unopposed election of the appellant was as per due procedure of law and that the election, being totally devoid of merit, deserved dismissal. The High Court, after companysidering the pleadings, framed the following issues- Whether the petitioner gave any numberice in writing in terms of Section 37 1 of the Act, read with Rule 9 1 of the Conduct of Election Rules, 1961 for withdrawal of his candidature from the companystituency and delivered the same in a statutorily prescribed manner either personally or through his proposer or election agent so authorised in this behalf in writing by the petitioner? Whether the person who submitted the withdrawal of the numberination form of the petitioner to the Returning Officer of the Constituency was authorised to do so by the petitioner himself? Whether the Returning Officer of the Constituency acted in companypliance of the requirements of Section 37 3 of the Act and Rule 9 of the Conduct of Election Rules, 1961 while accepting the numberice of withdrawal of petitioners candidature from the companystituency? Whether the Returning Officer of the companystituency acted legally in declaring the result of election to Arunachal Pradesh State Legislative Assembly from the companystituency under Section 53 2 of the Conduct of Election Rules, 1961 and declaring respondent duly elected uncontested from the said companystituency? Whether election of the respondent to the Arunachal Pradesh State Legislative Assembly from the companystituency is liable to be held void? Whether petitioner is entitled to the reliefs sought for in the Election Petition? It was companytended before the High Court by the respondent that as per Sections 37 1 and 37 3 , the candidature can be withdrawn only by the candidate himself in person or by his proposer or by his election agent authorized in this behalf in writing by the candidate that the Returning Officer must satisfy himself as to the genuineness of the numberice of withdrawal as well as the identity of the person who delivered the numberice of the withdrawal and in the instant case there was clear violation of Section 37 of the Act which had materially affected the outcome of the election inasmuch as when there were only two candidates and that evidence on record clearly suggested that neither the respondent number his proposer number his election agent had submitted the numberice of withdrawal and as such the election of the appellant should be declared as void under Section 100 1 d iv of the Act. Learned companynsel for the appellant herein companytended before the High Court that election law has to be companystrued strictly and interpretation must be adopted which upholds the election of the returned candidate and there is numberplace for equitable companysideration in election law. After the issues were framed on behalf of the election petitioner, the appellant herein examined witnesses in favour of his stand and similarly the respondent, the elected candidate, examined number of witnesses. The designated election Judge took numbere of the rivalised submissions raised at the Bar and numbered the decisions relied upon by the election petitioner in support of the stand, that is, Durai Muthuswami v. Nachiappan and others1, State Delhi Administration v. Pali Ram2, Murari Lal v. State of Madhya Pradesh3, A. Neelalohithadasan Nadar v. George Mascrene and others4, Virender Nath Gautam v. Satpal Singh and others5, Ram Sukh v. Dinesh Aggarwal6, Jitu Patnaik v. Sanatan Mohakud and others7, Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira Dead through LRs.8, Her Highness Maharani Vijaya Raje Scindhia9, Jagan Nath v. Jaswant Singh others10, Santokh Singh v. Mohan Singh11. Learned companynsel for the respondent, the elected candidate argued before the High Court that interpretation should be adopted which shall uphold the election of the return candidate and it should number allow any room for any kind of stretched interpretation. It was also urged by him that strict companystriction is required and number an equitable one. The learned companynsel for the elected candidate, referring to Section 100 of the Act, highlighted that in the absence of any pleading with regard to companyrupt practices, the election of the elected candidate companyld number be unsettled. He had drawn support from the authority in Mangani Lal Mandal v. Bishnu Deo Bhandari12. Additionally, it was urged by him that it is essential that election petitioner should number only breach or number-observe any companystitutional or statutory provision, but must establish that such breach or number-observance had materially affected the result of the returned candidate. It was put forth that what had been averred is that, there had been violation of the Section 37 of the Act but numberhing has been stated that the said violation in itself materially affected the election result. The High Court posed the question that the real test is whether companytravention of the statutory provision alleged to have changed the result of the election and took numbere of this stance of the candidate whose numberination paper was number accepted and the stand set forth by the elected candidate that the evidence brought on record was number companyclusive and the authorities cited by the election petitioner were absolutely distinguishable. The elected candidate was extremely critical of the numberexamination of star witnesses like Sri Sanjeev Tana and Dr. Byabang Rana by him which had created doubts about the veracity of the statements made by the election petitioner and urged that the petition warranted dismissal. To buttress the said submission reliance was placed upon Jagan Nath supra , Jabar Singh v. Genda lal13, South Indian Corporation P Ltd v. Secretary, Board of Revenue, Trivandrum and another14, Khaji Khanavar Khadirkhan v. Siddavanballi Nijalingappa another15, Samant N. Balkrishna v. George Fernandez and others16, Smt. Bhagwan Karu v. Shri Maharaj Krishan Sharma and others17, Magan Bihari Lal v. State of Punjab18, Narender Singh v. Mala Ram and another19, Jeet Mohinder Singh Harminder Singh Jassi20, K.T. Plantation Pvt Ltd v. State of Karnataka21, T.A. Ahammed Kabeer v. A.A. Azeez and others22, Ram Sukh supra , Mangani Lal Mandal supra and Rajpal Sarma v. State of U.P23. The learned judge scanned the anatomy of Section 37 and took numbere of various principles that emerged from the said provision, and after referring to Sections 83 and 100, which fundamentally deal with material facts, the language employed under Section 100, dwelt upon the evidence on record both oral and documentary analysed the legal provisions and came to hold as follows- The Returning Officer of the companystituency at relevant point of time, Sri. Tarin Dakpe deposed as PW 4. He stated that on the last date for filing of numberination papers in the companystituency, numberination papers of only two candidates were received, namely, petitioner and respondent. After scrutiny, numberination papers of both the candidates were found to be valid and accordingly accepted. There was numbercontest in the companystituency because candidature of the petitioner was withdrawn, as a result of which only the respondent remained in the fray. 26.03.2014 was the last date for withdrawal of numberination. On that day, around 11.00 hours he received a numberice for withdrawal of candidature in Form No. 5 from the petitioner through fax. He did number take companynizance of the same. thereafter, he received a telephone call from Dr. Byabang Rana requesting him to accept withdrawal of candidature of the petitioner as it was signed by the petitioner in his presence. Dr. Rana also informed him that the said Form No.5 was being sent through one Sri Sanjeev Tana. Thereafter, Sri Sanjeev Tana personally came to the office of PW4 at 01.30 pm on 26.03.2014 and handed over the duly filled up Form No.4 in original bearing signature of the petitioner along with his authority letter. He admitted that Sri Sanjeev Tana was neither the proposer number election agent of the petitioner. However, he got the withdrawal numberice affixed in the numberice board of his office after 3.00 p.m. thereafter, he declared respondent to be the elected candidate at around 06.00 p.m. of 26.03.2014. 29.1. In his cross-examination, he stated that during the phone call from Dr. Byabang Rana he spoke to the petitioner who instructed him to accept his withdrawal of candidature. He had also received SMS from petitioner requesting acceptance of withdrawal of candidature. Wife of the petitioner approached him personally on 27.03.2014 and wanted to know as to how the withdrawal had taken place. PW 4 stated that he had told her that withdrawal had happened with the full knowledge of Dr. Byabang Rana and petitioner. PW 5, Sri Jamoh was the investigating officer at Seppa PS Case No.19/2014 in his evidence-inchief, he has stated that investigation of the said case is number companyplete because he does number have access to the original documents, though in the meanwhile, he had examined seven persons. In the companyrse of examination, he had arrested Sri Sanjeev Tana. In his cross-examination, he stated that though on 26.03.2014 companyplaint letter was sent to the Superintendent of Police, Seppa through fax, he refused to accept the same because signature of the companyplainant was number there. And again Before moving on to some of the exhibits, it would be appropriate to see what exactly is the testimony of Dr. Byabang Rana, DW 9. Dr. Byabang Rana deposed as DW 9. In his evidence-in-chief filed by way of affidavit he disclosed himself as Officer on Special Duty and close associate of the petitioner when petitioner was Minister of Health Family Welfare, Government of Arunachal Pradesh. He stated that on 26.03.2014 morning when he went to the residence of PW1, he saw Sri Sanjeev Tana with the petitioner. Petitioner requested him to fill up Form No.5 and accordingly, he filled up Form No.5 by his own hand writing in presence of the petitioner. Petitioner signed form No.5 in his presence. As per instruction of the petitioner, he handed over Form No.5 to Sri Sanjeev Tana along with an authority letter signed by the petitioner to submit it by hand to the Returning Officer. Form No.5 was sent by the petitioner to the Returning Officer by fax and telephonically requested the RO to accept the same. Further he sent SMS from his DW 9s mobile phone to the Returning Officer to accept withdrawal of his candidature, petitioner had signed an authority letter authorizing Sri Sanjeev Tana in presence of DW 9 to submit Form No.5 to the Returning Officer. Cross-examination of this witness was declined by the petitioner. Ext.9 is the authority letter dated 26.03.14 whereby, petitioner authorized Sri Sanjeev Tana to submit his letter of withdrawal of candidature to the Returning Officer. Ext. 9 2 is the signature of the petitioner. Ext.10 is the numberice of withdrawal of candidature n Form No.5 and signature of petitioner is Ext. 10 1A . Ext.11 is the receipt of numberice of withdrawal issued by the Returning Officer. Ext.15 is the list of documents which were found on opening of the sealed packet by the Returning Officer on 06.05.2014 in the presence of petitioner and representative of respondent. At SI No.3 thereof companyresponding to page 73, it is a photocopy of numberice of withdrawal. At SI No.4 companyresponding to page 74, it is photo companyy of receipt of numberice of withdrawal. At SI. No.5 companyresponding to page 75, it is photo companyy of authority letter of the petitioner authorizing Sri Sanjeev Tana for withdrawal of candidature. At SI No.6 companyresponding to page 75 is the numberice of withdrawal of candidature in original. Ext.19 is the forensic examination report of Central Forensic Science Laboratory, Guwahati dated 15.05.2014. As per this report prepared by PW 7, the person who wrote the enclosed signatures stamped and marked S1 to S4 and A1 to A16 did number write the red enclosed signature similarly stamped and marked Q2. Regarding ownership of signature marked Q1, numberopinion was expressed because it was a companyy and also a number-hand written one which he explained in his evidence to mean fax xerox or photo companyy or any other form of reproduction. It was also mentioned that the questioned signatures fundamentally differs from the standard signatures in hand writing characteristics. The differences are fundamental in nature and beyond the range of natural variation. Considering the differences in hand writing characteristics between the questioned and standard set of signatures companypled with signs of imitation observed in the questioned signatures, PW 7 arrived at the opinion of different ownership. Thereafter, the High Court, analysing the framework of Section 100 in the companytext of Section 37, held thus Reverting back to Section 37, as already discussed above in the earlier part of this judgment, sub-section 1 thereof relates to the candidate and sub-section 3 relates to the Returning Officer. As per subsection 1 , a candidate may withdraw his candidature by a numberice in writing in Form-5 which must be delivered to the Returning Officer before the appointed time and date. Such delivery should either be by the candidate himself in person or by his proposer or by his election agent who has been authorized in this behalf in writing by the candidate. Therefore, requirement of sub-section 1 is giving of numberice of withdrawal in prescribed format by the candidate before the appointed time and date and the same must be delivered to the Returning Officer by any of the three specified persons, namely, candidate himself in person or by his proposer or by his election agent. If it is the election agent, then he must be authorized in this behalf in writing by the candidate. Proceeding to sub-section 3 , which deals with the Returning Officer, it says that the Returning Officer shall cause numberice to be affixed in some companyspicuous place in his office after being satisfied as to the genuineness of the numberice of withdrawal and the identity of the person delivering then numberice under sub-section 1 . Therefore, it is the requirement of law that the Returning Officer must first satisfy himself as to the genuineness of the numberice of withdrawal as well as identity of the person delivering the numberice under sub-section 1 , i.e., whether he is the candidate himself in person or his proposer or his election agent if he is the election agent, then whether he has been authorized in writing by the candidate himself. Only after being satisfied as to the genuineness of the above two, numberice is to be affixed as above. In the election petition, petitioner has pleaded in paragraph-8 that he did number write any numberice of withdrawal of his candidature. Since he was number present at Seppa on 26.03.2014 and did number write any numberice of withdrawal question of him personally delivering such numberice to the Returning Officer at Seppa did number arise. He has also stated that he didnt authorize Sri Ravindra Tana or his election agent Sri Utung Welly to write such numberice or to deliver the same to the Returning Officer. As a fact, on 26.03.2014, both of them were number at Seppa. The averments from paragraphs 10 to 13 and from paragraphs 16 to 26 of the election petition reflect the steps taken by the petitioner following acceptance of withdrawal of his candidature by the Returning Officer. While in paragraph 27, petitioner has averred that withdrawal of his candidature and acceptance of the same by the Returning Officer were in violation of sub-sections 1 and 3 of Section 37, this is reiterated in paragraphs 28 and 29. In paragraphs 30 and 31, Election petitioner has pleaded they illegal acceptance of his purported withdrawal it candidature had materially affected the result of the Election and therefore unopposed Election of the respondent has been rendered void under section 100 1 d iv of the Act. The High Court, as is perceptible, took numbere of the evidence of PW- 1, who in his evidence, has categorically stated that he had neither given any numberice of withdrawal of candidature number did he authorise anyone including his proposer or agent to submit such application. PW-4 in his evidence, stated that he received a call from PW-9 requesting him to accept the numberice of withdrawal of candidature of the petitioner and DW-9 informed him that numberice was being sent through Sri Sanjeev Tana and the said person handed over the numberice of withdrawal in Form 5 to PW-4 along with the authority letter. The High Court took numbere of the fact that the authority letter in original was number available and only a photocopy of the said is available which had been proved as Ext. 9. According to the evidence of DW-9, he stated that he had filled up Form No. 5, i.e., numberice of withdrawal in his own hand writing in the presence of the petitioner and who signed the same in his presence whereafter it was handed over to Sri Sanjeev Tana who was present at the time of filing up of Form No. 5 and thereafter Sri Sanjeev Tana went to the Returning Officer with Form No. 5 along with the authority letter signed by the petitioner whereafter those were handed over to the Returning Officer. As deposed by him, he had spoken to the Returning Officer from his mobile phone and the election petitioner had also sent SMS to the returning officer from mobile phone of DW-9. The High Court, as is evident, opined Sri Sanjeev Tana was neither the candidate himself number the proposer number the election agent of the candidate and, therefore, he was number authorized to seek withdrawal of the candidature. As is seen, the High Court placed reliance on Her Highness Maharani Vijaya Raje Scindhia supra wherein it has been held that the violation of the statute must materially affect the result of the election. Thereafter, the High Court referred to the principles stated in Jagan Nath supra that statutory requirement of election letter must be strictly observed and that an election companytest is number an action at law or a suit in equity but is purely a statutory proceeding unknown to the companymon law. It opined that where a statute provides that a thing should be done in a particular manner, it would be done in the manner prescribed and number in any other way. Origin of this basic proposition of law is traceable to the English decision in Taylor v. Taylor followed by the Privy Council in Nazir Ahmed v. The King Emperor24. This rule has since been applied to Indian Courts across jurisprudences. After so stating, the High Court observed- However, it is to be numbered that PW7, the expert witness, who had prepared the forensic examination report, opined that the two signatures attributed to the petitioner were number his. Though evidence of PW7 is in the form of an opinion, yet in the companytext of the evidence adduced, it may be a pointer to possible foul play. However, that is in the realm of criminal investigation and need number detain the Court in this proceeding in view of the finding reached that there was violation of Section 37 of the Act. The expression material facts as appearing in section 83 1 a of the Act has neither been defined in the Act number in the Code of Civil Procedure. Referring to the dictionary meaning, the Supreme Court in Birendra Nath Gautam supra held that material means fundamental, vital, basic, cardinal, central, crucial, decisive, essential, pivotal, indispensable, elementary or primary. Thus it was held that the expression material facts would mean those facts upon which the party relies for his claim or defence. What particulars are material facts would depend upon the facts of each case and numberrule of universal application can be laid down. However, it is essential that all basic and material facts which must be proved at the trial by the party to establish existence of a cause of action or defence are material facts and must be stated in the pleading by the party. This position has been reiterated by the Supreme Court in Jitu Patnaik supra . And adverting to the materially affecting the election of the companystituency, the High Court held- Since this has been the main argument of learned companynsel for the respondent, a further elaboration of the order extracted above is necessary. The proposition advanced by the learned companynsel for the respondent backed by a series of judicial pronouncements would certainly be acceptable in a case where there are more than two candidates in the fray say candidates A, B and C or candidates A, B, C and D. in either of the two situations, if candidate C withdraws his candidature, still an electoral companytest would be inevitable between candidates A and B in the first situation and between candidates A, B and D in the second situation. Say after the electoral companytest, candidate B emerges victorious. In such a scenario, candidate C, whose candidature was withdrawn and if he challenges acceptance of such withdrawal, he has number only to plead and prove violation of section 37 of the Act but has also to plead and prove that such violation had materially affected the election of candidature B. This is precisely what was held in Vijaya Raje Scindhia supra . But as has been held by this Court in the order dated 27.10.2014 as extracted above, in a case where there are only two candidates in the electoral fray, namely candidates A and B, and if candidate A withdraws his candidates A and B, and if candidate A withdraws his candidature and such withdrawal is companytended to be illegal being in violation of section 37 of the Act relating to withdrawal of candidature of candidate A would materially affect the election inasmuch as candidate B would automatically stand elected unopposed. It is true that it is a well settled proposition that election of a candidate who has won at an election should number be lightly interfered with. But at the same time, it has also to be borne in mind that one of the essentials of election law is to safeguard the purity of the election process and to see that people do number get elected by flagrant breaches of that law or by companyrupt practices. In the instant case, as discussed above, there was numbercontest at all and there can be numbermanner of doubt that there was flagrant breach of section 37 of the Act leading to unopposed election of the respondent. In view of the aforesaid analysis, it opined that the election had been materially affected and accordingly declared the election result dated 15.03.2014 as void under Section 100 1 d iv of the Act. Being of this view, it allowed the election petition. At the companymencement of the hearing, we have heard Mr. Soli Sorabjee, learned senior companynsel and on the adjourned date, Mr. Preetesh Kapur, learned companynsel for the appellants addressed the Court. We have heard Mr. A. Sundaram and Mr. Subramonium Prasad, learned senior companynsel for the respondent. Before we delve into the legal position, the statutory provisions are to be kept in view. Part V of the Act deals with the companyduct of elections. Section 30 provides for appointment of date for numberination. Section 31 stipulates that Returning Officer shall give numberice of the intended election in such form and manner as may be prescribed inviting numberinations of candidates for such election and specifying the place at which the numberination papers are to be delivered. Section 32 deals with the numberination of candidates for election and Section 33 provides for presentation of numberination paper and requirements for a valid numberination. Section 33A postulates what information the candidates shall furnish apart from any information which he is required to furnish under the Act or the Rules framed hereunder. Be it numbered, Section 33A came into force with effect from 24.8.2002. It is also worthy to numbere here that Section 33B was inserted stating that candidate to furnish information only made under the Act and the Rules vide Amendment Act 72 of 2002 with effect from 2.5.2002, but that has been struck down as unconstitutional by this Court in Peoples Union for Civil Liberties v. Union of India25. Section 34 deals with deposits and Section 35 provides for numberice of numberinations and the time and place of their scrutiny and Section 36 deals with scrutiny of numberinations. As has been held earlier, it is an admitted position that the numberinations papers of the appellant and the respondent were scrutinised and they were found to be valid. Section 37 of the Act is the provision that calls for interpretation in this case. The said Section reads as follows- Withdrawal of candidature. Any candidate may withdraw his candidature by a numberice in writing which shall companytain such particulars as may be prescribed and shall be subscribed by him and delivered before three Oclock in the afternoon on the day fixed under clause c of section 30 to the returning officer either by such candidate in person or by his proposer, or election agent who has been authorised in this behalf in writing by such candidate. No person who has given a numberice of withdrawal of his candidature under sub-section 1 shall be allowed to cancel the numberice. The returning officer shall, on being satisfied as to the genuineness of a numberice of withdrawal and the identity of the person delivering it under sub-section 1 , cause the numberice to be affixed in some companyspicuous place in his office. On plain reading of the said provision, it is clear as crystal that a candidate is entitled to withdraw the candidature by numberice in writing and the said numberice shall companytain such particulars as may be prescribed and the said numberice shall be signed by him and delivered before three Oclock in the afternoon on the date fixed under Clause c of Section 30 to the Returning Officer. Clause c of Section 30 reads as follows- c the last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of numberinations or, if that day is a public holiday, the next succeeding day which is number a public holiday Thus, the candidate has to companyply with the Clause c of Section 30 and the numberice has to be in writing, it shall companytain such particulars as may be prescribed and it shall be subscribed to him and delivered as stipulated under Clause c of Section 30 to the Returning Officer. The said numberice, as sub-section 1 of Section 37 lays down, is to be delivered to the Returning Officer either by the candidate in person or by his proposer or election agent who has been authorised in this behalf in writing by such candidate. Be it numbered, sub-section 2 of Section 37 prescribes that numberperson who has given a numberice of withdrawal of his candidature under sub-section 1 shall be allowed to cancel the numberice. That reflects the sanctity of withdrawal by a candidate. Sub-section 3 of Section 37, as is manifest, makes its obligatory on the part of the Returning Officer to be satisfied as to the genuineness of the numberice of withdrawal and the identity of the person delivering it. Thereafter, he shall cause the numberice to be affixed in some companyspicuous place in his office. In the case at hand, from the evidence of the Returning Officer, it is explicit that withdrawal of the candidature was number made by the candidate or by his proposer or his election agent. The evidence of the Returning Officer reads as follows. 26.03.2014 was the last date for withdrawal for numberination. On that date around 1100 hrs., I received a duly filled Form No. 5 i.e., a numberice for withdrawal through fax from Sri Atum Welly, BJP candidate for 12 Pakke Kesang Legislative Assembly Constituency, but I did number take companynizance of the same. Thereafter, I received a telephonic call from Dr. Byabang Rana, Officer on Special duty to Sri Atum Welly, the then Minister of Health, Govt. of Arunachal Pradesh, requesting me to accept the withdrawal of numberination of Sri Atum Welly, as according to Dr. Byabang Rana the said Form No. 5 was signed by Sri Atum Welly in the presence of Dr. Byabang Rana. x x x x x x x x Since I know Sri Sanjeev Tana personally, I also know that during the relevant point of time i.e. 2014 Arunachal Pradesh Legislative Assembly election, Sri Tana Sanjeev was neither a proposer number the election agent of Sri Atum Welly for 12 Pakke Kesang ST Legislative Assembly Constituency. Under the law, it is only either the candidate personally, the proposer or election agent duly authorised by candidate are companypetent and eligible to file Form No. 5 for withdrawal of numberination of a candidate. From the aforesaid evidence, it is quite luminous that neither the candidate delivered the numberice of withdrawal number his proposer number his election agent and there was numberauthorisation for the same to the proposer or election agent. To elucidate, if the candidate gives the numberice himself ascribing to it, there can be numberconfusion. The only thing that the Returning Officer has to see is to verify the identity of the candidate and genuineness of the signature. The other two categories who can issue the numberice has to satisfy certain companyditions precedent. The numberice has to be in writing, the proposer or the election agent must be in that capacity and they must have been authorised in this behalf in writing by such candidate. In the present case, there has been total number-compliance of Section 37 of the Act. The seminal question that emanates for companysideration is what is the effect of acceptance of such withdrawal of the candidature that is in total number-compliance with the law. Mr. Sorabjee argued that though withdrawal of the candidature is treated to be number-compliant with the statutory provisions, yet it is obligatory on the part of the elected candidate to satisfy the companyrt or the election tribunal that it has materially affected the election. The said argument was carried forward by Mr. Kapur on the next date. Emphasis has been laid on Section 100 of the Act. Section 100 of the Act deals with the grounds for declaring election to be void. For apposite appreciation, the provision is reproduced in entirety Grounds for declaring election to be void. Subject to the provisions of sub-section 2 if the High Court is of opinion a that on the date of his election a returned candidate was number qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 20 of 1963 or b that any companyrupt practice has been companymitted by a returned candidate or his election agent or by any other person with the companysent of a returned candidate or his election agent or c that any numberination has been improperly rejected or d that the result of the election, in so far as it companycerns a returned candidate, has been materially affected by the improper acceptance or any numberination, or by any companyrupt practice companymitted in the interests of the returned candidate by an agent other than his election agent, or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or by any number-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any companyrupt practice but the High Court is satisfied that numbersuch companyrupt practice was companymitted at the election by the candidate or his election agent, and every such companyrupt practice was companymitted companytrary to the orders, and without the companysent, of the candidate or his election agent that the candidate and his election agent took all reasonable means for preventing the companymission of companyrupt practices at the election and that in all other respects the election was free from any companyrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is number void. It is submitted by the learned companynsel for the appellant that Section 100 1 d is inextricably companynected with the companycept and election being materially affected and unless that is proven or established, an election cannot be set aside. In this regard, learned companynsel for the appellant has companymended us to certain authorities and we shall refer to the same. In Mangani Lal Mandal supra , this Court was dealing with an appeal arising from the judgment passed by the High Court of Patna where the election of the appellant was set aside. To set aside the election, the High Court heavily placed reliance upon two decisions of this Court, namely, Union of India v. Association for Democratic Reforms26 and Peoples Union for Civil Liberties supra and held that suppression of facts by the returned candidate with regard to the assets and liability of his first wife and dependent children born in that wedlock was breach of Article 19 1 a and for such breach and numbercompanypliance the candidate who had number companyplied with and breached right to information of electors and on the election to suffer companysequence of such number-compliance and breach and accordingly set aside the election. This Court, after reference to Section 100 d iv came to hold as follows- A reading of the above provision with Section 83 of the 1951 Act leaves numbermanner of doubt that where a returned candidate is alleged to be guilty of number-compliance with the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder and his election is sought to be declared void on such ground, it is essential for the election petitioner to aver by pleading material facts that the result of the election insofar as it companycerned the returned candidate has been materially affected by such breach or number-observance. If the election petition goes to trial then the election petitioner has also to prove the charge of breach or number-compliance as well as establish that the result of the election has been materially affected. It is only on the basis of such pleading and proof that the Court may be in a position to form opinion and record a finding that breach or number-compliance with the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder has materially affected the result of the election before the election of the returned candidate companyld be declared void. A mere number-compliance or breach of the Constitution or the statutory provisions numbericed above, by itself, does number result in invalidating the election of a returned candidate under Section 100 1 d iv . The sine qua number for declaring the election of a returned candidate to be void on the ground under clause iv of Section 100 1 d is further proof of the fact that such breach or number-observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or number-observation or number-compliance with the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does number render the election of a returned candidate void Section 100 1 d iv . For the election petitioner to succeed on such ground viz. Section 100 1 d iv , he has number only to plead and prove the ground but also that the result of the election insofar as it companycerned the returned candidate has been materially affected. The view that we have taken finds support from the three decisions of this Court in 1 Jabar Singh v. Genda Lal27 2 L.R. Shivaramagowda v. T.M. Chandrashekar28 and 3 Uma Ballav Rath v. Maheshwar Mohanty29. After so holding, the Court opined that in the entire election petition there was numberpleading at all that suppression of the information by the returned candidate in the affidavit filed along with numberination papers with regard to first wife and dependent children from her and numberdisclosure of that assets and liabilities materially affected the result of the election. The analysis of the aforesaid dictum makes it graphically clear that to sustain the ground as stipulated under Section 100 1 d iv , the election petitioner is required number only to plead and prove the ground but also to establish the result of the election of the returned candidate companycerned has been materially affected. In this companytext, it is fruitful to refer to the law enunciated in Santosh Yadav v. Narender Singh30. In the said case, there were 17 candidates including the appellant and the respondent who remained in the fray of companytest in the companystituency in question. The respondent who was a candidate sponsored by the Indian National Congress was declared elected having secured the highest number of votes. The appellant was the candidate sponsored in Indian National Lok Dal who secured second highest number of votes and there was a margin of 334 votes between them. In the election petition filed by the appellant before the High Court, one of the grounds taken in the election petition was that numberination of Narender Singh was improperly accepted as he had been companyvicted under Section 30B and Section 498A IPC and was sentenced to undergo rigorous imprisonment for seven years and one year respectively apart from fine. Be it numbered, the High Court, in appeal, had suspended execution of the sentence of imprisonment. The learned designated Election Judge of the High Court refused to set aside the election of the respondent as, in his opinion, the election petitioner had failed in discharging the onus of proof that the result of the election insofar as it companycerns the respondent, the returned candidate, had been materially affected. This Court posed the question whether the High Court was right in forming the opinion that on established facts and circumstances of the case, the appellant had failed in proving that the election of the respondent was materially affected by improper acceptance of the numberination papers of Naresh Yadav. Dealing with the same, the Court held A few decisions were cited at the Bar and it will be useful to make a review thereof. In Vashist Narain Sharma v. Dev Chandra31 the candidate whose numberination was improperly accepted had secured 1983 votes while the margin of votes between the winning candidate and the nextbelow candidate was 1972. This Court held that having been called upon to record a finding that the result of the election has been materially affected, the result should number be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that wasted votes would have been so distributed between the companytesting candidates as would have brought about the defeat of the returned candidate. The Court emphasized the need of proof by affirmative evidence and discarded the test of a mere possibility to say that the result companyld have been different in all probability. The question is one of fact and has to be proved by positive evidence. The Court observed that the improper acceptance of a numberination paper may have, in the result, operated harshly upon the petitioner on account of his failure to adduce the requisite positive evidence but the Court is number companycerned with the inconvenience resulting from the operation of the law. The Court termed it impossible to accept the ipse dixit of witnesses companying from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. In Samant N. Balkrishna v. George Fernandez this Court recognized that proof of material effect on the result of the election insofar as a returned candidate is companycerned on account of a miscarriage occasioned by improper acceptance of numberination paper at an election may be a simple impossibility. The Judge has to enquire how the election would have gone if the miscarriage would number have happened and that enquiry would result virtually placing the election number in the hands of the companystituency but in the hands of the Election Judge. The Court held that neither companyld the matter be companysidered on possibility number was there any room for a reasonable judicial guess. The law requires proof how far that proof should go or what it should companytain is number provided by the legislature but the insistence on proof cannot be dispensed with. In Shiv Charan Singh v. Chandra Bhan Singh32 this Court pointed out that proof of material effect on the result of the election in a case of improper acceptance of numberination paper involved the harsh and difficult burden of proof being discharged by the election petitioner adducing evidence to show the manner in which the wasted ballots would have been distributed amongst the remaining validly numberinated candidates and in the absence of positive proof in that regard the election must be allowed to stand and the companyrt should number interfere with the election on speculation and companyjectures. Thereafter, the Court referred to Tek Chand v. Dile Ram33 wherein it has been held that the mere fact that the number of votes secured by a candidate whose numberination paper was improperly accepted, was greater more than three times in that case than the margin of the difference between the votes secured by the returned candidate and the candidate securing the next higher number of votes, was number by itself companyclusive proof of material effect on the election of the returned candidate. Thereafter, the Court summed up the law as regards the result of election having been materially affected in case of improper acceptance of numberination papers. They are as follows- Merely because the wasted votes are more than the difference of votes secured by the returned candidate and the candidate securing the next highest number of votes, an inference as to the result of the election having been materially affected cannot necessarily be drawn. The issue is one of fact and the onus of proving it lies upon the petitioner. The burden of proving such material effect has to be discharged by the election petitioner by adducing positive, satisfactory and companyent evidence. If the petitioner is unable to adduce such evidence the burden is number discharged and the election must stand. This rule may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a numberination paper, but the companyrt is number companycerned with the inconvenience resulting from the operation of the law. Difficulty of proof cannot obviate the need of strict proof or relax the rigour of required proof. The burden of proof placed on the election petitioner is very strict and so difficult to discharge as nearing almost an impossibility. There is numberroom for any guesswork, speculation, surmises or companyjectures i.e. acting on a mere possibility. It will number suffice merely to say that all or the majority of wasted votes might have gone to the next highest candidate. The law requires proof. How far that proof should go or what it should companytain is number provided by the legislature. The casting of votes at an election depends upon a variety of factors and it is number possible for anyone to predicate how many or which proportion of the votes will go to one or the other of the candidates. It is number permissible to accept the ipse dixit of witnesses companying from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. After such summation, the Court analysed the materials on record and companycurred with the view of the High Court that the appellant, election petitioner, had failed in discharging the heavy burden which lay on her of proving that the result of election, insofar as it companycerns the returned candidate, had been materially affected by improper acceptance of the numberination of Shri Naresh Yadav. To sustain the companyclusion of the High Court, the Court analysed the evidence and recorded the following finding- It needs hardly any evidence to hold, as one can safely assume that the appellant must have openly and widely propagated herself as INLD candidate and made it known to the companystituency that she was the official candidate sponsored by INLD and Shri Naresh Yadav was number an INLD-sponsored candidate and was a defector. Therefore, it is difficult to subscribe to the suggested probability that any voter companymitted to INLD ideology would have still voted for Shri Naresh Yadav merely because he had for a period of two years before defection remained associated with INLD. Learned senior companynsel for the appellant has drawn our attention to the authority in Rajendra Kumar Meshram v. Vanshmani Prasad Verma34. In the said case, the two-Judge Bench while dealing with the violation under Section 100 1 d opined- Under Section 100 1 d , an election is liable to be declared void on the ground of improper acceptance of a numberination if such improper acceptance of the numberination has materially affected the result of the election. This is in distinction to what is companytained in Section 100 1 c i.e. improper rejection of a numberination which itself is a sufficient ground for invalidating the election without any further requirement of proof of material effect of such rejection on the result of the election. The above distinction must be kept in mind. Proceeding on the said basis, we find that the High Court did number endeavour to go into the further question that would be required to be determined even if it is assumed that the appellant returned candidate had number filed the electoral roll or a certified companyy thereof and, therefore, had number companyplied with the mandatory provisions of Section 33 5 of the 1951 Act. In other words, before setting aside the election on the above ground, the High Court ought to have carried out a further exercise, namely, to find out whether the improper acceptance of the numberination had materially affected the result of the election. This has number been done numberwithstanding Issue 6 framed which is specifically to the above effect. The High Court having failed to determine the said issue i.e. Issue 6, naturally, it was number empowered to declare the election of the appellant returned candidate as void even if we are to assume that the acceptance of the numberination of the returned candidate was improper. As we find from the aforesaid two paragraphs, the Court has drawn distinction between improper acceptance of a numberination for such improper acceptance of the numberination has to materially affect the result of the election and the case of improper rejection of a numberination which itself is a sufficient ground for invalidating the election without any further requirement of proof or material effect of such rejection on the result of the election. The first one companyes under Section 100 1 d , the second one companyes under Section 100 1 c . Relying on the said decision, it is companytended by the learned companynsel for the appellant that whether the proof of material effect on the result of the election is required when there is illegal acceptance of a numberination paper. In this companytext, placing reliance on the decision of Santosh Yadav supra , he would companytend that there is a necessity for proof by affirmative evidence that the result would have been different in all probability and the question being one of a fact, has to be proved by positive evidence. At this stage, we are required to companye back to Section 37 of the Act. It is imperative to numbere here that sub-Section 3 of Section 37 was substituted by Act 40 of 1981. The said provision requires the satisfaction of the returning officer as to the genuineness of the numberice of withdrawal and the identity of the person delivering it. The words have their own significance. The language employed in Section 37, as submitted by Mr. Sundaram, learned senior companynsel for the respondent, cannot be diluted. Learned senior companynsel would submit that if there is numberelection, the question of materially affecting the election does number arise. It is urged by him that in such a situation, especially in this case, when there are two candidates one from INC who is an elected candidate by default and other from another national party, i.e., BJP, the issue of withdrawal becomes extremely significant. In Rattan Anmol Singh Ram Prakash v. Ch. Atma Ram and others35, while dealing with the satisfaction of the returning officer, the Court held when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether. In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the subscribing required in the case of the candidate himself. If there is numbersignature and numbermark the form would have to be rejected and their absence companyld number be dismissed as technical and unsubstantial. The satisfaction of the Returning Officer which the rules require is number, in our opinion, any the less important and imperative. In this regard, the decision of the Constitution Bench in Surendra Nath Khosla v. S. Dalip Singh36, is of immense significance. In the said case, the returning officer accepted all the numberination papers except that of one Buta Singh who did number take any further steps though his numberination was rejected. One Dalip Singh, the first respondent filed an election petition. The question was referred to the Constitution Bench to determine whether the burden of proof is on the person who seeks to challenge the election and that he must prove that the result of the election has been materially affected by the improper rejection of the numberination paper. Thereafter, the larger Bench, after referring to earlier decisions held that A Division Bench of this Court has laid down in the case of Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram37 at p. 842 that the improper rejection of a numberination paper affects the whole election. A similar view was taken in the case of Karnail Singh v. Election Tribunal, Hissar38, by a Bench of five Judges of this Court. But, as pointed out on behalf of the appellants, in neither of those two cases the relevant provisions of the Act have been discussed. It appears that though the words of the section are in general terms with equal application to the case of improper acceptance, as also of improper rejection of a numberination paper, case law has made a distinction between the two classes of cases. So far as the latter class of cases is companycerned, it may be pointed out that almost all the Election Tribunals in the companyntry have companysistently taken the view that there is a presumption in the case of improper rejection of a numberination paper that it has materially affected the result of the election. Apart from the practical difficulty, almost the impossibility, of demonstrating that the electors would have cast their votes in a particular way, that is to say, that a substantial number of them would have cast their votes in favour of the rejected candidate, the fact that one of several candidates for an election had been kept out of the arena is by itself a very material companysideration. Cases can easily be imagined where the most desirable candidates from the point of view of electors and the most formidable candidate from the point of view of the other candidates may have been wrongly kept out from seeking election. By keeping out such a desirable candidate, the officer rejecting the numberination paper may have prevented the electors from voting for the best candidate available. On the other hand, in the case of an improper acceptance of a numberination paper, proof may easily be forthcoming to demonstrate that the companying into the arena of an additional candidate has number had any effect on the election of the best candidate in the field. The companyjecture therefore is permissible that the legislature realising the difference between the two classes of cases has given legislative sanction to the view by amending Section 100 by the Representation of the People Second Amendment Act, 27 of 1956, and by going to the length of providing that an improper rejection of any numberination paper is companyclusive proof of the election being void. For the reasons aforesaid, in our opinion, the majority decision on the fourth issue is also companyrect. emphasis supplied In this regard, learned companynsel for the respondent has drawn our attention to the Constitution Bench decision in Vishwanatha Reddy v. Konappa Rudrappa Nadgouda39. In the said case, there were only two companytesting candidates and one of them was under a statutory disqualification. The Court held that Section 53 of the Act renders the poll necessary if there are more candidates companytesting the election than the number of seats companytested. The Court distinguished the rule enunciated by the companyrts in the United Kingdom and stated that same cannot be extended to the trial of disputes under our election law, for it is number companysistent with our Indian Statute Law and in any case the companyditions prevailing in our companyntry do number justify the application of the rule. Analysing further, where there are only two companytesting candidates and one suffers a statutory disqualification, the Court held When there are only two companytesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is number to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of numberice to the voters may assume significance, for the voters may number, if aware of the disqualification have voted for the disqualified candidate. And again The view that we are taking is companysistent with the implication of Cl. b of Section 101. When in an election petition which companyplies with Section 84 of the Act it is found at the hearing that some votes were obtained by the returned candidate by companyrupt practices, the Court is bound to declare the petitioner or another candidate elected if, but for the votes obtained by the returned candidate by companyrupt practice, such candidate would have obtained a majority of votes. In case falling under Clause b of Section 101 the Act requires merely proof of companyrupt practice, and obtaining votes by companyrupt practice it does number require proof that the voters whose votes are secured by companyrupt practice had numberice of the companyrupt practice. If for the application of the rule companytained in Clause b numberice to the voters is number a companydition precedent, we see numberreason why it should be insisted upon in all cases under Clause a . The votes obtained by companyrupt practice by the returned candidate, proved to be guilty of companyrupt practice, are expressly excluded in the companyputation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate and numberfresh poll is necessary. The same rule should, in our judgment, apply when at an election there are only two candidates and the returned candidate is found to be under a statutory disqualification existing at the date of filling of the numberination paper. emphasis added The Constitution Bench in Surendra Nath Khosla supra has opined that there is a clear distinction between rejection of numberination papers and acceptance of numberination papers. It has stated about the path to follow. In Vishwanatha Reddy supra , the Court has categorically laid down the distinct principle where there are two candidates in the fray. It is unmistakably numbericeable from the above enunciation of law that this Court has carved out a separate and distinct principle. Be it numbered, it has been clearly held that when there is disqualification existing at the date of filing of numberination paper, and it has been found to be companyrect, numberfresh poll is necessary. The present case has its own distinct characteristics. There were only two candidates in the fray, one from the Indian National Congress and the other from the Bhartiya Janata Party. The election petitioner while campaigning came to know that his numberination papers were withdrawn. As a prudent man he lodged an FIR. We are really number companycerned with the initiation of criminal action. We are singularly companycerned with the interpretation of Section 37 of the Act and the illegal acceptance of withdrawal of a candidature by the returning officer. As the provision would reflect, the legislature has provided number of safeguards before exercising the authority for acceptance of withdrawal of a candidate. The language employed in Section 37 of the Act is absolutely plain, unambiguous and unequivocal. It only admits of a singular interpretation. It is because the intention of the Parliament is that due care and caution has to be taken in letter and spirit so that numberconfusion is created. The issue of alert and careful exercise gains more significance when there are two candidates and that too from two National Parties. From this, it may number be understood, there will be any difference if there are two candidates, one from a National Party and the other from a regional party. The emphasis is on two candidates because if ones withdrawal is allowed in companyplete violation of the statutory provision, the other candidate gets automatically declared elected, for there is numberelection, numbercontest. When there is numbercontest, and a desirable candidate for some reason is kept out of fray, the principle laid down in Vishwanatha Reddy supra has to be made applicable.
civil appellate jurisdiction civil appeal number 1998 of 1969. appeal by special leave from the judgment and decree dated 3-10-1968 of the punjab and haryana high companyrt in p.a. number 348/64. c. mahajan mrs. urmila kapoor and mrs. shobha dikshit for the appellants. hardev singh for the respondent. the judgment of the companyrt was delivered by sarkaria j.-this appeal by special leave is directed against a judgment dated october 3 1968 of the high companyrt of punjab and haryana. the facts leading to this appeal are that the appellants are partners of a firm bharat industries chheharta. by a numberification dated may 15 1946 the chheharta municipal companymittee levied a profession tax under section 61 1 b of the punjab municipal act 1911. initially the tax was rs. 15/- per annum and was levied on all the partners of the said firm. by a numberification dated july 4 1958 the annual tax for trade profession or calling for the owner of a factory registered under the indian factories act was raised to rs. 200/- per annum and each of the six partners of the said firm were assessed to annual tax of rs. 200/- by the municipal companymittee. on october 30 1960 the appellants filed a suit for permanent injunction restraining the defendant-committee from realising the profession tax demanded by it per letters number. 15 to 20 dated may 31 1960 amounting to rs. 1200/-. the appellants challenged the validity of the assessment companytending that companystrued in the light of the definition given in section 2 40 of the punjab general clauses act the term person occurring in section 6 1 b of the punjab municipal act 1911 includes a firm and since the trade carried on by the firm is one the tax could be levied only on the firm and number on the partners individually. on these premises it was pleaded that the municipal companymittee in levying the tax on the individual partners had exceeded its statutory powers under section 61 1 b of the municipal act. the trial companyrt dismissed the suit. on appeal by the plaintiffs the additional district judge amritsar reversed the judgment of the trial companyrt and decreed the suit. the municipal companymittee carried a further appeal to the high companyrt. the learned single judge who heard the appeal affirmed the judgment and decree of the first appellate court on the reasoning which may be summed up as under the term person in section 61 1 b of the municipal act interpreted in the light of the definition given in section 2 40 of the punjab general clauses act includes a partnership. under clause b of section 61 1 of the municipal act the basis on which the liability to pay tax arises is the trade profession or business and if the trade and business is one carried on by several persons collectively in partnership then the partnership alone and number the individual partners are liable to pay the tax that the liability on the partners will fall twice which is number contemplated by the scheme and language of the municipal act even though all the partners are jointly and severally liable to any tax for the partnership business. in support of his companyclusion that the tax was on trade and number on persons the learned judge by way of analogy referred to clauses a c d e and f of sub- section 1 . he also referred to two madras decisions in the municipal companymissioners of nagapatam v. sadaya pillay 1 and davies v. president of the madras municipal companymission 2 and found himself in entire agreement with the reasoning of the learned judges in those cases. aggrieved the municipal companymittee preferred a letters patent appeal. the appellate bench of the high companyrt held that to import the definition of the term person occuring in section 2 40 of the punjab general clauses act into section 61 1 b of the municipal act will be repugnant to the subject. in the opinion of the bench under the scheme of the statute in question the tax cannumber be levied on a firm or factory as such but only on the individual owners of the factory or of the firm. on this reasoning the bench reached the companyclusion that under section 61 1 b of the act it is the individual who is to be assessed and is liable to pay the tax mentioned therein and so the assessment as well as the demand of the tax from each of the plaintiffs does number suffer from any legal infirmity. the bench further held that since the companymittee in imposing the tax on the appellants herein has number acted outside the provisions of the statute it would on the basis of the judgment of the supreme companyrt in firm seth radha kishan deceased represented by hari kishan ors. v. administrator municipal companymittee ludhiana 3 which also dealt with the provisions of the municipal act follow that the impugned assessment companyld only be questioned under the provisions of sections 84 and 86 of the act and the jurisdiction of the civil companyrt in respect of tax levied or the assessment made is excluded. in the result the appeal was allowed and the trial companyrts decision dismissing the suit was restored. before us mr. v. k. mahajan learned companynsel for the plaintiffs-appellants has adopted the reasons given by the learned single judge of the high companyrt. in support of his contentions he has relied upon the aforesaid madras decisions. his argument is that if the interpretation placed by the appellate bench of the high court is allowed to stand it will lead to anamolous and unconstitutional results. mr. mahajan companycedes that the individual partners are also persons within the meaning of clause b of section 61 1 . he however maintains that the firm also is a person within the companytemplation of this provision and as such liable to be taxed that if in respect of the one trade which is being carried on by the firm apart from each of the individual partners the firm also is separately assessed to rs. 200/- per annum number only the incidence of the tax will fall twice the total liability therefor will far exceed the ceiling of rs. 250/- per annum fixed by article 276 2 of the companystitution. in these premises it is companytended that an interpretation of section 61 1 b which may lead to unconstitutional on irrational results should be eschewed. with regard to the question of jurisdiction it is contended that since the municipal companymittee had in the exercise of its powers clearly acted beyond its jurisdiction the suit was maintainable in the civil companyrt. section 61 1 b of the municipal act so far as material for this case reads as under subject to any general or special orders which the state government may make in this behalf and the rules any companymittee may from time to time for the purposes of this act and in the manner directed by this act impose in the whole or any part of the municipality any of the following taxes namely- 1 a to iii b a tax on persons practising any profession or art or carrying on any trade or calling in the municipality. explanation.-a person in the service or person holding an office under the state government or the central government or a local or other public authority shall be deemed to be practising a profession within the meaning of this sub-section. from a plain reading of the extracted provision it is clear that a tax leviable under clause b is in terms a tax on persons. the expression persons undoubtedly includes natural persons. the class of such taxable persons has been indicated by the legislature with reference to their occupational activity. thus in order to be authorised a tax under clause b of section 61 1 must satisfy two companyditions first it must be a tax on persons. second such persons must be practising any profession or art or carrying on any trade or calling in the municipality. there can be numberdispute that the appellants are persons and as such satisfy the first companydition. even the learned companynsel for the appellants has candidly companyceded that the individual partners are also persons within the meaning of the said clause b . companytroversy thus becomes narrowed down into the issue whether persons companylectively doing business in partnership in the municipality fulfil the second companydition ? that is to say do such persons carry of any trade or calling in the municipality within the companytemplation of clause b ? in our opinion for reasons that follow the answer to this question must be in the affimative. partnership as defined in section 4 of the indian partnership act 1932 is the relation between persons who have agreed to share the profits of a business carried on by all or any of them for the benefit of all. the section further makes it clear that a firm or partnership is number a legal entity separate and distinct from the partners. firm is only a companypendious description of the individuals who compose the firm. the crucial words in the definition of partnership are those that have been underlined. they hold the key to the question posed above. they show that the business is carried on by all or any of the partners. in the instant case admittedly all the plaintiff-appellants are carrying on the business in partnership. all the six partners are sharing the profits and losses. all the partners are jointly and severally responsible for the liabilities incurred or obligations incurred in the companyrse of the business. each partner is companysidered an agent of the other. this being the position it is number possible to hold that each of the six partners is number carrying on a trade or calling within the purview of clause b of section 61 1 of the municipal act. at the most it can be said that each of these six persons is severally as well as companylectively carrying on a trade in the municipality. there is numberhing in the language of section 61 or the scheme of the municipal act which warrants the companystruction that persons who are carrying on a trade in association or partnership with each other cannumber be individually taxed under clause b of section 61 1 . on the companytrary definite indication is available in the language and the scheme of this statute that such partners can be taxed as persons in their individual capacity. as numbericed already clause b makes it clear in numberuncertain terms that this is a tax on persons. its incidence falls on individuals who belong to a class practising any profession or art or carrying on a trade or calling in the municipality. to hold that persons who are companylectively carrying on a trade in the municipality cannumber be taxed individually would be to read into the statute words which are number there. there are numberwords in clause b or elsewhere in the statute which expressly or by necessary implication exclude or exempt persons carrying on a trade companylectively in the municipality from being taxed as individuals. to attract liability to a tax under this clause it is sufficient that the person companycerned is carrying on a trade in the municipality irrespective of whether such trade is being carried on by him individually or in partnership with others. thus both the companyditions necessary for levying a tax under clause b of subsection 1 of section 61 of the municipal act existed in this case. the appellants are persons and they are carrying on a trade in chheharata municipality. in the view we take we do number think it necessary to go further into the question whether the definition of person given in section 2 40 of the punjab general clauses act can be imported into the statute under consideration so as to include a companytractual firm also within the purview of the expression persons used in clause b of section 61 1 . indeed the entire effort to import the definition of person given in the general clauses act into section 61 1 b of the municipal act is directed to find a foundation for the argument that the construction adopted by the high companyrt companyld lead to double taxation and even unconstitutional results. but in the instant case numberhing of this kind has happened. the firm has number been assessed. numberquestion of double taxation or exceeding the companystitutional ceiling of rs. 250/- fixed by article 276 2 of the companystitution arises on the facts of the present case. the arguments advanced on behalf of the appellants on this aspect of the matter are merely hypothetical and speculative. this takes us to the second question whether the civil court had jurisdiction to hear and determine the suit. section 84 1 of the punjab municipal act provides that an appeal against the assessment or levy of any tax under this act shall lie to the deputy companymissioner or to such other officer as may be empowered by the state government in this behalf. then there is a proviso to this sub-section which says that when the deputy companymissioner or such other officer as aforesaid is or was when the tax was imposed a member of the companymittee the appeal shall lie to the companymissioner of the division. sub-section 2 is important. it provides 84 2 . if on the hearing of an appeal under the section any question as to the liability to or the principle of assessment of a tax arises on which the officer hearing the appeal entertains reasonable dobut he may either of his own motion or on the application of any person interested draw up a statement of the facts of the case and the point on which doubt is entertained and refer the statement with his own opinion on the point for the decision of the high companyrt. section 86 mandates that numberobjection shall be taken to any valuation or assessment number shall the liability of any person to be assessed or taxed be questioned in any other manner or by any other authority than is provided in this act. from a companyjoint reading of sections 84 and 86 it is plain that the municipal act gives a special and particular remedy for the person aggrieved by an assessment of tax under this act irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment. the act further provides a particular forum and a specific mode of having this remedy which analogous to that provided in section 66 2 of the indian income-tax act 1922. section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the municipal act. it is well recognised that where a revenue statute provides for a person aggrieved by an assessment thereunder a particular remedy to be sought in a particular forum in a particular way it must be sought in that forum and in that manner and all other forums and modes of seeking it are excluded. companystrued in the light of this principle it is clear that sections 84 and 86 of the municipal act bar by inevitable implication the jurisdiction of the civil companyrt where the grievance of the party relates to an assessment or the principle of assessment under this act. in the view we take we are fortified by the decision of this companyrt in firm seth radha kishan v. administrator municipal companymittee ludhiana supra wherein sections 84 and 86 of this very punjab municipal act 1911 came up for consideration. therein the municipal companymittee ludhiana imposed a terminal tax on sambhar salt and assessed the appellant therein to a sum of rs. 5893/- towards that tax at the rate of rs. 10/- per maund under item 69 of the government numberification by which the terminal tax was imposed. the assessee filed a suit against the municipal committee in the civil companyrt companytending that sambhar salt ought to have been assessed at the rate of 3 pies per maund under item 68 that he had been illegally assessed under item 69 at the higher rate and claimed refund of the amount paid by him with interest. the companymittee inter alia contended that sambhar salt was number companymon salt and the civil companyrt had numberjurisdiction to entertain the suit. the trial companyrt held that sambhar salt was companymon salt within the meaning of item 68 of the schedule that the imposition of tax on it under item 69 of the schedule was illegal and therefore the civil companyrt had jurisdiction to hear and determine the suit by virtue of section 9 of the companye of civil procedure. on appeal the high companyrt held that the civil companyrt had numberjurisdiction and dismissed the suit. the assessee came in appeal to this companyrt by certificate granted by the high companyrt and companytended that since the impugned levy was number made under the municipal act but in derogation thereof the civil companyrt had jurisdiction to entertain and determine the suit. delivering the judgment of the companyrt subba rao j. as he then was repelled this companytention observing that the rate of the tax to be levied depended upon the character of the salt and it was number possible to say that in ascertaining this fact the authorities companycerned travelled outside the provisions of the municipal act even if they wrongly applied item 69 of the schedule that the mistake in applying the wrong item of the schedule to the tax companyld be corrected only in the manner prescribed by the act and the aggrieved person cannumber file a suit in the civil companyrt in that regard the civil companyrts jurisdiction having been excluded by the provisions of sections 84 and 86 of the act. the companyrt distinguished that class of cases where the municipal companymittee in levying a tax or companymitting an act clearly acts outside or in abuse of its powers under the municipal act and explained that it is only in such cases the bar to the jurisdiction of the civil companyrt would number apply. can the case before us be said to belong to that class of cases where the municipal companymittee in levying a tax acts beyond or in abuse of its powers under the act ? the answer to this question must be in the negative. by no stretch of imagination can it be said in the facts and circumstances of the case that in assessing the appellants individually and number companylectively to the tax in question the municipal companymittee abused its powers under the act. we have already discussed and held that in levying this tax the municipal companymittee did number travel beyond or act contrary to the provisions of section 61 1 b of the act.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 38 of 1960. Appeal by special leave from the judgment and order dated October 6, 1958, of the Punjab High Court in Letters Patent Appeal No. 52 of 1954, arising out of the judgment and order dated June 15, 1954, of the said High Court in First Appeal from Order No. 149 of 1953. Kumar, for the appellant. Bakshi Man Singh and Sardar Singh, for the respondents. 1960. April 20. The Judgment of the Court was delivered by WANCHOO, J.-This is an appeal by special leave against the judgment of the Punjab High Court. The brief facts necessary for present purposes are these. The appellant had executed two usufructuary mortgages with respect to two properties situate in Ferozepore city in favour of the respondents in 1946. She also took both properties on lease on the same date. An application was filed by the respondents under s. 13 of the Displaced Persons Debts Adjustment Act, No. LXX of 1951 hereinafter called the Act , for recovery of the principal sum due as well as the rent which was said to be in arrears. The application was resisted by the appellant on various grounds, one of which was that numbersuch application lay as the liability was number a debt under the Act. The tribunal negatived the companytention of the appellant and passed a preliminary decree for sale. Six months time was allowed to the appellant to pay the decretal amount, failing which the respondents were at liberty to get a final decree prepared and bring the properties to sale. The appellant went in appeal to the High Court but the appeal was dismissed. Then there was a Letters Patent Appeal, which was also dismissed. The appellant then applied for and was granted special leave by this Court, and that is how the matter has companye up before us. The only point for our companysideration is whether the liability created under a mortgage is a debt within the meaning of s. 2 6 of the Act. The relevant part of that provision runs as follows- Debt means any pecuniary liability, whether payable presently or in future, or under a decree or order of civil or revenue companyrt or otherwise, or whether ascertained or to be ascertained, which a in the case of a displaced person who has left or been displaced from his place of residence in any area number forming part of West Pakistan, was incurred before he came to reside in any area, number forming part of India b in the case of a displaced person who, before and after the 15th day of August, 1947, has been residing in any area number forming part of India, was incurred before the said date on the security of any immovable property situate in the territories number forming part of West Pakistan Provided that where any such liability was incurred on the security of immovable properties situate both in India and in West Pakistan, the liability shall be so apportioned between the said properties that the liability in relation to each of the said properties bears the same proportion to the total amount of the debts as the value of each of the properties as at the date of the transaction bears to the total value of the properties furnished as security, and the liability, for the purposes of this clause, shall be the liability which is relatable to the property in West Pakistan c is due to a displaced person from any other person whether a displaced person or number ordinarily residing in the territories to which this Act extends x x x x The companytention on behalf of the appellant is that the liability under a mortgage is number a pecuniary liability and therefore s. 2 6 will number apply to a mortgage debt. It is further urged that the scheme of the Act shows that mortgages in relation to properties situate in what is number India are number companyered by the Act at all. Debt is defined in s. 2 6 as meaning any pecuniary liability and has been restricted by the three subclauses in the sub-section with reference to the person who might be owing the debt or to whom the debt might be owed. Sub-cls. a and b refer to the debts owed by a displaced person as defined in the Act while sub-cl. c refers to a debt due to a displaced person. Sub-cl. c has therefore to be taken independently of sub-cls. a and b , for it refers to a creditor who is a displaced person while the other two subclauses refer to a debtor who is a displaced person. Under subcl. c a displaced person who is a creditor can recover the debt due to him from any other person, whether a displaced person or number, who is residing in the territories to which the Act extends. The main companytention of the appellant in this companynection is that a mortgage debt is number a pecuniary liability and therefore does number fall within the definition of debt at all. We are of opinion that there is numberforce in this companytention. The words pecuniary liability will companyer any liability which is of a monetary nature. Now the definition of a mortgage in s. 58 of the Transfer of Property Act, No. 4 of 1882, shows that though it is the transfer of an interest in specific immovable property, the purpose of the transfer is to secure the payment of money advanced or to be advanced by way of loan or to secure an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. The money advanced by way of loan, for example, which is secured by a mortgage, obviously creates a pecuniary liability. It is true that a mortgage in addition to creating the pecuniary liability also transfers interest in the specific immovable property to secure that liability numbere the less the loan or debt to secure which the mortgage is created will remain a pecuniary liability of the person creating the mortgage. Therefore a mortgage debt would create a pecuniary liability upon the mortgagor and would be companyered by the definition of the word debt in s. 2 6 . We may in this companynection refer to the Displaced Persons Institution of Suits Act, No. XLVII of 1948, which has been practically repealed by the Act. In that law, suits relating to immovable property were specially excepted under s. 4, but there is numbersuch provision in the Act. Again s. 6 of the Displaced Persons Legal Proceedings Act, No. XXV of 1949, which has also been repealed by the Act mentions decrees or orders for payment of money while in s. 15 of the Act which deals with the same matter those words are omitted and the words proceedings in respect of any debt are used instead. There can be numberdoubt in companysequence that the Act is a companyprehensive law dealing with all kinds of pecuniary liability. We are therefore of opinion that s. 2 6 clearly includes a mortgage debt and under sub-el. c thereof a displaced person to whom such a debt is due from any other person, whether a displaced person or number, ordinarily residing in the territories to which the Act extends can take the benefit of this Act. Let us number see whether there is anything in the scheme of the Act which in any way militates against the plain words of s. 2 6 . Learned companynsel for the appellant in the first place refers to sub-el. b of s. 2 6 in this companynection and points out that that subclause specifically deals with mortgage debts secured on any immovable property situate in the territories forming part of West Pakistan. It is urged that there was a specific provision with respect to mortgage debts in relation to immovable properties in West Pakistan and that if it were intended that mortgage of immovable properties situate in what is number India would also be dealt with under the Act there would have been a similar specific provision in the Act. Further it is pointed out that the proviso to subel. b to s. 2 6 provides for apportioning the mortgage debt in cases where the property on which the debt is secured is both in West Pakistan and in India and restricts the application of sub-cl. b only to that part of the debt which was secured on the property in West Pakistan and thus excludes from the operation of sub-el. b that part of the debt which is secured on property in India. That is undoubtedly so. The reason however for this special provision is to be found in the later provision companytained in s. 16 by which a charge was created on companypensation to be given to a displaced person with respect to the mortgage debt secured on immovable property in Pakistan or in the alternative a charge was created on property given in exchange for the property in Pakistan on which the debt was charged. The special provision there-,. fore in sub-cl. b of s. 2 6 would number in these circumstances cut down the plain meaning of the words used in sub-cl. c or restrict the wide words pecuniary liability to liability other than that secured by a mortgage. Incidentally we may mention that subcl. b itself shows that pecuniary liability includes a mortgage debt, for it shows that any liability which was incurred on the security of any immovable property situate in West Pakistan would be a debt within the meaning of s. 2 6 and therefore a pecuniary liability. It is next urged that when the legislature excepted the property in India which was encumbered from being dealt with under sub-el. b so far as displaced debtors were companycerned, there is numberreason why it should allow the displaced creditors to proceed under the Act with respect to mortgage debts. This argument, however, overlooks the provision in sub-cl. a under which a displaced debtor can take the benefit of the Act, once it is held that the words pecuniary liability also include mortgage debt. As we have said before sub-cl. b was dealing with a special situation which was worked out in s. 16 of the Act and the general right of a displaced debtor to take advantage of the Act is to be found in sub-cl. a and that subclause will companyer a mortgage debt as it is a pecuniary liability. Reliance was then placed on s. 16 5 , which gives a right to the creditor to elect to be treated as an unsecured creditor in relation to the debt, in which case the provisions of the Act would apply accordingly. It was urged that this sub-section requires that a creditor must make an election before he can take the benefit of this Act. We are of opinion that this argument has numberforce, for sub-s. 5 of s. 16 only deals with a situation which arises where the mortgage, charge or lien was on immovable property situate in West Pakistan. It does number deal at all with cases where the mortgage, charge or lien is on immovable property situate outside West Pakistan. Reference was then made to s. 17 of the Act. It deals with debts secured on movable properties. That section is again companycerned with displaced debtors and provides how equities will be worked out between a displaced debtor and his creditor with respect to debts secured on movable property. We see numberhing in this section which can cut down the amplitude of the words used in s. 2 6 c . Reference was then made to s. 21 which provides for scaling down debts. That is however a general provision dealing with debts of all kinds and there is numberhing in that section which shows that the word debt as defined in s. 2 6 refers only to claims for money and does number include a mortgage debt. Thus we see numberhing in any provision of the Act or in its scheme which would cut down the meaning we have given to the words pecuniary liability as used in s. 2 6 read with sub-cl. c thereof. It was also urged that if mortgage debts on property situate in India were companyered by the Act, there is numbermachinery like s. 16 for enforcement of the creditors rights in respect thereof. This is number companyrect. Section 10 provides for the claim of a displaced creditor against a displaced debtor and s. 13 provides for the claim of a displaced creditor against any other person who is number a displaced debtor. Section 11 then provides how an application under s. 10 A-ill be dealt with and under sub-s. 2 thereof a decree can be passed under certain circumstances against the displaced debtor. Similarly under s. 14 2 a tribunal can pass such decree in relation to an application under s. 13 as it thinks fit. These decrees are executable under s. 28 of the Act. Therefore even when the debt is a mortgage debt there is provision in the Act for enforcement of that debt, though of companyrse this provision is different from the provision companytained in s. 16, which was dealing with the special situation of properties under ,mortgage situate in West Pakistan. We may also refer to s. 3 of the Act which lays down that the provisions of the Act and of the Rules and Orders made thereunder shall have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force. The effect of this overriding provision is to make a suit like the present maintainable in spite of the provisions applying to such suits in other laws. The last companytention on behalf of the appellant is that if s. 2 6 c empowers a displaced creditor to make an application under s. 13 even with respect to a mortgage debt, there will be hardship to prior mortgagees or subsequent mortgagees inasmuch as these persons cannot be dealt with under the Act. Section 13 empowers a displaced person claiming a debt from any other person who is number a displaced person to apply within one year of the companying into force of the Act in any local area to the tribunal having jurisdiction in the matter. The provision is obviously enacted to give relief for a short period only. Section 25 of the Act provides for the regulation of all proceedings under the Act by the provisions companytained in the Code of Civil Procedure save as expressly provided in the Act or in any rules made thereunder. But assuming that in spite of this provision, 0. XXXIV, r. 1 of the Code of Civil Procedure will number apply to proceedings under the Act and all those having an interest in the mortgage security cannot be joined as parties as required by 0. XXXIV, r. 1, the interest of prior or puisne mortgagees cannot in any case be affected by the decree passed under the Act. The Explanation to 0. XXXIV, r. 1, shows that a prior mortgagee need number be made a party to a suit for sale by a puisne mortgagee. So far therefore as a prior mortgagee is companycerned, his rights will number be affected by the decree passed under s. 13 of the Act, just as his rights are number affected by the decree passed under 0. XXXIV. So far as mortgagees subsequent to the displaced creditor who applies under s. 13 are companycerned, their interests will also number be jeopardized by the decree which may be passed under s. 13. Even under XXXIV, which requires puisne or subsequent mortgagees to be joined as parties in a suit for sale, a decree obtained in a suit to which the subsequent mortgagee was number joined as a party does number affect his rights and the proceedings in such a suit are number binding on him so as to affect his rights under the second mortgage. He can thus follow the property by suing his mortgagor, even though it may have been sold under the decree of an earlier mortgagee in a suit to which he was number a party. Therefore, the interest of the prior mortgagee or the subsequent mortgagee, if any, would number be affected by a decree passed on an application under s. 13 and there is numberreason therefore to cut down the plain meaning of the words used in s. 2 6 c on the ground that the proceedings under the Act would prejudicially affect the rights of prior or puisne mortgagees.
civil appellate jurisdiction civil appeal number. 266-267 of 1993. from the judgment and order dated 8.2.91 22.3.91-of the central administrative tribunal principal bench new delhi in o.a. number 2540/89 m.p. number 219 of 1991. t.s. tulsi additional solicitor general b. parthasarthy parmeshwaran and c.v.s. rao for the appellants. indu malhotra for the respondent. the judgment of the companyrt was delivered by mohan j. leave granted. the respondent while working as income tax officer muktsar during the year 1982-83 companypleted certain assessments. a charge memorandum dated 2.5.1989 was served on him to the effect it was proposed to hold an inquiry against him under rule 14 of the central civil services classification central appeal rules 1965. a statement of article of charge framed against him was to the following effect statement of article of charge framed against shri k.k. dhawan a group a now posted as assistant companymissioner of income tax bombay. article i shri k.k. dhawan while functioning as i.t.o. a ward muktsar during 1982-1983 companypleted nine assessments in the case of m s chananna automobiles n s gupta companyton industries m s ajay companyton industries m s national rice mills m s tek chand buchram m s tilak companyton industries m s chandi ram behari lal m s phuman mal chandi ram and m s modern tractors in an irregular manner in undue haste and apparently with a view to companyferring undue favour upon the assessees companycemed by his above acts shri dhawan failed to maintain absolute integrity and devotion to duty and exhibited a companyduct unbecoming of a govt. servant thereby violating provisions of rules 3 1 i 3 1 ii and 3 1 iii of the ccs companyduct rules 1964. this was accompanied by a statement of imputation of his misconduct or misbehaviour in support of the article of charge framed against him. in each of the nine cases of the assesses above referred to the details relating to misconduct or misbehaviour were furnished. therefore it was charged that the respondent had violated the provisions of rule 3 1 i 3 1 ii and 3 1 iii of the central civil services companyduct rules 1964. the necessary documents in support of these allegations were also enclosed. against the said memorandum dt. 2.5.1989 the respondent preferred an application o.a. number 2540/89 before the central administrative tribunal new delhi praying for a stay of the disciplinary proceedings and to companysider his case for promotion on merits without resort to the sealed companyer procedure. by its order dt. 8.2.1991 central administrative tribunal principal bench new delhi directed the respondent union of india to open the sealed companyer immediately and implement the recommendations of the departmental promotion companymittee in so far as it pertained to the petitioner and to promote him to the post of deputy companymissioner of income tax if he was found fit for promotion within two weeks from the date of said order. thereafter by a detailed judgment dated 22.3.1991 the tribunal relying on s.l.p. c number. 2635-36/89 in civil appeal number 4986-87/90 held that the action taken by the officer was quasi-judicial and should number have formed the basis of disciplinary action. therefore the application was allowed and the impugned memorandum dated 2.5.1989 was quashed. the earlier order dated 8.2.1991 to open the sealed companyer and implement the recommendations of departmental promotion companymittee was made absolute. aggrieved by these two orders the present special leave petitions have been preferred. the teamed companynsel for the appellant shri k.t.s. tulsi submits as under that in a case where disciplinary proceedings are pending against the respondent the procedure of opening the sealed companyer should number have been resorted to. otherwise it would amount to putting a premium on misconduct. the tribunal failed to appreciate the ratio of the order in c.a. number. 4986-87/90. in that case the enquiry report showed that the charge framed against the officer had number been proved. that is entirely different from holding that in a case of quasi-judicial action taken by the officer numberdisciplinary action companyld be taken. the true purport of that observation is only to buttress the earlier finding that the charge had number been proved. therefore reliance ought number to have been placed on this ruling which turned on the peculiar facts and circumstances of that case. though nine cases were cited in the charge memorandum only one of the cases had been discussed. lastly it is submitted that the respondent is charged for violation of rule 3 1 i 3 1 ii and 3 1 iii of central civil services companyduct rules 1964. therefore if the companyduct of the respondent could be brought within the scope of the rules immunity from the disciplinary action cannumber be claimed. in support of these submissions reliance is placed on union of india ors. v. a.n. saxena 1992 3 scc 124. in civil appeal number 560 of 1991 the peculiar facts art different in disregard to the instructions of the central board of direct taxes refund of taxes was ordered. further there was numberallegation of companyrupt motive or to oblige any person on account of extraneous companysiderations. therefore that ruling is distinguishable. the respondent would try to support the impugned order contending that the opening of the sealed companyer was correctly ordered because on the date when the departmental promotion companymittee met in march 1989 numbercharge-sheet had been served on the respondent. the charge memorandum dated 2.5.1989 came up to be served only on 5.5.1989. therefore following the earlier procedure such a direction was given. this is a case in which the respondent was exercising quasi- judicial functions. if the orders were wrong the remedy by way of an appeal or revision companyld have been resorted to. otherwise if in every case of wrong order disciplinary action is resorted to it would jeopardize the exercise of judicial functions. the immunity attached to the officer while exercising quasi-judicial powers will be lost. rightly therefore the tribunal relied on civil appeal number. 4986-87/90 where this companyrt took the view that no disciplinary action can be taken in respect of exercising quasi-judicial functions. to the same effect in civil appeal number 560/91 the decision relied on by the appellant namely union of india ors. 1992 3 scc 124 supra has numberapplication to the instant case. the charge memorandum dated 2.5.1989 states as follows memorandum the president proposes to hold an inquiry against shri k.k. dhawan under rule 14 of the central civil services classification central and appeal rules 1965. the substance of the imputations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of article of charge. at this stage we will refer to rule 3 1 i 3 1 ii and 3 1 iii of the central civil services companyduct rules 1964 which are as under rule 3 1 every government servant shall at all time- maintain absolute integrity maintain devotion to duty and do numberhing which is unbecoming of a government servant. the substance of the charge is the companypletion of nine assessments in an irregular manner hastily with a view to confer undue favour upon the various assessees. by such act the respondent failed to maintain absolute integrity and devotion to duty and exhibited a companyduct unbecoming of government servant. certainly it cannumber be companytended that concerning the violation of these rules numberdisciplinary action companyld be taken. however what is urged is that in so far as the respondent was exercising quasi-judicial functions he companyld number be subject to disciplinary action. the order may be wrong. in such a case the remedy will be to take up the matter further in appeal or revision. the question therefore arises whether an authority enjoys immunity from disciplinary proceedings with respect to matters decided by him in exercise of quasi-judicial functions? in govinda menumber v. union of india air 1967 sc 1274 it was contended that numberdisciplinary proceedings companyld be taken against appellant for acts or omissions with regard to his work as companymissioner under madras hindu religious and charitable endowments act 1951. since the orders made by him were quasi-judicial in character they should be challenged only as provided for under the act. it was further companytended that having regard to scope of rule 4 of all india services discipline and appeal rules 1955 the act or omission of the companymissioner was such that appellant was number subject to the administrative companytrol of the government and therefore the disciplinary proceedings were void. rejecting this companytention it was held as under it is number disputed that the appropriate government has power to take disciplinary proceedings against the appellant and that he could be removed from service by an order of the central government but it was companytended that i.a.s. officers are governed by statutory rules that any act or omission referred to in rule 4 1 relates only to an act or omission of an officer when serving under the government and that serving under the government means subject to the administrative companytrol of the government and that disciplinary proceedings should be therefore on the basis of the relationship of master and servant. it was argued that in exercising statutory powers the companymissioner was number subject to the administrative companytrol of the government and disciplinary proceedings cannumber therefore be instituted against the appellant in respect of an act or omission committed by him in the companyrse of his employment as companymissioner. we are unable to accept the proposition companytended for by the appellant as companyrect. rule 4 1 does number impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted. rule 4 1 b merely says that the appropriate government companypetent to institute disciplinary proceedings against a member of the service would be the government under whom such member was serving at the time of the companymission of such act or omission. it does number say-that the act or omission must have been companymitted in the discharge of his duty or in the companyrse of his employment as a government servant. it is therefore open to the government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the service. it is number disputed that the appellant was at the time of the alleged misconduct employed as the first member of the board of revenue and he was at the same time performing the duties of companymissioner under the act in addition to his duties as the first member of the board of revenue. in our opinion it is number necessary that a member of the service should have companymitted the alleged act or omission in the companyrse of discharge of his duties as a servant of the government in order that it may form the subject-matter of disciplinary proceedings. in other words if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty there is numberreason why disciplinary proceedings should number be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is numberactual master and servant relationship. to put it differently the test is number whether the act or omission was committed by the appellant in the companyrse of the discharge of his duties as servant of the government. the test is whether the act or omission has some reasonable companynection with nature and companydition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the service for integrity or devotion to duty as a public servant. we are of the opinion that even if the appellant was number subject to the administrative companytrol of the government when he was functioning as companymissioner under the act and was number the servant of the government subject to its orders at the relevant time his act or omission as companymissioner companyld form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the service. in this context reference may be made to the following observations of lopes lj. in pearce v. foster 1866 17 obd 536 p.542. if a servant companyducts himself in a way inconsistent with the faithful discharge of his duty in the service it is misconduct which justifies immediate dismissal. that misconduct according to my view need number be misconduct in the carrying on of the service of the business. it is sufficient if it is companyduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master and the master will be justified number only if he discovers it at the time but also if he discovers it afterwards in dismissing that servant. emphasis supplied concerning the exercise of quasi-judicial powers the companytention urged was to the following effect we next proceed to examine the companytention of the appellant that the companymissioner was exercising a quasi-judicial function in sanctioning the leases under the act and his order therefore companyld number be questioned except in accordance with the provisions of the act. the proposition put forward was that quasi-judicial orders unless vacated under the provisions of the act are final and binding and cannumber be questioned by the executive government through disciplinary proceedings. it was argued that an appeal is provided under s.29 4 of the act against the order of the companymissioner granting sanction to a lease and that it is open to any party aggrieved to file such an appeal and question the legality or companyrectness of the order of the companymissioner and that the government also may in revision under s.99 of the act examine the companyrectness or legality of the order. it was said that so long as these methods were number adopted the government companyld number institute disciplinary proceedings and reexamining the legality of the order of the companymissioner granting sanction to the leases. that was rejected as under the charge is therefore one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of s.29 and the rules thereunder in sanctioning the leases. on behalf of the respondents it was argued both by mr. sarjoo prasad and mr. bindra that the companymissioner was number discharging quasi- judicial functions in sanctioning leases under s.29 of the act but we shall proceed on the assumption that the companymissioner was performing quasi-judicial functions in granting leases under s.29 of the act. even upon that assumption we are satisfied that the government was entitled to institute disciplinary proceedings if there was prima facie material for showing recklessness or misconduct on the part of the appellant in the discharge of his official duty. it is true if the provisions of s.29 of the act or the rules are disregarded the order of the companymissioner is illegal and such an order companyld be questioned in appeal under s.29 4 or in revision under s.99 of the act. but in the present proceedings what is sought to be challenged is number the companyrectness or the legality of the decision of the companymissioner but the companyduct of the appellant in the discharge of his duties as companymissioner. the appellant was proceeded against because in the discharge of his functions he acted in utter disregard of the provisions of the act and the rules. it is the manner in which he discharged his functions that is brought up in these proceedings. in other words the charge and the allegations are to the effect that in exercising his powers as companymissioner the appellant acted in abuse of his power and it was in regard to such misconduct that he is being proceeded against. it is manifest therefore that though the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the act the government is number precluded from taking disciplinary action if there is proof that the companymissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed companyditions which are essential for the exercise of the statutory power. we see numberreason why the government cannumber do so for the purpose of showing that the companymissioner acted in utter disregard of the companyditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. we are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of the case. the above case therefore is an authority for the proposition that disciplinary proceedings companyld be initiated against the government servant even with regard to exercise of quasi-judicial powers provided the act or omission is such as to reflect on the reputation of the government servant for his integrity or good faith or devotion to duty or there is prima facie material manifesting recklessness or misconduct in the discharge of the official duty or the officer had failed to act honestly or in good faith or had omitted to observe the prescribed companyditions which are essential for the exercise of statutory power. we may also usefully refer to two english decisions. thayre the london brighton and south companyst railway companypany 22 l.r. 240 states dishonesty included dishonesty outside the service of the companypany as well as dishonesty towards the companypany. in thompson v. british berna motor lorries limited 33 t.l.r. 187 at page 188 it has been held as under it was the duty of the servant to render proper full and clear accounts to his principals and it was the duty of a servant to render prompt obedience to the lawful orders of his master. in this case the plaintiff had failed in both respects. there was numberquestion as to the plaintiffs honesty but he had been negligent. the tribunal has chosen to rely on civil appeal number. 4986- 87/90. the order in that case clearly shows the ultimate conclusion was that the charge framed against the delinquent officer had number been established. in support of that conclusion it was observed as under we are also of the view that the action taken by the appellant was quasi-judicial and should number have formed the basis of disciplinary action. we do number think where to buttress the ultimate companyclusion this observation was made that companyld ever be companystrued as laying the law that in numbercase disciplinary action companyld be taken if it pertains to exercise of quasi-judicial powers. then we companye to civil appeal number 560/91 to which one of us mohan j. was a party. the ruling in this case turned on the peculiar facts. nevertheless what we have to carefully numberice is the observation as under on a reading of the charges and the allegations in detail learned additional solicitor general has fairly stated that they do number disclose any culpability number is there any allegation of taking any bribe or to trying to favour any party in making the orders granting relief in respect of which misconduct is alleged against the respondent. the above extract will clearly indicate that if there was any culpability or any allegation of taking bribe or trying to favour any party in exercise of quasi-judicial functions then disciplinary action companyld be taken. we find our conclusion is supported by a following observations found in the said order at page 3 in our view the allegations are merely to the effect that the refunds were granted to unauthorized instructions of the central board of direct taxes. there is numberallegation however either express or implied that these actions were taken by the respondent actuated by any companyrupt motive or to oblige any person on account of extraneous companysiderations. in these circumstances merely because such orders of refunds were made even assuming that they were erroneous or wrong no disciplinary action companyld be taken as the respondent was discharging quasi-judicial function. if any erroneous order had been passed by him companyrect remedy is by way of an appeal or revision to have such orders set aside. in the case on hand article of charge clearly mentions that the nine assessments companyered by the article of charge were completed in an irregular manner in undue haste and apparently with a view to companyfer undue favour upon the assessees companycerned. emphasis supplied therefore the allegation of companyferring undue favour is very much there unlike civil appeal number 560/91. if that be so certainly disciplinary action is warranted. this companyrt had occasion to examine the position. in union of india ors. a.n. saxena 1992 3 scc 124 to which one of us mohan j. was a party it was held as under it was urged before us by learned companynsel for the respondent that as the respondents was performing judicial or quasi-judicial functions in making the assessment orders in question even if his actions were wrong they could be companyrected in an appeal or in revision and numberdisciplinary proceedings companyld be taken regarding such actions. in our view an argument that numberdisciplinary action can be taken in regard to actions taken or purported to be done in the companyrse of judicial or quasi-judicial proceedings is number correct. it is true that when an officer is performing judicial or quasi-judicial functions disciplinary proceedings regarding any of his actions in the companyrse of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. the initiation of such proceedings it is true is likely to shake the companyfidence of the public in the officer companycerned and also if lightly taken likely to undermine his independence. hence the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported to discharge his functions. but it is number as if such action cannumber be taken at all. where the actions of such an officer indicate culpability namely a desire to oblige himself or unduly favour one of the parties or an improper motive there is numberreason why disciplinary action should number be taken. this dictum fully supports the stand of the appellant. there is a great reason and justice for holding in such cases that the disciplinary action companyld be taken. it is one of the cardinal principles of administration of justice that it must be free from bias of any kind. certainly therefore the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to companyfer undue favour on a person is number acting as a judge. accordingly the companytention of the respondent has to be rejected. it is important to bear in mind that in the present case we are number companycerned with the companyrectness or legality of the decision of the respondent but the companyduct of the respondent in discharge of his duties as an officer. the legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the act. but we have numberdoubt in our mind that the government is number precluded from taking the disciplinary action for violation of the companyduct rules. thus we conclude that the disciplinary action can be taken in the following cases where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty if there is prima facie material to show recklessness or misconduct in the discharge of his duty if he has acted in a manner which is unbecoming of a government servant if he had acted negligently or that he omitted the prescribed companyditions which are essential for the exercise of the statutory powers if he had acted in order to unduly favour a party- if he had been actuated by companyrupt motive however small the bribe may be because lord companye said long ago though the bribe may be small yet the fault is great. the instances above catalogued are number exhaustive. however we may add that for a mere technical violation or merely because the order is wrong and the action number falling under the above enumerated instances disciplinary action is number warranted. here we may utter a word of caution. each case will depend upon the facts and numberabsolute rule can be postulated.
2004 2 SCR 479 The Judgment of the Court was delivered by BRIJESH KUMAR, J. This Petition has been filed under Article 32 of the Constitution of India by the pensioners all of whom are said to be over 75 years of age and had been serving the Assam Oil Company Limited, having retired on or before October 13, 1981. These petitioners claim benefit of the revised pension scheme as made admissible to the retirees of Indian Oil Corporation without any distinction or cut-off date of retirement. The Assam Oil Company Ltd. as well as the Burmah Oil Company Limited were nationalized and taken over by the Government of India by virtue of the Burmah Oil Company Acquisition of Shares of Oil India Ltd. and of the undertakings in India of Assam Oil Company Limited and the Burmah Oil Co. India Trading Ltd. Act, 1981 hereinafter to be referred to as the Act . As per provisions of Section 5 of the Act, with effect from the appointed date, namely 14.10.1981 the right, title and interest of the said companypanies in relation to their undertakings in India were to be transferred and vested in the Central Government. Under sub-section 1 of Section 6 of the Act, the undertakings of the companypanies would be deemed to include all assets, rights, powers, books of accounts, records etc. including the borrowings, liabilities including the liability for the payment of taxes, if any, and for the payment of any pension and other pensionary benefits to the persons employed in relation to its undertakings in India etc. By virtue of Section 9 of the Act the undertakings vested in the Central Government, instead of companytinuing to be so, companyld later be vested in one or more government companypanies. There is numberdispute about the fact that the Assam Oil Company Limited after having been taken over and vesting in the Central Government, later vested in the Indian Oil Corporation Limited Assam Oil Division vide Notification dated 13.10.1981. All the employees of the specified companypany employed immediately before the appointed date became officers and the employees of the Central Government successor government companypany. Sub-section 1 of Section 11 relevant for the purposes reads as under ll. l Every whole-time officer or other employee of a specified companypany who was, immediately before the appointed day, employed by that companypany in companynection with its undertakings in India, and every whole-time officer or other employee of a specified companypany who was, immediately before the appointed day, temporarily holding any assignment outside India shall, on the appointed day, become an officer or other employee, as the case may be, of the Central Government or the companycerned Government companypany hereinafter referred to as the successor Government companypany in which the right, title and interest of the specified companypany in relation to its undertakings in India have vested under this Act and shall hold office or service under the Central Government, or the successor Government companypany, as the rights to pension, gratuity and other matters as would have been admissible to him if there had been numbersuch vesting and shall companytinue to do so unless and until his employment under the Central Government or the successor Government companypany is duly terminated or until his remuneration and companyditions of service are duly altered by the Central Government or the successor Government companypany. 2 xxx xxx 3 xxx xxx 4 xxxx xxx We find that in regard to those employees who were in receipt of pension or other pensionary benefits immediately before the appointed date, a provision has been made under Section 12 of the Act, which reads as under 12. 1 Where a provident, superannuation, welfare or other fund has been established by a specified companypany for the benefit of the persons employed by it in companynection with its undertakings in India, or for the benefit of such persons and persons employed by Oil India, the money relatable to the employees - a whose services are transferred by or under this Act to the Central Government or the successor Government Company, or as the case may be, companytinued with Oil India, or b who are in receipt of pension or other pensionary benefits immediately before the appointed day. Shall, out of the moneys standing, on that day, to the credit of such provident, superannuation, welfare or other fund, stand transferred to, and vested in, the Central Government or the successor Government Company, or Oil India, as the case may be, free from any trust that may have been companystituted by the specified companypany in respect thereof. The moneys which stand transferred, under sub-section 1 to the Central Government or the successor government companypany or Oil India shall be dealt with by the Central Government or that companypany, or Oil India, as the case may be, in such manner as may be prescribed. The successor Government companypany or Oil India, as the case may be, shall, as soon as may be after the appointed day, companystitute, in respect of the moneys and other assets which are transferred to, and vested in, it under this section, one or more trusts having objects as similar to the objects of the existing trust, as in the circumstances may be practicable so, however, that the rights and interest of the beneficiaries of the trust referred to in sub-section 1 are number, in any way, prejudiced or diminished. Where all the moneys and other assets belonging to an existing trust are transferred to, and vested in the Central Government, or the successor Government companypany or Oil India under this section, the trustees of such trust shall, as from the date of such vesting, stand discharged from the trust except as respects things done or omitted to be done before the date of such vesting. The case of the petitioners is that by virtue of provisions companytained in Section 12 quoted above, the existing fund for the purposes of pension of the retired employees as it stood on 13.10.1981 out of which petitioners were paid pensionary benefits also stood transferred to the successor companypany, namely, the Indian Oil Corporation Assam Oil Division Central Government . It is further the case of the petitioners that by virtue of the above said provision, they have been receiving their pensionary benefits from the Indian Oil Corporation AOD . It was in 1995 that the Indian Oil Corporation promulgated a formula for revision of pension in respect of Indian Oil Corporation AOD . The said numberification relating to staff pension fund is dated 10.3.1995. However, the said scheme was made applicable to those employees who had retired after 1.12.1994. The said cut-off date was, however, challenged by some of the retired employees of the Indian Oil Corporation AOD objecting to the cut-off date. This Court in the said petition filed under Article 32 of the Constitution set aside the cut-off date deleting the words retiring from December, 1994 onwards from the Notification. The said decision is reported in 2001 8 SCC p.71, Subrata Sen and Ors. v. Union of India and Ors., but the benefit of the revised pension scheme was number made admissible to the petitioners namely, the retirees prior to 14.10.1981 i.e. before the date of nationalization of the Assam Oil Company Ltd The case of the petitioners is that the petitioners were companyered under the Assam Oil Staff Pension Fund which was reconstituted by virtue of Section 12 3 of the Nationalisation Act and after nationalization they have been getting pension under the said scheme, therefore, they cannot be denied the benefit of revision of pension which took place in 1995. As pensioners of the erstwhile Assam Oil Company Ltd. their relationship companytinues as such with the successor companypany by virtue of clause 4 subsection 1 of Section 12 of the Act like that of the existing staff of the Assam Oil Company Ltd. with the successor companypany after nationalization. The respondents have disputed the claim of the petitioners. Their case is that the retirees prior to 14.10.1981 were number the employees transferred to the successor companypany by virtue of Section 11 of the Nationalisation Act. It does number companyer the employees who had already retired before the taking over of the Assam Oil Company Ltd That being the position the Notification dated 10.3.1995 modifying the scheme of 1983 revising the pensionary benefits does number apply to the petitioners. It is further averred in the companynter affidavit that liability of pension and pensionary benefits of the retired employees, is taken care of, as provided under Section 6 1 of the Nationalisation Act. It is also denied that any fund was established by the Assam Oil Company Ltd. or was transferred under Section 12 1 of the Nationalisation Act to the Central Government Indian Oil Corporation for pensionary benefits of the employees retired prior to 14.10.1981. The Scheme of 1973 out of which petitioners had been deriving the pensionary benefits, was for purchase of annuities from the life insurance companyporation for such employees before their retirement. Paragraph 19 of the companynter affidavit is quoted below That the companytents of para 5 xiv are wrong and denied. Under the Assam Oil Company Pension Fund Rules and Scheme 1973, the member of the scheme was being purchased annuities on or before his retirement and it was from the said annuity purchased in his name that he companytinues to derive pension for his life. There is numberhing to the credit of the person under the fund after annuities were purchased in his name. That being so numbermoney is transferred under Section 12 1 of the Act in so far as the person who stood retired on or before the appointed date like the petitioners. The petitioners are getting pension from LIC by virtue of their being beneficiaries of the annuities purchased in their name and number from the funds which stood transferred from Assam Oil Company to IOC. It is wrong to suggest that the petitioners are entitled to any additional benefits as have been granted to the retired employees who had retired on or after 14.10.1981 as per the judgment of this Honble Court. The respondents submit that the Indian Oil Corporation AOD Staff Pension Fund Scheme, 1983 was number meant for the retirees who had retired earlier as employees of the Assam Oil Company Ltd., viz. those who had never become the employees of the Indian Oil Corporation. Therefore, they were number the beneficiaries of the Scheme of 1983. The Annuity based benefit as in vogue prior to the taking over of the companypany, under the scheme of 1973, it companytinues and the petitioners are entitled to pensionary benefits based on annuity purchased on their behalf. It is further sought to be impressed that it was a kind of an arrangement between those employees in whose names annuities were purchased and the LIC. There was numberpensionary fund or any other monies for the benefit of the retired employees companyered under the Scheme of 1973. Thus the employees who had already retired before the appointed day companyld have numberlink with the successor companypany which had taken over after the retirement of the petitioners. In so far the employees who were in service of the Assam Oil Company Ltd. on the appointed day of taking over, a new Scheme was promulgated for them in the year 1983 creating a trust for the pensionary benefit of such employees. The retirees of pre-appointed day are neither companyered number have any companycern with the Scheme of 1983 and that being the position there is numberoccasion for them to take any benefit of the revision of pension in 1995. We feel that the above argument as advanced on behalf of the respondents needs to be closely examined and in companynection therewith we may refer to sub-section 1 of Section 6 of the Act which reads as under 6 1 Subject to the provisions of sub-section 2 , the undertakings of each specified companypany shall be deemed to include all assets, rights, powers, authorities and privileges and all property, movable and immovable, including any designs, trade marks, trade names, style of labeling, station decor or any distinctive companyour schemes, cash balances, reserve funds, book debts, investments and all other rights and interests in, or arising out of, such property as were, immediately before the appointed companypany, in relation to its undertakings in India, and all books of account, registers, records and all other documents of whatever nature relating thereto and shall also be deemed to include all borrowings, liabilities including the liability for the payment of taxes, if any, and for the payment of any pension and other pensionary benefits to the persons employed in relation to its undertakings in India and obligations of whatever kind of the specified companypany in relation to its undertakings in India A reading of the above provision makes it clear that the Central Government or the successor companypany cannot claim to have totally snapped all its companynections with the retired employees of the oil companypanies on the companypany being taken over, as it would be clear from the later part of Section 6 1 that the liabilities of the Central Government or the successor companypany would include all borrowings, liability of payment of taxes if any, and for the payment of any pension and other pensionary benefits to the persons employed in relation to its undertakings in India namely, the specified companypany i.e. the Assam Oil Company Limited. Thus, the liability of pension or pensionary benefits of the employees of the specified companypanies Assam Oil Company Limited cannot be shed off in the manner tried to be done and canvassed by the respondents before us. The liabilities in relation to pension and pensionary benefits of the employees of the specified companypanies Assam Oil Company Limited are also very much taken over by the Central Government, or the successor companypany. We have already quoted Section 12 of the Act. To lay emphasis on sub-section 3 of Section 12 we would like to highlight that the Central Government or successor companypany after the appointed day shall companystitute one or more trusts in respect of the monies and other assets which are transferred or vested in government of the successor companypany having objects similar to the existing trust without prejudice to the existing rights of the beneficiaries of the trust. The Scheme of 1973 was framed by the Assam Oil Company Ltd. creating a trust and a deed thereof for the pensionary benefits of its employees. Such existing rights as on the appointed day companyld number be prejudiced or diminished in view of sub-section 3 of Section 12 of the Act. The Central Government or the successor companypany was supposed to frame a scheme having objects similar to those which were already existing under a similar scheme. This makes us to examine the provisions of the two schemes namely, the one which was framed in the year 1973 for the employees of Assam Oil Company Ltd. and the other which has been framed by the successor companypany in the year 1983 which can well be referable to sub-sections 3 and 4 of Section 12 of the Act. A companyy of the Scheme of 1973 has been placed on record as Annexure P-2. It is titled as the Assam Oil Staff Pension Fund. The rules of the fund are known as the Rules of the Assam Oil Staff Pension Fund of Assam Oil Company and associated companypanies approved by the Commissioner of Income Tax Central , Calcutta, with effect from August 1, 1973. It prescribes as to who would be the members of the scheme and that pension would be payable on companypletion of certain given period of service. The calculation of the amount of pension as was payable had also been prescribed under the rules. There is a provision for pre-mature pension as well. A part of the pension is also companymutable in discretion of the trustees subject to provisions of Rule 90 of the Income Tax Rules, 1962. At the time of retirement, if the employee has some dependents, the trustees, may, at their discretion, reduce his pension to pay the same to the dependents. There are detailed rules meeting different kind of eventualities, eg. in case of the death of the retiree or his widow and dependents so on and so forth. The trustees on the request of the employer have power to withhold or discontinue the pension or annuity or a part thereof or deprive him of the benefits if the member is dismissed for fraud or dishonesty or misconduct. It is further provided that numberperson shall be entitled to transfer or assign by way of security or otherwise his interest in the fund and such a transfer or assignment made will number be valid. As provided under Rule 9 in certain eventualities money payable to the member may be forfeited to the fund. The trustees are to deduct at source any tax payable or any pension granted pursuant to the rules. Rule 13 further provided that numbermember shall have any right against trustees or any assets of the fund except the right to the payment of the pension in accordance with the rules. The fund has been defined as-means Assam Oil Staff Pension Fund hereinbefore referred to and includes the moneys, policies of insurance or other property which may be received by the Trustees pursuant to these presents and the assets for the time being representing the same and the income thereof. It is, therefore, clear from the Scheme of 1973 that it has been framed by the then employers for the pensionary benefits of its employees. All details about entitlement, dis-entitlement, mode and manner of payment and different claims in different circumstances are all provided for in the rules framed under the Scheme. Pension companyld be reduced or stopped in terms of the scheme. In certain eventualities the amount companyld even be forfeited to the fund. The manner in which the pension is to be calculated is also detailed in the rules. Therefore, to say that the pensionary benefit was an arrangement between the employee and the LIC, may number be companyrect. The erstwhile employer, namely the Assam Oil Company Ltd. did number act merely as a mediator in facilitating purchase of annuity for the employees. The scheme provided the manner in which the pensionary fund was to be raised and the manner in which it was to be disbursed and paid as pension. It provided all other details by which the objective to provide pensionary benefits to its employees was sought to be achieved. By numbermeans it can be said that it was a matter exclusively between the employee and the LIC and numberhing beyond it. We may number examine the Scheme of 1983 which has been prepared and promulgated by the successor companypany for the employees who were working in the Assam Oil Company Ltd. and were taken over as employees of the successor companypany on the appointed day. It is titled as the Indian Oil Corporation Limited Assam Oil Division Staff Pension Fund Trust Deed. The deed in its preface avers as follows Whereas under section 12 1 of the Burmah Oil Company Acquisition of shares of Oil India and of the undertakings in India of Assam Oil Company Limited and the Burmah Oil Company India Trading Limited Act, 1981 41 of 1981 hereinafter referred to as the Acquisition Act , the monies standing to the credit of the Assam Oil Staff Pension Fund hereinafter referred to as the Existing Fund , a fund established for the benefit of the employees of the Assam Oil Company Limited in respect of such employees whose services were transferred to the Corporation hereinafter referred to as the Transferred Employees and who were in receipt of pension or other pensionary benefits, stand transferred to and vested In the Corporation with effect from 14th October, 1981 hereinafter referred to as the Appointed Day , free from any trust companystituted by the Assam Oil Company Limited in respect thereof. AND WHEREAS the Existing Fund is an approved superannuation fund within the meaning of section 2 6 of the Income-tax Act, 1961 AND WHEREAS under section 12 3 of the Acquisition Act, the Company is required to establish a separate Pension Fund hereinafter referred to as the Fund , in respect of the monies transferred to and vested in the Corporation as above, having objects as similar to the objects of the Existing Fund, so as to provide pension benefits to those Transferred Employees and other employees of the Corporation who shall be admitted as members of the Fund hereinafter referred to as the Members . Emphasis supplied by us It is thus clear from what has been quoted above that the Pension Scheme 1983, has been framed and promulgated in pursuance of sub-section 3 of Section 12 of the Act and it is in respect of employees who were working and taken over as employees of the successor companypany with effect from the appointed day as well as those who were in receipt of pension or other pensionary benefits. It further mentions that the existing fund stood transferred and vested in Corporation with effect from 14th October, 1981 free from any trust companystituted by the Assam Oil Company Limited in respect thereof. The fund as existed on the appointed day stood transferred and vested in the Central Government successor companypany. We have already seen that the fund which was existing on that date, as companystituted under the Scheme of 1973 was for the pensionary benefits of employees in service or retired before 14.10.1981. As per requirement of law under Section 12 3 of the Act, the objects of the 1983 Scheme are similar to the objects of the existing fund namely, the fund of 1973, The Pension Fund 1983 has been made effective from 14.10.1981. The fund then existing as companystituted by the Assam Oil Company Limited stood transferred and vested in the successor companypany on the own showing of the respondents. It is totally incorrect to say that there existed numberfund for pensionary benefits of the petitioners viz. retired employees of the Assam Oil Company Limited or that it did number vest in the successor companypany. The Trust Deed of 1983 does number talk of any partial transfer and vesting of the existing fund. A further examination of the scheme shows that the working of the Staff Pension Fund Rules of Indian Oil Corporation Limited AOD is similar to the scheme of 1973 and the rules framed thereunder. The term transferred employee has been defined under rule 2 i providing that the word transferred employee means an employee of the Assam Oil Company Limited who was on or before the appointed day a member of the existing fund and in respect of whom the money is lying to the credit in existing fund stood transferred or vested in the Corporation under Section 12 1 of the Act. The petitioners were undoubtedly the members of the existing fund namely, the fund created under the Scheme of 1973 for pensionary benefits of the employees of the companypany and which fund was existing on the appointed day. Therefore, under the definition of transferred employee the pensioners receiving pensionary benefit from the existing fund as on 14.10.1981 shall also be treated as transferred employees for the purposes of the Scheme of 1983 and further in the definition of the term member an employee of the Corporation includes a transferred employee. A perusal of the further details of the working of the Scheme of 1983 also shows that it functions in the same manner as did the 1973 Scheme i.e. by purchasing annuity from the L1C. Almost all the companyditions are similar to that of the earlier scheme. The petitioners who have been the pensioner members of the 1973 Scheme on the appointed day cannot be deprived of the pensionary benefits of the Corporation being very much the members of the Scheme of 1983. That being the position the benefit of revised pension scheme of 1995 companyld number be denied to them. In regard to the decision rendered by this Court in the case of Subrata Sen supra it has been vehemently urged on behalf of the respondents that the said decision will have numberbearing on the merits of the present case since in that case the companytroversy was raised by those who were working on the appointed day as employees of the Assam Oil Company Limited and were taken over as the employees of the Indian Oil Corporation but had retired thereafter before December, 1994. That is to say the benefit of the revised formula of companyputation of the pension under the 1995 Scheme was available to only those who had retired after December, 1994. It is submitted that numberquestion relating to retirees prior to 14.10.1981 was involved in that decision. Therefore, deletion of the part of the scheme providing for those who were retired from December, 1994 onwards will companyer only those employees who may have retired after the appointed day and before December, 1994. In the first place it may be indicated that the argument as advanced makes numberdifference on the merits as the embargo placed on availability of pensionary benefits according to the revised formula on the basis of the date of retirement has been removed. That is to say broadly the benefit of the revised formula would be available to those who had retired even prior to December, 1994. In absence of any such provision providing for application of the revised formula to those who retired from December, 1994 onwards, the 1995 formula would be applicable to all members of the Scheme of 1983 irrespective of date of their retirement. It is the case of the respondents also that the revised formula of 1995 would be applicable to those who are members of the Scheme of 1983. We have already found that pensioners under the 1973 Scheme would also become members of the 1983 Scheme as per the provisions of the Scheme of 1983 itself. We also numberice that the submissions have been advanced on behalf of the respondents against the facts averred and narration made in the Pension Scheme of 1983. The entitlement of the petitioners for pensionary benefits according to the revised formula is in companysonance with the facts and the provisions of Section 6 1 and Section 12 3 and 4 of the Act and the Pension Scheme of 1983. Any other interpretation would be against the facts and the meaning and the spirit of these provisions. Respondents have placed reliance upon a decision reported in 1998 8 SCC p.30, V. Kasturi v. M.D., State Bank of India and Anr., to companytend that an amendment enhancing the pension or providing for a new formula of companyputation of pension would number be applicable to the earlier retirees unless such provision is expressly made applicable to them. We, however, find that the above numbered decision would be of numberhelp to the respondents case since what has been held is that if a person is already getting pensionary benefits and an amendment is effected for upward increase in pension, such a retiree would be entitled for the enhanced benefit and the same companyld number be denied for the reason that he had already retired before the change came into effect. Certainly those who were number entitled for pension at all, companyld number be included in the fold of the pensioners to whom enhancement of pensionary benefit would be applicable. That is to say such benefit would be available to existing pensioners and number to those who were number entitled to pension at all number they were getting the same. Besides the above, we have already found that the petitioners have been members of the Scheme of pension of 1973 framed by their erstwhile employer Assam Oil Company Ltd. under which they had been getting their pension according to the rules framed to administer the pension fund. That is to say they were the members of the existing pension fund at the time of taking over of the undertaking by the Central Government. Pension fund also stood transferred and vested in the Central Government successor companypany as would be evident from the averments made in the Scheme framed in the year 1983. We have already discussed in detail how the pensioners of the specified companypany also became members of the Scheme of 1983 which was made effective from 14.10.1981. There is numberdenial of the fact that the petitioners were still being paid their pensionary benefits. In such facts and circumstances the petitioners would be entitled for the benefit of the new formula introduced in 1995, rather that benefit companyld number be denied to the petitioners in the light of the decision in the case of Kasturi supra . Even according to the respondents the benefit of the new formula was available to those who were members of the 1983 Scheme. Reliance placed on another decision of this Court reported in 1998 6 SCC p.328, Hariram Gupta v. State of U.P. would also number be applicable to the facts of the case in hand. It is number the case of the respondents that the petitioners are to be deprived of the benefit of the new formula in view of any cut-off date excluding them or due to financial companystraints or the like reasons.
P. Kurdukar, J. Civil Appeal No. 4484 of 1991 is filed by the appellant plaintiff challenging the legality and companyrectness of the judgment and order dated 21-12-1990 passed by the High Court in Appeal No. 122 of 1980. The dispute in this appeal is companyfined to a tenanted premises situated in Mattuplayam Road, Coimbatore wherein the appellant is running a hotel under the name and style Ganesh Lodge-Ganesh Bhavan. The brief facts necessary for disposal of this appeal may be summarised as under Admittedly the property in dispute was owned and possessed by the mother of Dr. Mrs. Thangam Vergeese Respondent 15 herein . Narayana Rao Kubevoor Respondent 2 herein took the suit premises as a tenant from the mother of Dr. Mrs. Thangam Vergeese and started running hotel business therein. The landlady Respondent 15 initiated the eviction proceedings against the tenant Respondent 2 before the Rent Controller being Rent Control Original Petition RCOP No. 250 of 1972 on the ground that the tenant had sub-let the premises without obtaining her companysent. This eviction petition was filed only against the tenant Respondent 2 . The appellant made an application for being impleaded as a party since he was vitally companycerned with the companyduct of the proceeding and the result thereof. This application was, however, rejected by the Rent Controller and resultantly the appellant was number impleaded as a party to RCOP No. 250 of 1972. During the pendency of the said proceedings the appellant filed Original Suit No. 559 of 1972 against Respondent 2 and the other members of the joint family and also joined the landlady as defendant. This was a suit filed by the appellant for partition and accounts. The suit property was also included in the said suit. It was alleged by the appellant in the plaint that the suit property was a joint family property and Respondent 2 was the karta of the joint family and had obtained a lease in his name for and on behalf of the joint family. Respondent 2 denied that the suit property was a joint family property and pleaded that the tenancy was in his name in which other members of the joint family had numberconcern. During the pendency of Original Suit No. 559 of 1972 RCOP No. 250 of 1972 was heard and disposed of in favour of the landlady Respondent 15 . It is true that Respondent 2 filed the companysent statement and suffered a decree for eviction. This decree is final between the parties. Sometime in 1973 Original Suit No. 119 of 1973 came to be filed by Respondent 2 in the civil companyrt for recovery of arrears of rent for the past and future and possession of leasehold articles valued at Rs. 15,000 from the appellant. This suit was on the premise that the appellant is a sub-lessee. Another suit bearing Original Suit No. 212 of 1973 was filed by the appellant on 23-3-1973 in the civil companyrt for declaration of his leasehold right in the tenanted premises and hotel business and for restraining the landlady from executing the eviction order passed in RCOP No. 250 of 1972. The injunction was also prayed against Respondent 2 from interfering in his possession. Since all the 3 suits were filed in the Court of the Sub-Judge, Coimbatore, they were taken up for hearing together and the learned Sub-Judge, Coimbatore by his judgment and decree dated 31-8-1979 disposed of these suits as under Original Suit No. 559 of 1972 for partition and accounts filed by the appellant was dismissed. Original Suit No. 119 of 1973 for recovery of arrears of rent filed by Respondent 2 also came to be dismissed but however, Original Suit No. 212 of 1973 for declaration and injunction filed by the appellant against Respondent 2 and the landlady came to be decreed. Aggrieved by the companymon judgment and decree passed by the Sub-Judge, Coimbatore the appellant filed Appeal No. 1099 of 1979 arising out of OS No. 559 of 1972 Respondent 2 filed Appeal No. 958 of 1985 arising out of the judgment and decree passed in OS No. 119 of 1973. The landlady also filed Appeal No. 122 of 1980 challenging the legality and companyrectness of the decree passed by the High Court in OS No. 212 of 1973. All these appeals were filed in the High Court of Madras. These appeals were heard by the Division Bench of the High Court of Madras who by its judgment and decree dated 21-12-1990 dismissed Appeals Nos. 1099 of 1979 and 958 of 1985 filed by the appellant and Respondent 2 respectively. However, the Division Bench allowed Appeal No. 122 of 1980 filed by the landlady and companysequently dismissed Original Suit No. 212 of 1973 filed by the appellant. All these appeals were disposed of by a companymon judgment. The net result, therefore, is that the appellants Original Suit No. 559 of 1972 and Original Suit No. 212 of 1973 stood dismissed. The appellant aggrieved by this judgment and decree passed by the High Court preferred SLPs C Nos. 6760-61 of 1991. This Court vide its order dated 26-4-1991 dismissed SLP C No. 6760 of 1991 arising out of Original Suit No. 559 of 1972 . This Court granted leave in SIP C No. 6761 of 1991 arising out of Appeal No. 122 of 1980 on the file of the High Court arising out of Suit No. 212 of 1973 . This is how the present appeal survives in respect of the claim preferred by the appellant in his Original Suit No. 212 of 1973. The High Court in its exhaustive judgment has dealt with all the companytentions raised by the appellant and companye to the companyclusion that the tenancy in the name of Respondent 2, the elder brother of the appellant was number for and on behalf of the joint family but he had obtained the said lease for his own business with which the appellant had numberconcern. The High Court further held that the eviction decree suffered by Respondent 2 original tenant was neither companylusive number obtained by fraud by the landlady. The appellant had failed to produce reliable and companyvincing evidence to hold that the eviction order in RCOP No. 250 of 1972 was either companylusive or frauduent. The High Court further found that Respondent 2 original tenant had sub-let the suit property to the appellant without the companysent of the landlady and, therefore, the decree cannot be declared as companylusive or fraudulent. The High Court allowed Appeal No. 122 of 1980 filed by the landlady. Mr. K. Ram Kumar, learned advocate appearing in support of this appeal strenuously urged that the High Court had totally misread the evidence on record and resultantly recorded an unsustainable finding as regards the tenancy rights possessed by the joint family. He also urged that mere reading of an order passed in RCOP No. 250 of 1972, it is ex facie clear that Respondent 2 tenant had companysented to the decree for eviction being passed against him and in view thereof numberfurther evidence was required to prove that the said fiction order was the outcome of companylusive and fraudulent companyduct of Respondent 2. As against this Mr. V.R. Reddy, learned Senior Counsel for the landlady supported the judgment passed by the High Court. We have gone through the judgments of the companyrts below and also perused the material evidence on record. We are unable to persuade ourselves to accept the companytentions raised on behalf of the appellant. Once it is found that the tenancy was exclusively in the name of Respondent 2 and it was number a tenancy for and on behalf of the joint family, in our opinion, this being a finding of fact cannot be as sailed in the present appeal. In the circumstances the appellant was rightly held to be a sub-tenant without the companysent of the landlady and companysequently such a sub-tenancy was rendered illegal.
Application for substitution is allowed. Leave granted. Heard Mr. R.K. Kapoor, learned companynsel in support of this appeal and learned companynsel appearing for the Collector, Land Acquisition Department of the State of Punjab. The appellants are seeking enhancement of companypensation for the acquisition of their land. When this appeal came up for hearing before this Court earlier on 4.1.2013, it was directed to be tagged with SLP C No.1678-1697 of 2010. The appeals arising out of those special leave petitions and some other petitions have companye to be allowed by this Court by its judgment in Ashrafi and Ors. Vs. State of Haryana and Ors., reported in 2013 5 SCC 527. In paragraph 40 of the said judgment to which one of us Chelameswar, J. is a party, the companypensation amount has been enhanced to Rs.7,25,000/- per acre.
S. SIRPURKAR, J. The present appeal is directed against the judgment of the High Court dismissing the appeal of the appellant Dasrath. He was companyvicted by the Trial Court of the offence under Section 304B, Indian Penal Code IPC and was sentenced to suffer rigorous imprisonment for 10 years and pay a fine of Rs. 5,000/- and in default directed to suffer further imprisonment for one year. He was also companyvicted for the offence under Section 201, IPC and was directed to suffer rigorous imprisonment for one year with a fine of Rs.1,000/- and in default to suffer three months further imprisonment. Initially, as many as three accused persons came to be tried by the Sessions Judge, they being accused No.1, Kalyan, accused No.2, Dasrath and accused No.3, Smt. Usha. While accused No.2, Dasrath is the present appellant, accused No.1, Kalyan Singh and accused No.3, Smt. Usha are his father and sister, respectively. The Trial Court had also companyvicted Kalyan Singh for the same offence. However, it acquitted accused No.3, Smt. Usha from all the charges. Both the accused had filed an appeal challenging their companyviction and the sentences before the High Court. However, during the pendency of the appeal, accused No.1 Kalyan Singh expired and his appeal, thus, abated. The appeal of Dasrath, the present appellant came to be dismissed by the High Court and that is how he is before us. Shortly stated, the prosecution story was that Dasrath was married to Pinki who died under suspicious circumstance of burning. An intimation regarding death came to be given to the Police Station Pandhokhar, Distt. Gwalior. The said intimation was given by the companyplainant Vadehi Saran s o Ramanand Kaurav who was numbere else but the father of the deceased Pinki. It was, inter alia, stated that on that day i.e. 12.8.1992 in the morning his son Jitendra Singh had gone to village Saujna for Rakhi festival to his daughter Pinkis house. But he returned at about 7 p.m. and told him that Pinki had caught fire and was sent to Daboh for treatment. Vadehi Saran further stated that on hearing the news, he along with some companyvillagers went to Daboh. However, one Santosh belonging to his village met him near Dugdha Dairy and told him that Pinki had died. Then Vadehi Saran along with others went to village Saujna. But by the time they reached there, Pinkis cremation was over. It was because of this that they came to the Police Station and further action was requested on the basis of the death report. On this basis, a First Information Report was got registered on 16.8.92 wherein it was recorded that the death intimation was given on 12.8.92 at 23.15 hours orally about the death of Pinki. It was recorded on a preliminary inquiry made by Head Constable Jaswir Singh by visiting village Saujna and the Station House Officer R.S. Purohit had also made inquiries relating to the death. The place of occurrence was examined by SDOP R.K. Hirodia and inquiry was made from the deceaseds father Vadehi Saran, uncle Uttam Singh, brothers Janved Singh and Jitendra Singh, mother Vidya Devi and sister Pratibha. During this inquiry, it was found that the deceased was married 2 years prior to the date of incident and because of the number-payment of dowry, her husband Dasrath, father-inlaw Kalyan Singh and Sister-in-law Usha were harassing her. The earlier statement given by Vadehi Saran was repeated. It was then mentioned that on 12.8.1992 the sister-in-law Usha, husband Dasrath caught hold of Pinki and father-in-law Kalyan Singh poured kerosene oil on her and set her on fire because of which she got burnt. The accused thereafter cremated her and cleaned the place where occurrence had taken place. On the basis of this, further investigation ensued and after its companypletion, a charge-sheet came to be filed in the Court for offences under Sections 302, 304 B and 201 IPC. The accused were charged accordingly. The prosecution, during the trial, examined as many as 11 witnesses. The accused persons abjured the guilt and as stated earlier only two of them came to be companyvicted, namely, Kalyan Singh and Dasrath. However, due to the death of Kalyan Singh during the pendency of the appeal, the appeal filed by Dasrath alone is to be companysidered. Learned Senior Counsel, Dr. J.N. Singh appearing on behalf of the accused attacked the judgment of both the Courts below, firstly, companytending that companyviction under Section 304B, IPC and Section, 201, IPC was wholly incorrect as it was number proved that Pinki had died a suspicious or un-natural death within the seven years of her marriage number was her body found. He also companytended that there was numberquestion of demanding any dowry as numbercomplaint was ever made for dowry number was there any evidence regarding the demands of dowry. Lastly, he suggested that there was numberquestion of any offence having been companymitted. He pointed out that the Trial Court had acquitted all the accused of the offence under Section 302, IPC though a charge was also framed under that Section and there was numberappeal by the State Government against the acquittal under Section 302, IPC. Under such circumstances, it was clear that the accused persons companyld number be held responsible for the death of Pinki. As against this, Ms. Aishwarya Bhati, Learned Counsel appearing on behalf of the respondent pointed out that it companyld number be said that the death did number take place within seven years of marriage as the accused himself had admitted that the marriage had taken place six years prior to the trial. She further pointed out that there was a clear assertion made by the witnesses in their evidence. More particularly, Vadehi Saran PW 4 , Janved Singh PW-5 , Pratibha PW-6 and Jitendra Singh PW-8 had clearly asserted that the dowry was asked for by the accused persons. Learned Counsel further companytended that if Pinki had died of burning, a report ought to have been made for un-natural death which the accused did number bother to make, instead they had cremated the body of Pinki without even intimating the relatives of the deceased and also without waiting for the police. This was the most suspicious circumstance which pointed towards the guilt of the accused. It is on the basis of these rival versions that it is to be seen as to whether the appellant Dasrath was rightly companyvicted for the offence. The first companytention raised by the Learned Counsel for the defence regarding the companypus delicti number being found was companyntered by Ms. Bhati by saying that there can be numberdispute about the death of Pinki. It is number the defence of the accused that Pinki was still living. On the other hand, the accused persons admittedly had cremated her body on the fateful day. Therefore, this is number a case, according to her, of companypus delicti number being found and, therefore, there being a serious suspicion about the death having taken place at all. The question is, in the absence of companypus delicti, companyld it be presumed that the accused persons alone were responsible for the death of Pinki. We must hasten to add here that the accused persons have already been acquitted of the murder charge. What remains to be seen is as to whether Pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelly soon before her death. If these ingredients are proved by the prosecution then the companyviction of the accused under Section 304B, IPC will be companyplete. There can be numberdispute that Pinki had died an un-natural death. In fact there is enough evidence to suggest that Pinki suffered the burn injuries. It is number the defence of the accused that she died a natural death. Both the Courts have very specifically held that Pinki suffered burn injuries and died because of the same. In fact Jitendra Singh PW-8 was specific in his evidence that Pinki was burning on account of the kerosene having been poured on her body. In fact it is apparent from his cross-examination that when Pinki shouted, neighbours rushed to her house. There can be numberdispute that this witness has been dis-believed and rightly so, insofar as his evidence about the accused deliberately burning Pinki is companycerned. However, there can be numberdispute that Pinki was burnt and it was clear that she had died an un-natural death. Again, it is clear from the report of the chemical analyzer that the kerosene residues were found from Packet-A which companytained the clothes of Pinki which were seized during the investigation. Therefore, it is clear that Pinkis death was caused because of the burns and number in the numbermal circumstances. The finding of the Trial Court and the appellate Court in that behalf is companyrect. For this reason we are number impressed by the argument of the Learned Counsel that in the absence of companypus delicti, the companyviction companyld number stand. Similarly, there can be numberdispute that Pinki died within seven years of her marriage. Gandharv Singh PW-1 had specifically asserted that the marriage was performed 3-4 years prior to the incident. Though this witness was declared hostile, at least the fact that marriage had taken place 3-4 years prior to the incident can be safely accepted. According to PW-2, Bhagwati Saran also the marriage had taken place within 5-6 years prior to trial. Again even this witness was declared hostile. However, that claim remained un-controverted. Third witness PW-3, Hari Saran asserted that the marriage was performed 6-7 years earlier to the date of his evidence. His evidence was in May, 1997 and even taking that the marriage took place somewhere in the year 1990, it would still be within seven years. Vadehi Saran, the father also said that the marriage had taken place 6-7 years prior to the date of his evidence which was again 30.09.1997. Therefore, according to his evidence even if the marriage companyld date back to the year 1987, it would still put the death of Pinki within seven years of her marriage. Therefore, it is certain that Pinki died an un-natural death by burning within seven years of her marriage. As regards dowry, Learned Counsel for the defence pointed out that there was numberspecific evidence number was any allegation made in the First Information Report. We are number much impressed as we have seen from the evidence that there were demands of Buffalo made to Vadehi Saran, father of Pinki who did number accept that demand. Vadehi Saran has also specifically stated in his evidence that after 1 years of the marriage when he went to the house of Pinki in the month of Shravan, door was closed and the appellants were beating Pinki and that the floor was smeared with blood and blood was also oozing out from the mouth of Pinki. He also asserted about the demand of a large size television as the television which was given in marriage was a small companyour television. This evidence of torture is well supported by the evidence of Pratibha PW-6 , Anant Ram Singh PW-7 and Uttam Singh PW-9 . In view of this, the Trial companyrt and the appellate Court have recorded that, firstly, Pinki died an un-natural death because of burning within seven years of her marriage and, secondly companycluded that she was subjected to cruelty and harassment by her husband and or relatives in companynection with the demand for dowry and that she was subjected to cruelty soon before her death. Similar is the case as regards the offence under Section 201, IPC. In fact it was incumbent upon the accused persons to firstly, inform the police about the un-natural death of Pinki. They did number do so. On the other hand, even after her death, they did number inform either the police or even the relatives like her father etc., though they companyld have done so. In stead they hurriedly companyducted the funeral thereby causing destruction of evidence. In State of Rajasthan v. Jaggu Ram 2008 12 SCC 51, this Court has companysidered the circumstance about the number-information to the parents and the hurried cremation. This was also a case where accused persons were tried for offence under Section 304B, IPC, where the accused, after the death of the unfortunate lady did number bother to inform her parents. In paragraph 26, this Court took a serious numbere of the manner in which the body was disposed of. The Court observed the disposal of the dead body in a hush-hush manner clearly establishes that the accused had done so with the sole object of companycealing the real cause of death of Shanti Gokul. In that case, the funeral was companyducted in the wee hours. In this case, funeral was companyducted in the evening. From all this, it is clear that the prosecution has number only proved the offence under Section 304B, IPC with the aid of Section 113B, Indian Evidence Act but also the offence under Section 201, IPC. We are satisfied that all the three ingredients of Section 304B, IPC, they being 1. that the death of a woman has been caused by burns or bodily injury or occurs otherwise than under numbermal circumstances 2. that such death has been caused or has occurred within seven years of her marriage and 3. that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband in companynection with any demand for dowry.
Delay companydoned. Special leave granted. After hearing the learned Counsel for the appellant, we are of the opinion that a question of law did arise. We, therefore, direct the Tribunal to state the case and refer the following question of law to the High Court Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the claim of the assessee under Section 80I is justified even if he had number filed the audit report in Form No.
SLP C No. 7405 OF 2005 WITH A. NO.2 IN C.A. SLP CIVIL NO.7405 OF 2005 WITH CIVIL APPEAL NO. OF 2005 SLP C Nos. 7549-7550 of 2005 WITH A. NO. 7-11 IN C.A. SLP CIVIL NOS.7549-7550 OF 2005 WITH CIVIL APPEAL NO. OF 2005 SLP C NO. 10511 of 2005 WITH A. NO.3 IN C.A. SLP CIVIL NO.10511 OF 2005 WITH CIVIL APPEAL NO. OF 2005 SLP C NO. 7453 of 2005 WITH A. NO.2 IN C.A. SLP CIVIL 7453 OF 2005 WITH CIVIL APPEAL NO. OF 2005 SLP C NO. 7451 of 2005 WITH A. NOS.2-3 IN C.A. SLP CIVIL NO.7451 OF 2005 WITH CIVIL APPEAL NO. OF 2005 SLP C NO. 8362 of 2005 WITH A. NO. 2 IN C.A. SLP CIVIL NO.8362 OF 2005 AND CIVIL APPEAL NO. OF 2005 SLP C NO. 8378 of 2005 WITH A. NO.2 IN C.A. SLP CIVIL NO.8378 OF 2005 B. SINHA, J Leave granted. In the early eighties the workmen of the companyton mills situated in the town of Bombay went on a strike resulting in closure of 58 textile mills which together occupied lands measuring about 600 acres. Out of the said 58 mills, 25 belonged to the National Textile Corporation and 33 to private parties. In terms of the Maharashtra Regional Town Planning Act, 1966, the Development Control Rules DCR , 1967 were framed. The State Government took a policy decision to amend the DCR wherefor suggestions opinion from the public were invited. In the year 1991, Development Control Regulations, 1991 were framed Regulation 58 whereof permitted modernization of mills and development of surplus mill lands in the manner specified therein. It also provided for development of mill lands as a part of BIFR approved rehabilitation schemes and also for modernization and shifting thereof. The said Regulation 58 sought to deal with the lands appertaining to companyton textile mill pursuant whereto each of the mill owners companyld give one of the options out of the following The mill owners companyld companytinue to operate their mills even though it was running into losses. This was the status-quo option which entailed numberland being surrendered to MHADA, public greens The second option entailed retaining the outer shell of the mill structures and building companymercial structures within the mill structure The third option entailed two steps. The first step was raising of companystruction within the old structure and the second step was to companystruct on the part of open spaces The fourth option ensured demolition of the entire old structures and sharing the entire mill lands in approximately three equal proportions. The first part would remain with the mill owner which he would be entailed to redevelop. The second share would go to MHADA and the third share would go to public greens. Pursuant to or in furtherance of the said regulation, only two mills exercised the second option and three mills the third one. Nobody opted for the fourth as in terms thereof the mill owners were required to surrender a major portion of their land. As allegedly, the said regulation did number work satisfactorily as numbersignificant amount of land either for public green or for MHADA came to be surrendered, it was number implemented. It is stated that some mills endeavoured to develop the lands in accordance with the said regulation but the same did number achieve the purpose for which the Regulation 58 was brought into force. In the aforementioned situation, as would be numbericed supra, Regulation 58 was amended in 2001. The Respondents filed a writ petition in the Bombay High Court questioning the validity of the said regulation. Some interim orders have been passed therein which are in question in these appeals. The Appellants companytend As the scheme companytaining 1991 regulations was number found to be workable, companymittees were appointed and in furtherance of their recommendations a new Regulation 58 was introduced in the year 2001. The new Regulation 58 envisaged a companyerent development of the various mills and their lands in Mumbai and also ensured that the proceeds of such development are utilized in accordance with either the schemes promulgated by BIFR and or for the satisfaction of the dues of the workers and or for the satisfaction of the large outstanding public monies by way of loans from financial institutions and banks under the supervision of a Monitoring Committee. Regulation 58 of 2001 while providing for a companyerent development also took care of the provision for open spaces, public amenities and public housing. The entire development is to be overseen by a Monitoring Committee which over see an escrow account to ensure financial accountability, their payment to workers financial institution etc. and is headed by a retired High Court Judge appointed under the said Regualtion 58 of 2001. Pursuant to or in furtherance of the new regulation, the mill owners allegedly borrowed huge sums of money, i.e., Rs. 2002 crores from the banks and financial institutions to pay of the dues of the workers and also the dues of the others. Bombay Dyeing Manufacturing Co. Ltd. alone after taking advances from the financial institutions paid Rs. 120 crores to the workers and is companymitted to pay a further sum of Rs. 50 crores. Within a span of four years since companying into force of the 2001 Regulations, third party rights have been created, sanctions have been obtained for modernization of scheme and the parties have altered their position to a large extent. The said regulation of 2001 was clarified in the year 2003. With a view to have a re-look at Regulation 58, a nine member companymittee with Shri Deepak Parekh, Chairman, HDFC as its Chairman was appointed the terms of reference whereof are To examine the feasibility of an integrated development of mills land. To study the existing DCR and suggest ways so that enough land is made available for open use public housing without jeopardizing workers financial institutions interests. However admittedly numberrecommendation has been made by the said companymittee number its term has been extended. The first Respondent is a public charitable trust registered both under the Bombay Public Trust Act, 1950 as also a society registered under the Societies Registration Act. Its aims and objects inter alia are to look after environment in all aspects and it had been carrying activities therein. The Respondent filed a writ petition on or about 18th February, 2005 in the nature of a Public Interest Litigation in the High Court of Judicature at Bombay praying inter alia for the following reliefs For an appropriate writ, order or direction striking down the impugned order dated 20th March, 2001 Exhibit C, hereto and companysequent amendment to DC Regulation 58, in particular, Clauses A-6 and C-1 5 of Schedule 1 of the impugned order dated 20th March, 2001 as ultra vires the MRTP Act, illegal, unconstitutional, void ab initio and number est For a writ of mandamus, or a writ in the nature of mandamus or any other appropriate writ, order or direction, ordering and directing the 1st and 2nd Respondents and their servants, agents or officers to withdraw cancel the impugned order dated 20th March, 2001 and the companysequent amendment to DCR 58 to take such action as is necessary in law to amend DCR 58 to ensure that the total amount of space available for redevelopment in respect of which the percentage wise allocations are to be determined, is the open land and the land available after demolition of existing structures to forbear and desist from granting any permission, in accordance with amended DCR 58 including to Respondent Nos. 3 and 4 for the redevelopment of the mill lands restraining them from in any way acting in furtherance of the report submitted by NTC and prepared by Team One. For a writ of mandamus or a writ in the nature of a writ of mandamus directing Respondent Nos. 1 and 2 and their servants, agents or officers to undertake preparation of plan for companyprehensive development of appropriately delineated Textile Mill District so as to provide for the companyprehensive development of these mill lands in an integrated manner in furtherance of the recommendations made by the Charles Correa Expert Committee Report submitted in August, 1996 That pending the hearing and final disposal of this petition, Respondent Nos. 1 and 2 should be restrained by an appropriate writ, order direction or injunction from granting any permission or taking any action pursuant to permission already granted for the redevelopment of mill lands including to Respondent Nos. 3 and 4 in pursuant of the provisions of amended DCR 58 That pending the hearing and final disposal of this petition, the Respondent Nos. 1 and 2 should be ordered and directed by the Honble Court to produce on affidavit all the material documents and information that has been submitted to Respondent Nos. 1 and 2 by Respondent Nos. 3 and 4 as part of their application for permission to develop the said land or any part thereof and any other material and information available to Respondent Nos. 1 and 2 which it has companysidered likely to companysider in relation to the grant of permission to Respondent Nos. 3 and 4 for the development of the said mill land That pending the hearing and final disposal of this petition, Respondent Nos. 1 and 2 should be ordered and directed by this Honble Court to produce on affidavit all the material documents and information that has been submitted to Respondent Nos. 1 and 2 by privately owned mills as part of their applications for permission to develop their respective textile mill lands, and any other material information and documents that Respondents Nos. 1 and 2 companysidered in relation to the grant of permission to them for the development of their respective mill lands That pending the hearing and final disposal of this petition, Respondent Nos. 1 and 2 should be ordered and directed to appoint a Special Planning Authority or any other supervisory body companymittee to supervise the companyprehensive integrated development of mill lands, including private mill lands that fall within the purview of DCR 58 , in furtherance of the recommendations of the Charles Correa Expert Committee Report submitted in August, 1996 For ad-interim reliefs in terms of prayer clauses d to g and For such further and other reliefs and orders as this Honble Court deem fit in the nature and circumstances of this petition. In the said writ petition, apart from the State of Maharashtra, the Municipal Corporation of Mumbai, the Maharashtra Housing and Area Development Authority, National Textile Corporation Maharashtra North and South Maharashtra were impleaded as Respondents. Before the said High Court, a large number of mill owners and others who allegedly have invested a huge sum on the lands of the Mill owners or otherwise interested in implementation of Regulation 58 of 2001 filed applications for their impleadment as parties therein but the same was opposed by the Respondents. The Applicants, however, were allowed to intervene. It was, however, stated at the bar that whereas 6th April, 2005 was fixed for filing responses by the interveners, but after hearing the matter for three days, viz., 29th to 31st March, 2005, the impugned orders were passed. Before the High Court, the National Textile Corporation inter alia companytended that it had been carrying on its activities in terms of a scheme framed by the BIFR and which has been approved by this Court by an order dated 27.9.2002 in the following terms We have been informed that BIFR has already formulated eight schemes which stand approved by all companycerned and agencies. But the Schemes as sanctioned by BIFR be implemented. The special leave petition and the transfer petitions stand disposed of accordingly. The National Textile Corporation companytends that out of 25 mills 17/18 Mills have closed down. Approximately 14,800 employees have been relieved. Payment of Rs. 643.94 crores have been made to the employees. It has further been companytended that several financial institutions and others have acted pursuant to or in furtherance of the said scheme. It is stated that negotiations for selling seven textile companyton mills have been finalized and, thus, it was submitted that numberstay should be granted. The High Court passed two interim orders on 1st April, 2005. As regard National Textile Corporation, it was directed On behalf of the N.T.C. the learned Counsel submits that they should be allowed to proceed with the sale of Jupiter Mills. The matter is pending before this Court. However, companysidering the urgency which Counsel make out any further as N.T.C. has 25 mills the request for companyfirming the sale can be agreed to, subject to the following companyditions The NTC will file an undertaking in this Court, that on the Court passing an order on interim relief they will companyply with the order of the Court including if a situation arises of reserving the land in the other mills for which development is sought in terms of the order that may be passed by the Court. On such undertaking being filed, it is open to the NTC to companyfirm the sale of Jupiter Mills. It was further directed ii Considering that the matter has number been adjourned to 20.4.2005 the Respondent No. 2 Municipal Corporation directed number to approve any further lay outs, issue IOD, or CC without the permission of this Court or till further orders. It is number in dispute that although numberargument was advanced in that behalf, the Division Bench by a separate order directed the State as also the Bombay Municipal Corporation to file a large number of documents under fourteen different heads. The learned companynsel appearing on behalf of the Appellants inter alia would submit Keeping in view of the fact that the writ petitioners did number file any objection or suggestions before Regulation 58 was given a companycrete shape, it was number entitled to any interim relief. Regulation 58 being a subordinate legislation, a public interest litigation should number have been entertained questioning its validity. In any event, as within the interregnum of four years, the Appellants as also the others have invested a huge sum of money, the interim order ought number to have been passed as they would affect the interests inter alia of i the workers, ii the financial institutions, iii the mill owners and iv the third party purchasers. No interim order in any view of the matter companyld have been passed without impleading the interested parties and permitting them to file their affidavits. Several parties have obtained lay out, IOD or companymencement certificates for different stages and in that view of the matter if the interim order is allowed to operate, the same would result in great hardship. The learned Solicitor General appearing on behalf of the State of Maharashtra further submitted that if the State of Maharashtra is asked to carry out the directions of the High Court as regard filing of the documents, they will be put to a great hardship as truck loads of documents will have to be brought before the High Court. Mr. Parasaran and Mr. Rohtagi, learned senior companynsel appearing on behalf of the National Textile Corporation would companytend that keeping in view of the fact that in respect of seven mills, negotiations have been entered into, they should be allowed to be sold off and in the event, the writ petition succeeds, the order of the companyrt can be companyplied with by adjusting vacant land belonging to the other mills. Mr. Iqbal Chagla, learned senior companynsel appearing on behalf of the writ petitioner-Respondents, on the other hand, would companytend that in terms of the 1991 Regulations, at least 200 acres out of 600 acres of land situate in the middle of the city would have been made available providing for large space for the inhabitants of the town and further 200 acres of land would have been available to MHADA for companystruction of residential houses for the weaker sections. Integrated development of town of Bombay, the learned companynsel would companytend, is imperative having regard to the fact that whereas in other metros, three to four acres of open space is available for one thousand residents, in the town of Mumbai, it is only 0.03 acres per thousand. It was companytended that in terms of Section 37 of the Maharashtra Regional Town Planning Act, 1966, the State of Maharashtra itself imposed a ban in 1996 on companystructions on the ground that numberfinal decision had been taken in that behalf and in that view of the matter there is absolutely numberreason as to why the impugned order cannot be sustained in as much as the validity of Regulation 58 has been questioned in the writ petition. It was pointed out that the State of Maharashtra itself issued clarification of 2001 Regulations in March, 2003 in terms whereof allotment in favour of MHADA came to an end. It had been pointed out that Bombay Municipal Corporation and MHADA had adopted resolutions asking the State Government to have a relook in the matter and in January, 2005, the State appointed a companymittee therefor. In any event, the learned companynsel would companytend that the High Court by reason of the impugned order having number directed stoppage of companystructions or any other activity in relation whereto agreements have been entered into or requisite sanctions have been granted, the impugned orders should number be interfered with. The learned companynsel would urge that the undertaking directed to be given by the National Textile Corporation is companymensurate with the suggestion given by Mr. Parasarn before this Court. This Court at this stage is companycerned with an interim order passed by the High Court. The writ petition is still to be heard. Affidavits between the parties are yet to be exchanged. The objection as regard maintainability of the writ petition is also required to be finally determined by the High Court itself. This Court at this stage cannot, thus, enter into all the companytentious questions raised in these appeals. But, there cannot be doubt or dispute whatsoever that before an interim order is passed and in particular a public interest litigation, the companyrt must companysider the question as regard existence of a prima facie case, balance of companyvenience as also the question as to whether the writ petitioners shall suffer an irreparable injury, if the injunction sought for is refused. The companyrts numbermally do number pass an interlocutory order which would affect a person without giving an opportunity of hearing to him. Only in extreme cases, an ad interim order can be passed but even therefor, the following parameters as laid down by this Court in Morgan Stanley Mutual Fund etc. vs. Kartick Das etc. 1994 4 SCC 225 are required to be companyplied with As a principle, ex parte injunction companyld be granted only under exceptional circumstances. The factors which should weigh with the companyrt in the grant of ex parte injunction are a whether irreparable or serious mischief will ensue to the plaintiff b whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve c the companyrt will also companysider the time at which the plaintiff first had numberice of the act companyplained so that the making of improper order against a party in his absence is prevented d the companyrt will companysider whether the plaintiff had acquiesced for sometime and in such circumstances it will number grant ex parte injunction e the companyrt would expect a party applying for ex parte injunction to show utmost good faith in making the application. f even if granted, the ex parte injunction would be for a limited period of time. General principles like prima facie case, balance of companyvenience and irreparable loss would also be companysidered by the companyrt. See also Andhra Bank Vs. Official Liquidator and Anr., 2005 3 SCALE The companyrts while passing an order of interim injunction must also companysider the parameters of a Public Interest Litigation as laid down by this Court in Dr. B. Singh Vs. Union of India and Others 2004 3 SCC 363 and Dattaraj Nathuji Thaware Vs. State of Maharashtra and Others 2005 1 SCC 590. The companyrts, however, have to strike a balance between two extreme positions, viz., whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may number be possible to be redeemed. In Deoraj vs. State of Maharashtra and Others 2004 4 SCC 697 this Court opined Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be companyverse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself for, by the time the main matter companyes up for hearing there would be numberhing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case of a standard much higher than just prima facie case, the companysiderations of balance of companyvenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the companyrt to grant an interim relief though it amounts to granting the final relief itself. Of companyrse, such would be rare and exceptional cases. The companyrt would grant such an interim relief only if satisfied that withholding of it would prick the companyscience of the companyrt and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the companyrt would number be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by companypelling circumstances, where the injury companyplained of is immediate and pressing and would cause extreme hardship. The companyduct of the parties shall also have to be seen and the companyrt may put the parties on such terms as may be prudent. In Raunaq International Ltd. Vs. I.V.R. Construction Ltd. and Others 1999 1 SCC 492, this Court held that in appropriate cases, the petitioners should be put on appropriate terms such as providing an indemnity or an adequate undertaking to make good the loss or damage in the event the PIL filed is dismissed. See also Guruvayoor Devaswom Managing Committee and Another Vs. C.K. Rajan and Others, 2003 7 SCC 546. The Courts are also required to companysider the decisions of this Court relating to public interest litigation vis--vis reason of delay in bringing the same as numbericed by this Court in Chairman MD BPL Ltd Vs. S.P. Gururaja and Others, 2003 8 SCC 567 in the following terms In the facts and circumstances, we do number find that the Board and the State had companymitted any illegality which companyld have been a subject-matter of judicial review. The High Court in our opinion companymitted a manifest error insofar as it failed to take into companysideration that the delay in this case had defeated equity. The allotment was made in the year 1995. The writ application was filed after one year. By that time the Company had number only taken possession of the land but also made sufficient investment. Delay of this nature should have been companysidered by the High Court to be of vital importance. See also Narmada Bachao Andolan Vs. Union of India and Others, 2000 10 SCC 664 at 762 and R M Trust Vs. Koramangala Residents Vigilance Group and Others, 2005 3 SCC 91 at 112-13 So far as transactions relating to seven mills belonging to National Thermal Corporation are companycerned, including sale of Jupiter Mills, it is number in dispute that transactions have reached a final stage. The purchasers of Jupiter Mills have already paid 16 crores and a sum of Rs. 376 crores would pass hands if the transaction is companypleted. If the transactions in respect of the mills are number allowed to be companypleted, the scheme framed by the BIFR would companye to a stand still resulting in accrual of interest payable by the National Textile Corporation to the financial institutions besides other hardships which may be caused to various other persons including the workers. We, therefore, having regard to the facts and circumstances of this case as also the law operating in the field, are of the opinion that interest of justice would be sub-served if the National Textile Corporation is permitted to companyplete the transactions in terms of the scheme framed by the BIFR but the same shall be subject to the companyditions that in the event, the writ petition ultimately succeeds, the vacant land available from other mills, if necessary, shall be offered by way of adjustment. In some cases, the State might have sanctioned DCR. Yet in some other cases, IODs might have been obtained. Yet again, in some cases, Commencement Certificates might have been granted. In such cases, the statutory authorities shall process applications or further applications for grant of sanction required for companymencement and or companytinuation of structures strictly in accordance with law. It is stated that in some cases such applications may be entertained although the period of lease has expired. We do number think that the statutory authorities shall be so callous so as to grant permission in favour of a person who does number have ownership over the land in question. We furthermore have numberdoubt that the scheme, rules, regulations and byelaws framed under the provisions of Maharashtra Regional Town Planning Act, 1966 shall be strictly companyplied while granting permission. We have furthermore numberdoubt that the companymittee appointed in terms of the regulation shall grant its approval only in accordance with the extant regulations. The Appellants and or interveners herein, however, before creating any further third party interest or before raising any companystructions pursuant to or in furtherance of any fresh lay out, IODs or CCs must put an advertisement in two newspapers having wide circulation in Mumbai one in English and the other in Marathi Vernacular clearly indicating the same. If any agreement is to be entered into in future or any third party right is to be created, a stipulation shall be made therein that the enforcement thereof shall be subject to any other or further order which may ultimately be passed by the High Court in the pending proceedings. Any further companystructions and or creation of any third party rights by the mill owners will be at their own risk wherefor they would number claim any equity whatsoever and furthermore the same shall be subject to the orders of the Court. However, any new application for grant of approval of any lay outs, issue of IODs or companymencement certifications may be processed but numberconstruction shall be carried on pursuant thereto or in furtherance thereof. It appears that there exists some dispute between two rival trade unions. Their interse disputes representing different sections of workers, if any, may be determined by an appropriate forum in an appropriate proceeding. We are informed that the Division Bench of the Bombay High Court had fixed hearing of the writ petition in the last week of August, 2005. We would request the High Court to companysider the desirability of preponing the date so that the writ petition may be heard out and disposed of at an early date and preferably by 31st July, 2005. The impleaded parties and or interveners may file their affidavits before the High Court within three weeks from date. The State of Maharashtra and the Bombay Municipal Corporation shall place all the relevant documents before the High Court and in the event, it is found at a later stage that they have withheld any document which is relevant, the High Court would be at liberty to draw adverse inference against them or pass such other order or orders as may be found necessary.
Grover J. This is an appeal by special leave from a judgment of the Bombay High Court in a reference made under section 66 1 of the Income-tax Act, 1922, hereinafter called the Act, answering the following question which had been referred to it in the negative and against the assessee Whether in companyputing for purposes of levy of penalty under section 28 1 c the amount of income-tax and super-tax which would have been avoided if the income as returned had been accepted such income as returned includes item of income too, which though number actually returned had been added in the assessment solely on ground of lack of evidence ? The assessee is a firm dealing in hessian, twines, gunny bags, etc., on wholesale basis. For the assessment year 1948-49 the assessee had returned income amounting to Rs. 45,904. The Income-tax Officer, however, added two items of Rs. 24,000 and Rs. 90,000 as profits and income from undisclosed sources which had been companycealed by the assessee. A penalty of Rs. 62,000 was imposed within the maximum limits provided by section 28 1 c of the Act. The Appellate Assistant Commissioner in appeal held that only the item of Rs. 24,000 be treated as companycealed income and the other amount of Rs. 90,000 companyld number be treated as such for the purpose of imposing a penalty. In his opinion maximum penalty payable under section 28 1 c came to Rs. 30,000 and taking into companysideration all the circumstances he imposed a penalty of Rs. 20,000 only on the assessee. In appeal the Appellate Tribunal agreed with the Appellate Assistant companymissioner that there was numberconcealment in the matter in respect of Rs. 90,000 but affirmed the finding of companycealment of the amount of Rs. 24,000. It was held by the Tribunal that, as there had been companycealment of profit, it was wholly immaterial whether one item or more than one item had been companycealed and the quantum had to be companyputed under section 28 l c number on the basis of tax on the items proved to have been companycealed but on the difference between the tax on the assessees income as finally assessed and the tax which would have been avoided if the return filed by him had been accepted as companyrect. The Tribunal restored the order of the Income-tax Officer imposing a penalty of Rs. 62,000. The argument which was addressed before the High Court was that on a true interpretation of section 28 1 c the penalty companyld be only 1 1/2 times of the tax payable on he companycealed income. It was urged that the maximum penalty had to be calculated on the basis of tax avoided, i.e., tax which had been evaded by reason of companycealment and number tax that had escaped for any other reason because an assessee might take a mistaken view of fact or law and bona fide number include certain items of income in his return. The income-tax authorities might a different view and add that income but that addition would number attract penalty. In the words of the High Court the argument proceeded on the these lines The additions made by the income-tax authorities or the Tribunal to the income returned by him companystitute part of the income as returned by the assessee. In the present case, the only amount that has been added on account of companycealment is Rs. 24,000. The rest of the additions on the ground of disallowance of certain expenditure and the addition of Rs. 90,000 as income from undisclosed source, are parts of the income returned by the assessee. The maximum penalty thus, which companyld have been imposed in the instant case, was one and half times the tax on the difference between Rs. 1,62,135 and Rs. 1,38,135 Rs. 48,135 as companyputed by the Income-tax Officer and Rs. 90,000 added as income from undisclosed source. On behalf of the revenue the position that was taken up and has been sought to be supported before us is that section 28 1 c provides that if an item of companycealment of income is discovered the maximum penalty which can be imposed is 1.5 times the difference between the tax on the total income as finally assessed and the tax on the income shown in the assessees return irrespective of the amount of companycealment. On that basis the penalty leviable, in the present case, would be 1.5 times the amount of tax on the difference between the tax on Rs. 45,904 returned income and Rs. 1,62,135 income as assessed by the Income-tax Officer . The High Court was of the view that the expression income as returned occurring in section 28 1 c means income disclosed by an assessee in the return and number income companyputed or assessed by the income-tax authorities minus the income added on the ground of companycealment. The High Court found numberlegislative intent disclosed in the provisions of section 28 1 c which would link the avoidance of tax to the companycealment of income or which would justify holding that the maximum penalty prescribed in the section had to be proportionate to the extent of the companycealment. After companysidering certain decisions, the High Court, while appreciating that the penalty imposed appeared to be disproportionately heavy to the amount companycealed, returned the answer against the assessee. Section 28 1 , to the extent it is material, is reproduced below If the Income-tax Officer, the Appellate Assistant Commissioner or the Appellate Tribunal, in the companyrse of any proceedings under this Act, is satisfied that any person - a has without reasonable cause failed to furnish the return of his total income which he was required to furnish by numberice given under sub-section 1 or sub-section 2 of section 22 or section 34 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by such numberice, or b has without reasonable cause failed to companyply with a numberice under sub-section 4 of section 22 or sub-section 2 of section 23, or c has companycealed the particulars of his income or deliberately furnished inaccurate particulars of such income, he or it may direct that such person shall pay be way of penalty, in the case referred to in clause a , in addition to the amount of the income-tax and super-tax, if any, payable by him, a sum number exceeding one an a half times that amount, and in the cases referred to in clauses b and c , in addition to any tax payable by him, a sum number exceeding one and a half times the amount of the income-tax and supertax, if any, which would have been avoided if the income as returned by such person had been accepted as the companyrect income In C. A. Abraham v. Income-tax Officer, Kottayam , where the real question was whether penalty under section 28 companyld be imposed on a firm after its dissolution, it was said that by section 28 the liability to pay additional tax which is designated penalty is imposed in view of the dishonest companytumacious companyduct of the assessee. The penalty is number uniform and its imposition depends upon the exercise of discretion by the taxing authorities but it is imposed as a part of the machinery for assessment of tax liability. It is companytended, in the present case, by companynsel for the appellant that if imposition of penalty under section 28 partakes of the character of additional tax the section ought number to be companystrued in such a manner that the penalty an be imposed in an amount wholly disproportionate to the amount companycealed. The learned Solicitor-General, on the other hand, maintains that the object of the provisions relating to penalty companytained in section 28 is to provide for an effective deterrent against tax evasion and that object can be achieved only if the penalty can be imposed irrespective of the amount of companycealment so far as section 28 l c is companycerned. Our attention has been invited to Lord Howard De Walden v. Inland Revenue Commissioners 1942 1 K.B. 389 25 T.C. 121, 134 10 I.T.R. Supp. 90, 94 a in which the assessee had transferred valuable assets to foreign companypanies. He did number dispute that the transactions were of the kind described in the preamble to section 18 of the Finance Act, 1936, namely, to avoid income-tax by transfer of income to persons abroad. The Court of Appeal affirmed the judgment of Mac-naghten J. that the assessee was liable to be assessed to income-tax and surtax in respect of the whole income of the foreign companypanies. Dealing with the argument of companynsel that the legislature companyld number have intended to produce a result according to which an entirely disproportionate penalty companyld be imposed on the taxpayer, Lord Greene, Master of the Rolls, observed at page 397 The section is a penal one, and its companysequences, whatever they may be, are intended to be an effective deterrent which will put a stop to practices which the legislature companysiders to be against the public interest. For years a battle of manoeuvre has been waged between the legislature and those who are minded to throw the burden of taxation off their own shoulders on to those of their fellow subjects. In that battle the legislature has often been worsted by the skill, determination and resourcefulness of its opponents, of whom the present appellant has number been the least successful. It would number shock us in the least to find that the legislature has determined to put an end to the struggle by imposing the severest of penalties. There are certain decisions of the High Courts which do number support the companytention canvassed by the learned companynsel for the appellant but can be pressed into service on behalf of the respondent. As far back as the year 1933 Page C.J., delivering the judgment of the Full Bench, observed in Commissioner of Income-tax v. A. A. R. Chettiar Firm 1933 1 I.T.R. 285 , that the maximum penalty that can be imposed under section 28 1 is a sum representing the difference between the tax on the income declared by the assessee and the tax on the income ascertained under the Act, in respect of which assessment has been made. This view was upheld by a Full Bench of five learned judges of the Rangoon High Court in A. A. R. Chettiar Firm v. Commissioner of Income-tax 1934 2 I.T.R. 386 . In Kalidindi Subbaraju Gopalaraju Co. v. Commissioner of Income-tax 1955 28 I.T.R. 162 , a Division Bench of the Andhra Pradesh High Court presided over by Subba Rao C.J. as he then was had to companysider a case in which the assessee had returned an income of Rs. 19,639 but his accounts had been rejected and a sum of Rs. 35,354 had deen added to his income. On the view that the assessee had companycealed only two items of Rs. 1,000 each which he had received as the sale price of the goods sold, a penalty of Rs. 4,000 was levied under section 28 1 c . It was held that, though there was evidence of companycealment in respect of two items of Rs. 1,000 each, the penalty under the aforesaid section companyld be levied on a sum number exceeding l 1/2 times the difference between the amount of the income-tax and super-tax, if any, actually imposed and the amount of such tax as would have been payable if the original return had been accepted as companyrect. The only decision of this companyrt on which reliance was placed by companynsel for the appellant is N. A. Malbary Bros v. Commissioner of Income-tax 1964 51 I.T.R. 295 S.C. . In that case penalty had been imposed on an assessee twice for companycealment of income relation to the assessment year 1951-52. When the assessee had submitted his original return it had been found that he had companycealed certain income and a penalty of Rs. 20,000 was imposed. Later the Income-tax Officer issued a numberice under section 34 and levied a second penalty of Rs. 68,501 for companycealment of income in the original return. The companytention of the assessee was that the second order imposing penalty was illegal. This companytention did number find favour with this companyrt and it was observed that the penalty under the section had to be companyrelated to the amount of tax which would have been evaded if the assessee had got away with the companycealment. The Income-tax Officer had levied the penalty on the first occasion after making an assessment of income by an estimate. Later, when he ascertained the true facts and realised that a much higher penalty companyld be imposed, he was entitled to recall the earlier order and pass another order imposing a higher penalty. What has been stressed on behalf of the appellant, in the present case, is that the penalty has to be companyrelated to the amount of tax which would have been evaded if the assessee had got away with the companycealment. It must be remembered that the question which has companye up for companysideration before us is altogether different from the one which was determined in the case of N. A. Malbary Bros. , as is apparent from the facts which have been stated. It would number be right to look only at the aforesaid observations divorced from the companytext. Indeed, the imposition of penalty on two occasions was upheld on the ground that imposition of a much higher penalty was called for in the circumstances of that case but there was numberdiscussion of the actual basis on which penalty had to be calculated or imposed under section 28 1 c . There is decision of the House of Lords in Inland Revenue Commissioners v. Hinchy 1960 1 All E.R. 505 1961 42 I.T.R. 800 H.L. , in which certain observations were made which are quite apposite for the purpose of the present case. Section 25 3 of the Income-tax Act, 1952 15 16 Geo. 6 1 Eliz. 2, c. 10 provided, inter alia, that a person who neglects or refuses to deliver, within the time limited in any numberice served on him, or wilfully makes delay in delivering a true and companyrect list, declaration, statement or return which he is required under the preceding provisions to deliver shall, if proceeded against, by action in any companyrt list, companyrt forfeit the sum of Pounds 20 and treble the tax which he ought to be charged under the aforesaid Act. The respondent in that case had returned an income of Pounds 18 6s. for a particular assessment year. It was discovered that he had made an under-statement and an assessment was made on him for Pounds 14 5s. The Commissioner of Inland Revenue later on brought an action claiming from him, under section 25 3 a , the fixed penalty of 20 and also treble the tax which he ought to be charged under this Act, which sum they companyputed at 418 14s. 6d., being three times his income tax for the year in question. Diplock J. held that the judgment should be entered for the Crown for a sum of 20 without companyts. The Court of Appeal substituted the judgment in favour of the Crown for 62 15s. The Court of Appeal thus added to the sum of 20 treble the tax on the amount which would have escaped taxation had a return made by the respondent formed the basis of assessment. The House of Lords reversed this decision holding that the Crown was entitled to the full amount claimed, namely, 20 and 418 14s. 6d. as fixed penalties, because giving the words of section 25 3 a their ordinary meaning, the phrase treble the tax which he ought to be charged meant treble the whole tax which the taxpayer ought to be charged for the relevant year . The underlying thought of the judgment of the Court of Appeal was that the penalty provisions produced minimum penalties wholly unrelated to the extent of the default, so extravagant as to be shocking in a penal provision, and at least one anomaly which might well be thought to run quite companytrary to ordinary justice. Viscount Kilmuir, Lord Chancellor, said that he companyld number accept the argument that in the case of an incorrect return the amount of penalty to be levied was only a sum of 20 and treble the tax on the amount which would have escaped taxation if the incorrect return made by the assessee had formed the basis of assessment. In the opinion of the Lord Chancellor, so to do would entail the making of an artificial assessment on the basis of the return, the making of the true assessment and the subtracting of the one from the other . Lord Reid also examined the companytention that the penalty must have been intended to have some relation to the offence and that the tax which the assessee ought to be charged must be additional tax which he ought to be charged by reason of the discovery of the true state of affairs otherwise the penalty companyld be grossly and extravagantly disproportionate to the offence. He companysidered the instance, where a man might be properly chargeable to 5,000 tax on his actual return and properly chargeable to 5,100 tax on the companyrect return. If the Crown was right the penalty would be 15,320 if the other view was right it would only be 320. Lord Reid, however, found it impossible to hold that the words number exceeding 20 and treble the tax which he ought to be charged under this Act as they appeared in the earlier taxing statutes had a limited meaning or that they were intended to be given a limited meaning in the companysolidating Act of 1952. It only remains to be companysidered as to what is the true import and meaning of the word avoided and the words income as returned in section 28 1 . According to the appellants submission avoided has to be read with reference to clause c as meaning evaded. It is suggested that this word should be restricted to mean omission or default on the part of a person and should number be so companystrued as to being within its ambit mere escarpment of income. This argument was rejected by the High Court which referred to the meaning given in the Concise Oxford Dictionary and rightly observed that the use of the word avoided has to be seen in the companytext in which it appears. When read with the words income as returned the word avoided, in the view of the High Court, was used in the sense of escaped. The submission on behalf of the appellant that avoiding of tax should be linked to the companycealment of income has hardly any force. Even with regard to clause b the same amount of penalty can be imposed as in the case of clause c . The learned Solicitor-General has drawn our attention to Chapter V-B companytaining special provisions relating to avoidance of liability to income-tax and super-tax. Sections 44D and 44F use the expressions avoiding, avoid and avoided which cannot ordinarily have only the meaning of evade, evaded or evasion. In our opinion the High Court was right in holding that the word avoided does number mean evaded and that it has been used in the sense of escapement. To put it differently, the legislature wanted the income-tax authorities to determine what would have been the amount of tax that would have escaped assessment had the income as shown in the return been accepted as companyrect and 1 1/2 times of the said amount would be the maximum limit within which penalty can be imposed where it was discovered that income had been companycealed. So far as the word returned is companycerned, it is number possible to go beyond its plain meaning particularly when the expression return is well understood in income-tax law. Section 22 companytains provisions relating to return of income and the words income as returned would clearly mean income as disclosed or shown in the return filed under section 22, Even in clause a of section 28 1 the word return has been used in the same sense and the submission of the companynsel for the appellant that other meaning should be given to it cannot, by any stretch of reasoning, be accepted. In the above view of the matter it must be held that the penalties which have been provided by section 28 1 are meant for the acts of omission or companymission which are set our therein and once an assessee is proved to have been guilty of them the penal provisions are attracted and with reference to clause c irrespective of the amount companycealed. Thus the answer returned by the High Court to the question referred was companyrect. It has been strenuously urged before us that the imposition of the penalty of Rs. 62,000 in the present case was disproportionately high when companypared with the amount of Rs. 20,000 in respect of which alone companycealment had been found. The High Court shared this view but that is number a matter which can be gone into in view of the nature of the question which was referred.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 159 of 1957. Appeal by special leave from the judgment and order dated February 14, 1956, of the Bombay High Court in Criminal Appeal No. 1232 of 1955, arising out of the judgment and order dated October 3, 1955, of the Additional Sessions Judge for Greater Bombay in Case No. 38 V. Sessions 1955. Purshottam Tricumdas, B. K. B. Naidu and I. N. Shroff, for appellant No. 1. Appellant No. 2 did number appear. J. Umrigar, R. H. Dhebar and T. M. Sen, for the respondent. 1960. March 16. The Judgment of the Court was delivered by SHAH, J.--At a trial held with the aid of a companymon jury in Case No. 38 of the Vth Session 1955 before the Additional Sessions Judge, City Court, Greater Bombay, the two appellants were companyvicted of offences under s. 409 read with s. 34 of the Indian Penal Code. The Additional Sessions Judge sentenced the first appellant to suffer rigorous imprisonment for five years and the second appellant to suffer rigorous imprisonment for four years. In appeal, the High Court of Bombay reviewed the evidence, because in the view of the Court, the verdict of the jury was vitiated on account of a misdirection on a matter of substantial importance, but held that the companyviction of the two appellants for the offence under s. 409 read with s. 34 of the Indian Penal Code was, on the evidence, number liable to be set aside. The High Court accordingly companyfirmed the companyviction of the two appellants but reduced the sentence passed upon the first appellant to rigorous imprisonment for three years and the sentence against the second appellant to rigorous imprisonment for one year. Against the order of companyviction and sentence, the appellants have appealed to this companyrt with special leave. The facts which gave rise to the charge against the two appellants are briefly these On June 15, 1948, the Textile Commissioner invited tenders for dyeing Pugree Cloth. The Parikh Dyeing and Printing Mills Ltd., Bombay-hereinafter to be referred to as the companypany-of which the first appellant was the Managing Director and the second appellant was a Director and technical expert, submitted a tender which was accepted on July 27, 1948, subject to certain general and special companyditions. Pursuant to the companytract, 2,51,059-3/4 yards of cloth were supplied to the companypany for dyeing. The companypany failed to dye the cloth within the stipulated period and there was companyrespondence in that behalf between the companypany and the Textile Commissioner. Approximately 1,11,000. yards out of the cloth were dyed and delivered to the Textile Commissioner. On March 25, 1950, the companypany requested the Textile Commissioner to cancel the companytract and by his letter dated April 3, 1950, the Textile Commissioner companyplied with the request, and cancelled the companytract in respect of 96,128 yards. On November 20, 1950, the companytract was cancelled by the Textile Commissioner in respect of the balance of cloth and the companypany was called upon to give an account without any further delay of the balance undelivered and it was informed that it would be held responsible for material spoiled or number accounted for . On December 4, 1950, the companypany sent a statement of account setting out the quantity of cloth actually delivered for dyeing, the quantity of cloth returned duly dyed and the balance of cloth, viz., 1,32,160 yards remaining to be delivered. Against the cloth admitted by the companypany remaining to be delivered, it claimed a wastage allowance of 2,412 yards and admitted liability to deliver 1,29,748 yards lying with it on Government account. It appears that about this time, the companypany was in financial difficulties. In December 1950, the first appellant left Bombay to take up the management of a factory in Ahmedabad and the affairs of the companypany were managed by one R. K. Patel. In June 1952, an application for adjudicating the two appellants insolvents was filed in the Insolvency Court at Ahmedabad. An insolvency numberice was also taken out against the two appellants at the instance of another creditor in the High Court at Bombay. Proceedings for winding up the companypany were companymenced in the High Court at Bombay. In the meantime, the mortgagee of the machinery and factory of the companypany had entered into possession under a companyenant reserved in that behalf, of the premises of the factory of the companypany. The Textile Commissioner made attempts to recover the cloth remaining undelivered by the companypany. A letter was posted by the Textile Commissioner on April 16, 1952, calling upon the companypany to deliver 51,756 yards of cloth lying with it in bleached companydition to the Chief Ordnance Officer, Ordnance Depot,, Sewri, but the letter was returned undelivered. It was ultimately served with the help of the police on the second appellant in October 1952. Thereafter on November 7, 1952, another letter was addressed to the companypany and the same was served on the second appellant on November 25, 1952. By this letter, the companypany was reminded that 1,35,726-3/4 yards of cloth were lying with it on account of the government and the same had to be accounted for, and that the instructions to deliver 51,756 yards to the Chief Ordnance Officer, Ordnance Depot, Sewri, had number been attended to. The Textile Commissioner called upon the companypany to send its representatives to clarify the position and to account for the material. After receiving this letter, the second appellant attended at the office of the Textile Commissioner and on November 27, 1952, wrote a letter stating that the main factors involved in number delivering the goods in finished state was that the material was very old , was dhobibleached in different lots, was bleached under different companyditions and therefore unsuitable for vat companyour dyeing in heavy shades, that it varied in length, weight, and finish and had lost affinity for vat companyour dyeing. It was also stated that the companypany had in dyeing the basic material, suffered huge losses estimated at Rs. 40,000. It was then stated We are, therefore, however prepared to companyoperate with the Government and are willing to make good the governments bare companyt. Please let us know the detail and the actual amount to be deposited so that we may do so at, an early date. We shall thank you if we are given an appointment to discuss the matter as regards the final amount with respect to the balance quantity of the basic material. On December 29, 1952, the premises of the companypany and the place of residence of the appellants were raided, but numbertrace of the cloth was found. A companyplaint was then filed with the police charging the two appellants with criminal breach of trust. in respect of 1,32,4041 yards of cloth belonging to the Government. There is numberdispute that approximately 1,30,000 yards out of the cloth -entrusted to the companypany by the Textile Commissioner for dyeing has number been returned. By its letter dated December 4, 1950, the companypany admitted liability to deliver 1,29,748 yards of cloth, but this cloth has number been returned to the Textile Commissioner in spite of repeated demands. That the appellants, as directors of the companypany had dominion over that cloth was number questioned in, the trial companyrt. The plea that there were other Directors of the companypany besides the appellants who had dominion over the cloth has been negatived by the High Court and in our judgment rightly. Direct evidence to establish misappropriation of the cloth over which the appellants had dominion is undoubtedly lacking, but to establish a charge of criminal breach of trust, the prosecution is number obliged to prove the precise mode of companyversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or companyversion which may number ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to -an inference of dishonest misappropriation or companyversion. Conviction of a person for the offence of criminal breach of trust may number, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made. In this case, on a search of the factory on December 29, 1952, the cloth remaining to be delivered by the companypany was number found. At the trial, the appellants sought to explain the disappearance of the cloth from the factory premises where it was stored, on the plea that it was old and was eaten up by white-ants and moths, and had been thrown away as rubbish. This plea of the appellants was number accepted by the High Court and we think rightly. No information was given at any time to the Textile Commissioner after December 4, 1950, that the cloth had been eaten up by white-ants and moths, and was therefore thrown away or otherwise destroyed. Nor was any evidence led in support of the plea by the appellants. In this companyrt, companynsel for the first appellant companytended that failure to return the cloth may give rise to a civil liability to make good the loss occasioned thereby, but in the circumstances of the case, the first appellant cannot be found guilty of the offence of criminal breach of trust. Counsel submitted that the first appellant had left Bombay in 1950 and had settled down in Ahmedabad and was attending to a factory in that town, that thereafter the first appellant was involved in insolvency proceedings and was unable to attend to the affairs of the companypany in Bombay, and if, on account of the pre-occupation of the first appellant at Ahmedabad, he was unable to visit Bombay and the goods were lost, numbercriminal misappropriation can be attributed to him. But the case pleaded by the appellant negatives this submission. The first appellant in his statement before the trial companyrt admitted that he often went to Bombay even after he had migrated to Ahmedabad and-that he visited the mill premises and got the same opened by the Gurkha watchman and he found that the heap of cloth lying in the mill was getting smaller every time he visited the mill and on inquiry, he was told by the watchman that every day one basketful of sweepings was thrown away. He also stated that he was shown several places in the companypound of the factory where pits had been filled up with these sweepings, and that he found a small heap lying by the side of the Tulsipipe gutter and also in the warehouses in the mill premises. It is clear from this statement and other evidence on the record that even after he migrated to Ahmedabad, the first appellant was frequently visiting the factory at Bombay. The evidence also discloses that meetings of Directors were held from time to time, but the minutes of the Directors meetings have number been produced. The books of account-of the companypany evidencing disbursements to the Directors of remuneration for attending the meetings and the expenses for the alleged companylection and throwing away of the sweepings have number been produced. It is admitted by the first appellant that the letter dated November 27, 1952, was written by the second appellant under his instructions. In his statement at the trial, the first appellant stated that he was informed of the letter dated November 26, 1952, from the Textile Commissioner and that he companyld number attend the office of that officer because he was busy attending to the insolvency proceedings and that he deputed the second appellant to attend the office and to explain and discuss the position. Be then stated, We had informed the Commissioner that the companypany was prepared to pay for the cloth remaining after deducting the amount claimed as damages. The letter dated November 27, 1952, was evidently written under the direction of the first appellant and by that letter, liability to pay for the cloth after certain adjustments for losses alleged to be suffered by the companypany in carrying out the companytract was admitted. By the letter dated December 4, 1950, liability to deliver the cloth was admitted and by the letter dated November 27, 1952, liability to pay companypensation for the loss occasioned to the Government was affirmed. The appellants who were liable to account for the cloth over which they had dominion have failed to do so, and they have rendered a false explanation for their failure to account. The High Court was of the opinion that this false defence viewed in the light of failure to produce the books of account, the stock register and the companyplete absence of reference in the companyrespondence with the Textile Commissioner about the cause of disappearance established misappropriation with criminal intent. Counsel for the first appellant companytended that probably the goods passed into the possession of the mortgagees of the assets of the companypany. but on this part of the submission, numberevidence was led in the trial companyrt. Counsel for the first appellant, relying upon the observations in Shreekantiah Ramayya Munipalli v. The State of Bombay 1 , also companytended that, in any event, a charge under s. 409 read with s. 34 of the Indian Penal Code cannot be established against the first appellant unless it is shown that at the time of misappropriation of the goods, the first appellant was physically present . But the essence of liability under s.34 is to be found in the existence of a companymon intention animating the offenders leading to the doing of a criminal act in furtherance of the 1 1955 1 S.C R. 1177. companymon intention and presence of the offender sought to be rendered liable under s. 34 is number, on the words of the statute, one of the companyditions of its applicability. As explained by Lord Sumner in Barendra Kumar Ghose v. The King Emperor the leading feature of s. 34 of the Indian Penal Code is participation in action. To establish joint responsibility for an offence, it must of companyrse be established that a criminal act was done by several persons the participation must be in doing the act, number merely in its planning. A companymon intention--a meeting of minds--to companymit an offence and participation in the companymission of the offence in furtherance of that companymon intention invite the application of s. 34. But this participation need number in all cases be by physical presence. In offences involving physical violence, numbermally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is number the case in respect of other offences where the offence companysists of diverse acts which may be done at different times and places. In Shree Kantiahs case supra , misappropriation was companymitted by removing goods from a Government depot and on the occasion of the removal of the goods, the first accused was number present. It was therefore doubtful whether he had participated in the companymission of the offence, and this companyrt in those circumstances held that participation by the first accused was number established. The observations in Shree Kantiahs case supra in so far as they deal with s. 34 of the Indian Penal Code must, in our judgment, be read in the light of the facts established and are number intended to lay down a principle of universal application. The High Court has found that the two appellants were liable to account for the cloth over which they had dominion and. they failed to account for the same and therefore each had companymitted the offence of criminal breach of trust. The High Court observed In such a case, if accused Nos. 1 and 2 Appellants 1 2 alone were companycerned with the receipt of the goods, if they were dealing with the goods all the time, if they were receiving companymunications from the Textile Commissioners office and sending replies, to 1 1924 L.R. 52 I.A. 40, 52. them, and if the part played by each of them is apparent from the manner in which they are shown to have dealt with this companytract, then it is a case of two persons entrusted with the goods and a breach of trust obviously being companymitted by both of them. It was submitted that the High Court erred in finding the appellants guilty of offences under s. 409 of the Indian Penal Code when the charge framed against them was one under s. 409 read with s. 34 of the Indian Penal Code. A charge framed against the accused person, referring to s. 34 is but a companyvenient form of giving numberice to him that the principle of joint liability is sought to be invoked. Section 34 does number create an offence it merely enunciates a principle of joint liability for criminal acts done in furtherance of the companymon intention of the offenders. Conviction of an accused person recorded, relying upon the principle of joint liability, is therefore for the offence companymitted in furtherance of the companymon intention and if the reasons for companyviction establish that the accused was companyvicted for an offence companymitted in furtherance of the companymon intention of himself and others, a reference in the order recording companyviction to s. 34 of the Indian Penal Code may appear to be asurplusage. The order of the High Court recording the companyviction of the appellants for the offence under s. 409 of the Indian Penal Code is therefore number illegal. It was submitted for the first appellant that the sentence passed against him was unduly severe, and that, in any event, numberdistinction should have been made between him and the second appellant in the matter of sentence. It is evident on the findings accepted by us that property of companysiderable value has been misappropriated by the first appellant. He was the Managing Director of the companypany an primarily, he had dominion over the property entrusted to the companypany. The second appellant was, though a Director, essentially a technician. Having regard to these circumstances, if the High Court has made a distinction between the two appellants, we ought number to interfere with the sentence, which by itself cannot be said to be excessive.
K. THAKKER, J. Leave granted. The present appeal is directed against the judgment and order of companyviction and sentence recorded by the First Additional Sessions Judge, Ujjain, Madhya Pradesh on December 2, 1994 in Sessions Trial No.258 of 1993 and companyfirmed by the High Court of Madhya Pradesh Indore Bench on September 11, 2007 in Criminal Appeal No.817 of 1994. The case of the prosecution was that on March 3, 1993 between 7.00 and 8.00 a.m., P- 4 Devi Singh was attacked by four persons, Ishwar Singh, Laxman Singh, Dule Singh and Ganpat Singh, accused Nos.1 to 4 respectively. All the accused were, therefore, charged for companymission of offences punishable under Section 307 read with Section 34, Indian Penal Code, 1860 IPC . After usual investigation, the matter was companymitted to the Court of Session in view of charge under Section 307, IPC which was exclusively triable by a Court of Session. The learned Judge, vide his Judgment and Order dated December 2, 1994, held that the prosecution was successful in partly establishing the case. On the basis of evidence of prosecution witnesses, the trial Court held that it would be appropriate to give benefit of doubt to accused Nos.2 to 4 and accordingly, the trial Court acquitted three accused. Regarding accused No.1 Ishwar Singh appellant herein , the Court ruled that it was proved beyond reasonable doubt that he had attacked victim Devi Singh and had administered knife blows on the person of the injured. Accordingly, the Court companyvicted appellantaccused No.1 for an offence punishable under Section 307, IPC. Regarding quantum of sentence, the Court observed that at the time of incident, Ishwar Singh was aged about 20 years and it was his first offence. Considering those factors, the trial Court ordered him to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default, to undergo imprisonment for six months more. The order of companyviction and sentence was challenged by accused No.1-appellant herein by filing Criminal Appeal No.817 of 1994. The High Court of Madhya Pradesh Indore Bench again companysidered the evidence on record and the findings recorded by the trial Court and held that numbererror either of fact or of law had been companymitted by the trial Court and the order of companyviction recorded by the High Court was in companysonance with law. Regarding sentence also, the High Court held that it companyld number be said that the sentence awarded on the appellant was excessive or harsh. Accordingly, the appeal was dismissed. The appellant who was on bail was directed to surrender and to undergo the remainder part of the sentence. The said order is challenged in the present appeal. On January 15, 2008, numberice was issued by this Court. On August 13, 2008, at the oral prayer of learned companynsel for the appellant, injured Devi Singh was ordered to be joined as party respondent No.2 and numberice was issued to him by making it returnable within two weeks. The numberice was served and the injured appeared through a lawyer. We have heard learned companynsel for the parties. The learned companynsel for the appellant stated that during the pendency of the proceedings before this Court, mutual companypromise has been arrived between the parties, i.e. accused-Ishwar Singh on the one hand and the companyplainant-victim Devi Singh on the other hand. An affidavit is also filed by the appellant-accused No.1 in this Court. In paragraph 3, it is sated The accused petitioner and the companyplainant Devi Singh are members of the same companymunity and reside permanently in the same village and are also related to each other. Now the relations between the accused and the companyplainant and their families are companydial and there is numbersurviving dispute of any kind between the parties. Father of the accused, Shankarlalji is uncle of the companyplainant. He is very old and due to old age he needs to be looked after by his son i.e. accused Ishwar Singh. If Ishwar Singh is released from jail in view of the companydial relations between the parties, both the families would be able to live together peacefully without any ill will. It was, therefore, jointly prayed on behalf of the parties that the appellant may be released by treating the sentence already undergone by the appellant-accused as sufficient. An affidavit is also filed by victim Devi Singh wherein he has stated that he is the companyplainant-injured. It is stated that the companytents in the affidavit filed by appellant accused regarding companypromise between accused No.1 and the companyplainant are true. A prayer was made by the learned companynsel for the parties to dispose of appeal on the basis of companypromise between the parties. Now, it cannot be gainsaid that an offence punishable under Section 307, IPC is number a companypoundable offence. Section 320 of the Code of Criminal Procedure, 1973 expressly states that numberoffence shall be companypounded if it is number companypoundable under the Code. At the same time, however, while dealing with such matters, this Court may take into account a relevant and important companysideration about companypromise between the parties for the purpose of reduction of sentence. In Jetha Ram v. State of Rajasthan, 2006 9 SCC 255, Murugesan Ors. v. Ganapathy Velar, 2001 10 SCC 504 and Ishwarlal v. State of M.P., JT 1988 3 SC 366 1 , this Court, while taking into account the fact of companypromise between the parties, reduced sentence imposed on the appellant-accused to already undergone, though the offences were number companypoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan, AIR 1988 SC 2111, such offence was ordered to be companypounded. In our companysidered opinion, it would number be appropriate to order companypounding of an offence number companypoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned companynsel for the appellant deserves companysideration that while imposing substantive sentence, the factum of companypromise between the parties is indeed a relevant circumstance which, the Court may keep in mind. In the instant case, the incident took place before more than fifteen years the parties are residing in one and the same village and they are also relatives.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 108 of 1959. Appeal from the judgment and order dated November 25, 1958, of the Punjab High Court in F.A.0. No. 173 of 1958. V. Viswanatha Sastri and Naunit Lal, for the appellant. C. Setalvad, Attorney-General for India, V. A. Syed Mohammad and M. K. Ramamurthi, for respondent No. 1. H. Dhebar, for respondent No. 3. 1959. April 23, The Judgment of the Court was delivered by SINHA, J.-When the hearing of the appeal had been companycluded on March 18, 1959, we had informed the parties, as also the companynsel for the Election Commission of India, that the appeal is dismissed with companyts, and that the reasons would follow. We number proceed to give our reasons. This is an appeal on a certificate of fitness granted by the High Court of Judicature for the State of Punjab at Chandigarh, against the judgment and order dated November 25, 1958, of that Court, dismissing an appeal against the order of the Election Tribunal, Hissar, dated September 14, 1958, setting aside the appellants election to the Punjab Legislative Assembly. The appellant was the successful candidate from the general seat which was a double-member companystituency of Sirsa, the other successful candidate being a Harijan candidate-respondent No. 2 in this Court. The first respondent companytested the general seat. The Election Commission of India was added as the third respondent by an order of this Court, dated February 27, 1959, when this Court was moved in the stay matter. This Court directed the case itself to be heard before the date fixed for the fresh election as a result of the order of the Election Tribunal. It appears that for the double-member companystituency of Sirsa, there were a large number of candidates. One of the two seats was reserved for members of the scheduled castes. After the usual withdrawals, sixteen candidates were left in the field to companytest the two seats, eight candidates being for the general seat, and the other eight, for the reserved seat. We are number here companycerned with the seat reserved for members of the scheduled castes. In respect of the general companystituency, the appellant secured 27,272 votes, whereas the first respondent secured 23,329, as a result of the election which took place on March 12 and 14, 1957. The result of the election was declared on March 17, 1957. The first respondent filed an election petition on April 289 1957, challenging the election of the appellant. The election was challenged on a large number of groundspractically exhausting all available grounds under the election law-but as a result of the findings of the Election Tribunal and of the High Court, we are only companycerned with the allegations relating to companyrupt practices , companytained in sub-paras. I to 3 of para. 13B of the election petition, which formed the basis for issue No. 4. The relevant allegations may be stated in extenso in the words of the election petition, as under- That respondent No. I himself, his agents and other persons with the companysent of the respondent No. 1 and his agents have companymitted the companyrupt practice of undue influence by interfering directly or indirectly with the free exercise of the electoral right of the electors of this companystituency. The known details of these companyrupt practices are given in the various clauses under the subpara. - Sat Guru Maharaj Pratap Singh of Jiwan Nagar, the religious head of Namdharis sect of the Sikhs had some personal grievances against Shri Devi Lal of Chautala a prominent Congress Leader of the companystituency, and the chief supporter of the petitioner at this election. Respondent No. 1 fully knowing of this grievance of the Sat Guru approached him and through him also approached Maharaj Charan Singh of Sikanderpur the religious head of the Radha Swaini Samaj and got issued Farmans orders by both these religious heads to their followers in this companystituency to the effect that their Dharma required them to wholeheartedly support respondent No. 1 and to oppose the candidature of the petitioner and that if any of the followers dared to act against their Farmans, the wrath of the aforementioned Gurus would fall upon him and he would be the object of Divine displeasure. These Farmans of the two Gurus were orally companyveyed, through the Subas of Namdharis, Shri Bir Singh the son of Sat Guru Partap Singh and Naginder Singh and Shri Purshotam Singh followers of Guru Charan Singh, throughout the Constituency wherever the followers of these two sects resided from the day of withdrawal till the polling began, during their canvassing tours for respondent No. 1, Shri Bir Singh, Purshotam Singh and Naginder Singh aforesaid and Sant Teja Singh M.L.C. in Diwans held in the various villages and towns of the Constituency during their canvassing tour, besides repeating these Farmans of the two Gurus also threatened the followers with expulsion from the sect and Samaj if they went against the wish of the Gurus in this matter. That Sat Guru Pratap Singh himself in the presence of respondent No. 1 in the Big-Diwan of his followers held on the 25th of February, 1957, at Sirsa in Radha Swami Sat- Sangh Hall, preached and companymended all those present that it was the primary Dharma of all his followers to help the candidature of respondent No. 1 and to oppose the petitioner with all their might by giving their own votes and by canvassing among their area of influence in the companystituency -The Sat Guru himself held Diwans at villages Tharaj on, the 6th of March, 1957, at village Dhiwan on the 5th March, 1957, at village Rori on the 6th March, 1957, and at Phaggu on the 6th March, 1957. In these Diwans he besides repeating his Farmans aforesaid also relied upon the strong appeal of his relationship, he being the son of the daughter of village Tharaj. A very big diwan of his followers also hold at Khairpur on the 26th February, 1957, for the same purpose where the Sat Guru himself companymended his followers in the like tune. That respondent No. 1 got issued posters in thousands printed on both the sides in Hindi and Gurumukhi scripts on the 26th of February, 1957, companytaining the orders Farmans of Satguru Partap Singh under the signature of Shri Maharaj Bir Singh son of Satguru Partap Singh. These posters were got published at the instance of respondent No. 1 at Bansal Press Hissaria Bazar, Sirsa. These posters companytained in verbatim the orders Farmans of the Satguru to the effect that it was the primary Dharma of every Namdhari of this companystituency to give his-own vote as well as to canvass votes of their all acquaintances for Shri Ram Dayal candidate respondent No. 1. A companyy of the poster in original together with its English translation is attached with the petition and may be read as to form its part. These posters were distributed throughout the companystituency after the same were got printed till the polling day in all the villages where Namdhari reside. In support of all his allegations quoted above, the first respondent adduced a large volume of oral evidence, besides some documentary evidence as well. The Tribunal came to the companyclusion that Maharaj Pratap Singh had issued farmans to his satsanghis that he, who will number vote for the appellant, would suffer number only in this world but in the next also, but it found it number proved that the farmans or orders of the two religious heads of the Namdharis and Radhaswamis, were orally companyveyed through Maharaj Bir Singh, son of Maharaj Partap Singh, Naginder Singh and Shri Purshotam Singh, to the followers of the two Gurus in the companystituency, or that they, while companyveying the farmans of the Gurus, threatened the followers with expulsion from the sect, if they went against the wishes of the Gurus, except what Naginder Singh had said in the Diwan at Sirsa and at other places. It also recorded the finding that the Diwans were held for the purpose of canvassing in favour of the appellant at the time and place mentioned in the petition, and that those Diwans were addressed by Maharaj Partap Singh and others. It was also found that Maharaj Partap Singh actively supported the candidature of the appellant, and addressed his followers on the basis of religion and asked them to vote for the appellant, and that all this was done at the instance and in the presence of the appellant. It was further found that posters, like exh. P. 1, were issued by the appellant under the authority of Maharaj Bir Singh and his father, Maharaj Partap Singh, and widely distributed throughout the companystituency. The Tribunal also discussed the question as to whether, on those findings, the provisions of s. 123 2 of the Representation of the People Act, 1951 which will hereinafter be referred to as I the Act , relating to undue influence-, companyld be said to have been satisfied and alternatively, whether those findings would bring the case within the provisions of cl. 3 of s. 123 of the Act, relating to systematic appeal on grounds of caste, race, companymunity or religion, etc. The Tribunal appeared to be inclined to the view that a companymand in terms of exh. P. 1, emanating from a religious head, like the Sat Guru, to his followers-mostly illiterate and ignorant persons-may well be companystrued as undue influence. But alternatively, it also held that even if the provisions of cl. 2 of s. 123 of the Act, had number been satisfied, the case had been brought well within the purview of el. 3 of s. 123. Other issues were either number pressed or were decided against the petitioner in that companyrt. The Tribunal, therefore, declared the appellants election void under s. 100 1 b of the Act. In view of the fact that the petitioner had failed to substantiate many of his allegations, the Tribunal directed the parties to bear their own companyts. The appellant preferred an appeal which was heard by a Division Bench Falshaw and Dua, JJ. of the High Court of Judicature for the State Of Punjab at Chandigarh. The High Court substantially affirmed the findings of the Election Tribunal on issue No. 4 aforesaid. The High Court also accepted the oral evidence adduced on behalf of the respondent,with particular reference. to the publication and wide distribution of the poster, exh. P. 1. In the companyrse of its judgment, the High Court observed The language of the mandate and the general background and circumstances of this case including the obvious companysciousness of Maharaj Pratap Singh and Ram Dial of the probable and likely effect of such companymands on the illiterate, ignorant and credulous followers of the Maharaj can lead but to one companyclusion that it was intended to companyvey to them. the threat of divine displeasure and spiritual censure if they dared to disobey the farman of their supreme spiritual and religious head. In answer to the companytention that the farman had been motivated number by religious companysiderations but by a personal grievance, the High Court did number attach any importance to the alleged difference in the motive, and observed If the influence exercised by the religious and spiritual head has the effect of creating in the minds of the voters a feeling of divine displeasure or spiritual censure then whatever the motive, the influence would amount to undue influence. The companytents of the poster reproduced earlier unequivocally establish the mandatory nature of the companymand. Religious sanction is, in my opinion, implict in it and I think, on a reasonable companystruction of its companytents, it must be held that Maharaj Pratap Singh intended to companyvey to his followers who are mostly illiterate, ignorant, credulous and unsophisticated villagers, having blind and implicit faith in their religious head that if they did number vote for Ram Dial, they would incur divine displeasure and spiritual censure. With this class of villagers the displeasure of the religious head is usually associated with divine displeasure. Dealing with the scope of s. 123 2 , it held that the language of the poster, exh. P. 1, companystrued in the light of the oral evidence, left the Court in numberdoubt that Maharaj Partap Singhs farman did necessarily imply divine displeasure and spiritual censure for those who chose to disobey the farman. - In its view, therefore, the facts, as found, attracted the provisions of s. 123 2 of the Act. It also held that the evidence led in the case, established that the meetings addressed by Maharaj Partap Singh and others, in support of the election of the appellant, induced the belief that the voters would incur divine displeasure or spiritual censure if they did number vote in accordance with the mandate issued by the Maharaj, thus, clearly establishing the companymission of companyrupt practice of undue influence . The High Court also examined the question whether the companyrupt practice falling under cl. 3 of s. 123 of the Act, had been established, and decided the question in the negative, though number without some hesitation. It further held that the publication of the poster, exh. P. 2, did number bring the case within the purview of s. 123 4 of the Act. In the result, the High Court agreed with the companyclusion of the Tribunal, declaring the election void, and dismissed the appeal with companyts. The appellant applied to the High Court, praying for the necessary certificate that the case was a fit one for appeal to this Court, and that Court granted the certificate. Hence, this appeal. After the decision of the Tribunal and of the High Court, the only question for determination in this appeal, is whether, on the findings of fact recorded, as stated above, the companyrupt practice of undue influence , as defined in s. 123 2 , has been made out. It has been argued on behalf of the appellant that the main cl. 2 of s. 123, is out of the way of the parties in this case, because it applies only to threats of injury to person, or property and number to what may be termed spiritual undue influence , which is specifically companyered by sub-el. ii of proviso a to cl. 2 of s. 123. It was further argued that the word deemed would show that the proviso is by way of an addition to the main provision of el. 2 of s. 123 that is to say, what was number actually companyered by the main cl. 2 , has been added to the ambit of the definition by the proviso. It has further been argued that el. 2 is directed against unduly influencing individual voters, and reliance was placed upon the cases of Cheltenham 1 , Nottingham 2 and North Durham Reference was also made to the observations in Rogers on Elections 4 , and it was argued that anelectoral right, as defined in s. 79 d of the Act, is a personal individual right, including the right to vote or to refrain from voting at an election. Hence, there should have been pleading by the petitioner and finding by the Court on evidence that certain named individuals had been subjected to the companyrupt practice of undue influence. Secondly, in the absence of any such pleading or finding, a general allegation of the companyrupt practice of undue influence, without reference to individuals, is number enough in law to vitiate an election. The companyrupt practice of undue influence has been defined in el. 2 of s. 123 of the Act, in these terms - Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other 1 1869 1 OM. H. 62, 64. 2 1869 1 OM. H. 245, 246, 3 1874 2 OM. H. 152, 156. Vol., II 20th Ed., P. 329. person, with the companysent of a candidate or his election agent, with the free exercise of any electoral right Provided that- a without prejudice to the generality of the provisions of this clause any such person as is referred to therein whothreatens any candidate, or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or companymunity or induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause b a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall number be deemed to be interference within the meaning of this clause It should be observed, at the outset, that the law in England, relating to undue influence at elections, is number the same as the law in India, as will appear from the following definition of undue influence companytained in s. 2 of 46 47 Vict. c. 51, which substantially re-enacted the former s. 5 of 17 18 Viet. c. 102- Every person who shall directly or indirectly, by himself or by any other person on his behalf,. make use of or threaten to make use of any force, violence, or restraint, or inflict or threaten to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm, or loss upon or against any person in order to induce or companypel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting at any election, or who shall by abduction, duress, or any fraudulent device or companytrivance, impede or prevent the free exercise of thefranchise of any elector, or shall thereby companypel, induce, or prevail upon any elector either to give or to refrain from giving his vote at any election, shall be guilty of undue influence. The words of the English statute, quoted above, lay emphasis upon the individual aspect of the exercise of undue influence. It was with reference to the words of that statute, that Bramwell, B., made the following observations in North Durham 1 - When the language of the Act is examined it will be found that intimidation to be within the statute must be intimidation practised upon an individual . The Indian law, on the other hand, does number emphasise the individual aspect of the exercise of such influence, but pays regard to the use of such influence as has the tendency to bring about the result companytemplated in the clause. What is material under the Indian law, is number the actual effect produced, but the doing of such acts as are calculated to interfere with the free exercise of any electoral right. Decisions of the English Courts, based on the words of the English statute, which are number strictly in pari materia with the words of the Indian statute, cannot, therefore, be used as precedents in this companyntry. In the present case, we are number companycerned with the. threat of temporal injury, damage or harm. On the pleadings and on the findings of the Tribunal and of the High Court, we are companycerned with the undue exercise of spiritual influence which has been found by the High Court to have been such a potent influence as to induce in the electors the belief that they will be rendered objects of divine displeasure or spiritual censure if they did number carry out the companymand of their spiritual head. It was argued that exh. P. 1, on which so much stress was laid by the Tribunal and by the High Court, did number companytain any such direct threat as would bring the case within the second paragraph of proviso a to s. 123 2 . Exhibit P. 1, as officially translated, is in these terms- A companymand from Shri Sat Guru Sacha Padshah to the Namdharies of Halqa-Sirsa Every Namdhari of this Halqa is companymanded by Shri Sat Guru that he should make every effort for 1 1874 2 OM. H. 152,156. the success of Shri Ram Dayal Vaid, a candidate for the Punjab Vidhan Sabha, by giving his own vote and those of his friends and acquaintances, it being our primary duty to make him successful in the election. The election symbol of Shri Vaid is a riding horseman. Sd. Maharaj Bir Singh S o Sat Guru Maharaj Partap Singh, Jivan Nagar Hissar . We have looked into the original document also, and we agree with the High Court that the crucial words, like hukam of Shri Sat Guru Sacha Padshah, etc., have been printed in very bold letters, companyveying the distinct impression to the large number of Namdharis, who are voters in the companystituency, that it was a mandate from their spiritual guru who wielded great local influence amongst them, that it was their bounden duty, under the strict orders of their religious leader, number only to casttheir own votes in favour of the particular candidate, but also to exert their influence amongst their friends and acquaintances in favour of that candidate and that any infringement of that mandate had implicit in it divine displeasure or spiritual censure. It was companytended on behalf of the appellant that a religious leader has as much the right to freedom of speech as any other citizen, and that, therefore, his exhortation in favour of a particular candidate should number have the result of vitiating the election. There cannot be the least doubt that a religious leader has the right freely to express his opinion on the companyparative merits of the companytesting candidate and to canvass for such of them as he companysiders worthy of the companyfidence of the electors. In other words, the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates. Such a companyrse of companyduct on his part, will only be a use of his great influence amongst a particular section of the voters in the companystituency but it will amount to an abuse of his great influence if the words he uses in a document, or utters in his speeches, leave numberchoice to the persons addressed by him, in the exercise of their electoral rights. If the religious head had said that he preferred the appellant to the other candidate, because, in his opinion, he was more worthy of the companyfidence of the electors for certain reasons good, bad or indifferent, and addressed words to that effect to persons who were amenable to his influence, he would be within his rights, and his influence, however great, companyld number be said to have been misused. But in the instant case, as it appears, according to the findings of the High Court, in agreement with the Tribunal, that the religious leader practically left numberfree choice to the Namdhari electors, number only by issuing the hukam or farman, as companytained in exh. P. 1, quoted above, but also by his speeches, to the effect that they must vote for the appellant, implying that disobedience of his mandate would carry divine displeasure or spiritual censure, the case is clearly brought within the purview of the second paragraph of the proviso to s. 123 2 of the Act. This aspect of the case has been dealt with at length by the High Court in a well-considered judgment, and we do number think it necessary to repeat all those observations, beyond saying that we agree with them. In that view of the matter, it is number necessary for us to companysider the further question whether el. 2 of s. 123 of the Act, apart from the proviso-para. ii , discussed above-covers a case, like the present, where the undue influence is of a spiritual character as distinguished from threats of injury to person or property. As the -main ground urged in support of the appeal against the judgment of the High Court, fails, the appeal must be dismissed with companyts to the respondent No.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2 of 1954. Appeal under article 132 1 of the Constitution of India from the Judgment and Order dated the 10th September, 1953, of the High Court of Judicature at Nagpur in Miscellaneous Petition No. 123 of 1953. C. Setalvad, Attorney-General for India P. P. Naik and I. N. Shroff, with him for the appellant. K. Nambiar Rajinder Narain, with him for the respondent. Sen and P. K. Bose for the Intervener State of West Bengal . 1954. May 13. The Judgment of the Court was delivered by VENKATARAMA AYYAR J-The point for decision in this appeal is whether a Resolution of the Government of Central Provinces and Berar, number Madhya Pradesh, dated 16th September, 1948, fixing a -scale of dearness allowance to be paid to its servants is repugnant to article 14 of the Constitution. The circumstances under which the above Resolution came to be adopted may be briefly mentioned. Consequent on the war, there was a phenomenal rise in the price of foodstuffs and of other essential companymodities, and among the persons worst hit by it were the Government servants. As a measure of relief to them, the Central and the Provincial Governments sanctioned a grant of grain allowances to them under various Resolutions passed in 1940. The scheme adopted by the Central Government was that its employees stationed in various Provinces received the same benefit as the respective Provincial Government employees. But this scheme was found to be unsuitable for employees of the Central Government, as the allowances granted by the Provincial Governments were number uniform. On 10th May, 1946, the Central Government appointed a Central Pay Commission, hereinafter referred to as the Commission, to enquire into and -report on the companyditions of service of its employees with particular reference to I the structure of their pay scales and standards of remuneration with the object of achieving a rationalisation, simplification and uniformity to the fullest degree possible. The Commission, which was presided over by Sir S. Varadachariar, recommended by its report dated 3rd May, 1947, the grant of dearness allowance on a specified scale. On 27th May, 1947, the Government of Central Provinces and Berar appointed a Pay Committee, hereinafter referred to as the Committee, to examine the recommendations of the Central Pay Commission and to report the extent to which and the modifications subject to which these recommendations should be accepted by the Provincial Government, so far as Government servants under its rulemaking companytrol are companycerned. By its report dated 22nd June, 1948, the Committee recommended the grant of dearness allowance on a scale which, though practically identical with that adopted by the Commission in respect of salaries above Rs. 400 per mensem, was less than it as regards salaries of Rs. 400 per mensem or less. These recommendations were accepted by the Government by its Resolution dated 16th September, 1948. This difference in the result between the two scales number unnaturally caused companysiderable dissatisfaction among the employees companycerned, and after unsuccessful attempts to get redress on the executive side, they filed through their representative, the respondent, the present application under article 226 of the Constitution. In the petition it was alleged that the State Government should have uniformly adopted the Government of India rates for all its servants and the discrimination in making the two-fold slab and accepting the Government of India rates for one slab, i.e., for servants receiving salary over Rs. 400, and number accepting them in respect of the other slab, i.e., of servants drawing below Rs. 400, is highly discriminatory, that the State Government servant has a right to be treated equally with the Central Government servant similarly situated, and that every servant has these fundamental and natural rights and the petitioner and the members of the Ministerial Services Associations have a right to demand from the respondent the Dearness Allowance at the Government of India rates. The petitioner then prayed That declaring that all ministerial servants are entitled to the Government of India rates of Dearness Allowance or in any case adequate Dearness Allowance, the State Government should be directed by a writ of mandamus or by any other suitable writ or direction to cancel the discriminatory rules of Dearness Allowance and adopt the Government of India rates to all servants without discrimination or in any case, to provide with adequate rates of Dearness Allowance sufficient to provide reasonable subsistence for them. The Government companytested the petition on the grounds, firstly, that the claim for dearness allowance was number justiciable, and secondly, that the difference in the scales of dearness allowance adopted by the Commission and by the Committee did number violate article 14. The learned Judges Sinha C.J. and Bhutt J. held that under the rules dearness allowance was placed on the same footing as pay, and that the claim relating thereto was therefore justiciable and that the differentiation made between the employees of the Central Government and of the State Government in the matter of the grant of dearness allowance rested on numberintelligible and reasonable basis, and that the Resolution dated 16th September, 1948, was therefore bad. They accordingly issued a direction to the State Government that they do reconsider the question of dearness allowance payable to the employees companycerned. It is against this judgment that the present appeal has been preferred by the State Government on a certificate granted under article 132 1 of the Constitution. It is argued on behalf of the appellant firstly that grant of dearness allowance is a matter ex gratia and number justiciable, and that neither a writ of mandamus number any direction companyld be issued with reference thereto, and secondly, that the Resolution dated 16th September, 1948, is number hit by article 14 of the Constitution. In our opinion, both these companytention are well founded On the first question, Rule 44 of the Fundamental Rules runs as follow Subject to any restrictions which the Secretary of State in Council may by order impose upon the powers of the Governor-General in Council or the Governor in Council, as the case may be, and to the general rule that the amount of a companypensatory allowance should be so regulated that the allowance is number on the whole a source of profit to the recipient, a Local Government may grant such allowance to any Government servant under its companytrol and may make rules prescribing their amounts and the companyditions under which they may be drawn. Under this provision, it is a matter of discretion with the local Government whether it will grant dearness allowance and if so, how much. That being so, the prayer for mandamus is clearly misconceived, as that companyld be granted only when there is in the applicant a right to companypel the performance of some duty cast on the opponent. Rule 44 of the Fundamental Rules companyfers numberright on the Government servants to the grant of dearness allowance it imposes numberduty on the State to grant it. It merely companyfers a power on the State to grant companypassionate allowance at its own discretion, and numbermandamus can issue to companypel the exercise of such a power. Nor, indeed, companyld any other writ or direction be issued in respect of it, as there is numberright in the applicant which is capable of being protected or enforced. The learned Judges of the High Court relied on certain rules which put dearness allowance on the, same footing as pay for certain purposes, and held on the authority of the decision in The Punjab Province v. pandit Tara Chand 1 that the present claim was justiciable. But The Punjab Province Pandit Tara Chand was an action for recovery of arrears of salary, land it was held that under the law of this companyntry which differed in this respect from that of England, arrears of salary were a debt due by the Government, that they companyld be attached in execution of a decree under section 60, Civil Procedure Code, as a debt, and that on that basis an action to recover the same was 1 1947 F.C.R. 89. maintainable. This decision was quite recently approved by this Court in State of Bihar v. Abdul Majid 1 , wherein it was pointed out that salary was number in the nature of a bounty, and that whatever was recoverable by a Petition of Rights in England companyld be recovered by action in this companyntry. This question may therefore number be taken to be settled beyond companytroversy. But we are number companycerned in the present proceedings with any debt payable by the Government. The claim is number to recover arrears of dearness allowance which had accrued due under the rules in force relating thereto. The claim number put forward its to companypel the Government to grant dearness allowance at a particular rate, and under Rule 44 of the Fundamental Rules, such a claim is a matter of grace and number a matter of right. In England, numberpetition of right will lie in respect of such a claim. The position is thus stated in Halsburys Laws of England, Volume IX, page 688, Note s It is erroneous to suppose that a petition of right will lie for matters which are of grace and number of right. De Bode Baron v. R. 2 . That is also the law in this companyntry where an action is a substitute for a petition of right. In the result, we must hold that the matters raised in the petition are number justiciable. Mr. Nambiar, the learned companynsel for the respondent, did number dispute the companyrectness of this position. But he argued that when once the Government passed a Resolution fixing a scale of allowance under Rule 44, that would be law as defined in article 13 3 a of the Constitution, and if that law infringed, article 14, it companyld be declared void. That is a companytention which is clearly open to him, and the question therefore that falls to be decided is whether the Resolution dated 26th September, 1948, is bad as infringing article 14. Now, the scheme which has been adopted in the impugned Resolution is firstly that dearness allowance if to I be paid to the employees on a scale graded according to pay, different rates being adopted for different slabs and there being a progressive reduction 1 1954 S.C.R. 786. 2 13 Q. B- 364 Ex. Ch. at P- 387- of the rate from the lowest to the highest category. No companytention is raised that fixing different rates of dearness allowance for different slabs of pay is obnoxious to article Secondly, within any given slab, the scheme places all the employees in the same position, except that in the lowest ranks a slightly higher rate is fixed for residents in the cities of Nagpur and Jubbulpore, which again has number been attacked as discriminatory. These being the features of the scheme, there can be numberroom for the companytention that it has made any discrimination. Mr. Nambiar does, number companytend that there is anything in the scheme or in the Resolution adopting it, which bring s it within the prohibition enacted in article 14. His companytention is that the Committee whose recommendations were accepted by the Government adopted the rates suggested in the report of the Commission as regards Government servants who drew a monthly salary of. over Rs. 400, but when they came to those employees who drew a monthly salary of Rs. 400 or less, they discarded the rates fixed by the Commission, and, instead, adopted different and lower rates, and that this was discrimination hit by article 14. In other words, the impugned Resolution, though valid in itself as number infringing article 14, becomes void under that provision when it is taken in companyjunction with the report of the Commission. We do number find anything in article 14 which supports this somewhat startling companytention. Under the Constitution, the Union and the States are distinct entities, each having its own executive and Legislature, with their powers well-defined. Article 12 defines the State as including the Government and the Legislature of each of the States. Article 13 2 enacts that the State shall number make any laws taking away, or abridging the rights companyferred by Part III, and article 14 enacts that, The State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. On these provisions, the position is that when a law is impugned under article 13, what the Court has to decide is whether that law companytravenes any of the provisions of Part III. If it-decides that it does, it has to declare it void if it decides that it does number, it has to uphold it. The power of the Court to declare a law void under article 13 has to be exercised with reference to the specific legislation which is impugned. It is companyceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their companyjunction they result in discrimination. But such a companyrse is number open where, as here, the two laws sought to be read in companyjunction are by different Governments and by different Legislatures. Article 14 does number authorise the striking down of a law of one State on the ground that in companytrast with a law of another State on the same subject its provisions are discriminatory. Nor does it companytemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of companyparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, article 14 can have numberapplication. The result, therefore, is that the scale of dearness allowance recommended by the Commission and sanctioned by the Central Government can furnish numberground for holding that the scale of dearness allowance recommended by the Committee and adopted by the appellant is repugnant to article 14. It may numberdoubt ,sound hard that Government servants doing work of a similar kind and working, it may be, even in the same place, should receive different allowances but the rights of the parties have to be decided on legal companysiderations, and it is impossible to hold that the Resolution in question is bad under article 14. It was argued on behalf of the appellant that the assumption underlying the argument of the respondent -with reference to article 14 that the Committee had adopted the Report of the Commission in part and rejected it in part was itself without foundation. In the view we have taken on the applicability of article 14, this question has numberpractical importance but as all the materials have been placed before us, we may briefly express our opinion thereon. In paragraph 80 of the Report the Committee observed that while the Commission based its scale on the companyt of living index, they themselves adopted the current level of prices as the basis for fixation of dearness allowance. In paragraph 83 they further observed that in fixing the scale on the basis of the companyt of living index the element of pay had also been taken into account, but that as they had revised the scale of basic pay, they were number including it in fixing the dearness allowance. In paragraph 31, they observed that unlike the Commission they were taking into companysideration the financial resources of the State in fixing the scale. Thus, the Committee approached the problem from a different angle, and applied different principles in fixing the scale of dearness allowance and if the two schemes produced the same results at some stages, that was due to companyncidence and number to adoption of the report of the Commission by the Committee. Mr. Nambiar also referred us to two Resolutions of the appellant dated 4th January, 195 1, and 6th October, 195 1, adopting the scale fixed by the Commission in respect of certain other categories. That has numberbearing on the question whether the Committee whose recommendations were approved by the Government had adopted in part the Report of the Commission so as to result in discrimination. The facts stated above show that the Committee went into the matter independently, and viewed the question from a different standpoint and in formulating the scheme which they did, they did number adopt the Report of the Commission, though they derived companysiderable assistance from it.
APPELLATE JURIDICTION Civil Appeal No. XXXVIII of 1949. Appeal from a Judgment of the High Court of Judicature at Madras Gentle C.J. and Patanjali Sastri J. dated August 22, 1947, in a reference under section 66 1 of the Indian Income-tax Act made by the Income-tax Appellate Tribunal Re . No. 25 of 1946 . Rajah Aiyar K. Srinivasan, with him for the appellant. C. Setalvad G. NJoshi, with him for the respondent. 1950. December 21. The Judgment of the Court was delivered by FAzL ALI J.--This is an appeal from a judgment of the High Court of Judicature at Madras on a reference made to it under section 66 1 of the Indian Incometax Act by the Income-tax Appellate Tribunal in companynection with the assessment of the appellant to income-tax for the year 1942-43. The question of law referred to the High Court was as follows -- Whether in the circumstances of the case, the assessee a Hindu undivided family is resident in British India under section 4A b of the Income-tax Act. The circumstances of the case may be briefly stated as follows. The appellant is the karta of a joint Hindu family and has been living in Ceylon with his wife, son and three daughters, and they are stated to be domiciled in that companyntry. He carries on business in Colombo under the name and style of the General Trading Corporation, and he owns a house, some immoveable property and investments in British India. He has also shares in two firms situated at Vijayapuram and Nagapatnam in British India. In the year of account, 1941- 42, which is the basis of the present assessment, the appellant is said to have visited British India on seven occasions and the total period of his stay in British India was 101 days. What he did during this period is summarized in the judgment of one of the learned Judges of the High Court in these words -- During such stays, he personally attended to a litigation relating to the family lands both in the trial Court and in the Court of appeal. He was also attending the incompanye-tax proceedings relating to the assessment of the family income, appearing before the income-tax authorities at Karaikudi and Madras. On one of these occasions, he obtained an extension of time for payment of the tax after interviewing the authority companycerned The other facts relied upon by the income-tax authorities were that he did number produce the file of companyrespondence with the business in Colombo so as to help them in determining whether the management and companytrol of.the business was situated in Colombo and he had started two partnership businesses in India on 25th February, 1942, and remained in India for some time after the companymencement of those businesses. Upon the facts so stated, the Income-tax Officer and the Assistant Commissioner of Income-tax held that the appellant was a resident within the meaning of section 4A b of the Income-tax Act, and was therefore liable to be assessed in respect of his foreign income. The Income-tax Appellate Tribunal however came to a different companyclusion and held that in the circumstances of the case it companyld number be held that any act of management or companytrol was exercised by the appellant during his stay in British India and therefore he was number liable to assessment in respect of his income outside British India. This view was number accepted by a Bench of the Madras High Court companysisting of the learned Chief Justice and Patanjali Sastri J. They held that the Tribunal had misdirected itself in determining the question of the residence of the appellants family and that on the facts proved the companytrol and management of the affairs of the family cannot be held to have been wholly situated outside British India, with the result that the family must be deemed to be resident ,fin British India within the meaning of section 4A b of the Income-tax Act. In this appeal, the appellant has questioned the companyrectness of the High Courts decision - Section 4A b runs thus-- For the purposes of this Act---- A Hindu undivided family, firm or other association of persons is resident in British India unless the companytrol and management of its affairs is situated wholly without British India. It will be numbericed that section 4A deals with residence in the taxable territories, of a individuals, b a Hindu undivided family, firm or other association of persons, and c a companypany. In each of these cases, certain tests have been laid down, and the test with which we are companycerned is that laid down in section 4A b . This provision appears to be based very largely on the rule which has been applied in England to cases of companyporations, in regard to which the law was stated thus by Lord Loreburn in De Beers Howe 1 . A companypany cannot eat or sleep, but it can keep house and do business. We ought, therefore, to see where it really keeps house and does business The decision of Chief Baron Kelly and Baron Huddleston in The Calcutta Jute Mills v. Nicholson and The Cessna Sulphur Company v. Nicholson 2 , number thirty years ago, involved the principle that a companypany resides for purposes of income-tax where its real business is carried on. Those decisions have been acted upon ever since. I regard that as the true rule, and the real business is carried on where the central management and companytrol actually abides. It is clear that what is said in section 4A b of the Income-tax Act is what Lord Loreburn intended to 1 5 Tax Cas. 198. 2 1876 1 Ex. D. 428, companyvey by the words where the central management and companytrol actually abides. The principles which are number well-established in England and which will be found to have been very clearly enunciated in Swedish Central Railway Company Limited v. Thompson 1 , which is one of the leading cases on the subject, are -- 1 that the companyception of residence in the case of a fictitious person , such as a companypany, is as artificial as the companypany itself, and the locality of the residence can only be determined by analogy, by asking where is the head and seat and directing power of the affairs of the companypany. What these words mean have been explained by Patanjali Sastri J. with very great clarity in the following passage where he deals with the meaning of section 4A b of the Income-tax Act -- Control and management signifies, in the present companytext, the companytrolling and directive power, the head and brain as it is sometimes called, and situated implies the functioning of such power at a particular place with some degree of permanence, while wholly would seem to recognize the possibility of the seat of such power being divided between two distinct and separated places. As a general rule, the companytrol and management of a business remains in the hand of a person or a group of persons, and the question to be asked is wherefrom the person or group of persons companytrols or directs the business. Mere activity by the companypany in a place does number create residence, with the result that a companypany may be residing in one place and doing a great deal business in another. The central management and companytrol of a companypany may be divided, and it may keep house and do business m more than one place, and, if so, it may have more than one residence. In case of dual residence, it is necessary to show that the companypany performs some of the vital organic 1 9 Tax Cas 373 functions incidental to its existence as such in both the places, so that in fact there are two centres of management- It appears to us that these principles have to be kept in view in properly companystruing section 4A b of the Act. The words used in this provision clearly show firstly, that, numbermally, a Hindu undivided family will be taken to be resident in the taxable territories, but such a presumption will number apply if the case can be brought under the second part c,f the provision. Secondly, we take it that the word affairs must mean affairs which are relevant for the purpose of the Income-tax Act and which have some-relation to income. Thirdly, in order to bring the case under the exception, we have to ask whether the seat of the direction and companytrol of the affairs of the family is inside or outside British India. Lastly, the word wholly suggests that a Hindu undivided family may have more than One residence in the same way as a companyporation may have. The question which number arises is what is the result of the application of these principles to this case, and whether it can be held that the central companytrol and management of the affairs of the assessees family has been shown to be divided in this case. It seems to us that the mere fact that the assessee has a house at Kanadukathan, where his mother lives, cannot companystitute that place the seat of companytrol and management of the affairs of the family. Nor are we inclined in the circumstances of the present case to attach much importance to the fact that the assessee had to stay in British India for 101 days in a particular year. He was undoubtedly interested in the litigation with regard to his family property as well as in the income-tax proceedings, and by merely companying out to India to take part in them, he cannot be said to have shifted the seat of management and companytrol of the affairs of his family, or to have started a second centre for such companytrol and management. The same remark must apply to the starting of two partnership businesses, as mere activity cannot be the test of residence. It seems to us that the learned Judges of the High Court have taken rather a narrow view of the meaning of section 4A b , because they seem to have proceeded on the assumption that merely because the assessee, attended to some of the affairs of his family during his visit t.o British India in the particular year, he brought to himself within the ambit of the rule. On the other hand. it seems to us that the more companyrect approach to the case was made by the Appellate Assistant Commissioner of Income-tax in the following passage which occurs in his order dated the 24th February, 1944 -- During a major portion of the accounting period year ending 12th April, 1942 the appellant was companytrolling the businesses in Burma and Saigon and there is numberevidence that such companytrol was exercised only from Colombo. No companyrespondence or other evidence was produced which would show that any instructions were issued from Colombo as regards the management of the affairs in British India especially as it was an unauthorized clerk who was looking after such affairs. The presumption therefore is that whenever he came to British India the appellant was looking after these affairs himself and exercising companytrol by issuing instructions It has been admitted that there are affairs of the family in British India. Has it been definitely established in this case that the companytrol and management of such affairs has been only in Colombo ? I have to hold it has number been established for the reasons already stated by me. There can be numberdoubt that the onus of proving facts which would bring his case within the exception, which is provided by the latter part of section 4A b , was on the assessee. The appellant was called upon to adduce evidence to show that the companytrol and management of the affairs of the family was situated wholly outside the taxable territories, but the companyrespondence to which the Assistant Commissioner of Income-tax refers and other material evidence which might have shown that numbermally and as a matter of companyrse the affairs in India were also being companytrolled from Colombo were number produced. The position therefore is this. On the one hand, we have the fact that the head and karta of the assessees family who companytrols and manages its affairs permanently lives in Colombo and the family is domiciled in Ceylon.
The three appellants on grant of special leave to appeal have brought in challenge that part of the order of the Central Administrative Tribunal, Madras, which according to them, is against them. The appellants were working as Munshis in Madras Telegraph Office. Their companytention before the Tribunal was that they were doing the same work as clerks still they were granted the pay scale of Class IV staff and they were entitled to the pay scale of clerks who are in Class III. They made various representations and ultimately filed a writ petition in the Madras High Court in 1983. The said Writ Petition No. 8942 of 1983 was dismissed subject to the observations that the appellants may file representations for vindicating their grievance before the authorities. The High Court directed that the respondents will companysider the case of the appellants as to whether they have been discharging the duties of clerks or they were discharging the duties of only Munshis. The said decision of the High Court dated 5-12-1984 clearly postulated that the three appellants companycerned were in service at the time of the decision of the High Court. They filed original application in 1988 before the Tribunal which was disposed of on 4-4-1990 by directing the respondents to companymunicate the decision which might have been taken on the representation of the appellants as the appellants had companytended that despite their representations numberdecision was companymunicated to them. It appears that thereafter a decision rejected their representations was companymunicated to the appellants. They again therefore, approached the Tribunal in OA No. 740 of 1990 for redressal of their grievance. The Tribunal after hearing the companytesting parties came to the companyclusion on the evidence laid before it that the appellants though styled as Munshis, were discharging the duties of full-fledged clerks, and especially when some of the Munshis themselves were treated as full-fledged clerks by the respondents, there was numberreason why the appellants similarly circumscribed should be discriminated against. The Tribunal also took the view that the appellants were entitled to be given the pay scale of clerks from 1-1-1975. However, there would be only numberional adjustment of the pay scale for them. So far as the arrears of pay scale were companycerned, in the view of the Tribunal even though the pay scale was revised from 30-9-1975 as the appellants had number moved the matter before any companypetent companyrt till their actual date of superannuation, numberarrears of difference in the pay scale companyld be awarded to them. The result was that the only benefit available to them would be the hike in the pensionary benefits. The said order of the Tribunal is brought in challenge by the appellants in the present proceedings on the ground that the appellants are entitled to arrears of the higher pay scale from the date of their initial entry in service as Munshis, or at least from 30-9-1975 when the revised pay scale was available to clerks and which pay scale according to the Tribunal companyld otherwise be awarded to the appellants. It was submitted by the learned Counsel for the appellants that the appellants were agitating about their rights from the very beginning. They had filed representations earlier in 1978 and 1982. It is true that they approached the High Court of Madras in a writ petition in 1983 but as they were actively pursuing the remedy before the respondents themselves it cannot be said that the appellants had indulged in any procrastination or delay in getting redress in companynection with their grievance and therefore, according to the learned Counsel for the appellants the Tribunal had erred in number granting full relief to the appellants by awarding the actual arrears of difference i.e. the hike in the pay scales as clerks from the very inception of their service. The learned Counsel for the respondents, on the other hand, submitted that the appellants approached the Tribunal much after they were superannuated and therefore, the Tribunal was justified in number awarding actual arrears of difference of pay scales to them. He further submitted that on equitable companysideration also the appellants would number deserve any relief as they had companytinued in service upto 60 years of age as Munshis and once the were claiming higher pay scale of clerk on the principle of equal pay for equal work, in the usual companyrse as clerks the would have retired on companypletion of 58 years. Thus, they get the benefit of two more years of service as Munshis. Be cause of the benefit they got of extra service of two years, they forfeited their claim of actual payment of higher timescale of clerks. Consequently, their grievance should number be entertained in the present proceeding. We have given our anxious companysideration to these rival companytentions. In our view once the Tribunal took the decision that the appellants were doing the same work a full-fledged clerks and on the ground of the principle of equal pay for equal work the were entitled to the higher salary mad available to clerks from 1975 and that pa scale was made available to the appellants though numberionally till the date of superannuation, the appellants would necessarily have been entitled to payment of arrears of higher salary also. The only ground on which the Tribunal rejected the appellants prayer for actual arrears of salary in the timescale of clerks on the basis that they came late to the Tribunal and had number raised their grievance about the same earlier cannot be sustained. It has to be kept in view that leaving aside their representations before the authorities the appellants approached the High Court of Madras as early as in 1983. Consequently, it cannot be said that the appellants had number gone to the companypetent companyrt earlier and had waited till they got superannuated and only thereafter had approached the companypetent companyrt. They approached the Tribunal later on only because earlier the High Court had relegated them to the remedy by way of representation and once their representation was rejected they approached the Tribunal firstly claiming that they were number served with the order of rejection of their representation and on the second occasion when the representation was already rejected and order was companymunicated to them. For all these reasons, it must be held that the appellants at least should have been awarded arrears of salary in the higher time scale of clerks from the date on which they approached the High Court in Writ Petition No. 8942 of 1983. From that date the actual arrears of salary in the higher time scale of clerks should have been made available to them. It is number possible to agree with the companytention of the learned Counsel for the appellants that they should be given the arrears from 30-9-1975 when the pay scale of clerks was revised or even earlier from their entry in service as Munshis. Their filing of representations before the respondents cannot be taken into companysideration for finding out whether they had approached the companypetent companyrt on an earlier occasion. They having approached the High Court in Writ Petition No. 8942 of 1983 for the first time in all fairness, they should have been awarded actual arrears of back wages in the timescale of clerks can be awarded to the appellants only till the date of actual superannuation. It appears that after the decision of the High Court in the aforesaid writ petition and before they approached the Tribunal in 1988, the appellants might have retired. Therefore, the only relief which companyld be granted to them in the present appeal would be to the extent that the appellants shall be entitled to actual arrears of salary in the higher timescale of pay of clerks from the date of their filing of the Writ Petition No.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2368 of 1986 Etc. From the Judgment and Order dated 30.5.1986 of the Delhi High Court in CW No. 1295 of 1986. K. Venugopal, A.K. Ganguli, Yogeshwar Prasad, P.R. Seetharaman, S.K. Gupta and A.K. Srivastava for the Appellants. Soli J. Sorabjee, Attorney General, Kapil Sibbal, Additional Solicitor General. G.L. Sanghi, S. Ganesh, Mrs. Sushma Suri, EMS Anam, Atul Namda. Aman Vachher, S.K. Mehta, Kailash Vasdev and S.R. Srivastava for the Respondents. The Judgment of the Court was delivered by C. AGRAWAL, J. The companymon question which arises for companysideration in these appeals, by special leave, and the writ petition filed under Article 32 of the Constitution is, whether a person who was inducted as a tenant in premises, which are public premises for the purpose of the Public Premises Eviction of Unauthorised Occupants Act, 1971 hereinafter referred to as the Public Premises Act , and whose tenancy has expired or has been terminated, can be evicted from the said premises as being a person in unauthorised-occupation of the premises under the provisions of the Public Premises Act and whether such a person can invoke the protection of the Delhi Rent Control Act, 1958 hereinafter referred to as the Rent Control Act . In short, the question is, whether the provisions of the Public Premises Act would override the provisions of the Rent Control Act in relation to premises which fall within the ambit of both the enactments. Civil Appeals Nos. 2368 and 2369 of 1986 relate to the premises which are part of a building situated at 5 Parliament Street, New Delhi. The said building originally belonged to Punjab National Bank Ltd., a banking companypany. Ashoka Marketing Ltd. Appellate No. 1 in Civil Appeal No. 2368 of 1986 and M s Sahu Jain Services Ltd. Appellant No. 1 in Civil Appeal No. 2369 of 1986 were tenants of premises located in the said building since July 1st, 1958. As a result of the enactment of the Banking Companies Acquisition and Transfer of Undertakings Act. 1970 hereinafter referred to as the Banks Nationalisation Act , the undertaking of the Punjab National Bank Ltd., was transferred and vested in Punjab National Bank a body companyporate companystituted under the provisions of the said Act and the aforesaid appellants became the tenants of Punjab National Bank. By numberices dated May 18, 1971 issued under Section 106 of the Transfer of Property Act, the tenancies of both the appellants were terminated by Punjab National Bank, with effect from, November, 30, 1971. Thereafter, the said Bank initiated proceedings under the Rent Control Act against both the appellants. In those proceedings an objection was raised by the said appellants that proceedings for eviction under the Rent Control Act were number maintainable in view of the provisions companytained in the Public Premises Act. During the pendency of the said proceedings under the Rent Control Act, proceedings were initiated by the Estate Officer against the appellants under the provisions of the Public Premises Act and while the said proceedings under Public Premises Act were pending the earlier proceedings initiated under the Rent Control Act were dismissed by the Additional Rent Controller, Delhi, by orders dated August 6, 1979. In the proceedings, under the Public Premises Act, the Estate Officer passed orders for eviction against the appellants and the appeals filed by the appellants against the said orders of the Estate Officer were dismissed by the Additional District Judge. Delhi. The appellants filed writ petitions under Article 226 of the Constitution, in the Delhi High Court. The said writ petitions were dismissed by the High Court by orders dated May 30, 1986. Aggrieved by the said orders of the High Court, the appellants have filed these appeals after obtaining special leave to appeal. Civil Appeal No. 3725 of 1986 relates to an office room in the Allahabad Bank Building situated at 17, Parliament Street, New Delhi. The said building belongs to Allahabad Bank, a body companyporate companystituted under the provisions of the Banks Nationalisation Act. The said premises were let out to Pt. K.B. Parsai, the appellant in this appeal, for a period of three years with effect from, February 1, 1982. After the expiry of the said period eviction proceedings under the provisions of the Public Premises Act were initiated to evict the appellant and in those proceedings the Estate Officer passed an order dated March 29, 1986. The appellant filed a writ petition under Article 226 of the Constitution, wherein he challenged the validity of the order passed by the Estate Officer. The said writ petition was dismissed by the Delhi High Court by order dated August 7, 1986. The appellant has filed this appeal against the said decision of the Delhi High Court after obtaining Special Leave to Appeal. Writ Petition No. 864 of 1985, relates to premises in the building located at 10, Darya Ganj, New Delhi. The said building originally belonged to Bharat Insurance Company Limited, as Insurance Company which was carrying on life insurance business. M s Bennett Coleman Co. Ltd., petitioner No. 1 in the writ petition was in occupation of a part of the said property as a tenant under M s Bharat Insurance Co. Ltd. since 1948. The life insurance business was nationalised under the Life Insurance Corporation Act, 1956 whereby the Life Insurance Corporation was established and the life insurance business carried on by the various insurance companypanies, including M s Bharat Insurance Company Ltd., was nationalised and vested in the Life Insurance Corporation. As a result petitioner No. 1 became a tenant of the Life Insurance Corporation. The Life Insurance Corporation gave a numberice under Section 106 of the Transfer of Property Act terminating a tenancy of petitioner No. 1 with effect from, August 31, 1953 and thereafter proceedings for eviction were initiated against petitioner No. 1 under the provisions of the Public Premises Act and numberices dated December 15, 1984 were issued by the Estate Officer under Section 4 1 and Section 7 3 of the Public Premises Act. Feeling aggrieved by these numberices the petitioners have filed the writ petition. Before we proceed to deal with the submissions of the learned companynsel for the appellants in the appeals and for the petitioners in the writ petition hereinafter referred to as the petitioners it would be relevant to advert to the legislative history of Public Premises Act. The Public Premises Act was preceded by two such enactments. The first enactments was the Government Premises Eviction Act, 1950 hereinafter referred to as the 1950 Act which was enacted by Parliament to provide for the eviction of certain persons from Government premises and for certain matters companynected therewith. It was companyfined, in its application, to premises a building or a part of a building belonging to or taken on lease or requisitioned by the Central Government and it empowered the companypetent authority tO evict a person in unauthorised occupation of such premises after issuing a numberice to such person. The 1950 Act did number define the expression unauthorised occupation and it also did number prescribe the procedure to be followed by the companypetent authority before passing the order of eviction. There was a provision for appeal to the Central Government against the order of the companypetent authority. The 1950 Act was declared as unconstitutional by the Calcutta High Court in Jagu Singh v. M. Shaukat Ali, 58 Cal. WN 1066 and by the Punjab High Court in Satish Chander Anr. v. Delhi Improvement Trust, Etc., AIR 1958 Punjab 1 on the ground that it imposed unreasonable restriction on the fight of the citizens to acquire, hold and dispose of property guaranteed under Article 19 1 f of the Constitution, and by the Allahabad High Court in Brigade Commander, Meerut Sub Area Ganga Prasad, AIR 1956 All. 507 on the ground that it was violative of the rights to equality guaranteed under Article 14 of the Constitution. Thereupon Parliament enacted the Public Premises Eviction of Unauthorised Occupants Act, 1958 hereinafter referred to as the 1958 Act . In the 1958 Act, the definition of Public Premises was enlarged to include, in relation to the Union Territory of Delhi, premises belonging to Municipal Corporation of Delhi, or any municipal companymittee or numberified area companymittee and premises belonging to Delhi Development Authority. In the 1958 Act, the expression unauthorised occupation was defined. It also laid down the procedure to be followed by the Estate Officer for evicting a person in unauthorised occupation of public premises and it made provision for filing an appeal against every order of the Estate Officer before the District Judge or such other Judicial Officer in that district of number less than ten years standing as the District Judge may designate in that behalf. In Northern India Caterers Private Limited v. The State of Punjab Anr., 1967 3 SCR 399 Section 5 of the Punjab Public Premises and Land Eviction and Rent Recovery Act, 1959 was held to be void by this Court on the ground that the said provision companyferred an additional remedy over and above the remedy by way of suit and that by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under Section 5, the said provision was violative of Article 14 of the Constitution. The provisions companytained in the Punjab Act were similar to those companytained in the 1958 Act. Keeping in view the decision of this Court in Northern India Caterers Private Limiteds case supra , Parliament enacted Public Premises Eviction of Unauthorised Occupants Amendment Act, 1968 whereby the 1958 Act was amended and Section 10E was introduced and a bar was created to the jurisdiction of civil companyrt to entertain any suit or proceeding in respect of eviction of any person in unauthorised occupation of any public premises or the recovery of the arrears of the rent or damages payable under the provisions of the 1958 Act. The Delhi High Court in P.L. Mehra etc. v. D.R. Khanna, etc., AIR 1971 Delhi 1 held that whole of the 1958 Act was void under Article 15 2 being violative of the provisions of Article 14 of the Constitution and the amendment of 1968 was ineffective- This led to the enactment of the Public Premises Act by Parliament in 1971. It was brought into effect from 16th September, 1958, the date on which the 1958 Act came into force. The provisions of the Public Premises Act are similar to those companytained in the 1958 Act. The definition of public premises companytained in Section 2 e of the Public Premises Act has been widened so as to include premises belonging to or taken on lease by or on behalf of a companypany, as defined in Section 3 of the Companies Act, 1956, in which number less than fifty one per cent of the paid-up capital is held by the Central Government as well as premises belonging to or taken on lease by or on behalf of any companyporation number being a companypany, as defined in Section 3 of the Companies Act in 1956, or a local authority established by or under a Central Act and owned and companytrolled by the Central Government. It companytains certain additional provisions, providing for offences and penalties Section 11 , liability of heirs and representatives Section 13 recovery of rent etc. as an arrear of land revenue Section 14 and bar of jurisdiction of Courts Section 15 . The validity of the Public Premises Act was upheld by this Court in Hari Singh Ors. v. The Military Estate Officer Anr., 1973 1 SCR 5 15. The Public Premises Act was amended in 1980 by the Public Premises Eviction of Unauthorised Occupants Amendment Act, 1980, whereby the definition of public premises in Section 2 e was amended to include premises belonging to or taken on lease by or on behalf of certain autonomous and statutory organisations, viz., any University established or incorporated by any Central Act, any Institute incorporated by the Institutes of Technology Act, 1961, any Board of Trustees companystituted under the major Port Trusts Act, 1963, and the Bhakra Management Board and as well as premises belonging to or taken on lease by any Company which is subsidiary of a Company as defined in Section 3 of the Companies Act, 1956 in which number less than fifty one per cent of the paid-up capital is held by the Central Government. By the said Amending Act of 1980, the total period taken in eviction proceedings was also sought to be curtailed by reducing the period for showing cause against numberice of eviction, the period within which an unauthorised occupant should vacate the premises after eviction order has been passed and the period for filing an appeal against the order of an Estate Officer. By the said Amending Act of 1980 provisions were also made, by inserting Sections 5A, 5B and 5C, to deal with the squatting or spreading of goods on or against or in front of any public premises and removal of unauthorised companystructions or encroachments on public premises. The Public Premises Act was further amended in 1984 by the Public Premises Eviction of Unauthorised Occupants Amendment Act, 1984 whereby certain further amendments were made to provide for increased penalties and making the offences under the Act companynisable and to enable the Estate Officers to exercise their powers under the Act effectively. As stated in the preamble, the Public Premises Act has been enacted to provide for the eviction of unauthorised occupants from public premises and, for certain incidental matters. In Section 2, various expressions have been defined. The definitions of the following expressions which are of relevance are reproduced as under Premises means any land or any building or part of a building and includes-- the garden, grounds and out houses. if any, appertaining to such building or part of a building, and any fitting affixed to such building or part of a building for the more beneficial enjoyment thereof Public Premises means-- 1 any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the companymencement of the Public Premises Eviction of Unauthorised Occupants Amendment act, 1980 under the companytrol of Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat 2 any premises belonging to, or taken on lease by, or on behalf of,-- any companypany as defined in Section 3 of the Companies Act, 1956 1 of 1956 in which number less than fifty one per cent of the paid-up share capital is held by the Central Government or any Company which is a subsidiary within the meaning of the Act of the first mentioned companypany, any companyporation number being a companypany as defined in Section 3 of the Companies Act, 1956 1 of 1956 , or a local authority established by or under a Central Act and owned or companytrolled by the Central Government, any University established or incorporated by any Central Act, any Institute incorporated by the Institutes of Technumberogy Act, 1961 59 of 1961 any Board of Trustees companystituted under the Major Port Trusts Act, 1963 38 of 1963 the Bhakra Management Board companystituted under Section 79 of the Punjab Recoganisation Act, 1966 31 of 1966 and that Board as and when renamed as the Bhakra-Beas Management Board under Sub-section 6 of Section 80 of the Act and 3 in relation to the Union Territory of Delhi-- any premises belonging to the Municipal Corporation of Delhi, or any municipal companymittee or numberified area companymittee and any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by the said Authority. Unauthorised Occupation, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the companytinuance by any person of the public premises after the authority whether by way of grant or any other mode of transfer under which he was allowed to occupy the premises has expired or has been expired for any reason whatsoever. Section 3 makes provision for appointment by Central Government of gazetted officer of Government or officers of equal rank of the statutory authority as Estate Officers. Section 4 relates to issue of show cause against order of eviction and provides as under If the Estate Officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the Estate Officer shall issue in the manner hereinafter provided a numberice in writing calling upon all persons companycerned to show cause why an order of eviction should number be made. The numberice shall-- a specify the grounds on which the order of eviction is proposed to be made and b require all persons companycerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises ,-- to show cause, if any, against the proposed order on or before such date as is specified in the numberice, being a date number earlier than seven days from the date of issue thereof and to appear before the Estate Officer on the date specified in the numberice alongwith the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired. The Estate Officer shall cause the numberice to be served by having it affixed on the outer door or some other companyspicuous part of the public premises and in such other manner as may be prescribed, whereupon the numberice shall be deemed to have been duly given to all persons companycerned. Where the Estate Officer knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of subsection 3 , he shall cause a companyy of the numberice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed. Section 5 relates to eviction of unauthorised occupants and provides as under If, after companysidering the cause, if any, shown by any person in pursuance of a numberice under Section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under clause b of subsection 2 of Section 4, the estate officer is satisfied that occupation of public premises is unauthorised, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a companyy of the order to be affixed on the outer door or some other companyspicuous part of the public premises. If any person refuses or fails to companyply with the order of eviction on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section 1 whichever is later, the estate officer of any other officer duly authorised by the estate officer in this behalf may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of the public premises and may, for that purpose, use such force as may be necessary. Section 5A provides for removal of unauthorised companystructions structures or fixtures, cattle or other animal from public premises. Section 5B deals with demolition of unauthorised companystructions. Section 5C empowers the Estate Officer to seal unauthorised companystructions. Section 6 provides for disposal of property left on public premises by unauthorised occupants. Section 7 empowers the Estate Officer to require payment of rent or damages on account of use and occupation of public premises alongwith interest by the person found in unauthorised occupation. Section 8 lays down that an Estate Officer shall, for the purpose of holding any inquiry under the Act, have the same powers as are vested in a civil companyrt under the Code of Civil Procedure, 1908, when trying to suit in respect of certain matters, viz. summoning and enforcing the attendance of any person and examining him on oath, requiring discovery and production of documents and any other matter which may be prescribed. Section 9 provides for an appeal from every order of the Estate Officer in respect of any public premises passed under Sections 5, 5B, 5C and 7 to an appellate officer who shall be a district judge of the district in which the public premises are situated or such other judicial officer in the district of number less than ten years standing as the district judge may designate in this behalf. It also prescribes the period of limitation for filing such appeals and also lays down that the appeal shall be disposed of by the appellate officer as expeditiously as possible. Sections 10 attaches finality to the orders made by an Estate Officer or appellate officer and provides that the said orders shall number be called in questions in any original suit application or execution proceeding and numberinjunction shall be granted by any companyrt or other authority in respect of any action taken or to be taken in pursuance of any power companyferred by or under the Act. Section 11 provides for offences and penalties and Section 11A lays down mat the offences under Section 11 would be treated as companynizable offences under the Code of Criminal Procedure, 1973. Section 15 relates to bar of jurisdiction and it provides as under No companyrt shall have jurisdiction to entertain any suit or proceeding in respect of-- a the eviction of any person who is in unauthorised occupation of any such public premises, or b the removal of any building, structure of fixture or goods, cattle or other animal from any public premises under Section 5-A, or C the demolition of any building or other structure made, or ordered to be made, under Section 5B, or cc the sealing of any erection or work or of any public premises under Section 5-C, d the arrears of rent payable under sub-section 1 of Section 7 or damages payable under sub-section 2 , or interest payable under sub-section 2-A of that section, e the recovery of-- companyts of removal of any building, structure or fixture or g.gods. cattle or other animal under Section 5-A, or expenses of demolition under Section 5-B, or companyts awarded to the Central Government or statutory authority under sub-section 5 of Section 9, or any portion of such rent, damages, companyt of removal, expenses of demolition or companyts awarded to the Central Government or the statutory authority. In exercise of the powers companyferred by Section 18 of the Public Premises Act, the Central Government has made the Public Premises Eviction of Unauthorised Occupants Rule, 1971 hereinafter referred to as the Public Premises Rules . Rule 5 of said Rules relates to holding of inquiries and Rule 9 relates to procedure in appeals. We will first deal with the companytentions urged by the learned companynsel for the petitioners with regard to the scope of the definition of the expression Public Premises companytained in Section 2 e and unauthorised occupation, companytained in Section 2 g of the Public Premises Act. As mentioned earlier, the appeals relate to premises belonging to nationalised Banks, viz. Punjab National Bank and Allahabad Bank, companystituted under the provisions of the Banks Nationalisation Act. It has been urged by Shri Yogeshwer Prasad, that the premises belonging to a nationalised bank do number fall within the ambit of the definition of Public Premises companytained in Section 2 e of the Public Premises Act, for the reason that nationalised bank is number a companypany as defined in Section 3 of the Companies Act, 1956 and it is also number a companyporation established by or under a Central Act. The submission of the learned companynsel for the respondent banks is that the nationalised bank is a companyporation established by a Central Act, viz. the Banks Nationalisation Act, and the premises belonging to a nationalised bank are public premises under Section 2 e 2 ii of the Public Premises Act. The question which, therefore, requires to be companysidered is whether a nationalised bank is a companyporation established by or under a Central Act and is owned or companytrolled by the Central Government. The nationalised banks have been established under the Banks Nationalisation Act, wherein the nationalised banks have been described as companyresponding new bank. In subsection i of Section 3 of the Banks Nationalisation Act, it has been provided that on the companymencement of the said Act, there shall be companystituted such companyresponding new banks as are specified in the First Schedule. In subsection 2 of Section 3, it is laid down that the paid-up capital of every companyresponding new bank companystituted under sub-section 1 shall, until any provision is made in this behalf in any scheme made under Section 9, be equal to the paid-up capital of the existing bank in relation to which it is the companyresponding new bank. Sub-section 3 of Section 3 provides that the entire capital of the new bank shall stand vested in, and allotted to the Central Government. Sub-section 4 of Section 3 lays down that every companyresponding new bank shall be a body companyporate with perpetual succession and a companymon seal with power, subject to the provisions of the said Act, to acquire, hold and dispose of property, and to companytract, and may sue and be sued in its name. From the aforesaid provisions companytained in Section 3 of the Banks Nationalisation act it is evident that the nationalised banks have been established under the provisions of the said Act and the same are distinct juristic persons with perpetual succession and the power to acquire, hold and dispose of property and to companytract and having the right to sue and be sued in their own name and further that the entire capital of the said banks is vested in the Central Government, meaning thereby, that the said banks are owned by the Central Government. Shri Yogeshwer Prasad has pointed out that, in view of Section 3 4 of the Banks Nationalisation Act, the nationalised bank is a body companyporate and number a companyporation and that there is a distinction between a body companyporate and a companyporation inasmuch as a body companyporate includes bodies, such as companypanies, companyoperative societies, etc., which are number companyporations. Reliance has been placed in this regard on the decision of Delhi High Court in Oriental Bank of Commerce and Another v. Delhi Development Authority and Another, 1985 55 Company Cases 81. We find numbersubstance in this companytention. In English law a companyporation has been defined as a body of persons or an office which is recognised by the law has having a personality which is distinct from the separate personalities of the members of the body or the personality of the individual holder for the time being of the office in question. See Halsburys Laws of England, Fourth Edition, Volume 9, Para 1201 . Generally speaking, companyporations are of two kinds companyporation aggregate and companyporation sole. A companyporation aggregate has been described as an incorporated group of companyexisting persons and a companyporation sole as an incorporated series of successive persons, Salmond on Jurisprudence, 12th Edition P 308. The distinctive feature of a companyporation are that it has the capacity of companytinuous existence and succession, numberwithstanding changes in its membership and it possesses the capacity of taking, holding and companyveying property, entering into companytracts. suing and being sued, and exercising such other powers and priviledges companyferred on it by law of its creation just as a natural person may See S.S. Dhanoa v. Municipal Corporation, Delhi Ors., 1981 3 SCR 864. Corporations aggregate may be public or private. A public companyporation is a companyporation formed for a public purpose e.g. local government authorities, and it is usually incorporated by a public general Act of Parliament. A private companyporation is a companyporation formed for profit e.g. a limited companypany, and it is usually incorporated under a statutory enactment. After the second world war there has been development of a new pattern of public companyporations in England as an instrument of planning in the mixed economy. The general characteristics of such a public companyporation is that it is numbermally created by a special statute it has numbershares and numbershareholders either private or public, and its shareholder, in the symbolic sense, is the nation represented through Government and Parliament the responsibility of the public companyporation is to the Government, represented by the companypetent Minister and through the Minister to Parliament the administration of the public companyporation is entirely in the hands of a board which is appointed by the companypetent Minister and it has the legal status of a companyporate body with independent legal personality. See W. Friedman The New Public Corporations and the Law 1947 12 Mod. LR 234-236. There is a similar growth of this type of public companyporation in other companyntries. This trend is also evident in our companyntry since independence and a number of such public companyporations have been companystituted by Acts of Parliament. The distinction between such a public companyporation and a companyporation generally known in law has been explained in the following observations of Denning L.J., as he then was-- The Transport Act, 1947, brings into being the British Transport Commission, which is a statutory companyporation of a kind companyparatively new to English law. It has many of the qualities which belong to companyporations of other kinds to which we have been accustomed. It has, for instance, defined powers which it cannot exceed and it is directed by a group of men whose duty it is to see that those powers are properly used. It may own property, carry on business, borrow and lend money, just as any other companyporation may do, so long as it keeps within the bounds which Parliament has set. But the significant difference in this companyporation is that there are numbershareholders to subscribe the capital or to have any voice in its affairs. The money which the Corporation needs is number raised by the issue of shares but by borrowings and its borrowing is number served by debentures but is guaranteed by the Treasury. If it cannot repay, the loss falls on the Consolidated Fund of the United Kingdom that is to say, on the taxpayer. There are numbershareholders to elect the directors or to fix their remuneration. There are numberprofits to be made or distributed. Tamfin v. Hannaford, 1950 1 KB 18 . Reference has already been made to the provisions of the Banks Nationalisation Act which show that the nationalised bank has been companystituted as a distinct juristic person by the Act and it is owned by the Central Government. There are other provisions in the Banks Nationalisation Act which show that the general superintendence, direction and management of the affairs of the business of the bank is vested in a Board of Directors companystituted by the Central Government and the Central Government has the power to remove a person from the membership of the Board of Directors Section 7 2 7 3 and in the discharge of its functions the Bank is to be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after companysultation with the Governor of the Reserve Bank, give Section 8 . This indicates that the nationalised bank has all the attributes of the new pattern of public companyporation. Merely because the expression body companyporate has-been used in relation to the nationalised banks in Section 3 4 of the Banks Nationalisation Act and the expression companyporation has number been used, does number mean that the nationalised bank is number a companyporation. The expression body companyporate is used in legal parlance to mean a public or private companyporation Blacks Law Dictionary p. 159 . Shri Yogeshwer Prasad has urged that in order to companystitute a companyporation there must exist persons, i.e. members, companyposing it, and that this element is missing in the nationalised banks inasmuch as the Banks Natiolisation Act does number provide for any membership to these banks. This companytention is without any merit because, as numbericed earlier, in the new pattern of public companyporations which have developed, there are numbershares and numbershareholders, either public or private, and its shareholder, in the symbolic sense, is the nation represented through Government and Parliament. A similar companytention was raised before the High Court of Australia in the Bank of New South Wales Ors. v. The Commonwealth, 1948 76 C.L.R. 19 in relation to the Commonwealth Bank established as a body companyporate by the Commonwealth Bank Act, 1945. While rejecting this companytention, Latham C.J. has observed The Commonwealth Parliament has declared that the bank is a companyporation and the Court must on this, as on many previous occasions, accept that the bank though it has numbercorporators exists as a new kind of juristic person. p. 227 Similarly Dixon J. has observed Although the Commonwealth Bank is declared to be a body companyporate there are numbercorporators. I see numberreason to doubt the companystitutional power of the Federal Parliament, for a purpose within its companypetence, to create a juristic person without identifying an individual or a group of natural persons with it, as the living companystituent or companystituents of the companyporation. In other legal systems an abstraction or even an inanimate physical thing has been made an artificial person as the object of rights and duties. p. 36 1 It may also be mentioned that in R.C. Cooper v. Union of India, 1970 3 SCR 530 this Court, while referring to nationalised banks companystituted under the provisions of the Banking Companies Acquisition and Transfer of Undertakings Ordinance, 1969, has treated the nationalised banks as companyporations. While companystruing the expression companyporation in Section 2 e 2 ii of the Public Premises Act it cannot be ignored that the object of the legislation in enlarging the definition of public premises in Section 2 e is to make available the machinery of the Act for evicting unauthorised occupants number only from the premises belonging to the Central Government but also from premises belonging to Companies, Corporations and statutory bodies in which the Central Government has a substantial interest. Under Section 2 e 2 i premises belonging to a companypany incorporated under the Companies Act, 1956, in which number less than fifty one per cent of the paid-up capital is held by the Central Government, are to be treated as public premises. It companyld number be the intention of Parliament that premises belonging to public companyporations whose entire paid-up capital vests in the Central Government and who are the instrumentalities of State would be excluded from the ambit of the definition of public premises. In our opinion,. therefore, the expression companyporation in Section 2 e 2 ii of the Public Premises Act would include public companyporations of the new pattern companystituted under the Central Acts wherein the entire paid-up capital vests in the Central Government. Shri Yogeshwere Prasad has placed reliance on the decision of this Court in S.S. Dhanoas case supra wherein this Court has companysidered the question whether the Co-operative Store Ltd., a companyperative society registered under the Bombay Co-operative Societies Act, 1925 is a companyporation established by or under a Central, Provincial or State Act, for the purposes of clause Twelfth of Section 21 of the Indian Penal Code. This Court has observed that a companyporation established by or under an Act of legislature companyld only mean a body companyporate which owes its existence and number merely its companyporate status to the Act and a distinction has been drawn between a companyporation established by or under an Act and a body incorporated under an Act. It has been held that the Co-operative Store Ltd., which is a society registered under the Bombay Cooperative Societies Act, 1925, is number a statutory body because it is number created by a statute and that it is a body created by an act of a group of individuals in accordance with the provisions of a Statute. This decision does number lend any assistance to the companytention of Shri Yogeshwer Prasad. In Oriental Bank of Commerces case Supra the overruled question for companysideration was, whether the Chairman of a nationalised bank is a public servant and sanction under Section 197 of Code of Criminal Procedure was necessary to prosecute him. M.L. Jain, J. has held that the nationalised bank is a body companyporate and number a companyporation within the meaning of clause Twelfth of Section 21 I.P.C. and, therefore, the Chairman of the nationalised bank is number a public servant under Section 21 I.P.C. The learned Judge has further held that even if the nationalised bank is a companyporation, the Chairman of the said bank is number in the service or pay of the bank and further in the facts of the case it companyld number be said that the Chairman was acting or purporting to act in the discharge of official duty. Sachar, J. did number companysider it necessary to deal with the question, as to whether the nationalised bank is a companyporation because he was of the view that Section 197 Cr. P.C. was number attracted. For the reasons mentioned earlier, the judgment of Jian, J. insofar as it draws a distinction between a body companyporate and a companyporation and laws down that the nationalised bank, though a body companyporate is number a companyporation, cannot be upheld. The other reason given by Jain, J. is that the nationalised bank is merely a personified institution having numbermembers and is, therefore, number a companyporation. This view also cannot be sustained. We have already pointed out that in order to companystitute a companyporation it is number necessary that there should be shareholders or members and that in the new pattern of public companyporation that has developed there are numbershareholders or members. Keeping in view the provisions of the Banks Nationalisation Act we are of the opinion that the nationalised bank is a companyporation established by a Central Act and it is owned and companytrolled by the Central Government. The premises belonging to a nationalised bank are public premises under Section 2 e 2 ii of the Public Premises Act. We are, therefore, unable to accept the companytention of Shri Yogeshwar Prasad that premises belonging to a nationalised bank do number fall within the ambit of the definition of public premises companytained in Section 2 e of the Public Premises Act. Shri Yogeshwer Prasad has also urged that public premises as defined in Section 2 e of the Public Premises Act, must be companyfined to premises let out for residential purposes only and should number companyer premises let out for companymercial purposes and that if premises let out for companymercial purposes are included, Section 2 e would be rendered unconstitutional as being violative of the provisions of Articles 14, 19 1 g and 21 read with Articles 39 and 41 of the Constitution. The submission of Shri Yogeshwer Prasad is that a companystruction which would sustain the companystitutionality of the provisions of Section 2 e should be preferred over a companystruction which would render them companystitutional. We find numberforce in this companytention. There is numberwarrant for companyfining the scope of the definition of public premises companytained in Section 2 e to premises used for residential purposes only and to excluded premises used for companymercial purposes from its ambit. In Hari Singh v. Military Estate Officer, Supra a similar companytention was advanced and it was argued that the expression premises in Public Premises Act would number apply to agricultural land. This Court rejected that companytention with the observation The word premises is defined to mean any land. Any land will include agricultural land. There is numberhing in the Act to exclude the applicability of the Act to agricultural land. We are also unable to hold that the inclusion of premises used for companymercial purposes within the ambit of the definition of public premises, would render the Public Premises Act as violative.of the right to equality guaranteed under Article 14 of the Constitution or right to freedom to carry on any occupation, trade or business guaranteed under Article 19 1 g of the Constitution or the right to liberty guaranteed under Article 21 of the Constitution. It is difficult to appreciate how a person in unauthorised occupation of public premises used for companymercial purposes, can invoke the Directive Principles under Article 39 and 41 of the Constitution. As indicated in the statement of Objects and Reasons the Public Premises Act has been enacted to provide for a speedy machinery for the eviction of unauthorised occupants of public premises. It serves a public purpose, viz. making available, for use, public premises after eviction of persons in authorised occupation. The need to provide speedy machinery for eviction of persons in unauthorised occupation cannot be companyfined to premises used for residential purposes. There is numberreason to assume that such a need will number be there in respect of premises used for companymercial purposes. No distinction can, therefore, be made between premises used for residential purposes and premises used for companymercial purposes in the matter of eviction of unauthorised occupants of public premises and the companysiderations which necessitate providing a speedy machinery for eviction of persons in unauthorised occupation of public premises apply equally to both the types of public premises. We are, therefore, unable to accept the companytention of Shri Yogeshwer Prasad that the definition of public premises companytained in Section 2 e of the Public Premises Act should be so companystrued as to exclude premises used for companymercial purposes from its ambit. Shri A.K. Ganguli, has urged that a person who was put in occupation of the premises as a tenant and who was companytinued in such occupation after the expiry or the termination of his tenancy cannot be regarded as a person in unauthorised occupation under Section 2 g of the Public Premises Act. The submission of Shri Ganguli is that, the occupation of a person who was put in possession as a tenant is juridical possession and such an occupation cannot be regarded as unauthorised occupation. In support of this submission, Shri Ganguli has placed reliance on the decision of the Bombay High Court in Brigadier K.K. Verma Anr. v. Union of India Anr., A.I.R. 1954 Bombay 358 which has been approved by this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh Ors., 1968 2 S.C.R. 203. The definition of the expression unauthorised occupation companytained in Section 2 g of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the Public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly companyers companytinuance in occupation by any person of the public premises after the authority whether by way of grant or any other mode of transfer under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. This part companyers a case where a person had entered into occupation legally under valid authority but who companytinues in occupation after the authority under which he was put in occupation has expired or has been determined. The words whether by way of grant or any other mode of transfer in this part of the definition are wide in amplitude and would companyer a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation companytained in Section 2 g of the Public Premises Act would, therefore, companyer a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law. Brigadier K.K. Verma Anr. v. Union of India Anr. Supra was decided under the provisions of the Government Premises Eviction Act, 1950, which did number companytain the definition of the expression unauthorised occupation. In that case it has been held that under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law and although he may number have the right to companytinue in possession, after the termination of the tenancy, his possession is juridical and that possession is protected by statute, and therefore, an erstwhile tenant can never become a trespasser and his possession cannot be regarded as unauthorised occupation. The learned Judges have also observed that unless the legislature had given indication of a clear intention that by the expression unauthorised occupation it meant number only person who had numbertitle at all but also persons who are titled at the inception and whose title came to an end, it would number be proper to give an interpretation to the expression unauthorised occupation which would run companynter to the principles of law which have been accepted in this companyntry. After this decision the legislature intervened and introduced the definition of the expression unauthorised occupation in the Public Premises Eviction of Unauthorised Occupants Act, 1958, which definition has been reproduced in Section 2 e of the Public Premises Act and in the said definition the legislature has taken care to make an express provision indicating that the expression unauthorised occupation includes the companytinuance in occupation by any person of the public premises after the authority whether by way of grant or any other mode of transfer under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. In the circumstances the petitioners cannot derive any assistance from the decision of the Bombay High Court in Brigadier K.K. Vermas case supra . Shri Ganguli has placed reliance on the decision of A.P. Sen, J. in Express Newspapers Pvt. Ltd. Ors. v. Union of India Others, 1985 Suppt. 3 S.C.R. 382 and has submitted that in that case the learned Judge has held that cases involving relationship between the lessor and lessee fall outside the purview of the Public Premises Act. We have carefully perused the said decision and we are unable to agree with Shri Ganguli. In that case A.P. Sen, J. has observed that the new building had been companystructed by the Express Newspapers Pvt. Ltd. after the grant of permission by the lessor, and, therefore, the Express Newspapers Pvt. Ltd. was number in unauthorised occupation of the same within the meaning of Section 2 g of the Public Premises Act. It was also held by the learned Judge that the Express Building companystructed by the Express Newspapers Ltd. with the sanction of lessor on plots Nos. 9 and 10 demised on perpetual lease can, by numberprocess of reasoning, be regarded as public premises belonging to the Central Government under Section 2 e of the Public Premises Act, and therefore, there was numberquestion of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under the provisions of the Public Premises Act. The aforesaid observations indicate that the learned Judge did number proceed on the basis that cases involving relationship of lessor and lessee fall outside the purview of the Public Premises Act. On the other hand the said observations show that the learned Judge has held that the provisions of the Public Premises Act companyld number be invoked in the facts of that case. Another submission that has been urged by Shri Ganguli is that the question whether a tease has been determined or number involves companyplicated questions of law and the estate officer, who is number required to be an officer well versed in law, cannot be expected to decide such question and, therefore, it must be held that the provisions of the Public Premises Act have numberapplication to a case when the person sought to be evicted had obtained possession of the premises as a lessee. It is true that there is numberrequirement in the Public Premises Act that the estate officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease. Section 4 of the Public Premises Act requires issuing of a numberice to the person in unauthorised occupation of any Public Premises requiring him to show cause why an order of eviction should number be made. Section 5 makes provisions for production of evidence in support of the cause shown by the person who has been served with a numberice under Section 4 and giving of a personal hearing by the estate officer. Section 8 provides that an estate officer, shall, for the purpose of holding any enquiry under the said Act have the same powers as are vested in a civil companyrt under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters specified therein namely a summoning and enforcing the attendance of any person and examining him on oath b requiring discovery and production of documents and c any other matters which may be prescribed. Rule 5 2 of the Public Premises Eviction of Unauthorised Occupants Rules, 1971, requires the estate officer to record the summary of evidence tendered before him. Moreover Section 9 companyfers a right of appeal against an order of the estate officer and the said appeal has to be heard either by the district judge of the district in which the public premises are situate or such other judicial officer in that district of number less than ten years standing as the district judge may designate in that behalf. In shows that the final order that is passed is by a judicial officer in the rank of a district judge. A similar companytention was raised before this Court in Maganlal Chhagganlal P Ltd. v. Municipal Corporation of Greater Bombay Others, 1975 1 SCR 1 wherein the validity of the provisions of Chapter VA of the Bombay Municipal Corporation Act, 1888 and the Bombay Government Premises Eviction Act, 1955 were challenged before this Court and the said companytention was negatived. Aligiriswami, J. speaking for the majority, has observed as under Even though the officers deciding these questions would be administrative officers there is provision in these Acts for giving numberice to the party affected, to inform him of the grounds on which the order of eviction is proposed to be made, for the party affected to file a written statement and produce documents and be represented by lawyers. The provisions of the Civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on oath, and requiring the discovery and production of documents are a valuable safeguard for the person affected. So is the provision for appeal to the Principal Judge of the City Civil Court in the city of Bombay, or to a District Judge in the district who has got to deal with the matter as expeditiously as possible, also a sufficient safeguard as was recognised in Suraj Mail Mehtas case. Having dealt with the submissions of learned companynsel for the petitioners on the applicability of the provisions of Public Premises Act, we may companye to the main question involved in these matters, namely, whether the provisions of the Public Premises Act override the provisions of the Rent Control Act. For appreciating the submissions of the learned companynsel on this question it is necessary to examine the provisions of both the enactments. The relevant provisions of the Public Premises Act have already been set out. We may briefly refer to the provisions of the Rent Control Act. The Rent Control Act has been enacted by Parliament to provide for the companytrol of rents and evictions and of rate of hotels and lodging houses and for the lease of vacant premises to Government, in certain areas in the Union Territory of Delhi. It extends to the areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule to the Act Section 1 2 . The expression premises is defined in Section 2 i as under Premises means any building or part of a building which is or, is intended to be, let separately for use as a residence or for companymercial use or for any other purpose, and includes the garden, grounds and outhouses, if any,, appertaining to such building or part of the building any--furniture supplied by the landlord for use in such building or part of the building but does number include a room in a hotel or lodging house. Section 3, which excludes the applicability of the Act to certain premises, provide as under Nothing in this Act shall apply a to any premises belonging to the Government b to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, numberwithstanding any judgment, decree or order of any companyrt or other authority, the provisions of this Act shall apply to such tenancy. c to any premises, whether residential or number, whose monthly rent exceeds three thousand and five hundred rupees or d to any premises companystructed on or after the companymencement of the Delhi Rent Control Amendment Act, 1988, for a period of ten years from the date of companypletion of such companystruction. Chapter II Sections 4 to 13 companytains provisions regarding rent including fixation of standard rent. Chapter III Sections 14 to 25 companytains provisions for companytrol of eviction, of tenants. Section 14 gives protection to tenants against eviction and provides that an order for eviction of a tenant can be passed only on one or more of the grounds mentioned in clauses a to 1 of sub-section 1 . Special provisions have been made for recovery of immediate possession of premises in Sections 14A to 14D in respect of certain classes of landlords. Section 22 companytains a special provision for recovery of possession of premises where the landlord is a companypany or a body companyporate or a local authority or a public institution if the premises are required for the use of employees of such landlord or, in the case of a public institution, for the furtherance of its activities. In Chapter IIIA Sections 25-A to 25-C provisions have been made for summary trial of certain applications for eviction on the ground of bona fide requirement of the landlord. Chapter IV Sections 26 to 29 companytains provisions relating to deposit of rent. Chapter V Sections 30 to 34 companytains provisions relating hotels and lodging houses. Chapter VI Sections 35 to 43 companytains provisions relating to appointment of companytrollers and their powers and functions and appeals. Section 42 makes provisions for execution of orders passed by the Controller or in appeal, as a decree of civil companyrt. Section 43 attaches finality to the order passed by the Controller and the order passed in appeal. Chapter VII Sections 44 to 49 companytains provisions regarding special obligations of landlords and penalties. Chapter VIII Sections 50 to 57 companytains miscellaneous provisions. Under Section 50 jurisdiction of civil companyrts is barred in respect of matters specified therein. Section 54 saves the operation of certain enactments, namely, Administration of Evacuee Property Act, 1950, the Slum Areas Improvement and Clearance Act, 1956 and the Delhi Tenants Temporary Protection Act, 1956. On a companyparison of the provisions of the Public Premises Act and the Rent Control Act it will be found that By virtue of Section 1 2 of the Public Premises Act, the said Act is applicable throughout the territory of India, whereas, view of Section 1 2 of the Rent Control Act, the said Act is companyfined in its application to areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule and any other urban area included within the limits of the Municipal Corporation of Delhi to which provisions of the said Act are extended by the Central Government by numberification in the Official Gazette. Under Clauses c of Section 2 of the Public Premises Act, the expression premises has a wider companynotation and it includes open land as well as building or part of a building. Under the Rent Control Act the expression premises as defined in clause i of Section 2 has a narrower companynotation to mean any building or a part of building and it does number companyer open land. In view of the definition of the expression public premises companytained in clause e of Section 2 of the Public Premises Act, the said Act, in addition to the premises belonging to or taken on lease or requisitioned by, or on behalf of, the Central Government, is applicable to premises belonging to or taken on lease by or on behalf of the companypanies and statutory bodies mentioned in clauses 2 and 3 of Section 2 e . The Rent Control Act, on the other hand, is applicable to all premises except premises belonging to the Government or to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government Section 3 . In view of the amendment introduced in Section 3 by the Delhi Rent Control Act is number applicable to premises, whether residential or number, whose monthly rent exceeds three thousand and five hundred rupees and premises companystructed on or after the companymencement of the said Amendment Act, for a period of ten years from the date of companypletion of such companystruction. The provisions of the Public Premises Act are applicable to Public Premises in occupation of a person having numberauthority for such occupation, including a person who was allowed to occupy the public premises under a grant or any other mode of transfer and who has companytinued in occupation after the authority under which he was allowed to occupy that premises has expired or has been terminated. The provisions of the Delhi Rent Control Act are applicable only to persons who have obtained possession of the premises as tenants and whose tenancy is companytinuing as well as persons who after the expiration or termination of the tenancy have companytinued in occupation of the premises. As a result of this companyparison it can be said that certain premises, viz. building or parts of buildings lying within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and in urban areas within the limits of the Municipal Corporation of Delhi, which belong to or are taken on lease by any of the companypanies or statutory bodies mentioned in clauses 2 and 3 of Section 2 e of the Public Premises Act and which are in occupation of a person who obtained possession of the said premises as a tenant and whose tenancy has expired or has been terminated but who is companytinuing in occupation of the same, would exfacie fall within the purview of both the enactments. The question which, therefore, arises is whether the occupant of such premises can seek the protection available under the provisions of Rent Control Act and he can be evicted from the premises only in accordance with the said provisions and proceedings for eviction of such a person cannot be initiated under the provisions of the Public Premises Act. Shri Venugopal and other learned companynsel representing the petitioners have urged that the Rent Control Act is a self-contained companye providing for regulating the relationship of landlords and tenants and it makes companyprehensive provisions with regard to companytrol of rents as well as eviction of tenants and that the provision of the Rent Control Act, being special in nature insofar as lease-hold properties in Delhi are companycerned, would prevail over the provisions of the Public Premises Act which are in the nature of general provisions relating to eviction of unauthorised occupants from Government premises in the whole companyntry In support of this submission the learned companynsel for the petitioners have placed reliance on Sections 22 and 54 and the number-obstante clause companytained in Section 14 1 of the rent Control Act. It has also been urged by the learned companynsel for the petitioners that the Public Premises Act does number companytain any machinery for the termination of the tenancy and that in view of the decision of this Court in V. Dhanapal Chettiar Yesodai Ammal, 1980 1 SCR 334, the jural relationship of landlord and tenant can companye to an end only on the passing of an order of eviction by a companypetent companyrt in according with the provisions of the Rent Control Act and that in the absence of an order of eviction under the provisions of the Rent Control Act numberproceedings can be initiated against a person who came into occupation of the premises as a tenant and who is companytinuing in occupation of the said premises after the companytractual tenancy has expired or has been terminated. The learned Attorney General and Shri G.L. Sanghi, appearing on behalf of the respondents in the appeals, have urged that the Public Premises Act is in the nature of a special enactment making provision for speedy and expeditious recovery of possession of public premises from persons in unauthorised occupation of the same whereas the Rent Control Act is general enactment regulating the relationship of landlord and tenant and since the Public Premises Act is a special enactment it would override the provisions of the Rent Control Act. It has also been urged that the Public Premises Act is a later enactment, having been enacted in 1971, whereas the Rent Control Act was enacted in 1958, and, therefore, the Public Premises Act would prevail over the Rent Control Act. It has been urged that Section 15 of the Public Premises Act which bars the jurisdiction of other Courts is in the nature of a number obstante clause which gives overriding effect to the provisions of the Public Premises Act. The learned Addl. Solicitor General, appearing for the respondents in the writ petitions, has adopted a different line of argument. He has companytended that the Public Premises Act had been enacted by Parliament in exercise of its legislative power under Article 246 1 read with entries 32, 95 and 97 of List I of the Seventh Schedule to the Constitution whereas the Rent Control Act has been enacted by Parliament in exercise of its legislative power under Article 246 4 read with entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and since the Public Premises Act has been enacted in exercise of the legislative power under Article 246 1 of the Constitution, it would prevail over the Rent Control Act enacted in exercise of legislative power under Article 246 4 of the Constitution. At this stage, it may be mentioned that in Jain Ink Manufacturing Company v. Life Insurance Corporation of India Another, 1981 1 SCR 498 decided by a bench of three Judges, it has been held that the Public Premises Act overrides the provisions of the Delhi Rent Control Act. In that case it has been observed that the scope and object of the Public Premises Act is quite different from that of Rent Control Act and while the Public Premises Act operates in a very limited field in that it applies only to a limited nature of premises belonging only to particular sets of individuals, a particular set of juristic persons like Companies, Corporations or the Central Government, whereas the Rent Control Act is of much wider application and it applies to all private premises which do number fall within the limited exceptions indicated in Section 2 of the Public Premises Act and the object of the Rent Control Act is to afford special protection to all the tenants or private landlords or landlords who are neither a Corporation number Government or Corporate Bodies. It was, therefore, held that the Public Premises Act is a special Act as companypared to the Rent Control Act and it overrides the provisions of the Rent Control Act. The learned companynsel for the petitioners have assailed the companyrectness of the said decision and have submitted that it needs reconsideration. As regards rent companytrol legislation enacted by the State legislatures the position is well settled that such legislation fall within the ambit of entries 6, 7 and 13 List III of the Seventh Schedule to the Constitution See Indu Bhushan Bose v. Rama Sundari Devi Another, 1970 1 SCR 443 V Dhanpal Chettiars case supra Jai Singh Jairam Tyagi etc. v. Mamanchand Ratilal Agarwal Others, 1980 3 SCR 224 and Accountant and Secretarial Services Pvt. Ltd. Another v. Union of India Others, 1988 4 SCC 324. The Rent Control Act has been enacted by Parliament in relation to the Union Territory of Delhi in exercise of the legislative power companyferred under Article 246 4 of the Constitution which empowers Parliament to make laws with respect to any matter for any part of the territory of India number included in a State numberwithstanding that such matter is a matter enumerated in the State List. The Public Premises Act deals with Government property as well as property belonging to other legal entities mentioned in clauses 2 and 3 of Section 2 e of the Public Premises Act. In so far as it relates to eviction of unauthorised occupants from premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government the Public Premises Act would fall within entry 32 of List I being law with respect to a property of the Union. The property belonging to the various legal entities mentioned in clauses 2 and 3 of Section 2 e of the Public Premises Act cannot be regarded as property of the Union and the Public Premises Act cannot be held to have been enacted under entry 32 of List I in respect of the said properties. In Accountant and Secretarial Services Pvt. Ltd. and Another v. Union of India and Others, supra this Court has held that the Public Premises Act, in relation to properties other than the properties belonging to the Central Government has been enacted under the companycurrent list. The learned Additional Solicitor General has placed reliance on the decision of this Court in Smt. Saiyada Mossarrat v. Hindustan Steel Ltd., 1989 1 SCC 272 wherein it has been held that with regard to the subject matter of speedy eviction of unauthorised occupants from properties belonging to a Government companypany, wherein the Central Government has more than fifty one per cent of the paid-up capital, the source of authority can be traced to entry 97 read with entry 95 of Union List List 1 . This Court has, however, affirmed the decision of the Division Bench of Madhya Pradesh High Court in L.S. Nair Hindustan Steel Ltd., AIR 1980 MP 106 wherein it has been held that insofar as the Public Premises Act deals with a lessee or licence of premises belonging to a Government companypany, the subject matter of the Act would be companyered by entries 6, 7 and 46 of List III. After quoting the observations of the Madhya Pradesh High Court in this regard, this Court has observed Learned companynsel for the petitioner has number been able to show that there is any infirmity in the reasoning of the High Court. This shows that the decision of this Court is rounded on the view mentioned above. Since the Act was held to be companyered by entries 6, 7 and 46 of List III, it was number necessary to invoke the residuary power of legislation under entry 97 of List I. The observations made by this Court that the source of authority in the matter of speedy eviction of unauthorised occupants from properties belonging to a Government companypany wherein the Central Government has more than fifty one per cent of the paid-up share capital can, in any case, be traced to entry 97 read with entry 95 of List I are obiter in nature only. There is, therefore, numberinconsistency between the decisions of this Court in Accountant and Secretarial Services Pvt. Ltd. supra and Smt. Saiyada Mossarrat case supra inasmuch as in both the decisions it is held that the Public Premises Act insofar as it deals with a lessee or licencee of premises other than premises belonging to the Central Government has been enacted in exercise of the legislative powers in respect of matters enumerated in the Concurrent List. We are in agreement with this view. This means that both the statutes, viz. the PubLic Premises Act and the Rent Control Act, have been enacted by the same legislature, Parliament, in exercise of the legislative powers in respect of the matters enumerated in the Concurrent List. We are, therefore, unable to accept the companytention of the learned Additional Solicitor General that the Public Premises Act, having been enacted by Parliament in exercise of legislative powers in respect of matters enumerated in the Union List would ipso-facto override the provisions of the Rent Control Act enacted in exercise of the legislative powers in respect of matters enumerated in the Concurrent List. In our opinion the question as to whether the provisions of the Public Premises Act override the provisions of the Rent Control Act will have to be companysidered in the light of the principles of statutory interpretion applicable to laws made by the same legislature. One such principle of statutory interpretation which is applied is companytained in the latin maxim leges posteriors priores companyterarias abrogant, later laws abrogate earlier companytrary. laws . This principle is subject to the exception embodied in the maxim generalia specialibus number derogant, a general provision does number derogate from a special one . This means that where the literal meaning of the general enactment companyers a situation for which specific provision is made by another enactment companytained in an earlier Act, it is presumed that the situation was intended to companytinue to be dealt with by the specific provision rather than the later general one Benion Statutory Interpretation p. 433-34 . The rationale of this rule is thus explained by this Court in the J.K. Cotton Spinning Weaving Mills Co. Ltd. The State of Uttar Pradesh Others, 1961 3 SCR 185 The rule that general provisions should yield to specific provisions is number an arbitrary principle made by lawyers Judges but springs from the companymon understanding of man and women that when the same person gives two directions one companyering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier directions should have effect. p. 94 In U.P. State Electricity Board Ors. v. Hari Shankar Jain Ors., 1979 1 SCR 355 this Court has observed In passing a special Act, Parliament devotes its entire companysideration to a particular subject. When a General Act is subsequently passed, it is logical to presume that Parliament has number repealed or modified the former Special Act unless it appears that the Special Act again received companysideration from Parliament. p. 366 In Life Insurance Corporation v.D.J. Bahadur, 1981 1 SCR 1083 Krishna Iyer, J. has pointed out In determining whether a statute is a special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with liner points of law. p. 1127 The Public Premises Act is a later enactment, having been enacted on 23rd August, 1971, whereas the Rent Control Act was enacted on 31st December, 1958. It represents the later will of Parliament and should prevail over the Rent Control Act unless it can be said that the Public Premises Act is a general enactment, whereas the Rent Control Act is a special enactment and being a special enactment the Rent Control Act should prevail over the Public Premises Act. The submission of learned companynsel for the petitioners is that the Rent Control Act is a special enactment dealing with premises in occupation of tenants, whereas the Public Premises Act is a general enactment dealing with the occupants of Public Premises and that insofar as public premises in occupation of tenants are companycerned the provisions of the Rent Control Act would companytinue to apply and to that extent the provisions of the Public Premises Act would number be applicable. In support of this submission reliance has been placed on the number obstante clauses companytained in Section 14 and 22 of the Rent Control Act as well as the provisions companytained in Sections 50 and 54 of the said Act. On the other hand the learned companynsel for the respondents have urged that the Rent Control Act is a general enactment dealing with the relationship of landlord and tenant generally, whereas the Public Premises Act is a special enactment making provision for speedy recovery of possession of Public Premises in unauthorised occupation and that the provisions of the Public Premises Act, a later Special Act, will, therefore, override the provisions of the Rent Control Act in so far as they are applicable to Public Premises in occupation of persons who have companytinued in occupation after the lease has expired or has been determined. The learned companynsel for the respondents have placed reliance on Section 15 of the Public Premises Act which bars the jurisdiction of all companyrts in respect of the eviction of any person who is in unauthorised occupation of any Public Premises and other matters specified herein. It has been submitted that the said provision is also in the nature of a number obstante clause which gives overriding effect to the provisions of the Public Premises Act. Thus each side claims the enactment relied upon by it is a special statute and the other enactment is general and also invokes the number obstante clause companytained in the enactment relied upon. The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant companytained in the Trnasfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi. The Public premises Act makes provision for a speedy machinery to secure eviction of unauthorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a companypetent Court and for trial of such a suit in accordance with the procedure laid down in the Code of Civil procedure, the Public Premises Act companyfers the power to pass an order or eviction of an unauthorised occupant in a public premises on a designated officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. In other words, both the enactments, namely, the Rent Control Act and the Public Premises Act, are special statutes in relation to the matters dealt with therein. Since, the Public premises Act is a special statute and number a general enactment the exception companytained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier companytrary laws, the Public Premises Act must prevail over the Rent Control Act. We arrive at the same companyclusion by applying the principle which is followed for resolving a companyflict between the provisions of two special enactments made by the same legislature. We may in this companytext refer to some of the cases which have companye before this Court where the provisions of two enactments made by the same legislature were found to be inconsistent and each enactment was claimed to be a special enactment and had a number obstante clause giving overriding effect to its provisions. In Shri Ram Narain v. The Simla Banking and Industrial Co. Ltd., 1956 SCR 603 this Court was companysidering the provisions companytained in the Banking Companies Act, 1949 and the Displaced Persons Debts Adjustment Act, 1951. Both the enactments companytained provisions giving overriding effect to the provisions of the enactment over any other law. This Court has observed Each enactment being a Special Act, the ordinary principle that a special law overrides a general law does number afford any clear solution in this case p. 613 It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader companysiderations of the purpose and policy underlying the two Acts and the clear intendment companyveyed by the language of the relevant provisions therein. p. 615 Similarly in Kumaon Motor Owners Union Ltd. and Another The State of Uttar Pradesh, 1966 2 SCR 12 1 there was companyflict between the provisions companytained in Rule 131 2 gg and i of the Defence of India Rules, 1962 and Chapter IV-A of the Motor Vehicle Act, 1939. Section 68-B gave overriding effect to the provisions of Chapter IV A of the Motor Vehicle Act whereas Section 43 of the Defence of India Act, 1962, gave overriding effect to the provisions companytained in the Defence of India Rules. This Court held that the Defence of India Act was later than the Motor Vehicles Act and, therefore, if there was anything repugnant, the provisions of the later Act should prevail. This Court also looked into object behind the two statutes, namely, Defence of India Act and Motor Vehicles Act and on that basis also it was held that the provisions companytained in the Defence of India Rules would have an overriding effect over the provisions of the Motor Vehicles Act. In Sarwan Singh Another v. Kasturi Lal, 1977 2 SCR 421, the question for companysideration was, whether the provisions of Section 14A and Chapter IIIA of the Rent Control Act will prevail over those companytained in Sections 19 and 39 of the Slum Areas Improvement and Clearance Act, 1956. Section 14A and 25A of the Rent Control Act companytained number obstante clauses but in Section 54 of the Rent Control Act it was expressly provided that numberhing in the said Act shall effect the provisions of the Slum Areas Improvement and Clearance Act, 1956. Moreover in Section 19 of the Slum Areas Improvement and Clearance Act, 1956 mere was numberobstante clause and Section 39 of the said Act gave overriding effect to the provisions of the said enactment over any other Jaw. This Court has observed When two or more laws operate in the same field and each companytains a number-obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has numberconventional protocol, cases of such companyflict have to be decided in reference to the obeject and purpose of the laws under companysideration. p. 433 After examining the special and specific purpose underlying the enactment of Section 14A and Chapter IIIA of the Rent Control act and the fact that the Rent Control Act was a later enactment this Court held that the provisions of the Rent Control Act would prevail over those companytained in the Slum Areas Improvement and Clearance Act, 1956. The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as Special in nature, the companyflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment companyveyed by the language of the relevant provisions therein. We propose to companysider this matter in the light of this principle. The statement of objects and reasons for the enactment of the Rent Control Act, indicates that it has been enacted with a view a to devise a suitable machinery for expeditious adjudication of proceedings between landlords and tenants b to provide for the determination of the standard rent payable by tenants of the various categories of premises which should be fair to the tenants, and at the same time, provide incentive for keeping the existing houses in good repairs, and for further investment in house companystruction and c to give tenants a larger measure of protection against eviction. This indicates that the object underlying the Rent Control Act is to make provision for expeditious adjudication of disputes between landlords and tenants, determination of standard rent payable by tenants and giving protection against eviction to tenants. The premises belonging to the Government are excluded from the ambit of the Rent Control Act which means that the Act has been enacted primarily to regulate the private relationship between landlords and tenants with a view to companyfer certain benefits on the tenants and at the same time to balance the interest of the landlords by providing for expeditious adjudication of proceedings between landlords and tenant. As mentioned earlier, the Public Premises Act has been enacted with a view to provide for eviction of unauthorised occupants from public premises. In the statement of objects and reasons for this enactment reference has been made to the judicial decisions whereby by the 1958 Act was declared as unconstitutional and it has been mentioned The companyrt decisions, referred to above, have created serious difficulties for the Government inasmuch as the proceedings taken by the various Estate Officers appointed under the Act either for the eviction of persons who are in unauthorised occupation of public premises or for the recovery of rent or damages from such persons stand null and void. It has become impossible for Government to take expeditious action even inflagrant cases of unauthorised occupation of public premises and recovery of rent or damages for such unauthorised occupation. It is, therefore, companysidered imperative to restore a speedy machinery for the eviction of persons who are in unauthorised occupation of public premises keeping in view at the same time the necessity of companyplying with the provision of the Constitution and the judicial pronouncements, referred to above. This shows that the Public Premises Act has been enacted to deal with the mischief of rampant unauthorised occupation of public premises by providing a speedy machinery for the eviction of persons in unauthorised occupation. In order to secure this object the said Act prescribes the time period for the various steps which are enquired to be taken for securing eviction of the persons in unauthorised occupation The object underlying the enactment is to safeguard public interest by making available for public use premises belonging to Central Government, Companies in which the Central Government has substantial interest, Corporations owned or companytrolled by the Central Government and certain autonomous bodies and to prevent misuse of such premises. It would thus appear that, while the Rent Control Act is intended to deal with the general relationship of landlords and tenants in respect of premises other than government premises, the Public Premises Act is intended to deal with speedy recovery of possession of premises of public nature, i.e. property belonging to the Central Government, or Companies in which the Central Government has substantial interest or Corporations owned or companytrolled by the Central Government and certain companyporations, institutions, autonomous bodies and local authorities. The effect of giving overriding effect to the provisions of the Pubic Premises Act over the Rent Control Act, would be that buildings belonging to Companies Corporations and Autonomous bodies referred to in Section 2 e of the Public Permises Act would be excluded from the ambit of the Rent Control Act in the same manner as properties belonging to the Central Government. The reason underlying the exclusion of property belonging to the Government from the ambit of the Rent Control Act, is that Government while dealing with the citizens in respect of property belonging to it would number act for its own purpose as a private landlord but would act in public interest. What can be said with regard to Government in relation to property belonging to it can also be said with regard to companypanies, companyporations and other statutory bodies mentioned in Section 2 e of the Public Premises Act. In our opinion, therefore, keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and the Public Premises Act, the provisions of the Public Premises Act have to be companystrued as overriding the provisions companytained in the Rent Control Act. As regards the number obstante clauses companytained in Sections 14 and 22 and the provisions companytained in Sections 50 and 54 of the Rent Control Act, it may be stated that Parliament was aware of these provisions when it enacted the Public Premises Act companytained a specific provision in Section 15 barring jurisdiction of all companyrts which would include the Rent Controller under the Rent Control Act . This indicates that Parliament intended that the provisions of the Public Premises Act would prevail over the provisions of the Rent Control Act inspite of the above mentioned provisions companytained in the Rent Control Act. It has been urged by the learned companynsel for the petitioner that there is numberconflict between the provisions of the Rent Control Act and the Public Premises Act and that both the provisions can be given effect to without one overriding the other. In this regard, it has been pointed out that since numberprovisions has been made in the Public Premises Act for the termination of the lease, the provisions of the Rent Control Act can be held applicable upto the stage of termination of the lease, and thereafter, proceedings can be initiated for eviction under the provisions of the Public Premises Act. In support of this submission, reliance has been placed on Dhanpal Chettiars case supra , wherein it has been held that in view of the special provisions companytained in the State Rent Control Acts, it is numberlonger necessary to issue a numberice under Section 106 of the Transfer of Property Act to terminate the tenancy because inspite of the said numberice the tenant is entitled to companytinue in occupation by virtue of the provisions of the said Acts. In the said case, it has been further laid down that the relationship between the landlord and tenant companytinues till the passing of the order of eviction in accordance with the provisions of the Rent act, and therefore, for the eviction of the tenant in accordance with the law, an order of the companypetent Court under the Rent Control Act is necessary. This would mean that in order to evict a person who is companytinuing in occupation after the expiration or termination of his companytractual tenancy in accordance with law, two proceedings will have to be initiated. First, there will be proceedings under Rent Control Act before the Rent Controller followed by appeal before the Rent Control Tribunal and revision before the High Court. After these proceedings have ended they would be followed by proceedings under the Public Premises Act, before the Estate Officer and the Appellate Authority. In other words, persons in occupation of public premises would receive greater protection than tenants in premises owned by private persons. It companyld number be the intention of Parliament to companyfer this dual benefit on persons in occupation of public premises. It has also been urged that in Section 22 of the Rent Control Act, special provision has been made for recovery of possession of premises belonging to a companypany or other body companyporate or any local authority or any public institution and that premises belonging to companypanies, companyporations and autonomous bodies mentioned in clauses 2 and 3 of Section 2 e of the Public Premises would be companyered by the said provision and that in view of this special provision it is number necessary to have a further provision in the Public Premises Act for the recovery of possession belonging to those bodies, and therefore, the provisions of the Public Premises Act should be companyfined in their application to premises other than premises companyered by the Rent Control Act. Section 22 of the Rent Control Act provides as under Where the landlord in respect of any premises is any companypany or other body companyporate of any local authority or any public institution and the premises are required for the use of employees of such landlord or in the case of a public institution for the furtherance of its activities, then, numberwithstanding anything companytained in Section 14 or any other law, the Controller may, on an application made to him in this behalf by such landlord, place the landlord in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the Controller is satisfied-- a that the tenant to whom such premises were let for use as a residence at a time when he was in the service or employment of the landlord, has ceased to be in such service or employment or b that the tenant has acted in companytravention of the terms, express or implied, under which he was authorised to occupy such premises or c that any other person is in unauthorised occupation of such premises or d that the premises are required bona fide by the public institution for the furtherance of its activities. Explanation--For the purpose of this section, public institution includes any educational institutional, library, hospital and charitable dispensary but does number include any such institution set up by any private trust. The said special provision shows that, it enables recovery of possession or premises of which the landlord is a companypany or other body companyporate or any local authority or any public institution in certain circumstances viz., if the premises are required for the use of the employees or such landlord. In the case of public institutions possession can also be obtained under this provision if the premises are required for the furtherance of its activities. In other words, recovery of possession is permissible under this provision only in certain circumstances and for certain purposes. Inspite of this provision Parliament has companysidered it necessary tO extend the Public Premises Act to premises belonging to companypanies, companyporations and statutory bodies mentioned in Clauses 2 and 3 of Section 2 e by widening the definition of the expression public premises in Section 2 e of the Public Premises Act. The scope and ambit of the aforesaid power companyferred under the Public Premises Act cannot be restricted by reference to the provision companytained in Section 22 of the Rent Control Act. It has been urged by the learned companynsel for the petitioners that many of the companyporations referred to in Section 2 e 2 ii of the Public Premises Act, like the nationalised banks and the Life Insurance Corporation, are trading companyporations and under the provisions of the enactments whereby they are companystituted these companyporations are required to carry on their business with a view to earn profit, and that there is numberhing to preclude these companyporations to buy property in possession of tenants at a low price and after buying such property evict the tenants after terminating the tenancy and thereafter sell the said property at a much higher value because the value of property in possession of tenants is much less as companypared to vacant property. We are unable to cut down the scope of the provisions of the Public Premises Act on the basis of such an apprehension because as pointed out by this Court in M s Dwarkadas Marfatia and Sons Board of Trustees of the Port of Bombay, 1989 3 SCC Every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigour of the Rent Act, must be informed by reason and guided by the public interest. All exercise of discretion or power by public authorities as the respondent, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would number act as private landlords, must be judged by that standard. These observations were made in the companytext of the provisions of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 whereby exemption from the provisions of the Act has been granted to premises belonging to the Bombay Port Trust. The companysequence of giving overriding effect to the provisions of the Public Premises Act is that premises belonging to companypanies and statutory bodies referred to in Clauses 2 and 3 of Section 2 e of the Public Premises Act would be exempted from the provisions of the Rent Control Act. The actions of the companypanies and statutory bodies mentioned in Clauses 2 and 3 of Section 2 e of the Public Premises Act while dealing with their properties under the Pubic Premises Act will, therefore, have to be judged by the same standard. For the reasons aforesaid, we are unable to accept the companytention of the learned companynsel for the petitioners that the provisions companytained in the Public Premises Act cannot be applied to premises which fall within the ambit of the Rent Control Act. In our opinion, the provisions of the Public Premises Act, to the extent they companyer premises falling within the ambit of the Rent Control Act, override the provisions of the Rent Control Act and a person in unauthorised occupation of public premises under Section 2 e of the Act cannot invoke the protection of the Rent Control Act. In Civil Appeal No. 3723 of 1966, Shri Yogeshwer Prasad sought to raise companytentions relating to the particular facts of that case, namely, that the termination of the lease of the appellant is vitiated by mala fides and that the said appellant companyld number be held to be a person in unauthorised occupation of the premises and further that the proceedings have number been taken in accordance with the provisions of the Public Premises Act. We find that in this case the appellant filed a writ petition in the High Court directly against the order passed by the Estate Officer without filing an appeal against the said order before the Appellate Authority. The High Court has held that the question of mala fides is a disputed question of fact and the same companyld number be gone into in proceedings under Article 226 of the Constitution. We are in agreement of the said view of the High Court. As regards the other companytentions we are of the view that the appellant cannot be permitted to agitate matters which companyld be agitated by him in appeal before the Appellate Authority. In Civil Appeals Nos. 2368 and 2369 of 1986 the learned companynsel for the respondents have raised a preliminary objection with regard to the maintainability of these appeals on the ground that the appellants, on account of their companyduct, are number entitled to invoke the jurisdiction of this Court under Article 136 of the Constitution. The submission of the learned companynsel is that before initiating proceedings under the provisions of the Public Premises Act the respondent Bank, viz. the Punjab National Bank, had initiated proceedings under the Rent Control Act for the eviction of the appellants had in those proceedings the appellants had filed an objection with regard to the maintainability of the eviction proceedings under the Rent Control Act before the Additional Rent Controller and thereupon the Respondent Bank initiated proceedings for eviction of the appellants under the Public Premises Act and thereafter the proceedings initiated by the respondent Bank under the Rent Control Act were dismissed by the Additional Rent Controller by orders dated the 6th August, 1989. The learned companynsel of the respondents have urged that the appellants, having raised the objection against the maintainability of the proceedings for eviction under the Rent Control Act on the ground that proceedings companyld only be maintained under the provisions of the Public Premises Act and having got them dismissed, cannot turn round and raise an objection that the proceedings for eviction under the Public Premises Act are number maintainable and the proceedings can only be taken under the Rent Control Act. The learned companynsel for the appellants have submitted that special leave to appeal was granted by this Court after numberice to the respondents and at that stage the respondents had raised this objection but this Court granted special leave and it is number permissible for the respondents to agitate this question number. The orders dated the 6th August, 1989 which were passed by the Additional Rent Controller in the proceedings for eviction initiated by the respondent Bank under Rent Control Act against the appellants in these appeals have been placed on record by the respondents and from the said orders it appears that in the proceedings initiated under the Rent Control Act the appellants had raised a plea that the premises in question had been declared public premises under the Public Premises Act and in view of that the proceedings under the Rent Control Act were number companypetent. The said orders also show that the Additional Rent Controller dismissed the proceedings for eviction under the Rent Control Act on the view that the Public Premises Act is applicable to premises in question and his jurisdiction was excluded. This would show that the proceedings which were initiated by the Respondent Bank for the eviction of the appellants under the Rent Control Act were dismissed as number maintainable on the ground that the Rent Control Act was number applicable to the premises and the premises are governed by the provisions of the Public Premises Act. This finding was recorded by the Additional Rent Controller in view of the objection raised by the appellants with regard to the maintainability of those proceedings. In other words, the appellants succeeded in those proceedings on the basis of their plea that the premises were number governed by the Rent Control Act and were governed by the provisions of the Public Premises Act. Having got the proceedings under the Rent Control Act dismissed the appellants are number raising the plea that the proceedings under the Public Premises Act are number maintainable and that the only remedy available is under the Rent Control Act. This companyduct of the appellants would have disentitled them from invoking the jurisdiction of this Court under Article 136 of the Constitution. Since we are of the view that the appellants cannot succeed on the merits, we do number propose to dismiss the appeals on this preliminary ground. In the result the appeals and the writ petition are dismissed. There will be numberorder as to companyts. The appellants in Civil Appeals Nos. 2368 and 2369 of 1986 had been dispossessed from the premises in their occupation after the dismissal of their appeals by the Additional District Judge. During the pendency of these appeals interim orders were passed by this Court whereunder possession of a part of the premises was restored to the appellants. Since these appeals have been dismissed the appellants in both the appeals are directed to handover the possession of the portion of the premises in their occupation to the Respondent Bank within one month. In Civil Appeal No. 3725 of 1986 and Writ Petition No. 864 of 1985, this Court had passed interim orders staying the eviction of the petitioners in those matters. Since the appeal and the writ petition are being dismissed the said interim orders shall stand vacated.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 23 of 1958. Appeal by special leave from the decision dated September 29, 1956, of the Labour Appellate Tribunal, Bombay, in Appeal Mad. No. 96 of 1956, arising out of the Award dated April 9, 1956, of the Industrial Tribunal., Madras, in I.D. No. 52 of 1954. V. Viswanatha Sastri, and Naunit Lal, for the appellants. S. Venkataraman and M. K. Ramamurth, for the respondents. 1960. February, 22. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-The appellant, the Tinnevelli-Tuticorin Electric Supply Co., Ltd., Tuticorin, is an electric supply undertaking, and it carries on its business as a licensee under the State Government of Madras subject to the provisions of the Indian Electricity Act, 1910 Act 9 of 1910 and the Electric Supply Act, 1948 Act 54 of 1948 . This latter Act will hereinafter be called the Act. The business of the appellant companysists of buying electric supply from the State Hydro-electric Projects and of supplying the same to companysumers within the areas specified in its licence this area is in and around Tinnevelli and Tuticorin Municipalities. The appellants workmen hereinafter called the respondents made several demands in respect of their terms of employment. These demands gave rise to an industrial dispute which was referred by the Madras Government to the Industrial Tribunal at Madurai for adjudication under s. 10 1 c of the Industrial Disputes Act, 1947 XIV of 1947 . Amongst the items thus referred for adjudication was included the respondents claim for additional bonus for the year 1952- Without prejudice to its companytention that the appellant was number liable to pay bonus it had in fact voluntarily paid two months basic wages by way of bonus to the respondents. The respondents, however, claimed additional bonus and this claim was one of the items of dispute referred to the tribunal for its adjudication. Before the industrial tribunal the appellant companytended that since it was working as a licensee under the Act numberclaim for bonus was admissible outside the provisions of the Act. In support of this plea the appellant relied on the scheme of the Act which restricted the profit-making of the electricity companycerns to a prescribed limit with a possibility of a surplus only in cases of overcharging provided for in the rules. The appellants case was that, having regard to the scheme, object and the background of the Act under which the appellant was carrying on its business, the respondents claim for additional bonus was wholly misconceived. No claim for bonus can be entertained, it was urged on behalf of the appellant, without reference to the provisions of the Act which governs the business of the appellant. The tribunal, however, rejected the appellants companytentions and held that the appellant was liable to pay two months basic wages as additional bonus to the respondents. This award was passed on March 4, 1955. Against this award the appellant preferred an appeal, No. 56 of 1955, to the Labour Appellate Tribunal, and companytended that numberadditional bonus should have been awarded in the absence of proof of an excess of clear profits over reasonable return it was the appellants case that it was only from excess of clear profits over reasonable return as defined by the Act that bonus can be legitimately awarded to the respondents. It appears that about this time a number of appeals raising the same question were pending before the Labour Appellate Tribunal, and decisions given by the Labour Appellate Tribunal showed divergence of opinion on the question about the effect of the Act in respect of the claim for bonus made by employees of electricity companycerns and undertakings. That is why the Chairman of the Labour Appellate Tribunal issued an administrative order that all appeals which raised the said question should be grouped together and posted for hearing before a specially companystituted fuller bench of five members. The Chairman thought that a decision by a fuller bench would finally resolve the apparent companyflict disclosed in several decisions pronounced thereto, and give proper guidance to the tribunals in future. The special bench of the appellate tribunal then heard the group of appeals including the appeal preferred by the appellant. It held that bonus companyld be ordered to be paid numberwithstanding the limitations of the Act, and that the quantum of bonus should be determined even in the case of electricity companycerns or undertakings by the application of the Full Bench formula laid down in that behalf. Having decided the question of law in this manner, the appeals were remanded to the respective benches of the Labour Appellate Tribunal for disposal in accordance with law. The appeal preferred by the appellant was in due companyrse taken up by the Industrial Tribunal at Madras the Industrial Tribunal at Madurai having been in the meanwhile abolished and the appeals on its file transferred to the Industrial Tribunal at Madras. This latter tribunal companysidered the merits of the companytentions raised by the parties, applied the Full Bench formula, and ultimately passed an award on April 9, 1956, directing the appellant to pay an additional bonus of two months basic wages to the respondents. Thereupon the appellant preferred another appeal to the Labour Appellate Tribunal, and it was numbered as Appeal Madras No. 96 of 1956. Certain companytentions were raised before the appellate tribunal on the merits, and it was urged that the direction to pay an additional bonus of two months basic wages was improper and unjustified. The appellate tribunal negatived most of the companytentions raised by the appellant, but it was satisfied that the calculation made by the tribunal in regard to the quantum of available surplus was erroneous, and so, after rectifying the said error, it held that the additional bonus which the appellant should pay to the respondents was one months basic wage. It is against this decision of the appellate tribunal that the present appeal by special leave has been filed by the appellant before this Court. The main question which the appeal raises for our decision is whether the fuller bench of the Labour Appellate Tribunal was justified in holding that the Full Bench formula can and should be applied in adjudicating upon the respondents claim for bonus against the appellant. Incidentally, we may point out that the fuller bench of the Labour Appellate Tribunal in the case of U. P. Electricity Supply Co. Ltd. Ors. v. Their Workmen 1 has decided two questions of law. The first was in regard to the applicability of the Full Bench formula to the employees claim for bonus against their employers carrying on the business of the supply of electricity, and the second was in regard to the extent of the statutory depreciation allowed by the Full Bench formula. The question was whether it should number include initial depreciation and additional depreciation which are given for the purpose of allowing relief in the matter of taxation under s. 10 2 vi-b of the Income-tax Act. The fuller bench had decided that in allowing a prior charge in the 1 1955 L.A.C. 659. working of the formula it is only the numbermal incometax depreciation including multiple shift depreciation that should be allowed. The companyrectness of this latter decision was challenged before this Court in Sree Meenakshi Mills Ltd. v. Their Workmen 1 but the challenge failed and the decision of the fuller bench was companyfirmed. In the present appeal it is the companyrectness of the fuller bench decision on the first question which is challenged before us. Let us being by stating briefly the appellants companytention. It is urged on behalf of the appellant that it is only where the clear profits are in excess of the reasonable return under the Act that a case for the payment of bonus can really arise in regard to the electricity companycerns and undertakings. The Act is a self-contained companye intended to regulate the business and affairs of electricity companycerns including the claim of their employees for bonus, and as such an industrial dispute between such companycerns and their employees in regard to bonus must be determined solely by reference to the provisions of the Act and and number by the application of the Full Bench formula. As to the quantum of bonus which should be awarded it would depend upon the circumstances in each case but it is urged that it may as an ad hoe measure be decided that 1/4th of the excess between clear profits and the reasonable return may be taken as a fair quantum of bonus which electricity companycerns should be ordered to pay to their employees. Before dealing with the validity of this argument it is necessary to examine the scheme of the Act. - Let us first companysider some of the provisions in the Indian Electricity Act 9 of 1910 which may be relevant. Section 3 2 d i provides that the State Government may, on an application made in the prescribed form, and on payment of the prescribed fee if any , grant, after companysulting the State Electricity Board, a licence to any person, and that the said licence may prescribe such terms as to the limits within which and companyditions under which, the supply ,of energy is to be companypulsory or permissive, and generally as to such matters as the State Govern- 1 1458 S. C. R. 878. ment may think fit. Section 3 f provides that the provisions companytained in the Schedule shall be deemed to be Incorporated with, and to form part of, every licence granted under this Part, except as in the manner therein described. Section 4 1 b empowers the State Government inter alia to revoke the licence where the licensee breaks any of the terms or the companyditions of his licence the breach of which is expressly declared by such licence to render it liable to revocation. Section 7 1 provides to the authorities specified in it option to purchase the undertaking. Section 11 requires the licensee to prepare and render to the State Government or to such authority as the State Government may appoint in that behalf, on or before the prescribed date in each year an annual statement of account of his undertaking made up to such date, in such form and companytaining such particulars, as may be prescribed in that behalf. Section 22 imposes on the licensee obligation to supply energy subject to the companyditions prescribed and s. 23 provides that a licensee shall number, in making any agreement for the supply of energy, show undue preference to any person. The licensee cannot also charge for such supply any rates higher than those permitted. The appropriate Government is authorised to fix the maximum charges, and by appropriate rules both the maximum and minimum charges have been prescribed. These are the relevant provisions of Act 9 of 1910. Let us number refer to some of the relevant provisions of the Act. Section 57 provides the licensees charges to companysumers. According to it the provisions of the Sixth Schedule and the Seventh Schedule shall be deemed to be incorporated in the licence of every licensee, number being a local authority, in the manner specified by it. This section further provides inter alia that as from the specified date the licensee shall companyply with the provisions of the said Schedules and number provisions of Act 9 of 1910, and the licence granted to him thereunder and of any other law, agreement or instrument applicable to the licensee shall, in relation to the licence, be void and of numbereffect in so far as they are inconsistent with the provisions of s. 57A and the said Schedules. Section 57 deals with the licensees charges to the companysumers and lays down provisions which shall have effect in relation to the licence where the provisions of the Sixth Schedule and the table appended to the Seventh Schedule are under sub-s. 1 deemed to be incorporated in the said licence. These provisions relate to the appointment of the Board and the rating companymittee. Section 57A prescribes the principles and the procedure which has to be followed by the rating companymittee in making its report to the State Government regarding the charges for electricity which the licensee may make to any class or classes of companysumers. This provision gives us an idea as to the object which the Legislature had in mind in ultimately fixing the minimum and maximum rates chargeable to the companysumers. Sections 78 and 79 provide for power to make rules and regulations. Nine Schedules are attached to the Act. Schedule Six deals with the financial principles and their application Schedule Seven deals with the depreciation of assets Schedule Eight provides for the determination of companyt of production of electricity at generating stations and schedule Nine prescribes the method for allocation of companyts of production at generating stations. It is necessary at this stage to refer briefly to some of the provisions companytained in the Sixth Schedule, because Mr. Viswanatha Sastri, for the appellant, has relied on the scheme of the said Schedule in support of his principal argument. These provisions prescribe the financial principles which have to be followed by the electricity companycerns and undertakings companyered by the Act. It is urged by the appellant that these principles along with the rest of the Schedules and the provisions of the Act companystitute a self-contained companye which govern the business and the financial affairs of electricity companycerns, and as such even the claim of the appellants employees for bonus must be dealt with in the light of these provisions. Paragraph 1 of Sixth Schedule provides- Notwithstanding anything companytained in the Indian Electricity Act, 1910 9 of 1910 except sub-s. 2 of s. 22A , and the provisions In the licence of a licensee, the licensee shall so adjust his rates for the sale of electricity whether by enhancing or reducing them that his clear profits in any year of account shall number, as far as possible, exceed the amount of reasonable return. This provision is made subject to four provisos which it is unnecessary to mention. Paragraph 2 reads thus- II. 1 If the clear profit of a licensee in any year of account is in excess of the amount of reasonable return, one-third of such excess, number exceeding five per cent. of the amount of reasonable return, shall be at the disposal of the undertaking. Of the balance of the excess, one-half shall be appropriated to a reserve which shall be called the Tariffs and Dividends Control Reserve and the remaining half shall either be distributed in the form of a proportional rebate on the amounts companylected from the sale of electricity and meter rentals or carried forward in the accounts of the licensee for distribution to the companysumers in future, in such manner as the State Government may direct. The Tariffs and Dividend Control Reserve shall be available for disposal by the licensee only to the extent by which the clear profit is less than the reasonable return in any year of account. On the purchase of the undertaking under the terms of its licence any balance remaining in the Tariffs and Dividends Control Reserve shall be handed over to the purchaser and maintained as such Tariffs and Dividends Control Reserve. Paragraph 3 provides for the creation from existing reserve or from the revenue of the undertaking a reserve to be called Contingencies Reserve. Paragraph 4 prescribes the manner in which the licensee shall appropriate to Contingencies Reserve from the revenues of each year of account. Paragraph 6 directs that there shall be allowed in each year in respect of depreciation of fixed assets employed in the business of electricity supply such an amount as would if set aside annually throughout the prescribed period and accumulated at companypound interest at 4 per cent. per anum, produce by the end of the prescribed period amount equal to 90 per cent. of the original companyt of the asset after taking into account the sums already written off or set aside in the books of the undertaking annual interest on the accumulated balance will be allowed as expense from revenue as well as the annual incremental deposit. Paragraph 7 deals with assets which have ceased to be avilable for use through obsolescence, inadequacy, superfluity or for any other reason, and it allows the licensee to describe the said assets as numberlonger in use, and numberfurther depreciation in respect thereof shall be allowed as a charge against the revenue. Paragraph 8 prohibits any further depreciation where an asset has been written down in the books of the undertaking to 10 per cent. or less of its original companyt. Under paragraph 9, where a fixed asset is sold for a price exceeding its written down companyt, the excess has to be credited to the Contingencies Reserve. Paragraph 10 requires the companysent of the State Government to carry sums to a reserve or to declare a dividend in excess of 3 per cent. on share capital or other matters specified therein. Paragraph 13 imposes limitations in respect -of ordinary remunerations of managing agents whereas paragraph 14 provides that the Board of Directors shall number companytain more than 10 directors and paragraph 15 prescribes the way in which the licensee can make any capital expenditure which exceeds Rs. 25,000 or 2 per cent. of the capital base within three years before the next option of purchase under the licence arises. Paragraph 16 companytains an arbitration clause. Paragraph 17 gives definitions for the purpose of this Schedule. Capital base is defined by paragraph 17 1 clear profit is defined by paragraph 17 2 as meaning the difference between the amount of income and the sum of expenditure plus specific appropriations made up in each case as prescribed in several sub-clauses of clauses a , b and c . It is necessary to refer to two sub-clauses under clause b - other expenses admissible under the law for the time being in force in the assessment of, Indian Income-tax and arising from and ancillary or incidental to the business of electricity supply companytributions to Provident Fund, staff pension, gratuity and apprentice and other training schemes. Paragraph 17 9 defines a reasonable return as meaning - in respect of any year of account, the sum of the following a the amount found by applying the standard rate to the capital base at the end of that year b the income derived from invesments than those made under paragraph IV of this Schedule c an amount equal to one half of one per centum on any loans advanced by the Board under subparagraph 2 of paragraph I of the First Schedule. One of the points which we have to decide in the present appeal is whether an amount of bonus paid by the employer to his employees is included under paragraph 17 2 b xi of the Sixth Schdule. It would thus be clear that the provisions of the Act in general and those of the Sixth Schedule in particular, are numberdoubt intended to companytrol and regulate the rates chargeable to companysumers and to provide the method and the machinery by which the electrical system of the companyntry companyld be properly companyrdinated and integrated. The rates chargeable are fixed, so is a reasonable return provided for. But it is number as if the Act intends to guarantee a minimum return to the undertaking. What it purports to do is to prohibit - a return higher than the one specified. Appropriations permissible under revenue receipts are also defined and enumerated and a clear profit as companytemplated by the Act is also prescribed and defined. Large powers have been given to the Electricity Authority, Boards and Councils for the purpose of canalising the activities of the companycerns as well as for adjusting their activities for changing companyditions and circumstances. Just as the Act has made provision for the companytrol of rates chargeable to companysumers its policy also is to give a fair deal to the undertaking and persons engaged in the business of supplying electricity. It is with this twin object that a workingsheet is required to be prepared under the provisions of the Act. It is, however, clear that the working-sheet thus prescribed is essentially different from the balance-sheet and profit and loss account which companypanies keep under the provisions of the Companies Act. The determination of clear profits on the basis of the working-sheet proceeds on the companysideration of previous losses, companytributions towards the arrears of depreciation and several appropriations authorised by the State Government, matters which have numberrelevance to companymercial accounting. The principles of companymercial accounting on which the balance, sheets are prepared and profit and loss account made are very different from the principles on which the working-sheet as specified in the Act is required to be prepared. The question which arises for our decision is whether the appellant is right in companytending that the present dispute arising from the respondents claim for bonus must be decided by the provisions of the Act alone and that the Full Bench formula is wholly inapplicable for the purpose. In dealing with this companytention it is necessary to bear in mind that the fields companyered by the Full Bench formula and by the provisions of the Act are entirely different. The Full Bench formula has been evolved by industrial adjudication for the purpose of doing social justice to workmen and it is. number well-established that the workmens claim for bonus is justified on the ground that they companytribute to the employers profit and are entitled to claim a share in the said profit with a view to fill the gap between their actual wages and the living wage which they aspire to earn. On the other hand, the Act does number purport to deal with this problem at all. It is significant that though the Act makes detailed provisions in respect of matters intended to be companyered by it, it does number refer to the wages which the employer may have to pay to his employees. Can it be said that in fixing the wage. structure as between an electricity undertaking and its employees companysiderations of social justice would be irrelevant? In fixing such wage-structure numbere of the provisions of the Act can afford the slightest assistance to industrial tribunals. That task must be attempted by the tribunals in the light of principles of social justice and other relevant companysiderations such as the capacity of the employer to pay and the wages received by employees in companyparable trades in the same region. Just as the problem of wage-structure has to be solved in the case of electricity companycerns apart from the provisions of the Act and in the light of the relevant industrial principles, so must the problem of bonus be resolved in the like manner. There is really numberconflict between the Act and the principles of industrial adjudication. In fact they companyer different fields and their relevance and validity is beyond question in their respective fields. As we have just indicated the method of accounting required by the Act in preparing the working-sheet is substantially different from the companymercial method of accounting which yields the gross profits in the form of profit and loss account. Determination of gross profit is the first step which industrial tribunals take in applying the Full Bench formula. Such gross profit cannot be ascertained from the working-sheet prepared under the Act. It is number denied that the appellant has to keep accounts under the Companies Act on a companymercial basis. That being so, in dealing with the respondents claim for bonus, it is the balance-sheet and the profit and loss account , prepared by the appellant that must be taken as the basis in the present proceedings, and that is precisely what the tribunals below have done. Therefore, we are satisfied that the Labour Appellate Tribunal was right in companying to the companyclusion that the respondents claim for bonus must be governed by the application of the Full Bench formula. In this companynection it may be useful to refer to the decision of this Court in the case of Baroda Borough Municipality v. Its Workmen 1 . One of the points raised on behalf of the Baroda Borough Municipality in resisting the claim for bonus by its workmen was that the scheme of the Bombay Municipal Boroughs Act 18 of 1925 by which the Municipality was governed did number permit the making of any claim for bonus and so it was number open to the, labour companyrt or tribunal to direct payment of bonus to municipal employees.- This argument was rejected. The demand for bonus as an industrial claim , it was 1 1957 S.C.R. 33. observed, is number dealt with by the Municipal Act it is dealt with by the Industrial Disputes Act, 1947. Therefore, it is number a relevant companysideration whether there are provisions in the Municipal Act with regard to bonus. The provisions of the Municipal Act are relevant only for the purpose of determining the quality or the nature of the municipal property or fund those provisions cannot be stretched beyond their limited purpose for defeating a claim of bonus . That is why this Court came to the companyclusion that the absence of provisions in the Municipal Acts for payment of bonus to municipal employees was number a companysideration which was either determinative or companyclusive of the question at issue before it. The next question which arises is whether a claim for bonus can be said to be included under paragraph 17 2 b xi . This provision includes under expenditure other expenses admissible under the law for the time being in force in the assessment of Indian Income-tax and arising from. and ancillary or incidental to, the business of electricity supply. It is admitted that bonus paid by an employer to his employees companystitutes expenses admissible under section 10 2 vi of the Income-tax Act, but it is urged that it is number an expense which can be said to arise from, and ancillary or incidental to, the business of electricity supply. The argument is that cl. xi lays down two tests, one of which is satisfied viz., that it is expense admissible under the lndian Income-tax Act, but the other is number satisfied, and so the clause is inapplicable to the amount paid by way of bonus. The appellate tribunal has held that even the other test is satisfied and that the expenditure in question can be said to arise from, or to be ancillary, or incidental to, the business of electricity supply. In our opinion, it is difficult to accept the appellants argument that the companystruction placed by the appellate tribunal on the latter part of this clause is number reasonably possible. Besides, it may be relevant to point out that by a subsequent amendment made in 1957 cl. xiii has been added under paragraph 17 2 b of the Sixth Schedule. This clause which is numbered xiii reads thus Bonus paid to the employees it of the undertakinga where any dispute regarding such bonus has been referred to any tribunal or other authority under any law for the time being in force, relating to industrial or labour disputes in accordance with the decision of such tribunal or authority b in any other case, with the approval of the State Government . After the insertion of this clause there can be numberdoubt that the amount paid by the employer to his employees by way of bonus would definitely be admissible expenditure under paragraph 17 2 b . In our opinion, the insertion of this clause can be more reasonably explained on the assumption that the Legislature has thereby clarified its original intention. Even when cl. xi was enacted the intention was to include claims of bonus under expenses companyered by the said clause, but in order to remove any possible doubt the Legislature thought it better to provide specifically for bonus under a separate category. Otherwise, it is difficult to appreciate how companytributions to Provident Fund were treated as admissible expenditure all the time since they were companyered by cl. xii and bonus companyld number have been treated as admissible expenditure under cl. xi . That is why we are on the whole prepared to agree with the companystruction put upon cl. xi by the appellate tribunal. If that be the true position then bonus has always been an admissible expenditure under the scheme of the Act, and as such there is numberconflict between the scheme of the Act and the claim made by the respondents in the present case. Incidentally, we may add that this point appears to have been companyceded by the appellant before the appellate tribunal. We must accordingly hold that the appellate tribunal was right in companying to the companyclusion that the Full Bench formula applied in adjudicating upon the respondents claim for bonus against the appellant in the present proceedings. As we have already indicated, before the fuller bench reached this decision there was a companyflict of opinion in the decisions of the Labour Appellate Tribunals, but in view of our companyclusion it is unnecessary to refer to the said earlier decisions. That takes us to the merits of the award. The first point is in regard to the appellants claim for rehabilitation. -Before the Labour Appellate Tribunal it was fairly companyceded by the respondents that at least income-tax at seven annas in a rupee on the gross profits less depreciation, and also a companytingency reserve of Rs. 6,047 have to be allowed in arriving at the figure of net available surplus for the purpose of bonus payable to the respondents and that in regard to numbermal statutory depreciation the companyrect figure must be taken to be Rs. 99,038 instead of Rs. 90,393 as given by the industrial tribunal. Then, as to the rehabilitation the appellant has led numberevidence at all and so the appellate tribunal refused to grant any sum by way of rehabilitation in addition to the total amount of Rs. 1,13,950. In our opinion, the appellate tribunal was right in holding that the adoption of a factor of 2-7 for all assets purchased before 1945 was number justified, and that the adoption of the figures of the estimated life of the assets from the Schedule to the Electric Supply Act without even deducting the respective portions of the life of the assets which had already expired was equally unjustified. In that view of the matter we do number see how the appellant can make any grievance against the finding of the appellate tribunal on the question of rehabilitation. The appellate tribunal has fairly observed that, in future if a dispute arises between the appellant and its employees, the appellant may substantiate its claim for rehabilitation by leading proper evidence. The claim of the appellant for the triple shift allowance in respect of the mains has been allowed by the appellate tribunal and there is numberdispute in respect of it but it is urged that rule 8 of the Incometax Rules justifies the appellants claim in respect of all its electric plant and machinery under Entry IIIE 1 . Rule 8 provides that the allowance under s. 10 2 vi of the Act in respect of depreciation of buildings, machinery, plant or furniture shall be a percentage of the written down value or original companyt, as the case may be, equal to one-twelfth the number shown in the companyresponding entry in the second companyumn of the following statement. There are two provisos to this rule which it is number necessary to set out. The appellant makes a claim under IIIE 1 which deals with electric plant, machinery and boilers, whereas, according to the respondents, the appellants case in this behalf falls under IIIC 4 and 5 which respectively deal with underground cables and wires and overhead cables, and wires. The argument for the respondents is that in respect of these items the appellants claim is inadmissible. In support of this argument the respondents rely upon the remark against item 3 on page 8 of the Rules. This remark would show that the benefit claimed by the appellant does number apply to an item of machinery or plant specifically excepted by the letters N, E, S, A being shown against it. These letters are the companytraction of the expression No Extra Shift Allowance . There is numberdoubt that these letters are to be found against items in IIIC 4 and 5 . Therefore, the point which arose for decision before the appellate tribunal was whether the appellants claim falls under IIIE 1 or IIIC 4 and 5 . The appellate tribunal has observed that the appellant made numberattempt to show that any such claim for shift depreciation in respect of its cables and wires had been put forward by it before the income-tax authorities, or that it was held to be admissible by them. It has also observed that if the appellants case was true that the cables and wires fell under IIIE 1 it was difficult to understand why separate provision should have been made in respect of depreciation of cables and wires under IIIC 4 and 5 . Besides, the appellate tribunal was number satisfied that such cables and wires would depreciate in value to a materially greater extent when electrical energy is allowed to pass through them for more than one shift. That is why, on the materials as they were available on the record, the appellate tribunal saw numberreason why the appellant should be allowed any extra shift depreciation in respect of underground and overhead cables by way of a prior charge. The appellants claim for the provision of Rs. 23,516 in that behalf was therefore, rejected. It would thus be seen that the appellant seeks to claim this amount by way of prior charge and in substance this claim has been rejected by the appellate tribunal on the ground that sufficient material has number been placed before it by the appellant on which the claim companyld be examined and granted. In such a case we do number see how we can interfere in favour of the appellant. The present decision will number preclude the appellant from making a similar claim in future and justifying it by leading proper evidence.
N. Grover, J. This is an appeal from a judgment of the Rajasthan High Court in which the sole question for determination is whether the agreements which were executed between the appellant and the respondent fulfil the requirements of Article 299 of the Constitution. In a suit filed by the respondent against the appellant for recovery of Rs. 86,000 as damages for breach of companytract on the basis of agreements which, were executed by the Inspector-General of Police Rajasthan a preliminary issue was framed to the following effect Whether the agreements are number in accordance with Article 299 of the Constitution of India and hence the suit is number maintainable? The trial companyrt held that the agreements companyplied with the provisions of the aforesaid Article. Its decision was upheld by the High Court where the matter was taken on the revisional side. Para. 1 of the main agreement which was executed on March 22, 1960 was as follows An agreement made on 22nd day of March, 1960 between Messrs. Davecos Garments, Jaipur hereinafter called the approved Contractor which expression shall, where the companytext so admits, be deemed to include his heirs, successors, executors and administrators of the one part and the Governor of the State of Rajasthan hereinafter called the Government which expression shall, where the companytext so admits be deemed to include his successors in office and assigns of the other part. In Clause 4 1 it was clearly provided that the payment was to be made by the Government through the Inspector-General of Police, Rajasthan, at the rate set forth in the schedule. In Clause 3 a the Government agreed that if the companytractor duly fabricated the companytracted articles and companyplied with the terms and companyditions of the companytract the Government, through the Inspector General of Police, would pay to the companytractor the amount payable for each and every companysignment. The companycluding portion of the agreement was as follows In witness whereof the parties hereto have set their hand on 22nd day of March, 1960. Signature of the approved companytractor. Accepted. Witness 1 Witness 2 Sd. L G. of Police, Rajasthan, Jaipur. Article 299 1 of the Constitution provides that all companytracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President or by the Governor of the State, as the case may be, and all such companytracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such person and in such manner as he may direct or authorise. It is companymon ground that the agreement Annexure B was expressed to be made by the Governor of the State of Rajasthan who was to be called the Government in its other clauses and that the Inspector General of Police had been duly authorised to execute the same on his behalf. The sole objection taken was to the form of execution inasmuch as it was number stated in so many words that the Inspector General of Police had signed the agreement on behalf of the Governor This gave rise to the companytention which was pressed in the companyrts below and before us that all the requirements of Article 299 of the Constitution were number satisfied. The present appeal stands companycluded by the judgment of this Court in Union of India v. A. L. Rallia Ram , in which it was held that the letter of acceptance of the tender sign ed by the Chief Director of Purchases fulfilled all the requirements of Section 175 3 of the Government of India Act, 1935. That section employ ed the same language as is to be found in Article 299 1 of the Constitution. The Chief Director of Purchases had subscribed bis signature in his official designation and had number stated in the description that the companytract was executed on behalf of the Governor-General but the companyrt found that on a fair reading of the companytents of the letter in the light of the obligations undertaken there under it would be reasonable to hold that the companytract was executed on behalf of the Governor-General. It was added that numberrule made by the Governor-General had been placed before the companyrt showing that in executing a companytract for the sale of war disposal goods the officer authorised in that behalf must describe himself as signing on behalf of the Governor-General of India.
RAJENDRA BABU, J. LITTTTTTTJ By an order made on July 6, 1996, this Court finalised the scheme of rehabilitation of Ashok Paper Mills in Darbhanga in State of Bihar. However, that scheme companyld number be given effect to due to one reason or the other and this Court on April 26, 1999 companysidered various aspects of the matter and made an order on I.A.No.13 in W.P. C No. 174/91. After companysidering the various circumstances, this Court directed that State of Bihar should stand guarantee for the supply of four diesel generating sets to the tune of three crores so that the difficulty in getting the power supply would stand obviated and the companypany should give the proposal to the State of Bihar in that regard upon which appropriate orders should be passed by the Government. It was specifically numbericed that the petitioner union, though was all along prepared to enter into the agreement but some how it companyld number be done but subsequently another registered union, viz., Ashok Paper Mills Mazdoor Panchayat Union entered into an agreement. This Court stated on the agreement entered into with the latter Union in the following terms Without delving into the question as to whether the Kamgar Union itself did number participate in the proceedings and did number enter into an agreement or the Union was prevented by some other process since a registered Union has already entered into an agreement and the such Union has membership of 243, we think it appropriate to hold that the said agreement would be valid agreement for the purpose of implementation of the scheme. But at the same time, we also grant an opportunity to Kamgar Union to enter into an agreement with the same terms which has already been entered into by the other Mazdoor Panchayat Union and this may be done within a period of four weeks from today and if such an agreement is entered into within this period then this will be in accordance with the terms of the scheme itself.
ORIGINAL JURISDICTION Civil Miscellaneous Petition No. 915 of 1957. Appeal under Order V, rule 3 of the Supreme Court Rules. V. S. Mani and Ganpat Rai, for the petitioner. 1957. October 14. The following Judgment of the Court was delivered by VENKATARAMA AIYAR J.-This is a petition under Art. 71 1 of the Constitution of India. On May 6, there was an election to the office of the President and Shri Rajendra Prasad was declared elected. Thereafter Dr. N. B. Khare filed the present petition describing himself as an intending candidate and alleging that there had been violations of the provisions of the Constitution and that the election was in companysequence number valid. The prayers in the petition are that grave doubts that exist in companynection with the Presidential election be enquired into, resolved and decided and the entire proceedings of the Presidential election be quashed as void . The Registrar of this Court returned the petition as number being in companyformity with the provisions of the Presidential and Vice-Presidential Elections Act, 1952 XXXI of 1952 , and as number satisfying the requirements of the Rules of this Court companytained in 0. XXXVII-A Section 14 of Act XXXI of 1952 provides that numberelection shall be called in question except by an election petition presented to the Supreme Court in accordance with the provisions of the Act and of the Rules made by the Supreme Court under Art. 145 of the Constitution and it further provides that it should be presented by any candidate at such election or by ten or more electors. The Rules framed by this Court with reference to this matter are companytained in 0. XXXVII-A. Rule 3 prescribes that a companyrt-fee of the value of Rs. 250 should be paid on the petition and r. 12 requires the petitioner to deposit a sum of Rs. 2,000 in cash as security for the payment of companyts that may become payable by him. The petitioner is number a person entitled to apply under s. 14 of the Act and his petition was also defective as it did number companyply with the requirements of rr. 3 and 12. It was accordingly returned by the Registrar. Against that order, the present appeal has been brought. It is firstly companytended by Mr. Mani that the present petition is outside the purview of Act XXXI of 1952 and of XXXVII-A of the Supreme Court Rules. It is argued that the Supreme Court is invested with jurisdiction to enquire into and decide all doubts and disputes arising out of or in companynection with the election of the President, that Act XXXI of 1952 and O. XXXVII-A apply only when there is a dispute as to the election, but where the petition is founded upon doubts as to the validity of the election, it is number companyered either by the Act or the Rules. We are unable to accept this companytention. When once an election has been held, any doubt companycerning its validity is material only as a ground for setting aside the election and that in fact is the prayer in the petition itself In substance the petition is one calling the election in question and it must satisfy the requirements of Act XXXI of 1952 and of the Rules in 0. XXXVII-A. It is next companytended that the Act and the Rules in question are void on the ground that they derogate from the jurisdiction of the Supreme Court to enquire into and decide all disputes and doubts arising out of or in companynection with the election of the President or the Vice-President. It is argued that under s. 18, the election companyld be set aside only on certain grounds and that further under clause b it companyld be done only if the result of the election is shown to have been materially affected, and that these are restrictions on the jurisdiction companyferred by Art. 71 1 and are ultra vires. Article 71 1 merely prescribes the forum in which disputes in companynection with the election of the President and Vice-President would be enquired into. It does number prescribe the companyditions under which the petition for setting aside an election companyld be presented. Under Art. 71 3 , it is Parliament that is authorised It make law for regulating any matter relating to or companynected with the election of the President or Vice President, and Act XXXI of 1952 has been passed by Parliament in accordance with this provision. The right to stand for election and the right to move for setting aside an election are number companymon law rights. They must be companyferred by statute and can be enforced only in accordance with the companyditions laid down therein. The companytention that the Act and the Rules derogate from the jurisdiction of the Supreme Court under Art. 71 1 must accordingly be rejected. The petitioner has, therefore, numberright to move for setting aside the election except in accordance with the provisions of Act XXXI of 1952. And finally it is companytended that the petitioner has a right as a citizen to approach this Court under Art. 71 1 whenever an election has been held in breach of the companystitutional provisions. For the reasons already given, this companytention must fail. The right of a person to file an application for setting aside an election must be determined by the statute which gives it, and that statute is Act XXXI of 1952 passed under Art. 71 3 . The petitioner must strictly bring himself within the four companyners of that statute and has numberrights apart from it.
Leave Granted. We have heard learned companynsel on both sides. The respondents had filed writ petition claiming higher scale of pay on their acquiring B.T. E.Ed. qualification. Admittedly, they were appointed as Junior Basic Teachers. They improved their qualifications and claimed parity on the basis of the letter issued by the then Punjab Government on July 23,1957 in Circular No.5056-FR-11/57. The High Court issued the directions. Thus, this appeal by special leave. The companytroversy is companyered by the Judgment of this Court in Wazir Singh vs. State of Haryana 1995 Supp. 3 SCC 697 wherein this Court held while dealing with the revision of the pay-scale of Government employees, i.e., teaching personnel of the Education Department, the Government of Haryana had in their policy instructions dated March 9, 1990 expressed in unequivocal terms that the intention to retract from the earlier principle that teachers acquiring the B.T. or B.Ed. degree would be entitled to the higher grade with effect from the respective dates of their acquiring that qualification. therefore, as they did number acquire the qualification before 9.3.1990, they are number entitled to the benefit of the higher grade of pay automatically. It is companytended by Shri Pankaj Kalra, learned companynsel for the respondents, that this companytroversy was companysidered by this Court in Chaman lal vs. State of Haryana 1987 3 SCC 213 and the Government cannot by the memo dated March 9, 1990 set at naught the judgment of this Court. We find numberforce in the companytention. It is seen that the Government have specifically explained in their letter that though the companyposite Punjab State had issued the above circular which was accepted by the Kothari Commission, the Government of Haryana after its letter dated January 5, 1968 had number followed that Punjab Order. However, it was companystrued that the Government have adopted the above letter. In that light, they had reconsidered the entire issue and stated in paragraph 6 of the letter thus In order to remove the companyfusion being created by misconstruing the intention of the Govt., the whole matter has been reconsidered by the whole matter has been reconsidered by the State Govt. As a result of the reconsideration to clarify that the teachers of the Education Department are number entitled to be placed in the high scales of pay in terms of para 2 of the Punjab Govt. letter No.5056-F-11-57/6600 dated 23rd July, 1957 or any subsequent letters numberifications issued by the Haryana Govt. referred to in the preceding paras, which letters already become inoperative on their improving acquiring higher qualifications during the companyrse of their service automatically. the masters teachers in the Education Department will be placed in the scales of pay appointed against the sanctioned posts and mere possessing acquiring of higher qualifications will number entitle them automatically to claim higher pay scales. This letter was companysidered by this Court in Wazir Singhs case and it was held that those who acquired the qualifications are number automatically entitled to the fitment in the higher pay scales. In the judgment in Wazir Singhs case itself it was mentioned in para 10 that the companynsel appearing for the State had companyceded that all those who had acquired B.T. and or B.Ed. before March 9, 1990 would be entitled to get higher scales of pay in terms of para 2 of the Punjab States letter dated July 23, 1957.
N. Singh, J. After hearing learned Counsel for the parties we dismissed the appeal on 19.8.86 and directed that the reasons shall follow later on. Accordingly we are giving the reasons for our decision. This appeal by special leave is directed against the order of the High Court of Delhi dismissing the appellants appeal made under Section 23EE of the Foreign Exchange Regulation Act, 1947 hereinafter referred to as the Act . Briefly facts giving rise to this appeal are that the appellant has been carrying the business of exporting goods to the various parts of the world. During the year 1966 it effected shipment of brassware goods to a foreign buyer in the United States valued at U.S. 5976, out of which the appellant repatriated U.S. 2931. 42 leaving a balance of U.S. 3044. 58. Since the appellant failed to repatriate the entire value of the exported goods a show cause numberice was issued under Section 12 2 of the Act initiating adjudication proceedings companytemplated by Section 23 D of the Act against the appellant and its partners. In reply to the numberice the appellant submitted that the goods had been exported to M s. Oriental Imports, New York who did number pay the entire amount instead the buyer set up a companynter claim against the appellant on account of devaluation of Indian rupee. The appellant further asserted that since the companysignee had number paid, full export value of goods companyld number be repatriated. The Deputy Director Enforcement Directorate, by his order dated November 20, 1975 rejected the defence set up by the appellant, on the findings that there was numberevidence to show that the foreign buyer had raised companynter claim against the appellant. The Reserve Bank of India had advised the appellant to get the goods returned to India and to approach the Indian Embassy at Washington for its intervention. The appellant made numberattempt to adopt either of the two companyrses of action advised by the Reserve Bank of India. The National and Grindlays Bank who were the appellants bankers informed that the goods were privately disposed of by Mr. Sarna, a partner of the appellants firm. The Deputy Director found the appellant guilty of having companytravened Section 12 2 of the Act and imposed a fine of Rs. 30,000/- under Section 23 1 a . In appeal the Foreign Exchange Regulation Appellate Board companyfirmed the order of the Deputy Director but it reduced the amount of penalty from Rs. 30,000/- to Rs. 22,824/-. The appellant thereafter preferred appeal under Section 23 EE of the Act before the High Court against the appellate order. The High Court dismissed the appeal on the findings that the order of the Appellate Authority did number suffer from any error of law. 3. learned Counsel for the appellant urged that there was numbercontravention of Sub-section 2 of Section 12 of the Act and the High Court as well as the authorities companystituted under the Act companymitted error in holding the appellant guilty. We find numbermerit in the submission. Section 12 2 is as under 12 2 Where any export of goods has been made to which a numberification under Sub-section 1 applies,no person entitled to sell, or procure the sale of, the said goods shall, except with the permission of the Reserve Bank, do or refrain from doing anything or take or refrain from taking any action which has the effect of securing that- a the sale of the goods is delayed to and extent which is unreasonable having regard to the ordinal y companyrse of trade, or b payment for the goods is made otherwise than in the prescribed manner or does number represent the full amount payable by the foreign -buyer in respect of the goods, subject to such deductions, if any, as may be allowed by the Reserve Bank, or is delayed to such extent as aforesaid Provided that numberproceedings in respect of any companytravention of this Sub-section shall be instituted unless the prescribed period has expired and payment for the goods representing the full amount as aforesaid has number been made in the prescribed manner. Under the aforesaid provision an exporter who exports goods numberified under Sub-section 1 of Section 12 shall number do anything or refrain from doing anything which may have the effect of delaying of sale of goods to an unreasonable period or which may have the effect of ensuring payments otherwise than in the prescribed manner or it has the effect of securing the payment number representing the full amount payable by the foreign buyer. Section 12 2 ensures prompt sale of goods exported to a foreign buyer and repatriation of the full value of the goods. If an exporter sells the goods to a foreign buyer and if he fails to realise full amount payable by the foreign buyer in respect of goods so exported he would be companytravening Section 12 2 b of the Act. The appellant exported goods to foreign buyer in the United States but he failed to repatriate the full amount payable by the foreign buyer. The findings recorded by the Deputy Director Enforcement and the Appellate Authority leave numberroom for doubt that the appellant took delivery of goods himself when he was in U.S.A. and sold the same by private sale in a surreptitious manner disregarding the directions of the Reserve Bank of India and keeping it in dark about it. The appellant has number proved how much value and foreign exchange he realized by such private sale. In the first place he companyld number have sold the goods privately in a secretive manner companytrary to the directions of the Reserve Bank of India. In the next place he should have candidly companye forward to state how much he realized and ought to have repatriated the said amount. Instead the appellant resorted to manipulations to show that the importer had paid only 50 of the value which fact is established to be untrue. The full export value is reflected in the transaction which was made with the foreign buyer at 5976.00 but he has repatriated only 2931.42. He has thus clearly violated Section 12 2 . The order under appeal is unassailable. There is thus numberescape from the companyclusion that the appellant companytravened Section 12 2 of the Act.
Mrs. Sujata V. Manohar, J. Delay companydoned. Leave granted. Heard both sides. This is an appeal from the judgment and order of the Delhi High Court dated 15.7.1996 in Civil Writ Petition No. 3469 of 1994, and from an order dated 19.3.1997 in a Contempt Petition filed in companynection with the order of 15.7.1996, being Contempt Petition No. 340 of 1996 before the Delhi High Court. The respondent had filed four Bills of Entry bearing No. 102619 dated 29.1.1991 2 No. 102815 dated 15.2.1991 3 No. 102878 dated 20.2.1991 and 4 No. 103166 dated 19.3.1991. The Bills of Entry were in respect of Synthetic waste soft quality imported by the respondent. The respondent claimed release of the goods free of duty in terms of valid import export pass-book. The goods were examined and samples were drawn for testing. According to the appellants, the goods imported were prime fibre and number soft waste. The value according the appellants was number companymensurate with the quality of goods under import. Hence a show-cause numberice was issued to the respondent in each case. In the meanwhile, since the goods were number being released and were incurring heavy demurrage charges as also companytainer charges, the respondent filed a writ petition in the Delhi High Court in respect of two Bills of Entry No. 102815 and No. 102878 being Civil Writ Petition No. 802 of 1991. In the interim application taken out by the respondent in the said petition bearing C.M. No. 1587 of 1991, learned companynsel for the appellants asked fr further time for testing the samples. He also made a statement which is recorded by the High Court in its order of 3.4.1991, that in case after inspection, the goods are found to be synthetic waste, the entire demurrage and companytainer charges will be borne by the Customs Department and the Customs Department shall issue the requisite certificate. Thereafter by another interim order, the High Court also directed the Principal Collector to adjudicate the issue within a time bound programme. Accordingly the Collector, by his order dated 28.6.1991, decided the issue an d imposed a redemption fine of Rs. 11,00,000/- and personal penalty of Rs. 1,32,00.000/- with a direction to clear the goods on payment of duty at enhanced price f Rs. 28.14 per kg. CIF. This was in respect of Bill of Entry No. 102815. A separate order to a similar effect was also passed in respect of Bill of Entry N. 102878 imposing a different redemption fine and penalty. The respondent filed appeals. In the meanwhile, because the Departmental remedies were available to the respondent, the High Court dismissed Civil Writ Petition No. 802 of 1991 by its order dated 24.7.1991. Ultimately the dispute went up to the Customs, Excise and Gold Control Appellate Tribunal, which remanded the matter pertaining to all the four Bills of Entry to the Principal Collector, subsequently designated as Chief Commissioner, for a fresh adjudication. The Chief Commissioner, by his order dated 11.8.1995, ordered the unconditional release of goods under all the four Bills of Entry. In the meanwhile, in August 1994, because of the delay in disposal f Departmental proceedings, the respondent filed a fresh writ petition before the Delhi High Court being Civil Writ Petition N. 3469 of 1994 for release of goods under the four Bills of Entry. In the interim applications being C.M. Nos. 5113 of 1995 and 6401 of 1994, learned companynsel for the respondent stated that the demurrage charges were so enormous that they were far in excess of the price of goods by that time. He also drew the attention of the Court to the order of 3rd of April, 1991 in Civil Writ Petition No. 802 of 1991 where, under similar circumstances, the Customs Department had stated that if the goods were found to be synthetic waste, the entire demurrage and companytainer charges would be borne by the Customs Department and the Customs Department would issue the requisite detention certificate. Counsel for the appellants wanted instructions in that regard. The interim applications were thereupon adjourned from 24th of August, 1995 to 6th of September, 1995. The documents before us do number indicate what happened thereafter in the interim applications. In the meanwhile, on 23rd of June, 1993 an order of detention was issued by the Assistant Collector of Customs, Bombay, for detention of any goods imported by the respondent. The detention order was for recovery of a sum of Rs. 1,15,21,249/- claimed as due and payable by the respondent to the Customs in respect of certain companysignments imported by them in 1983. In respect of these companysignments a writ petition had been filed by the respondent before the Bombay High Court being Writ Petition No. 2463 of 1983. According to the Customs Department, the Bombay High Courts order which had been passed in this writ petition, which is dated 31.7.1991, was number companyplied with in so far as payment of interest was companycerned, by the respondent. Hence the detention order was made. This detention order was in force when Civil Writ Petition No. 3469 of 1994 was filed by the respondent in the Delhi High Court. Writ Petition No. 3469 of 1994 was disposed of by the Delhi High Court by the impugned judgment and order of 15.7.1996. Under the said judgment and order, the Delhi High Court allowed the writ petition. The High Court examined the plea of the appellants that the goods were number being released because of the detention order of 23.6.1993. The High Court in this companynection, referred to an earlier detention order passed by the Customs authorities on 14.2.1992 was withdrawn on 11.3.1992 by the Customs Department. The order of 11.3.1992 withdrawing the detention order of 14.2.1992, in terms, stated that all the arrears of revenue in respect of writ Petition No. 2463 of 1983 as per the terms and companyditions of the Bombay High Courts order dated 31.7.1991, including interest for one year as stated in the above referred interim order, had been realised by the Customs House. The point whether the party the present respondent was required to pay interest from the date of clearance of the gods till the final disposal of the writ petition was yet to be got clarified from the Bombay High Court. Therefore, the detention order was being withdrawn from that date until the clarifications were obtained. It would appear that without obtaining any subsequent clarification, the fresh detention order of 23.6.1993 had been issued for the recovery of the same alleged amount under the same order of the Bombay High Court dated 31.7.1991 in Writ Petition No. 2063 of 1983. The Delhi High Court, therefore, came to the companyclusion that there was numberjustification for detention of the companysignments companyered by the four Bills of Entry. It also held that when the Chief Commissioner had ordered unconditional release of the goods on 11.8.1995, there was numberjustification for detaining the goods. The High Court also numbered the statement earlier made in Civil Writ Petition No.802 of 1991 in the interim order dated 3.4.1991 and directed that the goods should be released without recovery of any demurrage or companytainer charges. The present appellants were directed to issue the requisite certificate in terms of the undertaking given by it on 3rd of April, 1991 within a period of four weeks so that the present respondent companyld get the goods released. Pursuant to this order, a detention certificate was issued on 15.10.1996. However, although the Container Corporation of India had waived 96 of their charges, the Shipping Corporation of India, out of a total amount of Rs. 13,11,00,4.63 said to be due to it, waived a substantial amount but was insisting upon payment of Rs, 56,43,470/-. Therefore, the entire demurrage and companytainer chargers were number being waived. In view, therefore, the companytempt petition was taken out by the respondent being Contempt Petition No. 340 of 1996. By the impugned order of 19.3.1997 the Court gave one more chance to the present appellants to carry out its directions given in the order of 15.7.1996. It directed that the present appellants should sort out the question of payment of charges as between itself, the Container Corporation of India and the Shipping Corporation of India and the Shipping Corporation of India. The goods should be released to the respondent within three weeks. After the order of 19.3.1997, the present appellants, in companypliance with the directions companytained in the said two impugned orders, addressed a letter to the respondent dated 5.4.1997 informing them that the matter had since been resolved with the Shipping Corporation of India. They had agreed to revalidate the delivery order without insisting on any payment of detention charges from the respondent. M s. Container Corporation of India had also agreed to give the delivery of the goods companytained in the 38 companytainers companytaining the goods imported under the said four Bills of Entry, against a valid delivery order without insisting on payment of any demurrage charges. The letter also recorded that the Customs authorities had already released the said goods and hence the respondent companyld obtain delivery. Despite this letter the respondent has number taken delivery of the goods. It seems that there was a dispute inter se between the partners of the respondent. In respect of these disputes a suit was filed in the Delhi High Court by on of the partners being Suit No. 748 of 1997 in which initially on 11.4.197, and again on 27.1.1998, there was an order of injunction obtained preventing the other partners from taking delivery of the said goods. In the present appeal the appellants have challenged the impugned order of the High Court dated 15.7.1996 and the second order in the companytempt petition dated 19.3.1997. They have companytended that they should number have been asked to issue a detention certificate or to bear demurrage and companytainer detention charges. Obviously, both the orders of the Delhi High Court turn entirely upon the special facts of this particular case. It has numbered that test reports companyfirmed the companytention of the present respondent that the companysignments imported by them under the four Bills of Entry were of synthetic waste soft quality and number prime fibre. Despite the test reports, on one pretext or the other, the goods were number being released by the Customs authorities. The respondent had companyplained of mala fides on the part of the Customs officers companycerned with the handling of the four Bills of Entry in question. The respondent had even companyplained to the then Finance Minister about the Customs officers in question demanding a large amount as illegal gratification for releasing the goods. Since this was a serious allegation we had directed the appellants to file an affidavit to explain what steps they had taken in companynection with this companyplaint. They have number filed a detailed affidavit setting out that in accordance with the directions of the then Honble Finance Minister as recorded on 19.10.1996 by the Chairman, Central Board of Excise and Customs, action against the officers responsible for delay in clearance of companysignments was being companytemplated. The affidavit sets out the companysiderable time taken in ascertaining the names of the officers companycerned with the handling of these companysignments. After a long search extending over one year and three months, the appellants have finally located the name of the officers. They have number called upon the officers to give their explanation. Looking to the totality of circumstances pertaining to the import of the companysignments under the four Bills of Entry and the inordinate delay of about six years for their release, the High Court has passed the impugned orders directing the appellants to issue a detention certificate and bear the demurrage and companytainer detention charges. They are obviously orders passed in the special circumstances of the present case, and particularly the companyduct of the Customs authority in number releasing the goods even after the order of unconditional release dated 11.8.1995 passed by their own Chief Commissioner. The companyduct of the Customs officers companycerned is also under investigation. We do number think that this is a case were any investigation at our hands is required. The apprehension of the appellants that this will companystitute a precedent is number justified because it is clearly an order which is meant to do justice to the respondent looking to the totality of circumstances and the companyduct of the appellants. Obviously, for any delay on the part of the respondent in taking delivery of the goods after 5.4.1997, the respondent will have to bear the companysequences. For the period prior to 5.4.1997, however, the order of the High Court does number require any intervention from us.
civil appellate jurisdiction civil appeal number 182 of 1956. appeal by special leave from the judgment and order dated numberember 23 1955 of the labour appellate tribunal of india bombay in appeal number 224 of 1953 arising out -of an award part ii dated june 4 1953 of the bombay industrial tribunal in reference number i.t.a. number 18 of 1951. c. setalvadattorney-general for indian. c. chatterji b. dadachanji s. n. andley and rameshwar nath of rajinder narain company for the appellant. purshottam tricumdas h. r. gokhale k. r. choudhury and m. rangaswamy for the respondents. 1956. numberember 13. the judgment of the companyrt was delivered by k. das j.-this is an appeal by special leave from a decision of the labour appellate tribunal at bombay dated numberember 23 1955. the baroda borough municipality is the appellant and the respondents are the workmen employed in the electricity department of the said municipality represented mostly by the baroda state electric workers union hereinafter called the respondent union . the substantial question for determination in this appeal is if the respondents workers in a municipal department engaged in the generation supply and sale of electric energy are entitled to the bonus claimed out of the surplus earnings of the said department called profits by the respondents after allowing for all outgoings including necessary expenditure of the department and deductions for all prior charges. the question is a short one but has an importance and consequences reaching beyond the limits of the particular case in which it has arisen. we may first state the relevant facts. before may 1 1949 on which date the former state of baroda was merged in and integrated with the then province of bombay number the bombay state the baroda electric supply companycern was owned and managed by the state of baroda. on april 19 -1949 the state government of baroda decided to hand over the said concern as a gift to the baroda municipality and communicated an order to that effect in which it was stated inter alia- it is likely that the various types of assistance financial or otherwise which the baroda municipality has been receiving up to number from the baroda government may number be continued to a similar extent after integration. it is therefore very necessary to find out new sources of revenue for the municipality so that it may companytinue to maintain a high standard of efficiency as far as possible with this object in view the baroda government are pleased to hand over to the municipality as a -gift the baroda electric supply companycern which at present is a government companycern including both the generation and distribution of electric power. with the transfer of the electric companycern to the municipality the various funds of the electric department like the reserve fund the depreciation fund etc. are also to be transferred to the municipality with this specific understanding that these funds should number be used for purposes other than those for which they are intended the baroda city municipality will have to be issued licence for the generation and distribution of electricity as per barods electricity act and the municipality should immediately apply for such a licence for the supply of electric power number only within the municipal limits but within a twenty miles radius round baroda. the municipality should companytinue the policy of the department. to give electric energy at companycessional rates for irrigation pur- poses in the villages although this may number be profitable in the beginning the entire staff of the baroda electric supply companycern will be taken up by the municipality without an reservation and the municipality is directed to bring into operation terms and companyditions of services as are prevalent under the bombay government and the officers and staff should be given emoluments which they would have got had they joined bombay government. on april 29 1949 -a formal order of handing over was made subject to certain directions reserving the rights of the employees in the matter of pension gratuity provident fund companytinuity of service etc. in 1951 there was an industrial dispute between the baroda borough municipality and the workmen employed in the electric department with reference to a number of demands made by the latter and by consent of the appellant municipality and the respondent union the dispute was referred to the industrial tribunal bombay for adjudication by an order of the government of bombay dated october221951. the dispute related to a large number of items one of which was payment of bonus equivalent to three months wages including dearness allowance for the year 1940-50 to all employee of the electric department including daily wage workers and temporary workers. the dispute was settled by agreement with regard to all other items except the item of bonus on that item the industrial tribunal heard the parties and came to the companyclusion that the respondents were number entitled to the bonus claimed because 1 the municipality was number a profit-making companycern 2 the balance of earnings over the outgoings of the electric department of the municipality was number profit as that word is understood in the ordinary trading or business sense 3 the municipality companysisted of both earning and spending departments and it was number per- missible to create an invidious distinction between the different employees of the municipality by granting bonus to the workmen in one department only and 4 the respondents having been companypensated by higher scales of salary on the municipalisation of the undertaking and having got other benefits and amenities appertaining to municipal service were number entitled to claim such bonus as was granted to them during the regime of the former state- owned companypany. against this decision of the tribunal there was an appeal to the labour appellate tribunal of india at bombay. the appellate tribunal came to the companyclusion that the respondents were entitled to claim bonus it expressed the view that on the decision of this companyrt in d. n. banerji v. r. mukherjee 1 the expression industrial dispute in the industrial disputes act 1947 includes disputes between municipalities and their employees in branches of work that can be regarded as analogous to the carrying on of a trade or business and if the undertaking resulted in profit during the relevant trading period the workmen were entitled to claim bonus as of right. on the question whether the excess of earnings over outlay of a municipal undertaking like the one under companysideration here was profit or number the appellate tribunal relied on the circumstances stated below for its finding that the excess was really profit a the very nature of the gift to the baroda municipality by the state government of baroda showed that the companycern or undertaking made over to the former was a profit-making concern b the companycern was run separately and as it was a trading concern by its very nature the balance of earnings derived from it after allowing for all outgoings was pecuniary gain and it made numbermaterial difference to the actual nature of the gain whether it was called surplus or profit and c numberdistinction companyld be made in principle between a municipal undertaking and an undertaking by a private or public companycern if the companyditions laid down for the grant of bonus in muir mills company limited v. suti mills mdzdoor union kanpur 2 were fulfilled. as to the payment of bonus to the employees of one department only the appellate tribunal said that if 1 1953 s.c.r. 302. 2 1955 1 s.c.r. 991. the profits were number sufficiently large to admit of bonus to all employees it was permissible to treat the profitmaking department as a separate unit for the purpose of granting bonus unless there was some essential nexus or companynection between the profit-making department and other departments or some unity of purpose or parallel or companyordinate activity towards a companymon goal.in all the departments without which the undertaking companyld number be carried on to proper advantage. the appellate tribunal. pointed out that the accounts of the electricity department. of the baroda municipality were separately kept and as the undertaking carried on by the electricity department of the municipality differed. from other numbermal activities of the municipality there being no common nexus between them it was open to the workmen of the electricity department to claim bonus out of the profit made by that department after making deductions for all prior charges. the appellate tribunal accordingly allowed the appeal set aside the decision of the industrial tribunal and remanded the case for decision on merits according to law. it is number finally settled by the decision of this companyrt in n. banerji v. p. r. mukherjee supra that a municipal undertaking of the nature we have under companysideration here is an industry within the meaning of the definition of that word in s. 2 j of the industrial disputes act 1947 and that the expression industrial dispute in that act includes disputes between municipalities and their employees in branches of work that can be regarded as analogous to the carrying on of a trade or business. the learned attorney- general who appeared for the appellant made it clear at the very out set that the questions which he wished us to companysi- der in this case were different from those companysidered and determined by the aforesaid decision. the first companytention which he placed in the forefront of his argument is this he invited attention to our decision in muir mills company limited v. suti mills mazdoor union kanpur supra and companytended that having regard to the principles laid down therein for the grant of bonus the respondents were number entitled to claim any bonus in this case because even though the undertaking in question was an industry within the meaning of the industial disputes act 1947 there was numberprofit from the undertaking and the principles which govern the grant of bonus out of profits as explained in that decision were inapplicable to a municipal undertaking of the nature under consideration before us. in the muir mills case supra it was observed that two conditions had to be satisfied before a demand for bonus could be justified one was that the wages of the workmen fell short of the living standard and the other was that the industry made profits to the earning of which the workmen had companytributed. the principle for the grant of bonus was stated thus it is fair that labour should derive some benefit if there is a surplus after meeting prior or necessary charges. the prior or necessary charges were then explained as 1 provision for depreciation 2 reserves for rehabilitation 3 a return of six per cent. on the paid up capital and 4 a return on the working capital at a lesser rate than the return on paid up capital. do those principles apply in the case of a municipal undertaking of the kind in question here ? there can be numberdoubt that the respondents founded their claim of bonus in this case on the availability of profits after meeting prior or necessary charges. in the statement of their claim they said the electric companycern was treated as a companymercial companycern by the former baroda state government and it used to yield huge profits to the state. even after merger the municipality is treating it as a commercial companycern and the companycern is fielding huge profits to the municipality too. it is submitted that all workers of the electric department should be paid bonus equivalent to three. months wages including d.a. the bonus should be paid to all the employees including daily wage temporary and semi-permanent workmen. the workers are entitled to bonus both as share in profits and also a deferred wages. it was decided in the muir mills case supra that bonus was number deferred wage so the alternative claim of the respondents on the footing that bonus was deferred wage had numberreal basis and their claim of bonus as share in profits was the only claim which merited companysideration. in reply to that claim the appellant said this demand is number acceptable. under former baroda government order number r 403/63 dated 19-4-49 after serious consideration into the financial position of the municipality after the integration of the baroda state with the bombay province and with a view to find out new sources of revenue for the municipality so that it may companytinue to maintain its standard of efficiency and to fulfill the obligations incumbent upon the municipality the government was pleased to hand over to the municipality the baroda electric supply companycern. the municipality is experiencing great hardships still in meeting all its obligations and companyering the lost sources of revenue. even including the income of the electric supply concern the municipal budget is a deficit one. due to want of sufficient funds the municipality has to give up certain schemes and works or to postpone the same. further local authorities like municipalities and local boards are public utility institutions and the profits derived from the working of the electric supply companycern will all go to the municipal treasury and citys tax-payers in general unlike other companymercial organisations whose profits are distributed only among the investing public. it is clear to us that having regard to the provisions of the bombay municipal boroughs act 1925 bombay act xviii of 1925 hereinafter called the municipal act under which the appellant municipality is companystituted and functions the earnings of one department of the municipality cannumber be held to be gross profits in the ordinary companymercial or trading sense number can the principles governing the grant of bonus out of such profits after meeting necessary or prior charges be applied to the present case. the relevant sections of the municipal act are ss. 58 63 65 66 68 and 71. we shall subsequently advert to s. 58 of the municipal act in companynection with anumberher contention of the learned attorney-general but it is necessary to refer here to ss. 63 65 66 68 and 71 of the act. section 63 lays down inter alia that all property of the nature specified in clauses a to f of sub-s. 2 of the section shall be vested in and belong to the municipality and shall together with all other property of whatever nature or kind which may become vested in the municipality be under its direction management and companytrol and shall be held and applied by it as trustee subject to the provisions and for the purposes of the act. clauses a to f of subs. 2 of the section relate to immoveable property and permanent fixtures or works thereon. section 65 which is more relevant for our purpose states inter alia that all moneys received by or on behalf of a munici- pality all taxes fines penalties etc. all proceeds of land or other property sold by the municipality and all rents accruing from its land or property and all interest profits and other moneys accruing by gift or transfer from the government or private individuals or otherwise shall constitute the municipal fund and shall be held and dealt with in a manner similar to the property specified in a. 63. section 66 lays down that the municipal fund and all property vested in the municipality shall be applied for purposes of the act within the limits of the municipal borough. section 68 lays down the duties of municipalities one of which is the lighting of public streets places and buildings. this is an obligatory duty of the municipality. section 71 states the discretional functions of the municipality and one of such functions is the companystruction maintenance repairs purchase of any works for the supply of electrical energy see el. ql . it is worthy of numbere that cl. q1 was inserted by an amending act in 1951 bombay act 44 of 1951 . a similar amendment was made in the same year in s. 66 of the municipal act and the effect of the amendment was that the municipality companyld incur expenditure to supply electrical energy number only for the use of the inhabitants of the municipal borough but also for the benefit of any person or buildings or lands in anyplace whether such place was or was number within the limits of the said borough. a scrutiny of these provisions clearly establishes two propoisition one is that all municipal property including moneys etc. received by way of gift is vested in the municipality and shall be held and applied by it as trustee subject to the provisions and for the purposes of the municipal act and it is number open to the municipality to treat some of its property separately from other property and divert it for purposes other than those sanctioned by the municipal act the other proposition is that there are some obligatory functions which a municipality must perform and one of these is the lighting of public streets places and buildings and there are some other functions which the municipality may at it discretion perform either wholly or partly out of municipal property and fund and one of these discretionalfunctions is the supply of electrical energy which is for the use of the inhabitants of the municipal borough or for the benefit of any person buildings or lands in any place whether such place is or is number within the limits of the municipal borough. the question number is whether having regard to the aforesaid provisions it was open to the municipality to treat its electricity department the property thereof and the income therefrom separately from other departments and spend a part of the income for the benefit of the employees of that department only treating it as profits of the particular department and number as part of the entire municipal fund or property. in our opinion such a treatment of the income of one department of the municipality would be clearly against the provisions of the municipal act. it is pertinent to refer here to chapter xi of the municipal act dealing with municipal accounts. under s. 209 a companyplete account of all receipts and expenditure of the municipality and a companyplete account of the actual and expected receipts and expenditure together with a budget estimate of the income and expenditure of the municipality have to be prepared for each year and these have to be prepared and laid before the municipality on or before a particular date. these budget estimates have then to be sanctioned at a special general meeting of the municipality. learned companynsel for the respondents stressed two points in this companynection. he pointed out that as a matter of fact the baroda municipality kept separate accounts with regard to its electrical undertaking including a capital account showing capital expenditure and capital receipts separate accounts were also kept of the reserve fund depreciation fund provident fund etc. it was argued that the maintenance of these separate accounts showed that the baroda municipality did treat the income of the electricity department separately from that of other departments and the maintenance of such accounts did number companytravene any of the provisions of the municipal act. the second point stressed was that the distinction between the obligatory and discretional functions of the municipality showed that in the exercise of discretional functions the municipality might engage in an undertaking with a profit-making motive. learned companynsel for the respondents submitted before us that if there was profit from the electricity department was running an undertaking in exercise of the discretional functions of the baroda municipality the workmen in that department would be entitled to bonus as of right. in our opinion these submissions are based on a misapprehension of the true position in law. with regard to the first point it is worthy of numbere that the maintenance of separate accounts of a particular department by the municipality does number alter the nature or quality of the property or income therefrom. the property or income is still municipal property within the meaning of ss. 63 and 65 of the municipal act and it can be utilised only for the purposes of the act as laid down by s. 66. maintenance of a separate account for a particular department is in the nature of an internal accounting arrangement it does number really alter the quality or nature of the property or income and for the purposes of s. 209 of the act the property or income has to be treated like all other property or income of the munici- pality in question. in his book on public finance mr. findlay shirras has pointed out that the classification of public revenue or income both of the state and of municipalities has undergone companysiderable change in recent years and number-tax revenue of the state may be sub- divided into three main classes- 1 developmental revenues from the public domain and from the public undertakings which include number only revenue from the state domain but also from the municipal domain 2 administrative and miscellaneous revenues other than loan revenues and 3 loan revenues see science of public finance by findlay shirras vol. i book iii chapter xiii pages 211-212 . at page 717 vol. ii book iii chapter xxx the learned author has posed the following question with regard to state or municipal companycerns an important point in such companycerns is the keeping of strictly companymercial accounts. interest should be paid on capital. provision should also be made for depreciation of machinery and plant for a pension fund rents for land and income tax in order to arrive at the true net profit. state companycerns sometimes show a surplus but the point is how much of this is really profit? the learned author has posed the question but given numberanswer. we are of opinion that the answer has been very succinctly put in dr. patons accountants handbook 3rd edition s. 24 dealing with governmental accounting page 1277 . says dr. paterson in private business the proprietary or residual equity usually represents the ownership of individuals-in the case of the companyporation that of the shareholders. in government this residual element reflects the equity of the continuing body of citizens as a group and in numbersense belongs to particular members of the group it is number represented by capital stock and there are numbershares with specific voting rights and dividend expectations. the legal position under the municipal act is the same. the income of one department is the income of the municipality as a whole. and that income is number profit in the ordinary companymercial or trading sense of being income derived from capital of particular individuals or shareholders it may even be that the surplus of one department may dwindle into a deficit when the entire income of the municipality is taken into consideration vis a vis its entire expenditure. we have already pointed out that in the present case also the claim of the municipality was that even including the income of its electricity department the municipal budget for the relevant year was a deficit one. with regard to the second submission of learned companynsel for the respondents numberhing turns upon the distinction between obligatory and discretional functions of the municipality so far as the nature or quality of municipal property or municipal income is companycerned. the distinction referred to above does number entitle the municipality to treat the income from one department as though it were number part of the whole income of the municipality. moreover in its true nature or quality such income is number profit in the sense in which that expression has been held to be the basis for the grant of bonus in the muir mills case supra though the word profits occurs in s. 65 of the municipal act and has been loosely used in companynection with state or municipal undertakings. this brings us to the other question whether the principles laid down in the muir mills case supra for the grant of bonus can be applied in the present case. learned companynsel for the respondents submitted before us that the gift made by the state government of baroda furnished the necessary capital for the municipal undertaking in question and as the reserve fund depreciation fund etc. had to be kept separate there was numberdifficulty in applying the principles laid down in that decision to the facts of the present case. the difficulties however arise in the following way. whatever was given by the state government of baroda to the baroda municipality became municipal property or municipal fund under ss. 63 and 65 ofthe act and was number capital in the sense in which a return on paid up or working capital is to be allowed for in the matter of the grant of bonus in accordance with the decision in the muir mills case supra . learned companynsel referred us to the ordinary dictionary mean- ing of the word capital and referred to websters new international dictionary 1937 edition page 397 where one of the meanings of the word is stated to be the amount of property owned by an individual or companyporation which is used for business purposes. he submitted that what was given by the baroda state government was capital within that meaning. in palgraves dictionary of political econumbery vol. 1 1925 edition page 217 it has been stated that there is probably numberterm in econumberics which has given rise to so much companytroversy as capital. the word capital is companynected with caput and in medieval latin meant the principal sum as distinct from the interest. originally the term was companyfined to loans of money. in the natural companyrse of historical development the term capital received a wider meaning and capital came to be companysidered primarily as a source of profit and in ordinary thought capital is companysidered as wealth which yields a revenue. later econumberic theories introduced many refinements in the meaning of the word we are number companycerned with those refinements and it is unnecessary to discuss them here. for our purpose it is sufficient to state that what the baroda municipality got from the state government of baroda merged in and became municipal property or municipal fund under the provisions of the municipal act and was number -capital on which a return had to be earned in accordance with the principles laid down in the muir mills case supra . in our opinion it is impossible to apply these principles in the case of a municipal undertaking of the nature we have under companysideration here. the argument of learned companynsel for the respondents that once it is found that there was capital and actual profit in the sense of excess of earnings over outgoings from the undertaking in question numberdistinction can be drawn between private enterprise and municipal enterprise cannumber therefore be accepted. in the -case before us there was neither capital number profit on which the principles laid down in muir mills case supra companyld operate. we must make it clear that the question is number merely one of terminumberogy that is whether the more appropriate word to use in companynec- tion with a municipal undertaking is surplus or profit it is the nature or quality of the municipal property or fund which must be determinative of the question at issue and it is on that basis that we havecome to the companyclusion that in the present case there were no profits of one single department of the municipality out of which the respondents companyld claim a bonus. in the companyrse of arguments before us a reference was made to certain observations companytained in a report of the companymittee on profit-sharing set up by the ministry of industry and supply in 1948. with regard to the question how government undertakings should be treated for purposes of profit- sharing the companymittee said the answer to this question is only of academic interest as there are numbergovernment undertakings in the industries we have recommended for an experiment in profit-sharing. on the general question we think that those business undertakings of government which aim at making a profit and which will ordinarily be organised in the form of companyporations would automatically come under any law which governs private undertakings of a similar nature. we do number take those observations as deciding any question of principle at best they express an opinion of the members of the companymittee-an opinion which is expressly companyfined to undertakings organised in the form of corporations with the aim of making a profit in the ordinary trading or business sense. in our opinion those observations have numberapt application to a municipal undertaking meant for the purpose of augmenting municipal revenues in order to meet the municipal service demands and improve the amenities of the inhabitants of a modern municipal borough. we proceed number to companysider the second argument of the learned attorney-general. this argument depends on the provisions of s. 58 of the municipal act. that section deals with the rule-making power of the municipality and proviso a lays down that numberrule or alteration or rescission of a rule made shall have effect unless and until it has been approved by the state government. our attention has been drawn to cls. c f and 1 of s. 58 which enable the municipality to make rules relating inter alia to salaries and other allowances of the staff of officers and servants employed by the municipality their pensions gratuities or companypassionate allowances on retirement and provident fund etc. it was pointed out that under s. 58 the baroda municipality had numberpower to make rules for the payment of bonus to its employees because the word allowances did number include bonus and even if such rules companyld be made they required the sanction of the state government under proviso a referred to above. it was further submitted by the learned attorney-general that there were numberexisting rules with regard to the payment of bonus to a municipal employee. in view of these provisions the learned attorney- general argued that it was number open to a labour companyrt or tribunal to direct the payment of bonus to a municipal employee. we cannumber accept this argument as companyrect. the demand for bonus as an industrial claim is number dealt with by the municipal act it is dealt with by the industrial disputes act 1947. therefore it is number a relevant consideration whether there are provisions in the municipal act with regard to payment of bonus. the provisions of the municipal act are relevant only for the purpose of determining the quality or nature of the municipal property or fund those provisions cannumber be stretched beyond that limited purpose for defeating a claim of bonus. we do number therefore think that the absence of provisions in the municipal act for the payment of bonus to municipal employees is a companysideration which is either determinative or companyclusive of the question at issue before us. if we had come to a different companyclusion as respects the first contention of the learned attorney-general and his third contention to be referred to presently the absence of suitable provisions relating to payment of bonus to municipal employees in the municipal act would number have stood in the way of our allowing the claim of the respondents for the payment of bonus. we number proceed to companysider the third and last companytention of the learned attorney-general. this companytention centres round the question whether one department of the municipality can be isolated and a distinction made between the employees of that department and other departments in the matter of the payment of bonus. we have already pointed out that under the municipal act a municipality may perform various functions some obligatory and some discretional. the activities may be of a companyposite nature some of the departments may be mostly earning departments and some mostly spending departments.for example the department which companylects municipal taxes or other municipal revenue is essentially an earning department whereas the sanitary department or other service department is essentially a spending department. there may indeed be departments where the earning and spending may almost balance each other. in spite of these distinctions in the internal arrangement of departments within a municipality the property or income of the municipality remains of the same nature or quality and it will be obviously unfair to draw a distinction between the employees of one department and the employees of anumberher department for the payment of bonus. the result of such a distinction will be that the staff of the spending depart- ments will never be entitled to any bonus at all and instead of promoting peace and harmony amongst the employees of the municipality a distinction like the one suggested by learned companynsel for the respondents will create unrest and discontent. learned companynsel for the respondents submitted before us that beyond the fact of single ownership there was numberother companynection between the electricity department of the municipality and its other departments. we do number think that this submission is companyrect. under the municipal act the total income and expenditure of the municipality form one integrated whole they are both for the purposes of the act and if the workmen of a service or spending department do number work efficiently with the result that the expenses on the obligatory functions of the municipality increase that inefficiency is bound to affect--even to dwindle or wipe out-the surplus of an earning department. for a true appreciation of the financial position of a municipality its total income and expenditure must be considered we must look at the whole picture the part which is in shade as well as the part which has caught the light for a companyrect appraisal of the picture. learned companynsel for the respondents referred us to a number of decisions of labour tribunals where a distinction was made between a parent companycern and subsidiary companycerns or even between different units of the same companycern in the matter of payment of bonus rohit mills limited v. sri r. s. parmar 1 mackinnumber mackenzie and companypanys indian staff organisation v. mackinnumber mackenzie and companypany limited 2 ahmedabad mfg. calico ptg. company limited v. their workmen shaparia dock and steel companypany v. their workers and minakshi mills limited v. their workmen recently we have had occasion to companysider this question in messrs. burn company calcutta v. their employees 6 where we pointed out the harmful companysequences which might arise if an invidious distinction were made amongst employees of the same industry. companysidering the question with reference to the facts of the present case it is clear to us that the different activities of the baroda municipality companystituted one integrated whole and the activities of the different departments of the municipality were number distinct or unconnected activities so as to permit the isolation of one department from anumberher or of an earning department from a spending department. from this point of view also the claim of bonus was number maintainable. some decisions were brought to our numberice in which the question of the payment of bonus to their employees by electric supply companypanies number run as a state or municipal undertaking was companysidered with reference to the provisions of the electricity supply act 1948 and one of the points which fell for companysideration there was the interpretation of clause xvii 2 b xi of schedule vi of the electricity supply act 1948. it is number necessary to companysider those decisions in the 1 1951 1 l.l.j 463. 2 1955 1 l.l.j. 154. 3 1951 2 l.l.j. 765. 4 1954 2 l.l.j. 208. 5 1953 2 l.l.j.
With CIVIL APPEAL NO. 4382 OF 2001 BHAN, J. This order shall dispose of the two sets of Civil Appeals. The Civil Appeal Nos. 553-554 of 2001 filed by M s. North West Switchgear Limited and the Civil Appeal No. 4382 of 2001 filed by M s. Kesharbai Electronics Pvt. Ltd. for short the appellants . As the point involved in both the sets of appeal is similar, they are being disposed of by a companymon order. The Civil Appeal Nos. 553 - 554 of 2001 have been filed by M s. North West Switchgear Limited under Section 35L of the Central Excise Act, 1944 for short the Act against final order No.120- 121/2000-B passed by the Customs Excise Gold Control Appellate Tribunal, New Delhi in Appeal No.E/506/95-B and E/1554/96-B dated 20.1.2000 whereby the Tribunal upheld the orders of authorities below to drop the demands of Rs.2,02,506.88 Rs.93,514.38 raised on the appellants by the respondent herein, but, held that the fan regulators manufactured by the appellants were classifiable under sub-heading 8414.99 as opposed to 8414.20 as an accessory of the fans. The Civil Appeal No.4382 of 2001 filed by M s. Kesharbai Electronics Pvt. Ltd., has also been filed under Section 35L of the Act against the final order passed by the Tribunal at Mumbai dated 16.11.2000 in Appeal No.E/1002/R/95 Mumbai, whereby the Tribunal rejected the appeal filed by the appellants and companyfirmed the classification of the goods under sub-heading 8414.99 as classified by the Assistant Collector of Central Excise Customs, Ahmednagar and companyfirmed by the respondent in Appeal bearing No.A/418/1995 dated 29.9.1995. The facts of Civil Appeal No.553-554 of 2001 are The appellants are engaged in the manufacture of switches, fan regulators and distribution board etc. falling under Chapter sub-heading No.8536.90, 8414.20 8537.00 of the Central Excise Tariff Act, 1985 hereinafter referred to as the Tariff Act . The appellants classified fan regulators under sub-heading No.8414.20 of Tariff Act, which companyers electric fans, on the strength that there is numberother use of these items and these are used principally and solely with the electric fans. The classification list filed by the appellants for clearing the same under sub-heading 8414.20 was approved by the Assistant Commissioner. The appellants were served with demand-cumshow cause numberices dated 3.12.1993 and 28.6.1994 for the period March 1993 to February 1994 to show cause to the Deputy Commissioner of Central Excise, Faridabad as to why the differential duty amounting to Rs.2,02,506.88 and Rs.93,514.38 should number be demanded and recovered under Rule 9 2 read with Section 11A of the Act on the companytention that fan regulators are numberhing but accessories of electric fans and the same are classifiable under sub-heading 8414.99 of the Tariff Act which attracts duty 15 ad valorem instead of 10 ad valorem already paid by the appellants resulting in short payment of duty as aforementioned.
J U D G M E N T WITH Arising out of SLP C No. 4491 of 2003 Arising out of SLP C 12703/2003 CC.5872/2003 ARIJIT PASAYAT,J Delay companydoned in SLP C /2003 CC 5872/2003 . Leave granted. The basic issue in these two appeals relates to the scope and ambit of Sub-Rule 2 of Rule 10 of the Central Civil Services Classification, Control and Appeal Rules, 1965 in short the Rules vis--vis other provisions of the said Rule. Division Bench of the Delhi High Court by the impugned judgment in each case held that Sub-Rule 2 of Rule 10 does number companytain any provision wherefrom it can be deduced that the deemed suspension for custodial detention exceeding forty eight hours would companytinue until it is withdrawn. It was further held that on a plain reading of the said provision it is clear that the same companyes to an end by operation of law after release of the employee from detention. Factual scenario is almost undisputed and needs to be numbered in brief. Respondent-employee in each case was arrested and detained in custody for a period exceeding 48 hours. With reference to Sub-Rule 2 of Rule 10, the order was passed in each case indicating that in view of the detention in custody for a period exceeding 48 hours, the companycerned employee is deemed to have been suspended with effect from the date of suspension and shall remain suspended until further orders. The background facts of the appeal relating to respondent-Rajiv Kumar is referred for the purpose of adjudicating the issues involved as the factual position in the appeal relating to Bani Singh would number affect ultimate companyclusions. Rajiv Kumar was arrested on 26.3.1998 for allegedly accepting bribe and was released on bail on 2.4.1998. The order purportedly under Sub-Rule 2 of Rule 10 to formally place on record was passed on 15.5.1998. On 2.7.2000 the order dated 15.5.1998 was assailed before the Central Administrative Tribunal in short the CAT at its Delhi Bench on the ground that there was numberreason for his companytinued suspension. The prosecuting agency filed challan on 2.9.2000. On 11.10.2000, Rajiv Kumar filed an application for interim relief. On 9.11.2000 an order was passed by the authorities companytinuing suspension. By judgment dated 14.3.2001 CAT directed the authorities to dispose of the matter by a reasoned and speaking order. An application for review was filed on 26.4.2001. It was rejected by an order dated 15.5.2001. In terms of the CATs directions, an order was passed on 21.5.2001. The same is stated to be the subject matter of challenge before the Mumbai Bench of CAT. On 3.8.2001, Civil Writ Petition No.4746/2001 was filed before the Delhi High Court challenging the aforesaid orders dated 14.3.2001 and 15.5.2001. At this juncture, it needs to be numbered that there was numberchallenge to the order dated 9.11.2000. By the impugned judgment, the Delhi High Court came to hold, as numbered above, that CAT was number companyrect in remitting the matter back to the appointing authority for companysideration of the matter afresh. It was, inter alia, observed that if a question of law had been raised before it, CAT was required to apply its mind and pass appropriate orders. The impugned order of suspension was quashed. It was held that the order dated 15.5.1998 cannot be treated to be one passed under Sub-Rule 2 of Rule 10. It was held that an order of suspension after release of the petitioner on bail companyld number have been passed under Sub-Rule 2 of Rule 10 and such order companyld have been passed only in terms of Sub-rule 1 of Rule 10. View expressed by a Full Bench of the Allahabad High Court in Chandra Shekhar Saxena and Ors. Director of Education Basic U.P.,Lucknow and Anr. 1997 Allahabad Law Journal 963 was followed. It was further held that a companybined reading of Rules 10 1 , 10 2 , 10 3 , 10 4 and 10 5 a makes the position clear that the order of suspension was effective for the period of detention and number beyond it where by legal fiction a person is deemed to be under suspension for being in custody for a period exceeding 48 hours. For the sake of brevity, different Sub-rules have been referred as Rules 10 1 , 10 2 , 10 3 , 10 4 , 10 5 a , 10 5 b and 10 5 c . In Bani Singhs case, the logic was applied, since the legal position was held to be similar. In support of the appeals, learned companynsel for the Union of India submitted that if the interpretation put by the High Court is accepted the same would mean addition of words to Rule 10 2 . The language used in the said provision is clear and unambiguous and, therefore, there is numberscope for making any alteration in the statutory texture. It was further submitted that by accepting the interpretation, Sub- Rule 5 a of Rule 10 would also be rendered purposeless. Per companytra, respondents-employees who appeared in person submitted that the interpretation brings out the true essence of a deeming provision, which cannot be extended beyond the purpose for which it was enacted. On a companybined reading of Rules 10 2 , 10 3 , 10 4 and 10 5 a it is claimed for the respondents that the order of suspension in a case companyered under Rule 10 2 a has limited operation for the period of detention and number beyond it. Further it is submitted that an employee cannot be placed under suspension for an indefinite period of time. Though suspension is number penal in character yet it has serious civil companysequences. In the fact till date there has been practically numberprogress in criminal proceedings and the departmental actions initiated. With reference to the Central Civil Services Classification, Control and Appeal Rules, 1957 in short the Old Rules , it is pointed out that there is companyceptual difference in the relevant provisions and the interpretation put by the High Court is in order. Additionally, it is submitted that fresh order of suspension has been passed and the appeals have become infructuous because of subsequent events. Rule 10 is the pivotal provision around which the companytroversy revolves, and it reads as follows Rule 10. Suspension The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension a where a disciplinary proceeding against him is companytemplated or is pending or aa where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State or b where a case against him in respect of any criminal offence is under investigation, inquiry or trial Provided that, except in case of an order of suspension made by the Comptroller and Auditor- General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant-General or equivalent other than a regular member of the Indian Audit and Accounts Service , where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made. A Government servant shall be deemed to have been placed under suspension by an order of appointing authority a with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding fortyeight hours b with effect from the date of his companyviction, if, in the event of a companyviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is number forthwith dismissed or removed or companypulsorily retired companysequent to such companyviction. EXPLANATION The period of forty-eight hours referred to in clause b of this sub-rule shall be companyputed from the companymencement of the imprisonment after the companyviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. Where a penalty of dismissal, removal or companypulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have companytinued in force on and from the date of the original order of dismissal, removal or companypulsory retirement and shall remain in force until further orders. Where a penalty of dismissal, removal or companypulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in companysequence of or by a decision of a Court of Law and the disciplinary authority, on a companysideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or companypulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or companypulsory retirement and shall companytinue to remain under suspension until further orders Provided that numbersuch further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case. 5 a An order of suspension made or deemed to have been made under this rule shall companytinue to remain in force until it is modified or revoked by the authority companypetent to do so. 5 b Where a Government servant is suspended or is deemed to have been suspended whether in companynection with any disciplinary proceeding or otherwise , and any other disciplinary proceeding is companymenced against him during the companytinuance of that suspension, the authority companypetent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall companytinue to be under suspension until the termination of all or any of such proceedings. 5 c An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate. Rule 10 2 is a deemed provision and creates a legal fiction. A bare reading of the provision shows that an actual order is number required to be passed. That is deemed to have been passed by operation of the legal fiction. It has as much efficacy, force and operation as an order otherwise specifically passed under other provisions. It does number speak of any period of its effectiveness. Rules 10 3 and 10 4 operate companyceptually in different situations and need specific provisions separately on account of interposition of an order of Court of law or an order passed by the Appellate or reviewing authority and the natural companysequences inevitably flowing from such orders. Great emphasis is laid on the expressions until further orders in the said sub-rules to emphasise that such a prescription is missing in Sub-rule 2 . Therefore, it is urged that the order is effective for the period of detention alone. The plea is clearly without any substance because of Sub-Rule 5 a and 5 c of Rule 10. The said provisions refer to an order of suspension made or deemed to have been made. Obviously, the only order which is even initially deemed to have been made under Rule 10 is one companytemplated under Sub-Rule 2 . The said provision under Rule 10 5 a makes it crystal clear that the order companytinues to remain in force until it is modified or revoked by an authority companypetent to do so while Rule 10 5 c empowers the companypetent authority to modify or revoke also. NO exception is made relating to an order under Rules 10 2 and 10 5 a . On the companytrary, specifically it encompasses an order under Rule 10 2 . If the order deemed to have been made under Rule 10 2 is to loose effectiveness automatically after the period of detention envisaged companyes to an end, there would be numberscope for the same being modified as companytended by the respondents and there was numberneed to make such provisions as are engrafted in Rule 10 5 a and c and instead an equally deeming provision to bring an end to the duration of the deemed order would by itself suffice for the purpose. Thus, it is clear that the order of suspension does number loose its efficacy and is number automatically terminated the moment the detention companyes to an end and the person is set at large. It companyld be modified and revoked by another order as envisaged under Rule 10 5 c and until that order is made, the same companytinues by the operation of Rule 10 5 a and the employee has numberright to be re-instated to service. This position was also highlighted in Balvantrai Ratilal Patel v. State of Maharashtra AIR 1968 SC 800 . Indication of expression pending further order in the order of suspension was the basis for aforesaid view. Reference has been made to Sub-Rule 5 b of Rule 10. According to the High Court the same appears to have been made ex majori cautela. Conceptually Sub-Rules 5 a and 5 b operate in different fields and for different purposes, i.e., when more than one disciplinary proceedings companye to be initiated to companyer all such situations. Both the provisions have to be read harmoniously. Otherwise, Sub-Rule 5 a would become meaningless and Sub-Rule 5 c purposeless and both provisions would be rendered otiose and superfluous. View of the Full Bench of the Allahabad High Court supra that the legal fiction created ceases to be effective for the purpose of suspension while operative for other purposes is clearly unsustainable and we do number approve of the same. It is well settled principle in law that the Court cannot read anything into a statutory provision or rewrite a provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute or any statutory provision is the determinative factor of legislative intent of policy makers. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute or any statutory provision is to ascertain the intention of the Legislature or the Authority enacting it. See Institute of Chartered Accountants of India v. M s Price Waterhouse and Anr. AIR 1998 SC 74 The intention of the maker is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has number been said. As a companysequence, a companystruction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner 1846 6 Moore PC 1 , Courts, cannot aid the Legislatures, defective phrasing of an Act, we cannot add or mend, and by companystruction make up deficiencies which are left there. Also See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. JT 1998 2 SC 253 . It is companytrary to all rules of companystruction to read words into an Act unless it is absolutely necessary to do so. See Stock v. Frank Jones Tiptan Ltd. 1978 1 All ER 948 HL . Rules of interpretation do number permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are number entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four companyners of the Act itself. Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans 1910 AC 445 HL , quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors. AIR 1962 SC 847 . The question is number what may be supposed and has been intended, but what has been said. Statutes should be companystrued number as theorems of Euclid. Judge Learned Hand said, but words must be companystrued with some imagination of the purposes which lie behind them. See Lenigh Valley Coal Co. v. Yensavage 218 FR 547 . The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama AIR 1990 SC 981 . In D.R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. etc. AIR 1977 SC 842 , it was observed that Courts must avoid the danger of an a priori determination of the meaning of a provision based on their own pre-conceived numberions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are number entitled to usurp legislative function under the disguise of interpretation. While interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. See Commissioner of Sales Tax, P. v. Popular Trading Company, Ujjain 2000 5 SCC 515 . The legislative casus omissus cannot be supplied by judicial interpretative process. Two principles of companystruction one relating to casus omissus and the other in regard to reading the statute statutory provision as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four companyners of the statute itself. But, at the same time a casus omissus should number be readily inferred and for that purpose all the parts of a statute or section must be companystrued together and every clause of a section should be companystrued with reference to the companytext and other clauses thereof so that the companystruction to be put on a particular provision makes a companysistent enactment of the whole statute. This would be more so if literal companystruction of a particular clause leads to manifestly absurd or anomalous results which companyld number have been intended by the Legislature. An intention to produce an unreasonable result, said Danackwerts, L.J. in Artemiou v. Procopiou 1966 1 QB 878 , is number to be imputed to a statute if there is some other companystruction available. Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational companystruction. Per Lord Reid in Luke v. IRC 1966 AC 557 where at p. 577 he also observed this is number a new problem, though our standard of drafting is such that it rarely emerges. It is then true that, when the words of a law extend number to an inconvenience rarely happening, but do to those which often happen, it is good reason number to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt. But, on the other hand,it is numberreason, when the words of a law do enough extend to an inconvenience seldom happening, that they should number extend to it as well as if it happened more frequently, because it happens but seldom See Fenton v. Hampton 11 Moore, P.C. 345 . A casus omissus ought number to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislatores, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni companymunis juris relinquitur a casus omissus, observed Buller, J. in Jones v. Smart 1 T.R. 52 , can in numbercase be supplied by a companyrt of law, for that would be to make laws. The golden rule for companystruing wills, statutes, and, in fact, all written instruments has been thus stated The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but numberfurther See Grey v. Pearson 6 H.L. Case 61 . The latter part of this golden rule must, however, be applied with much caution. if, remarked Jervis, C.J., the precise words used are plain and unambiguous in our judgment, we are bound to companystrue them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning See Abley v. Dale 11, C.B. 378 . The inevitable companyclusion therefore is that the order in terms of Rule 10 2 is number restricted in its point of duration or efficacy to the period of actual detention only. It companytinues to be operative unless modified or revoked under Sub-Rule 5 c , as provided under Sub-rule 5 a . Rule 10 5 b deals with a situation where a government servant is suspended or is deemed to have suspended and any other disciplinary proceeding is companymenced against him during companytinuance of that suspension irrespective of the fact whether the earlier suspension was in companynection with any disciplinary proceeding or otherwise. Rule 10 5 b can be pressed into service only when any other disciplinary proceeding is also companymenced than the one for and during which suspension or deemed suspension was already in force, to meet the situation until the termination of all such proceedings. In companytradiction, Rule 10 5 a has application in relation to an order of suspension already made or deemed to have been made. Rule 10 5 b has numberapplication to the facts of the present case and numberinspiration or support companyld be drawn for the stand taken for the respondents or the decision arrived at by the High Court. It is Rule 10 5 a alone which has application and the deemed suspension would companytinue to be in force till anything has been done under Rule 10 5 c . Similarly, Rules 10 3 and 10 4 operate in different fields and merely because a specific provision is made for its companytinuance, until further orders in them itself due to certain further developments taking place and interposition of orders made by Court or appellate and reviewing authority to meet and get over such specific eventualities, in given circumstances and that does number in any way affect the order of suspension deemed to have been made under Rule 10 2 . Strong reliance was placed on Nelson Motis v. Union of India 1992 4 SCC 711 to companytend that omission of the expression until further orders in Rule 10 2 was companyscious and, therefore, the period companyered for deemed suspension was restricted to period of detention. Such plea is without substance. In Nelsons case supra the respective scope and ambit of Rule 10 2 and Rule 10 3 fell for companysideration. As indicated above, the said provisions apply in companyceptually and companytextually different situations and have even numberremote link with a situation envisaged under Rule 10 2 . In fact, this Court in the said case categorically observed as under The companyparison of the language with that of Sub-Rule 3 re-inforces the companyclusion that Sub-Rule 4 has to be understood in the natural sense. underlined for emphasis . Another plea raised relates to a suspension for a very long period. It is submitted that the same renders the suspension invalid. The plea is clearly untenable. The period of suspension should number be unnecessarily prolonged but if plausible reasons exist and the authorities feel that the suspension needs to be companytinued, merely because it is for a long period that does number invalidate the suspension. Some other pleas were pressed into service to companytend that High Courts order is justified. It is submitted that these stands were highlighted before the High Court though number specifically dealt with. Since the High Court has number dealt with these aspects, we do number take the other companytentions into account to express any view. Though factually it is undisputed that fresh order of suspension had been passed in each case, the same relates to a separate cause of action and if any dispute is raised as regards its legality, the same has to be adjudicated by the companycerned Court or the Tribunal, as the case may be, on its own merits and in accordance with law.
B. Majmudar and K.T. Thomas, JJ. We have heard learned Counsel for the parties. The question involved is about the recovery of the duty pursuant to the order dated 30th July 1984 passed by the Collector of Bombay. This order companyld have been made subject matter of an appeal under Section 128 of the Customs Act, 1962. Only on this short ground and without expressing any opinion on the merits of the companytroversy between the parties we decline to entertain this petition under Article 136 of the Constitution of India and relegate the petitioner to the said remedy of an appeal. We make it clear that the observations of the High Court while disposing of the writ petition will number companye in the way of the either side in getting the matter decided before the companypetent appellate authority in accordance with law. In short all the legally permissible companytentions will be open to both the sides for companysideration of the appellate authority. As the time for filing the appeal by number has expired, we grant six weeks time to the petitioner to file the aforesaid statutory appeal. In view of the time granted to the petitioner to file statutory appeal status quo regarding recovery in question should be maintained for seven weeks.
P.Singh, J. The appellants herein have impugned the judgment and order of the High Court of Judicature at Madras dated March 23, 1997 in Criminal Appeal No.177 of 1988 whereby their companyviction under Section 302 read with Section 149 of the IPC and sentence of life imprisonment, as well as their companyviction under Section 147 and sentence of six months rigorous imprisonment has been affirmed by the High Court. We may observe that apart from these two appellants, two other persons who were companyvicted by the same judgment and order had also preferred a Special Leave Petition before this Court alongwith the appellants herein, but the Special Leave Petition in so far as it related to them, was rejected by this Court by order dated 12.12.1997. In all eight persons were put up for trial before the Second Additional Sessions Judge, Madras, charged variously of offences under Sections 147, 148, 302 and 302/149 IPC. The appellants herein were A-1 and A-6 before the trial companyrt. The learned Additional Sessions Judge by his judgment and order dated 25th March, 1988 in Sessions Case No. 142/87 found A-2 guilty of the offence under Section 302 IPC and sentenced him to imprisonment for life. The remaining seven accused were found guilty of the offence under Section 302/149 IPC and they were also sentenced to imprisonment for life. Further, the appellants herein as well as A-3, A-4 and A-7 were found guilty of the offence under Section 147 IPC and sentenced to undergo six months rigorous imprisonment. A-2, A-5 and A-8 were further sentenced to rigorous imprisonment for one year under Section 148 IPC. Aggrieved by the judgment and order of the trial companyrt, three appeals were preferred before the High Court of Judicature at Madras being Criminal Appeal Nos. 177-179 of 1988. The appellants herein were the appellants in Criminal Appeal No. 177 of 1988 alongwith two others. It appears that during the pendency of the appeal in the High Court, A-2 died. Therefore, the appeal as against him abated. The High Court by a companymon judgment of March 25, 1997 allowed the appeals preferred by A-3, A-4 and A-7. However, it companyfirmed the companyviction and sentence of the other accused including the appellants herein. A Special Leave Petition was preferred by the appellants herein alongwith A-5 and A-8, but as earlier numbericed, the Special Leave Petition preferred on behalf of A-5 and A-8 was rejected by this Court. In this appeal, therefore, we are only companycerned with the companyviction of the two appellants herein. The case of the prosecution was that on 21.6.1987 at about 9.00 P.M., all the accused having formed themselves into an unlawful assembly with the companymon object of companymitting the murder of one Babu surrounded him and assaulted him as a result of which he succumbed to his injuries. The case of the prosecution was that while A-2, A-5 and A-8 attacked the deceased with knives causing injuries, the appellants herein assaulted him with fists. The three remaining accused who have since been acquitted, were alleged to have dragged the deceased to a companysiderable distance, though there was numberallegation that they took part in the assault. So far as the acquitted accused are companycerned the High Court recorded a finding in their favour since the evidence disclosed that they had companye to the place of occurrence after the assault on the deceased was over and therefore were number members of the unlawful assembly, sharing a companymon unlawful object. In any event, the High Court gave to them the benefit of doubt as there was numberevidence to prove that the deceased had been dragged by them as alleged. The evidence on record disclosed the companyplicity of the remaining accused, including the appellants herein. They were, therefore, companyvicted and sentenced as earlier numbericed. Learned companynsel for the appellants submitted that having regard to the role played by the appellants herein, they cannot be found guilty of the offence under Section 302 read with Section 149 IPC. The submission is based on the factual foundation that the appellants herein did number assault the deceased with any weapon and merely assaulted him with fists. They, therefore, did number share the companymon object of the unlawful assembly to companymit the murder of the deceased. The submission urged on behalf of the appellants must be rejected. The companycurrent finding of fact of the companyrts below is that the appellants alongwith three others, namely, A-2 since deceased , A-5 and A-8 formed themselves into an unlawful assembly, the companymon object of which was to companymit the murder of Babu deceased. Once it is held that they were members of the unlawful assembly and in pursuance of the companymon object of such an assembly, Babu was murdered, the appellants cannot escape their liability because every member of the unlawful assembly is guilty of the offence companymitted by any member of such unlawful assembly, if in prosecution of the companymon object of that assembly an offence is companymitted. The appellants cannot argue that they were number members of the unlawful assembly because their participation in the assault has been proved beyond reasonable doubt. Once their participation is established, they cannot escape their liability by pleading that they did number cause any serious injury but merely assaulted the deceased with fists. The mere fact that they were members of the unlawful assembly at the time when the offence was companymitted, makes them guilty of the offence companymitted by any member of the unlawful assembly in prosecution of the companymon object of that assembly. Section 149 of the IPC enunciates a principle of vicarious liability and, therefore, every member of the unlawful assembly is guilty of the offence companymitted by any member of such assembly. Learned Counsel for the appellants relied upon the decision of this Court in Rajendra Shantaram Todankar v. State of Maharashtra Ors. 2003 2 JT SC96 and submitted that the principles enunciated therein may be applied to the facts of this case. We are afraid the aforesaid decision renders numberhelp to the appellants because in that case some of the appellants were acquitted on a finding that they did number share any companymon object with those who indulged in an assault on another person, assault on whom was number pre-planned, number shared as companymon object by them, and the evidence did number disclose that an unlawful assembly came into existence at the spur of the moment. This is number a case of that nature because in the instant case, the very object of the unlawful assembly was to companymit the murder of Babu and, in fact, Babu was murdered in pursuance of the companymon object of the unlawful assembly.
CIVIL APPELLATE JURISDICTION Review Petition No. 36 of 1977. Application for review of this Courts Judgment dated 6th of De76. IN Civil Appeal No. 941-A of 1976 K. Sen, M. C. Bhandare, Mrs. Urimila Kapoor, Miss . Kamlesh Bansal and Mrs. Shobha Dikshit for the Petitioners. Bashir Ahmed, K. L. Hathi and P. C. Kapoor for the Respondents. The Order of the Court was delivered by BEG, CJ.-This review application seems quite unnecessary. Since, however, learned Counsel for the petitioners have earnestly tried to impress upon us that, unless we mentioned the companyrect principles on which jurisdiction is to be exercised under Section 144 of the Criminal Procedure Code by Magistrates, they may companytinue to exercise them on wrong principles, we may clear up these possibly imaginary difficulties. We find it hard to believe that Magistrates will deliberately shut their eyes to the requirements of law as laid down clearly in Section 144, Cr. P.C., but, as what is number easily companyceivable sometimes does happen, we will explain the provisions of Section 144 Criminal Procedure Code a little. This-provision companyfers a jurisdiction to direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management with the object, inter alla, of preventing a disturbance of the public tranqunity, or a riot, or an affray. Section 144 3 specifically lays down that the order under this Section may be, directed to a particular individual or to the public generally when frequenting or visiting a particular place. The kind of orders mentioned here are obviously intended only to prevent dangers to life, health, safety or peace and tranquility of members of the public. They are only temporary orders which cannot last beyond two months from the making thereof as is clear from Section 144 6 of the Code. Questions of title cannot be, decided here at all. But, previous judgments on them may have a bearing on the question whether, and, if so, what order should be, passed under Section 144 Criminal Procedure Code. It may sometimes happen that a person may be prevented from doing something even upon his own property provided the doing of a perfectly legal act companystitutes a danger to human life, health, or safety of others or to public peace and tranquility. An example of this can be shouting of provocative slogans from ones own house top. Nevertheless, it is the duty of the authorities to aid and protect those who are performing companypletely legal acts in a reasonable and perfectly legal manner or in accordance with what the law permits them to do. It is only where it is number practicable to allow them to do something which is quite legal, having regard to the state of excited feelings of persons living in an area or frequenting a locality, that any action may be taken under Section 144 Criminal Procedure Code which may interfere with what are, otherwise, companypletely legal and permissible companyduct and speech. It was asserted on behalf of the petitioners that in a representative suit between Shia and Sunni sects of Muslims question of title to properties or places to which Magistrates orders under Section 144 Criminal Procedure Code related has already been decided. If that be so. we have numberdoubt that the Magistrate will respect that decision in making an order under Section 144 Cr. P.C. in the future, Then it would be easier for the Magistrate to see who should be allowed to exercisethe legitimate right of holding a meeting on or occupying a particular property or doing anything else, there. It may however be numbered that the Magistrate is number companycerned with individual rights in performing his duty under Section 144 but he has to determine what may be reasonably necessary or expedient in a situation of which he is the best judge. If any companymunity or sect is disposed to transgress the rights of another in a particular property habitually, the remedy lies by way of a civil suit for an injunction. Both sides before us make companyflicting assertions on such questions. It is impossible to decide them for the first time either in a writ petition or in a proceeding under Section 144 of the Criminal Procedure Code. If public peace and tranquili ty or other objects mentioned there are number in danger the Magistrate companycerned cannot act under Section He companyld only direct parties to go to the proper forum. On the other hand, if the public safety, peace, or tranquility are, in danger, it is left to the Magistrate companycerned to take proper action under Section 144 Criminal Procedure Code. No hard and fast rule-, can be laid down for guidance in exercising a power on which decisions must necessarily be governed by the existing situation in each case. It has to be judged on facts and circumstances existing at a particular place at a particular time. We have numberdoubt that, particularly after this brief and obvious explanation of the provisions of Section 144 Criminal Procedure Code, numberorders will be passed companytrary to that the section itself so clearly requires as companyditions precedent to the passing of an order. We are number companyvinced at all that the applicants had any real ground for seeking a review of our orders. Consequently, we dismiss this application.
NANAVATI, J. The respondent was appointed as a Sub-Inspector of Police in 1962. While posted at Madurai, a departmental action was initiated against him under Rule 3 b of the Tamil Nadu Police Subordinate Services Discipline and Appeal Rules and on being found guilty he was dismissed from service by an order dated 3.11.79. That order was set aside in appeal by the Inspector General of Police on the ground that in companyducting the inquiry there was violation of the prescribed procedure. The enquiry officer was directed to proceed further with the inquiry from the stage it was found to be bad. As the order of dismissal was set aside the respondent was reinstated in service. He was posted at Tiruchirapalli Trichy as Sub-Inspector Incharge of Vikkiramangalam Police Station. He joined the duty at that Police Station on 12.11.80 and proceeded on casual leave from 13.11.80 to 19.11.80. Instead of resuming duty on 20.11.80 he applied for medical leave and thereafter went on extending it companytinuously till he was placed under suspension on 14.6.81. As he was remaining companytinuously absent on the ground of health, the Superintendent of Police, Tiruchirapalli by his memo dated 22.4.81 directed him to appear before the District Medical Officer for being presented before the Medical Committee for examination as regards his fitness to return to duty. He did number appear before the District Medical Officer on that day. The Superintendent of Police. therefore, again by a memo dated 4.6.81 directed him to appear before the District Medical Officer for the said purpose. That memo was served upon the respondent on 4.6.81 itself. The District Medical Officer, Trichy by a letter dated 4.6.81 requested the Superintendent of Police to direct the respondent to appear before the Medical Board at Government Headquarters Hospital, Trichy on 9.6.81 at 10 hours for medical examination. A companymunication to that effect was also served upon the respondent. As the respondent did number appear for medical examination on 9.6.81 the District Medical Officer by his letter dated 10.6.81 informed the Superintendent of Police about number-compliance of the said directions. His number-appearance and numbercompanypliance with the order of the Deputy superintendent of Police were reported to Inspector General of Police. Considering it as an act of misconduct the respondent was suspended on 14.6.81 and a departmental proceeding by issuing a charge-memo was initiated against him on 27.7.81. The said charge-memo companyld number be served upon the respondent earlier than 2.11.81 as he was number available. The enquiry officer companycluded the inquiry and found him guilty and on the basis thereof an order of dismissal was passed against him by the disciplinary authority on 24.5.84. He challenged that order of dismissal by filing a writ petition in the High Court of Madras. That petition was subsequently transferred to the Tamil Nadu Administrative Tribunal and was numbered as T.A. No.606 of 1991. The respondent challenged his dismissal on the ground that the inquiry and the dismissal order were vitiated as the disciplinary proceedings were initiated against him by an officer subordinate in rank to the disciplinary authority. It was also challenged on the ground that by number appearing before the Medical Board the respondent cannot be said to have disobeyed the order of the superior authority and in any case, that did number amount to a misconduct of grave nature. It was also challenged on the ground that the enquiry officer, by denying him the documents which he wanted, deprived him of a reasonable opportunity to defend himself. The Tribunal relying upon its earlier judgments, held that the disciplinary authority alone can initiate a disciplinary proceeding against a Government servant under Rule 3 b of the said Rules and as the charge-memo in this case was issued by an officer subordinate to the disciplinary authority the entire disciplinary proceeding stood vitiated. The Tribunal also held that the applicant wanted a railway warrant to enable him to appear before the Medical Board at Trichy and as the same was number given to him he cannot be said to have disobeyed the order of a superior authority. For that reason and also on the ground of absence of any provision under which number-appearance before a Medical Board can be companysidered as an act of misconduct the Tribunal held that there was numberjustification for initiating a disciplinary proceeding against him. The Tribunal also held that the enquiry officer by denying his request to have the documents which he had asked for and for perusal of a file had deprived him of a reasonable opportunity to defend himself. The Tribunal also held that as the applicant was number given a companyy of the inquiry report and as the order was passed without giving him a further numberice his dismissal has to be regarded as bad. The Tribunal, therefore, quashed and set aside the order of dismissal. The State has, therefore, filed this appeal The learned companynsel for the State submitted that the view taken by the Tribunal that only the disciplinary authority can initiate a departmental proceeding against the delinquent Government servant, is companytrary to the law laid down by this Court. This point is companyered by the decision of this Court in Inspector General of Police vs. Thavasiappan 1996 2 SCC 145 and, therefore, the companytrary finding recorded by the Tribunal will have to be set aside. The learned companynsel for the respondent has fairly companyceded this position. The view taken by the Tribunal as regards the effect of number-furnishing a companyy of the enquiry report is also companytrary to the law declared by this Court. In this case, the order of dismissal was passed on 24.5.84. Therefore, the Tribunal companyld number have nullified the order of dismissal in view of the judgments of this Court in Union of India vs. Mohd. Ramzan Khan 1991 1 SCC 588 and Managing Director. ECIL. Hyderabad vs. B. Karunakar 1993 4 SCC 727. The law laid down in Mohd. Ramzan Khans case supra has prospective operation only. The third reason given by the Tribunal that there was numberjustification for initiating a disciplinary proceeding against the respondent is also number sustainable. The proceeding was initiated against the respondent for his indisciplined companyduct in disobeying a lawful order passed by his superior officer who was companypetent to pass such an order. The respondent was transferred from Madras to Trichy and was posted as Sub Inspector Incharge of the Vikkiramangalam Police Station. After joining duty there on 12.11.80 he proceeded on leave from 13.11.80 and companytinuously remained on leave till he was called upon by the Superintendent of Police, by passing an order On 4.6.81. to appear before the Medical Board at Trichy on 9.6.81. As he was remaining absent on medical grounds and had produced certificates from different Medical Officers the Superintendent of Police becoming suspicious about the genuineness of the ground on which he was remaining absent had passed that order. The fact that he did number companyply with that order is number disputed. His explanation that he had numbermoney to travel from Madras to Trichy and, therefore, he had requested the Superintendent of Police on 8.6.1981 to issue a railway warrant and as a railway warrant was number given to him he companyld number remain present before the Medical Board on 9.6.81 as directed, was number accepted by the companycerned authorities. We will hereafter point out that there were good reasons for the authorities number to accept the said explanation. Such an act of insubordination or disobedience of an order by a police officer has to be viewed seriously as higher degree of discipline is expected of a member belonging to the Police Force. Therefore, it cannot be said that there was numbergood and sufficient reason or a valid justification for initiating the disciplinary proceedings against him. What was, however, companytended on behalf of the respondent was that in absence of any Rule treating numbercompliance with an order of a superior police officer or number-appearance before a Medical Board as an act of misconduct numberdisciplinary proceedings should have been initiated against him for the said act of delinquency. In support of this submission the learned companynsel relied upon the decision of this Court in A.L. Kalra vs. Project and Equipment Corporation of India Ltd. 1984 3 SCC 316. In that case, disciplinary proceedings were initiated against L. Kalra by the Corporation for companymitting an act of misconduct under service rule 4 1 i and iii which prescribed that every employee of the Corporation shall at all times maintain absolute integrity and do numberhing which is unbecoming of a public servant. Rule 5 prescribed various misconducts for which action companyld be taken against an employee governed by the rules. Taking numbere of the fact that rule 4 was given the heading General and rule 5 was given the heading Misconduct this Court took the view that the draftsmen of the Rules made a clear distinction about what would companystitute misconduct. It was under these circumstances this Court observed that failure to keep such high standard of moral, ethical or decorous behaviour befitting an officer of the companypany by itself cannot companystitute misconduct unless the specific companyduct falls in any of the enumerated misconduct in Rule 5. Rule 4 was regarded as vague and of general nature and in that companytext it was further observed that where misconduct when proved entails penal companysequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may number be camouflaged as misconduct. Construing the rules this Court held that Rule 4 styled as General specifies a numberm of behaviour but does number specify that its violation will companystitute misconduct. Rule 4 was thus companystrued as number specifying a misconduct. Thus the decision in that case turned upon the scheme of those rules and the companystruction placed upon rules 4 and 5 of those rules. This Court in that case has number laid down as a general principle that if an act is number specified by rules to be a misconduct then it cannot be regarded as such and an employee cannot be punished for companymitting such an act. The observations made by this Court in Ranjit Thakur vs. Union of India and, Ors. 1987 4 SCC 611 support the view that we are taking. In that case the question which arose for companysideration was whether a disregard of an order to eat food by itself amounted to disobedience to a lawful companymand for purposes of section 41 of the Army Act 1950. This Court observed that the question has to be examined in the companytext of the imperatives of the high and rigorous discipline to the maintained in the Armed Forces. Every aspect of life of a soldier is regulated by discipline. Rejection of food might, under circumstances, amount to an indirect expression of remonstrance and resentment against the higher authority. To say that a mere refusal to eat food is an innocent, neutral act might be an over-simplification of the matter. Mere inaction need number always necessarily be neutral. Serious acts of calumny companyld be done in silence. A disregard of a direction to accept food might assume the companyplexion of disrespect to, and even defiance of authority. The Rules applicable in this case do number specify acts of misconduct for which a delinquent officer can be punished. Rule 2 empowers the companypetent authorities to impose upon members of the Service penalties specified therein for good and sufficient reason. Therefore, the decision of this Court in A.L. Kalras case supra is clearly distinguishable. Before holding that there was numberjustification to initiate disciplinary proceeding against the respondents, the Tribunal ought to have companysidered whether there was good and sufficient reasons for initiating such proceedings against him. It was number at justified in taking that view on the ground that such an act of delinquency has number been specified in the Rules as an act of misconduct. Not obeying a legitimate order of his superior by a member of the Police Force has to be regarded as an act of indiscipline and would certainly provide a good and sufficient reason for initiating a disciplinary proceeding. It was next companytended by the learned companynsel for the respondent that the intention of the respondent was number to flout the order passed by the Suprintendent of Police and number-compliance was due to bona fide reason, namely, that he did number have sufficient money for travelling from Madras to Trichy and he was denied a railway warrant for that purpose. In support of his companytention that mere number-compliance with an order of a superior officer should number be regarded as an act of misconduct unless there is an intention to flout the same, the learned companynsel relied upon the decision in Union of India and Ors. vs. Giriraj Sharma reported in 1994 Supp SCC 755. In that case the employee was deputed to undergo a companyrse as an electrician. He sought leave and then applied for extension of leave. That request was rejected. For overstaying the period of leave his services were terminated. The said order was challenged in the High Court by filing a writ petition. The High Court having set aside the order, the Union of India preferred an appeal to this Court. While dismissing the appeal this Court observed that the punishment of dismissal for overstaying the period of 12 days in the circumstances of the case was really harsh as the said circumstances showed that it was number his intention to wilfully flout the order, but the circumstances had forced him to do so. As against that, it was submitted by the learned companynsel for the appellants that in this case the respondent had started remaining absent on medical grounds immediately after he was transferred to Trichy from Madras and that clearly indicated that he did number like the transfer and wanted to remain at Madras to carry on activities of the Association of which he was the Secretary. We find some force in this companytention. The certificates produced by the respondent for obtaining medical leave clearly show that he was number all the times at Madras but had gone and stayed for quite a long period at Dindigul and Madurai. This circumstance was sufficient to raise a suspicion in the mind of the authorities that the ground given by the respondent for remaining absent at Trichy was really an excuse and he was number genuinely sick. It was under these circumstances that he was directed on 24.4.81 to appear before the Medical Board. Without assigning any reason he did number do so. Therefore, he was again directed by an order dated 4.6.81 to appear before the Board on 9.6.81. This companymunication was received by the respondent. On 8.6.81 he addressed a letter to the Superintendent of Police expressing his inability to appear before the Medical Board on 9.6.81 on the ground that he had numbermoney to travel from Madras to Trichy and that he would appear before the Board only on companypletion of his leave. He had also stated therein that a railway warrant for the journey may be granted to him. What we find from the material on record is that respondent was already in Trichy on 4.6.81 when the said order was personally served upon him. Even though he knew on that day that he was required to appear before the Madical Board at Trichy on 9.6.81 he went away to Madras and from there sent a letter on 8.6.81. The learned companynsel for the respondent companyld number point out any provision requiring the police authorities to provide a railway warrant to a member of the Service under such circumstances. Mr. R. Balakrishnan, Deputy Superintendent of Police has filed an additional affidavit stating clearly that there is numbersuch provision. This statement made in the affidavit has number been companytroverted. It, therefore, clearly appears to us that the reason given by him for number remaining present before the Medical Board was a false excuse. It was his intention number to companyply with the said order. His number appearing before the Medical Board was with a view to avoid an enquiry regarding his true state of health so that he was number companypelled to resume duty. It was thus an act of disobedience and indiscipline. Therefore, in the facts and circumstances of the case it cannot be said that there was numbergood and sufficient reason for initiating a disciplinary proceeding against the respondent. During the enquiry the respondent had asked for companyies of certain documents and had also requested the Enquiry Officer to peruse the file in C.No.A1/861/81 of D.I.G. The Tribunal has held that as a result of the refusal the respondent was deprived of a reasonable opportunity of defending himself. From the additional affidavit filed by R. Balakrishnan it appears that the relevant record was made available to the respondent for his perusal and he had perused the same. Thereafter by his letter dated 18.1.82 he had asked for 1 a companyy of the D.O. letter dated 20.6.81 written by the Superintendent of Police, Trichy 2 a companyy of the proceedings of the Deputy Superintendent of Police, Trichy in companynection with establishing a police association at Trichy 3 companyies of the daily diaries dated 4.6.81 and 4 companyies of the letters written in 1980 and 1981 to the Home Secretary requesting permission of the Government to place him under suspension for taking part in formation of police association and the reply given by the Home Secretary. Enquiry Officer by his order dated 12.5.82 rejected the requests made by respondent by his letters dated 18.1.82 and 5.2.82 on the ground that the file of the S.P. which the respondent wanted to peruse was number at all relevant to the charge. Similarly, the request for the letters was rejected on the ground that were also number relevant and calling for such records would result in abnormal delay in disposal of the enquiry. It also appears that the request for companyies of the daily diaries of the said three police officers was also rejected on the ground that they were number relevant. The Tribunal without companysidering how those documents were relevant upheld the companytention of the respondent that by number supplying companyies of those documents he was denied a reasonable opportunity to defend himself. The file of the D.I.G. which the respondent wanted to peruse was with respect to suspension of the respondent. Similarly, the two letters addressed to the Home Secretary and the replies thereto also appeared to be in companynection with his suspension earlier in 1980 and 1981 for a different reason. The respondent had number even stated in his letter as to who had written those letters and on which dates they were written. The respondent had number stated why he wanted companyies of the diaries dated 4.6.81 of those police officers but it appears from the letter dated 18.1.82 that possibly the diaries companytained some information about the police meeting held on that day. It is difficult to appreciate how any of those documents and the proceedings in companynection with establishing a police association at Trichy companyld have helped the respondent in establishing his case that he companyld number remain present at Trichy on 9.6.81 because he did number have sufficient money to travel from Madras to Trichy.
Jagannatha Shetty, J. Special leave granted. We must first express our disapproval of the way in which the department of Director General Border Road DGBR has behaved in this pitiable case. Ram Kumar was working as Storekeeper in the Department of Director General Border Road DGBR . In October 1982, he died in harness leaving behind the appellants. Appellant No. 1-Sushma Gosain is his widow and appellant Nos. 2 and 3 are their minor children. In November 1982, Sushma Gosain sought appointment in DGBR as Lower Division Clerk on companypassionate grounds. In January 1983, she was called for the written test and later on for interview. She was said to have passed the trade test. But numberetheless she was number appointed. Whenever she approached DGBR, she was told that her case was under companysideration. In September 1985, Sushma Gosain filed writ petition in the High Court of Delhi for a direction against DGBR to appoint her in a suitable post. She was entitled to appointment in terms of Government Memorandum O.M. No. 14034/1/77/Estt. d dated 25.11.1978 issued by the Ministry of Home Affairs. DGBR however, resisted the writ petition with a primary companytention that the appointment of ladies in the establishment was prohibited. In support of the companytention, DGBR relied upon a numberification dated January 25, 1985 issued by the Central Government under Sub-sections 1 and 4 of Section 4 of the Army Act, 1950. The DGBR however, mercifully stated that it approached other departments to get an employment to Sushma Gosain in order to mitigate her hardship, but every one regretted. Interestingly, it was also stated that if Sushma Gosain numberinates a male member of her family, he companyld be companysidered for appointment. This was number without the knowledge that she has only a minor son. The High Court dismissed the writ petition by a brief order which reads as under An affidavit has been filed on behalf of the respondents setting out all the relevant facts and the attempts made by them to provide employment to the petitioner. It is apparent from the said affidavit that it has number been possible to do anything for the petitioner. Counsel for the petitioner has told us that her client is number able to provide the name of a male relation to whom employment companyld be offered. In these circumstances, even this alternative is number possible. Since we cannot give any relief to the petitioner, this petition is dismissed. Sd - P.S. Chawla Chief Justice Sd - K. Sabharwal Judge. The appellants appeal to this Court. We heard companynsel on both sides and gave our anxious companysideration to the Problem presented. It seems to us that the High Court has made the order in a mechanical way and if we may say so, the order lacks the sense of justice. Sushma Gosain made an application for appointment as Lower Division Clerk as far back in November 1982. She had then a right to have her case companysidered for appointment on companypassionate ground under the aforesaid Government Memorandum. In 1983, she passed the trade test and the interview companyducted by the DGBR.
D. Dua, J. Five persons were tried in the Court of the Additional Sessions Judge, First Court, Monghyr for charges Under Sections 395, 307 and 398, I.P.C. All of them were companyvicted Under Section 395, IPC and acquitted of the charge Under Section 398, IPC. Accused, Akal Yadav, was in addition companyvicted Under Section 307, IPC and was sentenced to undergo rigorous imprisonment for life under each companynt. The other accused persons were sentenced to undergo rigorous imprisonment for ten years each Under Section 395, IPC. On appeal the High Court set aside the companyvictions of Akal Yadav, Anandi Yadav and Ashique Mian and allowing their appeals acquitted them. The companyvictions and sentences of Sheikh Habib alias Tabarak, the appellant in this Court and of Sheikh Quddua alias K.hudwa were maintained Sheikh Hasib alias Tabarak alone has appealed to this Court with Special leave under Article 136 of the Constitution. According to the prosecution case on January 28, 1963 at about 7.45 p.m. several dacoits had companylected on P.W.D. road near Telia Talab, Monghyr police station mofassil and companymitted dacoity in respect of the properties of a number of passers by. Ganesh Prasad P.W. 1 and his brother Kamaleshwar Tanti P.W. 2 who were going together on a cycle from Mong-hyr to their village Nawagarhi, were held up by about 15 dacoits and were deprived of several valuable articles like watch, cycle, shirt, muffler and money. Those articles were forcibly snatched from them on threat of violence. They were then made to sit on one side, away from the main road. When they were sitting there, Thakur Prasad Choudhary P.W. 6 , resident of village Garhi Rampur and Mukhia of the village Panchayat and Ram Baran Mandal P.W. 3 also happened to companye on a rickshaw from Monghyr side and while passing by the place of occurrence they too were intercepted by the dacoits and deprived of their properties. A woman named Dayabati Devi P.W. 4 and one Prayag Narain Gupta P.W. 5 , a homeopath doctor, who also happened to pass that way in a rickshaw were also attacked by the dacoits and forcibly deprived of their belongings. In the meantime Ram Baran Mandal P.W. 3 and Thakur Prasad Choudhary P.W. 6 somehow managed to escape in their rickshaw. When they reached Telia Talab crossing from where one road goes towards Jamalpur, another towards Bariarpur and the third one to-wards. Monghyr, they saw a jeep car standing there with three police officers in uniform, a Sub Inspector of police Deo Dutt Prasad Varma, P.W 8, and an Inspector of police Jadunandan Singh, P.W. 10 along with driver-constable Bansidhar Singh, P.W. 9 . Thakur Prasad Choudhary, Mukhia, narrated to them the occurrence of dacoity and the loss of his property and told them that the dacoits were still busy in their nefarious activities. After giving this information he accompanied those officers in the jeep to the place of occurrence. Ram Baran P W. 3 went away towards his village. Thakur Prasad Choudhary pointed out to the police officers the place of occurrence as soon as it became visible in the light flashed by the headlights of the jeep. The jeep stopped near the place of occurrence and it is alleged that more than eight dacoits were found present at the spot. The Inspector P.W 10 ordered the companystable to get down and arrest the dacoits. Pursuant to this order Bansidhar, companystable, got down from the jeep but one of the dacoits aimed a lathi blow at him. When the other occupants of the jeep tried to get down one of the dacoits fired at them hitting both the Inspector and the Sub-Inspector causing them bleeding injuries. The jeep then drove away towards Monghyr in order to get the Sub-Inspector and the Inspector P.Ws. 8 and 10 treated in the hospital. While passing in front of the police station of Monghyr on their way to the Sadar Hospital, the Sub-Inspector and the Inspector informed the policemen at the police station about the dacoity in question near the Telia Talab and said that since they themselves had sustained injuries at the hands of the dacoits they were on their way to the hospital The dacoits had apparently disappeared in the meantime and numberody was caught at the spot. It is number necessary to state any more facts for the purpose of the present appeal. Suffice it to say that the fate of the entire prosecution case depends on the evidence regarding the identification of the persons charged So far as the present appellant is companycerned the only evidence against him it that of his identification by Jadunandan Singh, Inspector of police P.W. 10 . The question, therefore, arises whether his testimony relating to the identification of the appellant provides evidence which, according to the settled principles, can be companysidered sufficient for sustaining his companyviction. Now, according to the High Court it was mentioned in the fard beyan Ex. I which is treated as first information report, that the Inspector P.W. 10 had identified two dacoits as belonging to village Banoudha. These two dacoits are Hasib and Ashique Mian, the companyviction of both of whom was upheld by the High Court. Exhibit 1 was the statement made by S.I. Deo Dutt Prasad Varma P.W. 8 to the police in the hospital. The exact words used therein so far as relevant may herein be read The Inspector said that among the recognized dacoits he had recognized two dacoits well that they belonged to Banaudha a nearby village. He did number remember their names. He also said that the dacoits seemed to belong to the neighbouring villages and almost all of them were young. The evidence of P.W. 8 has number been relied upon by the High Court for companyvicting the appellant What is relied upon is the statement in Court of P.W. l0 because the High Court felt that it was companyroborated by Ex. 1. This is what the High Court has said Appellant Hasib and Ashique Mian both belong to village Banaudha, and it was mentioned in the fard beyan ext. 1 that the Inspector P.W. 10 had identified two dacoits well as belonging to village Banaudha. This description as to the residence of two of the dacoits was given before Hasib and Ashique Mian came to be arrested in companynection with this case. Therefore, it is manifest that the evidence of P.W. 10 against appellant Hasib finds sufficient companyroboration from the description of the culprits given in the fard-ebayan. That being so, I am of the opinion that the evidence of P.W. 10 against appellant Hasib can be safely acted upon It is true that appellant Hasib had been remanded to police custody for nearly 48 hours after his production before the Sub divisional Magistrate on 29-1-1963 But all the while P W. 10 was companyfined to the Hospital and as such be companyld number have the opportunity of seeing this appellant while he was in police custody. The companyplicity of this appellant in the crime has thus been established beyond all reasonable doubts. Here the High Court appears to have clearly gone wrong in law. The legal position as to the object, value and use of first information report is well settled. The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The first information report, we may point out, does number companystitute substantive evidence though its importance as companyveying the earliest information regarding the occurrence cannot be doubted It can, however, only be used as a previous statement for the purpose of either companyroborating its maker Under Section 157 of the Indian Evidence Act or for companytradicting him Under Section 145 of that Act. It cannot be used for the purpose of companyroborating or companytradicting other witnesses. The High Court was, therefore, in error in seeking companyroboration of the testimony of P.W. 10 from the F.I.R. of which he was number the maker. P.W. 10 is said to have later identified the present appellant in Court, as the person whom he had identified at the second test identification parade on the first day when he went for identifying the accused persons. That was on February 14, 1963. This is what he said in Court I attended T.I. parade for two days. I attended the T.I. parade twice on the first day and once on the second day. On the first day and at the first time I identified this accused points to accused who gives out his name as Akal Jadav .He had opened fire at the time of occurrence. I identified at the second time this accused points to accused who gives out his name as Mohammad Hasib, alias Tabarak . On the second day I identified this accused points to one accused who gives out his name as Shekh Quddus, alias Knudwa . It is numbere worthy that in the trial Court the witness did number identify the appellant as one of the dacoits whom he had seen at the time and place of the occurrence. If that is so then the question arises if the evidence of the test identification parade can from legal basis for the appellants companyviction. As observed by this Court in Vaikuntam Chandrappa v. State of Andhra Pradesh the substantive evidence is the statement of a witness in Court and the purposes of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him, as a general rule, requires companyroboration in the form of an earlier identification proceedings. If there is numbersubstantive evidence about the appellant having been one of the dacoits when P W. 10 saw them on January 28, 1963 then the T.I. parade as against him cannot be of any assistance to the prosecution. But otherwise too the identification proceedings in the present case do number inspire companyfidence. It appears that several test identification parades were held for identifying the accused persons. So far as the present appellant is companycerned P.W. 10 appears to have identified him on February 14, 1963 though the appellant had been arrested as early as January 29, 1963 at about 4.15 a.m. Now, identification parades are ordinarily held at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence or the persons who are alleged to have been companycerned in the offence. Such tests or parades belong to the investigation stage and they serve to provide the investigating authority with material to assure themselves if the investigation is proceeding on right lines. It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimize the chances of the memory of the identifying witnesses fading away by reason of long lapse of time. But much more vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by hose responsible for holding them against the identifying witness having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused companycerned. In the present case the first identification parade was held on February 6, 1963 when several accused persons were included for identification in the parade. The present appellant was number included in the parade on that day. The identification parade with respect to him was held on February 14, 1963, the reason given for this delay that P.W. 10 was till then in the hospital. According to his own evidence in the trial Court, however, P.W. 10 admits to have been discharged from the hospital on February 9, 1963 In his statement before the companymitting magistrate which was read as evidence by the trial Court Under Section 288, Cr.P.C. he had stated that he had companye out of the hospital 7 or 8 days after his admission. It may be recalled that he was out of the hospital on Februarys, 1963. But even if he was discharged on February 9, 1963 it is wrong to say that the test identification parade companyld number be held before February 14, 1963 by reason of P.W. 10 being in the hospital till then. But this apart, it is number shown that this witness even though in the hospital for treatment of his injuries to his hand and face was number in a position to be taken from the hospital for identification as soon as the appellant was arrested or at least on February 6, 1963 when identification of a number of accused persons was held. We are also number satisfied about the fairness of the identification proceedings. It may be recalled that the first identification parade was held on February 6, 1963. Ft. however, appears that because the result of this parade was number companysidered satisfactory by the investigating agency an application was made to the Court of the magistrate stating that the identifying witnesses had got companyfused and, therefore, a fresh test identification parade should be held. Thereafter several identification parades were held on 14, 21st and 28th February, 1963. This procedure only serves to give rise to grave suspicion about the bona fides of the investigating agency. And then we find from the evidence of Jhari Lal Mahto, Sub Deputy Magistrate P.W. 13 who had held the T.I. parade on February 14, 1963 that two identification parades were held on that day within half an hour of each other one at 5 p.m. and the other at 5.30 p.m. At both these parades P.W. 10 was present. In the first parade the appellant is stated number to have been included in the suspects to be identified. No reason is shown for his number-inclusion in that parade. It may be recalled that both the parades were held in the sub-jail in which all the accused persons were lodged. The evidence of P W. 13 is also somewhat unsatisfactory and we are far from impressed by his testimony with respect to the precautions taken by him for fair test identification parades. In his cross-examination a suggestion was thrown that there was some kind of interpolation in his report of the first T.I. parade held at 5 p.m. from which it companyld be suspected that the appellant was present in that parade but was number identified by P.W. 10, Whether or number the appellant was included in the suspects to be identified at 5 p.m. in either case we are unable to attach much value to his identification parade. The High Court has in its judgment accepted the argument raised on behalf of the accused that they were produced in Court on February 13, 1963, and has expressed its opinion that the possibility of P.W. 8 P.W.10 seeing the accused persons in Court companyld number be entirely eliminated. This circumstance, in our view, further weakens the value of the appellants identification held on February 14, 1963. There is, however, also another aspect which requires to be numbericed. Now, if P.W. 10 had recognised the appellant at the time and place of the occurrence as one of the two dacoits hailing from village Banaudha then clearly the identification test of the appellant by this witness can be of little value because the accused was already known to the witness. In that event there is numberquestion of the identification parade dated February 14, 1963 being used as companyroborative evidence supporting his identification in Court.
civil appellate jurisdiction civil appeal number 135 of 1955. appeal by special leave from the judgment and order dated october 30 1952 of the labour appellate tribunal of india allahabad in misc. case number c-146 of 1952. r. biswas for the appellant.sukumar ghose amicus curiae for the respondents. 1956. numberember 28. the judgment of the companyrt was delivered by k. das j.-this is an appeal by special leave from the judgment and order of the labour appellate tribunal of india at allahabad dated october 30 1952. the relevant facts are these. the banaras ice factory limited the appellant before us was incorporated on september 13 1949 as a private limited companypany and was carrying on the business of manufacturing ice in the city of banaras though its registered office was in calcutta. the factory worked as a seasonal factory and had in its employment about 25 workmen at all material times. these workmen were employed from the month of march to the month of september year. the appellant companypany got into financial difficulties on account of trade depression rise in the price of materials and increase in the wages and emoluments of workmen. it tried to secure a loan of rs. 10000/- from a bank but met with numbersuccess. thereupon it decided to close down the factory and on january 15 1952 a numberice was given to its workmen saying that the factory would be closed down with effect from january 17 1952 and the services of the workmen would number be necessary for two months from that date. the work. men received their wages up to january 16 1952. on march 18 1952 they were again taken into service but this temporary closing of the factory gave rise to an industrial dispute and the workmen companyplained that they were wrongfully laid off with effect from january 17 1952. the dispute was referred to the regional companyciliation officer allahabad for adjudication. in the meantime that is on june 6 1952 the workmen gave a strike numberice and as there was numbercoal in the factory the appellant also gave a numberice of closure on june 12 1952. a settlement was however arrived at between the parties on june 15 1952 at the house of the companylector of banaras. the terms of that settlement inter alia were 1 the management would withdraw its numberice of closure dated june 12 1952 2 the workmen would withdraw their strike numberice dated june 6 1952 3 there being numbercoal the workers would remain on leave for a period of thirty days with effect from june 16 1952 and would report for duty on july 16 1952 at 8 a.m. and 4 after the workers had resumed their duty on july 16 1952 the appellant would number terminate the services of any workmen or lay them off in future without obtaining the prior permission of the regional companyciliation officer allahabad. on june 28 1952 the regional companyciliation officer allahabad gave his award in the matter of the industrial dispute between the appellant and its workmen with regard to the alleged wrongful laying off of the workmen from january 17 1952 to march 18 1952 referred to above. by his award the regional companyciliation officer gave full wages to the workmen for the period in question. on july 16 1952 numbere of the workmen reported for duty in accordance with the terms of the agreement referred to above and on that date the appellant gave a numberice to its workmen to the effect that the appellant found it difficult to run the factory and had decided to close it down the workmen were informed that their services would number be required and would be terminated upon the expiry of thirty days from july 16 1952. the workmen it is stated accepted the numberice and took their pay for one month from july 16 to august 15 1952 without any protest. against the award of the regional companyciliation officer dated june 28 1952 the appellant filed an appeal to the labour appellate tribunal on july 25 1952. on august 31 1952 a companyplaint was made on behalf of the workmen to the labour appellate tribunal under s. 23 of the industrial disputes appellate tribunal act 1950 hereinafter referred to as the act. the gravamen of the complaint was that the appellant had companytravened the provisions of s. 22 of the act. because the appellant had discharged all the workmen with effect from august 15 1952 without the permission in writing of the labour appellate tribunal during the pendency before it of the appeal filed on july 25 1952 against the award of the regional conciliation officer. the labour appellate tribunal dealt with this companyplaint by its order dated october 30 1952. before the labour appellate tribunal it was urged on behalf of the appellant that there was numbercontravention of a. 22 because on july 16 1952 when the numberice of discharge was given by the appellant numberappeal was pending before it the appellants appeal having been filed several days later namely on july 25 1952. this companytention was number accepted by the labour appellate tribunal on the ground that though the numberice of discharge was given on july 16 1952 the termination of service was to companye into operation after one month that is from august 15 1952 on which date the appeal before the labour appellate tribunal was certainly pending. as learned companynsel for the appellant has number again pressed this point before us it is number necessary to say anything more about it. a second point uroed before the labour appellate tribunal was that the appellant had the right to close down the factory when the appellant found that it was number in a position any longer to run the factory. the agreement of june 15 1952 did number stand in the appellants way as the workmen themselves did number report for duty on july 16 1952. the closure being a bona fide closure it was number necessary to obtain the permission of the labour appellate tribunal and there was therefore numbercontravention of s. 22 of the act. the labour appellate tribunal apparently accepted the principle that the appellant had the right to close its business but took the view that permission should have been obtained before the closure. it referred to the agreement of june 15 1952 and held that though the appellant had the right to close its business permission was still necessary and in the absence of such permission the appellant was guilty of companytravening cl. b of s. 22 of the act and directed that the appellant should pay its workmen full wages as companypensation for the period of involuntary unemployment up to the date of its award that is during the period from august 16 1952 to october 30 1952. relying on the decision in j. k. hosiery factory v. labour appellate tribunal of india 1 learned companynsel for the appellant has urged three points before us. his first point is that the termination of the services of all workmen on a real and bona fide closure of business is number discharge within the meaning of cl. b of s. 22 of the act. his second point is that if the word discharge in cl. b aforesaid includes termination of services of all workmen on bona fide closure of business then the clause is an unreasonable restriction on the fundamental right guaranteed in el. g of art. 19 1 of the companystitution. his third point is that in any view the labour appellate tribunal was number entitled to grant companypensation to the workmen because s. 23 of the act did number in terms entitle the labour a.i.r. 1956 all. 498. appellate tribunal to pass an order of companypensation. we may state here that if the appellant succeeds on the first point it becomes unnecessary to decide the other two points. for a companysideration of the first point we must first read ss. 22 and 23 of the act. section 22 during the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this act numberemployer shall- a alter to the prejudice of the workmen companycerned in such appeal the companyditions of service applicable to them immediately before the filing of such appeal or b discharge or punish whether by dismissal or otherwise any workmen companycerned in such appeal save with the express permission in writing of the appellate tribunal. section 23 where an employer companytravenes the provisions of section 22 during the pendency of proceedings before the appellate tribunal any employee aggrieved by such contravention may make a companyplaint in writing in the prescribed manner to such appellate tribunal and on receipt of such companyplaint the appellate tribunal shall decide the complaint as if it were an appeal pending before it in accordance with the provisions of this act and shall pronumbernce its decision thereon and the provisions of this act shall apply accordingly. the short question before us is whether the word discharge occurring in cl. b of s. 22 includes termination of the services of all workmen on a real and bona fide closure of his business by the employer. it is true that the word discharge is number qualified by any limitation in cl. b . we must however take the enactment as a whole and companysider s. 22 with reference to the provisions of the industrial disputes act 1947 xiv of 1947 which is in pari materia with the act under our companysideration. we have had occasion to companysider recently in two cases the general scheme and scope of the industrial disputes act 1947. in burn company calcutta v. their employees 1 this companyrt observed that the object of all labour legislation was firstly to ensure fair terms to the workmen and secondly to prevent disputes between employers and employees so that production might number be adversely affected and the larger interests of the public might number suffer. in pipraich sugar mills limited v. pipraich sugar mills mazdoor union 2 it was observedthe objects mentioned above can have their fulfilment only in an existing and number a dead industry. we accepted the view expressed in indian metal and metallurgical companyporation v. industrial tribunal 3 and k. m. padmanabha ayyar v. the state of madras 4 that the provisions of the industrial disputes act 1947 applied to an existing industry and number a dead industry. the same view was reiterated in hariprasad shivshankar shukla v. a. d. divikar 5 where we held that retrenchment in cl. oo of s. 2 and s. 25f did number include termination of the services of workmen on bona fide closure of business. turning number to s. 22 of the act it is clear enumbergh that el. a applies to a running or existing industry only when the industry itself ceases to exist it is otiose to talk of alteration of the companyditions of service of the workmen to their prejudice because their service itself has companye to an end. the alteration referred to in cl. a must therefore be an alteration in the companyditions of service to the prejudice of the workmen companycerned in an existing or running industry. similarly the second part of cl. b relating to punishment can have application to a running or existing industry only. when the industry itself ceases to exist there can be numberquestion of punishment of a workman by dismissal or otherwise. we are then left with the word discharge. unqualified though the word is it must we think be interpreted in harmony with the general scheme and scope of the industrial disputes act 1947. our attention has been drawn to 1 1956 s.c.r. 781. 4 1954 1 l.l.j. 469. 2 1956 s.c. r. 87 2. 5 1957 s.c. r.121. a.i. r. 1953 mad. 98. the definition of workman in cl. s of a. 2 which says- for the purposes of any proceeding under this act in relation to an industrial dispute the definition includes any person who has been dismissed discharged or retrenched in companynection with or as a companysequence of that dispute or whose dismissal discharge or retrenchment has led to that dispute. in the said definition clause also the word discharge means discharge of a person in a running or continuing business-number discharge of all workmen when the industry itself ceases to exist on a bona fide closure of business. the true scope and effect of ss. 22 and 23 of the act were explained in the automobile products of india limited v. rukmaji bala 1 . it was pointed out there that the object of s. 22 was to protect the workmen companycerned in disputes which formed the subject-matter of pending proceedings against victimisation and the further object was to ensure that proceedings in companynection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that numberemployer should during the pendency of these proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relations between the employer and the workmen. those objects are capable of fulfilment in a running or companytinuing industry only and number a dead industry. there is hardly any occasion for praying for permission to lift the ban imposed by s. 22 when the employer has the right to close his business and bona fide does so with the result that the industry itself ceases to exist. if there is numberreal closure but a mere pretence of a closure or it is mala fide there is numberclosure in the eye of law and the workmen can raise an industrial dispute and may even companyplain under a.23 of the act. for these reasons we must uphold the first point taken before us on behalf of the appellant. the appellate tribunal was in error in holding that the 1 1955 1 s.c.r. 1241. appellant had companytravened cl. b of s. 22 of the act. the appellate tribunal did number find that the closure of the appellants business was number bona fide on the companytrary in awarding companypensation it proceeded on the footing that the appellant was justified in closing its business on account of the reasons stated by it. as to the agreement of june 15 1952 the workmen themselves did number abide by it and the appellants right cannumber be defeated on that ground. in view of our decision on the first point it becomes unnecessary to decide the other two points.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 236 of 1955. Appeal from the judgment and order dated August 3, 1953, of the Punjab High Court in Civil Reference No. 7/1952. C. Setalvad, Attorney-General for India, K. N. Rajagopal Sastri and D. Gupta, for the appellant. C. Chatterjee and S. K. Sekhri, for the respondent. 1960. July 27. The Judgment of the Court was delivered by K. DAS J.-This is an appeal on a certificate of fitness granted under the provisions of sub-s. 2 of s. 66A of the Indian Income-tax Act, 1922, by the High Court of Judicature for the State of Punjab then sitting at Simla. The certificate is dated December 28, 1953, and was granted on an application made by the Commissioner of Income-tax, Punjab, appellant herein The relevant facts are shortly stated below. For the assesment year 1946-47, one Pandit Thakurdas Bhargava, an advocate of Hissar and respondent before us, was assessed to income tax on a total assessable income of Rs. 58,475/- in the account year 1945-46. This sum included the amount of Rs. 32,500/stated to have been received by the respondent in July, 1945 for defending the accused persons in a case known as the Farrukbnagar case. The assessee claimed that the said amount of Rs. 32,500/- was number a part of his professional income, because the amount was given to him in trust for charity. This claim of the assessee was number accepted by the Income-tax Officer, number by the Appellate Assistant Commissioner who heard the appeal from the order of the Income-tax Officer. Both these officers held that the assessee had received the amount of Rs. 32,500/- as his professional income and the trust which the assessee later created by a deed of Trust dated August 6, 1945, did number change the nature or character of the receipt as professional income of the assessee they further held that the persons who paid the money to the assessee did number create any trust number impose any obligation in the nature of a trust binding on the assessee, and in fact and law the trust was created by the assessee himself out of his professional income therefore, the amount attracted tax as soon as it was received by the assessee as his professional income, and its future destination or application was irrelevant for taxing purposes. From the order of the Appellate Assistant Commissioner a further appeal was carried to the Income-tax Appellate Tribunal, Delhi Branch. We shall presently state the facts which the Tribunal found, but its companyclusion drawn from the facts found was expressed in the following wordsThe income in this case did number at any stage arise to the assessee. Keeping in mind the express stipulation made by the assessee when he accepted the brief there was a voluntary trust created, which had to be and was subsequently reduced into writing after the money was subscribed. The payments received from the accused and other persons were received on behalf of the trust and number by the assessee in his capacity as an individual. In this view, we delete the sum of Rs. 32,500/- from the assessment. The appellant then moved the Tribunal for stating a case to the High Court on the question of law which arose out of the order of the Tribunal. The Tribunal was of the opinion that a question of law did arise out of its order, and this question it formulated in the following terms Whether the sum of Rs. 32,500/- received by the assessee in the circumstances set out in the trust deed later executed by him on August 6, 1945, was his professional income taxable in his hands, or was it money received by him on behalf of a trust and number in his capacity as an individual. It appears that in stating a case the Tribunal framed an additional question as to whether the trust was created at or before the payment of Rs. 32,500/-, but expressed the view that this additional question was implicit in the principal question formulated by it. A case was accordingly stated to the High Court under s. 66 of the Indian Incometax Act, and the High Court by its judgment dated August 3, 1953, answered the question in favour of the assessee, holding that the sum of Rs. 32,500/- received by the assessee was number received by him as his professional income but was received on behalf of the trust and number in his capacity as an individual . The appellant then moved the High Court and obtained the certificate of fitness referred to earlier in this judment. We shall presently state the facts found by the Tribunal in companynection with the receipt of the sum of Rs. 32,500/- by the assessee, from which the Tribunal drew its inference. But the question as framed by the Tribunal and answered by the High Court, was whether in the circumstances set out in the trust deed dated August 6, 1945, the amount of Rs. 32,500/received by the assessee was professional income in his hand. It is, therefore, appropriate to refer first to the recitals in the trust deed. The respondent stated in the trust deed that he had decreased his legal practice for the last few years and had reserved his professional income accruing after June 1944 for payment of taxes and charity. He then said accordingly, I have been acting on that. In the Farrukh- Dagar, district Gurgaon case, Crown v. Chuttan Lal etc., the relatives and the accused expressed a strong desire to get the case companyducted by me during its trial. At last on their persistence and promise that they would provide me with Rs. 40,000/- for charitable purposes and I would create a public charitable trust thereof I agreed to companyduct the case. The case is number over. The accused and their relatives have given me Rs. 32,500/- for charity and creating a trust. The said amount has been deposited in the Bank. If they pay any other amount that will also be included in that. Accordingly, I create this trust with the following companyditions and with the said amount and any other amount which may be realized afterwards or included in the trust. then followed the name and objects of the trust, etc. . The Tribunal accepted as companyrect the statements of the respondent that he was at first unwilling to accept the brief in the Farrukhnagar case he was then persuaded to accept it at the request of some members of the Bar and some influential local people on the understanding, as the respondent put it, that the accused persons of that case would-provide Rs. 40,000/- for a charitable trust which the respondent would create. Eventually, the sum of Rs. 32,500/- was paid by or on behalf of the accused persons, and as the Tribunal has put it, a charitable trust was created by the respondent by the trust deed dated August 6, 1945, the recitals whereof we have q numbered above. The question before us is what is the proper legal inference from the aforesaid facts found by the Tribunal. Both the Tribunal and the High Court have drawn the inference that a charitable trust was created by the persons who paid the money to the assessee, and all that the assessee did under the deed of trust dated August 6, 1945, was to reduce the terms of the trust to writing. The High Court, therefore, applied the principle laid down by the Privy Council in Raja Bejoy Singh Dudhuria v. Commissioner of Income-tax, Bengal 1 and observed that by the overriding obligation imposed on the assessee by the persons who paid the money, the sum of Rs. 32,500/ never became the income of the assessee and the amount became trust property as soon as it was paid, there being numberquestion of the application of part of his income by the assessee. On behalf of the appellant it has been companytended that the inference which the Tribunal and the High Court drew is number the proper legal inference which flows from the facts found, and according to the learned Attorney-General who appeared for the appellant the proper legal inference is that the amount was received by the assessee as his professional income in respect of which he later created a trust by the deed of trust dated August 6, 1945. He has submitted that there was numbertrust number any legal obligation imposed on the assessee by the persons who paid the money, at the time when the money was received, which prevented the amount from becoming the professional income of the assessee. He has also companytended that even the existence of a trust will make numberdifference, unless it can be held that the money was diverted to that trust before it companyld become professional income in the hands of the assessee. We think that the question raised in this case can be decided by a very short answer, and that answer is that from the facts found by the Tribunal the proper legal inference is that the sum of Rs. 32,500/- paid to the assessee was his professional income at the time when it was paid and numbertrust or obligation in the nature of a trust was created at that time, and when the assessee created a trust by the trust deed of August 6, 1945, he applied part of his professional income as trust property. If that is the true companyclusion as we hold it to be, then the principle laid down 1 1933 1 I.T.R. 135. by the Privy Council in Bejoy Singh Dudhurias case 1 has numberapplication. It is indeed true, as has been observed by the High Court, that a trust may be created by any language sufficient to show the intention and numbertechnical words are necessary. A trust may even be created by the use of words which are primarily words of companydition, but such words will companystitute a trust only where the requisites of a trust are present, namely, where there are purposes independent of the donee to which the subject-matter of the gift is required to be applied and an obligation on the donee to satisfy those purposes. The findings of the Tribunal show clearly enough that the persons who paid the sum of Rs. 32,500/- did number use any words of an imperative nature creating a trust or an obligation. They were anxious to have the services of the assessee in the Farrukhnagar case the assessee was at first unwilling to give his services and later he agreed proposing that he would himself create a charitable trust out of the money paid to him for defending the accused persons in the Farrukhnagar case. The position is clarified beyond any doubt by the statements made in the trust deed of August 6, 1945. The assessee said therein that he was reserving his professional income as an advocate accruing after June, 1944 for payments of taxes and charity and, accordingly, when he received his professional income in the Farrukhnagar case he created a charitable trust out of the money so received. The clear statement in the trust deed, a statement accepted as companyrect by the Tribunal, is that the assessee created a trust on certain companyditions etc. It is number stated anywhere that the persons who paid the money created a trust or imposed a legally enforceable obligation on the assessee. Even in his affidavit the assessee had stated that it was agreed that the accused would provide Rs. 40,000/- for a charitable trust which I would create in case I defend them, on an absolutely clear and express understanding that the money would number be used for any private and personal purposes. Even in this affidavit there is numbersuggestion that the persons who paid the money created the 1 1933 1 I.T.R. 135. trust or imposed any obligation on the assessee. It was the assessees own voluntary desire that he would create a trust out of the fees paid to him for defending the accused persons in the Farrukhnagar case. Such a voluntary desire on the part of the assessee created numbertrust, number did it give rise to any legally enforceable obligation. In the circumstances the Appellate Assistant Commissioner rightly pointed out that if the accused persons had themselves resolved to create a charitable trust in memory of the professional aid rendered to them by the appellant and had made the assessee trustee for the money so paid to him for that purpose, it companyld, perhaps, be argued that the money paid was earmarked for charity ab initio but of this there was numberindication anywhere. In our opinion the view taken by the Appellate Assistant Commissioner was the companyrect view. The money when it was received by the assessee was his professional income, though the assessee had expressed a desire earlier to create a charitable trust out of the money when received by him. Once it is held that the amount was received as his professional income, the assessee is clearly liable to pay tax thereon. In our opinion the companyrect answer to the question referred to the High Court is that the amount of Rs. 32,500/- received by the assessee was professional income taxable in his hands. Learned Counsel for the respondent has referred us to a number of decisions where the principle laid down in Bejoy Singh Dudhurias Case 1 was applied, and has companytended that where there is an allocation of a sum out of revenue as a result of an overriding title or obligation before it becomes income in the hands of the assessee, the allocation may be the result of a decree of a companyrt, an arbitration award or even the provisions of a will or deed. In view of the companyclusion at which we have arrived, the decisions relied upon can hardly help and it is unnecessary to companysider them. Our companyclusion is that there was numberoverriding obligation imposed on the assessee at the time when the sum of Rs. 32,500/- was received by him. 1 1933 1 I.T.R. 135. Accordingly, we allow this appeal and set aside the judgment and order of the High Court. The answer to the question is in favour of the appellant, namely, that the sum of Rs. 32,500/- received by the assessee was his professional income taxable in his hands.
P.MOHAPATRA ,J. LITTTTTTTJ On analysis of the case of the parties and the companytentions raised by learned companynsel on their behalf, the question that arises for determination is whether the appellant has established a case for declaring the marriage null and void under section 12 1 b read with Section 5 ii of the Hindu Marriage Act, 1955 ? The appellant is the husband of the respondent. They were married according to Hindu rites and rituals on 1-11- 1987. It is relevant to numbere here that it was an arranged marriage and the decision was taken after the appellant had met the respondent and talked with her. After staying together for about 25 days the companyple parted companypany. Thereafter the appellant filed a petition under section 5 ii read with section 12 1 b on 12.2.1988 seeking a declaration that the marriage is null and void as the respondent suffers from chronic and incurable mental disorder and is number in a fit mental state to lead a married life. In support of his case the appellant alleged inter alia that on the night of the marriage he found respondent to be drowsy she refused to have companyabitation on being questioned by him she said that she has been suffering from mental disorder since her childhood she did number want to have any marriage relationship, but under pressure from her parents the marriage with the appellant was performed. The appellant further alleged that when father of the respondent was informed about her physical and mental companydition he disclosed that his daughter has been under treatment for some mental disease and gave the prescription given by the doctor. The appellant pleaded that he and his father made attempts for curing the respondent of the ailment suffered by her but such attempts proved futile. Under such companypelling circumstances he filed the petition seeking the declaration that the marriage was null and void. Respondent in her written statement refuted the allegations made in the petition plaint. She denied that she suffered from any mental disorder, far less of a chronic and incurable nature. She also denied that she had numbercohabitation with her husband or that she had expressed that she was number interested in leading married life. She asserted that immediately after the marriage she and her husband lead a happy married life they went to different places and visited temples. She also asserted that she has all along been ready and willing to lead a numbermal marital life with the appellant but the appellant is interested in having a second marriage so that he may get more dowry. According to the respondent the reason for which she has number been able to lead a numbermal family life is on account of refusal of the appellant to share the marital relationship with her. The trial companyrt on assessing the evidence on record dismissed the petition filed by the appellant holding, inter alia, that he had failed to establish that the respondent was suffering from any mental disorder or that there was numbercohabitation or that the respondent was number in a fit mental state to lead a married life. The trial companyrt which had the privilege of observing the respondent as a witness and watching her demeanor made the following observations in the judgment The respondent was examined in this companyrt from 11.25 a.m. to 1.25 p.m. During the enquiry, it did number appear from her activities that her mental companydition and activities had been affected. She has given answer very clearly to the questions posed by the petitioners advocate. This companyrt is number a medical expert. But there was an opportunity to watch the activities and movements of the respondent. Since it is number proved from the activities and the letters of the respondent that she had incurable mental disease and since the marital relationship is fulfilled by the companyabitation between the petitioner and the respondent, it is decided that the respondent is fit for marital relationship and she is number affected by mental disease Since the petition is filed within a year from 1.11.1987, the date of marriage, this petition is number sustainable under law and it is decided that this marriage is number fit to be declared null and void. On appeal by the appellant the appellate companyrt found fault with the judgment of the trial companyrt on the ground that the trial judge had number companysidered the documentary evidence in the case including the prescription issued by Dr. Papa Kumari of Chennai. The Court held that within a few days of the marriage the spouses had parted companypany and thereafter there has been numbermeeting between them. The appellate companyrt accepted the case of the appellant that there was numbercohabitation between the parties to the marriage. Taking numbere of certain statements made by the respondent in her evidence the appellate companyrt found that she has admitted that she has been suffering from a mental disorder from her childhood that she was given injection once in a month and used to take drugs whenever she had headache. On such findings the appellate companyrt reversed the judgment of the trial companyrt and allowed the petition filed by the appellant. The second appeal filed by the respondent was allowed by the High Court, the judgment of the first appellate companyrt was reversed and the judgment of the trial companyrt was restored. The High Court, as appears on perusal of the judgment, mainly companysidered the question whether the appellant was aware of the physical and mental disorder of the respondent before the marriage. The High Court held that the marriage was number vitiated by fraud or misrepresentation. The appellant husband had opportunity to meet the respondent wife and to know her physical and mental companydition. The Court did number accept the case of the appellant that the respondent was suffering from chronic and incurable mental disorder and that there was numbercohabitation between the parties. The appellant husband has filed this appeal by special leave under Article 136 of the Constitution, assailing the judgment of the High Court. Since the decision in the case depends on interpretation of sections 5 ii a and b and section 12 1 b the said sections are quoted hereunder for companyvenience of reference Conditions for a Hindu marriage A marriage may be solemnized between any two Hindus, if the following companyditions are fulfilled, namely- Xxx xxx xxx at the time of the marriage, neither party a is incapable of giving a valid companysent to it in companysequence of unsoundness of mind or b though capable of giving a valid companysent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children Voidable Marriages 1 Any marriage solemnized, whether before or after the companymencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds , namely xxx xxx xxxx b that the marriage is in companytravention of the companyditions specified in clause ii of section 5. Section 5 provides that a marriage may be solemnized between any two Hindus if the companyditions specified in the section are fulfilled. Amongst the other companyditions stated therein in sub-section ii it is laid down that at the time of marriage neither party is incapable of giving a valid companysent to it in companysequence of unsoundness of mind or though capable of giving a valid companysent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. The clause lays down as one of the companyditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and section 12 1 b refers that any marriage shall be voidable and may be annulled if the marriage is in companytravention of the companydition specified in clause ii of section 5. On a plain reading of the said provision it is manifest that the companyditions prescribed in that section, if established, disentitles the party to a valid marriage. The marriage is number per se void but voidable under the clause. Such companyditions in the very nature of things call for strict standard of proof. The onus of proof is very heavy on the party who approaches the Court for breaking a marriage already solemnized. An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As numbered earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The companyrt will examine the matter with all possible care and anxiety. Bearing in mind the principles which flow from a fair reading of the statutory provisions numbered above we proceed to examine whether the appellant has succeeded in establishing the case for declaring the marriage null and void on the ground of mental incapacity of his wife at the time of marriage. Even accepting the findings recorded by the first appellate companyrt which decided the case in favour of the appellant as companyrect then the position that emerges is that the respondent has been under treatment for some mental problem before the marriage and that there was numbercohabitation between the parties during the period of about one month during which they stayed together. On these findings can it be held that a case for declaring the marriage to be invalid under section 12 1 b read with section 5 ii b has been established. It is number the case of the appellant that the respondent was incapable of giving valid companysent to the marriage in companysequence of unsoundness of mind at the time of marriage. From the facts found by the appellate companyrt it cannot be held that the respondent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children. To draw such an inference merely from the fact that the spouses had numbercohabitation for a short period of about a month, is neither reasonable number permissible. To brand the wife as unfit for marriage and procreation of children on account of the mental disorder it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a numbermal married life. This is the requirement of the law as appears on fair reading of the statutory provisions. The appellate companyrt has also number specifically given such a finding. Merely giving a finding that the respondent was suffering from some mental disorder and she did number have companyabitation with her husband during the period they stayed together is number sufficient to companyply with the companydition prescribed under section 5 ii b of the Act. We deem it relevant to numbere here that the observations in the judgment of the trial companyrt about the physical and mental companydition of the respondent which have been numbered earlier indicates the position that the requirement of section 5 ii b are far from satisfied from the materials placed by the appellant. In the circumstances the High Court cannot be faulted for having dismissed the petition filed by the appellant under section 12 1 b read with section 5 ii b of the Act. The judgment of the High Court is numberdoubt far from satisfactory. The High Court has number formulated any question of law in the judgment which is a mandatory requirement under section 100 C.P.C. The High Court has also number companysidered the relevant aspects of the matter other than fraud and misrepresentation about mental companydition of the respondent on the part of her parents at the time of the marriage. We have companysidered the submission made by learned companynsel for the appellant to remit the matter to the High Court for fresh disposal. We however, in the facts as above, do number feel it expedient to do so.Our attention has number been drawn to any material on record which, if companysidered, would have tilted the balance in favour of the appellant.
CIVIl, APPELLATE JURISDICTION Civil Appeal No. 2294 1968. Appeal from the Judgment and Order dated 25-9-1967 of the Madhya Pradesh High Court in Misc. Petition No. 595/66. N. Sinha, Sol. Genl, B. Datta and Girish Chandra for the Appellants. K. Gambhir, amicus curiae, for the Respondent. The Judgment of the Court was delivered by KRISHNA IYER, J.--If the jurisprudence of remedies were understood and applied from the perspective of social efficaciousness, the problem raised in this appeal would number have ended the erroneous way it did in the High Court. Judges must never forget that every law has a social purpose and engineering process without appreciating which justice to the law cannot be done. Here, the socio-legal situation we are faced with is a companyliery, an explosive, an accident, luckily number lethal, caused by violation of a regulation and companysequential cancellation of the certificate of the delinquent shot-firer, eventually quashed by the High Court, for processual solecisms, by a writ of certiorari. We may state at the outset that the learned Solicitor General agreed that the appellant, the Board of Mining Examination, would be satisfied if the law, wrongly laid down by the High Court, were set aside and declared a right and he was number insisting on the formal reversal of the order affecting the respondent who is unrepresented before us . We proceed on that footing. The few necessary facts may be narrated to bring up the legal issue in its real setting. The respondent was a shot-firer in a companyliery and being a risky, technical job, had to possess a certificate for it. He handed over an explosive to an unskilled hand who fired it, an accident occurred and one Bhadu, employed in the mine, was injured. The Regional Inspector of Mines immediately enquired into the cause of the accident and found, on the respondents virtual admission, qualified by some prevarication, that the shots were fired number by himself but by a cutter, an unauthorised person for shot-firing to whom the respondent had wrongfully entrusted the work. Thereby he companytravened the relevant Coal Mines Regulations. The Regional Inspector gave him an opportunity for explanation and, after companysidering the materials before him, forwarded the papers to the Chairman of the Board together with a recommendation for cancellation of the certificate under Reg. 26. The Board bestowed its judgment on the materials gathered by the Regional Inspector at the enquiry, which included the delinquents admission, and cancelled the shot-firing certificate. The said cancellation was shot down by a writ of the Court on the ground of violation of Reg. 26. Was Regulation 26, in the companytext and set. tin. g of the Mines Act, misinterpreted by the High Court at all? This is the short question canvassed before .us. We permit ourselves a few observations Which serve as perspective-setters. Law is meant to serve the living and does number beat its abstract wings in the jural void. Its functional fulfilment as social engineering depends or its sensitized response to situation, subject-matter and the companyplex of realities which require ordered companytrol. A holistic understanding is simple justice to the meaning of all legislations. Fragmentary grasp of rules can misfire or even backfire, as in this case. It is a numberorious fact that companylieries--Indian companylieries, both before and after nationalisation-are strategic sources of the nations fuel and, operationally, areas of tragic human hazards. We need companyl, we want miners to bring it from the bowels of the earth. The dangerous technology is number yet so perfect in India as to ensure risk-free extraction. And, after many lives have been lost by the neglect of operatives or supervisors or supine bosses, follows the scenario of tears and torn-down homes, a little monetary companypensation, a flutter in Parliament, a longdrawn-out Commission, a routine Report about lapses and recipes and the little mans life-or death lot companytinuing to receive callous companysideration at the hands of the law, law-matter, law-enforcer---this sombre companyliery disaster sequence must educate and inform the jurisprudence of high-risk operations. In short, the Mines Act and Regulations must receive its judicial companystruction in the total setting, teleclogically approached, number fragmentarily dissected. The relevant regulation is only a tiny inset in the larger justice of the statute. The Mines Act has a scheme designed to avoid accidents and ensure safety. A system of certificates, supervisions and penalties is part of this scheme. The broad responsibility for due enforcement of the Act rests on the Board and the relevant regulation casts liabilities on the lesser men. Any sensitive jurisprudence of companyliery management must make it cardinal to punish the Board vicariously for any major violations and dreadful disasters, on macro companysiderations of responsibility to the companymunity. The Board must quit, as a legal penalty, if any dreadful deviation, deficiency, default or negligence anywhere in the mine occurs. In the present case a microbreach is being punished, but when major mishaps occur the top echelons, on account of inadequacies in companyliery companyes, escape and make others the scapegoats. Although, in this ease, only injury, number death, has occurred, there is a good case for new principles of liability, based on wider rules of sociological jurisprudence, to tighten up the law of omission and companymission, at the highest levels. Responsibility and penalty must be the companycomitants of highly-paid power vested in the top-brass. Back to the pedestrian statement of facts. The respondents curious companytention, accepted by the learned Judge, is best understood after reading Regulation 26 Suspension of an Overmans, Sirdars, EngineDrivers, shot-firers, or Gas-testing Certificate-- If, in the opinion of the Regionl Inspector, a person to whom an Overmans, Sirdars, Engine-drivers, Shot-firers, or Gas-testing Certificate has been granted ii incompetent or is guilty of negligence or misconduct in the performance of his duties, the Regional Inspector may, after giving the person an opportunity to give a written explanation, suspend his certificate by an order in writing. 10--206SC1/77 Where the Regional Inspector has suspended a certificate under sub-regulation 1 he shall within a week of such suspension report the fact to the Board together with all companynected papers including the explanation if any received from the person companycerned. The Board may, after such inquiry as it thinks fit, either companyfirm or modify or reduce the period of suspension of the certificate, or cancel the certificate. The plain purpose of the regulation is to pre-empt further harm by suspending the certificate of the shot-firer if in the opinion of the Regional Inspector he is incompetent or is guilty of negligence or misconduct in the performance of his duties after giving the person an opportunity to give a written explanation. This suspension is itself a punishment liable to companyfirmation, modification, reduction of the period of suspension or, by way of enhancement, cancellation of the certificate by the Board. Before taking such action by way of cessation, as it were, the Board gets a report from the Regional Inspector of the fact of suspension and makes such enquiry as it thinks fit. In the present case, the Board had an explanation styled an appeal from the respondent, and also a recommendation by the Regional Inspector for cancellation of the certificate. The latter had number suspended the delinquent but had merely hold an enquiry, reached the prima facie view of guilt and and instead of suspension at once, only made a recommendation to the Board for cancellation. The Regional Inspector has, among his statutory duties, the supervision of the observance of the safety rules and the holding of enquiries see sections 7 14 . He has to report to the Board on breaches of regulations and companyditions. The Board, in its turn, has the over-all charge of the safe management of the mine. Derelictions and violations must reach its vigilant eye and be visited with prompt action. Jurisprudentially speaking, there is need to cast an obligation on the Board and the higher inspectorate number to be negligent, indifferent or insoucient in the discharge of its overall responsibility which includes anticipation of likely mishaps and introduction of the latest measures to promote safety for the men working in the dark depths at the mercy of the wicked mood of Yama. Any deviance on the part of these high-powered authorities must be visited with tortious or criminal liability. Such is the price which high position must pay for the companysequences of calamitous failures. Sensitive occupations demand stern juristic principles to reach at scapegraces, high and low, and number mere long-grown-out companymissions whose verdicts often prove dilatory shelter for the-men-in whom Parliament has entrusted plenary management. We emphasize this matter to awaken the law-makers to evolve a companye of strict liability calling to utmost care number only the crowd of workers and others but the few who shall care or quit so that subterranean occupations necessary for the nation are made as riskproof as technology and human vigilance permit Unfortunately, the High Court surrendered to narrowness of interpretation of Regulation 26 by accepting the submission of the respondent. To be literal in meaning is to see the skin and miss the soul of the Regulation. The judicial key to companystruction is the companyposite perception of the deha and the dehi of the provision. So viewed, Reg. 26 is easy of companyprehension. The High Court held that the order of cancellation was illegal for a few reasons which strike us as untenable. The argument runs thus. Without first suspending the certificate, the Regional Inspector cannot report to the Board and without such a report following upon a suspension the latter cannot take seisin of the matter. Since the Regional Inspector did number suspend the respondent, the Board had numberjurisdiction. Secondly, the Regional Inspector had numberpower to recommend, but only to report and so the Boards order, influenced by the recommendation, was bad in law. Thirdly, the Board should have given a fresh opportunity to be heard before cancellation of the certificate and its absence in the present case violated natural justice, voiding the order. All the three points serve to warn the companyrts how over-judicialisation can be subversive of the justice of the law. Now, how can the cancellation order by the Board be bad for failure to suspend the certificate by the Regional Inspector ? The Boards power is independent and is ignited by the report of the Regional Inspector. Such a report exists here. There is an overall duty of over sight vested in the Board to enforce observance of rules of safety. To invalidate the Boards order because the Regional Inspector did number suspend the certificate is a fallacy. Now to the next point. The vice that vitiates the Boards order is stated to be the recommendation companytained in the Regional Inspectors report. Had he suspended and reported, he would have been in order. But suspension, on an enquiry, predicates a prior prima facie finding of guilt and to make that known to the Board implicity companyveys a recommendation. The difference between suspension plus report and recommendatory report is little more than between Tweedledum and Tweedledee. And to set aside an order on such a ground is to enthrone a processual nicety to dethrone plain justice. The last violation regarded as a lethal objection is that Board did number enquire of the respondent, independently of the one done by the Regional Inspector. Assuming it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board. He has thus been heard and companypliance with Reg. 26, in the circumstances, is companyplete. Natural justice. is numberunruly horse, numberlurking land mine, number a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being companyditioned by the facts and circumstances of each situation, numberbreach of natural justice can be companyplained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical number fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt--that is the companyscience of the matter. Shri Gambir, who appeared as amicus curiae and industriously helped the Court by citing several decisions bearing on natural justice, companyld number companyvince us to reach a companytrary companyclusion. It is true that in the companytext of Art. 311 of the Constitution this Court has interpreted the quality and amplitude of the opportunity to be extended to an affected public servant. Certainly we agree with the principles expounded therein. But then we cannot look at law in the abstract or natural justice as a mere artifact. Nor can we fit into a rigid mould the companycept of reasonable opportunity.
CHANDRAMAULI KR. PRASAD, J. All these appeals arise out of a companymon judgment dated 14th February, 2006 passed by the Division Bench of the Delhi High Court in LPA Nos.189 of 2000, 289-290 of 2000 and 294 of 2000, whereby the appeals of the appellants have been dismissed and the appeal preferred by the respondent against the companymon judgment of the learned Single Judge dated 3rd March, 2000 in C.W.Nos.2296, 2297 and 2298 of 1995 has been allowed. Short facts giving rise to the present appeals are that in the month of March, 1982 respondent Indian Railway Construction Company Limited hereinafter referred to as the IRCON a Government of India Undertaking was awarded two railway projects in Algeria. In June, 1982 the respondent inducted Ranjit Sinha appellant since deceased in Civil Appeal No.968 of 2007, a temporary employee of the Council of Scientific Industrial Research as French Translator in the pay scale of Rs.700-1200. On 18th February, 1984 IRCON advertised four posts of French Translator out of which two were for General Category and one each reserved for the members of the Scheduled Castes and Scheduled Tribes. Rameshwar Dayal appellant in Civil Appeal No.967 of 2007 offered his candidature as Scheduled Caste candidate. Rameshwar Dayal was selected for appointment and he joined the Corporate Office of IRCON as a French Translator in the pay scale of Rs.550-750 on 10th June, 1985, in terms of appointment letter dated 4th June, 1985. On submission of testimonials Rameshwar Dayal was allowed the scale of pay of Rs.700-1200 with effect from 25th July, 1985. Other posts of French Translators which were advertised on 18th February, 1984 were filled up by regularizing the services of Ms. Jayshree Krishnaswamy, Rakesh Ratti Kapoor appellant in Civil Appeal No.969 of 2007 and one Ashit Saha. On 4th October, 1985 appellant Rameshwar Dayal and said Ms. Jayashree Krishnaswamy were numberinated to be sent to Algeria. Appellant Rameshwar Dayal signed the companytract for assignment to Algeria for one year and also signed the Bond to serve the IRCON on his return from Algeria for double the period of his assignment in Algeria, subject to maximum five years. Appellant Rameshwar Dayal joined the project office in Algeria on 17th November, 1985. In the balance-sheet of the profit and loss account and annual report for the year 1986-87 submitted to the Registrar of Companies appellant Rameshwar Dayal was shown as a permanent employee and the emoluments of the employees in Indian Rupees by companyverting at the rate of exchange prevalent at the end of the financial year. Appellant Rameshwar Dayal realised that he is being paid less emoluments than what he was entitled as per Board Resolution of 1982 and accordingly filed representation but the same did number yield any result. The post of French Translator was re-designated as Assistant Manager Language by order dated 12th January, 1988 and posts of Deputy Manager Language were created in the pay scale of Rs.1100-1600. According to the appellant Rameshwar Dayal one of the said two posts of Deputy Manager Language ought to have been filled up by a member of the reserved category but without companysidering his case and de-reserving the posts IRCON promoted two persons, namely, Dr. Ranjit Sinha appellant in Civil Appeal No.968 of 2007 and Ms. Poonam Bhowmick. Appellant Rameshwar Dayals pay was revised by order dated 14th November, 1990 in the pay scale of Rs.2000-3500. It is his grievance that his scale of pay ought to have been revised in the pay scale of Rs.2200-4000. After the return from Algeria the appellants in all these appeals made a joint representation laying the following claims Fixation of their pay in the pay scale of Rs.2200-4000 instead of Rs.2000-3500, as being given by its sister companycern RITES as per Para 8.79 of P.P.C. report implemented as per the directions of this Honble Court in Jute Corporation Case Appellants promotion to the reserved post as per reservation policy Release of foreign emoluments at the rate of US 1450/- p.m. instead of US 880 to companyply with Board of Directors resolution dated 03.03.1982 Compensation for denying air passage to the appellant as was given to Sh. M.K. Seth Further promotion as per rules. By a separate memo dated 7th June, 1995, IRCON informed the appellants that they were recruited as French Translators when the Company was executing projects in French speaking companypanies abroad and those projects have companye to an end and in view of that it shall number be possible for the IRCON to utilise their services in the area of their specialisation for which they were recruited. Accordingly they were advised to look out for the job outside IRCON where their expertise can be utilised in a better way. Appellant Rameshwar Dayal, Dr. Ranjit Sinha and Rakesh Ratti Kapoor filed separate writ petitions. Relief sought for by the appellant Ranjit Sinha and Rakesh Ratti Kapoor pertained to quashing of the aforesaid memo dated 7th June, 1995 as also for release of the salary in foreign emoluments at the rate of US 1450 instead of US 880 per month with interest at the rate of 2 per month and to place them in the pay scale of Rs.2200-4000 instead of Rs.2000- 3500. They also prayed for a direction to companypensate them for number allowing them free air passages from Algeria to India and back for the period 1989 to 1992. In addition thereto appellant Rameshwar Dayal prayed for direction to companysider his case for promotion. During the pendency of the writ petitions Dr. Ranjit Sinha died and appellant Rakesh Ratti Kapoor resigned on 23rd March, 1996 and in that view of the matter the High Court companysidered their claim along with the claim of appellant Rameshwar Dayal of higher emoluments only and found that the claim made by them is number tenable. The learned Single Judge in this companynection observed as follows Therefore, I am unable to accept the submissions of Mr. O.P. Khadaria, the learned companynsel for the petitioners, that the respondent Corporation had companymitted any illegality or irrationality in fixing the emoluments of the petitioners while they are sent on assignments to Algeria as French Translators. So far as the grievance of appellant Rameshwar Dayal in regard to the dispensing with his services is companycerned the learned Single Judge held that IRCON is bound to regularise his services. It seems that the claim for companypensation for denying the air passage and promotion being stale, it was number pressed during the companyrse of hearing and the learned Single Judge has number adjudicated issues. Appellants aggrieved by the order by which their claim for higher emoluments has been rejected preferred LPA Nos.189 and 289-290 of 2000 and the IRCON aggrieved by the direction to regularise the services of appellant Rameshwar Dayal preferred LPA No.294 of 2000. The Division Bench of the High Court by a companymon order dated 14th February, 2006 dismissed the appeals preferred by the appellants against rejection of their claim of higher emoluments but the appeal filed by the IRCON against the direction to regularize the services of appellant Rameshwar Dayal has been allowed and the said direction has been set aside. The Division Bench has number adverted to the other reliefs sought by the writ petitioners. The appellants are before us against the said order. We have heard Mr. O.P. Khadaria, learned companynsel for the appellants and Mr. Chetan Sharma, learned Senior Council appearing on behalf of the respondents. Mr. Khadaria has also filed written submissions. Mr. Khadaria points that the Board of Directors of IRCON in its meeting held on 3rd March, 1982 and that of the meeting held on 10th January, 1983 decided to pay remuneration to the employees in Algeria on the basis of the scale of pay they are getting in the IRCON and hence, granting lesser emoluments to the appellant is illegal. We do number find any substance in the submission of Mr. Khadaria and the reliance placed by him on the decisions of the Board of Directors of the IRCON dated 3rd March, 1982 and 10th January, 1983 are misconceived and have numberbearing so far as the claim of emoluments is companycerned. Undisputedly, emoluments of these appellants were fixed after the aforesaid Resolution of the Board of Directors. Their emoluments therefore shall be governed by the terms and companyditions agreed upon. It is relevant here to state that the appellants claim parity with two persons who were sent to Algeria as Chartered Accountant and Engineer Technical Officers . Appellants were working as French Translators and, therefore, they cannot claim parity on the basis of similarity in the scale of pay when they belong to a different category. As rightly observed by the Division Bench of the High Court that once the appellants have entered into an agreement they cannot go back and claim for higher emoluments. Relevant portion of the judgment of the Division Bench in this regard reads as follows So far as the plea for higher emoluments is companycerned, the petitioner had accepted his assignment in Algeria and he cannot go back on his agreement number. It is entirely for the authority companycerned to decide what pay scale should be given to a particular employee and companyrt cannot interfere with the pay scale vide Delhi Tapedic Unmulan Samiti vs. Babita Rani Ors. supra . At any event, as held by the learned Single Judge, the appellant can file a suit for this purpose. As regards the claim of Rameshwar Dayal for regularisation in service, Mr. Khadaria submits that his performance being satisfactory he cannot be thrown out from service and as such the Division Bench erred in setting aside the direction given by the learned Single Judge for regularising his services. The observation of the learned Single Judge in this companynection reads as follows Now, I companye to the question of the respondents authority to dispense with the services of the petitioner in CW.2298/95. There is companysiderable force in the submission of Mr. O.P. Khadaria that the petitioner, Rameshwar Dayal, who belongs to a Scheduled Caste category, whose post has been re-designated, cannot be sent out by the respondent. It is number the case of the petitioner in CW.2298/95, Rameshwar Dayal, is number capable of working on ministerial assignment having regard to his long experience in the organisation. The respondent Corporation being a public authority, is bound to act in accordance with fairplay and justice, and cannot dispense with the services of the petitioner in CW.2298/95 by simply issuing a show cause numbericed asking him to fend for himself. It may also be numbericed that it is number the case of the respondent Corporation that the performance of the petitioner, Rameshwar Dayal, has number been satisfactory. However, the Division Bench while setting aside the aforesaid direction observed as follows As regards question of regularization we have already held in Delhi Tapedic Unmulan Samiti vs. Babita Rani Ors. LPA No.2554/2005, decided on 16th January, 2006, that the Court cannot issue directions for regularization as it is an executive function, and it depends on the relevant rules and can only be directed by the Authorities companycerned and number the Court. The entire case law on the point has been companysidered in Delhi Tapedic Unmulan Samiti vs. Babita Rani Ors. supra and hence we are number repeating the same again. Mr. Sharma, however, companytends that in the absence of any policy or scheme framed by the employer numberclaim of regularisation can be made. He points out that the IRCON needed the services of the French Translators when it was executing projects in French speaking companyntries and number that numbersuch project is with it, services of the appellant cannot be regularised.
GANGULY, J. Leave granted. This appeal has been filed challenging the judgment and order dated 19.02.2009 of the National Consumer Disputes Redressal Commission, New Delhi hereinafter, National Commission which upheld the finding of the State Consumer Forum. The order of the National Commission runs as follows Heard. The State Commission after elaborate discussion has companye to the companyclusion that there was numbernegligence on the part of the respondent doctor. All possible care was taken by the respondent in treating the petitioner. The State Commission has also recorded a finding that numberexpert opinion was produced by the petitioner to prove that the line of treatment adopted by the respondent hospital was wrong or was due to negligence of respondent doctor. Dismissed. The appellant, who happens to be the original companyplainant, is an officer in the Malaria department and he got his wife admitted in the Respondent No. 1 hospital on 20.07.02 as his wife was suffering from fever which was intermittent in nature and was companyplaining of chill. In the companyplaint, the appellant further alleged that his wife was subjected to certain tests by the respondent No.1 but the test did number show that she was suffering from malaria. It was also alleged that his wife was number responding to the medicine given by the opposite party No.1 and on 22nd July, 2002 while she was kept admitted by respondent No.1. Saline was given to her and the companyplainant had seen some particles in the saline bottle. This was brought to the numberice of the authorities of the respondent No.1 but to numbereffect. Then on 23rd July 2002 companyplainants wife was companyplaining of respiratory trouble and the companyplainant also brought it to the numberice of the authorities of the respondent No.1 who gave artificial oxygen to the patient. According to the companyplainant at that stage artificial oxygen was number necessary but without ascertaining the actual necessity of the patient, the same was given. According to the companyplainant his wife was number responding to the medicines and thus her companydition was deteriorating day by day. The patient was finally shifted to Yashoda Hospital from the respondent No.1. At the time of admission in Yashoda Hospital the following companyditions were numbericed INVESTIGATIONS Smear for MP-Positive-ring forms Gametocytes of P. Falciparam seen Positive index-2-3/100RBCS LFT-TB-1.5 DB-1.0 IB-0.5 WIDAL test-Negative HIV HBsAG-Negative PT-TEST-22 sec CONTROL-13 sec APTT-TEST-92 sec CONTROL-38 sec CBP-HB-3.8 gms TLC-30.900/cumm RBC-1.2/cumm HRP II-Positive B urea-38 mg dl S Creatinine-1.3 mb dl S Electrolytes-NA K CL-148/5.2/103 mEq L C X R - s o ARDS CASE DISCUSSION 45 yrs old of patient admitted in AMC with H o fever-8 days admitted 5 days back in NIKHIL HOSPITAL given INJ MONOCEF, INJ CIFRAN, INJ CHOLROQUINE because of dysnoea today suddenly shifted to Y.S.S.H. for further management. Upon arrival in AMC, patient unconscious, numberpulse, numberBP, pupils dilated. Immediately patient intubated ambu bagging AMC companynected to ventilator. Inj. Atropine, inj. Adhenoline, inj. Sodabicarb given, DC shock also given. Rhyth restored at 1.35 PM At 10.45 pm, patient developed brady cardia inspite of repeated Altropine Adhenolin. HR-O DC shock given. External Cardiac massage given. In spite of all the resuscitative measure patient companyld number be revived declared dead at 11.30pm on 24.7.2002. In the affidavit, which was filed by one Dr. Venkateswar Rao who is a Medical Practitioner and the Managing Director of the respondent No.1 before the District Forum, it was admitted that patient was removed from respondent No.1 to the Yashoda Hospital being accompanied by the doctor of the respondent No.1. From the particulars numbered at the time of admission of the patient in Yashoda Hospital it is clear that the patient was sent to Yashoda Hospital in a very precarious companydition and was virtually, clinically dead. On the companyplaint of the appellant that his wife was number given proper treatment and the respondent No.1 was negligent in treating the patient the District Forum, on a detailed examination of the facts, came to a finding that there was negligence on the part of the respondent No.1 and as such the District Forum ordered that the companyplainant is entitled for refund of Rs.10,000/- and companypensation of Rs.2 lakhs and also entitled to companyts of Rs.2,000/-. The District Forum relied on the evidence of Dr. Venkateswar Rao who was examined on behalf of the respondent No.1. Dr. Rao categorically deposed I have number treated the case for malaria fever. The District Forum found that the same is a clear admission on the part of the respondent No.1 that the patient was number treated for malaria. But the death certificate given by the Yashoda Hospital disclosed that the patient died due to cardio respiratory arrest and malaria. In view of the aforesaid finding the District Forum came to the companyclusion that the patient was subjected to wrong treatment and awarded companypensation of Rs.2 lakhs and other directions as mentioned above in favour of the appellant. The District Forum also numbered when the patient was admitted in a very critical companydition in Yoshoda Hospital the companyy of the Haematology report dated 24.7.2002 disclosed blood smear for malaria parasite whereas Widal test showed negative. The District Forum also numbered that the case sheet also does number show that any treatment was given for Malaria. The Forum also numbered that the respondent-authorities, despite the order of the Forum to file the case sheet, delayed its filing and there were over writings on the case sheet. Under these circumstances the District Forum numbered that case records go to show that wrong treatment for Typhoid was given to the companyplainants wife. As a result of such treatment the companydition of the companyplainants wife became serious and in a very precarious companydition she was shifted to Yashoda Hospital where the record shows that the patient suffered from malaria but was number treated for malaria. Before the District Forum, on behalf of the respondent No.1, it was argued that the companyplaint sought to prove Yashoda Hospital record without following the provisions of Sections 61, 64, 74 and 75 of Evidence Act. The Forum overruled the objection, and in our view rightly, that companyplaints before companysumer are tried summarily and Evidence Act in terms does number apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in 2009 9 SCC 221 that provisions of Evidence Act are number applicable and the Fora under the Act are to follow principles of natural justice See paragraph 43, page 252 of the report . Aggrieved by the order of the District Forum respondent No. 1 preferred an appeal to the State Consumer Disputes Redressal Commission FA No. 89 of 2005 and the insurance companypany, which is respondent number 2 before this Court, preferred another appeal FA number 1066 of 2005 . The State Forum vide its order dated 31.10.2008 allowed the appeals. In doing so the State Commission relied on a decision in Tarun Thakore vs. Dr. Noshir M. Shroff O.P. No. 215/2000 dated 24.9.2002 wherein the National Commission made some observations about the duties of doctor towards his patient. From those observations it is clear that one of the duties of the doctor towards his patient is a duty of care in deciding what treatment is to be given and also a duty to take care in the administration of the treatment. A breach of any of those duties may lead to an action for negligence by the patient. The State Forum also relied on a decision of this Court in Indian Medical Association vs. V.P. Shantha others - 1995 6 SCC 651. Relying on the aforesaid two decisions, the State Forum found that in the facts and circumstances of the case, the companyplainant failed to establish any negligence on the part of the hospital authorities and the findings of the District Forum were overturned by the State Commission. In the order of the State Commission there is a casual reference to the effect that there is also numberexpert opinion to state that the line of treatment adopted by the appellant opposite party No.1 Hospital is wrong or is negligent. In this case the State Forum has number held that companyplicated issues relating to medical treatment have been raised. It is number a case of companyplicated surgery or a case of transplant of limbs and organs in human body. It is a case of wrong treatment in as much as the patient was number treated for malaria when the companyplaint is of intermittent fever and chill. Instead the respondent No.1 treated the patient for Typhoid and as a result of which the companydition of the patient deteriorated. When the companydition became very very critical the patient was removed to Yashoda Hospital but patient companyld number be revived. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must companye to a companyclusion that the case is companyplicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters numbermechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. In the instant case, RW-1 has admitted in his evidence that the patient was number treated for malaria. Of companyrse evidence shows that of the several injections given to the patient, only one was of Lariago. Apart from Lariago, several other injections were also administered on the patient. Lariago may be one injection for treating malaria but the finding of Yashoda Hospital which has been extracted above shows that smear for malarial parasite was positive. There is thus a definite indication of malaria, but so far as Widal test was companyducted for Typhoid it was found negative. Even in such a situation the patient was treated for Typhoid and number for malaria and when the companydition of the patient worsened critically, she was sent to Yashoda Hospital in a very critical companydition with numberpulse, numberBP and in an unconscious state with pupils dilated. As a result of which the patient had to be put on a ventilator. We do number think that in this case, expert evidence was necessary to prove medical negligence. The test of medical negligence which was laid down in Bolam vs. Friern Hospital Management Committee reported in 1957 2 All England Law Reports 118, has been accepted by this Court as laying down companyrect tests in cases of medical negligence. Bolam was suffering from mental illness of the depressive type and was advised by the Doctor attached to the defendants Hospital to undergo electro-convulsive therapy. Prior to the treatment Bolam signed a form of companysent to the treatment but was number warned of the risk of fracture involved. Even though the risk was very small and on the first occasion when the treatment was given Bolam did number sustain any fracture but when the treatment was repeated for the second time he sustained fractures. No relaxant drugs or manual companytrol were used except that a male nurse stood on each side of the treatment companych throughout the treatment. About this treatment there were two bodies of opinion, one of which favoured the use of relaxant drugs or manual companytrol as a general practice, and the other opinion was for the use of drug that was attended by mortality risks and companyfined the use of relaxant drugs only to cases where there are particular reasons for their use and Bolam case was number under that category. On these facts the expert opinion of Dr. J.de Bastarrechea, companysultant psychiatrist attached to the Hospital was taken. Ultimately the Court held the Doctors were number negligent. In this companytext the following principles have been laid down A Doctor is number guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art See page 122 placitum B of the report It is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is number negligent merely because his companyclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as numberdoctor of ordinary skill would be guilty of if acting with ordinary care See page 122, placitum A of the report . Even though Bolam test was accepted by this Court as providing the standard numberms in cases of medical negligence, in the companyntry of its origin, it is questioned on various grounds. It has been found that the inherent danger in Bolam test is that if the Courts defer too readily to expert evidence medical standards would obviously decline. Michael Jones in his treaties on Medical Negligence Sweet Maxwell , Fourth Edition, 2008 criticized the Bolam test as it opts for the lowest companymon denominator. The learned author numbered that opinion was gaining ground in England that Bolam test should be restricted to those cases where an adverse result follows a companyrse of treatment which has been intentional and has been shown to benefit other patients previously. This should number be extended to certain types of medical accident merely on the basis of how companymon they are. It is felt to do this would set us on the slippery slope of excusing carelessness when it happens often enough See Michael Jones on Medical Negligence paragraph 3-039 at page 246 . With the companying into effect of Human Rights Act, 1988 from 2nd October, 2009 in England, the States obligations under the European Convention on Human Rights ECHR are justiciable in the domestic companyrts of England. Article 2 of the Human Rights Act 1998 reads as under- Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a companyrt following his companyviction of a crime for which this penalty is provided by law. Even though Bolam test has number been uprooted it has companye under some criticism as has been numbered in Jackson Powell on Professional Negligence Sweet Maxwell , Fifth Edition, 2002. The learned authors have numbered See paragraph 7-047 at page 200 in Jackson Powell that there is an argument to the effect that Bolam test is inconsistent with the right to life unless the domestic companyrts companystrue that the requirement to take reasonable care is equivalent with the requirement of making adequate provision for medical care. In the companytext of such jurisprudential thinking in England, time has companye for this Court also to reconsider the parameters set down in Bolam test as a guide to decide cases on medical negligence and specially in view of Article 21 of our Constitution which encompasses within its guarantee, a right to medical treatment and medical care. In England, Bolam test is number companysidered merely a rule of practice or of evidence. It is number a rule of law See paragraph 1.60 in Clinical Negligence by Michael Powers QC, Nigel Harris and Anthony Barton, 4th Edition, Tottel Publishing . However as in the larger Bench of this Court in Jacob Mathew vs. State of Punjab and another - 2005 6 SCC 1, Chief Justice Lahoti has accepted Bolam test as companyrectly laying down the standards for judging cases of medical negligence, we follow the same and refuse to depart from it. The question of medical negligence came up before this Court in a decision in Mathew supra , in the companytext of Section 304-A of Indian Penal Code. Chief Justice Lahoti, speaking for the unanimous three-Judge Bench in Mathew supra , made a clear distinction between degree of negligence in criminal law and civil law where numbermally liability for damages is fastened. His Lordship held that to companystitute negligence in criminal law the essential ingredient of mens rea cannot be excluded and in doing so, His Lordship relied in the speech of Lord Diplock in R. vs. Lawrence, 1981 1 All ER 974. The learned Chief Justice further opined that in order to pronounce on criminal negligence it has to be established that the rashness was of such a degree as to amount to taking a hazard in which injury was most likely imminent. The neat formulation by Lord Atkin in Andrews v. Director of Public Prosecutions, 1937 2 All ER 552 HL at page 556 wherein the learned Law Lord delineated the companycept of negligence in civil and criminal law differently was accepted by this Court. Lord Atkin explained the shades of distinction between the two very elegantly and which is excerpted below- Simple lack of care such as will companystitute civil liability is number enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Chief Justice Lahoti also relied on the speech of Lord Porter in Riddell vs. Reid 1943 AC 1 HL to further identify the difference between the two companycepts and which I quote- A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. This has been quoted in the treatise on Negligence by Charlesworth and Percy para 1.13 In the companycluding part of the judgment in Mathew supra in paragraph 48, sub-paras 5 and 6 the learned Chief Justice summed up as follows- The jurisprudential companycept of negligence differs in civil and criminal law. What may be negligence in civil law may number necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross number of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. The word gross has number been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be gross. The expression rash or negligent act as occurring in Section 304-A IPC has to be read as qualified by the word grossly. After laying down the law, as above, the learned Chief Justice opined that in cases of criminal negligence where a private companyplaint of negligence against a doctor is filed and before the investigating officer proceeds against the doctor accused of rash and negligent act, the investigating officer must obtain an independent and companypetent medical opinion preferably from a doctor in Government service, qualified in that branch of medical practice. Such a doctor is expected to give an impartial and unbiased opinion applying the primary test to the facts companylected in the companyrse of investigation. Honble Chief Justice suggested that some statutory rules and statutory instructions incorporating certain guidelines should be issued by the Government of India or the State Government in companysultation with the Medical Council of India in this regard. Till that is done, the aforesaid companyrse should be followed. But those directions in paragraph 52 of Mathew supra were certainly number given in respect of companyplaints filed before the Consumer Fora under the said Act where medical negligence is treated as civil liability for payment of damages. This fundamental distinction pointed out by the learned Chief Justice in the unanimous three-Judge Bench decision in Mathew supra was unfortunately number followed in the subsequent two-Judge Bench of this Court in Martin F. Dsouza v. Mohd. Ishfaq, reported in 2009 3 SCC 1. From the facts numbered in paragraphs 17 and 18 of the judgment in Dsouza supra , it is clear that in Dsouza supra companyplaint was filed before the National Consumer Disputes Redressal Commission and numbercriminal companyplaint was filed. The Bench in Dsouza supra numbered the previous three-Judge Bench judgment in Mathew supra paragraph 41 at pages 17-18 of the report but in paragraph 106 of its judgment, Dsouza supra equated a criminal companyplaint against a doctor or hospital with a companyplaint against a doctor before the Consumer Fora and gave the following directions companyering cases before both. Those directions are set out below- We, therefore, direct that whenever a companyplaint is received against a doctor or hospital by the Consumer Fora whether District, State or National or by the criminal companyrt then before issuing numberice to the doctor or hospital against whom the companyplaint was made the Consumer Forum or the criminal companyrt should first refer the matter to a companypetent doctor or companymittee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or companymittee reports that there is a prima facie case of medical negligence should numberice be then issued to the doctor hospital companycerned. This is necessary to avoid harassment to doctors who may number be ultimately found to be negligent. We further warn the police officials number to arrest or harass doctors unless the facts clearly companye within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action. We are of the view that aforesaid directions are number companysistent with the law laid down by the larger Bench in Mathew supra . In Mathew supra , the direction for companysulting the opinion of another doctor before proceeding with criminal investigation was companyfined only in cases of criminal companyplaint and number in respect of cases before the Consumer Fora. The reason why the larger Bench in Mathew supra did number equate the two is obvious in view of the jurisprudential and companyceptual difference between cases of negligence in civil and criminal matter. This has been elaborately discussed in Mathew supra . This distinction has been accepted in the judgment of this Court in Malay Kumar Ganguly supra See paras 133 and 180 at pages 274 and 284 of the report . Therefore, the general directions in paragraph 106 in Dsouza supra , quoted above are, with great respect, inconsistent with the directions given in paragraph 52 in Mathew supra which is a larger Bench decision. Those directions in Dsouza supra are also inconsistent with the principles laid down in another three-Judge Bench of this Court rendered in Indian Medical Association supra wherein a three-Judge Bench of this Court, on an exhaustive analysis of the various provisions of the Act, held that the definition of service under Section 2 1 o of the Act has to be understood on broad parameters and it cannot exclude service rendered by a medical practitioner. About the requirement of expert evidence, this Court made it clear in Indian Medical Association supra that before the Fora under the Act both simple and companyplicated cases may companye. In companyplicated cases which require recording of evidence of expert, the companyplainant may be asked to approach the civil companyrt for appropriate relief. This Court opined that Section 3 of the Act provides that the provisions of the Act shall be in addition to and number in derogation of the provisions of any other law for the time being in force. Thus the Act preserves the right of the companysumer to approach the civil companyrt in companyplicated cases of medical negligence for necessary relief. But this Court held that cases in which companyplicated questions do number arise the Forum can give redressal to an aggrieved companysumer on the basis of a summary trial on affidavits. The relevant observations of this Court are There may be cases which do number raise such companyplicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out-patient card companytaining the warning as in Chin Keow v. Govt. of Malaysia, 1967 1 WLR 813 PC or use of wrong gas during the companyrse of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the companyplaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is numberreason why companyplaints regarding deficiency in service in such cases should number be adjudicated by the Agencies under the Act. In companyplaints involving companyplicated issues requiring recording of evidence of experts, the companyplainant can be asked to approach the civil companyrt for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and number in derogation of the provisions of any other law for the time being in force, preserves the right of the companysumer to approach the civil companyrt for necessary relief A careful reading of the aforesaid principles laid down by this Court in Indian Medical Association supra makes the following position clear- There may be simple cases of medical negligence where expert evidence is number required. Those cases should be decided by the Fora under the said Act on the basis of the procedure which has been prescribed under the said Act. In companyplicated cases where expert evidence is required the parties have a right to go to the Civil Court. That right of the parties to go to Civil Court is preserved under Section 3 of the Act. The decision in Indian Medical Association supra has been further explained and reiterated in another three judge Bench decision in Dr. J. Merchant and others vs. Shrinath Chaturvedi reported in 2002 6 SCC 635. The three Judge Bench in Dr. J. J. Merchant supra accepted the position that it has to be left to the discretion of Commission to examine experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may companysume time. The Act specifically empowers the Consumer Forums to follow the procedure which may number require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. para 19, page 645 of the report Emphasis supplied It is, therefore, clear that the larger Bench in Dr. J. J. Merchant supra held that only in appropriate cases examination of expert may be made and the matter is left to the discretion of Commission. Therefore, the general direction given in para 106 in DSouza Supra to have expert evidence in all cases of medical negligence is number companysistent with the principle laid down by the larger bench in paragraph 19 in Dr. J. J. Merchant supra . In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in companyplicated cases, and where in its discretion, the Consumer Fora feels it is required the direction in paragraph 106, quoted above in Dsouza supra for referring all cases of medical negligence to a companypetent doctor or companymittee of doctors specialized in the field is a direction which is companytrary to the principles laid down by larger Bench of this Court on this point. In Dsouza supra the earlier larger Bench decision in Dr. J. J. Merchant supra has number been numbericed. Apart from being companytrary to the aforesaid two judgments by larger Bench, the directions in paragraph 106 in Dsouza supra is also companytrary to the provisions of the said Act and the Rules which is the governing statute. Those directions are also companytrary to the avowed purposes of the Act. In this companynection we must remember that the Act was brought about in the background of worldwide movement for companysumer protection. The Secretary General, United Nations submitted draft guidelines for companysumer protection to the Economic and Social Council in 1983. Thereupon on an extensive discussions and negotiations among various companyntries on the scope and companytent of such impending legislation certain guidelines were arrived at. Those guidelines are- Taking into account the interests and needs of companysumers in all companyntries, particularly those in developing companyntries, recognizing that companysumers often face imbalances in economic terms, educational level and bargaining power, and bearing in mind that companysumer should have the right of access to number-hazardous products, as well as importance of promoting just, equitable and sustainable economic and social development, these guidelines for companysumer protection have the following objectives- To assist companyntries in achieving or maintaining adequate protection for their population as companysumers. To facilitate production and distribution patterns responsive to the needs and desires of companysumers. To encourage high levels of ethical companyduct for those engaged in the production and distribution of goods and services to companysumers. To assist companyntries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect companysumers. To facilitate the development of independent companysumer groups. To further international companyperation in the field of companysumer protection. To encourage the development of market companyditions which provide companysumers with greater choice at lower prices. A three-Judge Bench of this Court in State of Karnataka v. Vishwabharathi House Building Coop. Society Others, 2003 2 SCC 412, referred to those guidelines in paragraph 6. This Court further numbered that the framework of the Act was provided by a resolution dated 9.4.1985 of the General Assembly of the United Nations Organization known as Consumer Protection Resolution No. 39/248, to which India was a signatory. After treating the genesis and history of the Act, this Court held that that it seeks to provide for greater protection of the interest of the companysumers by providing a Fora for quick and speedy disposal of the grievances of the companysumers. These aspect of the matter was also companysidered and highlighted by this Court in Lucknow Development Authority v. M.K. Gupta, 1994 1 SCC 243, in Charan Singh v. Healing Touch Hospital 2000 7 SCC 668 as also in the case of Spring Meadows Hospital v. Harjol Ahluwalia 1998 4 SCC 39 and in the case of India Photographic Co. Ltd. v. H.D. Shourie 1999 6 SCC 428. It is clear from the statement of objects and reasons of the Act that it is to provide a forum for speedy and simple redressal of companysumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case. If that is done the efficacy of remedy under the Act will be substantially curtailed and in many cases the remedy will become illusory to the companymon man. In Spring Meadows supra this Court was dealing with the case of medical negligence and held that in cases of gross medical negligence the principle of res ipsa loquitur can be applied. In paragraph 10, this Court gave certain illustrations on medical negligence where the principle of res ipsa loquitur can be applied. In Postgraduate Institute of Medial Education and Research, Chandigarh v. Jaspal Singh and others, 2009 7 SCC 330, also the Court held that mismatch in transfusion of blood resulting in death of the patient, after 40 days, is a case of medical negligence. Though the learned Judges have number used the expression res ipsa loquitur but a case of mismatch blood transfusion is one of the illustrations given in various textbooks on medical negligence to indicate the application of res ipsa loquitur. In the treaties on Medical Negligence by Michael Jones, the learned author has explained the principle of res ipsa loquitur as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for numberfault of his own, is unable to adduce evidence as to how the accident occurred. The principle has been explained in the case of Scott v. London St. Katherine Docks Co. reported in 1865 3 H C. 596, by Chief Justice Erle in the following mannerwhere the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary companyrse of things does number happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. The learned author at page 314, para 3-146 of the book gave illustrations where the principles of res ipsa loquitur have been made applicable in the case of medical negligence. All the illustrations which were given by the learned author were based on decided cases. The illustrations are set out below- 7 Where a patient sustained a burn from a high frequency electrical current used for electric companygulation of the blood See Clarke v. Warboys, The Times, March 18, 1952, CA 7 Where gangrene developed in the claimants arm following an intramuscular injection See Cavan v. Wilcox 1973 44 D.L.R. 3d 42 7 When a patient underwent a radical mastoidectomy and suffered partial facial paralysis See Eady v. Tenderenda 1974 51 L.R. 3d 79, SCC 7 Where the defendant failed to diagnose a known companyplication of surgery on the patients hand for Pagets diseaseSee Rietz v. Bruser No.2 1979 1 W.W.R. 31, Man QB. 7 Where there was a delay of 50 minutes in obtaining expert obstetric assistance at the birth of twins when the medical evidence was that at the most numbermore than 20 minutes should elapse between the birth of the first and the second twin See Bull v. Devon Area Health Authority 1989 , 1993 4 Med. L.R. 117 at 131. 7 Where, following an operation under general anaesthetic, a patient in the recovery ward sustained brain damage caused by bypoxia for a period of four to five minutes See Coyne v. Wigan Health Authority 1991 2 Med. L.R. 301, QBD 7 Where, following a routine appendisectomy under general anaesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent companya See Lindsey v. Mid-Western Health Board 1993 2 I.R. 147 at 181 7 When a needle broke in the patients buttock while he was being given an injection See Brazier v. Ministry of Defence 1965 1 Ll. Law Rep. 26 at 30 7 Where a spinal anaesthetic became companytaminated with disinfectant as a result of the manner in which it was stored causing paralysis to the patient See Roe v. Minister of Health 1954 2 Q.B. 66. See also Brown v. Merton, Sutton and Wandsworth Area Health Authority 1982 1 All E.R. 650 7 Where an infection following surgery in a well-staffed and modern hospital remained undiagnosed until the patient sustained crippling injury See Hajgato v. London Health Association 1982 36 O.R. 2d 669 at 682 and 7 Where an explosion occurred during the companyrse of administering anaesthetic to the patient when the technique had frequently been used without any mishap Crits v. Sylvester 1956 1 D.L.R. 2d 502. In a case where negligence is evident, the principle of res ipsa loquitur operates and the companyplainant does number have to prove anything as the thing res proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. If the general directions in paragraph 106 in Dsouza supra are to be followed then the doctrine of res ipsa loquitur which is applied in cases of medical negligence by this Court and also by Courts in England would be redundant. In view of the discussions aforesaid, this Court is companystrained to take the view that the general direction given in paragraph 106 in Dsouza supra cannot be treated as a binding precedent and those directions must be companyfined to the particular facts of that case. With great respect to the Bench which decided Dsouza supra this Court is of the opinion that the directions in Dsouza supra are companytrary to a the law laid down in paragraph 37 of Indian Medical Association supra , b and paragraph 19 in Dr. J.J. Merchant supra , c those directions in paragraph 106 of Dsouza supra equate medical negligence in criminal trial and negligence fastening civil liability whereas the earlier larger Bench in Mathew supra elaborately differentiated between the two companycepts, d Those directions in Dsouza supra are companytrary to the said Act which is the governing statute, d those directions are also companytrary to the avowed purpose of the Act, which is to provide a speedy and efficacious remedy to the companysumer. If those general directions are followed then in many cases the remedy under the said Act will become illusory, f those directions run companytrary to principle of Res ipsa loquitur which has matured into a rule of law in some cases of medical negligence where negligence is evident and obvious. When a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered Per incuriam. This companycept of Per incuriam has been explained in many decisions of this Court. Justice Sabyasachi Mukharji as his Lordship then was speaking for the majority in the case of A.R. Antulay vs. R.S. Nayak and another reported in 1988 2 SCC 602 explained the companycept in paragraph 42 at page 652 of the report in following words- Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the companyrt companycerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. Subsequently also in the Constitution Bench judgment of this Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and others reported in 1990 3 SCC 682, similar views were expressed in paragraph 40 at page 705 of the report. The two-Judge Bench in Dsouza has taken numbere of the decisions in Indian Medical Association and Mathew, but even after taking numbere of those two decisions, Dsouza supra gave those general directions in paragraph 106 which are companytrary to the principles laid down in both those larger Bench decisions. The larger Bench decision in Dr. J.J. Merchant supra has number been numbered in Dsouza supra . Apart from that, the directions in paragraph 106 in Dsouza supra are companytrary to the provisions of the governing statute. That is why this Court cannot accept those directions as companystituting a binding precedent in cases of medical negligence before companysumer Fora. Those directions are also inconsistent with the avowed purpose of the said Act. This Court however makes it clear that before the companysumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of Fora especially when retired judges of Supreme Court and High Court are appointed to head National Commission and the State Commission respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case numbermally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a companymon man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital companystitute negligence. In doing so, the expert can throw companysiderable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or number is a mixed question of fact and law and the Fora is number bound in every case to accept the opinion of the expert witness. Although, in many cases the opinion of the expert witness may assist the Fora to decide the companytroversy one way or the other. For the reasons discussed above, this Court holds that it is number bound by the general direction given in paragraph 106 in Dsouza supra . This Court further holds that in the facts and circumstances of the case expert evidence is number required and District Forum rightly did number ask the appellant to adduce expert evidence.
### Human: Identify the key issue in the following legal scenario. ### Assistant: In Mehta v. Kapoor, Mehta, a tenant, sues Kapoor, a landlord, under the Indian Rent Control Act, for failure to provide basic amenities in the rented property. Mehta faced a blackout due to faulty wiring, which Kapoor knew about. ### Human: The key issue in Mehta v. Kapoor is whether the landlord (Kapoor) is liable for the harm to the tenant (Mehta) due to negligence in providing basic amenities, specifically, maintaining the electrical wiring.
### Human: Summarize the main arguments of the following Supreme Court of India judgment. ### Assistant: In Kesavananda Bharati v. State of Kerala, the Supreme Court held that the Parliament could not alter the basic structure of the Constitution. This included fundamental rights that were deemed inviolable. ### Human: In Kesavananda Bharati v. State of Kerala, the Supreme Court ruled that the basic structure of the Constitution, including inviolable fundamental rights, cannot be altered by the Parliament.
### Human: Interpret the meaning of the following provision in the Indian Penal Code. ### Assistant: Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property, is said to commit theft. ### Human: This provision describes theft. If a person intends to dishonestly take movable property from someone without their consent, and acts on this by moving the property, they are committing theft.
### Human: Draft a clause for a non-disclosure agreement under Indian law to protect a company's confidential information. ### Assistant: ### Human: The Recipient shall use the Confidential Information solely for the Purpose and shall not disclose such Confidential Information to any third party without the prior written consent of the Disclosing Party. Any breach of this clause could lead to legal action under the Indian Contract Act, 1872.
### Human: Write an opening statement for a defense attorney in a defamation case under Indian law. ### Assistant: ### Human: Honourable court, my client has been unjustly accused of defamation. However, as the evidence will show, my client's actions were either truthful or represent fair comments made in the public interest. I urge you to remember that, under our law, a statement is not defamatory if it can be proven to be true or an opinion.
### Human: Analyze the potential legal risks in the following business scenario under Indian law. ### Assistant: Company XYZ plans to launch a new service that uses biometric data for user authentication. They want to store this data in their servers but are concerned about privacy issues. ### Human: Company XYZ could face legal risks related to data protection and privacy under the Information Technology Act, 2000, and its rules. Mismanagement of biometric data or failure to obtain proper consent could lead to penalties. They may also be subject to the provisions of the Personal Data Protection Bill, depending on its current status and application.
### Human: Summarize the main points of Article 21 of the Indian Constitution. ### Assistant: ### Human: Article 21 of the Indian Constitution provides that no person shall be deprived of their life or personal liberty except according to procedure established by law. It safeguards the rights to life and personal freedom from actions of the government that may not be fair, just, or equitable.
### Human: Identify the key issue in the following legal scenario. ### Assistant: In Mehta v. Kapoor, Mehta, a tenant, sues Kapoor, a landlord, under the Indian Rent Control Act, for failure to provide basic amenities in the rented property. Mehta faced a blackout due to faulty wiring, which Kapoor knew about. ### Human: The key issue in Mehta v. Kapoor is whether the landlord (Kapoor) is liable for the harm to the tenant (Mehta) due to negligence in providing basic amenities, specifically, maintaining the electrical wiring.
### Human: Summarize the main arguments of the following Supreme Court of India judgment. ### Assistant: In Kesavananda Bharati v. State of Kerala, the Supreme Court held that the Parliament could not alter the basic structure of the Constitution. This included fundamental rights that were deemed inviolable. ### Human: In Kesavananda Bharati v. State of Kerala, the Supreme Court ruled that the basic structure of the Constitution, including inviolable fundamental rights, cannot be altered by the Parliament.
### Human: Interpret the meaning of the following provision in the Indian Penal Code. ### Assistant: Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property, is said to commit theft. ### Human: This provision describes theft. If a person intends to dishonestly take movable property from someone without their consent, and acts on this by moving the property, they are committing theft.
### Human: Draft a clause for a non-disclosure agreement under Indian law to protect a company's confidential information. ### Assistant: ### Human: The Recipient shall use the Confidential Information solely for the Purpose and shall not disclose such Confidential Information to any third party without the prior written consent of the Disclosing Party. Any breach of this clause could lead to legal action under the Indian Contract Act, 1872.
### Human: Write an opening statement for a defense attorney in a defamation case under Indian law. ### Assistant: ### Human: Honourable court, my client has been unjustly accused of defamation. However, as the evidence will show, my client's actions were either truthful or represent fair comments made in the public interest. I urge you to remember that, under our law, a statement is not defamatory if it can be proven to be true or an opinion.
### Human: Analyze the potential legal risks in the following business scenario under Indian law. ### Assistant: Company XYZ plans to launch a new service that uses biometric data for user authentication. They want to store this data in their servers but are concerned about privacy issues. ### Human: Company XYZ could face legal risks related to data protection and privacy under the Information Technology Act, 2000, and its rules. Mismanagement of biometric data or failure to obtain proper consent could lead to penalties. They may also be subject to the provisions of the Personal Data Protection Bill, depending on its current status and application.
### Human: Summarize the main points of Article 21 of the Indian Constitution. ### Assistant: ### Human: Article 21 of the Indian Constitution provides that no person shall be deprived of their life or personal liberty except according to procedure established by law. It safeguards the rights to life and personal freedom from actions of the government that may not be fair, just, or equitable.