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<s>[INST] Summarize the judgementCivil Appeals No. 2815 & 2816 of 1980. 110 Appeals by special leave from the Award dated the 3rd September, 1980 of the National Industrial Tribunal at Bombay in Complaint No. NTB 2 and NTB 3 of 1980 arising out of Reference No. NTB 1 of 1979. WITH CIVIL APPEAL NO. 2607 of 1980 Appeal by special leave from the Award dated the 3rd Sept. 1980 passed by the National Industrial Tribunal, Bombay in Complaints Nos. NTB 2 & 3 of 1980 in Reference No. NTB 1 of 1979. AND CIVIL APPEAL NO. 3150 of 1980 Appeal by Special leave from the Award dated 3rd September, 1980 passed by the National Industrial Tribunal, Bombay in Complaints Nos. NTB 2 & 3 of 1980 in Reference No. NTB 1 of 1979. F.S. Nariman R.A. Shroff, H.S. Parihar and Shradul section Shroff, for the Appellant in CAS 2815 16/80, for Respondent No. 2 in CA. 2607/80 & for Respondent No. 1 in C.A. 3150/80. C. N. Murthy and P. P. Mittal for Respondent No. 1 in CA. 2815 16/80. M.K. Ramamurthy, P.S. Khera and S.K. Dawar, for RR 2 70 in CAS. 2815 16/80, for Respondent No. 3 in CA 2607/80 & for Respondent Nos. 3 & 40 67 in CA. 3150/80. K.K. Venugopal, C.N. Murthy and P.P. Mittal 1980 for the Appellants. A.K. Sen, A.K. Gupta, Brij Bhushan, N.P. Mahendra and Miss Renu Gupta, for the Appellants in CA. 3150/80. S.K. Bisaria for RR. 2 4 and 6 39 in CA. 3150/80. The Judgment of the Court was delivered by GUPTA, J. These are four appeals by special leave from an Award of the National Industrial Tribunal, Bombay, made on September 3, 1980 disposing of two complaints under section 33 A of the holding that the employer, 111 Reserve Bank of India, Bombay had changed to the prejudice of the complainants their conditions of service by modifying the existing scheme of promotion during the pendency of a reference before the Tribunal and had thereby contravened the provisions of section 33 (1) (a) of the Act. Civil Appeals 2815 and 2816 of 1980 have been preferred by the Reserve Bank of India, Bombay. In civil appeal 2607 of 1980 the appellants are some of the stenographers employed in the Bombay office of the Reserve Bank of India. The four appellants in civil appeal 3150 of 1980 are also employees of the Reserve Bank of India, Bombay, one of whom is a clerk grade I and the other three are officiating as staff officers grade A. How the appellants in Civil Appeals 2607 and 3150 are affected by the Award will appear from the facts stated below. The facts leading to the making of the complaints under section 33 A are as follows. On June 16, 1979 the Government of India, Ministry of Labour, in exercise of powers conferred by section 7B of the constituted a National Industrial Tribunal with headquarters at Bombay and referred to it for adjudication an industrial dispute existing between the Reserve Bank of India and their class III workmen. The dispute as described in the schedule to the order of reference related to "specific matters pertaining to class III workmen" enumerated in the schedule. The schedule listed 35 matters in all, item No. 12 of which is described as 'Promotion '. On May 13, 1972 appellant Reserve Bank of India, Bombay, had issued Administration Circular No. 8 introducing a revised scheme for promotion of employees as Staff Officers Grade A. This Circular No. 8 prescribed as a condition for promotion passing a test consisting of three papers on the following subjects: noting, drafting, precis & essay writing, (ii) Reserve Bank of India Act, and (iii) functions and working of the Reserve Bank of India. Candidates with less than 15 years ' service in class III cadre at the time of the test and who had not passed in the subjects 'Practice and Law of Banking ' and 'Book keeping and Accounts ' in Part I of the Institute of Bankers Examination were to appear and pass in an extra paper divided into two parts on the aforesaid two subjects. Candidates who had passed in either or both these subjects in part I of the Institute of Bankers Examination were exempted from appearing in the corresponding part or both parts of this paper. The circular further provided that an estimate of the vacancies anticipated to occur in each office during a 'panel year ' i. e. from September 1 to 112 August 31, was to be declared by the Bank in advance and the number of candidates in that office to be called for the test to fill the vacancies in that office was not to exceed twice the number of such vacancies. A candidate who had been unsuccessful in more than one test was to be treated as a repeater and the number of such repeaters sitting for a test would be in addition to the aforesaid number of candidates. An employee in the substantive rank of teller, stenographer grade II, stenographer grade I or personal assistant was eligible to appear in the test under this circular provided he had put in a minimum period of 15 years ' service in class III cadre. A further condition relating to these three types of employees, tellers, stenographers and personal assistants, was that they could be called to appear in the test only if a clerical candidate of the same length of service found a place within twice the number in the combined seniority list. The said three types of employees were required to pass both parts I and II of the Institute of Bankers examination, or if they were graduates, in part I only. Those of them who would pass the test were to be posted on the clerical desk for one year for acquiring experience and thereafter they were to be absorbed in the next list to be prepared on the result of the test succeeding the one in which they had passed. They were to rank in seniority below the juniormost successful candidate in the test in which they qualified. A further requirement was that the stenographers and personal assistants should have worked for at least 5 years as such; this condition was thought necessary because it was possible that some of them may have been employed as typists for some time. Feeling that the aforesaid circular No. 8 adversely affected them, the Stenographers filed a writ petition in the Andhra Pradesh High Court challenging the validity of the circular. The main grievance seems to have been that by the said Circular No. 8 they were placed en bloc below the clerks which made the chances of promotion so far as they were concerned illusory. The Andhra Pradesh High Court dismissed the writ petition with the following observations: ". .the clerks and the stenographers who have passed at the qualifying written examination do not acquire any right to promotion by merely being put in a panel. As observed by the Supreme Court in the case cited in Gangaram vs Union of India, A.I.R. 1970 S.C. 2178, the effect of passing at the qualifying examination is only 113 to remove a hurdle in their way for further promotions to the posts of staff officers, grade II. In the matter of actual promotion there is nothing illegal in the department promoting the clerks as a group in the first instance and postponing the promotions of the stenographers to a later stage. .It is urged on behalf of the petitioners that previous to the new scheme, the stenographers were placed at the top of the clerks en bloc and that they have now been brought to the bottom. This argument is based upon a misconception that the panel creates any rights. Hence nothing turns upon the place fixed in the panel". The High Court however made certain recommendations "to avoid frustration and dissatisfaction among the stenographers". It was suggested that "the Reserve Bank may frame suitable rules for fixing the seniority among the staff officers, grade II, on some rational and equitable principles, i.e., by length of service or marks obtained at the qualifying examination or by adopting a reasonable ratio between the two classes, so that the chances of further promotions for the stenographers may not be illusory". This judgment was delivered on March 5,1973. In the months of March and November, 1973 charters of demand were submitted respectively by the All India Reserve Bank Workers Organisation and the All India Reserve Bank Employees Association. The latter Association is the one which is recognised by the Bank. On January 23, 1976 by Administration Circular No. 5 the Bank modified Circular No. 8 to remedy the alleged adverse effect suffered by the stenographers as a result of Circular No. 8. On June 16, 1979 the order referring to the National Tribunal at Bombay the dispute between the Bank and the class III workmen was made. The All India Reserve Bank Employees Association filed a writ petition in the Calcutta High Court in July 1979 challenging this order of reference. The High Court at Calcutta issued an injunction restraining the National Tribunal from adjudicating on the reference until the writ petition was disposed of. A settlement was thereafter reached between the Bank and the All India Reserve Bank Employees Association and the injunction was vacated. On November 21, 1979 the Bank and the Association applied to the Tribunal jointly for making an award on the basis of the settlement. In the meantime on October, 10, 1979 the impugned Circular No. 6 was issued. The following changes were introduced by Circular 114 No. 6 in the scheme of promotion set out in Circular No. 8 relating to personal assistants, stenographers, tellers and the clerical staff: (1) The eligibility period so far as these three types are concerned was reduced from 15 years to 10 years service. (2) The condition requiring stenographers and personal assistants to put in 5 years service as such was dispensed with. (3) Their period of training on clerical desk was reduced from 1 year to six months. (4) They were to be fitted according to the length of their service in the panel for the year in which they passed the test and not in the next panel as before. (5) Those who are graduates among these three groups, even if they had not passed in all the subjects in part I of Indian Institute of Bankers examination, would be eligible for exemption from appearing in the additional paper on 'Practice and Law of Banking ' and 'Book keeping and accounts ' if they had passed in these two subjects in the said examination. (6) This benefit of exemption which was available to the clerical staff of 15 years ' standing previously was extended to those of them who had put in only 10 years service. The two complaints (complaint Nos. 2 and 3 of 1980) on which the impugned award has been made were filed respectively on July 22, 1980 and August 1, 1980. The complainants who were clerks grade I had passed the test in the panel year 1978 79 and were empanelled for promotion to the post of staff officer grade A. The grievance made in the two complaints is that the result of the changes introduced in the promotional scheme by Circular No. 6 relaxing for the stenographers and personal assistants the conditions they were required to satisfy to be able to sit for the test and permitting them to be fitted according to the length of their service in the panel for the year in which they had passed the test, was that many who could not have been considered for promotion in preference to the complainants had circular No. 8 been in force, would 115 now be entitled to a higher preference. According to the complainants the alterations made during the pendency of the reference before the National Tribunal amounted to changing their conditions of service to their prejudice in violation of section 33 (1) (a) of the . The complainants in complaint No. 2 of 1980 stated that if the alterations introduced by Circular No. 6 were allowed to continue "the chances of promotion would become bleak for them '; complainants in complaint No. 3 of 1980 also expressed a similar apprehension that as a result of the changes introduced "their chances of promotion would recede further and further". The appellants in civil appeal 2607 of 1980 who are stenographers acquired eligibility to appear in the qualifying test because of the modifications introduced in the existing scheme by Circular No. 6. All the four appellants in civil appeal 3150 of 1980 are from clerical cadre, three of whom are officiating as staff officers grade A; they are also beneficiaries of the relaxations made in the existing scheme by circular No. 6. The appellants in both these appeals are obviously affected by the Award allowing the complaints and declaring circular No. 6 as invalid. Section 33 (1) (a) prohibits the employer during the pendency of a proceeding in respect of an industrial dispute before a Labour Court or Tribunal or National Tribunal from altering to the prejudice of the workmen concerned in the dispute their existing conditions of service. Sub section (2) of section 33, however, permits the employer to alter the conditions of service in regard to any matter not connected with the dispute in accordance with the standing orders applicable to the workman concerned or in accordance with the terms of the contract between the employer and the workman. The right given to the employer under sub section (2) is subject to the condition laid down in sub section (3) of section 33 that the right can be exercised only with the express permission in writing of the authority before which the proceeding is pending. Section 33 A of the Act provides that where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention may make complaint in writing to such Labour Court, Tribunal or National Tribunal, and on receipt of such complaint the Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to it or pending before it in accordance with the provisions of the Act and submit its award to the appropriate government. Section 31 (1) of the Act provides for penalty for contravention of the provisions of section 33; an 116 employer found guilty of such contravention is punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both. In this case circular No. 6 was not introduced with the permission of the National Tribunal, Bombay, before which the reference was pending; to determine whether thereby the provisions of section 33 have been contravened, the question that requires to be answered is whether the alterations introduced by Circular No. 6 are connected with the dispute pending in reference before the National Tribunal. This again leads to the question, what was the dispute that was referred to the National Tribunal for adjudication? According to the complainants their promotional prospects were adversely affected by the impugned circular. Item 12 of the schedule annexed to the order of reference is described as 'Promotion '. Demand No. 19 in the charter of demands presented by the All India Reserve Bank Employees Association mentions 'Promotional avenues ' but, as the National Tribunal itself noticed, the matters specified under the head 'promotional avenues ' relate to the creation of more promotional posts and the upgrading of certain posts. Demand No. 19 does not thus relate to the promotional scheme in question. The impugned award also refers to demand No. 27 of the charter of demands submitted by the All India Reserve Bank Workers organisation. Demand No. 27 is described as 'Promotional Policy ' and all that is said in the charter of demands under this head is that the matter "should be discussed and finalised on the basis of pre requisites of promotional policy submitted in 1969". It is not therefore clear how demand No. 27 could have a connection with the promotional scheme set out in circular No. 6 issued in 1979. The award does not refer to the statements of claim filed on behalf of the workmen; it is likely that because of the order of injunction issued by the Calcutta High Court to which we have earlier referred, the unions representing the workmen were not able to file their statements of claim before the National Tribunal disposed of the complaints under section 33A. The Tribunal however held: " contemplates reference in wider terms than the actual item in dispute. Section 10 (IA) of the which provides for the appointment of the National Tribunal shows that the Central Government could form its opinion not only on the existing dispute but also on the apprehended dispute and the order of reference can cover not only the dispute but any matter appearing to be connected with or relevant to the dispute. In view of it, it cannot be said that when the item 'Promotion ' has been referred to 117 the Tribunal, it has the limitation of remaining in the frame work of the demand. the Tribunal has the jurisdiction to decide on the natural meaning of the words used in the item of reference. The item seems to have been deliberately stated in terms. it looks to be referring to the process involving promotions." Having said so the Tribunal added: "The extent of such process will have to be carefully defined because there is no dispute with the axiomatic principle that promotion is a matter in the discretion of the employer". It is difficult to follow the steps of reasoning in the extract from the award quoted above; it is also not clear how the view expressed therein helps in ascertaining what was the dispute referred to the Tribunal for adjudication. No one can deny that under section 10 (IA) the Central Government could refer to the National Tribunal an existing or an apprehended dispute; the order or reference in this case however shows that it was not an apprehended dispute but an industrial dispute that "exists between the employers in relation to the Reserve Bank of India and their class III workmen in respect of the matters specified in the schedule" annexed to the order which was referred to the Tribunal for adjudication. As section 10 (IA) expressly says, any matter appearing to be connected or relevant to the existing or apprehended dispute can also be referred to the National Tribunal for adjudication, but obviously unless it is determined what the dispute was that has been referred for adjudication, it is not possible to say whether a particular matter is connected with it. The Tribunal thought it unjust to restrict the meaning of the word 'promotion ' to what was suggested by the charters of demand and decided to give it its "natural meaning" which according to the Tribunal includes "the process involving promotion". The question however remains how did the Tribunal satisfy itself that when by the order of reference a specific matter, namely, 'promotion ' was referred to it for adjudication, it was implied that the word should be given a "natural meaning" in the sense in which the Tribunal understood it. We do not think it reasonable to suppose that the order of reference required the Tribunal to adjudicate on all possible matters relating to promotion. We therefore accept the contention of the appellants that the Tribunal should have defined the area of the dispute referred to it for adjudication before proceeding to consider whether the promotional scheme set out in Circular No. 6 could be said to be connected with that dispute. 118 Having reached this conclusion we should have sent the matter back to the National Tribunal for ascertaining the scope of the dispute referred to it for adjudication, if the assumption were correct that the alterations in the promotional scheme introduced by Circular No. 6 amounted to changing the conditions of service of the complainants; if not, remitting the matter to the Tribunal will be unnecessary. What Circular No. 6 did was to relax for stenographers and personal assistants the conditions they had to satisfy to be able to sit for the test. If they passed the test, they would get into the penal along with employees belonging to the clerical cadre who also had passed the test. Vacancies in the post of staff officer Grade A are filled by recruiting employees from the panel. The panel, it appears from the award, is a permanent one. How those who come out successful in the test are to be fitted in the panel has been stated earlier. The panel is made up of employees belonging to different cadres. It is difficult to see how alteration of the conditions of eligibility governing employees belonging to a particular cadre can amount to changing the conditions of service of employees who belonged to another cadre, assuming for the present that the said conditions were conditions of service. The changes introduced in respect of the stenographers and personal assistants may have an impact on the promotional prospects of employees from another cadre who are already in the panel or even of those who were expecting to be included in the panel, but it is not possible to agree that this would amount to changing their conditions of service. It is difficult to think of the conditions of service of an employee as including an implied right to prevent the employer from altering the conditions of service of other employees. In a given case such alteration may be inequitable, and a way may be found in the to redress the grievance of the employees affected thereby, but in this case the question is whether if amount to altering the condition of service of the complainants. In Reserve Bank of India vs N.C. Paliwal this Court upheld the validity of the combined seniority scheme introduced by the Reserve Bank for the clerical staff. The first paragraph of the head note to the report summarizes the facts on which challenge to the scheme was based: "At every centre of the Reserve Bank of India there were five departments, the General Department and four Specialised Departments. There was a separate 119 seniority list for the employees in each Department at each centre and confirmation and promotion of employees was only in the vacancies arising within their Department at each centre. There were two grades of clerks in each Department, namely, Grade I and Grade II. The pay scales of Grade I and Grade II clerks in all the departments were the same and their conditions of service were also identical. There was automatic promotion from Grade II to Grade I and when a clerk from Grade II was promoted to officiate in Grade I, he got an additional officiating allowance of Rs. 25/ per month. There were also several categories of non clerical posts in the General as well as Specialised Departments, and their pay scale was the same as that of Grade II clerks. In view of expanding activities in the Specialised Departments, there were greater opportunities for confirmation and promotion for employees in the Specialised Departments than in the General Department. This gave rise to dissatisfaction amongst employees in the General Department and they claimed equal opportunities by having a combined seniority list for all the clerks for confirmation and promotion. The Reserve Bank, sought to justify the separate seniority lists on the ground that the work in each department was of a special nature and inter transferability was undesirable and hard to achieve. As a result of the recommendation of the National Tribunal. however, the Reserve Bank introduced the Optee Scheme of 1965 as a first step towards equalization of opportunities. Under the scheme, the option to go over to the Specialised Departments was confined to confirmed Grade II clerks and officiating Grade I clerks in the General Department. If he exercised the option, he was eligible to be selected. If he was selected. he would be entitled to be absorbed only as Grade II clerk in one of the Specialised Departments with the result that if he was an officiating Grade I clerk in the General Department at the time of the exercise of the option, he would lose the benefit of officiation in Grade I in the General Department as also the monetary benefit of Rs. 25/ . His seniority in the cadre of Grade II clerks in the Specialised Department in which he was absorbed would be deter 120 mined on the basis of his length of service calculated from the date of his recruitment if he was a graduate when he joined service, or from the date of his graduation if he became a graduate whilst in service. It was argued in Paliwal 's case that the combined list was invalid because it discriminated against the petitioners vis a vis other grade II clerks who had opted under the optee Scheme of 1965. This Court held: "The contention of the petitioners was that some of the Grade II clerks who had opted under the optee Scheme of 1965 were promoted as Grade I Clerks, while the petitioners continued as Grade II Clerks and before their turn for promotion could arrive, the Combined Seniority Scheme was brought into force and that prejudicially affected their promotional opportunities and thus brought about unjust discrimination between persons belonging to the same class. This contention has no force and must be rejected. We have already discussed and shown that it was competent to the Reserve Bank to introduce the Combined Seniority Scheme for the purpose of integrating the clerical staff in all the departments and the Reserve Bank was not bound to wait until all the transferee Grade II Clerks under the optee Scheme of 1965 were promoted as Grade I Clerks in their respective Specialised Departments. There was no such assurance given by the Reserve Bank when it introduced the optee Scheme of 1965. What it did was merely to equalise the opportunities of Grade II Clerks in the General Departments with those of Grade II Clerks in the Specialised Departments. The Reserve Bank did not undertake that it will not take any steps for bringing about total integration of the Clerical services until all the transferee Grade II Clerks were promoted. The Reserve Bank was entitled to introduce the Combined Seniority Scheme at any time it thought fit and the validity of the Combined Seniority Scheme cannot be assailed on the ground that it was introduced at a time when some of the transferee Grade II Clerks still remained to be promoted and was discriminatory 121 against them. It may be that some transferee Grade II Clerks had already obtained promotion as Grade I Clerks by the time the Combined Seniority Scheme was introduced, while others like the petitioners had not. But that cannot be helped. It is all part of the incidence of service and in law, no grievance can be made against it." These observations in Paliwal 's case are equally applicable to the case before us. It was competent for the Bank to introduce a combined promotional scheme for the clerical staff, stenographers, and personal assistants and the Bank was not bound to wait until all employees belonging to the clerical cadre whose names were already in the panel when circular No. 6 was introduced had been promoted as staff officers Grade A. There was no such assurance given by the Bank when it introduced circular No. 8 on which the complainants rely. The Bank did not undertake that it would not take any step to change the conditions the stenographers and the personal assistants were required to satisfy to be able to appear in the test until all the clerks already empanelled were promoted. Circular No. 6 cannot therefore be assailed on the ground that it was introduced when some employees belonging to the clerical grade whose names were already in the panel remained to be promoted. That cannot be helped, and, as observed in Paliwal 's case, "it is all part of the incidence of service and in law no grievance can be made against it". Being in the panel in any particular year does not ensure a fixed place in the panel for an employee until he is promoted. It may be recalled that in 1964 and again by circular No. 8 in 1972 the stenographers conditions of service were altered to their prejudice. The right the complainants now claim is based on the change in the conditions of service of the stenographers made to their detriment earlier. The grievance of the complainants really relates to the changes affecting their chances of promotion. We have earlier quoted from the charters of demand to show that the complainants themselves looked upon the alterations made by circular No. 6 as affecting their "chances of promotion". It is well settled that a rule which affects the promotion of a person relates to his condition of service but this is not so if what is affected is a chance of 122 promotion only. This Court in Mohd. Shujat Ali and others etc. vs Union of India & Ors. etc. held: "But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion the latter would certainly not be a condition of service. that though a right to be considered for promotion is a condition of service, mere chances of promotion are not." In Shujat Ali 's case the respondents went down in seniority and it was urged that this affected their chances of promotion. In Shujat Ali reference was made to earlier decision of this Court, State of Mysore vs G.B. Purohit where also it was held that though a right to be considered for promotion is a condition of service, mere chances of promotion are not and that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service. The facts of Purohit 's case and what was decided in that case have been summarized in Shujat Ali 's case as follows: "What happened in State of Mysore vs G.B. Purohit was that the districtwise seniority of Sanitary Inspectors was changed to Statewise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected. This contention was negatived and Wanchoo J., as he then was, speaking on behalf of this Court observed: It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. " The fact that as a result of the changes made by circular No. 6 the complainants lost a few places in the panel affects their chances of promotion but not the right to be considered for promotion. 123 that being so, it cannot be said that the alterations made by circular No. 6 amount to changing the conditions of service of the complainants; the grievance made by the complainants does not therefore appear to have any basis. The appeals are accordingly allowed and the complaints dismissed, in the circumstances of the case the parties will bear their own costs. V.D.K. Appeals allowed. [/INST]The Aviation Research Centre was a temporary and ad hoc organisation set up in 1962 for carrying out the work of collecting intelligence by the use of highly sophisticated techniques. For manning this Task Force, persons with experience in the specialised nature of the work were taken on deputation basis from different sources, such as the Intelligence Bureau, the Departments of Defence Science, Wireless Planning 'and Coordination, the Directorate General of Civil Aviation and the Police Cadres of different States and they were grouped together to form the ARC. To supplement the man power some persons were also directly recruited to the organisation on a purely ad hoc basis. The ARC organisation was initially treated as an extension of the Intelligence Bureau. In February 1965, it was brought under the control of the Director General of Security. The administrative control over the organisation which was originally vested in the Ministry of External Affairs and later with the Prime Minister 's Secretariat was transferred to the Cabinet Secretariat in 1965. The sanction for continuance of the temporary organisation was accorded by the Government from year to year till the year 1971 when a decision was taken by the Government to make the ARC a permanent Department. The finalisation of the principles to be adopted for constitution of the new permanent Department took considerable time and it was only on April 26, 1976 that the President of India promulgated the Aviation Research Centre (Technical) Service Rules ]976 providing for tho constitution of a new service the Aviation Research Centre (Technical) Service. 876 Rule 6 of the said Rules dealt with the initial constitution of the new ARC permanent Service and provided that all persons holding, as on the appoint ed day, any one of the categories of posts specified in rule 4, whether in a permanent or temporary or officiating capacity or on deputation basis, shall be eligible for appointment to the service at the initial constitution thereof. Rule 7 laid down the principles to be applied for fixation, of seniority of those appointed to the various posts at the time of its initial constitution, while Rule 8 dealt with the filling up of vacancies in various grades remaining unfilled immediately after the initial constitution of the service and all vacancies that may subsequently arise in the Department. Rule 12 provided that in regard to matters not specifically covered by the rules or by order issued by the Government, the members of the service shall be governed by general rules, regulations and orders applicable to persons belonging to the corresponding Central Civil Service. The petitioners, who were persons recruited directly to the ARC organisation during the period between 1965 and 1971 challenged in their writ petition, the validity of the promotion given to respondent nos. 8 to 67 from the year 1968 onwards officers whose services were borrowed on deputation. They contended that the deputationists were occupying the posts in the Department only on an ad hoc basis and such ad hoc appointees who were having the benefit of lien in their parent departments and were getting promotions in those departments had no claim whatever to seniority or promotions in the borrowing department viz. A.R.C. They also assailed the Aviation Research Centre (Technical) Service Rules as conferring arbitrary powers on the controlling authority to equate the ad hoc service rendered by the deputationists in the ARC with the regular service rendered by persons like the petitioners who had been directly recruited to the Department on a regular basis which resulted in permanently blocking all the future chances of the petitioners in matters of promotion and other service benefits. The Rules were highly arbitrary and infringed Articles 14 and 16 of the Constitution since it was based on illegal treatment of unequals as equals by equating persons functioning on a mere ad hoc basis with those holding posts in the organisation on a regular basis. Rule 6(2) conferred arbitrary and unfettered powers on the Screening Committee and suffered from the vice of excessive delegation. Rule 7 in so far as it empowered the Department to reckon the seniority of the deputationists by giving them the benefit of the ad hoc service rendered by them in the ARC as well as the prior service put in by them in their parent departments was arbitrary. Rule 8(1) enabled the deputationists to consolidate the illegal advantage gained by them at the initial constitution by further promotions/appointments to still higher posts in the ARC, and by specifying the method of recruitment to the various posts in the Service and fixing a quota as between the vacancies to be filled up by promotions and those to be filled up by direct recruitment/deputation or re employment in Schedule II of the rules, the deputationists have been treated on a par with regular departmental personnel and this involved a clear violation of Articles 14 and 16 of the Constitution. It was further contended that the position of the deputationists being that of persons permanently transferred from the parent departments to the ARC, under Article 26 of the Civil Service Regulations, such persons appointed by transfer shall be ranked below all the direct recruits as well as the promotees already functioning in the Department and the seniority list dated November 6, 1978 having been drawn up in contravention of the aforesaid principle laid down in Article 26, the said list should be declared to be illegal and void. 877 The case of the petitioners was resisted by respondent No. 1, who contended that the appointments made by direct recruitment were merely temporary and ad hoc in character. While the deputationists were persons with rich experience and long years of service, the direct recruits were inexperienced and new to the job. The delay in promulgation of the rules was due to the fact that because of the special features of the Department and the sensitive nature of the functions to be discharged by it, various circumstances and factors had to be taken into account before the draft rules were finally cleared by the several Ministries concerned. There is no principle of law prohibiting the absorption in a newly constituted Department of persons who are functioning on deputation in a temporary organisation which was later constituted into a permanent service. The Service Rules extend equal treatment to all categories of employees who were in position on the crucial date viz., April 26, 1976 in the matter of absorption as well as determination of seniority at the initial constitution, irrespective of whether they were direct recruits or deputationists. The Screening Committee prepared the seniority List of the persons found suitable for absorption in accordance with the provisions contained in Rule 6(2) read with Rule 7. The Rules cannot be said to be arbitrary or violative of the principles of equality enshrined in Articles 14 and 16. Dismissing the writ petition, ^ HELD: l(i) A party seeking the intervention and aid of this Court under Article 32 of the Constitution for enforcement of his fundamental rights, should exercise due diligence and approach this Court within a reasonable time after the cause of action arises and if there has been undue delay or laches on his part, this Court has the undoubted discretion to deny him relief. [900 H 901 A] (ii) The challenge raised by the petitioners against the validity of the promotions given to respondent nos. 8 to 67 during the period between 1968 and 1975 is liable to be rejected on the preliminary ground that it is most highly belated. There is no valid explanation from the petitioners as to why they did not approach this Court within a reasonable time after those promotions were made. This writ petition has been filed only in the year 1979 and after such a long lapse of time the petitioners cannot be permitted to assail before this Court the promotions that were effected during the years 1968 to ]975. [900 F G] (iii) There is also no satisfactory explanation from the petitioners as to why no action at all was taken to challenge the validity of the promotions given to respondents nos. 8 to 67 for a period of nearly seven years subsequent to the judgment of the High Court in 1972. [901 F] Rabindra Nath Bose and ors. vs Union of India and ors ; referred to. So long as there was no regular cadre and hierarchy of posts and no rules laying down the mode of appointment/promotion to those posts, it was perfectly open to the Government to fill up the posts by securing the services of persons who in its opinion were by virtu. Of their experience and qualifications, best suited for being on trusted with the specialised kinds of functions attached to the various posts. [902 E] 878 In the instant case the petitioners had been appointed as ACIOs II only on a temporary and ad hoc basis. Such appointments did not confer on them any rights even to the posts of DFOs. It had also been categorically made clear to them in the letters containing the offers of appointment that such appointments will not confer on them any right to be permanently absorbed in the post if and when it was made permanent. There was also not even any executive order or administrative instruction declaring the post of DFO as the feeder category for appointment to the higher posts. The petitioners, therefore, had no legal right or claim for being appointed by promotion to the higher posts of ACIO I (FO), ATO, etc. [902 F G] 3(i) When a new service is proposed to be constituted by the Government, it is fully within the competence of the Government to decide as a matter of policy the sources from which the personnel required for manning the service are to be drawn. [903 F] (ii) It is in the exercise of the said power, that provision has been made by sub rule (1) of Rule 6, that all the persons who, as on the appointed day, were already working in the ARC organisation on a temporary and ad hoc basis and had thereby acquired valuable experience in the specialised kinds of work would be eligible for appointment to the new service at the stage of its initial constitution. Equal opportunity was given to all to get permanently appointed in the new ARC (Technical) Service subject to their being found fit by the Screening Committee under sub rule (2) of Rule 6. The provision cannot be said to be violative of Articles 14 and 16. [903 G, 904 A] 4(i) The provision for Constitution of a Screening Committee for adjudging the suitability of the persons in the field of eligibility for permanent appointment to the service is absolutely reasonable. [904 D] (ii) The power conferred on the controlling authority to issue general or special instructions to a Screening Committee is really in the nature of a safeguard for ensuring that the rules relating to the initial constitution of the service were applied fairly and justly. The controlling authority is the "Secretary Department of Cabinet Affairs". When supervisory powers are entrusted to such a high and responsible official, it is reasonable to assume that they will be exercised fairly and judiciously and not arbitrarily. The contention that the provisions of sub rule (2) of Rule 6 suffer from the vice of arbitrariness or excessive delegation therefore, fails. [904 E] 5(i) When recruitment to the new Service was being made from two different classes of sources, it was necessary for the Government to evolve a fair and reasonable principle for regulating the inter se seniority of the personnel appointed to a new Department. What has been done under Rule 6 is to give credit to the full length of continuous service put in by all the appointees in the concerned grade, whether such service was rendered in the temporary ARC organisation or in other departments of the Government. The criterion applied, namely the quantum of previous experience possessed by the appointees measured in terms of the length of continuous service put in by them in the concerned or equivalent grade is perfectly relevant to the purpose underlying the framing of tho rule. The principle laid down in rule 6(2) for determination of 879 inter se seniority was quite reasonable and fair and did not involve any arbitrary or unfair discrimination against the petitioners. [905 C E] In the instant case while the petitioners had no substantive lien in respect of or title to any post in any department, the deputationists were having a lien on the posts held by them in their parent departments. The petitioners, therefore, formed a different class consisting of persons who were virtually being recruited for the first time into regular Government service, as distinct from respondents 8 to 67 who had been holding posts in their parent departments for several years on regular basis who formed a separate class. [905 B] 6. The provisions contained in Rule 7 that the seniority of persons appointed on permanent basis in each grade at the initial constitution of the service shall be in the order in which they are shown in the relevant list prepared by the Screening Committee in accordance with the provisions of Rule 6 was upheld as perfectly valid and constitutional. [905 F G] 7. At the time of constituting a new service and laying down the mode of appointment to the various posts it is fully within the powers of the President of India to prescribe the methods by which vacancies arising in the different categories of posts in the department should be filled up. In the instant case this is precisely what has been done by Rule 8 and the provisions of Schedule II. [906 B] 8. The draft rules were prepared by the Directorate of ARC and submitted to the Government in 1972 itself but on a detailed scrutiny being made it was found that the said draft required substantial modification in several respects. Revised rules were, therefore, drafted and submitted to the Government late in 1974. The time taken in finalising the rules was due to the fact that intensive examination of all the relevant aspects had to be done by the various concerned Ministries before the draft rules could be finally approved and issued. The plea of malafides put forward by the petitioners is not established. [906 H 907 B] 9. Article 26(7)(iii) of the Civil Services Regulations applies to cases "where a person is appointed by transfer in accordance with a provision in the recruitment rules providing for such transfer in the event of non availability of candidates by direct recruitment or promotion". The absorption of the erstwhile deputationists in the ARC (Technical) Service at the time of its initial constitution was not by such transfer. The provisions of Article 26(7)(iii) are, therefore not attracted. [909 F G] 10. The provisions of Rule 6(3) and Rule 7 will be strictly conformed, to both in letter as well as in spirit, by respondents nos. 1 to 7. In case it is found on examination that the ranking assigned to any of the petitioners in the impugned seniority list dated November 6, 1978 is not consistent with the principles laid down in the aforementioned rule, necessary action should be immediately taken to rectify the said defect. If the promotional chances of any of the petitioners have been adversely affected by reason of any defect in the seniority list, such promotions should also be reviewed after following the requisite procedure. The petitioners may bring to the notice of the first respondent specific instances, if any, of deviation from the principles enunciated in Rule 6(3) and Rule 7 resulting in incorrect assignment of seniority and rank by sub 880 mitting representations. Such representations, if received, will be duly examined and appropriate orders passed thereon as expeditiously as possible. [910 F 911 A] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 740 of 1978. From the Judgment and Decree dated 18.3.1975 of the Andhra Pradesh High Court in C.C.C.A. No. 106 of 1969. G.A. Shah, V.J. Francis and N.M. Popli for the Appellant. S.B. Bhasme, P.K. Pillai and Dilip Pillai for the Respondents. The Judgment of the Court was delivered by SAWANT, J. Although the leave granted by this Court is limited to the question whether the plaintiff is entitled to an amount of Rs.75,000 which according to him he had actually advanced and the respondents had received for the purpose of prosecuting their litigation, and, therefore, the issue to be answered lies within a narrow 331 compass, it is necessary to state the relevant facts briefly to understand correctly the significance of the question to be answered. Nawab Salar Jung III, a celebrity of the erstwhile State of Hyderabad expired on March 2, 1949 leaving behind him no issue but a vast estate. As was expected, several persons came forward claiming to be his heirs, and among them were Sajjid Yar Jung and Turab Yar Jung who claimed to be his first cousins. The Nizam by a notification of May 9, 1949, appointed a Committee to administer the estate of the late Nawab Salar Jung. On the merger of the Hyderabad State, the Central Government by the , continued the Committee and also provided that no suit or other legal proceeding for the enforcement of any right or remedy in respect of any asset, shall be instituted in any court by any person other than the Committee except with the previous consent of the Central Government. In the meanwhile, on May 31, 1949, the Nizam had already appointed a Commission to enquire into the question of succession to the estate, and one of the questions referred to the Commission was whether the Jagir of the late Nawab Salar Jung escheated to the Government and another was the ascertainment of his heirs. The Commission was unable to proceed with the inquiry as some of the claimants filed a writ petition in the High Court of Andhra Pradesh challenging the jurisdiction of the Commission to enquire into the question of succession. The High Court, by its decision of September 23, 1952 held that the Commission was not the proper forum for determining the question of succession and directed that the management of the estate should remain with the Committee until the question was settled by a Civil Court. The question was ultimately settled by compromise between the various claimants including the Government. The compromise was incorporated in a decree dated March 5, 1959 passed in a suit being Suit No. O.S. 13/58 which was filed by some of the claimants. The present proceedings are an offshoot of the said suit. Sajjid Yar Jung who claimed to be one of the first cousins of the late Nawab Salar Jung did not have the wherewithal to establish his claim to a share in the estate. He approached the plaintiff who was a businessman of Bombay for financial help to enable him to establish his claim. According to the plaintiff, he agreed to do so and Sajjid Yar Jung agreed to return all amounts to be advanced to him from time to time and also to give the plaintiff one anna share in the amount that 332 would be received by him from the estate. The agreement was executed in writing on June 27, 1952 which is the subject matter of the present proceedings. Pursuant to this agreement Sajjid Yar Jung and his agents drew large amounts from the plaintiff from time to time, totalling to about Rs.75,000. Sajjid Yar Jung expired before the plaintiff received his share of the amount as per the agreement but after Sajjid Yar Jung successfully established his claim to the share in the estate. According to the plaintiff, the amount due to Saijid Yar Jung from the estate was about Rs.60 lakhs and hence he claimed Rs.3 lakhs as his share (calculated at one anna in a rupee) in addition to the return of the sums advanced by him which as stated above was Rs.75,000. The plaintiff, therefore, filed the present suit against the heirs of Sajjid Yar Jung for accounts and for administration of his estate and for distribution of the amount among the plaintiff and the defendants. He also joined the receiver of the estate of Nawab Salar Jung Bahadur as one of the defendants to the suit. The heirs of the late Nawab Sajjid Yar Jung (hereinafter referred to as "Nawab") contested the suit and denied that the plaintiff had advanced any amounts to the Nawab. They also raised other contentions including the contentions that the suit was barred by limitation and that the agreement of June 27, 1952 was unenforceable in law as it was in the nature of a champerty deal which was opposed to public policy and forbidden by law. The City Civil Court where the suit was filed found that the agreement was genuine, that it was admissible in evidence, that the amounts were advanced by the plaintiff to the Nawab and that the suit was not barred by limitation. However, the Court found that the agreement was opposed to public policy as the object of the agreement was that the plaintiff should wield his influence with Central and State Ministers to have the Nawab recognised as the heir to the estate in return for his being given one anna share in the amount to be received by the Nawab. The Court, therefore, held that the agreement in question was not enforceable. The Court also held that even the amounts actually advanced by the plaintiff and received by the Nawab could not be recovered by the plaintiff. Accordingly, the Court dismissed the suit with costs. The plaintiff preferred an appeal to the High Court. The Division Bench of the High Court held that the appeal had abated against all the respondents on account of the failure of the plaintiff appellant to bring on record the heirs of one of the respondents, viz., Askar Nawab Jung who had died pending the appeal. On 333 merits, the Bench also held that the agreement was against the public policy. The Court further held that the agreement was one whole agreement and hence the plaintiff was not entitled to recover even the amount of Rs.75,000 which was actually advanced by him to the Nawab for prosecuting the litigation. It is this decision which is challenged before us. As stated earlier, leave has been granted only in respect of the said amount of Rs.75,000 and, therefore, we are concerned in the present appeal only with the question as to whether the conclusion arrived at by the High Court, i.e., that the agreement is opposed to public policy and the actual advance of Rs.75,000 was a part of the whole agreement and was, therefore, also tainted by the vice of being contrary to public policy is correct. That the amount of Rs.75,000 was advanced by the plaintiff to the Nawab for prosecuting his claim as a sharer in the estate, is not disputed. In fact, the Nawab had to approach the plaintiff and had to enter into the agreement in question for the express purpose of successfully prosecuting his claim. The plaintiff cannot also contend that he had agreed to and did advance the said amount of Rs.75,000 only because he wanted and expected the Nawab to be successful in the prosecution of his claim. The advance was not a friendly loan or without consideration. The agreement itself stipulated that on the successful establishment of the claim, the Nawab would not only return the said advance but would also pay to the plaintiff consideration for the said advance. That consideration was agreed to be at the rate of one anna in a rupee. It is, therefore, apparent on the face of the record that the advance and the share in the estate, were a part of the same contract one as a consideration for the other. The two stand together and none can stand without the other. Hence, I am not impressed by the contention advanced by Shri Shah for the appellant that the amount of Rs.75,000 which was advanced by the appellant can be separated from the other agreement or could be treated differently. I am in agreement with the High Court that the agreement has to be treated as a whole and the two parts, viz., the advance and the consideration for the same cannot be separated from each other. The next question is whether the advance in question was opposed to public policy. On this question, Shri Shah took us through the law on the subject, and contended that both the City Civil Court as well as the High Court have created a new head of public policy to declare the agreement as void, although according to the relevant 334 statutory Provisions as well as the decisions of the Court, the agreement is not void. In the first instance, he referred us to the provisions of Sections 23, 65, 69, 70 and Part (ii) of Section 73 of the Indian Contract Act. Section 23 states that the consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, would defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. He then pointed out to us that the specific rule of English law against maintenance and champerty have not been adopted in India and a champertous agreement is not per se void in this country. He contended that before a champertous agreement is held to be void, it must be shown that it is against public policy or against justice, equity and good conscience. He contended in this connection that the Nawab admittedly did not have sufficient finance to prosecute his claim though, he had a valid claim as shown by the result of the litigation in that behalf. The plaintiff, therefore, did not do anything wrong in advancing the amount in question to him to enable him to establish his claim successfully since the Nawab could not have repaid the amount unless he got a share in the estate. It was a legitimate exercise to reduce the agreement to writing and to stipulate therein that the amount should be repaid along with a share in the estate when the Nawab 's claim was established. The share in the estate being only one anna in a rupee could not also be said to be on the high side and conscionable. The High Court has given a finding in that behalf in favour of the appellant. The High Court has, however, held against the appellant only on the ground that the agreement was against public policy. He strenuously urged that if the champertous nature of the agreement is ignored which it is legitimate to do so in this country, there is no other ground of public policy on which the agreement can be struck down. In this connection, he referred us to the decision of this Court in the matter of Mr. 'G ', a Senior Advocate of the Supreme Court, where it is reiterated that a champertous contract would be legally unobjectionable if no lawyer was involved and that the rigid English rules of Champerty and Maintenance do not apply in India. In that case, he pointed out to us that the agreement was held unenforceable because it was agreement between a lawyer and his client and it amounted to professional misconduct. However, this Court has also observed there that if such an agreement had been 335 between a third party "it would have been legally enforceable and good. It may even be that it is good in law and enforceable as it stands though we do not so decide because the question does not arise; but that was argued and for the sake of argument even that can be conceded. It follows that there is nothing morally wrong, nothing to shock the conscience, nothing against public policy and public morals in such a transaction per se, that is to say, when a legal practitioner is not concerned. But that is not the question we have to consider. However much these agreements may be open to other men what we have to decide is whether they are permissible under the rigid rules of conduct enjoyed by the members of a very close professional preserve so that their integrity, dignity and honour may be placed above the breath of scandal". His second leg of the argument rested on the other provisions of the Indian Contract Act to which I have made reference above. He contended that even assuming that it was an agreement to receive consideration a share in the claim that was to be established by the Nawab, it was not against public policy. He contended that the amount in question was admittedly advanced and an advantage of it was taken by the Nawab to establish his claim. He had, therefore, to return the same to the appellant. In this connection, he referred to us to the other provisions of the Indian Contract Act to which I have made a reference earlier. Section 65 states that when an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract, is bound to restore it, or to make compensation for it, to the person from whom he received it. Section 69 states that a person who is interested in the payment of moneys which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other. Section 70 declares that where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit therefore, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered. Part (ii) of Section 73 states that when an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it, is entitled to receive the same compensation from the party in default as if such person had contracted to discharge it and had broken his contract. Shri Shah also referred us to the provisions of Section 84 of the which reads as follows: 336 "84. Where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor. Relying on these statutory provisions as well as the judicial decisions, he contended firstly that assuming that the agreement was a champertous one, it was neither immoral nor against public policy, and secondly even de hors the agreement, the appellant is entitled to the said advance of Rs.75,000 under Section 70 of the Indian Contract Act. The High Court referred to the evidence on record in appeal which had an intimate bearing on the nature and the purpose of the agreement in question and came to the following conclusions. The Court held that the plaintiff appellant was approached by the Nawab because being a businessman of eminence, he was highly influencial. He had an access to the ministers and other worthies in the Government. He was in a position to secure to the Nawab his claim by wielding his influence. The Nawab knew about it and the plaintiff was also confident about it. It 'was immaterial that those whom he had approached were men of high repute and great integrity of character. The fact that because of his accessibility he could get things done through them or could make use of his other standing with them to deliver goods to the Nawab, was enough to taint the entire agreement with the vice of introducing corruption in public life. The High Court also found that the advance which was made was in the nature of an investment to share the booty. There was no reason for the plaintiff who was a total stranger to the Nawab to undertake the financing in question which was in those days on a considerably high scale. No person who was not confident of delivering the goods would have embarked on financing on such a liberal scale. The plaintiff admittedly was a businessman who knew the value of each pie he was spending. He was doing it as a fruitful investment with sure returns. That is evident from the terms of the contract themselves since both the advance and the consideration for which the advances were made form part of one integral contract. On these facts which are on record, the High Court came to the conclusion that the parties had entered into the agreement in question with the avowed purpose that the plaintiff would use his then prevailing influence with the worthies in the 337 Government to secure the gains for the Nawab. The Court On this evidence came to the conclusion that the agreement was nothing but one obviously made to lend services as a "go between" or a "carrier" for commission. This being so, it was against public interest and detrimental to the health of body politic. The High Court further repelled the contention that either the City Civil Court or it was evolving a new head of public policy by referring to a decision of this Court in Ghurelal Parakh vs Mahadeodas Maiya & Ors., AIR 1959 SC 781=(1959) Suppl. 2 SCR 406 and the decisions of the English Court and to opinions of the jurists/experts in treatises and essays on the subject of public policy. The Court also pointed out that this was by no means a new head of public policy and it can come under the head "agreements tending to injure the public" as mentioned at page 325 of Anson 's Law of Contract (23rd ed). I am in respectful agreement with the conclusion arrived at by the High Court. It cannot be disputed that a contract which has a tendency to injure public interests or public welfare is one against public policy. What constitutes an injury to public interests or welfare would depend upon the times and climes. The social milieu in which the contract is sought to be enforced would decide the factum, the nature and the degree of the injury. It is contrary to the concept of public policy to contend that it is immatable, since it must vary with the varying needs of the society. What those needs are would depend upon the consensus value judgments of the enlightened section of the society. These values may sometimes get incorporated in the legislation, but sometimes they may not. The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna. When courts perform this function undoubtedly they legislate judicially. But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society. Or to put it negatively, to prevent the frustration of the legislation or perversion of the goals and values of the society. So long as the courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to furnish the felt necessities of the time and do not refurbish them, their role in this respect has to be welcomed. It is true that as observed by Burrough, J. in Richardson vs Mellish, [ ; at 252 public policy is "an unruly horse and 338 dangerous to ride" and as observed by Cave, J. in re Mirams, [189] 1 QB 594 at 595 it is "a branch of the law, however, which certainly should not be extended, as judges are more to be trusted as interpreters of the law than as expounders of what is called public policy". But as observed by Prof. Winfield in his article 'Public Policy in the English Common Law ' [1928]42 Harv. L. Rev. 76, 91]: "Some judges appear to have thought it [the unruly horse of public policy] more like a tiger, and refused to mount it at all perhaps because they feared the fate of the young lady of Riga. Others have regarded it like Balaam 's ass which would carry its rider nowhere. But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community. " All courts are at one time or the other felt the need to bridge the gap between what is and what is intended to be. The courts cannot in such circumstances shirk from their duty and refuse to fill the gap. In performing this duty they do not foist upon the society their value judgments. They respect and accept the prevailing values, and do what is expected of them. The courts will, on the other hand, fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or of an action of an individual which is certain to subvert the societal goals and endanger the public good. The contract such as the present one which is found by the City Civil Court as well as the High Court to have been entered into with the obvious purpose of influencing the authorities to procure a verdict in favour of the late Nawab was obviously a "carrier" contract. To enforce such a contract although its tendencies to injure public weal is manifest is not only to abdicate one 's public duty but to assist in the promotion of a pernicious practice of procuring decisions by influencing authorities when they should abide by the law. To strike down such contracts is not to invent a new head of public policy but to give effect to its true implications. A democratic society is founded on the rule of law and any practice which seeks to subvert or circumvent the law strikes at its very root. When the Court discountenances such practice, it only safeguards the foundation of the society. Even assuming, therefore, that the Court finds a new head of public policy to strike down such practice, its activism is not only warranted but desired. 339 The appeal is, therefore, dismissed. In the circumstances of the case, there will be no order as to costs. FATHIMA BEEVI, J. I have had the advantage of perusing the judgment prepared by my teamed brother, Sawant, J. I agree with him that the appeal must fail. I wish to say a few words. The only point that arises for decision in the appeal is whether an amount of Rs.75,000 which the plaintiff claims to have advanced, is recoverable from the respondents. The relevant facts have been stated by my learned brother and it is not necessary to repeat the same. The City Civil Court found that the agreement on the basis of which the plaintiff claimed relief was opposed to public policy. The object of the agreement according to the trial court was that the plaintiff should wield his influence with Central and State Ministers to have Sajjid Yar Jung recognised as the heir of late Nawab Salar Jung in return for his being given one anna share in the assets to be received by Sajjid Yar Jung from the estate of late Nawab Salar Jung. The High Court has confirmed that under the agreement the plaintiff was to promote the cause of Sajjid Yar Jung in his being recognised as heir of the Nawab Salar Jung and for the help thus rendered to receive a share of one anna in a rupee out of the assets obtained. The plaintiff appears to have advanced an amount of Rs.75,000 in promoting the cause of Sajjid Yar Jung as agreed upon. The help in promoting the cause was much more than mere financing. On the evidence the High Court found that the help Sajjid Yar Jung wanted from the plaintiff was to bring to bear his influence with the Central and State Ministers and the request for financial help was secondary to the request to represent the cause with the use of influence. The High Court affirmed that the object of agreement was to influence the Central and State Ministers and to advance and expand all amounts necessary in that connection. In the face of the concurrent findings with which we agree, I have no doubt in our mind that the contract relating to the payment of the amount is not severable from the agreement to promote the cause of Sajjid Yar Jung by wielding the influence the plaintiff had. Every agreement of which the object or consideration is unlawful is void. The consideration or object of an agreement is unlawful when the court regards it as opposed to public policy. If anything is done against the public law or public policy that would be illegal in as much as the interest of the public would suffer in case a contract against public policy is permitted to stand. Public policy is a principle of judicial 340 interpretation founded on the current needs of the community. The law relating to public policy cannot remain immutable. It must change with passage of time. A bargain whereby one party is to assist another in recovering property and is to share in the proceeds of the action and such assistance is by using the influence with the administration, irrespective of the fact that the persons intended to be influenced are not amenable to such influence is against protection and promotion of public welfare. It is opposed to public policy. In this view, we would hold that the plaintiff cannot enforce the agreement to recover the amount from the respondents. ORDER The appeal is, therefore, dismissed with no order as to costs. R. section section Appeal dismissed. [/INST]Appellant 's land was acquired by the Agra Town improvement Trust under the provisions of the U.P. Town Improvement Act, 1919. For the land acquired, the appellant was paid a paltry sum. No solatium was awarded as none was awardable under the Act. [391B]. The appellant sought a reference before the Nagar Mahapalika Tribunal. The Tribunal raised the compensation to Rs.1,45,839 and also awarded interest at the rate of 4 1/2 percent. Still dissatisfied, the appellant moved the High Court in appeal. The Nagarpalika also filed a cross appeal against enhancement. The High Court allowed the appeal of the appellant and further enhanced the compensation by Rs.48,613 and the rate of interest to 6 percent. On the amount of Rs.48,613 solatium at the rate of 15% was awarded by the High Court. No solatium was however awarded on the slim Of Rs. 1,45,839 awarded by the Tribunal, on the ground that the appellant had not made a grouse or laid any claim to it in his grounds of appeal. The High Court negatived the contention of the appellant that his claim to solatium was not based on any demand at his instance but it was rather a statutory duty of the Court to grant it. Allowing the appeal, this Court, HELD: (1) Solatium, as the word goes, is "money comfort" quantified by the statute, and given as a conciliatory measure for the Compulsory acquisition of the land of the citizen, by a welfare state such as ours. [392D E] 390 (2) The importance of the award of solatium cannot be undermined by any procedural brocades. It follows automatically the market value of the land acquired, as a shadow would to a man. It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired. That it falls to be awarded by the Court "in every case" leaves no discretion with the court in not awarding it in some cases and awarding in others. [393A B] Om Prakash vs State of Uttar Pradesh, [19741 2 S.C.C. 731, referred to. (3) Solatium in the scheme of section 23(2) of the Land Acquisition Act is part of the compensation and sections 28 and 34 of the said Act Provide for payment of interest on the amount of compensation. [394H 395A] Periyar & Pareekanni Rubbers Ltd. vs State of Kerala, ; , referred to. (4) Solatium being part of compensation must fetch statutory interest from the date of dispossession of the land owner tin date of payment. [395D] Dr. Shamlal Narula V. Commissioner of Income Tax Punjab, ; , referred to. </s>

<s>[INST] Summarize the judgementCivil Appeals Nos. 1910 to 1912 and 2112 of 1968, and 1102 to 1105 of 1971. Appeals by certificate/special leave from the judgments and orders dated July 28, 1967, March 29, 1968, May 24, 1968 of the Calcutta High Court in Income tax References Nos. 170 of 1963. 40 of 1965 and 4 of 1967. V. section Desai, N. R. Khaitan, B. P. Maheshwari and Krishna Sen. for the appellants (in all the appeals). I B. Sen, K. section Suri, R. N. Sachthey and B. D. Sharma, for the respondent (in C.As. 1910 to 1912 of 1968, and 1102 to 1104 of 1971). B. D. Sharma, for the respondent (in C.As. 2112 of 1968 and 1105 of 1971). The Judgment of the Court was delivered by Grover, J. These appeals from judgments of the Calcutta High Court in Income tax References involve a common question. We shall refer to the facts in the batch of appeals of Jaipuria Samla Amalgamated Collieries Ltd. The assessee is a public limited company incorporated under the Indian Companies Act 1913. It carried on the business of raising coal from coal mines and selling the same to its constituents. It had taken on lease several coal mines from the owners of the coal bearing lands. As lessee of the mines the assessee incurred liability for payment of (i) Road and Public Works cess under the Bengal Cess Act of 1880; (ii) Education cess levied under the Bengal (Rural) Primary Education Act, 1930. , The amounts payable by the assessee on account of the aforesaid, cesses were claimed by it as deduction under section 10 of the Income tax Act, 1922, hereinafter referred to as the "Act", in the computation of ,.its profits. The income tax authorities disallowed that claim relying on section 10 (4) of the Act. The assessee went up, in appeal to the 512 Appellate Tribunal which agreed with the orders of the departmental authorities. The questions which were submitted by the Tribunal with the statement of the case relating to the assessment years 1954 55, 1955 56 were as follows : "(1) Whether, on the facts and in the circumstances of the case, the Road, the Public Works and the Education Cesses were levied either on the profits or gains of the business or were assessed at a proportion of or otherwise on the basis of any such profits within the meaning of section 10(4) of the Income tax Act, 1922 ? (2) Whether, on the facts and in the circumstances of the case, the amounts provided for or paid by the assessee company, as Road and Public Works Cess and the Education Cess was allowable as a deduction under section 10 (2) (ix) or 10 (2) (xv) of the Indian Income tax Act, 1922, read with section 10(4) of the said Act ?" , The High Court answered the questions against the assessee. The assessee filed appeals to this Court after obtaining a certificate of fitness but the same was found defective owing to want of any reasons or grounds in the order granting the certificate. Instead of getting the matters remitted to the High Court for giving reasons petitions for special leave were filed before us and leave was granted. We have heard the appeals by special leave on the printed record of the appeals by certificate. It may be mentioned that this position obtains in all the appeals by certificate before us. Section 10(1) of the Act provides that tax shall be payable by an assessee under the head "profits and gains of business, profession or vocation" in respect of the profits and gains of any business profession or vocation carried on by him. Sub section (2) says that such profits or gains shall be computed after making the allowances set out therein. Clauses (ix) and (xv) of this subsection are as follows : "(ix) any sums paid on account of land revenue, local rates or municipal taxes in respect of such part of the premises as is used for the purpose of the business, profession or vocation." "(xv) any expenditure not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation." Sub section (4) of section 10 to the extent It is material is in the following terms : 513 (4) Nothing in clause (ix) or clause (xv) of subsection (2) shall be deemed to authorise the allowance of any sum paid on account of any cess, rate or tax levied on the profits or gains of any business, profession or vocation or assessed at a proportion of or otherwise on the basis of any such profits or gains The essential question that has to be determined is whether the cesses levied under the aforesaid Bengal Acts fell within the mischief of section 10(4) of the Act. It is common ground that these cesses are not levied on the profits or gains of any business, profession or vocation but it has been claimed on ' behalf of the Revenue and that contention was accepted throughout that the cesses are assessed on the basis of such profits or gains and therefore they would be covered by the said provision. According to the preamble to the Bengal Cess Act 1880, the road and works cesses were levied on immovable property interalia to provide for the construction and maintenance of roads and other works of public utility. Under section 5 all immovable property with certain exceptions was to be liable to the payment of road cess and public works cess. Section 6 laid down that these cesses were to be assessed on the. annual value of lands and until provision to the contrary was made by the Parliament on the annual not profits from mines, quarries, tramways, railways and other immovable property on such rates as were to be determined in the manner prescribed. Under section 72 the Collector of the district had to serve a notice upon the owner etc. of every mine, quarry and immovable property requiring him to lodge a return of the net annual profits of such property cal culated on the average of the annual net profits thereof for the last three years for which accounts had been made up. Section 75 provided for a contingency where a return was not furnished within the prescribed period. The Collector in that case or if he found that the return made, was untrue or incorrect was to proceed to ascertain and determine by such ways or means as seemed expedient the annual net profits of such property calculated as aforesaid. If the Collector was unable to ascertain the annual net profits he could ascertain and determine the value of the property and thereupon determine 6% of such value to be the annual net profits thereon (section 76). The scheme of the Bengal (Rural) Primary Education Act 1930 may next be referred to. The preamble to that Act was as follows: "Whereas it is expedient to make better provision for the progressive expansion and for the management and control of primary education in rural. areas in Bengal so as to make it available to all children and with a view to make it compulsory within ten years 514 According to section 29 all immovable property on which the road and public works cesses were assessed were to be liable to the payment of primary education cess. The rates on which the education cess was to be levied varied according as the property ,consisted of mines and quarries or of tramways, railways and other immovable property. As regards mines and quarries it was to be levied at the rate of three and a half piece on each rupee of annual net profits. Now it is quite clear that the aforesaid cesses would be allowable deductions either under clause (ix) or clause (xv) of sub section (2) of section 10 unless they fell within section 10(4). We have already referred to the provisions of both Acts under which the cesses are levied which show that their assessment is not made at a proportion of the profits of the assessee 's business. What has to be determined is whether the assessment of the cesses is made on the basis of any such profits. The words "profits and gains of any business, profession or vocation" which are employed in section 10(4) can 'in the context, have reference only to profits or gains as determined under section 10 and cannot cover the net profits or gains arrived at or determined in a manner other than that provided by s.10 The whole purpose of enacting sub section (4) of section IO appears to be to exclude from the permissible deductions under clauses (ix) and (xv) of sub section (2) such cess, rate or tax which is levied on the profits or gains of any business, profession or vocation or is., assessed at a proportion of or on the basis of such profits or gains. In other words sub section (4) was meant to exclude a tax or a cess ' or rate the assessment of which would follow the determina tion or assessment of profits or gains of any business, profession or vocation in accordance with the provisions of section 10 of the Act. The road cess and public works cess are to be assessed on the annual net profits under sections 72 to 76 of the Cess Act 1880. The net annual profits have to be calculated on the average of the net profits for the last three years of the mine or the quarry and if the annual net profits of the property cannot be ascertained in the aforesaid manner then it is left to the Collector to determine the value of the property first in such manner as he considers expedient and determine 6 per cent on that value which would be deemed to be the annual net profits: The Cess Act of 1930 follows the same pattern so far as the ascertainment of annual net profits is concerned. These profits arrived at according to the provisions of the two Cess Acts can by no stretch of reasoning be equated to the profits which are determined under section 10 of the Act. It is not possible to see, therefore, how section 10(4) could be applicable at all in the present case. Thus on the language of the provisions both of the Act and the two Cess Acts the applicability of section 10(4) cannot be attracted. But even according to the decided cases 515 such cesses cannot fall within section 10(4). The Privy Council in Commissioner of Income tax, Bengal vs Gurupada Dutta & Others(1) had to consider whether the rate imposed under the provisions of the Bengal Village Self Government Act 1919 on a person occupying a building and using the same for the purpose of business was an allowable deduction in computing the profits of the business under section 10 of the Act. Their Lordships laid down the law in the following words : . "It will be noted that, in the absence of the necessary powers and machinery, which are not provided by the Act, the estimate of the annual income from business can only proceed on a rough guess, which is in no way comparable with the ascertainment of profits and gains under the Income tax Act, an d, in the opinion of their Lordships, the inclusion of this element of business income as part of the "circumstances" of the assessee with a view to the imposition of the union rate does not fall within sub section (4) of Section 10 of the Income tax Act. It is conceded that the union rate is not "levied on the profits or gains", which clearly implies an ascertainment of such profits and gains, and the words " assessed. . on the basis of any such profits or gains" in the later part of the sub section must also be so limited. No such ascertainment of the profits and gains of the business can be undertaken for the purposes of the union rate. ,, The main argument for the Crown, therefore fails. " In our judgment this decision is quite apposite and fully covers the points under consideration. It has been followed by the Allahabad High Court in Simbholi Sugar Mills Ltd. vs Commi ssioner of Income tax, U.p. & V.p.(2) in which the question related to the deductibility of tax payable under the U.P. District Boards Act 1922 which was imposed on persons assessed according to their circumstances and property. Similarly in Commissioner of Income tax, Delhi and Rajasthan vs Banarsi Dass & Sons(3), the Punjab High Court held that a tax imposed under the U.P. District Boards Act on circumstances and property could be legitimately claimed as an allowance and the above decision of the Privy Council was followed. In the Income tax Act 1961, section 28 relates to the income which shall be chargeable to income tax under the head "profits and gains of business or profession '. Section 30(b) (ii) is equivalent to cl. (ix) of section 10(2) of the Act, Section 40 (a) (ii) corresponds to section 10 (4) of the Act. It is significant that in spite of the decision of the Privy Council in (1) (3) (2) 516 Gurupada Dutta 's case(1) the Parliament did not make any change in the language of the provisions corresponding to section 10(4). It can, therefore, legitimately be said that the view of the Privy Council with regard to the true scope and ambit of section 10(4) of the Act was accepted. We are unable to concur in the reasoning or the conclusion of the Calcutta High Court in Commissioner of Income tax, West Bengal, vs West Bengal Mining Co.(2) in which it was held that the two cesses being related to profits would attract section 10(4) of the Act. In the result Civil Appeals Nos. 1102 to 1105 of 1971 which are by special leave are allowed and the answers returned by the High Court are discharged. The questions referred shall stand answered in favour of the assessees and against the Revenue. The assessee shall be entitled to their costs in this Court. Civil Appeals Nos. 1910 to 1912 of 1968 and 2112 of 1968 in which the certificates are defective and have to be revoked shall stand dismissed. G.C. Ordered accordingly. [/INST]The petitioner was a Deputy Inspector of Schools and a member of the Education department of the respondent State. On September 2, 1953, the Director of Public Instruction passed an order directing a censure to be recorded in the character roll of the petitioner. On March 5, 1960, he was reverted to the Lower Division of the Subordinate Educational Service, as a result of an inquiry into certain charges. He filed a suit challenging the two orders. On August 5, 1961, the Munsiff passed an order restraining the respondent from enforcing the order dated March 5, 1960. On April 3, 1962, the temporary injunction was vacated by the Subordinate Judge. On April 11, 1963, the suit was decreed and the respondent was prohibited from enforcing the order dated March 5, 1960. This decree was set aside in appeal by the Subordinate Judge on June 24, 1964, and the petitioner 's second appeal was dismissed by the High Court on February 11, 1965. On August 5, 1966, the Director of Public Instruction passed an order that the petitioner 'having not been on his duties for more than five years since March 1, 1960 has ceased to be in Government employ since March 2, 1965 under r. 76 of the Bihar Service Code. ' The petitioner having completed 58 years of age addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arrange for the payment of her. pension, and on June 12, 1968 the Director of Public Instruction passed orders stating that under r. 46 of the Bihar Pension Rules he was not entitled to any pension. The petitioner filed the present writ petition under article 32 challenging the various orders. HELD: (1) No relief could be granted in respect of the orders dated September 2, 1953 and March 5, 1960, as, (a) they were already covered by the decision of the High Court in second appeal. (b) no relief could be granted with respect to an order passed as early as 1953; and (c) the orders did not infringe any fundamental rights of the petitioner. [652G H 653A B] (2) The order dated August 5, 1966, declaring, under r. 76 of the Service Code that the petitioner had ceased to be in Government service should be set aside. [653 A B] (a) The essential requirement for taking action under the said rule is that the government servant should have been continuously absent from duty for over five years. Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years. Admittedly the petitioner, in the present case, was on duty till March 10, 1960 and he ceased to attend to his duty only from March 635 11, 1960. Therefore, the order stating that he 'ceased to be in government employ on March 2, 1965, was on the face of it erroneous. ' [643C D, E; 644A C] (b) Assuming that the order should be read that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966 the date of the order even then, the order would be illegal. From August 5, 1961, the date of temporary injunction granted by the Munsiff till April 3, 1962, when that order was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty in the senior post in spite of several letters written by him. Again on April 11, 1963 when the Munsiff granted a decree in favour of the petitioner, the respondent did not obtain any stay order from the appellate court, and so, the decree of the trial court was in full force till it was set aside in appeal on June 24, 1964. During that period, that is, from April 11, 1963 to June 24, 1964 the petitioner wrote several letters requesting the respondent to permit him to join duty in the senior grade, but the respondent did not permit him to do so. Therefore, there was no question of the petitioner being continuously absent from service for over 5 years during the period referred to when he was willing but the respondent did not allow him to serve, and hence, r. 76 of the Service Code was not applicable. [644E F; 645A D,G; 646D H; 647A B,E F] (c) Even if the r. 76 was applicable and it was a question of automatic termination of service, article 311 applies to such cases also. According to the respondents a continuous absence from duty for over five years apart from resulting in the forfeiture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the office to receive pension. The respondent did not give an opportunity to the petitioner to show cause against the order proposed. Hence there was violation of article 311. [647GH ; 648D E] Jai Shankar vs State of Rajasthan, ; , followed. (3) The order dated June 12, 1968 stating that under r. 46 of the Pension Rules the petitioner was not entitled to any pension should also be set aside. [649C] Payment of pension under the rules does not depend upon the discretion of the State Government but is governed by the rules and a government servant, coming within those rules is entitled to claim pension. Under r. 46 a Government servant dismissed or removed for misconduct, insolvency or inefficiency is not eligible for pension. In the present case it was contended that the petitioner 's absence for over five years, amounted to misconduct and inefficiency in service. But when the order dated August 5, 1966 has been held to be illegal then the order dated June 12, 1968 based upon it also falls to the ground. [649B C;D H;65OA B] (4) The grant of pension does not depend upon any order. It is only for the purpose of quantifying the amount having regard to the service and other allied matters that it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of any such order but by virtue of the rules. The right of the petitioner to receive pension is property under article 31(1) and by a mere executive order the State had no power to withhold it. Similarly, the said claim is also property under article 19(1) (f). It, therefore follows, that the order dated June 12, 1968 denying the petitioner the right to receive pension affected his fundamental right and as such the writ petition was maintainable. [650G H; 652B C, D F] K. R. Erry vs State of Punjab, I.L.R. [1967] Punjab & Haryana 279, (F.B) approved. 636 (5) The bar against the Civil Court entertaining any suit relating to the matters under the Pension Act does not stand in the way of a writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law. </s>

<s>[INST] Summarize the judgementil Appeal No. 2341 of 1978. From the Judgement and Decree dated 16.11.1977 of the Andhra Pradesh High Court in Writ Appeal No. 358 of 1976. Altaf Ahmed, Additional Solicitor General, P. Parmeshwaran and Dilip tandon for the Appellant. 128 A.S. Nambiar and B. Parthasarthy for the Respondent. The Judgement of the Court was delivered by AHMADI, J. This appeal, on certificate, is directed against the decision of the High Court of Andhra Pradesh which was quashed the imposition of duty and levy of penalty on the ground that the show cause notice was issued after the expiry of the period of six months from the accrual of the cause of action. The facts leading to this appeal are as follows: The respondent M/s. Ramdev Tobacco Company, a sole proprietory concern, was at all material times a dealer in tobacco having a licenced warehouse at Guntur. The dealer was liable to pay duty on the tobacco received at his warehouse and transported to another dealer. On August 30, 1972 the appellant issued a notice calling upon the respondent to show cause why duty should not be demanded under Rule 160 of Central Excise Rules, 1944 (`the Rules ' hereafter) on 64,444 kgs. of VFC Farmash Tobacco removed from his warehouse and not accounted for in the warehouse register maintained under the Rules. The respondent was also asked to show cause why penalty should not be imposed for infraction of Rules 151 and 32(1) of the Rules for illicit removal of the aforementioned quantity of tobacco. This show cause notice was founded on the allegation that in 1970 the respondent obtained six transport permits (T.P. 2) dated January 13, 1970, February 10, 1970, March 26, 1970, May 16, 1970, July 24, 1970 and August 5, 1970 and transported under each permit more than the quantity of tobacco allowed thereunder in contravention of the aforementioned rules. The respondent sent a detailed reply to the said show cause notice on November 4, 1972. After giving a personal hearing to the respondent on September 18, 1973 the appellant came to the conclusion that the respondent had evaded payment of duty on 1272 bags weighing 48,304 Kgs, of VFC Farmash tobacco and issued a demand under Rule 160 in the sum of Rs.1,66,165.76 under adjudication order No. 173/74 dated April 9, 1974. In addition thereto the appellant imposed a penalty of Rs. 100 for contravention of Rules 151 and 32(1) of the Rules. Thereupon the respondent filed a writ petition No.2600 of 1974 under Article 226 of the Constitution challenging the aforesaid order of the appellant. This writ petition was heard and disposed of by a learned Single Judge of the High Court who took the view that the appellant 's action was time barred inasmuch as it was initiated after the expiry of the period of six months from the accrual of the cause of action. According to the learned Judge under section 129 40(2) of the (`the ' hereinafter) no suit, prosecution or other legal proceeding could be instituted for anything done or ordered to be done under the law after the expiration of six months from the accrual of the cause of action. Since a period of more than six months had indisputably expired from the dates on which the excess tobacco was transported under the six transport permits in question, the action was clearly time barred. In this view of the matter the writ petition was allowed and the demand made under the impugned adjudication order both in respect of duty and penalty was quashed. The present appellant questioned the correctness of this view in appeal, Writ Appeal No. 358 of 1976, but in vain. The Division Bench found the view taken by the learned Single Judge in accord with its view in Writ Petition No. 2516 of 1974 decided on April 1, 1976. It, therefore, dismissed the appeal but since it had granted a certificate to appeal in the case relied on, it also granted a similar certificate which has given rise to this appeal. Sub section (2) of section 40 of the as it stood at the relevant point of time before its amendment by Amendment 22 of 1973 read as under: "No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under the after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of". Before we proceed to analyse this sub section it would be advantageous to bear in mind that sub section (1) of this section bars the institution of any suit, prosecution or other legal proceeding against the Central Government or its officer in respect of any order passed in good faith or any act in good faith done or ordered to be done under the . The second sub section prescribes a period of limitation for suits, prosecutions and other legal proceedings instituted, lodged or taken for anything done or ordered to be done under the . That is why in Public Prosecutor, Madras vs R.Raju & Anr., etc.; , it was urged on a conjoint reading of the two sub sections that sub section (2) applied only to Government and could not come to the rescue of a tax payer. Rejecting this contention this Court held: "The two sub sections operate in different fields. The first sub section contemplates bar of suits against the Central Government or against the officers by protecting them in 130 respect of orders passed in good faith or acts done in good faith. It is manifest that the second sub section does not have any words of restriction or limitation of class of persons unlike sub section (1). Sub section (2) does not have any words of qualification as to persons. Therefore, sub section (2) is applicable to any individual or person. " This the appellant 's contention that sub section (2) was confined only to the Government officers was found to be unwarranted on the plain words of the provision and was also repelled by reference to other comparable statutes which went to show that whenever the legislature intended to limit the application against the Government officers, the Legislature had chosen appropriate words of limitation to restrict the operation of the provision. It follows, therefore, that the application of the sub section extended to any person, not being a Government Officer, against whom any suit, prosecution or other legal proceeding was commenced for anything done or ordered to be done under the . The next contention convassed in that case by the learned counsel for the appellant was that the words "anything done or ordered to be done" employed in the sub section would not include anything done in violation of the . This Court after referring to the definition of the word `act ' in the , which extended to illegal omissions also, and the case law on the subject observed at page 820 as under: "These decisions in the light of the definition of the word `act ' in the establish that non compliance with the provisions of the statute by omitting to do what the act enjoins will be anything done or ordered to be done under the . The complaint against the respondents was that they wanted to evade payment of duty. Evasion was by using and affixing cut and torn banderols. Books of account were not correctly maintained. There was shortage of banderols in stock. Unbanderolled matches were found. These are all infraction of the provisions in respect of things done or ordered to be done under the . " It is, therefore, clear from the above observation that any omission or infraction of the statutory provision would also fall within the ambit of the provision. Non payment of duty or dues which a dealer is under an obligation to pay under the statute was, therefore, held to fall within 131 the scope of the provision. In that case the complaint against the respondents was that to evade the payment of duty they had used and affixed cut and torn banderols and had failed to maintain the accounts correctly resulting in shortage in stocks. The respondents were prosecuted for contravention of the Rules punishable under sections 9(b) and 9(d) of the as also under section 420 read with section 511 and 109, I.P.C. The respondents pleaded the bar of section 40 of the as it then stood. The High Court upheld the contention that the prosecution was barred by the rule of limitation incorporated in section 40 as the same was instituted after the expiry of six months from the date of the commission of the alleged offences. This Court on the aforesaid line of reasoning affirmed the High Court 's decision. But the question is whether the issuance of a show cause notice and the initiation of the consequential adjudication proceedings can be described as `other legal proceedings ' within the meaning of sub section (2) of section 40 of the ? If the said departmental action falls within the expression `other legal proceeding ' there can be no doubt that the action would be barred as the same indisputably was initiated six months after the accrual of the cause action. So the crucial question is whether the issuance of the show cause notice dated August 30, 1972 and the passing of the impugned order in adjudication proceedings emanating therefrom constitutes `other legal proceeding ' within the meaning of section 40(2) of the to fall within the mischief of that sub section which bars such proceedings if commenced after a period of six months from the accrual of the cause of action. The learned Additional Solictor General submitted that the expression `other legal proceeding ' must be read ejusdem generis with the proceeding expressions `suit ' and `prosecution ' and if so read it becomes crystal clear that the department 's action cannot come within the purview of `other legal proceeding '. How valid is this contention is the question which we are called upon to answer in the present appeal. The rule of ejusdem generis is generally invoked where the scope and ambit of the general words which follow certain specific words (which have some common characteristic and constitute a genus) is required to be determined. By the application of this rule the scope and ambit of the general words which follow certain specific words constituting a genus is restricted to things ejusdem generis with those preceding them, unless the context otherwise requires. General words must ordinarily bear their natural and larger meaning and need not be confined ejusdem generis to things previously enumerated unless the language of the statute spells out an intention to that effect. Courts 132 have also limited the scope of the general words in cases where a larger meaning is likely to lead to absurd and unforeseen results. To put it differently, the general expression has to be read to comprehend things of the same kind as those referred to by the preceding specific things constituting a genus, unless of course from the language of the statute it can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the statute gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words. But unless there is genus which can be comprehended from the preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specific words. There can be little doubt that the words `other legal proceeding ' are wide enough to include adjudication and penalty proceedings under the . Even the learned Additional Solicitor General did not contend to the contrary but what he said was that since this wide expression is preceded by particular words of a certain genus, namely, words indicating reference to proceedings taken in courts only, the wide words must be limited to things ejusdem generis and must take colour from the preceding words and should, therefore, receive a limited meaning to exclude proceedings of the type in question. There can be no doubt that `suit ' or `prosecution ' are those judicial or legal proceedings which are lodged in a court of law and not before any executive authority, even if a statutory one. The use of the expression `instituted ' in section 40(2) strengthens this belief. Since this sub section has been construed by this Court in Raju 's case (supra) not to be confined in its application to only Government servants but to extend to others including the assessees and since the words `for anything done or ordered to be done under this ' are found to be comprehensive enough to include acts of non compliance or omissions to do what the and the Rule enjoin, the limitation prescribed by section 40(2) would undoubtedly hit the adjudication and penalty proceedings unless the expression `other legal proceeding ' is read ejusdem generis to limit its ambit to legal proceedings initiated in a court of law. The scope of section 40(2) as it stood before its amendment pursuant to Raju 's case came up for consideration before a Division 133 Bench of the Madhya Pradesh High Court in Universal Cables Ltd. vs Union of India, [1977] ELT (J92) wherein the question raised for determination was whether penalty procedings taken under Rule 173Q for the infraction of Rule 173C with a view to evading payment of duty fell within the expression `other legal proceeding ' used in the said sub section. The High Court conceded that the expression when read in isolation is wide enough to include any proceeding taken in accordance with law, whether so taken in a court of law or before any authority or tribunal but when read with the preceding words `suit ' or `prosecution ' it must be given a restricted meaning. This is how the High Court expressed itself at page J 106: "Now the language of section 40 (2) is: `no suit, prosecution or other legal proceeding shall be instituted '. `Suit ' and `prosecution ' which precede the expression `other legal proceeding ' can be taken only in a Court of Law". After stating the expanse of the ejusdem generis rule, as explained in Amar Chandra vs Excise Collector, Tripura, AIR. at 1868 (Sutherland, Volume 2 pages 399 400) the High Court observed that there was no indication in the said sub section or elsewhere in the that the said general words were intended to receive their wide meaning and were not to be construed in a limited sense with the aid of the ejusdem generis rule. A departmental proceeding like penalty proceedings were, therefore, placed outside the scope of the said sub section. This view was quoted with approval by a learned Single Judge of the Bombay High Court in C.C. Industries & Others vs H.N. Ray and Another, at 453. These two cases, therefore, clearly support the view canvassed before us by the learned Additional Solicitor General. We have given our careful consideration to the submission made on behalf of the appellant, reinforced by the view expressed in the aforesaid two decisions. In considering the scope of the expression `other legal proceeding ' we have confined ourselves to the language of sub section (2) of section 40 of the before its amendment by 22 of 1973 and should not be understood to express any view on the amended provision. On careful consideration we are in respectful agreement with the view expressed in the aforesaid decisions that the wide expression `other legal proceeding ' must be read ejusdem generis with the preceding words `suit ' and `prosecution ' as they constitute a genus. In this view of the matter we must uphold the contention of the learned Additional Solicitor General that the penalty and adjudication 134 proceedings in question did not fall within the expression `other legal proceeding ' employed in section 40 (2) of the as it stood prior to its amendment by 22 of 1973 and therefore, the said procedings were not subject to the limitation prescribed by the said sub section. Mr. Nambiar, the learned counsel for the respondents strongly argued that we should not entertain the submission based on the ejusdem generis rule since it was not raised before the High Court. That indeed is true but being a pure question of law we have though it fit to entertain the same. We therefore, do not entertain this objection. In the result we allow this appeal and set aside the order passed by the learned Single Judge as well as the Division Bench which affirmed it and dismiss the respondent 's writ petition itself. We also set aside the order by which the appellant was directed to pay costs. We restore the adjudication order dated April 4, 1974 and all consequential orders, if any, passed thereunder. Interim stay granted on August 16, 1979 is vacated and the appellant will be entitled to recover the dues from the security furnished pursuant to that order. The appeal is allowed accordingly with no order as to costs. R.S.S. Appeal allowed. [/INST]When cloth control was introduced in Rewa State, 25 cloth dealers of Budhar, including the thirteen appellants, formed themselves into an Association to collect the quota of cloth to be allotted to them and to sell it on profit. The Association functioned through a President and a pioneer worker; they kept accounts and distributed profits. After cloth had been decontrolled and the work of the Association had come to an end, the appellants filed a suit against the first respondent for rendition of accounts for a portion of the period that he had been President of the Association and for realisation of the amount found due with interest. The suit was decreed by the trial Court but was, on appeal, dismissed by the judicial Commissioner. In appeal before the Supreme Court, the first respondent raised, for the first time, a preliminary objection that the suit was not maintainable as the Association consisting of more than 20 persons was not registered as required by section 4(2) Of the Rewa State Companies Act, 1935, and that consequently the members of the Association had no remedy against each other in respect of its dealings and transactions. The appellants objected to the raising of the new plea and contended that, nevertheless, the suit was maintainable Held, that the suit was not maintainable. In view of section 4(2) of the Act the Association was illegal. The reliefs claimed for rendition of accounts in enforcement of the illegal contract of partnership necessarily implied recognition by the Court that the Association existed of which accounts were to be taken. The Court could not assist the plaintiffs in obtaining their share of the profits made by the illegal Association. U.Sein Po vs U. Phyu, Rang. 540, not applicable. Held further, that the new point ought to be allowed to be raised. The question was a pure question of law and did not require the investigation of any facts. The objection rested on the provisions of a public statute which no court could exclude from its consideration. Surajmull Nargoremull vs Triton Insurance Company Ltd., (1924) L.R. 52 I.A. 126; Sri Sri Shiba Prasad Singh vs Maharaja Srish Chandra Nandi, (1949) L.R. 76 I.A. 244, followed. The analogy of section 69(3)(a) of the , did not apply, an under that Act an unregistered firm was 97 770 not illegal. Besides, the suit was not one for accounts of a dissolved firm but of an illegal Association which was in existence id at the relevant time. </s>

<s>[INST] Summarize the judgementeal No. II of 1949. Appeal by special leave from the judgment of the Allaha bad High Court (Harish Chandra J.) dated 11th November, 1949, in Criminal Miscellaneous Case No. 960 of 1949. The facts of the case and the arguments of counsel are set out fully in the judgment. Alladi Krishnaswami Iyer (Alladi Kuppuswami with him) for the appellant. M.C. Setalvad, Attorney General for India (V. N. Sethi, with him) for the respondent. May 5. The judgment of Kania C.J. and Patanjali Sastri J. was delivered by PATANJALI SASTRI J. This is an appeal by special leave from an order of the High Court at Allahabad dismiss ing an application under sections 491 and 561 A of the Code of Criminal Procedure for release of the appellant who was arrested in pursuance of an extradition warrant issued by the Regional Commissioner of the United State of Rajasthan who is the principal officer representing the Crown in the territory of that State. The appellant who is a member of the Uttar Pradesh Civil Service was appointed in 1948 to serve what was then known as the Tonk State in various capacities, and during such service he is alleged to have helped the Nawab in obtaining the sanction of the Government of India to the payment of Rs. 14 lakhs to the Nawab out of the State Treasury for the discharge of his debts, and to have induced the Nawab by threats and deception to pay the appellant, in return for such help, sums totalling Rs. 3 lakhs on various dates. On these allegations the appellant is charged with having committed offences under section 383 (Extortion) and 575 section 420 (Cheating) of the Indian Penal Code which are extraditable offences under the (hereinafter referred to as "the Act"). The warrant was issued under section 7 of the Act to the District Magis trate, Nainital, where the appellant was residing after reverting to the service of the Uttar Pradesh Government, to arrest and deliver him up to the District Magistrate of Tonk. The appellant 's case is that the sum of Rs. 3 lakhs was paid to him by the Nawab to be kept in safe deposit in a bank for the Nawab 's use in Delhi, that no offence was committed and that the amount was returned when demanded by the authorities of the Tonk State. The warrant was issued mala fide on account of enmity. Various technical objections were also raised to the validity of the warrant and to the jurisdiction of the Magistrate at Nainital to take cogni sance of the matter and arrest the appellant. The High Court overruled all the objections and dismissed the application for the release of the appellant. On behalf of the appellant Mr. Alladi Krishnaswami Aiyar contended that section 7 of the Act under which the warrant purports to have been issued had no application to the case and that the entire proceedings before the Magistrate were illegal and without jurisdiction and should be quashed. Learned counsel, relying on section 18 of the Act which provides that nothing in Chapter III (which contains section 7) shall "derogate from the provisions of any treaty for the extradition of offenders," submitted that the treaty entered into between the British Government and the Tonk State on the 28th January, 1869, although declared by section 7 of the Indian Independence Act, 1947, to have lapsed as from the 15th August, 1947, was continued in force by the "Stand still Agreement" entered into on the 8th August, 1947, that that treaty exclusively governed all matters relating to extradition between the two States, and that, inasmuch as it did not cover the offences now charged against the appel lant, no extradition of the appellant could be demanded or ordered. 576 The Attorney General appearing for the Government ad vanced three lines of argument in answer to that contention. In the first place, the standstill agreement entered into with the various Indian States were purely temporary ar rangements designed to maintain the status quo ante in respect of certain administrative matters of common concern pending the accession of those States to the Dominion of India, and they were superseded by the Instruments of Acces sion executed by the Rulers of those States. Tonk having acceded to the Dominion on the 16th August, 1947, the stand still agreement relied on by the appellant must be taken to have lapsed as from that date. Secondly, the treaty was no longer subsisting and its execution became impossible, as the Tonk State ceased to exist politically and such sover eignty as it possessed was extinguished, when it covenanted with certain other States, with the concurrence of the Indian Government "to unite and integrate their territories in one State, with a common executive, legislature and judiciary, by the name of the United State of Rajasthan," the last of such covenants, which superseded the earlier ones, having been entered into on the 30th March, 1949. Lastly, even assuming that the treaty was still in operation as a binding executory contract, its provisions were in no way derogated from by the application of section 7 of the Act to the present case, and the extradition warrant issued under that section and the arrest made in pursuance thereof were legal and valid and could not be called in question under section 491 of the Criminal Procedure Code. As we are clearly of opinion that the appellant 's contention must fail on this last ground, we consider it unnecessary to pronounce on the other points raised by the AttorneyGeneral especially as the issues involved are not purely legal but partake also of a political character, and we have not had the views of the Governments concerned on those points. It was not disputed before us that the present case would fall within section 7 of the Act, all the requirements thereof being satisfied, if only the applicability of 577 the section was not excluded, under section 18, by reason of the Extradition Treaty of 1869, assuming that it still subsists. The question accordingly arises whether extradi tion under section 7 for an offence which is not extradita ble under the treaty is, in any sense, a derogation from the provisions of the treaty, which provides for the extradition of offenders for certain specified offences therein called "heinous offences," committed in the respective territories of the high contracting parties. Under article 1 the Gov ernment of the Tonk State undertakes to extradite any per son, whether a British or a foreign subject, who commits a heinous offence in British territory. A reciprocal obliga tion is cast by article 2 on the British Government to extradite a subject of Tonk committing such an offence within the limits of that State. Article 3 provides, inter alia, that any person other than a Tonk subject committing a heinous offence within the limits of the Tonk State and seeking asylum in British territory shall be apprehended and the case investigated by such Court as the British Govern ment may direct. Article 4 prescribes the procedure to be adopted and the conditions to be fulfilled before extradi tion could be had, and article 5 enumerates the offences which are "to be deemed as coming within the category of heinous offences" which, however, do not include the of fences charged against the appellant. The argument on behalf of appellant was put thus: The maxim expressio unius est exclusio alterius is applicable, as pointed out by McNair on The Law of Treaties, (1938 pp. 203, 204), to the interpretation of treaties. According to that rule the treaty in question should be read as allowing extradition only for the specified offences and for no others, that is to say, as implying a prohibition of extra dition by either State for any other offence than those enumerated in article 5. Further, while the treaty entitled each of the high contracting parties to demand extradition on a reciprocal basis, an unilateral undertaking by the Indian Government to grant extradition for an offence for which it could not claim extradition under the treaty 578 violates the principle of reciprocity which is the recog nised basis of all international compacts for extradition. Such an arrangement places the State of Tonk in a more advantageous position which was not contemplated by the framers of the treaty. And where, as here, the person whose surrender is demanded is an Indian subject who is not liable to be extradited under the treaty, his surrender under section 7 trenches upon the liberty of the subject. In so far, therefore, as that section authorises extradition of a person, especially when he is an Indian subject, for an offence which is not extraditable under the treaty, it derogates from the provisions of the treaty within the meaning of section 18, and its application to the present case is thereby excluded. The argument proceeds on a miscon ception and cannot be accepted. No doubt the enumeration of "heinous offences" in arti cle 5 of the treaty is exhaustive in the sense that the high contracting parties are not entitled, under the treaty, to claim extradition of criminals in respect of other offences. But we cannot agree that such of enumeration implies a prohibition against either those parties providing by its own municipal laws for the surrender of criminals for other offences not covered by the treaty. It is difficult to imagine why the contracting States should place such a fetter on their respective legislatures in advance not only in regard to their subjects but also in regard to alien offenders, for, if such prohibition is at all to be implied, it should cover both. As pointed out in Wheaton 's Interna tional Law, there is no universally recognised practice that there can be no extradition except under a treaty, for some countries grant extradition without a. treaty: (Fourth Edition, sections 116 (a) to (d), pp. 186 189). No doubt the constitutional doctrine in England is that the Crown makes treaties with foreign States for extradition of criminals but those treaties can only be carried into effect by Act of Parliament: (Ibid section 116 (b), p. 187). Accordingly, the extradition Acts are made applicable by an Order in Council in the case of each State which enters into an extradition treaty 579 with the Crown, and they are made applicable only so far as they can be applied consistently with the terms and condi tions contained in the treaty. Under such a system where the high contracting parties expressly provide that their own subjects shall not be delivered up, as in the case of the treaty between England and Switzerland, the power to arrest and surrender does not exist: Regina vs Wilson(1). This, it was observed by Cockburn C.J. in that case, was a "serious blot" on the British system of extradition, and the Royal Commission on Extradition, of which he was the chairman, recommended in their report that "reciprocity in this matter should no longer be insisted upon whether the criminal be a British subject or not. If he has broken the laws of a foreign country his liability to be tried by them ought not to depend upon his nationality . The convenience of trying crimes in the country where they were committed is obvious. It is very much easier to transport the criminal to the place of his offence than to carry all the witnesses and proofs to some other country where the trial is to be held:" (Wheaton, section 120 (a), pp. 197, 198). Evidently, similar considerations led to the passing of the Act by the Indian Legislature providing for the surrender of criminals, including Indian subjects, for a wide variety of offences, with power to the Governor General in Council to add to the list by notification in the Gazette generally for all States or specially for any one or more States. This statutory authority to surrender cannot of course enlarge the obliga tion of the other party where an extradition treaty has been entered into, and this is made clear by section 18. But it is equally clear that the Act does not derogate from any such treaty when it authorises the Indian Government to grant extradition for some additional offences, thereby enlarging, not curtailing, the power of the other party to claim surrender of criminals. Nor does the Act derogate, in the true sense of the term, from the position of an Indian subject under the treaty of 1869. That treaty created no right in the subjects of either (1) 580 State any more than in fugitive aliens not to be extradited for other than "heinous offences. " It is noteworthy that even in Wilson 's case, (ubi supra) where there was an excep tion in the treaty in favour of the subjects of the con tracting States, the decision was based not on the ground that the treaty by itself conferred any right or privilege on English subjects not to be surrendered but on the ground that the Order in Council applying the Extradition Act, 1870, to Switzerland limited its operation, consistently with the terms of the treaty, to persons other than English subjects. It is, therefore, not correct to say that, by providing for extradition for additional offences, the Act derogates from the rights of Indian citizens under the treaty or from the provisions of the treaty. We are accord ingly of opinion that the arrest and surrender of the appel lant under section 7 of the Act is not rendered unlawful by anything contained in the treaty of 1869, assuming that it still subsists. The appeal fails and is dismissed. FAZL ALI J. I have had the advantage of reading the judgments prepared by my brothers Sastri and Mukherjea, who have given different reasons for arriving at the same con clusion. As I am inclined to agree with the line of reason ing in both the judgments, I concur in the order that this appeal should be dismissed. MAHAJAN J. I agree with the judgment going to be deliv ered by my brother Mukherjea. For the reasons given therein this appeal should be dismissed. MUKERJEA J. This appeal, which has come up before us on special leave granted by this Court, is directed against a judgment of Harish Chandra J. of the Allahabad High Court dated 11th of November, 1949, by which the learned Judge dismissed an application of the appellant under sections 491 and 561 A of the Criminal Procedure Code. The facts which are material for purposes of this appeal are not in controversy and may be shortly stated as follows: The appellant Dr. Ram Babu 581 Saksena, who is a resident of the United Provinces, was a member of the Executive Civil Service in that province, and during his official career, extending over SO years, held various important posts, both in and outside that province. In January, 1948, he was appointed Administrator of the Tonk State, where a dispute was going on at that time regarding succession to the rulership of the State between two rival claimants. On 11th of February, 1948, the dispute was set tled and Ismail Ali Khan was recognised as the Nawab or the Ruling Prince of the State and appellant was then appointed Dewan and Vice President of the State Council, of which the Nawab was the President. In April, 1948, the Tonk State, together with several other States in Rajputana, integrated and formed together the United State of Rajasthan and the appellant thereupon became the Chief Executive Officer of the Rajasthan Government. Towards the end of July, 1948, he got another special post under the Rajasthan Government, but soon afterwards, he took leave and proceeded to Naini Tal, where he has been residing since then. On 23rd May, 1949, he was arrested at Naini Tal on the strength of a warrant issued under section 7 of the , by Shri V.K.B. Pillai, Regional Commissioner and Political Agent of the United State of Rajasthan. The warrant, which is dated the 8th of May, 1949, was addressed to the District Magistrate of Naini Tal and directed the arrest of Dr. Saksena and his removal to Rajasthan, to be delivered to the District Magistrate of Tonk for enquiry into certain of fences against the laws of that State which he was alleged to have committed. After his arrest, the appellant was released on bail in terms of the warrant itself and was directed to be present before the District Magistrate of Tonk on the 7th of June, 1949. The allegations against the appellant in substance are, that while he was 'the Dewan of the Tonk State and Vice President of the State Council, the Nawab, being in urgent need of money to meet his personal demands, requested Dr. Saksena to help him in obtaining for his own use 582 a sum of Rs. 14 lakhs from the State Treasury. Dr. Saksena promised his assistance on condition that the Nawab would give him a sum of Rs. 3 lakhs out of this amount as his share. By dint of his efforts, the appellant succeeded in inducing the State Ministry to pay the full amount of Rs. 14 lakhs to the Nawab in different instalments. The first instalment, amounting to over Rs. 21/2 lakhs was paid on 31st March, 1948, and a further sum of Rs. 5 lakhs was paid on 21st of April following. On that date, it is said, the Nawab paid to Dr. Saksena a sum of Rs. 1,50,000 which was only half of the promised amount. A few days later, Dr. Saksena pressed for payment of the balance and held out threats to the Nawab that in case the money was not paid, the latter would find himself in serious difficulties as his position as a Ruling Prince of the State was not at all secure and there were grave charges against him. As a result of these threats and misrepresentations, the Nawab was induced to pay to the appellant the balance of Rs. 1,50,000 in two instalments. The matter became known to the Regional Commissioner some time in November 1948 and he called Dr. Saksena for an interview and succeeded in getting back from him the entire sum of Rs. 3 lakhs which the Nawab had paid. On the basis of these facts, Dr. Saksena has been accused of having committed offences under sections 383 and 420 of the Indian Penal Code. On 3rd June, 1949, Dr. Saksena filed an application in the High Court of Allahabad under sections 491 and 561 A of the Criminal Procedure Code, complaining of illegal and unauthorised detention under the warrant of the Regional Commissioner of Rajputana dated the 8th of May, 1949. The legality of the warrant and of arrest thereunder was at tacked on a number of grounds. It was contended, first of all, that the applicant was falsely implicated by the Nawab on account of enmity which grew up between them for various reasons and the allegations made were totally false. It was next said that the District Magistrate of Naini Tal could not take cognizance of the matter without the previous 583 sanction of the U.P. Government under section 197 of the Criminal Procedure Code and that the sanction of the Rajpra mukh of the United State of Rajasthan was also necessary before any proceeding could be initiated. The third and the main contention was that the alleged offences being said to have been committed in the State of Tonk, the case would be governed by the provisions of the Extradition Treaty entered into between the British Government and the Tonk State on 28th of January, 1869, and as neither "extortion" nor "cheating" was mentioned in the list of offences for which extradition was permissible under that Treaty, the warrant of arrest issued under section 7 of the Extradition Act was wholly illegal and unauthorised. It is admitted that these offences are specified in the Schedule to the Indian Extra dition Act of 1903, but it was said that section 18 of the Extradition Act expressly made the Act inapplicable when its provisions "derogated" from those of a Treaty. Lastly, it was urged that the extradition warrant was a mala fide step taken by the Nawab of Tonk with the help of his friend the Regional Commissioner of Rajasthan for ulterior purposes and that it constituted a fraud upon the Statute and an abuse of the processes of law. The application was heard by Harish Chandra, J. sitting singly, and by a judgment dated 11th of November, 1949, which fully and elaborately dis cussed the different points raised in the case, the learned Judge rejected the application of the petitioner. No cer tificate was given by the High Court under section 205 (1) of the Government of India Act, 1935, and the present appeal has been brought to this Court on the strength of special leave granted by it. Sir Alladi Krishnaswami Aiyar, who appeared in support of the appeal, has very properly not pressed before us all the points that were canvassed on behalf of his client in the Court below. His contention, in substance, is that the rights of extradition in the present case should be regulat ed exclusively by the provisions of the Extradition Treaty that was entered into between the Tonk State and the British Government 584 on 28th of January,. 1869, and was subsequently modified by a supplementary ,Treaty in the year 1887. This Treaty, it is argued, has not been abrogated or rendered ineffective in any way by reason of the merger of the Tonk State in the United State of Rajasthan, and the decision of the High Court on this point is erroneous. According to the provi sions of this Treaty, no extradition is permissible in respect to offences of "extortion" and "cheating" with which the appellant is charged and the warrant of arrest issued by the Political Agent is consequently illegal and ultra vires. It is conceded by Sir Alladi that if section 7 of the , is held to be applica ble to the facts of the present case, the warrant of arrest issued by the Political Agent of Rajasthan could not be assailed as invalid or inoperative; but his contention is that section 18 of the Extradition Act makes an express reservation in cases where Treaty rights exist and to the extent that the provisions of Chapter III of the Extradition Act derogate from those of any Treaty relating to extradi tion of offenders, the Treaty is entitled to prevail. To appreciate the merits of this contention, it may be convenient to refer at this stage to a few sections of the of 1903 as well as to the material provisions of the Extradition Treaty between the Tonk State and the British Government which have a bearing upon the present question. Chapter 111 of the deals with surrender of fugitive criminals in case of States other than foreign States and section 7, with which this chapter opens, provides as follows: "(1) Where an extradition offence has been committed or is supposed to have been committed by a person, not being a European British subject, in the territories of any State not being a foreign State, and such person escapes into or is in British India, and the Political Agent in or 1or such State issues a warrant, addressed to the District Magis trate of any district in which such person is believed to be, (or if such person is believed to be in any Presidency town 585 to the Chief Presidency Magistrate of such town), for his arrest and delivery at a place and to a person or authority indicated in the warrant such Magistrate shall act in pursu ance of such warrant and may give directions accordingly. " * * * * The expression "extradition offence" has been defined in section 2 (b) and means "any such offence as is described in the First Schedule to the Act. " The First Schedule gives a catalogue of offences described with reference to specific sections of the Indian Penal Code and it includes offences punishable under sections 383 and 420 of the Indian Penal Code prima facie, it seems therefore that all the conditions laid down in section 7 of the Extradition Act are fulfilled in the present case. the warrant has been issued by the Political Agent of a State which is not a "foreign State" as defined by the Act and the offences with which the appellant is charged are "extradition offences" as specified in Sched ule i. Sir Alladi 's contention, as stated above, is that section 7, which is in Chapter III of the Extradition Act, is controlled by section 18 which lays down that "nothing in this chapter shall derogate from the provisions of any treaty for the extradition of offenders, and the procedure provided by any such treaty shall be followed in any case to which it applies, and the provisions of this Act shall be modified accordingly. " Turning now to the Extradition Treaty between the Tonk State and the British Government, it will be seen that the First Article of the Treaty provides for extradition, where a British subject or a foreign subject commits a "heinous" offence in British territory and seeks shelter within the limits of the Tonk State. The Second Article deals with an offender who is a subject of the Tonk State and having committed a "heinous" offence within the State seeks asylum in British territory; while the Third Article relates to a person other than a Tonk subject who commits a "heinous" offence within the limits of the Tonk State and seeks asylum in British territory. The conditions 586 under which extradition could be had in all such cases and the procedure to be followed are laid down in article 4. Article 5 then gives a list of offences which would be deemed as coming within the category of "heinous" offences. It is not disputed that neither "cheating" nor "extortion" are mentioned in this list. The whole controversy, there fore, centers round the point as to whether in view of the provisions of the Extradition Treaty mentioned above, extra dition could legally be made or demanded in respect of offences coming under sections 383 and 420 of the Indian Penal Code which are mentioned in the list of offences specified in Schedule I to the Extradition Act but do not find a place in article 5 of the Treaty. Could it be said that the provisions of the Extradition Act, derogate in this respect from the Treaty between the Tonk State and the British Government and consequently, the terms of the Treaty would override the statute as indicated in section 18 of the Extradition Act ? The learned Attorney General, who appeared for the Government of India, put forward a two fold argument in reply to the contention of Sir Alladi. He argued in the first place, that section 18 of the has no application to the present case inasmuch as the Extradition Treaty between the Tonk State and the British Government, upon which the appellant relies, does not subsist and cannot be enforced, at the present day. The other contention is that even if the Treaty still subsists, there is nothing in its terms which prohibits extradition for offences other than those described as heinous offences in article 5. It is argued that "to derogate" means "to detract" or "to take away" and the Schedule to the Extradi tion Act by mentioning certain offences, which do not occur in the list of "heinous offences" as given in the Treaty, cannot be said to have derogated from the terms of the Treaty. Both these points were fully argued on both sides and it is clear that if on either of these points a decision is reached adverse to the appellant, the appeal is bound to fail. 587 So far as the first point is concerned, Mr. Setalvad has drawn our attention to various political changes that have come over the Tonk State since the conclusion of the Extra dition Treaty in 1869. In 1869 Tonk was one of the Native States in India with a "separate" political existence of its own and the Treaty that was entered into in that year was meant to regulate exclusively the rights and obligations in matters of extradition of offenders as between the Tonk State on the one hand and the British Government on the other. In 1887 there was a modification of the Treaty but it is not disputed that the modification made certain alter ations in the procedure which are not material for our present purpose. The major political change with regard to all Indian States which vitally affected their existing Treaties with the British Government occurred on the 15th of August, 1947, when India became an Independent Dominion. Section 7 of the Indian Independence Act provided inter alia that: "(1) As from the appointed day (b) The suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States . . As a result of this provision, the Extradition Treaty between Tonk and the British Government must be deemed to have lapsed with effect from the 15th of August, 1947. If matters stood there, obviously there would be nothing left upon which section 18 of the could possibly operate. There was, however, a Standstill Agreement entered into by the Indian Dominion with the Indian States, the first article of which runs as follows: "1. (1) Until new agreements in this behalf are made, all agreements and administrative arrangements as to matters of common concern now existing between the Crown and any Indian State shall, in so far as may be appropriate, contin ue as between the Dominion of 588 India or, as the case may be, the part thereof, and the State. (2) In particular, and without derogation from the generality of sub clause (1) of this clause the matters referred to above shall include the matters specified in the Schedule to this agreement. " The Schedule does mention "extradition" as one of the matters to which the Standstill Agreement is applicable. This was certainly intended to be a temporary arrangement and Mr. Setalvad argues that as there was no Treaty in the proper sense of the term but only a substitute for it in the shape of a temporary arrangement, section 18 of the Extradition Act which expressly mentions a Treaty cannot be applicable. While conceding that prima facie there is force in the conten tion, I think that this would be taking a too narrow view of the matter and I should assume for the purposes of this case that under the Standstill Agreement the provisions of the Treaty of 1869 still continued to regulate matters of extradition of criminals as between the Tonk State on the one hand and the Indian Dominion on the other till any new agreement was arrived at between them. Though the Standstill Agreement was to take effect after the establishment of the Indian Dominion, the In strument was actually signed on 8th of August, 1947. On the 16th of August, 1947, Tonk acceded to the Dominion of India and one of the terms in the Instrument of Acces sion is that the "Ruler accepts the position that with regard to matters specified in the Schedule to the Instrument, the Dominion Legislature would be entitled to make laws for the State." "Extradition including the surrender of criminals and accused persons to parts of His Majesty 's Dominion outside India" is one of the matters specified in the Schedule. Thus the State gave up and surrendered in favour of the Dominion Legislature its right, to legislate in respect to extradition after the date of accession. Whether the existing Extradition Treaty was ipso facto abrogated by this Instrument of Accession is not so clear. Obviously, the Indian Dominion 589 could pass any legislation it liked regarding matters of extradition between the Tonk State, and any other State, either Indian or Foreign. No such law was, however, passed by the Indian Legislature except that very recently under an Adaptation Order the Extradition Act of 1903 has been made applicable to States under Group B in the Indian Constitution in which Rajasthan is included. It is to be noted that the Extradition Act itself, which is made applicable to the United State of Rajasthan, contains an express provision in section 18 which safeguards exist ing treaty rights. It is somewhat unusual that an Extradi tion Treaty would be subsisting even after the State had acceded to India but we have no materials before us upon which we could definitely hold that the Treaty has been expressly superseded or abrogated by the Indian Legislature. The next important thing is that in April, 1948, there was a Covenant entered into by the Rulers of nine States including Tonk, by which it was agreed by and between the covenanting parties that the territories of these nine States should be integrated into one State by the name of the United State of Rajasthan. This was done with the concurrence of the Dominion of India. Later on, on 12th of May, 1949, Mewar also became a party to this Covenant and the United State of Rajasthan was reconstituted by the integration of the territories of all the ten States. By the Covenant of Merger, the Covenanting States agreed to unite and integrate their territories in one State known as the United State of Rajasthan and to have a common executive, legislature and judiciary. The Rulers of all the States became members of the Council of Rulers and the President was designated as the Raj Pramukh of the United State. Article VI of the Covenant of Merger runs as follows: "(1) The Ruler of each Covenanting State shall, as soon as practicable and in any event not later than the first day of May, 1948, make over the administration of his State to the Raj Pramukh; and thereupon 590 (a) all rights, authority and jurisdiction belonging to the Ruler which appertain or are incidental to the Govern ment of the Covenanting State shall vest in the United State and shall hereafter be exercisable only as provided by this Covenant or by the Constitution to be framed thereunder; (b) all duties and obligations of the Ruler pertain ing or incidental to the Government of the Covenanting State shall devolve on the United State and shall be discharged by it; and (c) all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the United State. " The question now is how far was the Extradition Treaty between the Tonk State and the British Government affected by reason of the merger of the State into the United State of Rajasthan. When a State relinquishes its life as such through incorporation into or absorption by another State either voluntarily or as a result of conquest or annexation, the general opinion of International Jurists is that the treaties of the former are automatically termi nated. The result is said to be produced by reason of com plete loss of personality consequent on extinction of State life(1). The cases discussed in this connection are gener ally cases where independent States have ceased to be such through constrained or voluntary absorption by another with attendant extinction of the former 's treaties with other States. Thus the forceable incorporation of Hanover into the Prussian Kingdom destroyed the previous treaties of Hanover. The admission of Texas into the United States of America by joint resolution extinguished the Treaties of the Independent Republic of Texas(2). The position is the same when Korea merged into Japan. According to Oppenheim, whose opinion has been relied upon, by Sir Alladi, no succession of rights and duties ordinarily takes place in such cases, and as political and personal treaties presuppose the exist ence of a contracting State, (1) Vide Hyde on International Law, Vol. III, p. 1529. (2) Vide Hyde on International Law, Vol. II1, p. 1531, 591 they are altogether extinguished. It is a debatable point whether succession takes place in cases of treaties relating to commerce or extradition but here again the majority of writers are of opinion that they do not survive merger or annexation(1). The remarks quoted above do not, however, seem quite appropriate to a case of the present description. Here there was no absorption of one State by another which would put an end to the State life of the former and extinguish its personality. What happened here was that several States voluntarily united together and integrated their territories so as to form a larger and composite State of which every one of the covenanting parties was a component part. There was to be one common executive, legislature and judiciary and the Council of Rulers would consist of the Rulers of all the Covenanting States. It may not be said, therefore, that the Covenanting States lost their personality altogether and it is to be noted that for purposes of succession of Ruler ship and for counting votes on the strength of population and other purposes the Covenant of Merger recognises a quasi separation between the territories of the different States. But although such separation exists for some pur poses between one State territory and another, it is clear that the inhabitants of all the different States became, from the date of merger, the subjects of the United State of Rajasthan and they could not be described as subjects of any particular State. There is no such thing as subject of the Tonk State existing at the present day and the Ruler of Tonk cannot independently and in his own right exercise any form of sovereignty or control over the Tonk territory. The Government, which exercises sovereign powers, is only one, even though the different Rulers may have a voice in it. It seems to us that in those altered circumstances the Extradi tion Treaty of 1869 has become entirely incapable of execution. It is not possible for the Tonk State, which is one of the contracting parties to act in accordance with the terms of the treaty, for it has no longer any independent (1) Oppenheim on International Law, Vol. I, p. 152, 592 authority or sovereign rights over the Tonk territory and can neither make nor demand extradition. When as a result of amalgamation or merger, a State loses its full and inde pendent power of action over the subject matter of a treaty previously concluded, the treaty must necessarily lapse(1). It cannot be said that the sovereignty of the Tonk State in this respect is now vested in the United State of Rajasthan. The authority, so far as extradition was concerned, was already surrendered by the Tonk State in favour of the Dominion Government by the Instrument of Accession. But even assuming that these treaty rights could devolve upon the United State of Rajasthan by reason of article 6 of the Covenant of Merger, the latter, it seems to me, could be totally incapable of giving effect to the terms of the treaty. As has been said already, there could be no such thing as a subject of the Tonk State at the present moment and article 2 of the Treaty which provides for extra dition of Tonk subjects accused of having committed heinous offences within Tonk territory and seeking asylum elsewhere would be wholly infructuous. The United State of Rajasthan could not possibly demand extradition on the basis of this article, and if reciprocity, which is the essence of an Extradition Agreement, is gone, the Treaty must be deemed to be void and inoperative. The decision in Terlinden vs Ames (2) which was relied upon by Sir Alladi in course of his arguments, rather forti fies the view that I have taken. The question there was whether an Extradition Treaty between Prussia and the United States of America, which was entered into in 1852, could be given effect to after the incorporation of Prussia into the German Empire. The question was answered in the affirmative. It was pointed out inter alia that the Constitution of the German Empire left sufficient independent power and sover eignty to the States composing the confederation to enable them to act upon these treaties and it was observed by Chief Justice Fuller, who delivered the opinion of the Court, that where sovereignty in respect (1) Vide Hyde on International Law, Vol. p. 1535. (2) ; 593 to the execution of treaties is not extinguished and the power to execute remains unimpaired, outstanding treaties cannot be regarded as void. This is the real criterion and as obviously the power of the Tonk State to execute the treaty is altogether gone after the Covenant of Merger, the treaty cannot but be regarded as void. The other case cited by Sir Alladi, viz., that of Lazard Brothers vs Midland Bank Ltd.(1) has absolutely no bearing on this point. It laid down the well accepted proposition of International Law that a change in the form of government of a contracting State does not put an end to its treaties. The treaty entered into by the Czarist Russia could be given effect to after the Revolution, once the new government was recognised as a person in International Law. My conclusion, therefore, is that the Extradition Treaty between the Tonk State and the British Government in 1869 is not capable of being given effect to in the present day in view of the merger of the Tonk State in the United State of Rajasthan. As no treaty rights exist, section 18 of the has no application and section 7 of the Act has been complied with, there is no ground upon which we can interfere. In view of my decision on the first point, the second point does not require determination and I refrain from expressing any opinion upon it. In the result, the appeal fails and is dismissed. DAS J I substantially agree with the reasonings given in the judgment just delivered by my learned brother Mukher jea and concur in dismissing this application. Appeal dismissed. [/INST]While greasing the spur gear wheel of an oil mill, one of the hands of a workman got caught and had to be amputated. It appeared that at the time of the accident the cover of the spur gear wheel was not there. The respondent, who is the manager of the mill was prosecuted under section 92 of the for having failed to comply with section 21(1) (iv) (c) of the Act. The workman said that the cover had been removed by the respondent for repairs, while the case of the respondent was that the workman had himself removed it. The trial Judge was unable to accept either version and he acquitted the respondent observing that he could not be held liable if the cover was removed by someone, without his consent or knowledge. On appeal, the High Court affirmed the acquittal. Held: (i) The mere fact that someone else had removed the safeguard without the knowledge, consent or connivance of the occupier or manager does not provide a defence to him. When the statute says that it will be his duty to keep a guard in position while the machine is working and when it appears that he has not done so, it will be for him to establish that notwithstanding this he was not liable. (ii) Even where the occupier or manager could establish that somebody else had removed the fence, he has further to prove that he exercised due diligence to see that the fence, which under the Act was his duty to see was kept in position all along, had not been removed. </s>

<s>[INST] Summarize the judgementivil Appeal No. 479 of 1986. 578 From the Judgment and Order dated 18.3. 1985 of the Assam High Court in Civil Rule No. 139 of 1979. A.K. Ganguli, A. Mariarputham, A.D. Sikri and Dilip Tandon for the Appellant. Kapil Sibal, Additional Solicitor General, Rajiv Dhawan, Gopal Singh, C.V.S. Rao, Adv. (NP) and R.B. Misra for the appearing respondents. Hardev Singh and section Ravindra Bhat for the intervenor. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by special leave calls in question the judgment of the Guwahati High Court dated March 18, 1985, dismissing the appellant 's writ petition. The appellant is a resident of Tripura State. In his application in a representative capacity before the High court he main tained that he belonged to the Laskar community which had always been treated in the erstwhile State of Tripura as a Scheduled Tribe and on that basis in the State records was included in the Deshi Tripura community long before integra tion of the Ruler 's State of Tripura with the Union of India. Members of the Laskar community freely enjoyed all the benefits available to members of the Schedule Tribes until in 1976 the State Government decided to treat members of that community as not belonging to the Scheduled Tribes and issued instructions to the State authorities to imple ment the Government decision. That led to the filing of the petition before the High Court. In the writ petition appel lant prayed for appropriate directions to continue to treat the appellant and members of his community as belonging to the Scheduled Tribes and for a direction to the State Gov ernment to extend all the benefits admissible to members of the Scheduled Tribes to members of the Laskar community. Before the High Court the respondents disputed the claim and maintained that the Laskar community was never included in the Scheduled Tribes Order and as such there was no question of exclusion from the list. A historical study of the claim would show that in the past Tripura/Tripuri/Tippera which have been included in the Presidential Notification never included the Laskar community. Tripuras were. a TibetoDurman race akin to the Shan tribe and Tipperas were divided into four groups, namely, (i) Puran or original Tipperas; (ii) Jamatias; (iii) Noatias or Nutan Tripuras and (iv) Riangs. Respondents relied upon Government records and official publications in support of the aforesaid stand. 579 Before the High Court two circulars of the erstwhile State of Tripura, one being of December, 1930, and the other of February, 1941, as also the census report of the ex State of Tripura were produced in support of the claim advanced by the appellant. Several authorities of this Court were relied upon for finding out the scope of enquiry in a claim of this type and ultimately by the impugned judgment the High Court dismissed the writ petition but on the basis of a statement made by the Advocate General appearing for the State, it recorded: "We keep on record the statement made by the learned Advo cate General, Tripura, on instruction that as a result of the impugned Memorandum No. 18887 19077/TW/6 4(L D) dated 28.4. 1979 the certificates already issued would be treated as infructuous prospectively and not retrospectively and those who have already enjoyed the benefits by virtue of such Scheduled Tribe certificates they shall not be deprived of the benefits they have already enjoyed and the Memorandum shall be effective from its date prospectively insofar as the future benefits are concerned. " This appeal had come up for final hearing earlier and by a brief judgment reported in , a two Judge Bench recorded the following order: "The record before us shows that the people of the Laskar community have been treated as members of the Scheduled Tribes and there have been some letters from the Government of India to the State Government in support of that posi tion; it is, however, a fact that there has been no clear inclusion of the community in an appropriate Presidential Order. The appellant has maintained that even in the absence of such a clear specification in a Presidential Order, as a sub group under one of the notified categories, the appel lant 's community has been enjoying the privileges. We have been told by the learned counsel for the Union of India that the representation made by the appellant and members of his community for inclusion in the Presidential Order under Article 342 of the Constitution is being looked into and is being placed before the Parliamentary Committee in accord ance with the prescribed procedure for a review of the position. He has assured us that the Government of India will take steps to finalise the matter at an 580 early date and may in compliance with the procedure as prescribed, take a final decision. In case the community is not included in the Presidential Order, it would be open to the appellant to take such action as may be available in law. " The appellant waited for some time and approached the Government of India for quick action but when nothing hap pened, an application for directions was made in this Court. Several adjournments were taken but Government could not take any decision. Ultimately, by consent of parties, the order disposing of the appeal was recalled and the appeal was directed to be set down for re hearing. That is how the appeal is now before us. Articles 341 and 342 of the Constitution deal with Scheduled Castes and Scheduled Tribes respectively and contain almost identical provision. We may extract Article 342 dealing with Scheduled Tribes: "342.(1) The President may, with respect to any State or Union Territory and where it is a State after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. (2) parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. " Article 366(25) defines 'Scheduled Tribes ' to mean such tribes or tribal communities or parts or groups within such tribal communities as are deemed under article 342 to be Sched uled Tribes for the purposes of this Constitution. The Constitution (Scheduled Tribes) (Union Territories) Order, 1950 relating to Tripura included 19 tribes within the notification. Items 15, 16, 17 and 18 are relevant for our purpose and they were: "15. Tripura or Tripuri, Tippera. 581 16. Jamatia 17. Noatia 18. Riang" Following the Reorganisation Act (37 of 1956), the Ministry of Home Affairs on October 29, 1956, notified the list of Scheduled Castes and Scheduled Tribes. In respect of the then Union Territory of Tripura the same communities were relisted. Then came the NorthEastern Area (Reorganisa tion) Act (81 of 1971) which in the Fourth Schedule con tained amendment to the Constitution (Scheduled Tribes) Order, 1950. Items 15 to 18 in the Scheduled contained the same descriptions. The Scheduled Castes & Scheduled Tribes Orders (Amendment) Act, (108 of 1976) in relation to Tripura in the Second Scheduled carried the same in Entries 7, 14, 16 and 18. It is, therefore, clear that in Tripura the scheduled tribes within the meaning of the definition given in article 366 of the Constitution have been the following: 'Jamatia, Noatia, Riang and Tripura/Tripuri/Tippera ' apart from 15 other tribes as specified. It is not necessary to refer to the 15 others inasmuch as it is the case of the appellant that Laskars are a part of the tribe named as Tripura, Tripuri or Tippera covered by Entry 18. Before adverting to the evidence upon which the appel lant relies in support of his stand, it is necessary that the scope of enquiry to be conducted in this regard by the Court may be determined. There are precedents of this Court which have to be first referred to. A Constitution Bench in the case of B. Basavalingappa vs D. Munichinnappa, ; examined the provisions of article 341 which contained similar provisions for the scheduled castes with reference to an election dispute. Wanchoo, J. spoke for the Constitu tion Bench thus: "Clause (1) provides that the President may with respect to any State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State. The object of this provision obviously is to avoid all disputes as to whether a particular caste is a Scheduled Caste or not and only those castes can be Scheduled Castes which are notified in the Order made by the President under article 341 after consultation with the Governor where it relates to 582 such castes in a State. Clause (2) then provides that Par liament may by law include in or exclude from the list of scheduled castes specified in a notification issued under cl. (1) any caste, race or tribe or part of or group within any caste, race or tribe. The power was thus given to Par liament to modify the notification made by the President under cl. Further cl. (2) goes on to provide that a notification issued under cl. (1) shall not be varied by any subsequent notification, thus making the notification by the President final for all times except for modification by law as provided by cl. Clearly therefore article 341 provides for a notification and for its finality except when altered by Parliament by law . . Therefore in view of this stringent provision of the Constitution with respect to a notification issued under cl. (1) it is not open to any one to include any caste as coming within the notification on the basis of evidence Oral or documentary, if the caste in question does not find specific mention in the terms of the notification . . It may be accepted that it is not open to make any modification in the Order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also a part of caste A and there fore must be deemed to be included in caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in Order. Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order. " The factual dispute raised in the case before the Con stitution Bench was whether Voddar caste was included in Bhovi caste which was one of the notified castes. The Con stitution Bench dealt with the evidence and ultimately said: "In the circumstances therefore we agree with the High Court that respondent No. 1 though Voddar by caste belongs to the scheduled caste of Bhovi mentioned in the Order. We may again repeat that we have referred to the evidence in this case only because there was undoubtedly no caste known as Bhovi in the Mysore State as it was before 1956 and we had to find out therefore which caste was meant by the word 'Bhovi ' as used in the Order. But for this fact it would not have been open to any party to 583 give evidence to the effect that caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies. " A similar dispute again came before a Constitution Bench in Bhaiyalal vs Harikishan Singh & Ors., ; with reference to a scheduled tribe in an election dispute. Gajendragadkar, CJ speaking for the Court said: "It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examina tion of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before a notification is issued under article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State. " What we have extracted above clearly supports the view of the other Constitution Bench, namely, the list is intend ed to be final. We may now refer to a two Judge Bench decision in the case of Parsram & Anr. vs Shivchand & Ors. , ; Here again, the Scheduled Castes Order was in issue in an election dispute and the question for consideration was whether mochi was included in the notified caste of chamar. The Court referred to both the Constitution Bench judgments and indicated: "These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazeteers and the glossaries on the Punjab castes and tribes 584 to which reference was made at the Bar to find out whether Mochi and Chamar in some parts of the State at least meant the same caste although their might be some difference in the professions followed by their members, the main differ ence being that Chamars skin dead animals which Mochis do not. However that may be, the question not being open to agitation by evidence and being one the determination of which lies within the exclusive power of the President, it is not for us to examine it and come to a conclusion that if a person was in fact a Mochi, he could still claim to belong to the scheduled caste of Chamars and be allowed to contest an election on that basis. " In Kishorilal Hans vs Raja Ram Singh & Ors., ; a two Judge Bench was called upon to decide whether jatav caste not mentioned in the scheduled castes of Datia district of Madhya Pradesh in the Order was included in chamar caste. The Court indicated: "If the matter were res integra we would have felt a good deal of difficulty in reconciling with the constitutional provisions the scheme followed in the state and the Orders concerned by which some caste has been includes in some districts of the same State and excluded in the other dis tricts. This Court, however, has in Bhaiyalal vs Harikishan Singh & Ors., supra, made observations repelling the conten tion that under article 341 of the Constitution the President was not authorised to limit the notification to parts of a State . . In Bhaiyalal 's case the appellant 's election had been challenged on the ground that he belonged to the Dohar caste which was not recognised as a scheduled caste for the district in question and so his declaration that he belonged to the Chamar caste which was a Scheduled Caste was improperly and illegally accepted by the Returning Officer. It was held that the plea that though the appellant was not a Chamar as such he could claim the same status by reason of the fact that he belonged to Dohar caste which is a sub caste of the Chamar caste could not be accepted. An enquiry of that kind would not be permissible having regard to the provisions contained in article 341 of the Constitution. " We may now refer to two separate judgments of this Court in the case Dina vs Narayan Singh, and Bhaiya Ram Munda vs 585 Anirudh Patar & Ors., ; Both were rendered by a common Bench of Shah (as he then was) and Bhargava, JJ. In the first case the question for consideration was inter pretation of Entry 12 in the Scheduled Tribes Order. The entry read. 'Gond including Mana '. The Court interpreted that Mana community was a substitute of Gond and on a proper construction of the entry Manas not being Gonds were not intended to be included. The decision in that case is not relevant for our purpose. In Bhaiya Ram 's case, the tribe specified in the Sched uled Tribes Order was Munda. The respondent was a Patar but he maintained that it was included in the notified tribe. The Bench was of the view that evidence was admissible for the purpose of showing what an entry in the Presidential Order was intended to mean though evidence could not be accepted for modifying the order by including a new tribe. Since the respondents ' case was that Patars were Mundas, evidence could be given to show that the entry 'Munda ' included 'Patar '. These authorities clearly indicate, therefore, that the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined within the limitations indicated. It is, however, not open to the Court to make any addition or subtraction from the Presidential Order. The evidence in this case on which reliance has been placed in support of the claim that Laskars are included in the tribe described as 'Tripura/Tripuri/Tippera ' mainly consists of two circulars of the erstwhile State of Tripura. Circular No. 9 is of December, 1930. There is a narration therein to the following effect: "In this State Tripura Sampradaya means the following five communities ' 1. Puratan Tripura 2. Deshi Tripura (related to Laskar Class) 3. Noatia 4. Jamatia 5. Riang" 586 In Circular No. 10 which is of the year 1941, it has been said: "In this State Tripura Kshatriya denotes the following classes: 1. Puratan Tripura 2. Deshi Tripura (related to Laskar Class) 3. Noatia 4. Jamatia 5. Riang" The latter document related to census operation in the State. From these two documents it is clear that Deshi Tripura covered the Laskar class while there was another class called 'Tripura/Tripuri/ Tippera ' which did not relate to Laskar class. The Presidential Order has admitted the three tribes of Noatia, Jamatia and Riang in terms but while dealing with the two classes of Puratan Tripura and Deshi Tripura covering the Laskar class, it has adopted the de scription of those three terms without referring to Puratan or Deshi. The two Constitution Bench judgments indicate that enquiry is contemplated before the Presidential Order is made but any amendment to the Presidential Order can only be by legislation. We do not think we should assume jurisdic tion and enter into an enquiry to determine whether the three terms indicated in the Presidential Order include Deshi Tripura which covers the Laskar community; but we consider it appropriate to commend to the authorities con cerned that as and when the question is reviewed it should be examined whether the claim of the appellant representing the Laskar community to be included in the scheduled tribes is genuine and should, therefore, be entertained. Reservation has become important in view of the increas ing competition in society and that probably had led to the anxiety of the appellant and the people in his community to claim reservation. As pointed out by the Constitution Bench judgments which we have referred to above, the basis on which inclusion into or exclusion from the enumerated list made under article 342 is contemplated is the changing econom ic, educational and other situations of the members of any 587 particular tribe. Keeping that in view the State Government may initiate appropriate proposals for modification in case it is satisfied and after appropriate enquiry if the author ities are satisfied that the claim is genuine and tenable, amendment may be undertaken as provided by the Constitution. This Court has indicated in some of the judgments re ferred to above that as a result of the detailed enquiry made as to the economic status, the level of education and the necessity of protection, inclusion into or exclusion from the Order is made. This material relating to the Laskar tribe in 1930 or 1941 may not have been considered suffi cient before the respective Orders were made for including the Laskars, said to have been covered by the description of Deshi Tripura. Therefore, even if historically this tribe was covered by the general description of Tripura, that by itself may not justify its inclusion in the Order as a scheduled tribe. That is an additional feature which has weighed with us in taking our decision not to interfere in the matter. The claim of the appellant is dismissed so far as this Court is concerned but the observations which we have made may be kept in view. There shall be no order for costs through out. Y. Lal Appeal dismissed. [/INST]These writ petitions have been fried by Group 'C ' (class III) employees of the Railways working in its Transportation (Traffic) Department. The said Department has different streams e.g. 'Control Stream ' and 'Traffic Stream ' and the employees working therein have different scales of pay. For purposes of their promotion to Group B posts, it was neces sary to fix their inter se seniority, as only those employ ees from the different streams could be considered for promotion as would fall within the zone of consideration as per seniority list. As the zone of consideration is deter mined with reference to the number of vacancies in Group B for which selection is held, at any point of time, the position of the employee in the combined seniority list of all the streams is important. The zone of consideration of the employees for promotion Is fixed in the order of the combined seniority of the employees from the different streams. The Department prior to the implementation of the recommendations of the Third Pay Commission fixed the inter se seniority of the employees of Group C employees on the basis of the grade i.e. employees working In a higher grade on a regular basis were treated senior to those working in the lower grade and the said principle worked well until the enforcement of the recommendations of the Third Pay Commis sion w.e.f. 1.1.1973, when higher or lower scales of pay came to be fixed in respect of certain posts which were having the same scale of pay upto 31.12.1972. This presented difficulty in fixing the inter se seniority of the employees and the Railway Board in order to resolve the difficulty issued circulars from time to time indicating how their seniority should be fixed but for some reason or the other, the dissatisfaction amongst the employees in the matter of seniority continued. Being aggrieved by the experiments which according to the petitioners only resulted in chaos and confusion, employees of the Control Stream have flied the writ petition on the Issue of a combined seniority list published by the administration on the basis 451 of instructions on 15.6.85, as they found themselves exclud ed from the panel of staff to be taken into consideration for promotion to Group B. They pray that the circular dt. 6.1.84 and the follow up action taken culminating in the Selection List be set aside. The petitioner challenge the validity of two circulars issued by the Board, one on 29.7.83 and the other on 26.1.2.1983, restructuring the cadres as discriminatory as according to them they envisage 'mass upgradation ' to their detriment. The question for determination is whether the principle adopted on the strength of these circulars for fixing the inter se seniori ty of these employees is proper. Dismissing the writ petitions with liberty to the Peti tioners to move the Central Administrative Tribunal, if so advised with fuller facts, this Court, HELD: The inequity is not apparent. Having to deal with two different streams, differently placed, the Government has to find out an equitable solution and it has been grop ing towards it. One method would perhaps have been to have fixed quotas for promotion from each of the streams but that is not necessarily the only method. An alternative method is being attempted here and the principle that grades of Rs.700 900 and above should be considered together being conceded the Department is trying to give some weightage by granting upgradation to each stream based on its total strength in order to balance the promotional chances in both the streams. It is possible that some individual cases may be affected but no answer to the question whether any class discrimination has resulted can be given unless fuller details are available and the practical impact of the latest position is placed before the Court. [463A C] </s>

<s>[INST] Summarize the judgementiminal Appeal No. 14 of 1968. Appeal by special leave from the judgment and order dated April 20, 1967 of the Calcutta High Court in Criminal Revision No. 502 of 1966. B. Sen and P. K. Chakravarti, for the appellants. A. section R. Chari, B. P. Maheshwari and Sobhag Mal Jain, for respondent No. 1. The Judgment of the Court was delivered by Shah J. In the course of investigation of offences under sections 420, 467, 471 and 120 B.I.P. Code the Officer in charge of the investigation submitted an application before the Chief Presidency Magistrate, Calcutta, for an order that a warrant for the arrest of Jugal Kishore More and certain other named persons be issued and that the warrant be, forwarded with the relevant records and evidence to the Ministry of External Affairs, Government of India, for securing extradition of More who was then believed to be in Hong Kong. It was stated in the application that More and others "were parties to a criminal conspiracy in Calcutta between May 1961 and December 1962 to defraud the Government of India in respect of India 's foreign exchange", and their presence was required for trial. The Chief Presidency Magistrate held an enquiry and recorded an order on July 19, 1965, that on the materials placed before him, a prima facie case was made out of a criminal conspiracy, 32 3 was "hatched in Calcutta" within his jurisdiction, and More was one of the conspirators. He accordingly directed that a nonbailable warrant in Form 11 Sch. V of the Code of Criminal Procedure be issued for the arrest of More, and that the warrant be sent to the Secretary Home (Political) Department, Government of West Bengal, with a request to take all necessary steps to ensure execution of the warrant. A copy of the warrant was sent to the Commissioner of Police, Calcutta, for information. In the warrant More was described as Manager, Premko Traders of 7, Wyndhan Street and 28, King 's Road, Hong Kong. The Chief Presidency Magistrate forwarded to the Government of West Bengal, the warrant with attested copies of the evidence recorded at the enquiry and photostat copies of documents tendered by the prosecution in evidence "in accordance with the procedure laid down in Government of India, Ministry of External Affairs, letter No. K/52/ 6131/41 dated 21st May, 1955". The warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs, Government of India. The Ministry of External Affairs forwarded the warrant to the High Commissioner for India, Hong Kong, who in his turn, requested the Colonial Secretary, Hong Kong, for an order extraditing More under the Fugitive Offenders Act, 1881, (44 and 45 Vict., c. 69), to India for trial for offences described in the warrant. The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong Police, "pursuant to section 13 of Part 11 and section 26 of Part IV of the Fugitive Offenders Act, 1881", to arrest More. The order recited : "WHEREAS I have perused this warrant for the apprehension of Jugal Kishore More, . accused of an offence punishable by law in Calcutta, Republic of India, which warrant purports to be signed by the Chief Presidency Magistrate, Calcutta, and 'is sealed with the seal of the Court of the said Magistrate, and is attested by section K. Chatterjee,. Under Secretary in the Ministry of External Affairs of the Republic of India and sealed with the seal of the said Ministry; AND WHEREAS I am satisfied that this warrant was issued by a person having lawful authority to issue the same; AND WHEREAS it has been represented to me that the said Jugal Kishore More . is suspected of being in the Colony; AND WHEREAS Order in Council S.R. and 0. No. 28 of 1918 by virtue of which Part 11 of the Fugitive Offenders Act, 1881, was made to apply to a group 324 of British Possessions and Protective States including Hong Kong and British India, appears to remain in full force and effect so far as the law of Hong Kong is concerned. Now therefore under section 13 of the Fugitive Offenders Act, 1881, I hereby endorse this Warrant and authorise and command you in Her Majesty 's name, forthwith to execute this Warant in the Colony to apprehend the said Jugal Kishore More, . wherever he may be found in the Colony and to bring him before a Magistrate of the said Colony to be further dealt with according to law. " More was arrested on November 24, 1965. By order dated April 4, 1966, the Central Magistrate, Hong Kong, over ruled the objection raised on behalf of More that the Court had no jurisdiction to proceed in the matter under the Fugitive Offenders Act, 1881, since the Republic of India was no longer a "British Possession". On May 16, 1966, Hanuman Prasad father of More moved in the High Court of Calcutta a petition under section 439 of the Code of Criminal Procedure and article 227 of the Constitution for an order quashing the warrant of arrest issued against More and all proceedings taken pursuant thereto and restraining the Chief Presidency Magistrate and the Union of India from taking any further steps pursuant to the said warrant of arrest and causing More to be extradited from Hong Kong to India. The petition was heard before a Division Bench of the High Court. A. Roy, J., held that the warrant issued by the Chief Presidency Magistrate was not illegal and the procedure followed for securing extradition of More was not irregular. In his view the assumption made by the Central Magistrate, Hong Kong, that for the purpose of the Fugitive Offenders Act, India was a "British possession" was irrelevant since that was only a view expressed by him according to the municipal law of Hong Kong, and by acceding to the requisition for extradition and surrender made upon that country by the Government of India in exercise of sovereign rights the status of the Republic of India was not affected. In the view of Gupta, J., the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were without jurisdiction, that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a notified order under section 3 of the , and the High Court could not ignore the "laws of the land, even to support a gesture of comity to another nation," that 325 what was done by the Hong Kong authorities pursuant to the request made for the surrender of More was "not an instance of international comity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate, Hong Kong, regarded India as a Colony or Possession of the British Commonwealth". The case was then posted for hearing before R. Mukherji, J. The learned Judge held that the. Chief Presidency Magistrate had no power to issue the warrant of arrest in the manner, he had done, a manner which in his view was "unknown to the Code of Criminal Procedure", since the Fugitive Offenders Act, 18 8 1, had ceased, on the coming into force of the Constitution, to be part of the law of India and could not on that account be resorted to for obtaining extradition if offenders from another country; that the instructions issued by the Government of India by letter No. 3516 J dated June 14, 1955, laying down the procedure to the followed by the courts for securing extradition 'of offenders from the Commonwealth countries should have been ignored by the Chief Presidency Magistrate, and that the 34 of 1962 did not authorise the Chief Presidency Magistrate to issue a warrant and to send it to the Secretary, Home (Political) Department, Government of West Bengal; that there "was no legal basis for the requisition made by the Central Government to Hong Kong" for extradition or surrender of More or for the issue of the warrant by the Chief ' Presidency Magistrate; and that the demand made by the Government of India to the Government of Hong Kong by making a requisition to Hong Kong for the arrest of More "was not a political act beyond the purview of law and judicial scrutiny" and being inconsistent with the law was liable to be rectified. He observed that the Central Government had the power under section 3 of the , to issue a notification for including Hong Kong in the list of countries from which offenders may be extradited, but since the Government had not issued any notification under that clause in exercise of the executive power, the Government could not attempt in violation of the statutory procedure seek extradition which the law of India did not permit. The learned Judge accordingly ordered that the warrant of arrest dated July 30, 1965, issued by the Chief Presidency Magistrate, Calcutta, against More and all subsequent proceedings taken by the Chief Presidency Magistrate and the other respondents be quashed. The State of West Bengal has appealed to this Court with special leave. Extradition is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or convicted and which are justiciable in the courts of the other State. Surrender of a person within the State to another 326 State whether a citizen or an alien is a political act done in pursuance of a treaty or an arrangement ad hoc. It is founded on the broad principle that it is in the interest of civilized communities that crimes should not go unpunished, and on that account it is recoginised as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice. The law relating to extradition between independent States is based on treaties. But the law has operation national as well as international It governs international relationship between the sovereign States which is secured by treaty obligations. But whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made. Though extradition is granted in implementation of the international commitments of the State, the procedure to be followed by the Courts in deciding whether extradition should be 'granted and on what terms, is determined by the municipal law. As observed in Wheaten 's International Law, Vol. 1, 6th Edn., p. 213 : " 'The constitutional doctrine in England is that the Crown may make treaties with foreign States for the extradition of criminals, but those treaties can only be carried into effect by Act of Parliament, for the executive has no power, without statutory authority, to seize an alien here and deliver him to a foreign power. " Sanction behind an order of extradition is therefore the international commitment of the State under which the Court functions, but Courts jealously seek to protect the right of the individual by insisting upon strict compliance with the conditions precedent to surrender. The Courts of the country which make a requisition for surrender deal with the prima facie proof of the offence and leave it to the State to make a requisition upon the other ,State in which the offender has taken refuge. Requisition for surrender is not the function of the Courts but of the State. A warrant issued by a Court for an offence committed in a country from its very nature has no extra territorial operation. It is only a command by the Court in the name of the sovereign to its officer to arrest an offender and to bring him before the Court. By making a requisition in pursuance of a warrant issued by a ,Court of a State to another State for assistance in securing the presence of the offender, the warrant is not invested with extra territorial operation. If the other State requested agrees to lend its aid to arrest the fugitive the arrest is made either by the issue ,of an independent warrant or endorsement or authentication of 'the warrant of the Court which issued it. By endorsement or 327 authentication of a warrant the country in which an offender has taken refuge signifies its willingness to lend its assistance, in implementation of the treaties or international commitments and to secure the arrest of the offender. The offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which the requisition is made, and the Court holds an inquiry to determine whether the offender may be extradited. International commitment or treaty will be effective only if the Court of a country in which the offender is arrested after enquiry is of the view that the offender should be surrendered. The functions which the Courts in the two countries perform are therefore different. The Court within whose jurisdiction the offence is committed decides whether there is prima facie evidence on which a requisition may be made to another country for surrender of the, offender. When the State to which a requisition is made agrees consistently with its international commitments to lend its aid the requisition is transmitted to the Police authorities, and the Courts of that country consider, according to their own laws whether the offender should be suffendered the enquiry is in the absence of express provisions to the contrary relating to the prima facie evidence of the commission of the offence which is extraditable, the offence not being a political offence nor that the requisition being a subterfuge to secure custody for trial for a political offence. Prior to January 26, 1950, there was in force in India the Indian 15 of 1903, which as the preamble ex pressly enacted was intended to provide for the more convenient administration of the Extradition Acts of 1870 and 1873, and the Foreign Jurisdiction Act of 1881 both enacted by the British Parliament. The Act enacted machinery in Ch. II for the surrender of fugitive criminals in case of Foreign States i.e., States to which the of 1870 and 1873 applied and in Ch. II for surrender of fugitive offenders in case of "His Majesty 's Dominions". The Extradition Acts of 1870 and 1873 sought to give effect to arrangements made with foreign States with respect to the surrender to such States of any fugitive criminals Her Majesty may by Order in Council, direct and to prescribe the procedure for extraditing fugitive offenders to such foreign states. As observed in Halsbury 's Laws of England Vol. 16, 3rd Edn., para 1161 at p. 567 : "When a treaty has been made with a foreign State and the Extradition Acts have been applied by Order in Council, one of Her Majesty 's principal Secretaries of State may, upon a requisition made to him by some person recognized by him as a diplomatic representative of 328 that foreign State, by order under his hand and seal, signify to a police magistrate that such a requisition has been made and require him to issue his warrant for the apprehension of the fugitive criminal if the criminal is in or is suspected of being in, the United Kingdom. " The warrant may then be issued by a police magistrate on receipt of the order of the Secretary of State and upon such evidence as would in his opinion justify the issue of the warrant if the crime had been committed or the criminal convicted in England. The procedure for extradition of fugitive offenders from "British possessions" was less complicated. When the was applied by Order in Council unless it was otherwise provided by such Order, the Act extended to every "British possesSion" in the same manner as if throughout the Act the "British possession" were substituted for the United Kingdom, but with certain modifications in procedure. Under Part I of the Fugitive Offenders Act 1881 a warrant issued in one part of the Crown 's Dominion for apprehension of a fugitive offender, could be endorsed for execution in another Dominion. After the fugitive was apprehended he was brought before the Magistrate who heard the case in the same manner and had the same jurisdiction and powers as if the fugitive was charged with an offence committed within the Magistrate 's jurisdiction. If the Magistrate was satisfied, after expiry of 15 days from the date on which the fugitive was committed to prison, he could make an order for surrender of the fugitive on the warrant issued by the Secretary of State or an appropriate officer. There was also provision for "inter colonial backing of warrants" within groups of "British possessions" to which Part I of the Fugitive Offenders Act, 1881 has been applied by Order in Council. In such groups a more rapid procedure for the return of fugitive offenders between possessions of the same group was in force. Where in a "British possession", of a group to which Part II of the Act applied, a warrant was issued for the apprehension of a person accused of an offence punishable in that possession and such term is or was suspected of being, in or on the way to another British possession of the same group, a magistrate in the last mentioned possession, if satisfied that the warrant was issued by a person having lawful authority to issue the same, was bound to endorse such warrant, and the warrant so endorsed was sufficient authority to apprehend, within the jurisdiction of the endorsing magistrate the person named in the warrant and to bring him before the endorsing magistrate or some other magistrate in the same possession. If the magistrate before whom a person apprehended was brought was satisfied that the war rant was duly authenticated and was issued 329 by a person having lawful authority to issue it, and the identity of the prisoner was established he could order the prisoner to be returned to the British possession in which the warrant was issued and for that purpose to deliver into the custody of the persons to whom the warrant was addressed or of any one or more of them, ,and to be held in custody and conveyed to that possession, there to be dealt with according to law as if he had been there apprehended. This was in brief the procedure prior to January 26, 1950. The President of India adapted the Extradition Act 1903, in certain particulars. The Fugitive Offenders Act, 1881 and the Extradition Act, 1870, in their application to India were however not repealed by the Indian Parliament and to the extent they were consistent with the constitutional scheme they remained applicable. In order to maintain the continued application of laws of the British Parliament, notwithstanding India becoming a Republic, the British Parliament enacted the India (Consequential Provision) Act 1949 which by section 1 provided : "(1) On and after the date of India 's becoming a republic, all existing law, that is to say, all law which, whether being a rule of law or a provision of an Act of Parliament or of any other enactment or instrument whatsoever, is in force on that date or has been passed or made before that date and comes into force thereafter, shall, until provision to the contrary is made by the authority having power to alter that law and subject to the provisions of sub section (3) of this section, have the same operation in relation to India, and to persons and things in any way belonging to or connected with India, as it would have had if India had not become a republic. (3)His Majesty may by Order in Council make provision for such satisfaction of any existing law to which this Act extends as may appear to him to be necessary or expedient in view of India 's becoming a republic while remaining a member of the Commonwealth, and sub section (1) of this section shall have effect in relation to any such law as modified by such an order in so far as the contrary intention appears in the order. An Order in Council under this section (a)may be made either before or after India becomes a republic, and may be revoked or varied by a subsequent Order in Council ', and 330 (b)shall be subject to annulment in pursuance of a resolution of either House of Parliament." In 1954 this Court was called_upon to decide a case relating to extradition to Singapore, a British Colony, of a person alleged to be a fugitive offender The State of Madras vs C. G. Menon and Another(1). In that case Menon and his wife were apprehended and produced before the Chief Presidency Magistrate, Madras, pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act, 1881. Arrests were made in pursuance of requisition made by the Colonial Secretary of Singapore requesting the assistance of the Government of India to arrest and return to the Colony of Singapore Menons under warrants issued by the Police Magistrate of Singapore. Menons pleaded that the Fugitive Offenders Act, 1881, under which the action was sought to be taken against them was repugnant to the Constitution of India and was void and unenforceable. The Chief Presidency Magistrate. referred two questions of law for decision of the High Court of Madras (1) Whether the Fugitive Offenders Act, 1881, applies to India after 26th January, 1950, when India became a Sovereign Democratic Republic; and (2)Whether, even if it applied, it or any of its provisions, particularly Part II thereof, is repugnant to the Constitution of India and is therefore void and or inoperative. The High Court held that the Fugitive Offenders Act was in consistent with the fundamental right of equal protection of the laws guaranteed by article 14 of the Constitution and was void to that extent and unenforceable against the petitioners. In appeal brought to this Court it was observed : "It is plain from the. . provisions of the Fugitive Offenders Act as well as from the Order in Council that British Possessions which were contiguous to one another and between whom there was frequent inter communication were treated for purposes of the Fugitive Offenders Act as one integrated territory and a summary procedure was adopted for the purpose of extraditing persons who had committed offences in these integrated territories. As the laws prevailing in those possessions were substantially the same, the requirement that no fugitive will be surren dered unless a prima facie case was made against him was dispensed with. Under the Indian Extradition (1)[1955] 1 S.C.R. 280. , also a similar requirement is insisted upon before a person can be extradited. The situation completely changed when India became a Sovereign Democratic Republic. After the achievement of independence and the coming into force of the new Constitution by no stretch of imagination could India be described as a British Possession and it could not be grouped by an Order in Council amongst those Possessions. Truly speaking, it became a foreign territory so far as other British Possessions are concerned and the extradition of persons taking asylum in India, having committed offences in British Possessions, could only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate legislation. The Union Parliament has not so far enacted any law on the subject and it was not suggested that any arrangement has been arrived at between these two Governments. The , has been adapted but the Fugitive Offenders Act, 1881, which was an Act of the British Parliament has been left severely alone. The provisions of that Act could only be made applicable to India by incorporating them with appropriate changes into an Act of the Indian Parliament and by enacting an Indian Fugitive Offenders Act. In the absence of any legislation on those lines it seems difficult to hold that section 12 or section 14 of the Fugitive Offenders Act has force in India by reason of the provisions of article 372 of the Constitution. The whole basis for the applicability of Part II of the Fugitive Offenders Act has gone : India is no longer a British Possession and no Order in Council can be made to group it with other British Possessions. . . . The political background and shape of things when Part II of the Fugitive Offenders Act, 1881, was enacted and envisaged by that Act having completely changed, it is not possible without radical legislative changes to adapt that Act to the changed conditions. That being so, in our opinion, the tentative view expressed by the Presidency Magistrate was right. After this judgment was delivered, the Government of India, Ministry of External Affairs, issued a notification on May 21, 1955, to all State Governments of Part A, B, C & D States. It was stated in the notification that : ". in a certain case of extradition of an offender, the Supreme Court of India recently ruled that in 332 the changed circumstances, the English Fugitive Offenders Act, 1881, is no longer applicable to India. There can therefore, be no question of issuing a warrant of arrest, addressed to a foreign police or a foreign court, in respect of persons who are residing outside India except in accordance with the Code of Criminal Procedure, 1898. 2.In the circumstances, to obtain a fugitive offender from the United Kingdom and other Commonwealth countries, the following procedure may be adopted as long as the new Indian Extradition law is not enacted and the Commonwealth countries continue to honour our requests for the surrender of the fugitive offenders notwithstanding decisions of the Supreme Court; (a)The Magistrate concerned will issue a warrant 'for the arrest of the fugitive offender to Police officials ,of India in the usual form prescribed under the Code of 'Criminal Procedure, 1898. (b)The warrant for arrest, accompanied by all such, documents as would enable a prima facie case to be established against the accused will be submitted by the Magistrate to the Government of India in the Ministry of External Affairs, through the State Government concerned. 3.This Ministry, in consultation with the Ministries ,of Home Affairs, and Law, will make a requisition for the surrender of a fugitive offender in the form of a letter, requesting the Secretary of State (in the case of dominions, the appropriate authority in the dominion) to get the warrant endorsed in accordance with law. This letter will be addressed to the Secretary of State, (or other appropriate authority in case of Dominions) through the High Commissioner for India in the United Kingdom/Dominion concerned and will be accompanied by the warrant issued by the Magistrate at (a) of para 2 above and other documents received therewith. " The Chief Presidency Magistrate Calcutta made out the warrant for the arrest of More pursuant to that notification and sent the warrant to the Secretary, Home (Political) Department, Government of West Bengal. Validity of the steps taken in accordance with the notification by the Chief Presidency Magistrate is questioned in this appeal. To complete the narrative, it is necessary to refer to the Extradition Act 34 of 1962. The Parliament has enacted Act 34 333 of 1962 to consolidate and amend the law relating to ' extraction of fugitive criminals. It makes provisions by Ch. II for extradition of fugitive criminals to foreign States and to commonwealth countries to which Ch. HI does not apply Chapter III deals with the return of fugitive criminals to commonwealth countries with extradition arrangements. By section 12 it is provided "(1) This Chapter shah apply only to any such commonwealth country to which, by reason of an extradition arrangement entered into with that country, it may seem expedient to the Central Government to apply the same. (2)every such application shall be by notified order, and the Central Government may, by the same or any subsequent notified order, direct that this Chapter and Chapters 1, IV and V shall, in relation to any such commonwealth country, apply subject to such modifications, exceptions, conditions and qualifications as it may think fit to specify in the order for the purpose of implementing the arrangement. " Section 13 provides that the fugitive criminals from common wealth countries may be apprehended and returned. Chapter IV deals with the surrender or return of accused or convicted persons from foreign States or commonwealth countries. By section 19 it was provided that (1)A requisition for the surrender of a person accused or convicted of an extradition offence committed in India and who is or is suspected to be, in any foreign State or a commonwealth country to which Chapter III does not apply, may be made by the Central Government (a)to a diplomatic representative of that State or country at Delhi; or (b)to the Government of that State or country throughthe diplomatic representative of India in that State or country; and if neither of these modes is convenient, the requisition shall be made in such other mode as is settled by arrangement made by the Government of India with that State or country. (2)A warrant issued by a magistrate in India for the apprehension of any person who is, or is suspected to be, in any Commonwealth country to which Chapter III applies shall be in such form as may be 'prescribed. 8 Sup CI/69 3 334 BY cl. (a) of section 2 the expression "commonwealth country" means 'a commonwealth country specified in the First Schedule, and such other commonwealth country as may be added to that Schedule by the Central Government by notification in the Official Gazette, and includes every constituent part, colony or dependency of any, commonwealth country so specified or added :". But in the Schedule to the Act "Hong Kong" is not specified as one of the commonwealth country and no notification ,has been issued by the Government of India under section 2(a) adding to the First Schedule "Hong Kong ' as a commonwealth country. It is common ground between the parties that the provisions of the , could not be resorted to for making the requisition for surrender of the fugitive offender from Hong Kong, and no attempt was made in that behalf. Validity of the action taken by the Chief Presidency Magis trate must therefore, be adjudged in the light of the action taken pursuant to the notification issued by the Government of India on May 21, 1955. Counsel for the respondent More urged that the warrant issued by the Chief Presidency Magistrate was intended to be and could in its very nature be a legal warrant enforceable within India : it had no extra territorial operation, and could not be enforced outside India, and when the Central Magistrate Hong Kong, purported to endorse that warrant for enforcement within Hong Kong he had no authority to do so. But this Court has no authority to sit in judgment over the order passed by the Hong Kong Central Magistrate. The Magistrate acted in accordance with the municipal law of Hong Kong and agreed to the surrender of the offender : his action cannot be challenged in this Court. It may also be pointed out that Form II of the warrant prescribed in Sch. V of the Code of Criminal Procedure only issues a direction under the authority of the Magistrate to a Police Officer to arrest a named person and to produce him before the Court. It does not state that the warrant shall be executed in any designated place or area. By section 82 of the Code of Criminal Procedure a warrant of arrest may be executed at any place in India. That provision does not impose any restriction upon the power of the Police Officer. The section only declares in that every warrant issued by any Magistrate in India may be executed at any place in India, execution of the warrant is not restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant or of the Court to which he is subordinate. In Emperor vs Vinayak Damodar Savarkar and Ors. (1) the Bombay High Court considered the question whether a person who was brought to the country and was charged before a Magis (1) I.L.R. 335 trate with an offence under the Indian Penal Code was entitled to challenge the manner in which he was brought into the country from a foreign country. Savarkar was charged with conspiracy under sections 121, 121A, 122 and 123 of the Indian Penal Code. He was arrested in the United Kingdom and brought to India after arrest. under the Fugitive Offenders Act, 1881. When the ship in which he was being brought to India was near French territory Savarkar escaped from police custody and set foot on French territory at Marseilles. He was arrested by the police officers without reference to the French police authorities and brought to India. It was contended at the trial of Savarkar that he was not liable to be tried in India, since arrest by the Indian police officers in a foreign territory was without jurisdiction. Scott, C.J., who delivered the principal judgment of the Court rejected the contention. He observed : "Where a man is in the country and is charged before a Magistrate with an offence under the Penal Code it will not avail him to say that he was brought there illegally from a foreign country. " It is true that Savarkar was produced before the Court and be raised an objection about the validity of the trial on the plea that he was illegally brought to India after unlawful arrest in foreign territory. In the present case we are concerned with a stage anterior to that. The respondent More though arrested in a foreign country lawfully, by the, order of the Central Magistrate, Hong Kong, had not been surrendered and the invalidity of the warrant issued by the Chief Presidency Magistrate is set up as a ground for refusing to obtain extradition of the offender. But on the principle of Vinayak Damodar Savarkar 's case(1) the contention about the invalidity of the arrest cannot affect the jurisdiction of the Courts in India to try More if and when he is brought here. The 15 of 1903 which was enacted to provide for the more convenient administration of the English Extradition Act, 1870 & 1873 and the Fugitive Offenders Act. 1881, remained in operation. But after January 26, 1950, India is no longer a "British Possession." In C. G. Menon 's case (2) it was decided by this Court that application of sections 12 and 14 of the Fugitive Offenders Act, 1881, for surrendering an offender to a Commonwealth country in pursuance of a requisition under the Fugitive Offenders Act, 1881, is inconsistent with the political status of India. It is somewhat unfortunate that the Court hearing that case was not invited to say anything about the operation of the India (Consequential Provision) Act, 1949. But C. G. Menon 's case(2) was a reverse case, in that, the Colonial Secretary of Singapore had made a requisition for (1) I.L.R. (2) ; 336 surrender of the offender for trial for offences of criminal breach of trust in Singapore. Whether having regard to the political status of India since January 26, 1950, the Fugitive Offenders Act, 1881, insofar as it purported to treat India as a "British Possession" imposed an obligation to. deliver offenders in pursuance of the India (Consequential Provision) Act 1949. is a question on which it is not necessary to express an opinion. By the declaration of the status of India as a Republic, India has not ceased to be a part of the Commonwealth and the United Kingdom and several Colonies have treated the Fugitive Offenders Act, 1881, as applicable to them for the purpose of honouring the requisition made by the Republic of India from time to time. In Re. Government of India and Mubarak Ali Ahmed(1) an attempt to resist in the High Court in England the requisition by the Republic of India to surrender an offender who had committed offences in India and had fled justice failed. Mubarak Ali a native of Pakistan was being tried in the Courts in India on charges of forgery and fraud. He broke his bail and fled to Pakistan and thereafter to England. He was arrested on a pro ' visional warrant issued by the London Metropolitan Magistrate on the application of the Government of India. After hearing legal submissions the Metropolitan Magistrate made an order under section 5 of the Fugitive Offenders Act, 1881, for Mubarak Ali 's detention in custody pending his return to India to answer the charges, made against him. Mubarak Ali then filed a petition for a writ of habeas corpus before the Queen 's Bench of the High Court. It was held that the Fugitive Offenders Act, 1881, was in force between India and Great Britain on January 26,,1950, when India become a republic and it was continued to apply by virtue of section 1 (1) of the India (Consequential Provision) Act, 1949, and, therefore, the Magistrate had jurisdiction to make the order for the applicant 's return. Pursuant to the requisitions made by the Government of India,, Mubarak Ali was surrendered by the British Government. Mubarak Ali was then brought to India and was tried and convicted. One of the offences for which he was tried resulted in his conviction and an appeal was brought ' to this Court in Mobarik Ali Ahmed v, The State of Bombay(2) There are other cases as well, in which orders were made by the British Courts complying with the requisitions made by the Governments of Republics within the Commonwealth, for extradition of offenders under the Fugitive Offenders Act, 1881. An offender from Ghana was ordered to be extradited Pursuant to the Ghana (Consequential Provision) Act, 1960, even after Ghana became are public Re. Kwesi Armah(3). On July 1,1960, Ghana while remaining by virtue of the Ghana (Consequential (1) (3)[1966] ; 2 All E.R. 1006.(2) 3 37 Provision) Act, 1960, a member of the Comon wealth became a Republic. Kwesi Armah who was a Minister in Ghana fled the, country in 1966 and took refuge in the United Kingdom. He was arrested under a provisional warrant issued under the Fugitive Offenders Act, 1881. The Metropolitan Magistrate being satisfied that the Act of 1881 still applied to Ghana and that a prima facie case had been made out against the applicant in respect of two alleged contravention of the Ghana Criminal Code, 1960, by corruption and extortion when he was a public officer,commited Kwesi Armah to prison pending his return to Ghana to undergo trial. A petition for a writ of habeas corpus before the Queen '& Bench Division of the High Court was refused. Edmund Davies, J., was of the view that the Act of 1881 applied to the Republic of Ghana, in its new form, just as it did before the coup d 'etat of February 1966. The case was then carried to the House of Lords; Armah vs Government of Ghana and Another(1). The questions decided by the House of Lords have no relevance in this case. But it was not even argued that a fugitive offender from a republic which was a member of the Commonwealth could not be extradited under the Fugitive Offenders Act, 1881. There is yet another recent judgment of the House of Lords dealing with repatriation of a citizen of the Republic of Cyprus Zacharia vs Republic of Cyprus and Anr. (2) Warrants were issued against Zacharia on charges before the, Courts in Cyprus of offences of abduction, demanding money with menaces and murder. Under the orders issued by a Bow Street Magistrate under section 5 of the Fugitive Offenders Act, 1881, Zacharia was committed to prison pending his return to Cyprus. An application for a writ of habeas corpus on the ground that the offences alleged against him were political and that the application for the return of the fugitive was made out of motive for revenge was rejected by the Queen 's Bench Division and it was ordered that Zacharia be repatriated. The order was confirmed in appeal to the House of Lords. Merely because for the purpose of the extradition procedure, in a statute passed before the attainment of independence by the former Colonies and dependencies, certain territories continue to be referred to as "British Possessions" the statute does not become inapplicable to those territories. The expression "British Possession" in the old statutes merely survives an artificial mode of reference, undoubtedly not consistent with political realities, but does not imply for the purpose of the statute or otherwise political dependence. of the Government of the territories referred to. It is not for the Courts of India to take umbrage at expressions used in statutes of other countries and to refuse to give effect to Indian laws which govern the problems arising before them. (1) (2) ; 338 It is interesting to note that by express enactment the Fugitive. Offenders Act, 1881, remains 'in force as a part of the Republic of Ireland : see Ireland Act, 1949 (12, 13 and 14 Geo. 6 c. 41). In Halsbury 's Laws of England, 3rd Edn., Vol. 5 article 987, p. 433 in dealing with the expression "Her Majesty 's Dominions" in old statutes, it is observed : "The term 'Her Majesty 's dominions, means all the territories under the sovereignty of the Crown, and the territorial waters adjacent thereto. In special cases it may include territories under the protection of the Crown and mandated and trust territories. References to Her Majesty 's dominions contained in statutes passed before India became a republic are still to be construed as including India; it is usual to name India separately from Her Majesty 's dominions in statutes passed since India became a republic." In foot note (1) on p. 433 it is stated, British India, which included the whole of India except the princely States; and the Government of India Act, 1935 as amended by section 8 of the India and Burma (Miscellaneous. Amendments) Act, 1940, formed part of Her Majesty 's dominions and was a British possession, although it was not included within the definition of "colony". The territory comprised in British India was partitioned between the Dominions of India and Pakistan (Indian Independence Act, 1947), but the law relating to the definition ' of Her Majesty 's dominions was not thereby changed, and it was continued in being by the India (Consequential Provision) Act, 1949 (12, 13 & 14 Geo. 6 c. 92), passed in contemplation of the adoption of a re publican constitution by India. India is now a sovereign republic, but that by itself does not render the Fugitive Offenders Act, 1881, inapplicable to India. If the question were a live question, we would have thought it necessary to refer the case to a larger Bench for considering the true effect of the judgment in C. G. Menon 's case("). But by the Extradition Act 34 of 1962 the Extradition Act, 1870 and the latter Acts and also the Fugitive Offenders Act, 1881, have been repealed and the question about extradition by India of fugitive offenders under those Acts will not hereafter arise. We are not called upon to consider whether in exercise of the Power under the Fugitive Offenders Act a Magistrate in India may direct extradition of a fugitive offender from a "British Possession", who has taken refuge in India. It is sufficient to observe that the Colonial Secretary of Hong Kong was according to the law applicable in Hong Kong competent to give effect to the warrant issued by the Chief Presidency Magistrate, Calcutta, and the Central (1)[1955] 1 S.C.R. 280. 339 Magistrate, Hong Kong, had jurisdiction under the Fugitive Offender& Act, and, after holding inquiry, to direct that More be surrendered to India. The order of surrender was valid according to the law in force in Hong Kong, and we are unable to appreciate the grounds on which invalidity can be attributed to the warrant issued by the Chief Presidency Magistrate, Calcutta, for the arrest of More. That the Chief Presidency Magistrate was competent to issue a warrant for the arrest of More against whom there was prima facie evidence to show that he had committed an offence in India is not denied. If the Chief Presidency Magistrate had issued the warrant to the Commissioner of ' Police and the Commissioner of Police had approached the Ministry of External Affairs, Government of India, either through the local Government or directly with a view to secure the assistance of the Government of Hong Kong for facilitating extradition of More, no fault can be found. But Gupta, J., and Mukherjee, J., thought that the notification issued by the Government of India setting out the procedure to be followed by a Magistrate, where the offender is not in Indian territory and his extradition is to be secured, amounted to an invasion on the authority of the Courts. We do not think that any such affront is intended by issuing the notification. The Fugitive Offenders Act,, 1881, had not been expressly repealed even after January 26, 1950. It, had a limited operation: the other countries of the Commonwealth were apparently willing to honour the international commitments which arose out of the provisions of that Act. But this Court on the view that since India had become a Republic, held that the Fugitive Offenders Act could not be enforced in this country, presented to the Government of India a problem which had to be resolved by devising machinery for securing the presence of offenders who were fugitives from justice. The notification issued was only in the nature of advice about the procedure to be followed and did not in any manner seek to impose any executive will upon the Courts in matters judicial. Observations made by Mukherji, J., that the notification issued by the Central Government authorising the Chief Presidency Magistrate to issue the warrant in the manner he had done, came "nowhere near the law" and "to a Court of law it is waste paper beneath its notice" appear to proceed upon an incorrect view of the object of tile notification. The Chief Presidency Magistrate had the power to issue the warrant for the arrest of More, because there was prima facie evidence before him that More had committed certain offences which he was competent to try. The warrant was in Form II of Sch. V of the Code of Criminal Procedure. If the warrant was to be successfully executed against More who was not in India, assistance of the executive Government had to be obtained. It is not an invasion upon the authority of the Courts when they are informed that certain procedure may be followed for obtaining 340 the assistance of the executive Department of the State in securing through diplomatic channels extradition of fugitive offenders. In pursuance of that warrant, on the endorsement made by the Central Magistrate, Hong Kong, More was arrested. The warrant was issued with the knowledge that it could not be enforced within India and undoubtedly to secure the extradition of More. Pursuant to the warrant the Ministry of External Affairs, Government of India, moved through diplomatic channels, and persuaded the Colonial Secretary of Hong Kong to arrest and deliver More. Issue of the warrant and the procedure followed in transmitting the warrant were not illegal, not even irregular. One more argument remains to be noticed. It is true that under the Extradition Act 34 of 1962 no notification has been issued including Hong Kong in the list of the Commonwealth countries from which extradition of fugitives from justice may be secured. The provisions of the , cannot be availed of for securing the presence of More for trial in India. But that did not, in our judgment, operate as a bar to the requisition made by the Ministry of External Affairs, Government of India, if they were able to persuade the Colonial Secretary, Hong Kong, to deliver More for trial in this country. If the Colonial Secretary of Hong Kong was willing to hand over More for trial in this country, it cannot be said that the warrant issued by the Chief Presidency Magistrate for the arrest of More with the aid of which requisition for securing his presence from Hong Kong was to be made, was illegal. We are unable to agree with the High Court that because of the enactment of the 34 of J962 the Government of India is prohibited from securing through diplomatic channels the extradition of an offender for trial of an offence committed within India. There was, in our judgment,, no illegality committed by the Chief Presidency Magistrate, Calcutta, in sending the warrant to the Secretary, Home (Political) Department, Government ,of West Bengal, for transmission to the Government of India, Ministry of External Affairs, for taking further steps for securing the presence of More in India to undergo trial. The appeal must therefore be allowed and the order passed by the High Court set aside. 'Me writ petition filed by More must be dismissed. Y.P. Appeal allowed. [/INST]After this Court held in State of Madras vs C. G. Menon, ; that the Fugitive Offenders Act, 1881, was inconsistent with article 14 of the Constitution and was on that account unenforceable after 26th January 1950, the Government of India, Ministry of External Affairs issued a notification on May 21, 1955 indicating the procedure for securing the presence of a fugitive offender in India from the United Kingdom and other Commonwealth countries. Under the Notification, the Magistrate concerned is to issue a warrant of arrest of the fugitive offender under the Criminal Procedure Code, 1898, and the warrant is to be sent to the Government of India, Ministry of External Affairs through the concerned State Government. Thereafter, the Ministry is to address the appropriate authority in the Commonwealth country through the High Commissioner for India for the surrender of the fugitive offender. In 1962, the Indian Extradition Act was passed, but as Hong Kong was not included in the First Schedule, that Act could not be resorted for the surrender of the respondent who was a fugitive offender residing in Hong Kong. Action was therefore taken in the present case, pursuant to the notification. The Chief Presidency Magistrate Calcutta issued a warrant under the Criminal Procedure Code for the arrest of the respondent and the warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs, Government of India. The Ministry forwarded the warrant to the High Commissioner for India, Hong Kong, who in his turn requested the Colonial Secretary, Hong Kong, for an order extraditing the respondent under the Fugitive Offenders Act 1881 (44 & 45 Vict Ch. 69). The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong police to arrest the respondent referring to the Republic of India as a British possession to which the Fugitive Offenders Act was applicable. On the questions : (1) Whether the Chief Presidency Magistrate had no power to issue the warrant as it would have extraterrestrial operation; (2) Whether the Fugitive Offenders Act, having ceased to be part of the law of India, could be resorted to for obtaining extradition of fugitive offenders; (3) Whether the instructions of the Government of India for obtaining extradition are an invasion upon the authority of courts; and (4) Whether the , operates as a bar to the requisition made by the Ministry of External Affairs for the extradition of the ,respondent, HELD : (1) The Courts of the country which make a requisition for surrender proceed upon prima facie proof of the offence and leave it to the State to make a requisition upon the other State, in which the offender has taken refuge. Under section 82 of the Criminal Procedure Code, when a warrant is issued by a Magistrate in India, it can be executed anywhere 321 in India and has no extra territorial operation. By making a requisition to another State, in pursuance of such a warrant, for assistance in securing the presence of the offender, the warrant is not invested with extraterritorial operation. If the other State requested Agrees to lend its aid to arrest the fugitive, the arrest is made by the issue of an independent warrant or endorsement or authentication of the warrant of the court which issued it. By such endorsement or authentication the State expresses its willingness to lend its assistance in implementation of treaties or international commitments to secure the arrest of the offender. The offender arrested pursuant to the warrant or endorsement is brought before the Court of the country to which requisition is made and that court holds enquiry to determine whether the, offender may be extradited. [326 F327B] Courts in India have no authority to sit in judgment over the order passed by the Hong Kong Magistrate. He acted in accor dance with the municipal law of Hong Kong and agreed to surrender the offender : his action cannot be challenged in this Court even if it is wrong. The invalidity of the arrest in Hong Kong, if any, cannot affect the jurisdiction of Indian Courts to try the respondent if and when he is brought here. [334] Emperor vs Vinayak Damodar Savarkar, I.L.R. , approved. (2)But, in fact the Colonial Secretary of Hong Kong was, according 0 the law applicable in Hong Kong, competent to give effect to the warrant issued by the Chief Presidency Magistrate, Calcutta and the Central Magistrate, Hong Kong had jurisdiction under the Fugitive Offenders Act to direct that the respondent may be surrendered to India. Whatever may he the position in India after it has become a Republic the United Kingdom and several Colonies have treated the Fugitive Offenders Act is applicable for the purpose of honouring the requisition made by the republic of India. Merely because, for the purpose of the extradition procedure, in a statute passed before the attainment of independence by the former colonies and dependencies, certain territories continue to be referred as 'British Possessions ' the 'statute does not become inapplicable to those territories. The expression 'British Possessions ' in the old statutes merely survives as an artificial mode of reference. Though it is not consistent with the political realities, it does not imply political dependence of the Governments of the territories referred to. The order of surrender passed by the Magistrate in Hong Kong was valid according to. the law in force in Hong Kong. [338 H; 337G] Re. Government of India and Mubarak Ali Ahmed, , Re. Kweshi Armah , Zacharia vs Republic of Cyprus, ; and Halsbury 's Laws of England 3rd edn. 5 article 987, p. 433, referred to. (3) This Court, by holding in C. G. Menon 's case that since India became a Republic the Fugitive Offenders Act could not be enforced in his country, presented the Government of India with a problem which had to be resolved by devising a machinery for securing the presence of fenders who, were fugitives from justice. The notification was issued only in the nature of advice about the procedure to be followed and was not in any manner intended as an affront to the Courts or to impose any executive will upon the courts in judicial matters. [339 E F] In the present case, the Chief Presidency Magistrate, Calcutta, had power to issue the warrant for the arrest of the respondent because there was prima facie evidence against him. If the warrant was to be success 322 fully executed a against the. Respondent, who was not in India, the assistance of the executive government had to be obtained. Therefore, the issue of the warrant and the procedure followed in transmitting it were not illegal and not even irregular. (4)Extradition is the surrender by one State to another of a person desiredto be dealt with for crimes of which he had been accused or convicted. Such a surrender is a political act done in pursuance of a treaty or an ad hoc arrangement, and founded upon the principle that it is in the interest of all civilised communities that criminals should not go unpunished. While the law relating to extradition between independent States is based on treaties, whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made. Therefore, the fact that the , could not be availed of for securing the presence of the respondent for trial in India, did not operate as a bar to the requisition made by the Ministry of External Affairs, Government of India, if they were able to puksuade the Colonial Secretary, Hong Kong, to deliver the respondent for trial in this country. if the Colonial Secretary was willing to do so, it cannot be said that the warrant issued by the Chief Presidency Magistrate, Calcutta, for the arrest of the respondent with the aid of the requisition for securing his presence from Hong Kong in India, was illegal. [325 H; 340 C F] </s>

<s>[INST] Summarize the judgementAppeal No. 124 of 1951. Appeal by Special Leave granted by His Majesty in Council, dated the 30th October, 1945, from the Judgment and Decree, dated the 12th July, 1944, of the High Court of Judicature at Lahore in Civil Regular Second Appeal No. 450 of 1942, against the Judgment and Decree, dated the 14th January, 1942, of the Court of the District Judge, Gurdaspur, in Appeal No. 91 of 1941, arising from the Judgment and Decree, dated 31st July, 1941, of the Court of Senior Subordinate Judge, Gurdaspur, in Suit No. 80 of 1940. G. section Vohra and Harbans Singh for the appellants. Achhru Ram (J. B. Dadachanji and R. N. Sachthey, with him) for respondents. 45 1954. April 1. The Judgment of the Court was delivered by GHULAM HASAN J. This is an appeal by special leave granted by the Privy Council against the judgment and decree dated July 12, 1944, of a Division Bench of the High Court at Lahore passed in second appeal confirming the dismissal of the appellants ' suit cone currently by the trial Court and the Court of the District Judge, Gurdaspur. The two appellants are admittedly the first cousins of the respondent, Harnam Singh, and belong to village Gillanwali, Tahsil Batala, District Gurdaspur. Gurmej Singh, respondent No. 2, is a collateral of Harnam Singh in the 8th degree. The appellants sued for a declaration that the deed of adoption executed by Harnam Singh on July 30, 1940, adopting Gurmej Singh was invalid and could not affect the reversionary rights of the appellants after the death of Harnam Singh. The appellant 's case was that under the Customary Law of Gurdaspur District applicable to the Gill Jats ,of village Gillanwali, Harnam Singh could only adopt a is near collateral" and Gurmej Singh being a distant collateral his adoption was invalid. The defence was a denial of the plaintiffs ' claim. Both the trial Judge and the District Judge on appeal held that the factum and the validity of the adoption were fully established. In second appeal Trevor Harries C. J. and Mahajan J. (as he then was) held that there was sufficient evidence of the factum of adoption as furnished by the deed and the subsequent conduct of Harnam Singh. They held that all that was necessary under the custom to constitute an adoption was the expression of a clear intention on the part of the adoptive father to adopt the boy concerned as his son and this intention was clearly manifested here by the execution and registration of the deed of adoption coupled with the public declarations and treatment as adopted son. Upon the legal validity of the adoption the High Court found that the answer to Question 9 of the Riwaj i am of Gurdaspur District of the year 1913 laying down that the adoption of "near collaterals only " was recognised was not mandatory. The High Court relied in support of their 46 conclusion on a decision of Tek Chand J. in Jowala vs Diwan Singh (1) and the Privy Council decision in Basant Singh vs Brij Raj Saran Singh (2). The first question regarding the factum of adoption need not detain us long. The deed of adoption, Exhibit D. 1, recites that Harnam Singh had no male issue who could perform his kiry a karam ceremony after his death, that Gurmej Singh had been brought up while he was an infant by his wife and that he had adopted him according to the prevailing custom. The recital continues that since the adoption he had been treating and calling Gurmej Singh as his adopted son. This fact was well, known in the village and the adoptee was en joying all rights of a son. He had executed a formal document in his favour in order to put an end to any dispute which might be raised about his adoption. As adopted son he made him the owner of all of his property. We are satisfied that there is ample evidence to sustain the finding on the factum of adoption. The main question which falls to be considered is whether under the terms of the Riwaj i am applicable to the parties, Gurmej Singh being a collateral of Harnam Singh in the 8th degree could be validly adopted. The custom in question is founded on Question 9 and its answer the Customary Law of the Gurdaspur District. They are as follows: " Question 9. Is there any rule by which it is required that the person adopted should be related to the person adopting ? If so, what relatives may be adopted ? Is any preference required to be shown to particular relatives ? If so, enumerate them in order of preference. Is it necessary that the adopted son and his adoptive father should be (1) of the same caste or tribe; (2) of the same got? Answer : The only tribes that recognised the adoption of a daughter 's son are the Sayyads of the Shakargarh and the Arains of the Gurdaspur Tahsil. The Brahmans of the Batals Tahasil state that only such of them as are not agriculturists by occupation recognize such adoption. The Muhamadan Jats of the (1) (2) I.L.R. 57 All 494. 47 Gurdaspur. Tahsil could not come to an agreement on this point. The remaining tribes recognise the adoption of War collaterals only. The right of selection rests with the person adopting. The Khatris, Brahmans and Bedis and Sodis of the Gurdaspur Tahsil, however, state that the nearest collaterals cannot be sperseded and selection should always be made from among them" It is contended for the appellants that the expression " near collaterals only " must be construed to mean a collateral up to the third degree and does not cover the case of a remote collateral in the 8th degree. The restriction as regards the degree of relationship of the adoptee, it is urged, is mandatory and cannot be ignored. The expression " near collaterals " is not defined by the custom. The relevant answer which we have underlined above gives no indication as to the precise import of the words " near collaterals. " The custom recorded in the Riwaj i am is in derogation of the general custom and those who set up such a custom must prove it by clear and unequivocal language. The language is on the face of it ambiguous and we can see no warrant for limiting the expression to signify collateral relationship only up to a certain degree and no further. We are also of opinion that the language used amounts to no more than an expression of a wish on the part of the narrators of the custom and is not mandator. If the intention was to give it a mandatory force, the Riwaj i am would have avoided the use of ambiguous words which are susceptible of a conflicting interpretation. The provision that the right of selection rests with the person adopting also detracts from the mandatory nature of the limitation imposed upon the degree of relationship. Though the adoption of what the custom describes as "near collaterals only" was recognized by the community of Jats, the right of selection was left to the discretion of the adopter. There is no meaning in conferring a discretion upon the adopter if he is not allowed to exercise the right of selection as between collaterals inter se. We are unable to read into the answer a restriction upon the choice of the adopter of any particular collateral however near in degree he may be, 48 In his valuable work entitled "Digest of Customary Law in the Punjab" Sir W.H. Rattigan states in paragraph 35 that "a sonless proprietor of land in the central and eastern parts of the Punjab may appoint one of his kinsmen to succeed him as his heir" and in paragraph 36 that "there is no restriction as regards the age or the degree of relationship of the person to be appointed". It appears to us that the basic idea underlying a customary adoption prevalent in the Punjab is the appointment of an heir to the adopter with a view to associate him in his agricultural pursuits and family affairs. The object is to confer a personal benefit upon a kinsman from the secular point of view 'unlike the adoption under the Hindu Law where the primary consideration in the mind of the adopter if a male is to derive spiritual benefit and if a female, to confer such benefit upon her husband. That is why no emphasis is laid on any ceremonies and great latitude is allowed to the adopter in the matter of selection. Mulla in his well known work on Hindu Law says: "It has similarly been held that the texts which prohibit the adoption of an only son, and those which enjoin the adoption of a relation in preference to a stranger, are only directory; therefore, the adoption of an only son, or a stranger in preference to a relation, if completed, is not invalid. In cases such as the above, where the texts are merely directory, the principle of factum valet applies, and the act done is valid and binding." (Page 541). We see no reason why a declaration in a Riwaj i am should be treated differently and the text of the answer should not be taken to be directory. However peremptory may be the language used in the answers given by the narrators of the custom, the dominant intention underlying their declarations which is to confer a temporal benefit upon one 's kinsmen should not be lost sight of. A number of cases have been cited before us to show that in recording the custom the language used was of peremptory nature and yet the Courts have held that 49 the declarations were merely directory and non compliance with those declarations did not invalidate the custom. In Jiwan Singh and Another vs Pal Singh and Another(1) Shah Din and Beadon JJ. held "that by custom among Randhawa Jats of Mauza Bhangali, Tahsil Amritsar, the adoption, by a registered deed, of a collateral in the 9th degree who is of 16 years of age is valid in the presence of nearer collaterals. " The adoption was objected to on the ground that the adoptee was a remote collateral and that he was not under the age of twelve at the time of the adoption as required by the Riwaj i am. The learned Judges held that the provision as regards the age was recommendatory and not of a mandatory character. In Sant Singh vs Mula and Others ) Robertson and Beadon Jj. held "that among Jats and kindred tribes in the Punjab, the general, though not 'the universal, custom is that a man may appoint an heir from amongst the descendants of his ancestor and that he need not necessarily appoint the nearest collateral. " This was a case where a distant collateral was preferred to a nearer collateral. The learned Judges expressed the opinion that the clause which points to the advisability of adopting from amongst near collaterals was nothing more than advisory. In Chanan ' Singh vs Buta Singh and Others(3), a case from Jullundur District, the question and answer were as follows : "Q. No. 71: Are any formalities necessary to constitute a valid adoption, if so, describe them. State expressly whether the omission of any customary ceremonies will vitiate the adoption ? A. . The essence of adoption is that the fact of adoption be declared before the brotherhood or other residents of the village. The usual practice is that the Baradari gathers together and the adopter declares in their presence the fact of the adoption. Sweets are distributed and a deed of adoption is also drawn up. If (1) 22 P.R. (2) 44 P.R. (3) A.I.R. 1935 Lah. 7 50 these formalities are not observed the adoption is not considered valid. " The adoption was challenged on the ground that there was no gathering of the brotherhood. The learned Judges (Addison and Beckett JJ.) held that it was immaterial whether there was or was not a gathering of the brotherhood at the time. It appears that the adopter had made a statement in Court acknowledging the appointment or adoption in question. The next day he celebrated the marriage of the boy as his son, and thereafter he looked after his education and allowed him to describe himself as his adopted son or appointed heir, and the boy lived with him as his son. The learned Judges held that the details given in the answers to questions in various Customary Laws were not necessarily mandatory but might be merely indicatory. In Jowala vs Dewan Singh(1) Tek Chand J. held "that an adoption of a collateral in the fourth degree, among Jats of Mauza Hussanpur, Tahsil Nakodar, District Jullundur, is valid although nearer collaterals are alive." He also held "that an entry in the Riwaj i am as to the persons who can be adopted is merely indicatory". In a case from Delhi reported in Basant Singh and Others vs Brij Raj Saran Singh(2)the Privy Council held "that the restriction in the Riwaj i am of adoption to persons of the same gotra is recommendatory and a person of a different gotra may be adopted. " Counsel for the appellants frankly conceded that he could cite no case where the declarations governing customary adoptions were held to be mandatory. Whether a particular rule recorded in the Riwaj i am is mandatory or directory must depend on what is the essential characteristic of the custom. Under the Hindu Law adoption is primarily a religious act intended to confer spiritual benefit on the adopter and some of the rules have, therefore, been held to be mandatory and compliance with them regarded as a condition of the validity of the adoption. On the other hand, under the (1) (2) 57 All, 494. 51 Customary Law in the Punjab, adoption is secular in character, the object being to appoint an heir and the rules relating to ceremonies and to preferences in selection have to be held to be directory and adoptions made in disregard of them are not invalid. There is no substance in the appeal and we dismiss it with costs. Appeal dismissed. [/INST]The appellant companies manufactured sugar by carbonation process. land paid excise duty on sugar manufactured by them under item 1 of Sch. 1 to the Central Excise and Salt Act, 1944. According to an affidavit filed on behalf of the respondents, these manufacturers employed a process of burning lime stone with coke in a lime kiln with a regulated amount of air whereby a mixture of gases was generated consisting of carbon dioxide, nitrogen, oxygen and a small quantity of carbon monoxide. The gas thus produced was thereafter compressed so as to achieve pressure exceeding atmospheric pressure and then passed through a tank containing sugarcane juice so as to remove impurities from it and to refine the juice. For this process of refining it was only the carbon dioxide in the gas which was used and the other gases i.e. nitrogen, oxygen and carbon monoxide escaped into the atmosphere by a vent provided for the purpose. The carbon dioxide content in this mixture of gases ranged from 27 to 36.5%. Similarly, another company manufactured soda ash by solvay ammonia soda process for which also carbon dioxide is required and this was produced by the petitioner by burning lime stone with coke in a kiln in the same manner as the appellant 'sugar manufacturing companies employing the carbonation process. The respondents regarded all the companies as manufacturers of compressed carbon dioxide and levied excise duty on them under Item 14 H in Sch. 1 to the Act. The appellants filed writ petitions in the High Court challenging the validity of this excise duty but these petitions were dismissed. It was contended, inter alia, on behalf of the appellants that the lime kiln was maintained to generate a mixture of gases and not carbon dioxide and at no stage in the process of generating this mixture and passing it through the sugarcane juice was carbon dioxide which formed one of the contents of the mixture either compressed, liquidified or solidified. The mixture of gases so generated was not carbon dioxide as known to the market nor was it according to the specifications laid down by the Indian Standards Institution which required the carbon dioxide content to be at least 99%. Therefore the excise duty sought to be recovered on the content of carbon dioxide in the mixture of gases could not fall under Item 14 H. Furthermore the duty being on goods it could be charged only on goods known as carbon dioxide in the trade and marketable as such. 22 HELD : The gas generated by the appellant companies was kiln gas and not carbon dioxide as known to the trade, i.e., to those who deal in it or who use ' it. The kiln gas in question. therefore is neither carbon. dioxide nor compressed carbon dioxide known as such to the commercial community and therefore cannot attract Item 14 H in the First Schedule. It was not correct to say that because the sugar manufacturer wants carbon dioxide for carbonation purposes and sets up a kiln for it that he produces carbon dioxide and not kiln gas. In fact what he produces is a mixture known both to trade and science as kiln gas one of the constituents of which is, no doubt, carbon dioxide. The kiln gas which is generated in these is admittedly never liquified nor solidified and is therefore neither liquified nor solidified carbon dioxide, assuming that it can be termed carbon dioxide. It cannot be called compressed carbon dioxide as understood in the market among those who deal in compressed carbon dioxide. Compressed carbon dioxide is understood generally as carbon dioxide compressed in cylinders with pressure ranging from 1,000 to 1,800 lbs. per sq. inch. The mere fact that at one stage or the other kiln gas is pressed at 40 to 45 lbs. per sq. inch by a pump or otherwise cannot mean that it is compressed carbon dioxide. At the same time the duty being on manufacture and not on sale the mere fact that kiln gas generated by these is not actually sold would not make any difference if what they generate and use in their manufacturing processes is carbon dioxide. The fact that the gas so generated has carbon dioxide below 99% and does, not conform to the specifications of the Indian Standards Institution also would not matter for the gas may be sub standard, provided what is produced is carbon dioxide. [32 D H] Union of India v, Delhi Cloth & General Mills Ltd. [1963] Supp. I S.C.R. 586, referred to. </s>

<s>[INST] Summarize the judgementivil Appeal No. 1347 of 1981 From the judgment and Order dated 24.1. 1981 of the Madras High Court in C.R.P. No. 44 of 1981. B.N. Nayar, T.V.S.N. Chaff, K. Srinivasan, C.H. Badri Nath, R.K. Gupta and Ms. Sudha Srivastava for the Appel lants. U.R. Lalit and Ambrish Kumar for the Respondent. The Judgment of the Court was delivered by KANIA, J. This is an appeal filed by Special Leave under Article 136 of the Constitution by the appellants who are the tenants against the respondent landlady. The appellants are a partnership firm and are the ten ants of premises situate at No. 6 Kasi Chetty Street, G.T. Madras. They carry on business there. The respondent filed an eviction petition being H.R.C. No. 641 of 1975 in the Court of Small Causes, Madras against the appellants and one other partnership firm, carrying on business in the name and style of M/s. Adeshwar Glass Mart on the ground that the appellants had unlawfully and without the consent of the respondent sublet the said shop let out to the said M/s. Adeshwar Glass Mart and were liable to be evicted for unlaw ful subletting under the provision of Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and 419 Rent Control) Act, 1960 (hereinafter referred to as "the said Rent Act"). M/s. Adeshwar Glass Mart were also joined by the respondent herein as respondents in the eviction petition on the ground that they were unlawful sub tenants. The Trial Court held this ground established and passed a decree for eviction as sought by the respondent. The appel lants preferred an appeal against this decision to the Appellate Authority under Section 23 of the said Rent Act, being the Court of Small Causes at Madras. The said appeal was numbered as H.R.A. 156 of 1979. The Appellate Authority dismissed the said appeal upholding the finding of unlawful subletting by the appellants. The appellants then preferred a Civil Revision Petition being C.R.P. No. 44 of 1981 in the High Court of Judicature at Madras against the aforesaid decision. This Revision Petition was dismissed by the then learned Chief Justice of the Madras High Court. It is against the decision the present appeal is directed. Mr. Nayar, learned counsel for the appellants has urged before us that the impugned judgment must be set aside as the eviction petition was filed against the appellants firm and one other partnership firm, M/s. Adeshwar Glass Mart without joining any of the partners of the said firms as respondents or serving them as partners and hence, the eviction petition was not maintainable at all. He placed strong reliances on the decision of this Court in Chhotelal Pyarelal, the partnership firm and others vs Shikharchand, In that case an eviction petition was filed by the respondent landlord against the appellant a partnership firm under clause 13(3)(iv) and (vii) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949. The appellant raised a preliminary objection that the application against the partnership firm was not maintainable without joining its partners as re spondents. It was held by this Court that it is only by virtue of the provisions of order 30 of the Code of Civil Procedure, 1908, that a firm can sue and be sued in its own name without the partners being impleaded. It was pointed out by Mr. Nayar that the Code of Civil Procedure was not applicable to the proceedings under the said Rent Act either and hence, the ratio laid down in the aforesaid decision was directly applicable to the case before us. In our view, it is not open to Mr. Nayar to raise this contention at this stage at all. This contention is not one which would have been fatal to the eviction petition. Had this contention been raised in the Trial Court or even in the first Appel late Court, it would have been open to the respondent to amend the eviction petition and join the partners as re spondents. In the aforesaid decision in Chhotelal Pyarelal 's case, relied upon by Mr. Nayar the objection to the main tainability of the 420 petition was raised at the earliest stage and was wrongly negatived by the Trial Court. In fact, this Court observed as follows: "But we agree with the Division Bench of the High Court that this cannot by itself result in the dismissal of the application. It would be merely a case of misdescription of the respondents to the application and this misde scription can be corrected at any stage of the proceedings. There can be no doubt that the partners of the firm are before the Court though in a wrong name." In the case before us, no such objection has been raised at all till the stage of Special Leave and it is surely not open to the appellants to raise such an objection at a very late stage and thereby delay matters for a number of years. This contention must, therefore, be negatived. It was next submitted by Mr. Nayar that there was no evidence in the case to come to the conclusion that the appellants had sublet the shop to M/s. Adeshwar Glass Mart. In our view, there is no substance in this contention. There is evidence to show that M/s. Adeshwar Glass Mart was carry ing on business at the said premises and that firm was carried on business in the said premises even for some time during which the appellants firm had ceased to carry on the business there. Moreover, although a notice was given by the respondent to the appellants and M/s. Adeshwar Glass Mart to produce their income tax returns, assessment orders as well as account books and ledgers for the relevant period, these were not produced. It was surely open to the Trial Court from these circumstances to come to the conclusion that had the account books and ledgers been produced, they would have shown that rent was received by the appellants from M/s. Adeshwar Glass Mart which would justify the finding of subletting. In these circumstances, this contention of Mr. Nayar must fail. Although Mr. Nayar wanted us to undertake detailed scrutiny of the evidence and to reappreciate the same, we fail to see how we are called upon to do so in an appeal under Article 136 of the Constitution. In the result, the appeal fails and is dismissed with costs. G.N. Appeal dis missed. [/INST]The appellant was inducted into the structure in ques tion by the owner in 1953. In 1969, the owner died and some dispute arose between his legal representatives and the respondent. The dispute was finally decided in favour of the respondent. The appellant duly recognised him as landlord and started paying rent. In 1973, in response to a notice received from the Municipal Authorities asking him to remove the disputed structure on the ground that it was erected on Government land, the appellant was forced to file a suit in the Civil Court, challenging the validity of the notice and praying for injunction against the Municipal authorities from inter fering with his possession. The respondent thereafter filed a suit against the appellant on the grounds of default in payment of rent and denial of his title by him. It was alleged that the appel lant had challenged the respondent 's title in the plaint filed in the earlier suit. The case of default in payment of rent was rejected, but the suit was decreed on the ground of denial of title. On appeal, the Additional District Judge confirmed the decree and held that the statements in the plaint amounted to disclaimer and, in any event, the appellant had failed to acknowledge the landlord 's title therein and consequently he was liable to eviction under cl.(f) of section 13(1) of the Act. The appellant 's second appeal was also rejected by the High Court at the admission stage. Allowing the appeal, HELD: In providing disclaimer as a ground for eviction of a tenant in cl.(f) of section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the Legislature decided to give effect to the 331 provisions of cl.(g) of section 111 of the . The principle of forfeiture on disclaimer is rounded on the rule that a man cannot approbate and repro bate at the same time. Since the consequence of applying the rule is very serious, it must be held that the denial has to be clear and in unequivocal terms. [334C D] In the instant case, the 1973 suit was not directed against any of the defendants excepting the Municipality and the statements in the plaint were made by way of giving the background in which the impugned notice by the Municipal officers had been issued. No relief against the other de fendants including the present respondent was prayed for. Even interpreting the plaint in a manner as favourable to the landlord as may be possible it has to be accepted that the document cannot be construed to clearly deny the re spondent 's title in unambiguous terms. One thing that is conspicuous is that the appellant did not claim any title in himself. He expressly described the character of his posses sion as that of a tenant. Examining the entire plaint in this background the ground contemplated under section 13(1)(f) of the Act is not made out. [334B, E F] Mohammad Amir Ahmad Khan vs Municipal Board of Sitapur and another, A.I.R. 1965 S.C. 1923, referred to. </s>

<s>[INST] Summarize the judgementSpecial Leave Petition (Civil) Nos. 12 12A of 1988. From the Judgment and order dated 18.12.1987 of the Andhra Pradesh High Court in W.A. Nos. 1649 and 1650 of 1987 P.N. Lekhi, M.K. Garg and Lokesh Kumar for the Petitioner. Kuldeep Singh, Additional Solicitor General and Mrs. A. Subhashini for the Respondents. The following order of the Court was delivered: O R D E R In response to the queries made by this Court by its order dated January 8, 1988 Shri Kuldeep Singh, learned Additional Solicitor General has furnished the relevant information as under: (1) In the matter of the age of Shri Justice K. Bhaskaran, Chief Justice of the Andhra Pradesh High Court, the advice and comments of the Chief Justice of India were sought in terms of Articles 217(3) of the Constitution of India. The files containing all the relevant papers were referred to the Chief Justice of India on 28th September, 1987. (2) The Chief Justice of India on 29th December, 1987 desired to have an opinion as to the effect of the judgment pronounced by the Andhra Pradesh High Court concerning the matter of the age of the Chief Justice Bhaskaran. The opinion was made available to the Chief Justice of India on 6th January, 1988. The Chief Justice of India on 11th January, 1988 indicated further course of action in the matter. The file has been resubmitted to 730 the Chief Justice of India on 16th January, 1988 for his further advice. (3) A view in the matter will be taken by the President of India after the advice of the Chief Justice of India is made available. In view of the foregoing, it is clear that the President of India in compliance with Article 217(3) of the Constitution of India has referred the question as to the age of Shri K. Bhaskaran, the Chief Justice of the Andhra Pradesh High Court to the Chief Justice of India for his opinion. That being so, no writ of mandamus can lie. The President of India as a constitutional functionary has discharged his duties under Article 217(3) of the Constitution and the decision must rest on the advice of the Chief Justice of India and not the Council of Ministers. As laid down in the Union of India vs Jyoti Prakash Mitter,. [1971] 3 SCR at 503 & 504, the matter as to the age of the Chief Justice or a sitting Judge of a High Court is a judicial function of the President of India, which has to be discharged in accordance with the special provisions made under Article 217(3) of the Constitution. Such a question as to the age of the Chief Justice or a Judge under Article 217(3) of the Constitution is beyond the reach of the Council of Ministers under Article 74 of the Constitution. J.C. Shah, C.J., speaking for the Constitution Bench has laid down the law in these words: It is necessary to observe that the President in whose name all executive functions of the Union are performed is by article 217(3) invested with judicial power of great significance which has bearing on the independence of the Judges of the Higher Courts. The President is by article 74 of the Constitution the Constitutional head who acts on the advice of the Council of Ministers. " The question as to the age of Shri K. Bhaskaran, the Chief Justice of the Andhra Pradesh High Court must, therefore, be decided by the President of India on the advice of the Chief Justice of India as enjoined by Article 217(3) of the Constitution in the light of the principles laid down by this Court in Jyoti Prakash Mitter 's, case. The High Court, in our considered opinion, should have thrown out the petition under article 226 of the Constitution at the very threshold because the President of India was seized with the question under Article 217(3) of the Constitution. Indeed, it appears from the judgment of the 731 High court that when the learned counsel for the Union of India A informed the Court that the President of India is seized with the question, the counsel for the appellant conceded that the writ of quo warranto is not maintainable. The special leave petitions are accordingly dismissed. G.N. Petitions dismissed. [/INST]% The appellant raised the question as regards the determination of age of the Chief Justice of Andhra Pradesh High Court, in these Special Leave Petitions filed against the Judgment and order of the Andhra Pradesh High Court dismissing in limine the Writ Appeals against the order of dismissal of the Writ Petitions by a Single Judge of the High Court. ln the course of the proceedings, this Court, on January 8, 1988, made certain queries to which the Additional Solicitor General furnished information broadly on the following lines: That a view in the matter will be taken by the President of India after the advice of Chief Justice of India is made available, and that all relevant files have been submitted to the Chief Justice of India along with the opinion as to the effect of the judgment pronounced by the Andhra Pradesh High Court. In view of the information made available, this Court dismissed the Special Leave Petitions and, ^ HELD: 1. The matter as to the age of the retired Chief Justice or a sitting Judge of a High Court is a judicial function of the President of India, which has to be discharged in accordance with the special provisions made under Article 2l7(3) of the Constitution. [730C D] 2. Such a question as to the age of the Chief Justice or a Judge, under Article 217(3) of the Constitution, is beyond the reach of the Council of Ministers under Article 74 of the Constitution. [730D E] Union of India vs Jyoti Prakosh Mitter, [ 197 l ] 3 SCR 483, followed. 729 3. Since the President of India, in compliance with Article 2l7(3), has referred the question as to the age of Shri K. Bhaskaran, Chief Justice of Andhra Pradesh High Court, to the Chief Justice of India for his opinion, no Writ of Mandamus can lie. [730B] 4. The President of India as a constitutional functionary has discharged his duties under Article 217(3) and the decision must rest on the advice of the Chief Justice of India and not the Council of Ministers. [730C] </s>

<s>[INST] Summarize the judgementION: Criminal Appeal No. 15 of 1955. Appeal by special leave from the judgment and order dated the 24th March, 1953 of the Calcutta High Court in Criminal Appeal No. 94 of 1952 arising out of the Judgment and order dated the 22nd April 1952 373 of the Court of Sessions Judge, Murshidabad in Sessions Trial No. 1 of 1952. Jai Gopal Sethi, (C. F. Ali and P. K. Ghosh, with him) for the appellants. B.Sen, (I. N. Shroff, for P. K. Bose, with them) for the respondent. April 18. The Judgment of the Court was delivered by JAGANNADHADAS J. This is an appeal by special leave against the judgment of the High Court of Calcutta confirming the conviction and sentence of each of the two appellants before us, by the Sessions Judge of Murshidabad. The appellants were tried on a charge under section 302/34 of the Indian Penal Code by the Sessions Judge with a jury. The jury returned a unanimous verdict of guilty against each under the first part of section 304 read with section 34 of the Indian Penal Code. The learned Judge accepted the verdict and convicted them accordingly and sentenced each of the appellants to rigorous imprisonment for ten years. In order to appreciate the points raised before us, it is desirable to give a brief account of the prosecution case. The two appellants jointly made a murderous assault on one Saurindra Gopal Roy at about 6 30 p.m. on the 3rd November, 1951. There was, owing to litigation, previous enmity between the deceased and the appellants. All of them belonged to a village called Mirzapur which is within the police station Beldanga, district Murshidabad. The deceased along with two friends of his, of the same village, examined as P.Ws. 1 and 2, attended a foot ball match that evening at Beldanga. The match was over by 5 p.m. and all the three of them were returning together to their village. In the course of the return they were passing at about 6 30 p.m. through a field, nearly half a mile away from the village. The two appellants each having a lathi and a Hashua (sickle) in his hand, emerged from a bush nearby and rushed towards the deceased and his companions. P.W. 1 49 374 was first struck with a lathi and thereupon both P.Ws. 1 and 2 moved away to a distance. The appellants assaulted the deceased and inflicted on him a number of serious injuries. The two companions of the deceased, P.Ws. 1 and 2, ran towards the village and shouted for help whereupon a number of people from the village came and collected at the spot. Information was also carried to the son as well as to the brother of the deceased. They also came on the scene. The brother, by name Radhashyam, proceeded at once to the Beldanga police station and lodged the first information report at about 7 30 p.m. The police officer came to the scene and recorded a statement from the deceased who was then still alive. He was thereafter taken to the hospital at Beldanga. At the hospital the Medical Officer also took a statement from him (exhibit 4). He died some time thereafter. P.Ws. 1 and 2, the companions of the deceased, were the only eye witnesses to the murderous assault. The prosecution relied also on certain statements said to have been made by the deceased after the assault. The deceased is said to have stated to P.W. 7 one of the villagers who first came on the scene, after hearing the shouts of P. Ws. 1 and 2, that the two appellants were his assailants. A little later, when his son and his brother, P.W. 3 came there, he is also said to have stated to P.W. 3 that the two appellants were the assailants. Accordingly the first information report gave the names of the two appellants as the assailants. Similar statements are said to have been made by the deceased to the police officer when he came on the spot and later to the Medical Officer when he was taken to the hospital. The evidence, therefore, in support of the prosecution case was mainly, that of the two eye witnesses, P.Ws. 1 and 2, and of the four dying declarations, two of them oral and two written. There was considerable scope for criticism about the evidence of the two eye witnesses. The evidence relating to the dying declarations was also open to attack in view of the nature of the injuries inflicted on the deceased. These included incised wounds on the occipital region and an incised wound 375 in the brain from out of which a piece of metal was removed on dissection. This, as was urged, indicated the likelihood of the deceased having lost his consciousness almost immediately and hence the improbability of any statements by the deceased. But the medical evidence on this point was indecisive. There can be no doubt however that the reliability of the prosecution evidence was open to serious challenge in many respects. But learned counsel for the appellants has not been able to raise either before the High Court or before us any objection to the verdict, on the ground of misdirection or non direction, of a material nature, in the charge to the jury by the Sessions Judge. 'On the other band, the charge brought out every point in favour of the appellants and against the prosecution evidence. It erred, if at all. in that the learned Judge involved himself in a great deal of elaboration. The only flaw in the charge which, learned counsel for the appellants could attempt to make out, was that the exposition therein of the legal concept underlying section 34 of the Indian Penal Code was obscure and that it would not have been correctly appreciated by the jurors. It may be that this could have been expressed in more lucid terms. But we are unable to find that there was any misdirection or non direction therein. Nor do we see any reason to think that the jury has been misled. Thus there was no real attack either in the High Court or here as against the learned Judge 's charge to the jury. Accordingly, the only points urged before us are the following. 1.The circumstances of the case and the nature of the charge to the jury made it incumbent on the learned Judge to disagree with the jury and to refer the case to the High Court under section 307 of the Code of Criminal Procedure. 2.In the alternative, the learned Sessions Judge having expressed himself in his charge to the jury, definitely for acquittal, he should not have accepted its verdict, though unanimous, without giving satisfactory reasons for such acceptance. The learned Judge having, in his charge speci 376 fically cautioned the jury against communal prejudice in the following terms "your deliberations and verdict should not be influenced by any communal considerations,", should have refused to accept the verdict as having been vitiated by communal bias. It may be stated that all the jurors were Hindus and that the accused were both Muhammadans. The suggestion is that in view of the fact that thescene Of occurrence was near the border between West and East Bengal, it should have been appreciated that communal bias was, at the time, almost inevitable. 4.There has been virtually no examination of the accused by the Sessions Judge under section 342 of the Code of Criminal Procedure and the trial has been vitiated thereby. In advancing the first two of the above contentions learned counsel for the appellants assumes and asserts that the Sessions Judge in his charge to the jury was unequivocally of the opinion that there was no reliable evidence on which the conviction could be based and that the appellants should be acquitted. On this assumption, he urges that, when in the circumstances the jury gave a unanimous verdict of guilty, his obvious duty was either to express his dis agreement with the verdict of the jury and refer the whole case for the consideration of the High Court under section 307 of the Code of Criminal Procedure, or, at the least, to have placed on record his reasons why in spite of his clear opinion against the prosecution case, he did not consider it necessary to disagree from the verdict of the jury. In order to substantiate this point of view, learned counsel took us through various portions of the charge to the jury and we have ourselves perused carefully the entirety of it. As already stated, the learned Judge undoubtedly pointed out in his charge all the weaknesses of the prosecution evidence in great detail. It is also likely that be was inclined for an acquittal. But we are not satisfied that he came to a definite and positive conclusion that there should be acquittal. While pointing out the weakness of the prosecution evidence with a leaning against its reliability he has not specifically 377 rejected every important item of the prosecution evidence. It was only in some places that he stated categorically that he would not accept a particular item of evidence and would advise the jurors to reject it. In other places, while pointing out the infirmities of the evidence, he was not so categorical and positive, as to what his own opinion on that item of evidence was. For instance, out of the two eye witnesses, P.Ws. 1 and 2, the learned Judge said, so far as P.W. 2 is concerned, as follows: "Personally speaking I am not satisfied with the evidence of recognition of the accused persons as the assailants of Sourindra Gopal furnished by P.W. 2, Satyapada. You will be advised, gentlemen, not to rely upon the evidence of P.W. 2". As regards the evidence of the other eye witness, P.W. 1, however he summed it up as follows: "You should take a comprehensive view of all matters and then decide whether you should act upon the evidence of recognition of the accused persons as the assailants of Sourindra furnished by P.W. 1, Bhupati". There was similar difference in the expression of his opinions with reference to the evidence of the dying declarations of the deceased. It may be recalled that the evidence of the oral dying declarations is of statements to P.W. 7, Phani, and P.W. 3, Radhashyam. The evidence of statement to P.W. 7 was given by a number of witnesses, viz. P.Ws. 6, 7, 8, 9, 10, 11) 12 and 13. Out of these so far as the evidence of P. W. 9 is concerned, the learned Judge specifically stated as follows: "I should tell you that you should not believe P.W. 9 when he stated on being questioned by Phani, Sourindra mentioned Moseb and Sattar as his assailants". But he did not rule out the evidence of the others on this item in the same manner. Then again, when he dealt with the question whether the slip of paper, exhibit 4, is genuine the learned Judge noticed that the said paper was shown to have been taken from the medical officer P.W. 17 into the possession of the In 378 vestigating Officer, P.W. 35, about a month later and commented on it as follows: "Personally speaking I see no reasonable explanation as to why the I.O. should not have seized exhibit 4 from P.W. 17 immediately after it was recorded, if it was recorded on 3rd November, 1951, and sent it to the Magistrate forthwith". All the same, the learned Judge also remarked thus: "You will consider very seriously whether you have any reason to disbelieve the evidence of P. Ws. 17, 32 and 33". P.Ws. 32 and 33 are witnesses who spoke to the statement of the deceased said to have been taken by the Doctor, P. W. 17. Taking the charge to the jury, therefore, comprehensively we are unable to find that the learned Judge rejected the prosecution evidence and arrived at a clear and categorical conclusion in his own mind that the appellants were not guilty. We are, therefore, unable to accept the assumption of learned counsel for the appellants that the Judge agreed with the unanimous verdict of the jury against his own personal conviction, as to the guilt of the accused. It appears to us, therefore, that there is no foundation, as a fact, for the argument that the learned Judge should have made a reference to the High Court under section 307 of the Code of Criminal Procedure or that, in any case, he should have placed on record his reasons for agreeing with the verdict of the jury notwithstanding his own personal opinion to the contrary. Assuming however that the charge to the jury in this case can be read as being indicative of a definite opinion reached by the Sessions Judge in favour of the appellants, it does not follow that merely on that account he is obliged to make a reference under section 307 of the Code of Criminal Procedure. What is required under that section is not merely disagreement with the verdict of the jury but the additional factor that the learned Sessions Judge "is clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court". It is now well settled, since the decision of the Privy Council in 379 Ramnugrah Singh vs King Emperor(1) that under section 307 of the Code of Criminal Procedure a Session,, Judge, even if he disagrees with the verdict of the jury must normally give effect to that verdict unless he is prepared to hold the further and clear opinion "that no reasonable body of men could have given the verdict which the jury did". We are certainly not prepared to say that the present case satisfies that test or that the charge to the jury indicated any such clear conclusion. Indeed it is to be noticed that on intimation by the jury of its unanimous verdict, the learned Judge has recorded that he "agreed with and accepted the verdict". We have no doubt that it was perfectly competent for him to do so. Learned counsel urges that this acceptance is a judicial act and that having regard to the whole tenor of the Judge 's charge to the jury, he was at least under a duty to himself and to the appellate court to record his reasons for acceptance of the verdict of the jury. We are unable to agree with this contention. It may be that in a case where a Judge in his charge to the jury has clearly and definitely expressed himself for acquittal, it would be very desirable, though not imperative, that he should give his reasons why be changed his view and accepted the verdict of the jury. But we can find no basis for any such contention in this case. The two further contentions that remain which are enumerated above as 3 and 4, were not raised before the High Court. We are reluctant to allow any such contentions to be raised on special leave. The point relating to the possibility of the verdict having been the result of bias has no serious basis. It appears to us that the learned Sessions Judge had no justification in this case for imagining the possibility of such bias and giving a warning to the jury in this behalf. This is not a case which arose out of any incident involving communal tension. The likelihood of any such bias is not to be assumed merely from the fact of the appellants being Mubammadans and the jurors being Hindus. Nor is it right to take it (1) [1946] L.R. 73 I.A. 174. 380 for granted merely from the fact of proximity of the place of trial to the border between West and East Bengal. On the other hand, it is not without some relevance that when the jury was empanelled at the commencement of the trial, there was absolutely no such objection taken. Nor was the right of challenge to the jurors exercised. Learned counsel for the appellants has very strenuously argued before us, the point relating to the inadequacy of the examination of the appellants under section 342 of the Code of Criminal Procedure. Now, it is true that the examination in this case was absolutely perfunctory. The only questions put to each of the accused in the Sessions Court, and the answers thereto were the following: "Q. You have heard the charges made and the evidence adduced against you. Now say, what is your defence? What have you got to say? A. I am innocent. Will you say anything more? A. No. Q. Will you adduce any evidence in defence? A. No." There can be no doubt that this is very inadequate compliance with the salutary provisions of section 342 of the Code of Criminal Procedure. It is regrettable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this Court , in various decisions commencing Tara Singh 's case(1) on a due and fair compliance with the terms of section 342 of the Code of Criminal Procedure. But it is also well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with section 342 of the Code of Criminal Procedure. It is settled that clear prejudice must be shown. This court has clarified the position, in relation to cases where accused is represented by counsel at the trial and in appeal. It is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice. This Court in its judgment (1)[1951] S.C.R. 729. 381 in the latest case on this matter, viz. K. C. Mathew and Others vs The State of Travancore Cochin(1) (delivered on the 15th December, 1955) has laid down that "if the counsel was unable to say that his client had in fact been prejudiced and if all that he could urge was that there was a possibility of prejudice, that was not enough". Learned counsel could not, before us, make out any clear prejudice. All that learned counsel for the appellants urges is, that this might be so in a case where the trial was with the assessors and the Judge 's view on the evidence was the main determining factor. But he contends that the same would not be the case where the trial is with the aid of a jury. Learned counsel urges that a full and clear questioning in a jury trial does not serve the mere purpose of enabling the accused to put forward his defence or offer his explanation, which may be considered along with the entire evidence in the case. The jury would, he suggests also, have the opportunity of being impressed one way or the other by the method and the manner of the accused, when giving the explanation and answering the questions and that the same might turn the scale. Learned counsel urges, therefore, that the non examination or inadequate examination under section 342 of the Code of Criminal Procedure in a jury trial must be presumed to cause prejudice and that a conviction in a jury trial should be set aside and retrial ordered, if there is no adequate examination under section 342 of the Code of Criminal Procedure. We are not prepared to accept this contention as a matter of law. The question of prejudice is ultimately one of inference from all the facts and circumstances of each case. The fact of the trial being with the jury may possibly also be an additional circumstance for consideration in an appropriate case. But we see no reason to think that in the present case this would have made any difference. We are, therefore, not Prepared to accept the argument of the learned counsel for the appellants in this behalf. In any case, an argument of this kind which would, if accepted, (1)[1955] 2 S.C.R. 1057. 50 382 necessitate a retrial, is one that ought to be put forward at the earliest stage and at any rate at the time of the regular appeal in the High Court. This cannot be entertained for the first time in an appeal on special leave. For all the above reasons this appeal is dismissed. [/INST]A Sessions Judge, even if he disagrees with the verdict of the Jury, must normally give effect to that verdict unless he is clearly of opinion that no reasonable body of men could have given the verdict which the Jury did. Ramnugrah Singh vs King Emperor, ([1946] L.R. 73 I.A. 174), relied on. A Sessions Judge need not record his reasons for accepting the verdict of the Jury. In a case where a Judge in his charge to the Jury, has clearly and definitely expressed himself for acquittal, it would be desirable though not imperative, that he should give his reasons why he changed his view and accepted the verdict of the Jury finding the accused guilty. Even where the examination of the accused under section 342 Cr. P.C. is perfunctory the judgment cannot be set aside unless clear prejudice is shown. Tara Singh 's case, ([1951] S.C.R. 729), referred to. K.C. Mathew and Others vs The State of Travanore Cochin, ([1955] 2 S.C.R. 1057), relied on. Prejudice cannot be presumed from the fact that the trial is by a jury though that is a circumstance which may be taken into consideration. An argument which would, if accepted, necessitate a retrial, ought to be put forward at the earliest stage and at any rate before the High Court in appeal and cannot be entertained for the first time in an appeal on special leave. </s>

<s>[INST] Summarize the judgementCivil Appeal No.877 of 1974. From the Judgment and Decree dated 17.11.1971 of the Allahabad High Court in First Appeal No. 171 of 1966. D.N. Mukherjee, G.S. Chatterjee and A. Bhattacharjee for the Appellant. Prithvi Raj and Mrs. Shobha Dikshit for the Respondent. The Judgment of the Court was delivered by VENKATACHALIAH, J. This appeal, for enhancement of compensation, by Special leave, arises out of and is directed against the judgment and decree dated 17th November, 1971 of the High Court of Allahabad in First Appeal No. 171 of 1966 affirming the Award and Decree dated 13.12.1965 of the Ist Addl. District Judge, Varanasi, made in a Reference Under Section 18 of the Land Acquisition Act 1894. Property known as "Gopal Lal Villa" a sprawling 60 year old building of about 25,000 square feet of plinth area comprising of 35 rooms, halls and other appurtenances, its large 23.66 acre grounds with 431 fruit and 13 Timber trees; 12 Bamboo clumps, situated on the outskirts of the City of Varanasi, originally part of the estate of Raja P.N. Tagore, and now vesting in the Administrator General, West Bengal, was acquired pursuant to the preliminary notification, published in the Gazette, dated, 4.7.1959 for the purposes of the education department of the Government of Uttar Pradesh. Before the Land Acquisition Officer, Appellant claimed compensation of Rs.8,00,580 (at Rs.352 per decimal) for the land; Rs.3,50,000 for the building and structures; Rs.41,010 for the tree growth; and Rs.5,000 as compensation for change of residence. The Land Acquisition Officer, however, by his Award dated 4.11.1961 under Section 11 of the Act determined the market value of the land at Rs.3,31,340 valuing it Rs. 140 per decimal (or Rs.14,000 per 1032 acre); of the building and structures at Rs.57,660 and of the treegrowth at Rs.355.83. Appellant, not having accepted the offer contained in the award, sought for a reference under Section 18 of the Act to the Civil Court in proceedings pursuant to which the District Court enhanced the market value of the land to Rs.4,73,200 (from Rs.140 to Rs.200 per decimal) leaving the valuation of the building and the tree growth undisturbed. The High Court has affirmed the Award dismissing appellant 's claim for further enhancement before it. We have heard Shri D.N. Mukherjee, learned counsel in support of the appeal and Shri Prithviraj, learned Senior Advocate for the respondent. We have been taken through the judgment under appeal and the evidence on record. On the contentions urged at the hearing, the following points fall for consideration: (a) Whether the estimate of the market value of the acquiredland at Rs.200 per decimal is unreasonably low and is arrived at ignoring the evidence on record and settled principles of valuation? (b) Whether the valuation of the buildings and structures at a mere Rs.57,660 calls for an upward revision? (c) Whether the award made for the tree growth is inadequate and is required to be valued higher? (d) Whether appellant is entitled to the benefit of Sec. 23(2) of the Act as introduced by the U.P. Law Acquisition (Amendment) Act 1972 providing for solatium and, further, to higher rates of solatium and interest under the Central Amending Act (Act No. 68 of 1984) on the ground that proceedings were pending in appeal before this court on the dates these amendments came into force? 4. Re: Contention (a) The acquired land had the potentiality for building purposes. Learned District Judge found that: ". The Land Acquisition Officer himself realised this fact and has observed that "the land under acquisition is 1033 situated within the Corporation limits in Mohalla Orderly Bazar, a thickly populated locality and is near to Kutchery. It has, therefore, a potential value as building site. " I may add here that though the acquired land is at a distance of about 3 to 3 1/2 miles from the main markets of Varanasi City, yet every thing of daily need and of day today utility is available in the market which exists in the locality of the acquired land. It may also be added that the land adjacent to the west of the acquired land known as 'Tagore Nagar ' formerly formed part of this Gopal Lal Villa and both were covered by one boundary. The land of Tagore Nagar has been divided into small portions and a colony with residential quarters has grown up there. This was already in existence before the present acquisition . ." The determination of market value of a piece land with potentialities for urban use is an intricate exercise which calls for collection and collation of diverse economic criteria. The market value of a piece of property, for purposes of Section 23 of the Act, is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arms length. The determination of market value, as one author put it, is the prediction of an economic event. viz, the price outcome of a hypothetical sale, expressed in terms of probabilities. Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual, and indeed the best, evidences of market value. Other methods of valuation are resorted to if the evidence of sale of similar lands is not available. In the District court, appellant relied upon eight transactions of what, according to him, were sale, of similar lands. The transactions at Ext. 18, 20, 21 and 22, dated, 25.3.1952, 1.12.1955, 11.8.1953 & 11.7.1957 respectively were rejected by learned District Judge on the ground that they were long enterior in point of time to the acquisition and lacked the element of contemporaneity. 23 dated, 25.10.1958 and Ext. 24 dated, 18.8.1960 were also held not to afford reliable evidence of market value on the ground that while in the former case the property was sold along with a construction thereon without any indication as to the apportionment of the price between the land and the construction, in the latter case the sale was about an year subsequent to the date of the preliminary notification. 1034 What remained were the evidence of sale transactions at Exts. 2 and 19 dated 16.9.1958 and 22.12.1958 respectively indicating a price of Rs.1250 and Rs.900 per biswa respectively. The District Judge struck an average of the two and fixed the rate at Rs.1075 per biswa which worked out to about Rs.350, or thereabouts, per decimal. But since Ext. 2 and Ext. 19 related to very small plots, the learned District Judge on some calculations of his own, fixed the rate of Rs.200 per decimal for the acquired land. Shri Mukharji in support of the appellant 's claim @ Rs.352 per decimal submitted that the High Court, in affirming the valuation of the land at a mere Rs.200 per decimal, overlooked certain settled principles of valuation in that it approved the process adopted by the learned District Judge of striking an average of the valuations reflected in Ext. 2 and Ext. 19, while the higher of the two figures indicated by Ext. 2, should have been adopted. Learned Counsel submitted that the acquired land, though situate about 3 1/2 miles away from the heart of Varanasi City, had all the potentiality for use for building purposes and that the rejection of the evidence of market value afforded by Ext. 24, the transaction of sale dated 14.7.1960 which indicated a price of Rs.2,000 per biswa on the ground that it was an year later than the preliminary notification was erroneous. It is trite proposition that prices fetched for small plots can not form safe bases for valuation of large tracts of land as the two are not comparable properties. (See Collector of Lakhimpur vs B.C. Dutta, AIR 1971 SC 2015; Mirza Nausherwan Khan & Anr. vs The Collector (Land Acquisition), Hyderabad, [1975] 1 SCR; Padma Uppal etc. vs State of Punjab & Ors., [1971] 1 SCR; Smt. Kaushalya Devi Bogra & Ors. vs The Land Acquisition Officer Aurangabad & Anr., [1984] 2 SCR. The principle that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land has to be understood in its proper perspective. The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents. However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes; that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay out could with justification be adopted, then in valuing such small, laid out sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant. In such a case, necessary deductions for the extent of land required for the formation of roads and other civic 1035 amenities; expenses of development of the sites by laying out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc. are to be made. In Sahib Singh Kalha & Ors. vs Amritsar Improvement Trust and Ors., (See , this court indicated that deductions for land required for roads and other developmental expenses can, together, come up to as much as 53%. But the prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the 'retail ' price of land and the latter the 'wholesale ' price. The sale transaction at Ext. 24 was an year later. Such subsequent transactions which are not proximate in point of time to the acquisition can be taken into account for purposes of determining whether as on the date of acquisition there was an upward trend in the prices of land in the area. Further under certain circumstances where it is shown that the market was stable and there were no fluctuations in the prices between the date of the preliminary notification and the date of such subsequent transaction, the transaction could also be relied upon to ascertain the market value. This court in State of U.P. vs Maj. Jitender Kumar, (See observed: ". . It is true that the sale deed Ext. 21 upon which the High Court has relied is of a date three years later than the Notification under section 4 but no material was produced before the Court to suggest that there was any fluctuation in the market rate at Meerut from 1948 onwards till 1951 and if so to what extent. In the absence of any material showing any fluctuation in the market rate the High Court thought it fit to rely upon exhibit 21 under which the Housing Society itself had purchased land in the neighbourhood of the land dispute. On the whole we are not satisified that any error was committed by the High Court in relying upon the sale deed exhibit 21. ." But this principle could be appealed to only where there is evidence to the effect that there was no upward surge in the prices in the interregnum. The burden of establishing this would be squarely on the party relying on such subsequent transaction. In the present case appellant did not endeavour to show that between the date of preliminary notification i.e. 4.7.1959 and the date of Ext. 24 i.e. 18.8.1960 there was no appreciation in the value of land in the area. Therefore, Ext. 24 cannot be relied upon as affording evidence of the market 1036 value as on 4.7.1959. We cannot accept the argument that the price indicated in Ext. 24 should be accepted after allowing an appropriate deduction for the possible appreciation of the land values during the period of one year. Apart from other difficulties in this exercise, there is no evidence as to the rate and degree of appreciation in the values of land so that the figure could be jobbed backwards from 14.7.1960 to 4.7.1959. It appears to us that even if the value at Rs.1,250 as on 27.8.1958 indicated by Ext. 2 is adopted and something is added thereto for the possible appreciation for the period till the preliminary notification, also taking into account the trend of appreciation in the prices in the area as indicated by Ext. 24 and the value of small developed sites is estimated somewhere between Rs.1,400 and Rs.1,600 per biswa or Rs.450 to Rs.500 per decimal, yet, the valuation made in the present case does not call for or justify any upward revision at all. There is a simple way of cross checking these results. The value of small plots Rs.500 per decimal as now estimated represents what may be called the "retail" price of the land. What is to be estimated therefrom is the "wholesale" price of land. In Bombay Improvement vs Mervanji Manekji Mistry, (See AIR 1926 Bombay 420) Mecleod CJ suggested a simple rule: ". .Valuation cases must be dealt with just as much from the point of view of the hypothetical purchase as of the claimant. The valuation itself must often be more or less a matter of guesswork. But it is obviously wrong to fix upon a valuation which, judged by everyday principles, no purchaser would be likely to give . ." ". .I have always been adverse to elaborate hypothetical calculations which are no more likely to lead to a fair conclusion than far simpler methods. But, in any event, no harm can be done by testing a conclusion arrived at in one way by a conclusion arrived at in another . ." ". .A very simple method of valuing land wholesale from retail prices is to take anything between one and half onethird, according to circumstances of the expected gross valuation, as the wholesale price. ." (emphasis supplied) In the present case, Rs.200 per decimal for the large extent of the 1037 acquired land works out to 40% of the "retail" price even if we take, Rs.500 as the "retail" price. That apart, in the case of land with potentialities for a more profitable use, it is necessary to acknowledge, and make due allowance for, the possibility that the land might not be applied for the prospective use at all or not so applied within a reasonable time. There is, therefore, no justification to interfere with the determination of the market value of the land approved by the High Court. Contention (a) is accordingly answered against the appellant. Re: Contention (b) The District Court proceeded to value the property on the "Land and Building Method". The appositeness of this method to the present case was not debated before us. Usually, land and building thereon constitute one unit. Land is one kind of property; land and building together constitute an altogether different kind of property. They must be valued as one unit. But where, however, the property comprises extensive land and the structures thereon do not indicate a realisation of the full developmental potential of the land, it might not be impermissible to value the property estimating separately the market value of the land with reference to the date of the preliminarynotification and to add to it the value of the structures as at that time. In this method, building value is estimated on the basis of the primecost or replacement cost less depreciation. The rate of depreciation is, generally, arrived at by dividing the cost of construction (Less the salvage value at the end of the period of utility) by the number of years of utility of the building. The factors that prolong the life and utility of the building, such as good maintenance, necessarily influence and bring down the rate of depreciation. Hari Shanker Misra PW 3 referring to the nature and quality of the building stated: ". The Northern part of this Villa was double storeyed and rest was single storeyed. Its plinth was 3 feet high and rooms were 14 feet high. The building bore 35 rooms and besides this there was a big hall 65 feet x 22 feet. Its floor was made up of some patent stones. Some monthly some market and Vkiya were stoned. The doors were 8 feet x 4 feet and they were made up of Burma teak wood and up ways were double doored. When Improvement Trust oc 1038 cupied the property of Nejai at that time building was well maintained. Over and above the main building there were manager quarters. Kitchen, out house, servant quarters, Chowkidar quarters and a stable. Now they were in good condition. Its boundary wall was 7 feet and at some places they were 8 feet high. This also consists of 2 iron gates. One is main gate and the other one is by its side of some distance. " Learned District Judge based his valuation almost entirely upon the report of the Chief Engineer, estimating the building at Rs.57,660. That report itself was not brought on record in the proceedings of reference. It is not clear from the judgment of the High Court whether this estimate of Rs.57,660 represented the cost of replacement of the structure less depreciation or whether it represented merely the salvage value of the building. High Court rejected the Valuation Report, Ext. 1 relied upon by the appellant on the ground that it was made with reference to a date which was an year later than the preliminary notification. The High Court observed: ". The appellant had examined Narain Chand Das, an Overseer who had assisted the Executive Engineer, in preparing the valuation of the constructions and the well. The report of the Executive Engineer is Ext. 1 on the record. It appears from the said report that the valuation was determined on the basis of the rates prevailing in the year 1960 where as the preliminary notification in the instant case was issued in the year 1959. Moreover, this building appears to be about 60 years old and the market value thereof could not be determined on the basis of the cost of constructions prevailing in the year 1960. This method of calculating the market value of the property is obviously erroneous and cannot be accepted. No other evidence was produced by the appellant to determine the value of the constructions and the well. The evidence produced by him being not satisfactory, the compensation already determined by the Land Acquisition Officer in respect of this item of the property was not liable to be enhanced. ." We are afraid the estimate of the proper market value of the building has not received the requisite attention both before the High Court and the District Court. It is no doubt true that Ext. 1 was prepared on 20.7.1960, an year after the date of the preliminary notifi 1039 cation in the present case; but the extent of the built area was about 2,500 sq. 1 gives a breakdown of the area of the various parts of the building and sets out the nature of the construction and proceeds to estimate the value in terms of the then current PWD rates less depreciation of 20%. The rates adopted were not particular to the date of valuation i.e. 20.7.1960. The PWD rates are operative over a period, generally for an year or so. The extent or the quality of construction were also not in dispute. The main building of an area of 18828 sq. consisted of 35 rooms, and a big hall with 'Marble Flooring ', 'Burma Teak Shutters ', 'Stone Slab Roofing ', a portico with 'Glazed Gracian Pillars ' etc. In Ext. 1, the main portion was valued at Rs.12 per sq. Apart from the main building, there were other appurtenances such as the Managers ' quarters, kitchen house, chowkidars ' quarters, out house, stables, pucca wells etc. The other structures have been valued area wise at much lesser rates, according as the nature of the construction. The decendants of Raja P.N. Tagore, it was claimed, were residing in the building till a few days before possession was taken. There is no evidence to suggest that, the rates mentioned and adopted in Ext. 1 were not rates valid for a spread out period. It appears to us somewhat unreasonable that the extensive building of 25,000 sq. with big halls and 35 rooms constructed with quality material, marble flooring, burma teak joinery should be valued at a mere Rs.57,660. No case was made out that the building had lost its utility and that only mode of valuation appropriate to the case was one of awarding merely the salvage value. The building, according to the evidence, was quite strong though about 60 years old at the time. Having regard to the circumstances of this case, the appropriate thing to do would have been to set aside the award in so far as the valuation of the building is concerned and remit the matter for a fresh determination of its market value as on 14.7.1959. But the parties have been at litigation for decades. The acquisition is of the year 1959. We, therefore, thought and put to the learned counsel on both sides whether in the interests of justice, it would not be proper to make some rough and ready estimate, drawing such sustenance as the evidence on record could afford and impart a quietus to this vexed litigation. Learned counsel very fairly submitted that this would be the appropriate course. In the very nature of things, the exercise that we make, must share the imperfections of the evidence on record. But then, some element of speculation is inevitable in all valuations. In the 1040 best of exercises some measure of conjecture and guess work is inherent in the very nature of the exercise. We may first proceed to estimate the prime cost of the building. The measurement set out in Ext. 1 is not disputed. If Ext. 1 is taken as the starting point for the estimate of cost of replacment as on 4.7.1959; the depreciation of 20% allowed in Ext. 1 has to be added back and, further, some deduction towards the possible escalation of costs of construction between the date of preliminary notification and of the period of validity of the rates adopted in Ext. 1 has to be made. On this basis, the cost of replacement could be estimated at about Rs.4 lakhs. This works out to Rs.16 sq. on the average. Even in respect of 1959, this figure may not be much, having regard to the quality of the construction. From this sum of Rs.4 lakhs, depreciation for the past life of 60 years of building would have to be deducted. Depreciation depends upon and is deduced from factors such as the cost of the construction; the expected life span; its salvage value realisable at the end of the period of utility etc. Rate of depreciation is generally, the prime cost less salvage value divided by the life span. These, of course, are matters of evidence. In the present case, if we make a rough and ready estimate of the salvage value at say, 10% of the cost and estimate the period of utility of life span of the building at, say, 90 years, the depreciation which is the annual loss of value due to physical wear and tear works out to about Rs.4,000 per year or roughly 1%. Without going to the finer details of the calculation of the depreciation on the progressive written down values, we think, an estimate of 50% of the cost of the building may, again on a rough and ready basis, be deducted towards depreciation. The market value of the building as on the date of the preliminary notification could accordingly be fixed at Rs.2,00,000. Accordingly, the compensation for the buildings and structures is enhanced from Rs.57,660 to Rs.2,00,000, point (b) is held and answered accordingly. Re: Contention (c): So far as the tree growth is concerned, it is trite proposition that where land is valued with reference to its potentiality for building purposes and on the basis of prices fetched by small sites in a hypothetical lay out, the tree growth on the land cannot be valued independently on the basis of its horticultural value or with reference to the value of the yield. But this principle does not 1041 come in the way of awarding the timber value or the salvage value of the tree growth after providing for the cost of cutting and removing. The evidence shows that there were 471 fruit bearing trees and plants: 13 timber trees and 12 Bamboo clusters. Though there is some evidence as to the value of the yield, this may not be a relevant factor having regard to the principles of valuation appropriate to the case. There is no evidence about the timber value and the fuel value of the trees. Learned District Judge has awarded a sum of Rs.355.85 for the entire tree growth. Having regard to the large number of trees and to the fact that some of them were timber trees, we think we should award lumpsum of Rs.7,500 under this head. Accordingly, compensation for the tree growth is enhanced from Rs.355.85 to Rs.7,500. 11. Re: Contention(d) This leaves us with the question whether the benefit of Section 23(2) introduced by the UP Land Acquisition (Amendment) Act 1972 (Act No. 28 of 1972) providing for a solatium is available to the appellant on the ground that the proceedings in appeal were pending as on the date when that provision was introduced. It is to be recalled that by U.P. Land Acquisition (Amendment) Act (Act No. 22 of 1954) Section 23(2) had been deleted from the statute. The preliminary notification was long subsequent to this deletion. The question is whether the introduction or re introduction of Section 23(2) in 1972 would enure to the benefit of the appellant on the premise that rules of construction appropriate to such remedial measures would require their benefit to be extended to pending proceedings. Appellant has also claimed the benefit of the further enhancement of the solatium and the rates of interest under Central Amending Act 68 of 1984. Shri Mukharjee submitted that these amendments, both by the State Law and the Central Law, were remedial legislations and would apply to pending actions. Shri Prithviraj, on the contrary, submitted that these changes in the law, brought in by the amended provisions are presumptively prospective except to the extent that they are made expressly or by compelling implication retrospective in the extension of their benefits. Learned Counsel said that application of these provisions even to pending proceedings envisages a principle of retro active application which must expressly be enabled by the statute or is to be inferred as an inevitable implication. 1042 Shri Mukharjee relied upon certain observations of this court in the case of Bhag Singh & Ors. vs Union Territory of Chandigarh, (See 1985 Suppl. 2 SCR 949). There are some observations at 958 of the report which tend to lend support to Shri Mukharjee. But the matter is pending decision at the hands of a larger bench. In the circumstances, learned counsel on both sides submitted that the appeal be disposed of on the other points leaving it open to the appellant to agitate Contention (d) after a final pronouncement in Bhag Singh 's case, if in the light of the said judgment, this claim or any part of it survives. We accept this submission and reserve liberty to the appellant accordingly. Shri Mukharjee sought to raise another point concerning compensation to be awarded for change of residence under Clause 'fifthly ' in Sec. 23(1); but as this point does not appear to have been raised and urged before the High Court. We think, we should not permit the appellant to re agitate this question over again in this court. It is also to be observed that no specific ground is taken in this behalf in this appeal either. In the result, this appeal is allowed in part and while the compensation determined and awarded for the land is left undisturbed, the compensation awarded for the building and tree growth is enhanced from Rs.57,660 to Rs.2,00,000 and from Rs.355.85 to Rs.7,500 respectively. Appellant shall be entitled to interest at 6% on the enhanced amount of compensation from the date of taking of possession till realisation. Liberty is reserved to the appellant to seek such additional relief on Contention (d) depending upon the ultimate decision in Bhag Singh 's case. The appeal is disposed of accordingly. The appellant shall be entitled to the costs in this appeal. The advocate 's fee fixed at Rs.2,500. N.V.K. Appeal allowed. [/INST]% The suit property known as "Gopal Lal Villa" situated on the outskirts of the city of Varanasi was a sprawling 60 years old building, part of the estate of a Raja, and vested in the appellant. It was acquired pursuant to preliminary Notification dated 4.7.1959 under the Land Acquisition Act 1894 for the purposes of the Education Department of the Government of Uttar Pradesh. The building was of about 25,000 square feet plinth area comprising 35 rooms, halls and other appurtenances, and the 23.66 acres of ground appurtenant to the building, had 431 fruit and 13 timber trees and 12 bamboo clumps. The appellant claimed compensation of Rs.8,00,580 for the land valuing it at Rs.352 per decimal. Rs.3,50,000 for the building and structures; Rs.41,010 for the tree growth and Rs.5,000 as compensation for change of residence. The Land Acquisition Officer by his Award dated 4.11.1961 1026 under section 11 of the Land Acquisition Act determined the market value of the land at Rs.3,31,340 valuing it at Rs.140 per decimal; of the building and superstructure at Rs.57,660 and of the tree growth at Rs.355.83. Being aggrieved with the aforesaid determination of compensation the appellant did not accept the offer contained in the Award, and sought for a reference under section 18 of the Act to the Civil Court. The District Court enhanced the market value of the land to Rs.4,73,200 i.e. from Rs.140 to Rs.200 per decimal and left the valuation of the building and the tree growth undisturbed. The High Court affirmed the Award of the District Court and dismissed the appellant 's claim for further enhancement. In the appeal to this Court, it was contended on behalf of the appellant that the claim of Rs.352 per decimal was not accepted and that the High Court in affirming the valuation of the land at a mere Rs.200 per decimal overlooked certain settled principles of valuation. It adopted the District Judge 's valuation which was the average of the valuation reflected in Ext. 2 and Ext. 19 while the higher of the two figures indicated by Ext. 2 should have been adopted. It was further contended that the appellant was entitled to solatium and interest at higher rates in view of the re introduction of section 23(2) in 1972 by the U.P. Land Acquisition (Amendment) Act, 1972 and under the Central Amendment Act 68 of 1984. On behalf of the respondent it was contended that the changes in law brought about by the State Amendment Act No. 28 of 1972 and the Central Amending Act 68 of 1984 are presumptively prospective except to the extent that they are made expressly or by compelling implication retrospective in the extension of their benefits. On the question whether: (1) ^ HELD: 1.(i) The determination of market value of a piece of land with potentialities for urban use is an intricate exercise which calls for collection and collation of diverse economic criteria. [1033C D] (ii) The market value of a piece of property for purposes of section 23 of the Land Acquisition Act is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arm 's length. [1033D] (iii) Prices fetched for similar lands with similar advantages and potentialities under bonafide transactions of sale at or about the time of the preliminary notification are the usual, and indeed the best, evidences of market value. Other methods of valuation are resorted to if the evidence of sale of similar lands is not available. [1033E F] (iv) Prices fetched for smaller plots cannot form safe bases valuation of large tracts of land as the two are not comparable properties. [1034E] Collector of Lakhimpur vs B.C. Dutta, AIR 1971 SC 2015; Mirza Nausherwan Khan & Anr. vs The Collector (Land Acquisition), Hyderabad, ; ; Padma Uppal etc. vs State of Punjab & Ors. , ; and Smt. Kaushalya Devi Bogra & Ors.v. The Land Acquisition Officer, Aurangabad & Anr., ; , referred to. (v) However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes; that building plots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay out 1028 could with justification be adopted, then in valuing such small, laid out sites the valuation indicated by sale of comparabe small sites in the area at or about the time of the notification would be relevant. [1034G H] (vi) In a case such as the above, necessary deduction for the extent of land required for the formation of roads and other civic amenities; expenses of development of the sites by laying out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc. are to be made. [1034H; 1035A B] Sahib Singh Kalha & Ors. vs Amritsar Improvement Trust and Ors., referred to. (vii) Prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the 'retail ' price of land and the latter the 'wholesale ' price. [1035B] (viii) Subsequent transactions which are not proximate in point of time to the acquisition can be taken into account for purposes of determining whether as on the date of acquisition there was an upward trend in the prices of land in the area. [1035C] (ix) Where it is shown that the market was stable and there were no fluctuations in the prices between the date of the preliminary notification and the date of such subsequent transaction, the transaction could also be relied upon to ascertain the market value. (a) When there is evidence to the effect that there was no upward surge in the prices in the interregnum. (b) The burden of establishing this would be squarely on the party relying on such subsequent transaction. [1035C D,G] State of U.P. vs Major Jitender Kumar, referred to. In the instant case, the appellant did not endeavour to show that between the date of preliminary notification i.e. 4.7.1959 and the date of Ext. 24 i.e. 18.8. 1960 there was no appreciation in the value of land in the area. Therefore, Ext. 24 cannot be relied upon as affording evidence of the market value as on 4.7.1959. [1035G H] (xi) The valuation of land made in the present case does not call for or justify any upward revision at all. (a) There is no justification to interfere with the determination of the market value of the land approved by the High Court. [1036C D] 1029 In the instant case Rs.200 per decimal for the large extent of the acquired land works out to 40% of the "retail" price even if Rs.500 is taken as the 'retail ' price. That apart, in the case of land with potentialities for a more profitable use it is necessary to acknowledge, and make due allowance for, the possibility that the land might not be applied for the prospective use at all or not so applied within a reasonable time. [1036H; 1037A B] Bombay Improvement vs Mervanji Manekji Mistry, AIR 1926 Bombay 420 referred to. 2.(i) Usually land and building thereon constitute one unit. Land is one kind of property; land and building together constitute an altogether different kind of property. The latter must be valued as one unit. [1037C D] (ii) However, where, the property comprises extensive land and the structures standing do not show that full utilisation potential of the land is realised it might not be impermissible to value the property estimating separately the market value of the land with reference to the date of the preliminary notification and to add to it the value of the structures as at that time. [1037D E] (iii) By the above method, building value is estimated on the basis of the prime cost or replacement cost less depreciation. The rate of depreciation is, generally, arrived at by dividing the cost of construction (less the salvage valued at the end of the period of utility) by the number of years of utility of the building. [1037E F] (iv) The factors that prolong the life and utility of the building, such as good maintenance, influence and bring down the rate of depreciation. [1037F] In the instant case, the estimate of the proper market value of the building has not received the requisite attention both before the High Court and the District Court. It is no doubt true that the Valuation Report, Ext. I, was prepared on 20.7. 1960 one year after the date of the preliminary notification. But the extent of the built area was about 25,000 sq. There is no evidence to suggest that the rates mentioned and adopted in Ext. I were not rates valid for a spread out period. No case was made out that the building had lost its utility and that the only mode of valuation appropriate to the case was one of awarding merely the salvage value. The building, according to the evidence was quite 1030 strong though about 60 years old at the time. The appropriate thing to do would have been to set aside the award in so far as the valuation of the building is concerned and remit the matter for a fresh determination of its market value as on 14.7.1959. However, in the interest of justice it would be proper to make some ready and rough estimate drawing such sustenance as the evidence on record could afford and impart a quietus to this vexed litigation. Accordingly, the compensation for the buildings and structures is enhanced from Rs.57,660 to Rs.2,00,000. [1038G H; 1039D G; 1040G] 3. Where land is valued with reference to its potentiality for building purposes and on the basis of prices fetched by small sites in a hypothetical lay out the tree growth on the land cannot be valued independently on the basis of its horticultural value or with reference to the value of the yield. This principle, however, does not come in the way of awarding the timber value or the salvage value of the tree growth after providng for the cost of cutting and removing. [1040G H; 1041A] In the instant case, the evidence shows that there were 471 fruit bearing trees and plants, 13 timber trees and 12 bamboo clusters. Though there is some evidence as to the value of the yield, there is no evidence about the timber value and fuel value of the trees. The District Judge has awarded a sum of Rs.355.85 for the entire tree growth. Having regard to the large number of trees and to the fact that some of them were timber trees, it would be appropriate to award a lump sum of Rs.7,500 under this head. The compensation for tree growth is accordingly enhanced from Rs.355.85 to Rs.7,500. [1041A C] 4. By the U.P. Land Acquisition (Amendment) Act, 1954, Section 23(2) had been deleted from the statute. It was re introduced by the U.P. Land Acquisition (Amendment) Act 1972. The preliminary notification for the acquisition was issued subsequent to the deletion. Whether re introduction of sub section (2) would enure to the benefit of the person whose land is acquired on the ground that proceedings in appeal were pending on the date of introduction of that provision, and availability for further enhancement of the solatium and rates of interest under the Central Amendment Act 68 of 1984 are left open with consent of counsel to be agitated after final decision in Bhag Singh vs U. T. of Chandigarh, by a larger Bench of this Court. [1041E F; 1042B] 5. The point concerning compensation to be awarded for change of residence under clause 'fifthly ' in section 23(1) does not appear to have been raised and urged before the High Court. No specific ground 1031 has also been taken in this behalf in the appeal before this Court. The appellant should not, therefore, be permitted to re agitate this question over again in this Court. [1042D] </s>

<s>[INST] Summarize the judgementminal Appeals Nos. 36 of 1969 and 202 of 1970. Appeal from the judgment and order dated January 17, 1969 of the Rajasthan High Court in D.B. Criminal Appeal No. 376 of 1965. A. section R. Chari and Sobhagmal Jain, for the appellant (in, Cr. A. No. 36 of 1969). K. B. Mehta for the respondent (in Cr. A. No. 36 of 1969) (in Cr. A. No. 202 of 1970). section C. Gupta, Ramesh Chand, section Bhandare and P. H. Parekh, for the respondent (in Cr. A. No. 202 of 1970). The Judgment of the Court was delivered by Khanna, J. This judgment would dispose of criminal appeal No. 36 of 1969 Bhagat Ram vs State of Rajasthan and criminal appeal No. 262 of 1970 State of Rajasthan vs Ram Swaroop. Both the appeals have been filed on certificate granted by the Rajasthan High Court. Bhagat Ram during the year 1962 was posted as circle ins pector of police at Ganganagar. Ancestral village of Bhagat Ram is Mehna in Tehsil Moga, District Ferozepur. Ram Swaroop also belongs to that village. Both Bhagat Ram and Ram Swaroop were tried in the court of special judge, Ganga nagar for offenses under section 120B IPC for conspiring to ,extort bribe of Rs. 2,000 from P W I Niranjan Dass of Moga. Charges were also framed against Bhagat Ram for offenses under sections 161, 218, 347 and 389 Indian Penal Code as also section 5 (1) (a) read with section 5 (2) of Prevention of Corruption Act. Additional charge under section 165A Indian Penal Code was framed against Ram Swaroop. Both Bhagat Ram and Ram Swaroop were acquitted by the special judge, Ganganagar in respect of all the charges. The State of Rajasthan filed an appeal against the acquittal of the two accused. The appeal was heard by a Division Bench consisting of Tyagi and Lodha, T.T. 305 The Division Bench dismissed the said appeal against the acquittal of Ram SwarooP. The appeal of the State against Bhagat Ram in so far as it related to his acquittal for offenses under sections 347, 218, 389 and 120B IPC was also dismissed. There was, however, a difference of opinion between the two learned judges on the point as to whether the acquittal of Bhagat Rain for offenses under section 161 IPC and 5(1) (a) of Prevention of Corruption Act should be maintained. According to Tyagi, J., the case against Bhagat Ram for the above mentioned two offenses had not been proved and the State appeal in that respect also was liable to be dismissed. As against that Lodha, J. took the view that Bhagat Ram was guilty of offenses under section 161 Indian Penal Code and section 5 (1) (a) of Prevention of Corruption Act. He accordingly passed an order for the conviction of Bhagat Ram for the above mentioned two offenses. In view of the difference between the two judges regarding the acquittal of Bhagat Ram for offenses under section 161 IPC and 5 (1) (a) of Prevention of Corruption Act, the case was placed under section 429 of the Code of Criminal Procedure before Jagat Narayan, J. Jagat Narayan, J. came to the conclusion that the material on record showed that Ram Swaroop and Bhagat Ram had entered into an agreement to extort bribe, from Niranjan Dass and, as such, were guilty of an offence under section 120A punishable under section 120B of Indian Penal Code. The learned judge, however, felt that in view of the decision of the Division Bench, he could not set aside the acquittal of Ram Swaroop. As regards Bhagat Ram, the learned judge came to the conclusion that he could set aside the acquittal of Bhagat Ram for offenses under sections 120B, 218 and 347 IPC. Bhagat Ram was found guilty by Jagat Narayan, J. of the offenses under sections 120B, 161, 218 and 347 IPC. For the offence under section 161 IPC, Bhagat Ram was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 5001 or in default to undergo rigorous imprisonment for a further period of three months. For the offenses under sections 218 and 347 IPC, Bhagat Ram was sentenced to undergo rigorous imprisonment for a period of one year on each count. These sentences were ordered to run concurrently with the sentence imposed under section 161 IPC. No sentence was awarded for the offence under section 120B IPC. Bhagat Ram has filed criminal appeal No. 36 of 1969 against his conviction and sentence, while the State of Rajasthan has filed appeal No. 202 of 1970 against the acquittal of Ram Swaroop. The prosecution case is that a case under sections 408 and 420 IPC was registered on June 14, 1962 at police station Ganganagar on a report made by the general manager of Ganganagar 306 Sugar Mills against Ramesh, an employee of the sugar mills. Bhagat. Ram, who was circle inspector of Ganganagar, took over the investigation of the above case. Bhagat Ram during investigation came to know that Ramesh had sent the misappropriated amount to his brother Puran Chand at Ludhiana. Bhagat Ram also came to know that Puran Chand had entered into a transaction for the purchase of a truck from PW Niranjan Dass of Moga for a price of Rs. 22,000. Niranjan Dass received Rs. 7,000 from Puran Chand in that connection. As Puran Chand could not pay the balance of the purchase price, the bargain regarding the purchase of the truck was cancelled and the amount received by Niranjan Dass was stated to have been returned to Puran Chand. It seems that Bhagat Ram took the stand that part of Rs. 7,000 had been kept by Niranjan Dass with himself. Bhagat Ram, therefore. summoned Niranjan Dass to police station Ganganagar. In obedience to the summons, Niranjan Dass went with his brother Manohar Lal PW to Ganganagar police station on July 27, 1962. Niranjan Dass and Manohar Lal could not meet Bhagat Ram on that day but met him on the following day. Bhagat Ram then behaved in an unduly rude and harsh manner to Niranjan Dass and kept him at the police station. Manohar Lal apprehending trouble, returned to Moga and took with him Ram Swaroop accused and some other persons. Manohar Lal and his companions reached Ganganagar on July 29, 1962. In the meanwhile, Bhagat Ram had gone to Hindumalkot. Accompanied by Niranjan Dass, Ram Swaroop and others, Manohar Lal went to Hindumalkot Dak bungalow where Bhagat Ram was staying. It is stated that Ram Swaroop went inside the room in which Bhagat Ram was present, while others stayed outside. After ' some time Ram Swaroop came out of the room and told Niranjan Dass and Manohar Lal not to feel worried. Niranjan Dass was asked to give a statement which was thereafter recorded by Bhagat Ram. Bhagat Ram then produced three documents relating to the agreement for the sale of truck and the receipt which Niranjan Dass had obtained from Puran Chand. for the refund of Rs. 7,000. Bhagat Ram then told Niranian Dass to go back to Moga. It was also mentioned by Bhagat Ram that if the presence of Niranjan Dass was required for further investigation, he would be summoned again. About 10 or 15 days after that, it is stated, Bhagat Ram went to Moga in a jeep and stayed at the house of Niranjan Dass and Manohar Lal for the night. While leaving Moga early next morning, Bhagat Ram told Niranjan Dass and Manohar Lal that they should have a talk with Ram Swaroop and act according to Ram Swaroop 's instructions. After Bhagat Ram had left Moga, Ram Swaroop met Niranjan Dass and informed him that Bhagat Ram Wanted Rs. 21,000 as bribe for having helped Niranjan Dass 307 to get out of the trouble and that otherwise, Niranjan Dass would be again entangled in the case. Niranjan Dass then told Ram Swaroop that he would consult a lawyer and give a reply. Ram Swaroop, according to the prosecution case, came to Niranjan Dass in the first week of October 1962 and showed letter P. 2 which had been sent by Bhagat Ram to Ram Swaroop from Alwar. In the course of that letter it was stated Kindly kindness send that thing to Alwar. This is very important and please do not be careless and slack in the matter. " Ram Swaroop told Niranjan Dass that the words "that thing" in the letter referred to Rs. 2,000 and demanded that amount from Niranjan Dass, so that it could be passed on to Bhagat Ram. Niranjan Dass expressed his inability to accede to this demand. The letter was, however, retained by Niranjan Dass. A few days thereafter Ram Swaroop again came to Niranjan Dass and showed him telegram P.3A dated October 19, 1962. The telegram had been addressed by Bhagat Ram to Ram Swaroop and it was stated therein that Ram Swaroop should ask Niranjan Dass to see Bhagat Ram and that otherwise , warrants of arrest would be issued against him. This telegram too was kept by Niranjan Dass, with himself. On December 26, 1962, it is stated, Niranjan Dass came tos know that warrants for his arrest had been received by the Moga police in the above mentioned case registered at Ganganagar. Niranjan Dass then consulted a lawyer and sent complaint dated December 26, 1962 to the Inspector General of Police, Special Police Establishment. A case was thereafter registered on the basis of the above complaint by DSP Umaid Singh of AntiCorruption Department. After necessary investigation, Bhagat Ram and Ram Swaroop were sent up for trial. In his statement under section 342 of the Code of Criminal Procedure, Ram Swaroop admitted that he knew Bhagat Ram and that he had gone to him on July 29, 1962 with Manohar Lal and Niranjan Dass at Hindumalkot. Ram Swaroop denied that Bhagat Ram had made any demand through him for illegal gratification. According to Ram Swaroop, Bhagat Ram had asked him to realise the embezzled amount from Niranjan Dass. The other allegations made against him were denied by Ram Swaroop. he, however, admitted having received letter P. 2 and telegram P. 3A from Bhagat Ram and having handed over those documents to Niranjan Dass. Ram Swaroop added that he had asked Niranjan Dass to pay the embezzled amount which was with him. Bhagat Ram admitted that he had been entrusted with the investigation of the case against Ramesh and that he had called Niranjan Dass to Ganganagar in that connection. Bhagat Ram 308 denied having maltreated Niranjan Dass or having kept him under unlawful detention. Bhagat Ram admitted that Niranjan Dass and Ram Swaroop had met him on July 29, 1962 at Hinau malkot but he denied having made any demand through Ram Swaroop for the payment of Rs. 2,000 as bribe. It was admitted by Bhagat Ram that he had gone to Moga but the demand for any illegal gratification from Niranjan Dass at Moga was denied by Bhagat Ram. Bhagat Ram admitted having sent letter P. 2 and telegram P. 3A to Ram Swaroop. As regards the words "that thing", Bhagat Ram stated that they referred to the embezzled amount which had been retained by Niranjan Dass. The trial court, as stated earlier, acquitted both the accused, while the High Court maintained the acquittal of Ram Swaroop. As regards Bhagat Ram, there was a difference between the two judges. On the matter being referred to the third judge, Bhagat Ram was convicted and sentenced as above. Arguments have been addressed in the two appeals by Mr. Mehta on behalf of the State of Rajasthan, Mr. Chari on behalf of Bhagat Ram and Mr. Gupta on behalf of Ram Swaroop. After hearing the learned counsel, we are of the opinion that the appeal filed by the State of Rajasthan merits dismissal, while that filed by Bhagat Ram should be allowed. It would appear from the resume of facts given above that both Bhagat Ram and Ram Swaroop were acquitted by the spe cial judge. On appeal filed by the State of Rajasthan against the acquittal of the two accused, Tyagi and Lodha, JJ. maintained the order relating to the acquittal of Ram Swaroop. As regards Bhagat Ram, though there was a difference between the two judges regarding the correctness of his acquittal for offenses under section 5(1) (a) of Prevention of Corruption Act and section 161 of Indian Penal Code., they concurred with regard to the acquittal of Bhagat Ram in respect of the charges under sections 120B. 218, 347 and 389 IPC. The State appeal against the acquittal of Bhagat Ram was dismissed to that extent. The order which was made by the learned judges of the Division Bench reads as under : "BY THE COURT The result is that the appeal of the State against the order of acquittal of respondent Ram Swaroop is dismissed. The appeal of the State so far as it relates to the acquittal of respondent Bhagat Ram under sections 347, 218, 389 and 120B Indian Penal Code is also dismissed. In view of the difference of opinion about the acquittal of Bhagat Ram under section 161 Indian 309 .lm15 Penal Code and section 5 (1) (a) of the Prevention of Corruption Act, the matter may be laid before Hon 'ble the Chief Justice for referring it to the third judge. " In view of the fact that the State appeal against the acquittal of Bhagat Ram for offenses under sections 120B, 218, 347 and 389 I P C had been dismissed by the Division Bench, it was, in our opinion, not permissible for the third judge to reopen the matter and convict Bhagat Ram for offenses under sections 347, 389 and 120B IPC. The matter had been referred under section 429 of the Code of Criminal Procedure to Jagat Narayan, J. because there was a difference of opinion between Tyagi, J. and Lodha, J. regarding the correctness of the acquittal of Bhagat Ram for offenses under section 161 IPC and section 5(1) (a) of Prevention of Corruption Act. Jagat Narayan, J. could go only into this aspect of the matter and arrive at his conclusion. The present was not a case wherein the entire matter relating to the acquittal or conviction of Bhagat Ram had been left open because of a difference of opinion between the two judges. Had that been the position, the whole case relating to Bhagat Ram could legitimately be considered by Jagat Narayan, J. and he could have formed his own view of the matter regarding the correctness of the order of acquittal made by the trial judge in respect of Bhagat Ram. On the contrary, as mentioned earlier, an express order had been made by the Division Bench upholding the 'acquittal of Bhagat Ram for offenses under sections 120B, 218, 347 and 389 IPC and the State appeal in that respect had been dismissed. The above decision of the Division Bench was binding upon Jagat Narayan, J. and he was in error in convicting Bhagat Ram for offenses under sections 120B, 218 and 347 IPC despite the order of the Division Bench. It was, in our opinion, not within the competence of the learned judge to reopen the matter and pass the above order of conviction in the face of the earlier order of the Division Bench whereby the order of acquittal of Bhagat Ram made by the trial judge in respect of the said three charges had been affirmed. The order of the Division Bench unless set aside in appeal to this Court, was binding and conclusive in all subsequent proceedings between the parties. The principle of res judicata is also applicable to criminal proceedings and it is not permissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded. The plea of autrefois acquit as a bar to prosecution embodied in section 403 of the Code of Criminal Procedure is based upon the above wholesome principle. 310 In the case of Sambasivam vs Public Prosecutor, Federal of Malaya(1), Lord MacDermott observed: "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim res judicata pro veritate accipitur ' is no less applicable, to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial." "The above observations were quoted with approval by this Court in the case of Pritam Singh vs State of Punjab(2). We are, therefore, of the opinion that the judgment of Jagat Narayan, J. in so far as he has convicted Bhagat Ram for offenses under sections 120B, 218 and 347 IPC cannot be sustained. The matter can also be looked at from another angle. 'The, charge under section 120B IPC related to , conspiracy between Bhagat Ram and Ram Swaroop for extorting Rs. 2,000 as illegal gratification from Niranjan Dass. When Ram Swaroop was acquitted of the charge under section 120B IPC, the basis of the charge against Bhagat Ram for conspiracy between him and Ram, Swaroop disappeared. It is not the case of the prosecution that Bhagat Ram bad conspired with another person and even though the identity of the other person has not been established. Bhagat Ram would still be guilty for the offence under section 120B IPC. On the contrary, the case of the prosecution was that Bhagat Ram had conspired with Ram Swaroop to extort Rs. 2,000 as illegal gratification from Niranjan Dass. Once Ram Swaroop was acquitted in respect of the charge relating to conspiracy, the charge against Bhagat Ram for conspiracy must necessarily fall to the ground. So far as the State appeal against the acquittal of Rain Swaroop is concerned, we find that there are concurrent findings of the trial court and the High Court that the evidence on record had failed to prove that he was guilty of offenses under sections 120B and 165A IPC. Nothing has, been brought to our notice at the (1) (2) 311 hearing of the appeal as may justify interference with those concurrent findings by a fresh appraisement of that evidence. We are, therefore, of the view that the State appeal against the acquittal of Ram Swaroop is liable to be dismissed. As regards the conviction of Bhagat Ram for the offence under section 161 IPC, we find that it is not the prosecution case that Bhagat Ram had made any demand directly to Niranjan Dass for payment of illegal gratification. On the contrary, the High Court found that Bhagat Ram had not demanded bribe directly from Niranjan Dass. The case set up by the prosecution is that Bhagat Ram attempted to obtain illegal gratification from Niranjan Dass through the instrumentality of Ram Swaroop. In view of the acquittal of Ram Swaroop, it is not possible to maintain the conviction of Bhagat Ram. The acquittal of Ram Swaroop would necessarily lead to the conclusion that the prosecu tion allegation about Ram Swaroop having made a demand of illegal gratification from Niranjan Dass for Bhagat Ram has not been proved. The case, in the circumstances, against Bhagat Ram for asking for bribe through Ram Swaroop must consequently fail. It would indeed be incongruous and inconsistent to acquit Ram Swaroop, for offenses under sections 165A and 120B IPC and, at the same time, to convict Bhagat Ram for the offence tinder section 161 IPC for asking for bribe from Niranjan Dass through the instrumentality of Ram Swaroop. We, therefore, accept the appeal of Bhagat Ram and set aside .his conviction and acquit him. The appeal of the State of Rajasthan against the acquittal of Ram Swaroop is dismissed. V.P.S. Appeal allowed. [/INST]Prior to 1947, the respondent was in the service of the Government of Assam as an unarmed Police constable and on partition, he opted for service Pakistan. The respondent went to the then East Pakistan and joined Pakistan Government service as a peon. He entered India in 1953 on the strength of a Pakistani passport but returned to Pakistan in 1954. Again in 1955, he obtained an Indian visa which was valid upto January 26, 1955. On the strength of that visa, he entered India but instead of returning to Pakistan, he over stayed until he was detected and arrested. He was then prosecuted under section 14 of the read with Clause 7 of the Foreigners Order, 1948. The Additional District Magistrate Convicted and sentenced him and the Sessions Judge also upheld the said order of conviction and sentence. In a revision application, the High Court, relying on Fida Hussain vs U.P., ; , reversed the said order of conviction and sentence and acquitted him on the ground that he was not a 'foreigner ' under section 2(a) of the , but was a citizen of India under article 5 of the Constitution; when he entered India in 1955 (before the said definition was amended in 1957. Allowing the appeal, Held :(1) The respondent was a foreigner when he entered India in 1955 as the definition of 'foreigner ' then stood and by overstaying beyond the period permissible under the visa, he clearly committed breach of Clause 7 of the Foreigners Order, 1948 and was liable to be convicted under section 14 of the . (690B C] The crucial point in the present case, was whether the Respondent had migrated to Pakistan between 1947 and 1950. If he did, then notwithstanding his complying with the requirement of article 5, his case would fall under article 7 and he would be deemed not to be a citizen even, on the date of his entry in India in 1955. Considering the facts of the present case, viz., the option exercised by the respondent for Pakistan service, his having secured release from Indian service, as a constable, his going to Pakistan and obtaining service there as a peon, his staying there for a long period; his obtaining Pakistani passport and visas declaring therein that he had acquired Pakistani citizenship and domicile etc; there could be no doubt that he had gone to Pakistan permanently. His case thus fell within article 7 and therefore, at his entry in India in 1955 he was a person who was deemed not to be a citizen of India. [688C G] H. P. vs Peer Mohammad, , Kulathil Mammu vs Kerala, ; , State vs Ibrahim Nabiji, A.I.R. 1959 Bom. 526 and State vs Akub, A.I.R. 1961 All. 428, referred to. 686 </s>

<s>[INST] Summarize the judgementvil Appeal No. 350 (NT) of 1987. 632 From the Judgment and Order dated 19.11. 1985 of the Allahabad in S.T.R. No. 401 of 1985. S.C. Manchanda and Ashok K. Srivastava for the Appellant. Raja Ram Agarwal, Ajay Kumar Jain, Pramod Dayal and A.D. Sanger for the Respondent. The Order of the Court was delivered by THAKKAR, J. A transaction of sale or purchase which takes place 'in the course of export ' falling within the purview of sub section (3) of Section 51 of the Central Sales tax Act. 1956 (hereinafter called the 'Act ') cannot be subjected to sales tax by any State. The said provision inter alia provides that the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export. (i) provided such last sale or purchase took place 'after ' and (ii) was for the purpose of complying with, the agreement or order for or in relation to such export Such a transaction cannot be subjected to sales tax/purchase tax by any State in view of the embargo imposed by article 286(1) (a).1 The controversy centering around this question has been set at rest in Consolidated Coffee Ltd. v . Coffee Board, Bangalore, A.I.R. (Vol. 46) p. 164. Under the circum stances, if the last sale in favour of the respondent who is a dealer in hides and skins and exports the same out of the territory of India has taken place (1) after an agreement was entered When a sale or purchase of goods said to take place in the course of import or export (1) X X X X (2) X X X (3) Notwithstanding anything contained m ' sub section(1), the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place after and was for the purpose of complying with, the agree ment or order for or in relation to such export. " 1. "286(1) (a) No law of a State shall impose, or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State; or (b) in the course of the import of the goods, or export of the goods out, of the territory of India. 633 into for such export or order for such export had been accepted by him. (2) last sale made in his favour was for the purpose of complying with the obligation undertaken under the said agreement or order, the transaction reflected in such last sale or purchase cannot be lawfully taxed under the Sales Tax Act. It cannot be taxed because of the consti tutional bar embodied in Article 286 (1) (a) of the Consti tution of India. The view taken by the High Court in the Judgment under appeal that such transactions are not exigi ble to sales tax/purchase tax under the U.P. Sales Tax Act, is unexceptionable in the light of the aforesaid provisions of the Constitution and sub section (3) of Section 5 of the Act and the law declared by this Court in Consolidated Coffee Ltd. We, therefore, see no reason to interfere with the order of the High Court. It is no doubt true that Form III A under Rule 12 A of the U.P. Sales Tax Act is not an appropriate form to use in the context of such a transaction of last sale or purchase for the purpose of complying with an agreement or order for export which has already come into existence. However, it is equally true that an appropriate form to meet the situation in relation to such last sales which are not exigible to sales/ purchase tax under the U.P. Sales Tax Act having regard to the constitutional bar and having regard to the provision contained in sub section (3) of Section 5 of the Act has not been devised under the afore said Rules. It was under these circumstances that the respondent has furnished to his vendors form III A which is not appropriate except in regard to purchases made for sales of undressed hides as such within the State or in the course of inter State trade. But the mere fact that such a form has been given will not empower the State to collect or levy the sales tax/purchase tax in respect of a transaction in the course of export which satisfies the aforesaid tests prescribed by Section 5 (3) of the . It would be unconstitu tional in view of the constitutional bar to levy tax on sales in the course of export regardless of the fact whether an appropriate form is used or not. The transactions entered into by him which are such on which sales tax/purchase tax cannot be levied on account of the constitutional bar read with sub section (3) of Section 5 of the cannot become exigible to tax merely because a wrong form is used (particularly when the appropriate form has not been devised by the Rule making authority). Liability for tax in respect of such transactions cannot be fastened on the respondent for the very good reason that the State has no power to collect or levy sales tax/purchase tax on such transactions. The U.P. Sales Tax authorities should have devised an appropriate form in this behalf. They can do so even now (as has 634 been done under the Delhi Sales Tax Act by prescribing Form 49 to meet such a situation). Learned counsel for the appel lant submits that till such a form is prescribed the re spondent who claims to have entered into these transactions in the course of export as defined by sub section (3) of Section 5 of the Act may furnish to his vendor a copy of Form H as provided by the . The respondent has no objection and is prepared to do so. Under the circumstances, for the future purposes instead of fur nishing form III A under Rule 12 A of the Sales Tax Act, .the respondent will furnish a photostat copy of form H under the . Learned counsel for the respondent states that if such a copy is furnished to the vendor it will be accepted by the competent authority and the vendor will not be held liable for payment of sales tax/purchase tax in respect of such transactions subject to the rider that respondent will be held liable in case the purchases made by him do not satisfy the conditions and tests prescribed by sub section (3) of Section 5 of the and are not made in the course of export within the meaning of the said provision. So far as the past transactions are concerned the respondent will not be liable provided he satisfies the aforesaid tests and the transactions of last sales made to him are in the course of export within the deeming clause of sub section (3) of Section 5 of the Act. The appeal is disposed of accordingly. There will be no order as to costs. N.P. V Appeal dis posed of. [/INST]In a writ petition filed under Article 32 of the Consti tution of India, the Court found that good and substantial reasons existed for directing the petitioner to approach the concerned High Court in the first instance instead of knock ing at the doors of this Court straightaway. While directing so, this Court, HELD: 1. If Supreme Court takes upon itself to do every thing which even the High Court can do, this Court will not be able to do what this Court alone can do under article 136 of the Constitution of India, and other provisions conferring exclusive jurisdiction on this Court. There is no reason to assume that the concerned High Court will not do justice. Or that this Court alone can do justice. If this Court enter tains Writ Petitions at the instance of parties who approach this Court directly instead of approaching the concerned High Court in the first instance, tens of thousands of Writ Petitions would in course of time be instituted in this Court directly. The inevitable result will be that the arrears pertaining to matters in respect of which this Court exercises exclusive jurisdiction under the Constitution will assume more alarming proportions. [316B D] 2. It is as important to do justice at this level, as to inspire confidence in the litigants that justice will be meted out to them at the High Court level, and other levels. Faith must be inspired in the hierarchy of Courts and the institution as a whole. Not only in this Court alone. And this objective can be achieved only by this Court showing trust in the High Courts by directing the litigants to approach the High Courts in 315 the first instance. Besides, as a matter of fact, if matters like the present one are instituted in the High Courts, there is a likelihood of the same being disposed of much more quickly, and equally effectively, on account of the decentralisation of the process of administering justice. [316E G] </s>

<s>[INST] Summarize the judgementAppeal No. 11 of 1954. 68 Appeal from the judgment and Decree dated the 20th day of June 1950 of the High Court of Judicature for the State of Punjab at Simla in Regular First Appeal No. 73 of 1941 arising out of the Decree dated the 19th day of December 1940 of the Sikh Gurudaras Tribunal, Lahore in Suit No. 11 of 1938. Gurbachan Singh and R. section Narula, for the appellant. Achhru Ram, (Naunit Lal with him), for the respondents Nos. I and 2. K. L. Mehta, for the respondents Nos. 3 to 5. 1955. March 24. The Judgment of the Court was delivered by JAGANNADHADAS J. This is an appeal on leave granted by the High Court of Punjab against its judgment affirming the decree of the Sikh Gurdwara Tribunal dated the 19th December, 1940, dismissing the plaintiff 's suit. The plaintiff in the appeal is the Committee of Management of Sikh Gurdwaras within the Municipal limits of Amritsar (except the Gurdwara Sri Akal Takhat Sahib, Amritsar). The plaint was filed under section 25 A of the Sikh Gurdwaras Act, 1925, (Punjab Act VIII of 1925) (hereinafter referred to as the Act) for possession of certain properties situated in Amritsar, marked and bounded as specified in the plaint and purporting to have been declared as a Sikh Gurdwara by the Government of Punjab under section 17 of the Act by means of the notification No. 9 G dated the 3rd March, 1937. The case of the plaintiff Committee is that these properties were, and were determined to be, a Sikh Gurdwara, by name Gurdwara Bunga Sarkar, by the Sikh Gurdwara Tribunal by its decree dated the 4th November, 1935 and confirmed on appeal therefrom by the High Court of Judicature at Lahore, on the 16th June, 1936 and that accordingly the Committee was entitled to possession of the properties. The facts that have led up to the present appeal are as follows: After the Act was passed and within one year of its commencement the then existing non statutory Shiromani Gur 69 dwara Parbandhak Committee filed a list under section 3 of the Act claiming the suit properties and certain other items attached thereto as belonging to the Gurdwara Harmandir Sahib. These properties comprised two items called Bunga Sarkar and Bunga Mai Mallan and the shops appurtenant to each of them. Objections were filed to this list by way of two applications under section 8 of the Act claiming these as private properties. One was by Sardar Balwant Singh dated the 8th March., 1928 and the other was by Sardar Raghbir Singh dated the 10th March, 1928. Sardar Raghbir Singh claimed the whole of Bunga Sarkar and its appurtenant shops as well as 1/3rd of the Bunga Mai Mallan and of the appurtenant shops. Sardar Balwant Singh 's claim was confined to 1/3rd share in Bunga Mai Mallan and in the appurtenant shops. The other 1/3rd share in Bunga Mai Mallan was apparently treated by these claimants as belong ing to some other person who was not a party to these proceedings. These two applications were forwarded under section 14 of the Act to the Gurdwara Tribunal for its decision. The parties to these proceedings entered into a compromise on the 6th february, 1930. There were two compromises one relating to each of the applications. The net effect of the compromises was that some out of the items claimed were admitted to be the private property of the respective claimants and the rest as wakf bungas for the Yatries to Sri Darbar Sahib, that the non personal properties were to remain in the management of the claimants, their heirs and representatives as such wakf with certain stipulations as to how that management was to be carried on. The Tribunal disposed of the two applications before them in terms of these compromises. It may be mentioned that though the original list under section 3 of the Act was filed by the then non statutory Shiromani Gurdwara Parbandhak Committee, the compromises were entered into by the Managing Committee of the Gurdwaras within the limits of the Municipal Committee, Amritsar, which presumably had already by then been formed Linder section 85 of the Act. Now, quite independently of these 70 proceedings befere the Tribunal, and prior to the filing of the list under section 3 and of the objections under section 5 above referred to, there had been filed a petition under section 7 of the Act, signed by 55 Sikhs, claiming these very properties as being in themselves a Sikh Gurdwara by name Bunga Sarkar (Maharaja Ranjit Singh Saheb) and enclosing a list of properties as belonging thereto under section 7(2) of the Act. It does not appear that this petition was brought to the notice of the Gurdwara Tribunal when it passed the decree in terms of the compromise with reference to the objections under section 5 of the Act. The petition under section 7 was in the usual course followed by a notification issued by the Government on the 18th February, 1930, under section 7(3) of the Act. This resulted in (1) an objection under section 8 by the Granthis objecting that this was not a Sikh Gurdwara, and (2) two other objections by Sardar Raghbir Singh and Sardar Balwant Singh, already previously above referred to, under section 10 of the Act claiming the properties as their own and objecting to the claim made that they were Sikh Gurdwaras. These objections were filed on the 5th April, 1930. It may be noticed that the notification under section 7(3) of the Act was within a few days after the compromise decrees in the proceedings under section 5 of the Act and it does not appear whether the compromises were brought to the notice of the Government or not. These objections under sections 8 and 10 (and presumably also the petition under section 7) were forwarded to the Tribunal for its decision under section 14 of the Act. The petition under section 8 filed by the Granthis was contested by the Shiromani Gurdwara Parbandhak Committee (Statutory) and after recording some evidence, the Tribunal came to the conclusion that Bunga Sarkar was a Sikh Gurdwara and declared it as such on the 28th August, 1935. On the objections under section 10; notices were given to the Committee of Manaaement as well as to the Shiromani Gurdwara Parbandhak Committee but they declined to become parties to it. The contest under section 10 of the Act 71 was only as between the claimants and some of the Sikhs who filed the petition under section 7. At the hearing before the Tribunal both sides relied upon the previous compromises in support of their respective claims. The Tribunal by its decision dated the 4th November, 1935, decided that the properties which had been declared as the properties of Sardar Raghbir Singh and Sardar Balwant Singh respectively, should be declared to be their personal properties and that the rest of the properties claimed to belong to Bunga Sarkar and Bunga Mai Mallan should be declared to be Sikh Gurdwaras and as properties appurtenant thereto. It was also declared that these two Gurdwaras and the properties held to be appurtenant to them should vest in the management of Sardar Raghbir Singh and Sardar Balwant Singh by virtue of and as per terms of the compromises. As against these decrees two appeals were presented by the Sikh worshippers to the High Court and the only question that ultimately appears to have been raised was that the direction given by the Tribunal to the effect that the properties should remain in the management of the claimants, Sardar Raghbir Singh and Sardar Balwant Singh, was illegal. The High Court without giving any decision on the legal question so raised was of the opinion that it was no function of the Sikh Gurdwara Tribunal to pass an order on an application made under section 10 by the claimants that the claimants should manage the properties appurtenant to the Gurdwaras by virtue of the compromises. They thought that the question of right of management should be left open in these proceedings and that the directions in the decree of the Tribunal relating to the management should be deleted therefrom and that the rest of the decrees of the Sikh Gurdwara Tribunal is to stand. They expressed their conclusion in the following terms: "That portion of the decree of the Sikh Gurdwara s Tribunal which has declared the respondents ' right to manage the Gurdwaras and the properties appended thereto shall form no part of the decree granted by the Tribunal; the rest of the decree of the Sikh Gur 72 dwaras Tribunal stands, that is to say, the properties which have been declared to be the personal properties of Sardar Raghbir Singh and Sardar Balwant Singh shall remain their properties and the properties which have been declared to be appended to the two Gurdwaras shall remain the properties of the two Gurdwaras". The High Court also added that though the proceedings mentioned the existence of two Gurdwaras by name Bunga Sarkar and Bunga Mai Mallan, the real position seemed to be that there was only one Gurdwara, viz. Bunga Sarkar, and that Bunga Mai Mallan had no separate existence as a Gurdwara but was a well known part of Bunga Sarkar. This decision of the High Court was on the 16th June, 1936. This was followed by notification No. 9 G dated the 3rd March, 1937, under section 17 of the Act which is the foundation of the present suit. On these facts a number of contentions were raised by both sides before the High Court as well as before us. The judgment of the High Court as well as the arguments before us have covered a wide range. On the merits, the case for the plaintiff is quite simple. The plaintiff says that whatever may be the position with reference to the earlier compromises arrived at between the parties in the proceedings under section 5 of the Act, the later proceedings with reference to those very properties under section 10 of the Act resulted in the judgment of the High Court dated the 16th June 1936, which is conclusive and binding. By virtue of the said judgment and the notification dated the 3rd March, 1937, following thereupon, the plaintiff is entitled to possession of the properties by virtue of section 25 A of the Act. On the side of the defendants various objections have been raised which may be summarised as follows: (1) The proceedings under section 10 did not result in any specific declaration in favour of the Committee that the properties in dispute in the present suit constituted a Sikh Gurdwara or belong to a Sikh Gurdwara. No such declaration can be gathered from the decision of the Tribunal dated the 4th November, 1935, or from that of 73 the High Court on appeal dated the 16th June, 1936. (2) The Tribunal had no jurisdiction in disposing of an application under section 10 of the Act, to give a positive declaration that the property in question is a Sikh Gurdwara. Its only function was to decide whether or not the properties claimed were the private properties of the claimants. Hence even if the decision of the Tribunal and of the High Court can be treated as a decision declaring the properties as a Sikh Gurdwara that is not valid and the notification issued thereupon is void. (3) Any such decision would be contrary to section 37 of the Act and also contrary to the principles of res judicata and would be, therefore, a nullity on that ground. (4) The conduct of the Gurdwara Parbandhak Committee and the concerned Committee of Management, in entering into the compromises in the proceedings under section 5 of the Act without disclosing the pendency of the petition filed by the 55 Sikhs under section 7 of the Act, followed up by their declining to be made parties in the section 10 proceedings and in virtually promoting the contest of the proceedings under sections 8 and 10, was fraudulent. They are accordingly estopped from relying on the decree obtained under section 10 proceedings and basing their right to relief thereon. (5) The suit under section 25 A lies only where the decision on an objection under section 10(1) is reached after the notification that the Gurdwara is a Sikh Gurdwara is published since the section refers to. a decision in favour of a "Notified Sikh Gurdwara" implying the pre existence of such notification. (6) The suit under section 25 A was barred by limitation. (7) The whole appeal abated in the High Court inasmuch as one of the respondents, Sardar Balwant Singh died during the pendency of the appeal. His legal representatives were not brought on record in time and the High Court declined to excuse the delay and to set aside the abatement, as a result of which the entire appeal abated, the claim against both the respondents being joint and not being maintainable against one only in the absence of 10 74 the other. In addition to these contentions which have been put forward before us and strenuously argued by both sides, the High Court also based its decision on the view that section 7 of the Act assumes the existence of a Gurdwara and that a notification issued under section 7 (3) without there being in fact a Gurdwara in existence would be ultra vires. In the present case, in view of the prior proceedings under section 5 and the compromises following thereupon, the non existence of the Gurdwara as claimed in the petition under section 7(1) must be taken to have been made out and therefore the notification and all the proceedings following thereupon are illegal and ultra vires. Though we have heard elaborate arguments from both sides on these various contentions, it appeared to us ultimately that the plea of limitation is decisive against the appellants and that it is unnecessary to express any opinion on any of the other contentions raised. The question of limitation arises with reference to the terms of section 25 A which is as follows: "25 A. (1) When it has been decided under the provisions of this Act that a right, title or interest in immovable property belongs to a Notified Sikh Gurdwara , or any person, the Committee of the Gurdwara concerned or the person in whose favour a declaration has been made may, within a period of one year from the date of the decision or the date of the constitution of the Committee, whichever is later, institute a suit before a tribunal claiming to be awarded possession of the right, title or interest in the immovable property in question as against the parties to the previous petition, and the tribunal shall if satisfied that the claim relates to the right, title or interest in the immovable property which has been held to belong to the Gurdwara, or to the person in whose favour the declaration has been made, pass a decree for possession accordingly. (2)Notwithstanding anything contained in any Act to the contrary, the court fee payable on the plaint in such suit shall be five rupees". 75 This section provides, for the filing of the suit, the period of one year from the date of the decision or the date of the constitution of the committee whichever is later. Now the date of the decision in this case must be taken to be the date when the High Court on appeal disposed of the proceedings under section 10, i.e., the 16th June, 1936. The present suit has been filed on the 25th February, 1938, i.e., clearly beyond one year of the decision. The question for consideration, therefore, is whether the suit can be said to have been within one year from the date of the constitution of the Committee of the Gurdwara concerned. Now, one has to turn to sections 85, 86 and 88 of the Act to appreciate which is, the Committee concerned with this Gurdwara and what the date of its constitution is. Section 85 is as follows (in so far as it is relevant): "Subject to the provisions of section 88, there shall be one committee for the Gurdwaras known as the Darbar Sahib, Amritsar, and the Baba Atal Sahib, and all other Notified Sikh Gurdwaras situated within the municipal boundaries of Amritsar other than the Sri Akal Takht Sahib". Section 86 is as follows (in so far as it is relevant): "For every Notified Sikh Gurdwara other than a Gurdwara specified in section 85 a committee shall be constituted after it has been declared to be a Sikh Gurdwara under the provisions of this Act". Section 88 is as follows (in so far as it is relevant): "(1)The committees described in sections 85 and 86 shall be constituted as soon as may be after the constitution of the Board, provided that no committee shall be constituted for any gurdwara under the provisions of this Act unless and until it has been declared to be a Sikh Gurdwara under the provisions of this Act. (2)When all the members of any committee described in section 85 have been elected or co opted, as the case may be, according to the provisions of that section, the Provincial Government shall notify the fact that the committee has been duly constituted, 76 and the date of the publication of the notification shall be deemed to be the date of the constitution of the committee". Now, it is not disputed that the present plaintiff which is the Committee of Management for all the Gurdwaras situated within the Municipal limits of Amritsar, except the Gurdwara Sri Akal Takht Sahib was constituted prior to the year 1930 and was in fact functioning at the date of the compromises in the section 5 proceedings dated the 6th February, 1930. It is also not disputed that by virtue of section 85(2), this committee also became the Committee concerned with the suit Gurdwara, which is admittedly located within the Municipal limits of Amritsar. But it is contended for the appellants that this Committee becomes concerned with the suit Gurdwara only from the date when the notification under section 17 is issued, i.e., from the 3rd March, 1937, and that, therefore,, the plaintiff had one year from that date for the filing of the suit and that in the situation, section 25 A in providing the alternative period of limitation as being "one year from the date of the constitution of the committee", must be construed reasonably as being one year from the date of the notification in such a case and that for the purposes of this section, the pre existing committee must be deemed to have been constituted for the suit Gurdwara only on the date of the notification. In support of this contention it has been pointed out that the specific policy of the Act as disclosed in sections 86 and 88 is that no Committee is to be formed for a Gurdwara until after ' it has been declared a Sikh Gurdwara under the provisions of the Act. It is accordingly urged that the phrase "constitution of the committee" in section 25 A should be construed so as to indicate a point of time not earlier than the notification of the concerned Gurdwara and that in the circumstances and in such cases the date of the notification of the Gurdwara must be the date of the constitution of the concerned committee. It appears to us, however, that this contention is untenable. Section 86 in terms relates to a Notified Sikh Gurdwara other than Gurdwaras 77 specified in section 85. Hence so far as our present purpose is concerned, the policy underlying section 86 does not necessarily apply to the Gurdwaras within the Municipal limits of Amritsar for which a Committee already exists. Moreover, sub section (2) of section 88 provides with reference to Committees under section 85, that, as soon as all the members described therein have been elected or co opted, the fact should be duly notified, and also declares in clear and categorical terms that the date of the publication of the notification shall be deemed to be the date of the constitution of the Committee. In the face of this deeming provision relating to these committees, it is not permissible to impute to such a Committee any other date as the date of its constitution for any of the purposes of the Act and to imply an exception and an addendum to the specific deeming provision. This would be legislating. We cannot, therefore, accept the contention of the appellant that the date of the notification under section 17 in the present case should be deemed to be the date of the constitution of the Committee concerned for the purposes of section 25 A. It has been urged that this view deprives the Committee of the benefit of the longer alternative period of limitation and that in a case where no notification under section 17 has been issued until after the expiry of an year from the date of the final decision that the Gurdwara claimed is a Sikh Gurdwara, the remedy under section 25 A would become inapplicable. It may be that an exceptional case of undue delay in the publication of the notification may be a casus omissus but such a delay need not be assumed to be a matter of course. That, at any rate, is not the present case where the notification was in fact issued within nine months of the decision of the High Court. The Committee which should have been alert with reference to these matters, had, not only the whole of these nine months to take steps to get the notification published earlier, but, it had three months thereafter to come forward with the present suit. However this may be, we do not consider that there is any question of hardship, 78 because obviously section 25 A is only an enabling section providing a cheap remedy by way of a suit before the Tribunal itself. We are clearly of the opinion that the present suit under section 25 A is barred by limitation and on this ground the appeal must fail. The appeal is accordingly dismissed with costs. Appeal dismissed. [/INST]The plaintiff which is the Committee of Management for all Gurudwaras situated within the Municipal limits of Amritsar, except the Gurudwara Sri Akal Takht Sabib, was constituted prior to the year 1930 and by virtue of section 85(2) of the Sikh Gurudwaras Act (Punjab Act VIII of 1925) became the Committee concerned with the suit Gurudwara. There were certain proceedings under the Act in respect of the suit properties which were ultimately decided by the High Court on the 16th June 1936 and the decision was followed by a notification under section 17 of the Act on the 3rd March 1937. As a result the plaintiff became entitled to get possession of the said properties by instituting a suit before a tribunal under section 25 A of the Act within one year from the date of the decision or the date of the constitution of the Committee, whichever was later. The present suit was filed on the 25th February 1938 which was beyond one year of the decision and the question was whether the suit can be said to have been instituted within one year of the date of the constitution of the Committee of the Gurudwara concerned, the contention being that the plaintiff must be deemed to have become the committee concerned with the suit Gurudwara only on the date of the notification thereof in 1937 under section 17 of the Act by virtue of the provisions of sections 86 and 88. Held, that the date of the notification in 1937 under section 17 cannot be deemed to be the date of the constitution of the Committee concerned for the purposes of section 25 A and that the present suit is barred by limitation. Section 86 does not apply to Gurudwaras within the Municipal limits of Amritsar specified in section 85, in respect of which a Committee already exists and by virtue of sub section (2) of section 88 the date of the publication of the notification of the Committee which already has been in existence since 1930 will be the date of the constitution of the Committee within the meaning of section 25 A. </s>

<s>[INST] Summarize the judgementAppeal No. 844 of 1963. 169 Appeal by special leave from the judgment and decree date November 1, 1960 of the Madras High Court in Appeal No. 199 of 1957. A. Ranganadham Chetty and A.V. Rangam, for the appellant. A.V. Vishwanatha Sastri and R. Thiagarajan, for respondent Nos. 1 and 2. The Judgment of the Court was delivered by Shah, J. Venkatarama lyengar, Kasthuri Iyengar and Ranga lyengar, residents of the village Kariamanikam in Tiruchirappalli District, with the aid of contributions, subscriptions and donations set up a Samaradhanai Fund for feeding Brahmin pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelam on the occasion of Rathotsavam festival. Between the years 1936 and 1940 seven acres of land were purchased for Rs. 10,500 to provide a permanent income for the Fund. It was found that the expenses incurred for the Rathotsavam festival did not exhaust the entire income and the balance was utilised for Vanabhojanam in Kariamanikam village in the month of Kartigai and on the Dwadesi following Vaikunta Egadesi day. The President, Hindu Religious and Charitable Endowments Board, sought to levy for the years 135 1 to 1354 Fasli contributions under section 69 of Madras Act 2 of 1927 in respect of the Fund. But in Suit No. 297 of 1947 of the file of the District Court at Tiruchirappalli that claim was disallowed. The District Court held that the charity was not a "specific endowment" within the meaning of Act 2 of 1927. After the Madras Hindu Religious and Charitable Endowments Act 19 of 1951 was enacted, the Deputy Commissioner of Hindu Religious and Charitable Endowments initiated a fresh proceeding under section 57(d) of that Act and held that the Samardhanai Fund was a "religious charity" within the meaning of section 6(13) of the Act. Against that order an appeal was carried by the trustees of the Fund to the Commissioner of Hindu Religious and Chartiable Endowments. The Commissioner held that feeding Brahmins in connection with the religious festival of Hindus was a public charity and also a religious charity within the meaning of section 6(13) of Madras Act 19 of 1951. The trustees of the Fund then instituted Suit No. 181 of 1954 in the Court of the Subordinate Judge. Tiruchirappalli to set aside the order of the Commissioner on the plea that the Samardhanai Fund was a private charity not associated with any Hindu festival or service in a temple and was not religious charity or a specific endowment or a public charity, and that it could in no manner become subject to control of the Commissioner, Madras Hindu Religious and Charity Endowments. The suit was resisted by the Commissioner contending that the Fund was held and administered for a religious charity viz. feeding Brahmin pilgrims on the occasion of a Hindu festival. The Subordinate Judge held 170 that the Fund was a public charity and that it was also "a religious charity" within the meaning of section 6(13) of the Act,. the charity being associated with the Hindu festival of Rathotsavam at the Gunaseelam temple. In appeal against the order of the Subordinate Judge dismissing the suit filed by the trustee_, the High Court of Madras held that the Samardhanai Fund was a public charity within the meaning of section 6(13) of the Act, but not being associated with any Hindu festival or observance of a religious character it was not a "religious charity" and the Commissioner had no jurisdiction to bring it under his control. The High Court accordingly allowed the appeal and decreed the suit filed by the trustees. With special leave, the Commissioner has appealed to this Court. The only question which falls to be determined in this appeal is whether on the facts found by the Court of First Instance and confirmed by the High Court, the Samardhanai Fund is a "religious charity" within the meaning of section 6(13) of Madras Act 19 of 1951. Clause (13) of section 6 defines "religious charity" as meaning "a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with a math or temple or not". The definition prescribes two conditions which go to constitute a religious charity: there must be a public charity and that charity must be associated with a Hindu festival or observance, co of a religious character. If these be fulfilled, a public charity will be a religious charity, even if it is not connected with a math or temple. The Subordinate Judge held on the evidence that the "charity in question is a feeding charity conducted during the ten days of the Rathotsavam in the Prasanna Venkatachallapathiswami temple in Gunaseelam in the month of Purattasi. Only Brahmins are fed and not other community people. There are similar feeding charities for the different communities conducted by the respective community people. The charity in question has no connection with the Gunaseelam temple in the sense that the food "prepared is not offered to the deity, and feeding is done not in the temple premises but at a separate place originally in a specially erected pandal and now in Seshagiri Iyer 's choultry (Dharamshalla). The other communities are not fed at this charity. The temple authorities have no voice in the conduct of the feeding", and the High Court agreed with that view. The Subordinate Judge held on those findings that the Samardhanai Fund was a public charity within the meaning of section 6(13) and with that view also the High Court agreed. The Subordinate Judge also held that the charity was associated with the Hindu festival of Rathotsavam in Sri Prasanna Venkatachallapathiswami temple in Gunaseelam Rathotsavam being an observance of a religious character when the deity is taken out in procession in a chariot and therefore the charity in question was clearly one associated with a Hindu festival and also with the observance of a religious character. In disagreeing with that view, the High Court observed that the expression "associated with a Hindu festival or observance of a religious character" imported some unity of purpose or 171 common object or common endeavour between the festival and the charity and in the absence of such unity, common object or common endeavour, the charity could not be regarded as a religious charity within the meaning of section 6(13)of the Act. In the view of the High Court that feeding Brahmin pilgrims during the Rathotsavam festival of Sri Venkatachallapathiswami shrine at Gunaseelam did not constitute an association between the Fund and the Rathotsavam festival itself, for the trustees of the shrine conducting the festival "had no manner of check, control or supervision over the feeding charity or Samardhanai Fund", they could not insist upon the feeding being done during the festival, and "cessation or discontinuance of the feeding by the trustees of the feeding charity may constitute a breach of trust on their part but cannot in the least affect the due performance of the Rathotsavam festival itself". They further observed that belief of the founders of the charity that feeding Brahmins on the occasion of an important festival was meritorious. will not establish "any link or connection" between the festival and the charity. We are unable to agree with the view so expressed by the High Court. The expression "associated" in section 6(13) of Act 19 of 1951 is used having regard to the history of the legislation, the scheme and objects of the Act, and the context in which the expression occurs, as meaning "being connected with" or "in relation to". The expression does not import any control by the authorities who manage or administer the festival. A Hindu religious festival or observance may have a local significance, in that it is celebrated or observed in a particular locality in connection with a shrine, temple or math, or it may be a festival or observance celebrated generally without any connection with any temple or math. In the case of such general festivals or observances there is no one who can be so said to control the celebrations, and the definition of "religious charity" includes such general festivals and observances. It cannot be assumed that there must always be a set of persons who control the celebration of a festival or an observance. The test suggested by the High Court that in order that there should be, between the charity and the festival or observance such a relation that the administration of the charity must be controlled by those who celebrate the festival or observance in a temple or math, besides being inapt in the case of general festivals and observances can only be evolved if words which are not found in the definition of "religious charity" are added thereto. Mr. Vishwanatha Sastri appearing on behalf of the respondenttrutees contended that the expression "associated with a Hindu festival or observance of a religious character" in the definition of "religious charity" implies that the public charity must be an integral part of the Hindu religious festival or observance. But there is nothing in the Act which indicates any such intention on the part of the Legislature. Mr. Sastri sought to give diverse illustrations in support. of his contention that mere feeding of Brahmins on the occasion of a Hindu festival or observance will 172 not amount to association within the meaning of section 6(13). It is unnecessary to deal with these illustrations, for the definition contemplates a public charity which alone can be a religious charity if the other conditions are fulfilled. A voluntary celebration of an event of religious significance by feeding Brahmins does not make it a public charity. There must be an institution which may in law be regarded as a public charity, before it may by its association with a religious festival or observance be regarded as a religious charity. The association undoubtedly must be real and not imaginary, but to constitute association it is not predicated that the administration of public charity must be controlled by the persons responsible for celebrating the religious festival in a temple or math or be an integral part of the festival or observance. On the facts found, it is clear that on the occasion of the Rathotsavam festival of Sri Prasanna Venkatachalapathiswami shrine, pilgrims from many places attend the festival and the object of the charity is to feed Brahmins attending the shrine on the occasion of this festival. It is not disputed that setting up a Fund for feeding Brahmins is a public charity. The primary purpose of the charity is to feed Brahmin pilgrims attending the Rathotsavam. This public charity has therefore a real connection with the Rathotsavam which is a Hindu festival of a religious character, and therefore it is a religious charity within the meaning of section 6(13) of Madras Act 19 of 1951. Surplus income of the Fund is used in Vanabhojanam in the month of Kartigai, and on the day following the Vaikunta Ekadeshi. it is not suggested that on that account the Fund is not a "religious charity". We therefore set aside the order passed by the High Court and restore the order passed by the Trial Court. There will be no order as to costs throughout. Appeal allowed. [/INST]The appellant had a combined overdraft and deposit account, also described as a mutual open and current account, with the respondent bank. In December 1946, the respondent credited two cheques to the appellant 's account one for Rs. 8,200 and the other for Rs. 600 and sent them for collection to the Shillong branch of the Bharati Central Bank, on which they were drawn. Instead of obtaining cash from that Bank, the respondent accepted a cheque on the Nath Bank. This the respondent did without consulting the appellant and on its own responsibility. When the respondent presented the cheque to the Nath Bank, it was returned with a note "full cover not received". The respondent thereupon debited the appellant with the sum of Rs. 8,800 in the accounts without informing him. On the instructions of the appellant, who was informed about the dishonouring of the cheque, the respondent accepted a demand draft from the Bharati Central Bank drawn on its Calcutta branch for the amount. The Calcutta branch of the Bharati Central Bank however requested the respondent to present it to the Shillong branch. The respondent presented the draft to the Shillong branch of the Bharati Central Bank, but the Bank applied for moratorium and closed its business, in January 1947 and the draft was not cashed. In the proceedings for the reconstruction of the Bharati Central Bank, the respondent asked to be treated as a preferential creditor in respect of the amount of the draft, and was so treated. The dealings between the appellant and respondent continued till December 1950. In May 1953, the respondent Bank was ordered to be wound up and the liquidator presented an application to the High Court under section 45D of the Banking Companies Act, 1949, for settlement of the list of debtors, claiming a decree for about Rs. 6,000 and interest, against the appellant. The appellant resisted the claim but the High Court decreed it. In the appeal to the Supreme Court, it was contended that (i) the respondent acted negligently and in breach of its duty as collecting agent of the appellant and was bound to give credit for the sum of Rs. 8,800 and (ii) the claim was barred by limitation. HELD: (per Raghubar Dayal, Bachawat and Ramaswami. JJ.) (i) It was not shown that the respondent acted negligently or in breach of its duties or contrary to any instructions given by the appellant or any lawful usages prevailing amongst bankers and therefore was not bound to give credit to the appellant for the sum of Rs. 8,800. [114 H] A banker entrusted by its customer with the collection of a cheque is bound to act according to the directions given by a customer, and in the absence of such directions, according to the usages prevailing at the place where the banker conducts his business 111 and applicable to the matter in hand. The banker is also bound to use reasonable skill and diligence in presenting and securing payment of cheques and placing the proceeds to his customers ' accounts and in taking such other steps as may be proper to secure the customer 's interests. The respondent in the instant case received the two cheques for collection in the usual way as agent of the appellant and not with the intention of acquiring title to them. The appellant, instead of disowning the various acts of the respondent in respect of the collection of the cheques, had ratified them. By preferring a claim as creditor in respect of the draft, in the liquidation proceedings of the Bharati Central Bank, the respondent was not accepting the draft in satisfaction of its dues from the appellant. It was only preserving all the rights in respect of the draft and was acting in his best interests. [114 A, F H; 115 A B] (ii) The respondent gave loans on overdrafts and the appellant made deposits. The loans and deposits created mutual obligations. Since the account was mutual and continued to be so until December 1950, the claim against the appellant was not barred by limitation having regard to section 45 (0) of the Banking Companies Act. [116 B, E] Per Mudholkar, J. (Dissenting), the appellant 's name could not be included in the list of the respondent 's debtors. [121 A] Where a customer hands in a cheque to his banker for collection, the banker accepting the performance of that duty becomes the agent of the customer for the purpose of collection. But if a banker credits a cheque in the customer 's account with the bank, the banker would not necessarily be deemed to be the customer 's agent, when he takes steps for collecting the amount payable under the cheque. The facts, that the cheques when paid in, were credited in the appellant s account with the respondent and that when the cheques were returned unpaid, the respondent made a debit entry against the appellant 's account without informing the appellant show mat the respondent accepted the position that it was acting in the matter not as the appellant 's agent but as a payee. Since the appellant had a mutual open and current account with the respondent, the respondent would, with respect to the amounts for which the cheques were drawn, have become upon realisation of the cheques drawn by the appellant an actual recipient of the money from the appellant. Therefore, though it is true that the amount was not received by the respondent in cash it must be deemed to nave received the sum either by reason of the fact that it obtained from the Bharati Central Bank a cheque for the amount on the Nath Bank, or by the acceptance of the demand draft. Having claimed as against the Bharati Central Bank to be treated as a preferential creditor for the sum of Rs. 8,800 whatever rights the respondent would be against that Bank and not against the appellant. [118 H; 120 A, C, F H] </s>

<s>[INST] Summarize the judgementAppeal No. 85 of 1956. 20 154 Appeal from the judgment and order dated January 8, 1954, of the High Court of Saurashtra, at Rajkot, in Civil Misc. Application No. 70 of 1952. R. J. Kolah and A. C. Dave, for the appellant. Porus A. Mehta and R. H. Dhebar, for respondent No. 1. 1956. November 23. The Judgment of the Court was, delivered by BHAGWATI J. This appeal with a certificate of fitness granted by the High Court of Saurashtra raises an interesting question whether the agarias working in the Salt Works at Kuda in the Rann of Cutch are workmen within the meaning of the term as defined in the , hereinafter referred to as the Act. The facts as found by the Industrial Tribunal are not in dispute and are as follows. The appellants are lessees of the Salt Works from the erstwhile State of Dharangadhara and also hold a licence for the manufacture of salt on the land. The appellants require salt for the manufacture of certain chemicals and part of the salt manufactured at the Salt Works is utilised by the appellants in the manufacturing process in the Chemical Works at Dharangadhara and the remaining salt is sold to outsiders. The appellants employ a Salt Superintendent who is in charge of the Salt Works and generally supervises the Works and the manufacture of salt carried on there. The appellants maintain a a railway line and sidings and also have arrangements for storage of drinking water. They also maintain a grocery shop near the Salt Works where the agarias can purchase their requirements on credit. The salt is manufactured not from sea water but from rain water which soaking down the surface becomes impregnated with saline matter. The operations are seasonal in character and commence sometime in October at the close of the monsoon. Then the entire area is parceled out into plots called pattas and they are in four parallel rows intersected by the railway 155 lines. Each agaria is allotted a patta and in general the same patta is allotted to the same agaria year after year. If the patta is extensive it is allotted to two agarias who work the same in partnership. At the time of such allotment, the appellants pay a sum of Rs. 400/ for each of the pattas and that is to meet the initial expenses. Then the agarias commence their work. They level the lands and enclose and sink wells in them. Then the density of the water in the wells is examined by the Salt Superintendent of the appellants and then the brine is brought to the surface and collected in the reservoirs called condensers and re tained therein until it acquires by natural process a certain amount of density. Then it is flowed into the pattas and kept there until it gets transformed 'into crystals. The pans have got to be prepared by the agarias according to certain standards and they are tested by the Salt Superintendent. When salt crystals begin to form in the pans they are again tested by the Salt Superintendent and only when they are of a particular quality the work of collecting salt is allowed to be commenced. After the crystals are collected, they are loaded into the railway wagons and transported to the depots where salt is stored. The salt is again tested there and if it is found to be of the right quality, the agarias are paid therefore at the rate of Rs. 0 5 6 per maund. Salt which is rejected belongs to the appellants and the agarias cannot either remove the salt manufactured by them or sell it. The account is made up at the end of the season when the advances which have been paid to them from time to time as also the amounts due from the agarias to the grocery shop are taken into account. On a final settlement of the accounts, the amount due by the appellants to the agarias is ascertained and such balance is paid by the appellants to the agarias. The manufacturing season comes to an end in June when the monsoon begins and then the agarias return to their villages and take up agricultural work. The agarias work themselves with their families on the pattas allotted to them. They are free to engage extra labour but it is they who make the payments to 156 these labourers and the appellants have nothing to do with the same. The appellants do not prescribe any hours of work for these agarias. No muster roll is maintained by them nor do they control how many hours in a day and for how many days in a month the agarias should work. There are no rules as regards leave or holidays. They are free to go out of the works as they like provided they make satisfactory arrangements for the manufacture of salt. In about 1950, disputes arose between the agarias and the appellants as to the conditions under which the agarias should be engaged by the appellants in the manufacture of salt. The Government of Saurashtra, by its letter of Reference dated November 5, 1951, referred the disputes for adjudication to the Industrial Tribunal, Saurashtra State, Rajkot. The appellants contested the proceedings on the ground, inter alia, that the status of the agarias was that of independent contractors and not of workmen and that the State was not competent to refer their disputes for adjudication under section 10 of the Act. This question was tried as a preliminary issue and by its order dated August 30, 1952, the Tribunal held that the agarias were workmen within the meaning of the Act and that the reference was intra vires and adjourned the matter for hearing on the merits. Against this order the appellants preferred an appeal being Appeal No. 302 of 1952, before the Labour Appellate Tribunal of India, and having failed to obtain stay of further proceedings before the Industrial Tribunal pending the appeal, they moved the High Court of Saurashtra in M.P. No. 70 of 1952 under articles 226 and 227 of the Constitution for an appropriate writ to quash the reference dated November 5, 1951, on the ground that it was without jurisdiction. Pending the disposal of this writ petition, the appellants obtained stay of further proceedings before the Industrial Tribunal and in view of the same the Labour Appellate Tribunal passed an order on September 27, 1953, dismissing the appeal leaving the question raised therein to the decision of the High Court. By their judgment dated January 8, 1954, the learned Judges 157 of the High Court agreed with the decision of the Industrial Tribunal that the agarias were workmen within section 2(.s) of the Act and, accordingly, dismissed the application for writ. They, however, granted a certificate under article 133(1) (c) of the Constitution and that is how the appeal comes before us. The sole point for determination in this appeal is whether the agarias working in the Salt Works of the appellants at Kuda are workmen within the definition of that term in section 2(s) of the Act. " Workman " has been thus defined in section 2 (s) of the Act: "(s) 'Workman ' means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or ' reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the (Government). " The essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act. The principles according to which the relationship as between employer and employee or master and servant has got to be determined are well settled. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. A distinction is also drawn between a contract for services and a contract of service and that distinction is put in this way: " In the one case the master can order or require what is to be done while in the other case he can not only order or require what is to be done 158 but how itself it ,;hall be done." (Per Hilbery, J. in Collins vs Hertfordshire County Council (1).) The test is, however, not accepted as universally correct. The following observations of Denning L.J., at pp. 110, III in Stevenson, Jordan and Harrison Ltd. vs Macdonald and Evans (2) are apposite in this context: "But in Cassidy vs Ministry of Health (3) Lord Justice Somervell, pointed out that test is not universally correct. There are many contracts of service where the master cannot control the manner in which the work is to be done as in the case of a captain of a ship. Lord Justice Somervell, went on to say: One perhaps cannot get much beyond this: 'Was the contract a contract of service within the meaning which an ordinary man would give under the words '? " I respectfully agree. As my Lord has said, it is almost impossible to give a precise definition of the distinction. It is often easy to recognize a contract of service when you see it, but difficult to say wherein the difference lies. A ship 's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship 's pilot, a taxi man, and a newspaper contributor are employed under a contract for services. One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas., under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it. " We may also refer to a pronouncement of the House of Lords in Short vs J. & W. Henderson, Ltd. (4) where Lord Thankerton recapitulated the four indicia of a contract of service which had been referred to in the judgment under appeal, viz., (a) the master 's power of selection of his servant, (b) the payment of wages or (1) , 615. (2) , Ill. (3) , 543 s.c. , 352 3. (4)(1946)62T.L.R. 427,429. 159 other remuneration, (c) the master 's right to control the method of doing the work, and (d) the master 's right of suspension or dismissal, but observed: "Modern industrial conditions have so much affected the freedom of the master in cases in which no one could reasonably suggest that the employee was thereby converted into an independent contractor that, if and when an appropriate occasion arises, it will be incumbent on this House to reconsider and to restate these indicia. For example, (a), (b) and (d) and probably also (c), are affected by the statutory provisions and ,rules which restrict the master ',% choice to men supplied by the labour bureaux, or directed to him under the Essential Work provisions, and his power of suspension or dismissal. is similarly affected. These matters are also affected by trade union rules which are atleast primarily made for the protection of wage earners. " Even in that case, the House of Lords considered the right of supervision and control retained by the employers as, the only method if occasion arose of securing the proper and efficient discharge of the cargo as sufficiently determinative of the relationship between the parties and affirmed that " the principal requirement of a contract of service is the right of master in some reasonable sense to control the method of doing the work and this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of relationship. The position in law is thus summarised in Halsburv 's Laws of England, Hailsham edition, Vol. 22, page 112, para. 191: " Whether or not, in any given case, the relation of master and servant, exists is a question of fact; but in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done.": and until the position is restated as contemplated in Short vs J. & W. Henderson Ltd., (supra), we may take it as the prima facie test for determining the relationship between master and servant, 160 The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at page 23 in Mersey Docks and Harbour Board vs Coggins & Griffith (Liverpool) Ltd., and Another (1), " The proper test is whether or not the hirer had authority to control the manner of execution of the act in question The nature or extent of control which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition. As has been noted above, recent pronouncements of the Court of Appeal in England have even expressed the view that it is not necessary for holding that a person is an employee, that the employer should be proved to have exercised control over his work, that the test of control was not one of universal application and that there were many contracts in which the master could not control the manner in which the work was done (Vide observations of Somervell, L.J., in Cassidy vs Ministry of Health (supra), and Denning, L.J., in Stevenson, Jordan and Harrison Ltd. vs MacDonald and Evans (supra).) The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer or to use the words of Fletcher Moulton, L.J., at page 549 in Simmons vs Health Laundry Company (2): " In my ' opinion it is impossible to lay down any rule of law distinguishing the one from the other. It is a question of fact to be decided by all the circumstances of the case. The greater the amount of direct control exercised over the person rendering the services by the person contracting for them the stronger the (1) ; 23. (2) [1910] 1 K.B 543, 54 550. 9 161 grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that the contract is not one of service. " The Industrial Tribunal on a consideration of thes facts in the light of the principles enunciated above, came to the conclusion that though certain features which are usually to be found in a contract of service were absent, that was due to the nature of the industry and that on the whole the status of the agarias was that of workmen and not independent contractors. It was under the circumstances strenuously urged before ,us by the learned counsel for the respondents that the question as regards the relationship between the appellants and the agarias was a pure question of fact, that the Industrial Tribunal had jurisdiction to decide that question and had come to its own conclusion in regard thereto, that the High Court, exercising its jurisdiction under articles 226 and 227 of the Constitution, was not competent to set aside the finding of fact recorded by the Industrial Tribunal and that we, here, entertaining an appeal from the decision of the High Court, should also not interfere with that finding of fact. Reliance was placed on the observations of Mahajan, J., as he then was, in Ebrahim Aboobakar vs Custodian General of Evacuee Property (1) "It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the 'order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. But once it is held that the court has jurisdiction but while exercising it made a mistake, the wronged. party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. " (1) ; ,702. 21 162 There is considerable force in this contention of the respondents. The question whether the relationship between the parties is one as between employer and employee or between master and servant is a pure question of fact. Learned counsel for the appellants "relied upon a passage from Batt 's "Law of Master and Servant", 4th edition, at page 10: " The line between an independent contractor and a servant is often a very fine one; it is a mixed question of fact and law, and the judge has to find and select the facts which govern the true relation between the parties as to the control of the work, and then he or the jury has to say whether the person employed is a servant or a contractor. " This statement, however, rests upon a passing observation of Mc Cardie, J. in Performing Right Society Ltd. vs Mitchell and Booker (Palais de Danse)(1) and is contrary to the oaten& of authorities which lays down that whether or not in any given case the relation of master and servant exists is purely one of fact. (Vide Halsbury 's "Laws of England", Hailsham edition, Vol. 22, page 112, para. 191; Per Cozens Hardy, M.R. at page 547 and Per Fletcher Moulton, L.J. at page 549 in Simmons vs Heath Laundry Company (supra). It is equally well settled that the decision of the Tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under article 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence. Now the argument of Mr. Kolah for the appellants is that even if all the facts found by the Tribunal are accepted they only lead to the conclusion that the agarias are independent contractors and that the finding, therefore, that they are workmen is liable to be set aside on the ground that there is no evidence to support it. We shall, therefore, proceed to determine the correctness of this contention. Apart from the facts narrated above in regard to which there is no dispute, there was the evidence of the Salt Superintendent of the appellants which was recorded before the Tribunal: (1) 163 "The panholders are allotted work on the salt pans by oral agreement. The Company has no control over the panholders in regard to the hours of work or days of work. The Company 's permission is nor sought in matter of sickness or in matter of going out to some village. The Company has no control over the panholders as to how many labourers they should engage and what wages they should pay them. The company 's supervision over the work of the panholders is limited to the proper quality as per requirements of the Company and as per standard determined by the Government in matter of salt. , The company 's supervision is limited to this extent. The Company acts in accordance with Clause 6 of the said agreement in order to get the proper quality of salt. Panholders are not the workmen of the Company, but are contractors. The men, who are entrusted with pattas, work themselves. They can engage others to help them and so they do. There is upto this day no instance that any penholder who is entrusted with a patta, has not turned up to work on it. But we do not mind whether he himself works or not. If any penholder after registering his name (for a patta) gets work done by others, we allow it to be done. We own 319 pattas. Some patta8 have two partners. In some, one man does the job. ID all the pans, mainly the panholders work with the help of their (respective) families. " Clause 6 of the agreement referred to in the course of his evidence by the Salt Superintendent provided: " 6. We bind ourselves to work as per advice and instructions of the officers appointed by them in connection with the drawing of brine or with the process of salt production in the pattas and if there is any default, negligence or slackness in executing it on our part or if we do not behave well in any way, the Managing Agent of the said Company can annul this agreement and can take possession of the patta, brine, well etc., and as a result we will not be entitled to claim any 164 sort of consideration or compensation for any half processed salt lying in our patta; or in respect of any expense incurred or labour employed in preparing kiwa patta, well bamboo lining etc. " There was also the evidence of Shiva Daya, an agaria, who was examined on behalf of the respondents: " There is work of making enclosures and then of sinking wells. The company supervises this work. While the wells are being sunk, the company measures the density of the brine of wells. In order to bring the brine of wells to the proper density, it is put in a condenser and then the Company tests this and then this brine is allowed to flow in the pattas. The bottom of a patta is prepared after it is properly crushed under feet and after the company inspects and okays that it is alright, water is allowed to flow into it. When salt begins to form at the bottom of a patta, an officer of the company comes and inspects it. At the end of 21 months, the water becomes saturated, i.e., useless, and so it is drained away under the supervision of the company. Then fresh brine is allowed to flow into the patta from the condenser. This instruction is also given by the company 's officer. " It was on a consideration of this evidence that the Industrial Tribunal came to the conclusion that the supervision and control exercised by the appellants extended to all stages of the manufacture from beginning to end. We are of opinion that far from there being no evidence to support the conclusion reached by the Industrial Tribunal there were materials on the record on the basis of which it could come to the conclusion that the agarias are not independent contractors but workmen within the meaning of the Act. Learned counsel for the appellants laid particular stress on two features in this case which, in his submission, were consistent only with the position that the agarias are independent contractors. One is that they do piece work and the other that they employ their own labour and pay for it. In our opinion neither of these two circumstances is decisive of the question. As 165 regards the first, the argument of the appellants is that as, the agaria8 are under no obligation to work for fixed hours or days and are to be paid wages not per day or hours but for the quantity of salt actually produced and passed, at a certain rate,, the very basis on which the relationship of employer and employees rests is lacking, and that they can only be regarded as independent contractors. There is, however, abundant authority in England that a person can be a workman even though he is paid not per day but by the job. The following observations of Crompton, J. in Sadler vs Henlock (1) are pertinent in this behalf : " The test here is, whether the defendant retained the power of controlling the work. No distinction can be drawn from the circumstances of the man being employed at so much a day or by the job. I think that here the relation was that of master and servant, not of contractor and contractee." (See also Blake, vs Thirst (2) and Halsbury 's " Laws of England ", Hailsham edition, Vol. 22, page 119, para. 194, wherein it is stated that if a person is a worker and not a contractor, " it makes no difference that his work is piece work ".) As regards the second feature relied on for the appellants it is contended that the agaria8 are entitled to engage other persons to do the work, that these persons are engaged by the agaria8 and are paid by them, that the appellants have no control over them and that these facts can be reconciled only with the position that the agaria8 are independent contractors. This argument, however, proceeds on a misapprehension of the true legal position. The broad distinction between a workman and an independent contractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work. Now a person who agrees himself to work and does so work and is, therefore, a workman does not cease to be such by reason merely of the fact that he gets other persons to work along (1) ; , 578 ; ; , 212. (2) (1863) 32 L.J. (Exchequer) 188. 166 with him and that those persons are controlled and paid by him. What determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not. If he has, then he is a workman and the fact that he takes assistance from other persons would not affect his status. The position is thus summarised in Halsbury 's 'Laws of England ', Vol. 14, pages 651 652: " The workman must have consented to give his personal services and not merely to get the work done, but if he is bound under his contract to work personally, he is not excluded from the definition, simply because he has assistance from others, who work under him." (See also Grainger vs Aynsley : Bromley vs Tams (1); Weaver vs Floyd (2) and Whitely vs Armitage (a).) In the instant case the agarias are professional labourers. They themselves personally work along with the members of their families in the production of salt and would, therefore, be workmen. The fact that they are free to engage others to assist them and pay for them would not,in view of the above authorities, affect their status as workmen. There are no doubt considerable difficulties that may arise if the agarias were held to be workmen within the meaning of section 2 (s) of the Act. Rules regarding hours of work etc., applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal. These difficulties, however, are no deterrent against holding the agarias to be workmen within the meaning of the definition if they fulfil its requirements. The Industrial Tribunal would have to very well consider what relief, if any, may possibly be granted to them having regard to all the circumstances of the case and may not be able to regulate the work to be done by the aqarias and the remuneration to be paid to them by the employer in (1) (1881) 6 Q.B.D. 182. (2) (3) 167 the manner it is used to do in the case of other industries here the conditions of employment and the work to be done by the employees is of a different character. These considerations would necessarily have to be borne in mind while the Industrial Tribunal is adjudicating upon the disputes which have been referred to it for adjudication. They do not, however, militate against the conclusion which we have come to above that the decision of the Industrial Tribunal to the effect that the agarias are workmen within the definition of the term contained in section 2 (s) of the Act was justified on the materials on the record. We accordingly see no ground for interfering with that decision and dismiss this appeal with costs. Appeal dismissed. [/INST]Clause 3(2)(a) of the Edible oil, Edible oil Seeds and oil Cakes (Declaration of Stocks) order, 1976 enjoins that before a consignment of oil leaves a place a stock holder who transports edible oils shall make a declaration in Form II to the specified officer of the place (in this case the Tehsildar of the) Taluk from where such edible oils are transported. Clause (b) enjoins that the declaration shall be shown at every check post on the route immediately after arrival there. A police officer seized in transit a truck carrying a large quantity of ground. nut oil on the ground that the requisite declaration in Form II had not been furnished to the Tehsildar of the place of despatch of the consignment. The Deputy Commissioner, after issuing a notice to the respondent under section 6B of the , released the truck and the consignment on taking from him an indemnity bond and a bank guarantee towards the price of oil. The respondent however produced before the Deputy Commissioner a copy of the invoice issued by the seller and a declaration in Form 39 prescribed under the Mysore Sales Tax Act, 1957. The Deputy Commissioner ordered confiscation of the truck and the oil on the view that the respondent had contravened the provisions of clause 3(2) (a) and (b) of the order. On appeal the Sessions Judge affirmed this order. A single Judge of the High Court in revision held that there was no contravention of the requirement of the order because the day on which the goods were despatched being a Sunday, it was impossible for the respondent to deliver on that day to Tehsildar the declaration in Form II and that the law would not expect a citizen to do the impossible. The respondent in the State 's appeal to this Court contended that: (1) the confiscation of the entire consignment was arbitrary and excessive in that the use of the word "may" in section 6A made exercise of that power discretionary; (2) since there was nothing to show that the goods had been seized, the power of 830 confiscation under section 6A had not been properly exercised and (3) the order of confiscation was a nullity in that the Deputy Commissioner had not issued a proper show cause notice under section 6B of the Act. Allowing the State 's appeal ^ HELD: 1 (a) The word "may" used in section 6A does not mean that the Deputy Commissioner could not order confiscation of the entire consignment of an essential commodity where he found contravention of any of the orders issued under section 3 of the Act. The power conferred on the Deputy Commissioner under section 6A is a power coupled with public duty. [834 H] (b) In directing confiscation of the entire consignment which was being transported without furnishing the declaration in Form II the Deputy Commissioner acted in public interest. The whole purpose of the control order was to maintain control over the stock of essential commodities at a place with a view to securing their equitable distribution and availability at fair prices. The requirements of clause 3 (2) (a) and (b) are mandatory. [835 C D] (c) "Stock holder" as defined in the order includes the purchaser of oil who is in possession or control thereof. By a legal fiction the explanation treats the owner to have control over the oil in transit. Respondent 4 being the purchaser fell within the definition of "stock holder". Moreover there was nothing to show that the consignor had reserved the jus disponendi by the terms of the contract or appropriation and, therefore, the property in the goods passed to respondent 4 (purchaser) on delivery to a common carrier under section 25 of the . [836 A B] (d) The Deputy Commissioner was right in holding that the declaration in Form II was required to be filed before the specified officer before the goods left a place and that the declaration should be produced at every check post in transit as required by law. The respondent having contravened the provisions of clause 3 (2) (a) and (b) of the order the truck and the consignment of oil were rightly confiscated. [837 A C] (e) It is not correct to say that since the date of despatch of the goods was a Sunday there was no need to comply with the requirements of clause 3 of the order. If the consignment had to be despatched on Sunday nothing prevented the parties from furnishing the declaration a day earlier. In a transaction of such a magnitude a duty was cast on the party to comply with the requirements of the order before the consignment left the place. [834 A B] 2. The very fact that the seized groundnut oil was released only after the respondent furnished the requisite Bank guarantee clearly showed that the consignment had been seized. Therefore power under section 6A had been correctly exercised. [837 E F] 3. There was no breach of the requirement of section 6B. In response to the show cause notice issued by the Deputy Commissioner respondent 4 appeared before him and filed a copy of the invoice and declaration in Form 39 of the Mysore Sales Tax Act. The Deputy Commissioner gave a hearing to the parties. That being so, validity of the confiscation under section 6C could not be challenged. [837 G H] 831 </s>

<s>[INST] Summarize the judgementivil Appeal No. 3006 of 1981. From the Judgment and Order dated 28.7.1981 of the Himachal Pradesh High Court in C.W.P. No. 94 of 1981. M.V. Goswami for the Appellant. Nemo for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. "Nautor land" under Rule 3 of the Himachal Pradesh Nautor Land Rules, 1968 (hereinafter called 'Rules ') means the right to utilize with the sanction of the competent authority, waste land owned by the Government outside the towns, outside the reserved and demarcated protected forests, and outside such other areas as may be notified from time to time by the State Government. Gopinder Singh applied for the grant of nautor land measuring 14 bighas 12 biswas situated in village Kanal for cultivation. The Revenue Assistant Chopal vide his order dated June 29, 1972 sanctioned nautor land measuring 11 bighas 1 biswas situated in village Kanal to him on payment of Rs.552.50 as Nazarana. The Forest Department filed an appeal against the said order before the Deputy Commissioner Simla which was accepted and the order of the Revenue As sistant Chopal sanctioning nautor land in favour of Gopinder Singh was set aside. Gopinder Singh filed further appeal to Divisional Com missioner, Himachal Pradesh at Simla who accepted the same and vide his order dated September 9, 1974 restored the grant of nautor land to Gopinder Singh. The Forest Depart ment filed revision petition before the Financial Commis sioner (Revenue Appeals) Himachal Pradesh who accepted the revision petition and set aside the order dated September 9, 1974 of the Divisional Commissioner sanctioning nautor land to Gopinder Singh. He further ordered that the amount of Nazarana Should. be refunded to Gopinder Singh and the land resumed to the State. The Financial Commissioner accepted the appeal on the following two grounds: 799 (1) Gopinder Singh felled the trees on the land without waiting for necessary approval of the Divisional Forest Officer and as such he took the law in his own hands. (2) Being a teacher in a Government school drawing month ly emoluments of more than Rs.650 p.m. his economic condi tion was reasonably good and as such he was not eligible for the grant of nautor land under the Rules. Against the order of the Financial Commissioner Gopinder Singh filed Civil Writ Petition under Article 226 of the Constitution of India before the High Court of Himachal Pradesh at Simla which was dismissed in limine on July 28, 1981. This appeal by special leave is by appellant Gopinder Singh against the orders of the Financial Commissioner and of the High Court. Rule 7 of the Rules lays down the categories of persons eligible for the grant of nautor land. The said rule is as under: "Eligibility for nautor land. Save for the widow and the children of a member of an armed force or semi armed force, who has laid down his life for the country (whose widow and children will be eligible for grant anywhere within the Tehsil subject to the conditions mentioned in the Wajib ul arj in respect of the areas where the land applied for is situated) no one who is not the resident in the estate in which the land applied for is situate, shall be eligible for the grant. Every resident of the estate in which the land applied for lies will be eligible in the following order of preference: (a) Such persons who have less than ten bighas of land, whether as owners, or as tenants, or as lessees, either individually or collectively, or have an income of less than Rs.2,000 per annum from all sources including lands. Provid ed that in this category a dependent of one who has laid down his life for the defence of the country shall get preference over his counterparts; (b) Scheduled Castes and Scheduled Tribes applicants; (c) The dependants of those who have laid down their lives for the defence of the country. Service for the defence of 800 the country will mean service in a uniformed force as well as in the capacity of civilian, so long as the death occurs on a front, be it military or civil; (d) Serving personnel in the armed forces and Ex servicemen; (e) Panchayats, and (f) others; Provided that a bona fide landless resident of Spite shall be eligible for the grant of land in Nautor within the spiti Sub Division. " The learned counsel appearing for the appellant has relied on first part of clause (a) of Rule 7 to show that the appellant was having less than 10 bighas of land and as such as was eligible for the grant of nautor land. He fur ther contended that even though he may be having an income of more than Rs.2,000 per annum as a teacher, he being eligible under the first part, the second part of clause (a) of Rule 7 is not attracted in his case. According to him first and the second part of clause (a) of Rule 7 are inde pendent to each other and there being 'or ' in between the two parts these have to be read disjunctively. He contends that 'or ' has to be given its ordinary meaning and it cannot be read as 'and '. We have carefully examined the provisions of clause (a) of Rule 7 reproduced above. The clause reads "such persons who have less than 10 bighas of land . or have an income of less than 2,000 per annum from all sources including lands. " There is thus inherent evidence in the clause itself to show that the two parts cannot be read disjunctively. The second part makes it clear that an income of less than Rs.2,000 per annum should be from all sources including lands. It is thus obvious that a person who has got less than 10 bighas of land but has an income of more than Rs.2,000 from the said land, is not eligible for allotment of nautor land under clause (a). Even otherwise if we inter pret the clause the way learned counsel for the appellant wants us to do it would produce absurd result. A person have two bighas of land but otherwise earning Rs.20,000 per annum would be eligible for allotment of nautor land if we accept the appellant 's interpretation. The object of granting nautor land under the rules is to help poor and unprovided for residents of Himachal Pradesh. Considering the nature, scope and the clear intention of the framers of the Rules it is 801 necessary to read the word "or" in between the first and the second part of clause (a) as "and". The appellant 's income was admittedly more than Rs.2,000 per annum and as such his claim for nautor land was rightly rejected. We, therefore, do not agree with the contentions raised by the learned counsel for the appellant. The appeal is, therefore, dismissed with no order as to costs. P.S.S. Appeal dis missed. [/INST]Clause (a) of Rule 7 of the Himachal Pradesh Nautor Land Rules, 1968 makes every resident of the estate having less than ten bighas of land or having an income of less than Rs.2,000 per annum from all sources including lands, eligi ble for grant of land in nautor. The grant of nautor land to the appellant teacher was set aside by the Financial Commissioner in revision. The High Court dismissed the writ petition in limine. In the appeal by special leave it was contended for the appellant that the word 'or ' occurring in between the first and the second part of cl. (a) of Rule 7 has to be given its ordinary meaning and it cannot be read as 'and ' that the two parts of the clause were, therefore, independent of each other and had to be read disjunctively, and that he being eligible under the first part, even though having an income of more than Rs.2,000 per annum as a teacher, the second part of cl. (a) was not attracted. Dismissing the appeal, the Court, HELD: 1. A person who has got less than 10 bighas of land but has an income of more than Rs.2,000 per annum from all sources including the said land is not eligible for allotment of nautor land under cl. (a) of Rule 7 of the Himachal Pradesh Nautor Land Rules, 1968. [800G] 2. The object of granting nautor land under the Rules is to help poor and unprovided for residents of the State. Considering the nature, scope and the clear intention of the framers of the Rules it is necessary to read the word 'or ' in between the first and the second part of clause (a) as 'and '. The two parts cannot, therefore, be read disjunctive ly. The second part makes it clear that an income of less than Rs.2,000 per annum should be from all sources including lands. [800H; 801A] 798 3. The appellant 's income in the instant case being more than Rs.2,000 per annum he was not entitled to the grant of nautor land. [801A] </s>

<s>[INST] Summarize the judgementAppeals Nos. 450 & 451 of 1957. Appeals by special leave from the judgment and order dated July 31, 1956, of the Labour Appellate Tribunal of India, Calcutta, in Appeals Nos. 282/55 and 6/56. C. K. Daphtary, Solicitor General of India, H. N. Sanyal, Additional Solicitor General of India, D. N. Mukherjee and B. N. Ghose, for the Appellant (In C.A. No. 450/57). A. Roy Mukherjee and H. N. Hingorani, for the respondent (In C. A. No. 450/57.) M. C. Setalvad, Attorney General for India, C. K. Daphtary, Solicitor General for India and H. N. Sanyal, Additional Solicitor General of India, D. N. Mukherjee and B. N. Ghose, for the appellants (In C. A. No. 450/57). Sadhan Chandra Gupta, Janardhan Sharma and M. K. Ramamurthi, for the respondents (In C. A. No. 451/57). Sadhan Chandra Gupta, Janardhan Sharma and M. K. Ramamurthi, for the appellant (In C. A. No. 451/57). 1015 M. C. Setalvad, Attorney General for India, H. N. Sanyal, Additional Solicitor General of India, D. N. Mukherjee and B. N. Ghose, for the respondent (In C. A. No. 514/57). G. D, Ambukar for the Secretary, for the Intervener No. 1. Sadhan Chandra Gupta and Janardhan Sharma, for Intervener No. 2. 1959. May 5. The Judgment of the Court was delivered by WANCHOO, J. These are three appeals by special leave from the same decision of the Labour Appellate Tribunal of India and will be dealt with together. The first two appeals (Nos. 450 & 451) are by Messrs. Titaghur Paper Mills Co. Ltd., and the third (No. 514) by its workmen. Titaghur Paper Mills Co., Ltd. (hereinafter called company) own two paper mills one at Titaghur (hereinafter called Mill No. 1) and the other at Kankinarah (hereinafter called Mill No. 2). It appears that there had been a dispute between the company and its workmen in 1948, which was referred to the adjudication of a tribunal. That was disposed of by the tribunal on November 5, 1949. Among the matters then referred was the question of profit bonus for the years 1945 46 and 1946 47. When that matter was under the consideration of the tribunal, the company put forward a scheme of production bonus on the basis of a minimum production of 30,000 tons of paper in a year in the two mills together. The basis of the scheme was that the workmen would get 13 days ' basic wage (this being equivalent to half of one month 's basic wage) by way of bonus on a production of 30,000 tons for both mills. Thereafter the workmen were to get an additional one day 's basic wage for every 460 tons produced upto a maximum of 36,000 tons when the production bonus would come up to 26 days ' basic wage (which would be equivalent to one month 's basic wage including weekly holidays). The company in putting forward the scheme said that "as an admittedly rough basis for such a scheme something on the 1016 following lines might, we think, be equitable". It then gave the scheme mentioned above. The tribunal dealing with the question of profit bonus for the years 1945 46 and 1946 47 observed that the scheme of production bonus put forward by the company had been accepted by the union as satisfactory and for the purpose of that proceeding it accepted the scheme as a measure for awarding profit bonus for the years 194546 and 1946 47. The actual bonus worked out to 17 days ' basic wage for 1945 46 and 19 days ' basic wage for 1946 47 ; (see award of Sri M. C. Banerji, in the publication of Government of West Bengal, Labour Department, I Awards made by the Tribunals for the quarter ending December, 1949 ", pp. 130_ 150). It further appears that the detailed scheme was later communicated to the union in July 1950 and as the principle had already been accepted by the union before Sri Banerji the scheme was put in operation from April 1, 1949, and production bonus has all along been paid in accordance with it after that date. Disputes, however, arose between the company and its workmen in 1953. The workmen of Mill No. 2 were the first to raise a dispute in August 1953, in which inter alia they demanded profit bonus for the years 1950 51 and 1951 52 and also prayed for certain changes in the production bonus scheme. The workmen of Mill No. I also raised a dispute and presented a charter of demands to the company in October 1953. They also demanded profit bonus for the two years mentioned above and revision of the production bonus scheme. These disputes were referred by the Government of West Bengal to the Fifth Industrial Tribunal, West Bengal. There were two references, one relating to each mill. They were heard separately by the Industrial Tribunal which gave two separate awards rejecting all the demands made by the workmen. Consequently, two appeals were preferred by the workmen before the Labour Appellate Tribunal. There the two appeals were heard together at the request of the parties and disposed of by the Tribunal by the same judgment on July 31, 1956. The Fifth Industrial Tribunal rejected the claim of 1017 the workmen for revision of the production bonus scheme and for grant of profit bonus for the years 1950 51 and 1951 52. It was of opinion that the claim for profit bonus for the two years was not maintainable as the workmen had been given production bonus and that met the profit bonus claim of the workmen for the two years and all claims for profit bonus for these two years must be taken to have been fully satisfied. The question of delay in making the profit bonus claim was also raised; but the Fifth Industrial Tribunal was of the view that the profit bonus claim could not be defeated merely on the ground of delay. As to the revision of production bonus scheme, it held that scheme had been accepted by the union and no reason had been shown why the rate of one day 's basic wage as production bonus for every increase of 460 tons over 30,000 tons should be disturbed. It was also of the view that increased production was not due to increased efforts on the part of the workmen but was due mainly to increase in labour strength as well as installation of new machinery. On appeal the Labour Appellate Tribunal rejected the claim for profit bonus for the year 1950 51 on the ground that it was made too late. It, however, disagreed with the view of the Fifth Industrial Tribunal that the production bonus scheme fully satisfied the claim of the workmen for profit bonus and therefore DO profit bonus should be given even for the year 1951 52, with regard to which it % as of opinion that the claim was not belated. It, therefore, went into the figures of profits and arrived at the available surplus in accordance with the formula known as the Full Bench Formula evolved in The Mill Owners ' Association, Bombay vs The Rashtriya Mill Mazdoor Sangh, Bombay(1). Having arrived at the available surplus it granted one month 's profit bonus in addition to what. the workmen were entitled to under the production bonus scheme as revised by it. As to the production bonus scheme, it was of the view that there were reasons for revising it and therefore revised (1) 128 1018 it, providing for 112 days ' basic wage for each increase of 460 tons over 30,000 tons up to the limit of 36,000 tons and two days ' basic wage for each increase of 460 tons in excess of 36,000 tons. It may be mentioned, however, that the change in the production bonus scheme was not made retrospective and would therefore come into force from after the judgment of the Labour Appellate Tribunal. The appeals of the workmen were therefore allowed in these two respects, which have led to the two appeals by the company be fore us. The workmen through their union have also filed an appeal against those portions of the decision of the Labour Appellate Tribunal which rejected their demands. In the two appeals by the company two matters relating to (i) production bonus and (ii) profit bonus have been raised before us. We shall first take up these two matters and then come to the appeal by the workmen. The main contentions on behalf of the company with respect to the production bonus scheme are threefold, namely, (1)The Industrial Tribunal has no jurisdiction to go into the question of production bonus scheme at all, for such a scheme by its very nature can only be a matter of agreement between the employer and the employees and cannot be imposed by a tribunal; (2)Even where a production bonus scheme is in force, its terms cannot be varied by a tribunal and any variation can only be the outcome of an agreement between the employer and the employees, because initiation or introduction of such a scheme is what may be called a I management function '; and (3) Even if an industrial tribunal has the power to vary the production bonus scheme, no material was placed on the record in this case on the basis of which the tribunal could order a variation in the scheme in force in the company. As to the award of profit bonus for the year 1951 52 the attack was two fold, namely, (4)It was not open to a tribunal to award both production bonus and profit bonus and in any case it 1019 could not be done in the present case as the production bonus here was nothing more than profit bonus; and (5) Even if both production bonus and profit bonus could be awarded, there was no available surplus in this case out of which profit bonus for that year could be paid. Before we go into the question of jurisdiction of a tribunal under the , (hereinafter called the Act), we should like to consider what production bonus essentially is. The payment of production bonus depends upon production and is in addition to wages. In effect, it is an incentive to higher 'production and is in the nature of an incentive wage. There are various plans prevalent in other countries for this purpose known as Incentive Wage Plans worked out on various bases, for example, Halsey Premium Plan, Bedaux Point Premium Plan, Haynes Manit System and Emerson Efficiency Bonus Plan; (see Labour Law by Smith, Second Edition, P. 723). The simplest of such plans is the straight piece rate plan where payment is made according to each piece produced, subject in some cases to a guaranteed minimum wage for so many hours ' work. But the straight piece rate system cannot work where the finished product is the result of the co operative effort of a large number of workers each doing a small part which contributes to the result. In such cases,, production bonus by tonnage produced, as in this case, is given. There is a base or standard above which extra payment is made for extra production in addition to the basic wage. Such a plan typically guarantees time wage up to the time represented by standard performance and gives workers a share in the savings represented by superior performance. But whatever may be the nature of the plan the payment in effect is an extra emoluments for extra effort put in by workmen over the standard that may be fixed. That is the reason why all these plans are known as Incentive Wage Plans and generally speaking have little to do with profits. The extra payment depends not on 1020 extra profits but on extra production. This extra payment calculated on the basis of extra production is in a case like the present where the payment is made after the annual production is known, in the nature of emoluments paid at the end of the year. Therefore generally speaking, payment of production bonus is nothing more nor less than a payment of further emoluments depending upon production as an incentive to the workmen to put in more than the standard performance. Production bonus in this case also is of this nature and is nothing more than additional emoluments paid as an incentive for higher production. We shall later consider the argument whether in this case the production bonus is anything other than profit bonus. It is enough to say at this stage that the bonus under the scheme in this case also depends essentially on production and therefore is in the nature of incentive wage. Let us now turn to the question of jurisdiction of the tribunal under the Act to consider a production bonus scheme at all. The argument is that the introduction of a production bonus scheme is purely discretionary with the employer and no tribunal can impose such a scheme. Whether there should be increased production in a particular concern is a matter to be determined entirely by the employer and depends upon a consideration of so many complex factors, namely, the state of the market, the demand for the product, the range of prices, and so on. It is, therefore, entirely for the employer to introduce a production bonus scheme or not. There is good deal of force in the argument up to this point ; but the argument goes further and it is said that even after the scheme is introduced, it is for the same reasons in the discretion of the employer whether to continue it or not. Therefore, it is urged that the tribunal cannot have jurisdiction to consider a production bonus scheme at all, for the tribunal would then be doing something which the employer can set at naught by withdrawing the scheme or by nullifying the effect of the tribunal 's order by so arranging that the production does not reach the level at which production bonus becomes payable, for 1021 example, by not providing enough raw material for the purpose. It is further urged that if it is entirely in the discretion of the employer to introduce or not to introduce a production bonus scheme, the fact that the employer introduces a scheme will not give jurisdiction to the tribunal to interfere with it in any way, for otherwise the tribunal would be compelling the employer in the guise of a revision of the scheme to do something which the tribunal could not initially do. Our attention in this connection was drawn to Shalimar Rope Works Mazdoor Union, Howrah vs Messrs; Shalimar Rope Works Ltd., Shalimar, Howrah (1), where it was observed that though a production bonus scheme may be desirable in the interest of harmonious relationship between the employer and employees, there is no obligation on the part of the management to give production bonus and no decision had been brought to the notice of the Labour Appellate Tribunal holding that a scheme of production bonus was obligatory on the part of the company ; (see p. 504). We are , however, not called upon to decide in this case whether a demand for the introduction of a production bonus scheme where there was none before can be made a subject matter of industrial dispute as defined in section 2 (k) of the Act or whether a scheme of production bonus can for the first time be imposed on the employer by a tribunal under the Act. The problem that is before us is whether the tribunal tinder the Act will have jurisdiction to deal with a production bonus scheme in a concern where it has been introduced. The answer to this question depends upon the terms of the Act and not on the consideration whether the scheme can be initiated only by the employer in the first instance. In order that the tribunal may have jurisdiction all that is necessary is that an industrial dispute within the meaning of section 2 (k) of the Act should exist or be apprehended and there should be a reference of such dispute by the appropriate government to the tribunal under section 10. Now ' industrial dispute ' has been defined in very wide terms in section 2 (k) and for our purpose it means any (1). (1957) L.A.C. 496. 1022 dispute or difference between the employers and workmen which is connected with the employment or non employment or the terms of employment or with the conditions of labour, of any person. We have already held that the production bonus scheme in this case is an incentive wage plan and what is paid under the scheme over and above the basic wage is supplementary emolument depending upon annual production. A dispute arising about such an emolument clearly comes within the words " terms of employment ". As soon therefore as an employer introduces a production bonus scheme and the same is put in operation and the workmen accept it becomes a term of employment of the workmen working under him and any dispute with respect to such a term of employment is an industrial dispute and if it is referred to a tribunal under section 10, as has been done in this case, it has jurisdiction under section 15 to deal with it. The argument therefore on this head must be rejected and it must be held that the tribunal had jurisdiction under the Act to deal with the scheme of production bonus which had been introduced in this company and was in force at all material times. This brings us to the second question, namely, where a scheme of this kind is in force and there is a dispute with regard to its terms, what is the extent of the powers of a tribunal to deal with it. The argument is put in this way. The introduction and continuance of a production bonus scheme is one of the functions of management. Therefore, when a question of revision of such a scheme comes up before a tribunal, all that the tribunal should look into is whether this matter is an exclusive management function ? If it comes to the conclusion that it is an exclusive management function, it should not interfere with the details of the scheme, unless it also comes to the con clusion that the employer is guilty of mala fides, victimization, fraud or unfair labour practice through the introduction or continuance of the scheme. It is said that even though the tribunal may have jurisdiction to consider such a scheme, it should refuse to interfere 1023 with it as soon as it comes to the conclusion that it is an exclusive management function and there is no question of mala fides, etc. We think it unnecessary for present purposes to embark on a discussion of what is and what is not an exclusive management function. Basically, everything connected with the management of an industrial concern is a management function, except the internal affairs of any union which may exist. The Act has made no distinction between what may be called exclusive management functions and others. It is also well settled that the tribunals tinder the Act have power to interfere with management functions falling within their purview in the interest of industrial peace and the Act was enacted with that object. Therefore, once it is conceded, as is the case here, that the tribunal has jurisdiction to entertain such an industrial dispute which comes within the terms of section 2(k) we see no reason why the power of the tribunal to take into consideration an incentive wage plan like a production bonus scheme already introduced should be limited merely to the consideration of the question whether the employer 's action is mala fide, etc. Where a production bonus scheme is in force and has become a term of employment, there is no reason why the tribunal should not have the power to vary its terms if circumstances justify it. Nor can the power of revision be denied to the tribunal in respect of a scheme actually introduced on the ground that the introduction of such a scheme was an exclusive management function and therefore it should be immune from being touched at all. Therefore, even assuming that the initiation of a production bonus scheme is an exclusive management function and the final decision with respect to its introduction rests initially with the manage ment, the right of the tribunal to take into consideration such an initiated scheme (which has become a term of employment) and to revise it cannot for a moment be doubted under the Act. It is true that the tribunal will not lightly interfere with a scheme introduced by the management and accepted by the union. It is also true that the tribunal would only 1024 make a change in the rates for good and sufficient reasons. There can be no doubt, however, that the tribunal has jurisdiction under the Act to take into consideration a production bonus scheme which has been introduced and is in operation and in proper cases to revise it, and if necessary to change the rates and other conditions on which such bonus is payable. Our attention in this connection was drawn to Indian Iron & Steel Co. Ltd. vs Their Workmen(1), where the limits of the power of a tribunal to interfere with an order of dismissal were considered. That case is in our opinion of no help to the appellant. It was laid down there that undoubtedly the management of a concern had power to direct its own internal administration and discipline; but the power was not unlimited and when a dispute arose, Industrial Tribunals had the power to see whether the termination of services of a workman was justified and to give appropriate relief It was further laid down under what conditions the Industrial Tribunal will interfere with the order of dismissal. On a parity of reasoning, the Industrial Tribunal has the power under the Act to revise the production bonus scheme once it has been initiated. It will do so only for good and cogent reasons, such as a material change in method, product, tools, material, design, or production Conditions, or a saving in labour cost and the like, maintaining as far as possible the established relationship between earnings and effort and avoiding rates which will give results out of all proportion to the basic wage. We are therefore of opinion that the argument under this head must also be rejected. The main contention under this head is that there was no material before the Appellate Tribunal to justify the increase in the rate which it ordered. We have already pointed out that the scheme put forward by the company was to pay a production bonus of 13 days ' basic wage on a minimum production of 30,000 tons. Thereafter one day 's basic wage was to (1). [1958] S.C.R. 667. 1025 be paid for every 460 tons produced up to the maximum of 36,000 tons, the rated capacity of the mills being then said to be over 36,000 tons. The Appellate Tribunal has kept the minimum production at 30,000 tons with a bonus of 13 days ' basic wage. Between 30,000 and 36,000 tons it has raised the rate to 1 1/2 days ' basic wage for each increase of 460 tons over 30,000 tons to the limit of 36,000 tons, and thereafter to two days ' basic wage for each increase of 460 tons in excess of 36,000 tons. It gave,, two reasons in support of this increase, namely, (i) that the great increase in production since the introduction of the scheme was attributable to a very considerable extent to the increase of efforts on the, part of labour and therefore a reasonable proportion of the increased _income on account of increased production should go to labour, and (ii) that one day 's wage only as bonus for every 460 tons over 30,000 tons is not commensurate with the actual increase of income on that increased block of production. It is not clear to us what exactly the Appellate Tribunal had in mind when it talked of the increase of income as a reason for increase in the rate. The question of increase in the rate has to be considered in two stages, namely, (i) the increase between 30,000 and 36,000 tons and (ii) the increase when production goes beyond 36,000 tons. It appears from what Mr. Banerji said in his award of 1949 that the basic principle of the scheme, as it was put forward before him, was accepted by the union as satisfactory, meaning thereby that the union considered that 13 days ' basic wage for a minimum production of 30,000 tons and one day 's basic wage for every 460 tons beyond that upto 36,000 was fair to labour. It has been urged that there was no agreement between the workmen and the company in connection with this scheme. It does appear that all the terms, which were incorporated in the scheme communicated to labour in July 1950, were not initially evolved with the agreement of the union ; but so far as the rate of bonus was concerned that was accepted by the union as satisfactory. In the company 's appeals, we are 129 1026 concerned only with the rate. The question therefore is whether the Appellate Tribunal was justified in changing this rate which was agreed to as satisfactory by the union up to a production of 36,000 tons. We are of opinion that in view of the agreement between the parties up to a production of 36,000 'tons there was no such material before the Appellate Tribunal as would justify interference with the agreed rate. The intensification of labour must have been taken into account when the union agreed to the rate up to 36,000 tons, and there is nothing to show that since then there has been any change in the conditions to call for a change in the rate. The order of the Appellate Tribunal so far as it relates to production up to 36,000 tons cannot be sustained, as no material was placed before it to warrant a change in that agreed rate. Then we come to the rate after 36,000 tons. There the considerations in our view are different. The scheme only provided for a production of 36,000 tons. It is true that thereafter the production has gone up beyond 36,000, and the company has been paying the same flat rate of one day 's basic wage for every 460 tons for the extra production and the workmen have been accepting that payment. At the same time there was no collective acceptance by the union on behalf of the workmen of this rate being satisfactory or fair for production above 36,000 tons. Production went beyond 36,000 tons for the first time in 1951 52 and a dispute was raised in October 1953 by the workmen of Mill No. 1 not very long after production for that year was known. There was no dispute as to the general revision of the rate by the workmen of Mill No. 2; but it was conceded on behalf of the company that the two mills must be treated on the same footing in this matter. The company therefore cannot say that the Appellate Tribunal should not have interfered with the rate above 36,000 tons, because there was a collective agreement by the union on behalf of the Workmen and there was no material before it to change the rate even beyond 36,000 tons. Two reasons were given by the Appellate Tribunan for the 1027 change it ordered. Of these the second is difficult to understand as it is not clearly or happily expressed, though the first reason, (namely, increased effort on the part of labour) would certainly apply when we consider production beyond 36,000 tons. It stands to reason that where the labour force is more or less the same, production beyond the original target of 36,000. tons would mean more intensification of effort by labour, for it is not in dispute that the working hours have remained the same. Other things being equal, the greater the production by the same labour force in the same space of time, there is bound to be more intensification of labour to achieve this result. This is certainly a matter which the Appellate Tribunal could take into account in considering whether the rate after 36,000 tons should be raised. A comparison of figures of production and labour force employed between 1948 and 1952 (assuming other factors to be the same) would show that there must have been intensification of labour effort to got the increased production. In 1948, total labour force in the two mills was 5,860 (Exs. F & H). In 1952, it went up to 6,213, an increase of just over 6 per cent. Production on the other hand was 28,244 tons in 1948 49 while it was 37,738 tons in 1951 52, an increase of slightly above 33 per cent. So it is obvious that the increase in production is much more than the increase in labour force. It is true that in 1950 a new paper making machine was substituted in one of the mills, and some bamboo crushers and digesters were also added during this period and other large amounts spent on machinery, and that fact certainly accounts for a part of the increase. It is, however, not possible to ascertain, with anything like mathematical accuracy, as to how much of the increase in production is attributable to improved machinery and how much of it is referable to intensification of labour of the workmen. It may nevertheless be taken as fairly certain that the increase in production is referable to a great extent to intensification of the efforts of the workmen, for there has been no appreciable increase in the labour force. We have not got the figures of labour force in the 1028 later years, though production has gone on increasing, till it is said it will reach 54,000 tons mark in 1958 59. It is apparent, therefore, that there must have been progressive intensification of labour as the production rose beyond 36,000 tons, and in the premises that was a circumstance which the Appellate Tribunal was properly entitled to take into account when considering a change in the rate for production over 36,000 tons. The second ground given by the Appellate Tribunal, as we have said above, is not quite clear to us. Learned counsel for the workmen have, however, explained that what the Tribunal means is that as the production increases more and more the labour cost per ton goes down; and thus there is a saving in labour cost to the company and the workmen are entitled to share in this progressive saving of labour cost. The principle which is inherent in this explanation is in fact the basis of progressive increase in production bonus rates as production increases. This will be clear from an illustration, which we shall give just now. This illus tration is based as nearly as possible on the conditions in these two mills with this difference that we have taken round figures for facility of multiplication ; the result will be more or ' less the same if actual figures are taken. For the purposes of this illustration, we shall assume that the labour force and other relevant factors remain constant. Let us start with a basic production of 30,000 tons with a labour force of 6,000 and an average wage of all kinds at Rs. 110/per menses (exhibit E). The total labour cost on this basis for 30,000 tons per year comes to 79.2 lacs, giving labour cost per ton as Rs. 264/ . Now, when production increases to 36,000 tons and a production bonus of Rs. 25/ per year (exhibit E) is added to the wage, labour cost for the extra production of 6000 tons comes to Rs. 1.5 lacs. The total labour cost, therefore, for 36,000 tons is 80.7 lacs, which works out to slightly above Rs. 224/ per ton. When production goes up to 42,000 tons, the labour cost increases by 3 lacs, giving a labour outlay of 82.2 lacs; this works out to just below Rs. 196 per ton. When production increases 1029 to 48,000 tons, the extra labour cost is 4.5 lacs, making a total of 83.7 lacs for 48,000 tons; thus the cost per ton is slightly above Rs. 174/ . When production goes up to 54,000 tons, labour cost increases by 6 lacs, giving a total cost of 85.2 lacs for 54,000 tons, which works out to just below Rs. 158/ per ton. When production reaches 60,000 tons, which is double the basic production, the additional sum paid to labour in bonus is 7.5 lacs and the total cost 86.7 lacs for 60,000 tons which works out to Rs. 144.5 per ton. This is on the basis of the production bonus above 36,000 tons being kept at the same rate at which it is provided in the scheme in this case. It will be clear, therefore, that as production increases (if other factors are the same, namely, labour force and machinery), there is a progressive increase in the saving of labour cost. This, in our opinion, makes out a clear case, where one is dealing with tonnage production bonus, for a progressive increase in the bonus. We know that in this case there has been an increase, but of a small order, in the labour force during the period of increased production; we also know that a new paper making machine has been put in the place of an old one and new bamboo crushers and digesters have been added ; and we know that during the period from April 1, 1948, to April 1, 1959, there has been a total outlay on machinery and plant, worth 223.94 lacs including the above. There is no doubt, therefore, that when production is expected to reach the figure of 54,000 tons in 1958.59, this outlay on machinery and plant must also have contributed to it. The increase in labour force, if any, after April 1, 1952, may also have made its contribution. But it appears to us that it is still valid to say that there is saving in labour cost which increases progressively as production goes up and labour can therefore legitimately claim a progressively higher rate. Therefore, though the Appellate Tribunal 's second reason does not appear to have been clearly expressed, something like what we have said above must have been at the back of its mind when it decided to change the rate above 36,000 tons. There can be no doubt that the consideration we have 1030 set out above, will be valid to support the view taken by the Appellate Tribunal that there should be a change in the rate, though it may not necessarily support the actual change ordered by it. We must not forget that there was no collective bargaining resulting in an agreement between the union and the company so far as production above 36,000 tons is concerned as was the case so far as production upto 36,000 tons went. A case has, therefore, been made out for a change in the rate when production goes above 36,000 tons. The next question is whether the flat rate of two days ' basic wage for every 460 tons allowed by the Appellate Tribunal can be supported. Usually, when tonnage production bonus is worked out, the rates progressively increase. We may in this connection refer to the illustration given in " Payment by Results " published by the International Labour Office, Geneva, at p. 102. We think, therefore, that though there is a case for increasing the rate when production goes above 36,000 tons, it should be on a progressively in creasing system. The present scheme, as we have pointed out earlier, was evolved as an admittedly rough basis which was thought to be equitable. Following the same rough basis and using the same block of 6,000 tons with slabs of 460 tons, we think that on the data available at present, it would be fair to give progressive rates for production from over 36,000 tons up to 60,000 tons. We need not go beyond this for the present, and if production increases beyond 60,000 tons, the matter can be gone into again. We consider, therefore, that the rate should be changed as follows for production over 36,000 tons: 1 1/4 days ' basic wage on the same scale as is provided in the sebeme from 30,000 to 36,000 tons.1 1/2 days ' basic wage on the same conditions as above. 1 3/4 days ' basic wage do (i) From over 36,000 tons to 42,000 tons. (ii) From over 42,000 tons to 48,000 tons. (iii) From over 48,000 tons to 54,000 tons. 1031 (iv) From over 54,000 tons to 2 days ' basic wage do 60,000 tons. We therefore modify the change in the rate ordered by the Appellate Tribunal as above. The contention under this head is that though this. scheme is called a production bonus scheme, in reality it is no more than a profit bonus scheme; and therefore, the workmen are not entitled to any profit bonus worked out on the Full Bench formula referred to above in addition to what they get under this production bonus scheme. In this connection reliance is placed particularly on clauses (14) and (18) of the scheme. Let us therefore determine the true nature of the scheme. The scheme is headed " Tonnage Production Bonus Scheme " and not a scheme for profit bonus based on the Full Bench formula. It is true that this nomenclature is not decisive but is nevertheless a factor which may properly be taken into consideration. The primary and basic object of the scheme, as given in el. (2), is to stimulate the interests and endeavors of the clerks and workers of the company in increasing the production of saleable paper and to ensure that the workers will get by way of incentive an increased return for their labour contributing to the benefits which would accrue from such increased productivity. This again shows that this is a production bonus scheme and nothing else. Then comes cl. (4), which lays down that upto a minimum of 30,000 tons the bonus would be 13 days ' basic wage; thereafter there is increase of one day 's basic wage for every 460 tons till the figure of 26 days ' basic wage is reached for a total production of 36,000 tons. Here again there is no connection between profits and bonus that accrues under this clause. If, for example, pro duction falls below the minimum of 30,000 tons, there will be no bonus at all under the scheme whatever may be the profits. This one circumstance clearly brings out the true nature of this scheme, namely, that it is a scheme of production bonus and not of 1032 profit bonus under the Full Bench formula. That formula had nothing to do with production. Bonus tinder that formula depended entirely on the available surplus of profits worked out in the manner provided therein. Then we come to clause (14). That clause lays down that the scheme will be subject to one most important general exception, namely, that the profit earning capacity of the company, irrespective of the volume of production of saleable paper, remains satisfactory during the financial year. Accordingly the clause prescribes that the directors may at their sole discretion either cancel altogether or reduce in scale of monetary payments the bonus in any one or more financial years in which the gross profit earned by the company over the whole financial year is not sufficient to meet fixed dividends and interest, depreciation charges and taxation and thereafter pay for the whole year dividend not less than 10 per cent. to the ordinary shareholders of the company. It is said that this makes the scheme a profit bonus scheme. We are unable to agree with this contention. It is true that the scale of payment is likely to go down or there may even be no payment of bonus at all in the circumstances mentioned in cl. But the circumstances mentioned there are admittedly not the same which have to be taken into account in arriving at the available surplus according to the Full Bench Formula. Clause (14) appears to us to be just one condition upon which the payment of production bonus would depend, like some other clauses in the scheme. For example, cl. (5) seems to provide that workers who work for less than half the total number of working days in the financial year for which bonus is being paid, shall not get any bonus, for it only makes those workers who work for more than half the total number of working days, worked out according to other rules, entitled to bonus. Clause (6) says that certain kinds of workers will not be entitled to bonus, namely, Bungalow servants, Budli clerks or workers, temporary clerks or workers, casual workers or clerks. It also provides that any person guilty of any major misdemeanour may at the sole discretion of the Mill Manager or the 1033 Cost Accountant not be given this bonus either in part or in whole as a punishment, and that this would be done after taking proceedings in writing for the purpose. Clause (7) provides another condition as to what service will count towards earning bonus and what will not; for example, leave on full or part pay shall count as bonus service while leave without pay will not count as Qualifying service towards bonus. Again cl. (8) lays down that a worker will be entitled to the maximum bonus if he works for all the working days during the financial year, for which the bonus is declared. Clause (9) then provides how the maximum bonus can be reduced, if a worker does not work for all the working days. Clause (14) therefore is also another clause which may either lead to no payment of bonus or less payment than prescribed under cl. Further the fact that this is not a profit bonus scheme but a production bonus scheme will also be clear from what cl. (14) actually provides. It says that if the conditions mentioned in it are not fulfilled, the workers would riot be entitled to bonus or may get less. This means that if the conditions are fulfilled, workers would be entitled to bonus. Now, suppose, that the gross profit in a year is sufficient to meet fixed dividends and interest, depreciation charges and taxation and 10 percent. dividend to the ordinary shareholders. Theereafter the balance of profit left is Only (let us say) Rs. 5/ . But as the conditions of cl. (14) are fulfilled, the workers would be entitled to production bonus, though the amount of Rs. 5/ which remains, cannot possibly meet the claim of bonus. It is clear therefore that this bonus scheme is not the same as the profit bonus worked out under the Full Bench formula and it cannot be called a profit bonus scheme even other wise. This is nothing more nor less than a pure production bonus scheme based on tonnage, depending on certain conditions one of which is related to profits also. The nature of this bonus, therefore, in our opinion, is entirely different from the nature of profit bonus under the Fall Bench formula and we do not see why if there is an available surplus of profits 130 1034 according to the Pull Bench formula, the workmen should not get profit bonus in accordance with that formula. The two things, in our opinion, are different. Under the scheme what the workers get is a supplementary emolument worked out on certain basis. Under the Full Bench formula, what they get is something out of the profits, if there is an available surplus on the ground that both capital and labour contribute to the accrual of profits and it is only fair that labour should get a part of it. In this connection our attention was drawn to Mathuradas Kanji vs Labour Appellate Tribunal (1), where it was observed that " one of the categories of bonus is described as " incentive bonus ". The name indicates that it is given as a cash incentive to greater effort on the part of the labour. But the essential condition for the payment of incentive bonus just like any other kind of bonus, is that the industry concerned must earn profits part of which is due to the contribution which the workmen made in increasing production. " That was not a case of production bonus at all. The bonus dealt with there was included in an agreement between the government and its contractors in a contract relating to clearing and transporting of imported foodgrains. It was provided that if the rate of discharge from a ship exceeded 1,500 tons per 24 hours and no shed demurrage was incurred, the government would pay to the contractors remuneration at the prescribed rates plus a bonus of annas four per ton. The workmen employed by the contractors claimed that this bonus should be given to them. That claim was negatived on the ground that the workers could not claim, on the terms of the contract, that the bonus of annas four per ton was payable to them. These observations made in a different setting have therefore no relevance in the context of the production bonus scheme with which we are dealing here and which has become a term of employment of the workmen. As for el. (18), it provides that if during the currency of three years for which the scheme was to (1). A.I.R. 1035 remain in force in the first instance, the government en forced by legislation any scheme or provision for bonus or profit sharing, the company may decide to cancel or modify the scheme in its entirety. It is urged that this shows that the scheme was one for profit sharing or profit bonus, because it was likely to be cancelled or modified if legislation was introduced with respect to these. It may be that the scheme might have been cancelled or modified if such legislation was passed. But that does not mean that the scheme itself provided for profit sharing or profit bonus. It is one thing to cancel or modify a scheme because the legislature steps in to provide for extra payment for workmen. But the nature of the provision of law, which was then expected, cannot be imposed on this scheme, which must be judged on its own terms; these leave no doubt that it is not a profit bonus scheme but an incentive wage plan depending upon production in the main. The contention therefore that the bonus under the scheme is a profit bonus and therefore the workmen are not entitled to the profit bonus under the Full Bench formula must fail. The contention under this head is that even if profit bonus is payable in addition to production bonus, there was no available surplus of profits to justify the Appellate Tribunal in granting one month 's bonus. The workmen had asked for two month 's bonus; but the Appellate Tribunal after working out the available surplus on the basis of the Full Bench formula granted them one month 's bonus. The Full Bench formula was evolved in 1950 in connection with a case relating to the textile industry and has been since then generally applied to many other industries. The necessity for evolving that formula arose in this way: When prices. are stable or falling, there is no necessity of making further provision for rehabilitation for the usual depreciation, provided for the purposes of the Income tax Act, is sufficient to build up a fund for replacement of plant and machinery when they are worn out; but when prices are rising the usual depreciation fund is not enough to replace plant and 1036 machinery which become useless. This was particularly so after the end of the last war, when the question of replacing machinery purchased before the war, i.e., before 1939, came up before the Full Bench of the Labour Appellate Tribunal in 1950. In order, therefore, to meet this particular situation arising out of a steep rise in prices, the Full Bench formula was evolved to provide for a further sum for rehabilitation out of the profits besides the statutory depreciation. This was on a notional basis and depended upon a multiplier which was used to find out the current prices of machinery to be replaced and a divisor based on the useful life of the machinery to find out what sum should be provided each year for what was called rehabilitation. In order, however, that this sum nationally provided for rehabilitation each year has a realistic connection with the amount in fact necessary for the purpose, it is, in our opinion, necessary that what is known as the total block of a concern including land, buildings, plant and machinery, should be properly sub divided, as otherwise a flat multiplier at the same rate for the total block might not give an accurate amount to be provided for rehabilitation. It is, therefore, necessary in order to arrive at an approximately realistic figure for rehabilitation that the total block should be divided into three heads, namely, (i) land, (ii) buildings, railway sidings and things of that nature which have a much longer life and where imports are not needed, and (iii) machinery. In the case of land, no replacement is necessary and therefore nothing need be provided for rehabilitation under this head. Even where land is leasehold and the lease is expiring, any payment for renewal of lease will be an expense and need not enter into calculations for rehabilitation. Further if there are buildings belonging to the concern on leasehold land, their rehabilitation charge be will allowable under the head buildings. In the case of building, ,, railway sidings etc. , the multiplier will be smaller while the divisor will be larger. As for machinery, there is again the necessity of further sub division, according to when the machinery was purchased. The machinery purchased 1037 before the last war stands on one footing and thus there will be a block of machinery which may be know as pre 1939. The second block of machinery may well be that purchased during the war and the last block that purchased after the war. The last two are not rigid divisions; but they indicate that machinery has to be divided into blocks according to years of purchase to arrive at a correct multiplier and a correct divisor. Bearing these principles in mind, let us see how the Full Bench formula works in this case. We may mention that there is no dispute in this case as to the components of the formula, the only dispute being confined to its actual application. The company claimed a multiplier of 4.5 and a divisor of 10, and on that basis gave a chart showing a deficit of 112 lacs in the amount required for rehabilitation for 1951 52. Another chart was also filed by the company in which the multiplier was taken as 3.5 and the divisor as 10, and the deficit was worked out at 65 lacs. What the company did was to take the total block consisting of land, buildings, railway sidings and machinery, valued at 468 lacs and multiply it by 4.5 or 3.5, making no distinction between land, buildings and railway sidings, and machinery. The divisor was also taken as 10, making no distinction again between these three categories, and further making no distinction between the machinery purchased before 1939, during the last war and after the last war. This, in our opinion, was a completely unrealistic way of working out the amount required for rehabilitation, and that is why the company was able to show in its charts such a large deficit. The Appellate Tribunal did not accept these charts. It left out of account land altogether, and rightly so. As for buildings, it applied a different multiplier and a different divisor, and so far as that is concerned no dispute has been raised before us. As for machinery, consisting of plant, machinery, bamboo forest block, furniture, flotilla and vehicles, it divided the block for this purpose into two parts, namely, the block as it existed on April 1, 1947, and the additions made 1038 between April 1, 1947, to March 31, 1951. It applied a multiplier of 3 so far as the block upto April 1, 1947, was concerned and took the block of additions after 1 4 1947 at cost price, thus using one as multiplier. It is not clear why the Appellate Tribunal did not include the additions made in 1951 52. The Appellate Tribunal also accepted the divisor 10 for all this plant, machinery, etc., and made no difference between the useful life of the machinery purchased at different times. Eventually, after making the relevant calculations, it came to the conclusion that there was an available surplus of profits amounting to 22 lacs. It, therefore, awarded one month 's profit bonus on basic normal wage. It is contended on behalf of the company that evidence had been produced on its behalf to show that the prices of machinery had appreciated 4 1/2 times as compared to the prices in 1939, and therefore, the multiplier of 4.5 should have been allowed at least on the block of machinery up to 1939. Thereafter it is claimed that some multiplier above one should be given for the block 1939 1947 and also for the block 1947 51. It is further contended that the additions made in 1951 52 should also have been taken into account. It may be mentioned that the Labour Appellate Tribunal which evolved the Full Bench formula in 1950 had used the multiplier 2.7 in that case for prewar block and that multiplier has been used since then in many other cases. it is, however, contended on behalf of the company that multiplier is not sacrosanct, and if in fact there has been a greater rise in price, there is no reason why a higher multiplier should not be used. It may be accepted that if an employer is able to prove that in fact there has been a greater rise in price, he should be given a higher multiplier. But there has to be good proof tendered by the employer for the multiplier which he claims. Let us see, therefore, what proof the company has tendered in this case for a multipler of 4.5 for the block upto April 1, 1939. In its written statement the company said that it was a known fact that the 1039 price of plant and machinery had increased by 300 per cent. to 400 percent. since before the war. At that stage there was no claim that the price had increased 4 1/2 times after April 1, 1939. The company 's claim, therefore, as put in the written statement, was for a maximum multiplier of 4 for the block upto April 1, 1939. In the evidence of Mr. Taylor, who appeared as a witness for the company, however, claim was made that prices had gone up by 4 1/2 times. This was based on exhibit D produced by the company which was compiled on the basis of inquiries about certain machinery from certain firms and copies of the correspondence with the firms were also produced. Nineteen items were mentioned in exhibit D and the average multiplier was worked out as 4.56. Among the items listed in exhibit D were motors, beaters, machine drive, paper making machine, turbo alternator, couch roll, bamboo crushers, bamboo digesters, boiler, circular tanks and three roaster smelter units. The total price of these items was 19 lacs, (we have converted pounds into rupees for this purpose). Besides these, there are other items, like steam piping. , steam tee, galvanized bend and steam bends, which are probably required in large quantities and the price per foot or per piece has been mentioned. The correspondence which was attached to exhibit D consists of four letters, one of September 1954 and three of June 1955, relating to one paper making machine similar to one installed in Mill No. 2, a turbo alternator similar to one installed in Mill No. 1, a machine drive similar to one installed in Mill No. I and a boiler similar to one installed in Mill No. 1. Now, the cost of machinery block as at April 1, 1939, was of the order of 153 lacs while exhibit D only deals with machinery of the value of 19 lacs as mentioned above. Mr. Taylor did not say in his evidence that exhibit D was a sample and that other machines were of the same type as mentioned in exhibit D or that the prices of other machinery bad gone up similarly or to the same extent. D 1 to D 4 indicate that the price of one out of ten paper making machines was ascertained and nothing was ascertained about nine others. Similarly prices of one 1040 turbo alternator, one machine drive and one boiler of Mill No. I were ascertained. We do not know how many more such machines are in the two mills; nor do we know that the increase in prices of these types of machines is also four and a half times. In the circumstances, we feel that the company has failed to provide sufficient material on the basis of which it can claim 4.5 as the multiplier. It is the company which is claiming that a certain multiplier be used for calculating rehabilitation reserve, and it was its duty to produce good and sufficient evidence as to the correct multiplier if it wants that multiplier to be used. We cannot also forget that in its written statement the company only claimed a rise of 300 per cent. to 400 per cent. on prewar price. In the circumstances, the tribunal was not unjustified in not giving the multiplier of 4.5. We also feel that in these circumstances we shall not be justified in giving the company a multiplier higher than 4, for that was the maximum claim it had put forward in its written statement. We should, however, like to make it clear that though we are using the multiplier 4 for the block as at April 1, 1939, this should not be taken to be a precedent for future years, even for this company, and it will be open to either party to adduce proper evidence to show what the exact multiplier should be for this block, whether more than 4 or less. Then we come to the block from April 1, 1939 to March 31, 1947. The Tribunal gave the multiplier 3 for this block also. But that was because it gave the same multiplier for the entire block as at 1947, including the prewar block. As, however, we are giving a multiplier of 4 for the prewar block, the multiplier 3 for the block April 1, 1939 to March 31, 1947, can only be justified, if the company has proved that was the rise in the prices after 1939. So far as that is concerned, the company did not produce any evidence before the Industrial Tribunal. It seems, however, that certain documents were produced before the Appellate Tribunal on June 12, 1956, when the appeals were ready for argument. The order sheet of June 12, 1956, shows that the 1041 Appellate Tribunal allowed four statements regarding certain machines given by different, firms to be admitted into evidence. Learned counsel for the workmen object to our looking into these statements on the ground that they never knew that any such statements had been filed at the last moment before the Appellate Tribunal and nobody seems to have relied on these statements before the Appellate Tribunal and the judgment also makes no mention of them. There seems to be a good deal of force in these contentions. However, looking at these statements, which have been taken on record, we find that they relate to ten items. Four of them are of the years 1945 48 and the increase of price varies from 60 per cent. to 75 per cent. Two are of 1950 and the increase varies from 15 per cent. to 50 per cent. , three are of 1951 and the increase varies from 99.5 per cent. to 116 per cent. , and one is of 1954 and the increase is 60 per cent. The increased price is as of 1956. Even taking these documents into account, we feel that the company cannot ask for a multiplier higher than 2 for the block between 1939 1947. But even this will not be taken as a precedent for future and it will be open to either party to give better evidence in order to vary this multiplier one way or the other. As for the block after 1947, it appears that the company added machinery to the tune of 87 lacs between April 1, 1949 and March 31, 1952, while the prices quoted for the years 1950 and 1951 in these documents were only of machines worth 5 lacs. We do not know whether this machinery is of the same kind as that mentioned in these documents. They cannot, therefore, be a guide for arriving at any multiplier higher than one for this period relating to this block of 87 lacs. Here again we should like to make it clear that if in future years better evidence is produced, the question of giving a multiplier higher than I for this block can be considered. This disposes of the multipliers on the blocks of machines divided into three periods. We now come to the divisor. Both the Tribunals have accepted 10 131 1042 as the divisor on the evidence of Mr. Taylor. We must say that it looks odd to us that there should be the same divisor for pre 1939 machinery, and post 1939 but pre 1947 machinery, and post 1947 but pre1952 machinery. It stands to reason that newer the machinery the larger must be the divisor for the newer machinery would have a longer useful life. However, as both the Tribunals have accepted to as the divisor for the entire machinery in this case, we shall also have to accept it; but we should like to make it clear that this should also not be taken as a precedent for future years and it will be open to either party to show that the divisor should be different, whether more or less than 10, for various blocks of machinery relating to the three periods. Let us now work out the figures on the basis of the above considerations. We have taken the basic figures as supplied to us by the learned counsel for the company : REHABILITATIONCOST In lacsIn lacs of. Rs.of Rs. (a) Plant & machinery as153.43 x4 = 613.72 at 1 4 1939: Machinery added between22.41 x2 = 44.82 1 4 1939 and 31 3 1947: Additions between 87.27 x 1 = 87.27 1 4 1947 and 31 3 1952: Total745.81 Less 5% breakdown value. 13.15 Balance732.66 Less depreciation upto 31 3 1951176.03 Balance556.63 Less Reserves General Reserve25.49 Plant Replacement67.9893.47 Balance463.16 Dividing by 10.46.31 1043 (b) Buildings: Value of building 42.85 x 2.596.41 as at 31 3 47: Additions between 21.1921.19 1 4 47 and 31 3 52: Total 117.60 Less 5% breakdown 3.20 Balance 114.40 Less depreciation upto 47.21 31 3 1951: Balance 67.19 Dividing by 27 2.48 Rehabilitation for (a) Plant & Machinery 46.31 (b)Building 2.48 Total. 48.79 Less depreciation for 1951 52. 16.50 Balance 32.29 Rehabilitation Amount for 1951 52:32.29 Rehabilitation amount for 1951 52 thus comes to 32.29 lacs. In the charts supplied by the company the net profits after deducting prior charges other than rehabilitation cost were worked out air 36.09 lacs. We find, however, that there is one mistake in this calculation inasmuch as 76.3 lacs have been included in working capital, though this 'was merely a book entry and there was no cash corresponding to it. 4 per cent. interest was allowed on working capital and this would mean that the net profits should increase by 3.05 lacs as that interest was allowed extra in the company 's chart before the Appellate Tribunal. Thus the amount of net profits available, before the allowance of rehabilitation charges, comes to 39.14 lacs (36.09 + 3.05). Deducting 32.29 lacs we arrive at the available surplus of profits amounting to 6.85 lacs (39.14 32.29), which is to be distributed equitably between the three sharers mentioned in the 1044 very decision of the Labour Appellate Tribunal which evolved the formula. The total cost of one month 's bonus on basic wages allowed by the Appellate Tribunal is about 3 lacs. Taking all the circumstances of this case into consideration we do not think that any case has been made out for interference with this order of the Appellate Tribunal. We may point out that we have not taken into account bamboo mills and grass block for reasons given by the Appellate Tribunal, which commend themselves to us. This brings us to the appeal by the workmen. Only three points have been urged before us out of the many taken in the grounds of appeal, and we shall deal only with these three. They are (i). The minimum basic wage should have been raised from Rs. 30 to Rs. 35; (ii).Clerical staff as well as Buidl and temporary workers should have been included in the attendance bonus scheme; and (iii). .Profit bonus should have been allowed at two months ' basic wages for 1951 52 instead of one month 'section Re. Both the Tribunals have rejected the claim for raising the basic wage on the principle of " Industrycum Region Rate of Basic Wages ". The workmen relied on the wages paid in the Bengal Paper Mills Ltd. at Raniganj, which is also a paper making concern. The minimum basic wage there is Rs. 38 3, dearness allowance Rs. 35 and the incentive wage is said to work out to Rs. 7 5 6 per mensem, making the total Rs. 80 8 6. In the present company, minimum basic wave is Rs. 30; dearness allowance is Rs. 35; house allowance is Rs. 2; attendance bonus works out to Rs. 8 and production bonus is about Rs. 3, making a total of Rs. 78. It will thus be seen that the difference is not great. Further, if the production bonus and incentive wage are not taken into account, the present company pays Rs. 75 per mensem while the Raniganj company pays Rs. 73 3. In the circumstances, we see no reason for interfering with the concurrent order of the two Tribunals. 1045 Re. The Tribunals rejected the claim for extending the attendance bonus scheme to clerical staff, budli workers and temporary workers. They were of the view that these workmen stand on a different footing. For the clerical staff the reason given was that they enjoyed the advantage of the incremental scales which were till then denied to other categories of mill hands for whose benefit the attendance bonus scheme was introduced. As for the budli and temporary workers, the Tribunals said that the scheme could not be applied to them on account of uncertainty of the tenure of their service. So far as the budli and temporary workers are concerned, the reason given by the Tribunals for treating them differently appears to us to justify their being excluded. As to clerical staff, it appears from the correspondence which ensued between the union and the company on the introduction of attendance bonus scheme that the scheme was introduced primarily in connection with the installation of a time keeping office. The clerks are obviously in a different category from the workmen engaged in actual production. In the circumstances, apart from the considerations which were considered by the two Tribunals, there is, in our opinion, justification for treating clerks in a different way from other workmen. The company also told the union that so far as they knew no scheme of attendance bonus had ever been applied to clerks, probably because absenteeism among clerks is not so great as among other workmen. We see no reason, therefore, to disturb the concurrent finding of the two Tribunals in this matter. (iii). We have already worked out above the available surplus of profits, from which profit bonus can be given, The amount of available surplus comes to 6.85 lacs and one month 's basic wages, which have been allowed as profit bonus, come to about 3 lacs. The percentage therefore is already sufficiently high and if profit bonus is allowed at the rate of two months ' basic wages it will come to about 6 lacs and 1046 would be more or less equal to the entire available surplus. It is well settled that the available surplus has to be divided in a fair manner between the industry, the shareholders and the workmen. We cannot forget that the workmen have also got production bonus for this Year. In the circumstances, there is no scope for grant of any further profit bonus beyond that allowed by the Appellate Tribunal. We, therefore, partly allow the appeals of the company and vary the production bonus rate in the Manner indicated above. We dismiss the appeals of the company with respect to profit bonus. We also dismiss the appeal of the workmen. In view of the fact that the parties have partly succeeded and partly failed, we order them to bear their own costs of this court in all the appeals. Appeals Nos. 450 and 451 allowed in part. Appeal No. 514 dismissed. [/INST]A deed of trust was executed by the respondent on March II, 1938, when she was residing at D in the State of Bihar, in respect of the properties described in the Schedules referred to in the deed, some of which were situate outside the State of Bihar. In the trust deed she described herself as the settlor, and it was recited therein that the settlor had installed a deity named Iswar Srigopal in her house and had since been regularly worshiping and performing the puja of the said deity; and that she had been erecting a Nat Mandir to be named in memory of her deceased son. The recitals also showed that the settlor had provided for the construction of two temples (jugal Mandir), in one of which was to be installed the deity Srigopal and other deities, and in the other the marble image of, her preceptor and that the temple, committee shall consist of the, Jugal. Mandir shebait for the time being and six pious Hindus who must be residents. of D and of whom at least four shall be Begalis. One 76 602 of the clauses of the trust deed recited : "The ' pronamis ' and perquisites to be offered to the deities and image in the jugal Mandir shall form part of the Srimati Charusila Trust Estate and neither the shebait nor any one else shall have interest or claim in or over same. ,, The provisions of the trust deed in regard to the ceremonials relating to free distribution of food and water and the festivals to be performed for the deity and the image, which were well known festivals in which members of the Hindu Community usually take part, contemplated that they were to be done on a large scale so as to enable a large number of persons to take part in them. There was also a provision in the trust deed for the establishment of a hospital for Hindu females and a charitable dispensary for patients of any religion or creed. After the coming into force of the Bihar Hindu Religious Trusts Act, 1950, the President of Bihar State Board of Religious Trusts started proceedings under sections 59 and 70 Of the Act against the respondent in respect of the trust on the footing that it was a public trust to which the Act applied. The respondent made an application to the Patna High Court under article 226 of the Constitution in which she prayed that a writ or order be issued quashing the proceedings taken against her by the Bihar State Board of Religious Trusts on the grounds (I) that the trust deed dated March II, 1938, was a private endowment created for the worship of a family idol in which the public were not interested, (2) that the Act did not apply to private trusts, (3) that the Act was ultra vires the Constitution by reason of the circumstance that its several provisions interfered with her rights as a citizen guaranteed under Part III of the Constitution, and (4) that, in any case, the Act was not applicable to the trust deed in question as some of the properties were situate outside the State of Bihar. Held (1) that on its true construction the deed of trust dated March 11, 1938, created a religious and charitable trust of a public nature. Deoki Nandan vs Murlidar, ; , considered. In re Charusila Dasi, I.L.R. [1946] I Cal. 473, explained. One of the relevant considerations as to whether the trust was a public trust, will be if by the trust deed any right of worship has been given to the public or any, section of the public answering a particular description. (2) that the Act does not apply to private endowments. Mahant Ram Saroop Dasji vs section P. Sahi, [1959] SUPP. 2 S.C.R. 583, followed. (3) that the provisions of the Act do not take away or abridge any of the rights conferred by Part III of the Constitution. Mahant Moti Das vs section P. Sahi, [1959] Supp. 2 S.C.R. 563, followed. 603 (4) that section 3 of the Act makes the Act applicable to all public religious and charitable institutions within, the meaning of the definition clause in section 2(1) Of the Act, which are situate in the State of Bihar and any part of the property of which is in that State. (5) that where the trust is situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer the trust, and as the object of the Act is to provide for the better administration of Hindu Religious Trusts in the State of Bihar and for the protection of properties appertaining thereto, in respect of the property belonging to the trust outside the State the aim is sought to be achieved by exercising control over the trustees in Personam, and there is really no question of the Act having extra territorial operation. (6) that, in the present case, the circumstance that the temples where the deities were installed are situate in Bihar and that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu Public in Bihar, gives enough territorial connection to enable the legislature of Bihar to make a law with respect to such. trust. Tata Iron & Steel Co. Ltd. vs State of Bihar, [1958] S.C.R. 1355 and The State of Bombay vs R.M.D. Chamaybaugwala, (1957] S.C.R. 874, relied on. Saydar Gurdyal Singh vs The Rajah of Faridkote, (1894) L.R. 21 I.A. I71, distinguished. </s>

<s>[INST] Summarize the judgementil Appeal No. 1870 of 1968. (From the Judgment and Decree dated 6 3 1967 of the Bombay High Court (Nagpur Bench) in Appeal No. 101/59.) I. N. Shroff and H.S. Parihar, for the appellant. S.B. Wad and M.N. Shroff, for respondent No. 1. 556 A. section Bobde, G.L. Sanghi, V.K. Sanghi, Miss Rama Gupta and M.S. Gupta, for respondent No. 2. The Judgment of the Court was delivered by C.J. This appeal is by certificate from the judgment dated 6 March, 1967 of the High Court of Bombay. The appellant is the State of Madhya Pradesh. The first respondent is the State of Maharashtra. The second respondent is the plaintiff decree holder. They will be referred to, for short, as Madhya Pradesh, Maharashtra and the plaintiff. , The trial court passed a decree in favour of the plain tiff. It was declared that the order dated 9 January, 1954 of the suspension of the plaintiff as well as the. order of removal of the plaintiff from service passed on 2 February 1956 is illegal, void and inoperative. The further declara tion was that the: plaintiff shall be deemed to be continu ing in service from 16 September, 1943. A sum of Rs. 64, 588 2 0 was decreed in favour of the plaintiff and Bombay the predecessor of Maharashtra was ordered to. pay the same with interest. Both Madhya Pradesh and Maharashtra were ordered to pay costs to the plaintiff. Maharashtra preferred an appeal against the decree. Madhya Pradesh preferred objections against the order of costs. The High Court confirmed the decree and the declara tions. The High Court however modified the decree and held Madhya Pradesh liable. The claim of the plaintiff against Maharashtra was dismissed. The plaintiff was appointed Assistant Medical Officer in 1938. In 1939 he was appointed officiating Assistant Surgeon. He was posted at Elichpur (now Achalpur). In 1942 he was transferred to Hoshangabad. In 1943 he ap plied for medical leave for four months. The Civil Surgeon recommended leave for six weeks. The plaintiff again ap plied for leave in the month of August, 1943. The leave was sanctioned by the Civil Surgeon. The plaintiff then requested the Civil Surgeon in anticipation of sanction of leave by the Government for relief because he was not keep ing good health. The Civil Surgeon then reported to the Government that the plaintiff absented himself from duty from 10 August, 1943 without leave. The Government sanc tioned leave for six weeks. On 28 September, 1943 the plaintiff was suspended by an order with effect from 16 September, 1943. The plaintiff was served with a notice dated 30 September, 1943 to show cause why he: should not be dismissed from service. Four charges Were levelled against the plaintiff. First, that he refused to come to duty at the time of epi demic in August, 1943; Second, that he left his station without permission. Third, that he refused to attend the Departmental enquiry when ordered to do so. Fourth, that he wilfully and deliberately acted in total disregard of orders and absented himself from duty though he was declared to be fit to. resume duty. 557 The Enquiry Officer by report dated 22 February, 1945 gave his findings that the first charge was not proved; that the second charge was proved but mitigated and the third and the fourth charges were technically proved. On 21 June, 1945 the plaintiff was asked to show cause why he. should not be dismissed or reduced in rank. On 18 August, 1945 the Government of Central Provinces and Berar intimated to the plaintiff that the Government accepted the report of the Enquiry Officer and proposed to remove the plaintiff from service with effect from the date of the passing of the final order. By order dated 7 November, 1945 the Provincial Government passed an order removing the plaintiff from service with effect from that date. On 10 May, 1945 the plaintiff filed an appeal to the Governor but it was dismissed. On 6 January, 1949 the plaintiff filed a suit in the court of the Second Additional District Judge, Nagpur. By judgment dated 31 August, 1953 the District Judge held that the suspension order and the order of dismissal were illegal and declared the plaintiff to. be deemed to. continue in service. The plaintiff was thereafter reinstated in service aS Assistant Surgeon on 12 December, 1953. He was posted at Rays Hospital, Nagpur on 15 September, 1953. On 13 January, 1954 the plaintiff was again suspended from service under order dated 9 January, 1954. The plain tiff handed over charge on 13 January, 1954. On 1 February 1954 the plaintiff was served with a notice dated 29 Janu ary, 1954 to show cause why he should not be removed from service. The former report of the Enquiry Officer dated 22 February, 1945 was also given to the plaintiff. On 2 February, 1956 the plaintiff was removed from service. He appealed to the Governor. The appeal was dismissed. On 6 October, 1956 the plaintiff filed this suit in the court of the Joint Civil Judge, Nagpur against Madhya Pra desh and Maharashtra. The plaintiff asked for a declaration that the order dated 9 January, 1954 suspending the plain tiff as well as the order dated 2 February, 1956 is illegal. The plaintiff asked for a declaration that he is deemed to continue in service. He claimed recovery of Rs. 64,588 2 0 as arrears of salary. The plaintiff in his suit alleged that both Maharashtra and Madhya Pradesh are "liable to make good the plaintiff 's claim the liability for which is not exclusive but joint and several". The alternative case. of the plaintiff in the suit was that "if it will be held that the State of Maha rashtra and not the State of Madhya Pradesh is liable or viceversa the plaintiff will claim the decree ' against such State as would be liable". The Civil Judge passed the. decree on 25 April 1959 ' declaring: the order dated 9 January, 1954 suspending the plaintiff as well as the order dated 2 February, 1956 remov ing the plaintiff from service as illegal, void and inopera tive. The decree further stated that the 558 plaintiff was deemed to continue in service from 16 Septem ber, 1943. The Civil Judge passed a decree against the State of Bombay with the direction to pay Rs. 64,588 2 0 with 'interest at 6 per cent. Both Maharashtra and Madhya Pradesh went up in appeal. The Division Bench of the Bombay High Court placed the matter before a larger Bench and referred these two ques tions for the decision of the Larger Bench. (1) Whether in the events that have happened which of these two States of Maharashtra and Madhya Pradesh can be compelled to take the plaintiff in service. (2) Whether both or only one of the two States can be made liable for the payment of ar rears of salary of the plaintiff, if so, which State is liable. The larger Bench of the Bombay High Court said that the State of Madhya Pradesh is constituted after the States Reorganisation Act referred to as the Act came into. force on 1 November, 1956 is the principal successor State of the former State of Madhya Pradesh. The High Court further said that the State of Maharashtra is the successor State of the former Madhya Pradesh inasmuch as certain territo ries, namely, Vidharbha which formed part of the former St. ate of Madhya Pradesh became: a part of the new State of Maharashtra. The High Court then referred to. clause (B) of section 88 of the Act and said that Maharashtra would be liable for the claim of the plaintiff only if the cause of action has arisen in its entirety within the territories which formed part of Maharashtra, otherwise initial liabil ity for the plaintiff 's claim will be on the principal successor State Madhya Pradesh under section 88(c) of the Act. The larger Bench therefore referred the matter to the Division Bench to consider the question whether the cause of action for the plaintiff 's claim arose in its entirety within the territories which formed part of the Maharashtra. The High Court held that under section 88(c) of the Act Madhya Pradesh is responsible for the claim of the plain tiff. The High Court further held that the plaintiff was appointed under conditions of service Prescribed for him and accepted by him, and, therefore, the plaintiffs claim for arrears of salary would be governed by section 87 of the Act and not by section 88 of the Act. The High Court said that the plaintiffs claim for arrears of salary and allowance was based on contract, either express or implied, on the basis of the terms. of appointment and the conditions of service prescribed by the Government and accepted by the plaintiff. The High Court also said that at the time of the plaintiff 's appointment in 1939 the plaintiff 's services were available for the then entire Province of Central Provinces and Berar and not only for those districts which formed part of Madhya Pradesh. Therefore, the High Court said that section 87(b) of the Act would not apply. Under the residuary clause of section 87(c) of the Act Madhya Pradesh would be liable as the principal successor State because the purpose of the contract were as from the appointed day not exclusively purposes of any of the two successor States. Madhya Pradesh raised three contentions. First, the plaintiff did not claim salary and allowances for the period subsequent to 15 September, 1943 in the. suit filed by the. plaintiff in 1949 and was 559 therefore by reason of the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure precluded from claim ing the salary and allowances for the period of 16 Septem ber, 1943 to 31 August, 1953 in the second suit which was filed on 6 October, 1956. Second, the plaintiff 's claim in the second suit for salary and allowances prior to 6 October 1953 would be barred by the reason of Article 102 of the Limitation Act 1908. Third, the liability, if any, would be under section 88(b) of the Act of Maharashtra which succeeded the State of Madhya Pradesh on 1 November, 1956 in so far as Nagpur District of the then existing State of Madhya Pradesh was concerned. Reference was made to section 8(1) (c) of the Act for the purpose. Further it is said by the appellant that on or after 1 November, 1956 the plain tiff could continue the suit only against the State of Bombay later known as State of Maharashtra and not against the State of Madhya Pradesh as constituted on or after 1 November, 1956. Maharashtra contended that the liability was of Madhya Pradesh because of the provisions contained in section 88(c) of the Act. It was said on behalf of Maharashtra that the plaintiff had been appointed to service in Central Prov inces and Berar which became the principal successor State of Madhya Pradesh. The order of removal was also by the existing State which became the principal successor State of Madhya Pradesh. In order to appreciate the rival contentions reference is necessary to two sections of the Act. Section 87 speaks of liability in the case of contracts. 'Broadly stated, the provisions of section 87 of the Act are that where before the appointed day "1 November 1956" an existing State has made any contract in the exercise of 'its executive power for any purposes of the State, that contract shah be deemed to have been made in the exercise of the executive power (a) if there be only one successor States of the State; and (b) if there be two or more successor States and the purposes of the contract are,as from the appointed day, exclusively purposes of any one of them of that State; and (c) if there be two or more successor States and the purposes of the contract are,contract are, as from that day, not exclusively purposes of any one of them. of the principal successor State: and all rights and liabilities which have accrued or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilities of the existing State be rights or liabilities of the successor State or the principal succes sor State. The proviso to section 87 of the Act is that where the liability attaches under clause (c) the initial allocation of rights and liabilities made by this sub section shall be subject to such financial adjustment as may be agreed upon between all the successor States concerned, or in default of such agreement, as the central Government may by order direct. Section 88 of the Act provides that where before the appointed day, an existing State is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall (a) if there be only one successor State, be a liability of that State; (b) if 560 there be two or more successor ' States and the cause of action arose wholly within the territories which as from that day are the territories of one of them, be a liability of that successor State, and (c) in any other case, be initially a liability of the principal successor State, but subject to such financial adjustment as may be agreed upon between 'all the successor States concerned, of in default of such agreement, as the Central Government may by order direct. The claim for declaration that the order of suspension as welt as the order of dismissal was void is in respect of an actionable wrong other than breach of contract. In order to. determine as to which of the two States would be liable e under section 88 of the '. 1956 Act it has to be found out whether the cause of action arose wholly within the territories of one of the States or arose partly in the territories of one State and partly in the territo ries of the1 other. The departmental enquiry which was alleged to be illegal was held at Hoshangabad which has all along been a part of the State of Madhya Pradesh only. final orders which were challenged in the suit were passed at Nagpur which became part of the State of Bombay and later on known as Maharashtra. The plaintiff 's cause of action comprises of every fact which is necessary to be proved. The plaintiff based his claim with regard to de partmental enquiry which was held at Hoshangabad and also with regard to impugned order passed at Nagpur. The appel lant State is the principal successor State of the former State of Madhya Pradesh. Maharashtra was one of the succes sor States, like Madhya Pradesh. Section 88(a) of the 1956 Act in the present case has no .application because it speaks of only one successor State. Section 88(b) of the 1956 Act refers to the State. where the cause of action wholly arose within the territories of either of the. successor States. In the present case, it cannot be said that the cause of action arose wholly within the successor State of Maharashtra. Therefore, the residuary 'provision contained in section 88(c) of the 1956 Act applies and the liability is of the principal successor State, namely, Madhya Pradesh. The High Court was right in arriving at the conclusion that Madhya Pradesh is liable. The plaintiff 's suit in 1949 was only for setting aside the impugned orders. The plaintiff did not ask for relief for arrears of salary for the obvious reason that the plain tiff in the 1949 suit asked fox ' setting aside of the im pugned orders and an order that the plaintiff was deemed to be continuing in service. The plaintiff proceeded on the existing law as it stood by reason of the decision in High Commissioner for India vs 1. M. Lall(1). The Judicial Committee in that case held that a civil servant was not entitled to. sue the State for recovering arrears of salary and pay. Counsel for Madhya Pradesh relied on the decision in Province of Punjab vs Pandit Tara Chand (2) which held that a public servant had a right to bring a suit for ar rears .of pay. The decision of the Judicial Committee in Lall 's case (supra) takes a contrary view to the decision of the Federal Court in Pandit (1) 75 I.A. 225. (2) 561 Tara Chand 's case (supra). It it true that the decision of the Federal Court in Pandit Tara Chand 's case (supra) was not brought to the notice of the Privy Council. Under section 208 of the Government of India Act 1935 the law declared by the Judgment of the Privy Council had to be followed by all the Courts including the Federal Court. Therefore, the earlier decision of the Federal Court though not expressly overruled by the Judicial Committee must be deemed to have overruled by implication by the decision of the Judicial Committee in Lall 's case (supra). This Court in State of Bihar vs Abdul Majid(1) stated that a Government servant could ask for arrears of salary. Counsel for Madhya Pradesh said that the decision of this Court in Abdul Majid 's case (supra) declared what the exist ing law has been, and, therefore, the plaintiff could not contend that it was not open to him to ask for arrears of salary in the 1949 suit. It is in that background that Madhya Pradesh contends that the plaintiff not having asked for relief under Order 2 Rule 2 of the Code of Civil Proce dure would not be entitled to claim salary in the 1956 suit. The contention of Madhya Pradesh cannot be accepted. The plaintiff will be barred under Order 2 Rule 2 of the Code of Civil Procedure only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to. sue for that relief. It will not be correct to say that while the decision of the Judicial Committee in Lall 's case (supra) was holding the field the plaintiff could be said to know that he was yet entitled to make a claim for arrears of salary. On the contrary, it will be correct to say that he knew that he was not entitled to make such a claim. If at the date of the former suit the plain tiff is not aware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit. The reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in the subsequent suit. A right which a litigant does not know that he possesses or a right which is not in existence at the time of the first suit can hardly be regarded as a "portion of his claim" within the meaning of Order 2 Rule 2 of the Code of Civil Procedure. See Amant Bibi vs Imdad Husain(2). The crux of the matter is presence or lack of awareness of the right at the time of first suit. This Court in Om Prakash Gupta vs State of Uttar Pradesh(2) considered the prayer for refund of court fees on a claim which was abandoned. The plaintiff in that case asked for a declaration that the order of dismissal was void and also asked for arrears of salary or in the alternative damages for wrongful dismissal. In view of the decision in Lall 's case (supra) the plaint in that casewas amended by deleting the claim for arrears of salary and also for damages. The plaintiff thereupon praved for refund of the court fees which had been paid on arrears of salary for damages. Both the trial Court (1) (2) 15 I.A. 106, 112. (3) ; 562 and the High Court rejected the claim for refund of court fees. This Court also upheld the same view. The reason given by this Court was that at the time the suit was insti tuted the law as it then stood permitted such a claim to be made. The decision of the Privy Council made it clear that no such claim could be made. The decision of the Privy Council clarifying the position was held by this Court not to be a ground for refund of court fee which was paid in accordance with law as it then stood. The appellant Madhya Pradesh is, therefore, not right in contending that the plaintiff is barred by provisions con tained in Order 2 Rule 2 of the Code of Civil Procedure from asking for arrears of salary in the 1956 suit. The plain tiff could not have asked for " arrears of salary on the law as it then stood. The plaintiff did not know of or possess any such right. The plaintiff, therefore, cannot be said to have omitted to sue for any right. Another reason why the bar under Order 2 Rule 2 of the Code of Civil Procedure cannot operate is that the plain tiff 's cause of action in the 1956 suit is totally different from the cause of action in the 1949 suit. See Pavana Reena Saminathan vs Palaniappa(1). This Court in Jai Chand Sawhney vs Union of India (2) held that in a suit for setting aside the order of dismissal and for arrears of salary a claim for salary for the period prior to three years of the suit would be barred. The reason given is that when the order of dismissal is set aside the Government servant is deemed to be in service throughout the period during which the order of dismissal remains operative. Once an order of dismissal is declared bad it is held to be bad from the date of dismissal and salary would be due from the date when the dismissal order was bad. The same view has been taken by this Court in Sakal Dean Sahai Srivastava vs Union of India(3). In that case the plaintiff filed a suit on 27 November, 1962 for a declara tion that from 1 July, 1949 the date of illegal reversion up to 30 September, 1959 the date of his retirement he was a railway employee. Relying on the decision of this Court in Jai Chand Sawhney 's case and Sakal Deep 's case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years ' salary. The present case is not one of setting aside an order of dismissal simpliciter. When the plaintiff filed a suit in 1949 he could not ask for arrears of salary. Pursuant to the decree dated 30 August, 1953 in his favour he was reinstated on 12 December, 1953. Three features are to be borne in mind in appreciating the plaintiff 's case from the point of view of limitation. First the plaintiff became entitled to salary for the period 16 September, 1943 up to the date of rein statement on 12 December, 1953, only when pursuant to the decree dated 30 August, 1953 there was actual reinstatement of the plaintiff on 12 December, 1953. Second, the plain tiff was (1) I.A. 142. (2) (3) ; 563 again suspended on 19 January, 1954 and was dismissed on 23 February 1956. The Madhya Pradesh Government on 5 March, 1954 decided that during the period of first suspension till his reinstatement on 12 December, 1953 he was not entitled to salary. Again on 29 January, 1956 the Madhya Pradesh Government decided under Fundamental Rule 54(iii) that during the period of suspension from 16 September 1943 to 12 December 1953 and again from 19 January 1954 to 23 February 1956 he would not be entitled to any payment of allowances. On these facts two consequences arise in the present appeal. First, since the plaintiff was under suspension from 16 September, 1943 till 12 December, 1953 when he was rein stated and again suspended from 19 January, 1954 till 23 February, 1956 when he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953. Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53. Further decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fundamental Rule 54. Therefore, the plaintiff 's cause of action for salary for the period of suspension did not accrue until he was reinstated on 12 December, 1953. The plaintiff 's salary accrued only when he was reinstated as a result of the decree setting aside the orders of sus pension and of dismissal. The rulings of this Court in Jai Chand Sawhney 's case (supra) and Sakal Deep 's case (supra) do. not apply to the present appeal because there was no aspect of any suspen sion order remaining operative until the fact of rein statement pursuant to the decree. The plaintiff 's cause of action for arrears of salary is this. When the plaintiff was reinstated on 12 December, 1953 pursuant to the decree dated 30 August, 1953 the plain tiff became entitled to salary which was suspended during the period of suspension. _ The plaintiff was again suspend ed from 19 January, 1954 and he was dismissed from service on 23 February, 1956. Therefore, when the plaintiff filed the suit on 6 October, 1956 his entire claim for salary is founded first on his reinstatement on 12 December, 1953 pursuant to the decree and second on the order of suspen sion dated 19 January, 1954 and the order of dismissal on 23 February 1956 which the plaintiff challenged as illegal. The original order of suspension on 16 September, 1943 as welt as the original dismissal dated 7 November, 1945 was declared to be illegal by the decree dated 30 August, 1953. Therefore, when the plaintiff was reinstated on 12 December, 1953 it is then that the plaintiff 's claim for salary accrued due. This salary was again suspended from 19 January, 1954. Dismissal on 23 February, 1956 was at a time when the plaintiff was still under suspension. The order of suspension does not put an end to his service. Suspension merely suspends the claim to salary. During suspension there is suspension allowance. See Khem Chand vs Union of 2 112 SCI/77 564 India(1) where this Court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence allowance which is less than his salary. Under Fundamental Rule 52 'the pay and allowance of a Government servant who is dismissed or removed from service, cease from the date. of his dismissal or remov al. Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismiss al stand. The High Court was correct in the conclusion that the plaintiff 's claim for salary accrued due only on the order of dismissal dated 23 February, 1956 being set aside. For the foregoing reasons the appeal is dismissed. There will be costs only to the plaintiff respondent to be paid by the State of Madhya Pradesh. M .R. Appeal dismissed. [/INST]Dismissing the appeal, the Court, HELD: (1) A litigant will be barred under Order 2 Rule 2 of the C.P.C. only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief. A right which he does not know that he possesses or a right which is not in existence at the time of the first suit is not a "portion of his claim" within the meaning of Order 2 Rule 2 of the C.P.C. The crux of the matter is presence or lack of awareness of the right at the time of first suit. [561D E, 562 B] Amant Bibi vs Imdad Hussain 15 I.A. 106 at 112, applied. Om Prakash Gupta vs State of Uttar Pradesh ; , distinguished. High Commissioner for India vs I. M. Lall 75 I.A. 225; Province of Punjab vs Pandit Tara Chand ; State of Bihar vs Abdul Majid , referred to. The bar under Order 2 Rule 2 of the C P.C. cannot oper ate when the litigant 's cause of action in an earlier suit is totally different from the cause. of action in a later suit. [562 C] Pawana Reena Saminathan vs Palaniappa 41 I.A.142, applied. (2) During the period of suspension the plaintiff was not entitled to salary under Fundamental Rule 53. The cause of action for his salary for such period did not accrue until he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal. [563C D] Jai Chand Sawhney vs Union of India, and Sakal Dean Sahai Srivastava vs Union of India, ; , distinguished. (3) Under Fundamental Rule 52 the pay and allowance of a Government servant who is dismissed or removed from service, cease from the date of his dismissal or removal. Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismissal stand. [564 B C] Khem Chand vs Union of India, [1963] Supp 1 S.C.R. 229, followed. </s>

<s>[INST] Summarize the judgementAppeal No. 717 of 1973. Appeal by Special Leave from the Judgement and Order dated 27 10 1972 of the Allahabad High Court in Sales Tax Ref. No. 857/71. section Markandeya, for the Appellants. O. P. Verma, for the Respondent. The Judgment of the Court was delivered by SEN J. This is an appeal from a judgment of the Allahabad High Court dated October 27, 1972 which was given upon a reference of certain questions of law made to the High Court by the Additional Judge (Revisions), Sales Tax, Meerut in compliance with its directions under sub section (4) of section 11 of the U.P. Sales Tax Act, 1948 calling for a statement of the case. The two questions referred were as follows: 1. Whether there is no material in support of best judgment assessment ? 2. Whether on the facts and in the circumstances of this case the assessee acted in respect of the estimated purchase turnover of Rs. 3,80,000 as a dealer so as to be liable to purchase tax ? The Commissioner of Sales Tax submitted that the first question should be answered in the negative and the second in the affirmative. The High Court decided in favour of the assessee and against the Commissioner, holding that the submission of the assessee was right and answered both the questions to the contrary. From this decision the appellant, the Commissioner of Sales Tax, has appealed. The reference arose out of assessment for the assessment year 1967 68 of Messrs Bishamber Singh Layaq Ram which carries on business in jaggery, amchur, khandsari etc. on its own account and as kuccha arhatiya in jaggery, foodgrains etc. at Shahpur in the district of Muzaffarnagar, and is registered as a dealer under section 8 A of the Act (hereinafter referred to as 'the assessee '). The material facts may be stated as follows: During the assessment year in question, the Sales Tax Officer, Muzaffarnagar by his order dated December 27, 1968 rejected the account books of the 551 assessee on the basis of some discrepancies found during the four surveys carried out at his shop and made a best judgment assessment under sub section (3) of section 7 of the Act, determining the taxable turnover of purchases effected by it as a kutcha arhatiya at Rs. 5,30,000 and the tax payable thereon at Rs. 25,450. On appeal the Assistant Commissioner (Judicial), Sales Tax, Muzaffarnagar by his order dated August 11, 1969 reduced the taxable turnover of purchases by Rs. 1,50,000 and the tax by Rs. 7,500. There were two cross revisions by the Commissioner of Sales Tax and by the assessee, both of which were allowed by the Additional Judge (Revisions), Sales Tax, Meerut who by his order dated February 10, 1970 while negativing the plea of the assessee that he was not a dealer, however, felt that on the material on record, the taxable turnover of the assessee could not reasonably be determined at Rs. 3,80,000. He accordingly set aside the orders of the Assistant Commissioner (Judicial) and of the Sales Tax Officer and directed that there should be a fresh best judgment assessment. Upon reference, the High Court on question No. 2, as to the liability of the assessee to tax on transactions effected by it as kutcha arhatiya held that the assessee was not a dealer, observing: "If the assessee is a Kutcha Arhatiya then he is not liable to sales tax. The change in the definition of the word 'dealer ' in 1961 upon which the Judge (Revisions) has relied does not change the situation. A person can be liable to tax as a dealer only if he acts as an agent having the authority to pass title in the goods sold. A kutcha arhatiya merely brings together the seller and the purchaser and helps in settling the price and weighing the goods etc. The fact that he sometimes advances money to cultivators who bring their produce for sale or sometimes pays the entire sale price to the cultivator from his own pocket is not inconsistent with his being a kutcha arhatiya. " It was rightly contended on behalf of the Commissioner that the High Court was wrong in holding that the assessee was not a dealer within section 2(c) of the Act and that the Sales Tax Officer was not justified in making an assessment to the best of his judgment under section 7(3). It is pointed out that the High Court has completely overlooked Explanation to section 2(c) of the Act which was inserted by the U.P. Sales Tax (Amendment) Act, 1959, particularly the words 'through whom the goods are sold or purchased ' appearing therein. with regard to the applicability of section 7(3), it is urged that the question was not referred. 552 The finding arrived at by the High Court that the assessee as a kutcha arhatiya merely brought together the seller and the buyer charging an additional sum by way of commission and, therefore, could not be regarded as a dealer, i.e., a person engaged in the business of buying and selling goods, is contrary to the admitted facts of the case. The facts stated in the agreed statement of the case clearly show that the assessee is not a kutcha arhatiya, in the usual sense of the term, but his business brings into existence the relation of vendor and purchaser. The nature of the business carried on by the assessee is described thus: "Cultivators bring their produce to the assessee for sale. The goods are weighed at his shop and then supplied to the pucca arhatiyas or to other persons. Price of the commodity in full or part is paid by the assessee to the cultivators directly. The price from the purchasers is readied afterwards. In any case it is not the responsibility of the cultivators to realise the price from the purchasers. On the contrary, it is the assessee who is responsible for the payment of the price to the cultivators. Some times the cultivators are also paid advances and these are adjusted when the price of the produce is paid to the cultivators." (Emphasis supplied) The decision on the question whether the assessee is a dealer must turn on the construction of section 2(c), which insofar as material, reads: "2(c) "dealer" means any person or association of persons carrying on the business of buying or selling goods in Uttar Pradesh, whether for commission, remuneration or otherwise, Explanation: A factor, a broker, a commission agent or arhati, a del credere agent, an auctioneer, or any other mercantile agent by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of buying or selling goods on behalf of his principals, or through whom the goods are sold or purchased shall be deemed to be a dealer for the purposes of this Act. " There can be no doubt that a pucca arhatiya comes within the substantive part of the definition of 'dealer ' contained in section 2(c) of the Act, but the question still remains whether a kutcha arhatiya is covered by the definition, by reason of the Explanation thereto. The basic distinction between a kutcha and a pucca arhatiya is that a kutcha arhatiya acts as an agent on behalf of his constituent and never acts as a principal to him. The person with whom he enters into a transaction on behalf of his constituent is either brought into contact with the constituent or at least the constituent is informed of 553 the fact that the transaction has been entered into on his behalf with a particular person. But in the case of a pucca arhatiya, the agent makes himself liable upon the contract not only to third parties but also to his constituent. He does not inform his constituent as to the third party with whom he has entered into a contract on his behalf. Thus, a pucca arhatiya acts as a principal as regards his constituent and not as a disinterested middleman who brings about two principals together, there being no privity of contract between the constituent and the third party, and may substitute his own goods towards the contract made for the principal and buy the principals goods on his personal account. On the other hand a kutcha arhatiya usually denotes a person who merely 'brings together the buyer and the seller ' charging his commission, who has no dominion or control over the goods, unlike a pucca arhatiya who deals as a principal in relation to both his constituent and to the third party. The crucial test is whether the agent has any personal interest of his own when he enters into the transaction or whether that interest is limited to his commission agency charges and certain out of pocket expenses, and in the event of any loss his right to be indemnified by the principal. This principle was applied in the case of pakki arhat by Sir Lawrence Jenkins C.J. in Bhagwandas Narotmdas vs Kanji Deoji and approved of by the Judicial Committee in Bhagwandas Parasram vs Burjorji Ruttonji Bomanji and by this Court in Shivnarayan Kabra vs State of Madras. As to the incidents of pakkiarhat, Sir Lawrence Jenkins in Bhagwandas Narotamdas 's case succinctly states the legal position, in his own terse language: "A pakka adatia is not, in the proper sense of the word, an agent or even a del credere agent. The relation between him and his up country constituent is substantially one of principal and principal." In a commercial sense, a kutcha arhatiya acts as an agent on behalf of his constituent. The main characteristic of a kutcha arhatiya has been described by the Judicial Committee in Sobhagmal Gianmal vs Mukundchand Balia(4) in these terms: "When a katcha adatia enters into transactions under instructions from and on behalf of his up country constituent with a third party in Bombay, he makes privity of contract between the third party and the constituent, so that each becomes liable 554 to the other, but also he renders himself responsible on the contract to the third party. " Vivian Bose J. in Kalyanji Kuwarji vs Tirkaram Sheolal(1) puts the matter thus: "The test to my mind is this: does the commission agent when he sells have authority to sell in his own name? Has he authority in his own right to pass a valid title? If he has then he is acting as a principal vis a vis the purchasers and not merely as an agent and therefore from that point or he is a debtor of his erstwhile principal and not merely an agent. Whether this is so or not must of course depend upon the facts in each particular case. " It is plain, on an examination of the language as it stood at the material time, from the definition of 'dealer ' in section 2(c) that even a selling or purchasing agent is within that definition. A person to be a 'dealer ' under that definition must be engaged in the business of buying and selling goods in Uttar Pradesh whether for commission, remuneration or otherwise. Explanation to section 2(c) brought within the definition of 'dealer ' not only a commission agent, a factor, a del credere agent or any other mercantile agent by whatever name called, and whether of such description or not, but also a broker, an auctioneer as well as an arhatiya. The use of the words "through whom the goods are sold or purchased" in the Explanation is significant, and they must be given their due meaning. Thus, the definition of 'dealer ' in section 2(c) is wide enough to include a selling or purchasing agent of whatever name or description. The term 'arhatiya ' is wide enough to include a kutcha arhatiya. If the Explanation to section 2(c) of the Act were not there, perhaps it could be said that a kutcha arhatiya is merely an agent who helps cultivators who bring their produce to the market for sale, to find buyers, assist them in weighment and secure to them payment of price, but the assessee here certainly does not answer that description. That apart, the Explanation clearly brings within the definition of 'dealer ' in section 2(c) a kutcha arhatiya. It was not suggested at any time that the Explanation was ultra vires the State Legislature being beyond the ambit of Entry 54 of List II of the Seventh Schedule. The constitutional validity of a similar Explanation to section 2(c) of the Bengal Finance (Sales Tax) Act, 1941 which brought an auctioneer within the purview of the definition of 'dealer ' in that section. was upheld by this Court in Chowringhee Sales Bureau (P) Ltd. vs C.I.T., West Bengal.(2) The whole object is to tax a transaction of sale in the 555 hands of a person who carries on the business of selling goods and who has the legal or customary authority to sell goods belonging to the principal. It is evident from the statement of the case that the business carried on by the assessee was more or less similar to that of a pucca arhatiya and it is a misnomer to call it a kutcha arhatiya. It actually purchased the goods from the sellers, i.e., the cultivators, and then sold them in the market to the other buyers, as if they were its own, obviously at a profit. It paid to the cultivators the price of the goods it purchased and received from the buyers the price at which is sold. Selling of goods was not simultaneous with receiving them. These facts can lead to no other conclusion except that it bought and then sold goods and not merely brought buyers into contact with sellers and arranged transactions between them. In these circumstances, the High Court should have held the assessee to be a dealer under section 2(c) of the Act, read with the Explanation thereto. There remains the question whether the High Court was justified in holding that there was no basis for making a best judgment assessment. The Addl. Judge (Revisions) had remanded the case for a reassessment on the basis of best judgment, on his finding that there was no material whatever on record to enable him to come to a conclusion one way or the other, on the disputed question of fact, i.e., whether the best judgment assessment of the taxable turnover at Rs. 3,80,000 could be sustained. Though the question of the applicability of section 7(3) of the Act was not, in terms, referred to the High Court under section 11(4), the Addl. Judge (Revisions) in stating the case mentioned that the assessee had contended before him that his account books had been wrongly rejected. The statement of the case sets out the details of the various surveys made and the nature of the deficiencies found. The High Court treating the question referred to be a composite one, embarked upon an enquiry as to whether the Sales Tax Authorities were justified in rejecting the account books and in making the best judgment assessment under section 7(3). It has referred to the four surveys carried out on August 11, 1967, December 13, 1967, January 7, 1968 and March 8, 1968. In the first survey held on August 11, 1967 it was found that the Nagal Bahi had not been written for eleven days. The High Court observes that 'no adverse inference could be drawn on this account because the assessee 's explanation was that there were no cash transactions for this period, and, therefore, the Nagal Bahi had not been written '. With regard to the second survey carried out on December 13, 1967 it was discovered that there was 556 a loose parcha containing several entries. One of the entries of Rs. 371.17 in the name of Sakh Chand Udit Mohan alone was entered in the account books. That too on December 13, 1967 after inspection while the payment was actually made on December 11, 1967, i.e., it was not contemporaneous with the transaction. The High Court observes that 'it has not been found that any other entry contained in the loose parcha had not been entered in the account books ', With regard to the third survey carried out on January 7, 1968 when twelve bags of wheat were found in stock, the stock register was not shown to the surveying officer. The High Court has again accepted the explanation of the assessee saying that 'there was no duty cast on the assessee to produce the stock register and it was not shown since there was no demand for it '. It observes that 'there is nothing in section 13 or in any other provisions of the Act or the rules framed thereunder which requires a dealer to produce his books of accounts and other documents, before the surveying officer '. As regards the last survey held on March 8, 1968 the Mondhi Bahi was found to be posted upto February 29, 1968. Thus there were no entries for eight days. The explanation of the assessee was that it had not entered into any contract during the eight days in question. The High Court observes that 'as there was no material whatever for rejecting his explanation, no adverse inference could be drawn with regard to the veracity of the accounts, since Mondhi Bahi is not a necessary account book '. We are not inclined to agree with this line of reasoning. While we refrain from expressing any opinion on the requirements of section 13(2) of the Act, we are satisfied that the finding of the High Court that there was nothing wrong with the method of accounting adopted by the assessee cannot be upheld. In our opinion, the High Court should have declined to go into the question of the applicability of section 7(3) of the Act. When a question of law was neither raised before the Addl. Judge (Revisions) nor considered by him nor did it arise on the findings given by him, it will not be a question arising out of his order. The question as to whether the Sales Tax officer was justified in making a best judgment assessment under section 7(3) of the Act was not referred to the High Court. It was, therefore, not open to the High Court to go into the question. It could not allow the new point to be raised for the first time in reference. Nor was the High Court entitled on a reference under section 11(4) of the Act to set aside the finding of the Addl. Judge (Revisions) merely because on a reappraisal of the evidence it would have come to a contrary conclusion. It was also not entitled to examine whether the explanation of the assessee in regard to the deficiencies found in the account books 557 should or should not be accepted. It may be that the Sales Tax Authorities should have accepted the explanation of the assessee with regard to the aforesaid deficiencies, but it may as well be that there are various other deficiencies which the assessee will have still to explain. For all these reasons, the judgment of the High Court is set aside and that of the Addl. Judge (Revisions), Sales Tax Meerut remanding the case for a fresh judgment assessment under section 7(3) of the Act is restored. There shall be no order as to costs. N.V.K. Appeal allowed. [/INST]Section 2(c) of the U.P. Sales Tax Act, 1948 defines "dealer" to mean any person or association of persons carrying on the business of buying or selling goods in Uttar Pradesh whether for commission, remuneration or otherwise. By the U.P. Sales Tax (Amendment) Act, 1949 an Explanation was inserted in this section to provide that a factor, a broker, a commission agent or arhatiya, a del credere agent, an auctioneer, or any other mercantile agent by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of buying or selling goods on behalf of his principles, or through whom the goods are sold or purchased shall be deemed to be a dealer for the purposes of the Act. The respondent (assessee) who was registered as a dealer under section 8A was carrying on business in jaggery, amchur, khandsari etc. on its own account and as kutcha arhatiya. The nature of the business carried on by the assessee was that cultivators brought their produce to the assessee for sale. The goods were weighed at his shop and then supplied to the pucca arhatiyas or to other persons. Price of the commodity in full or part was paid by the assessee to the cultivators directly, and the price from the purchaser were realised after wards. During the assessment year 1967 68 the Sales Tax Officer by his assessment order rejected the account books of the assessee on the basis of some discrepancy found during the four surveys carried out at the shop and made a best judgment assessment under sub section (3) of section 7 of the Act, determining the taxable turnover of purchases effected by the assessee as a kutcha arhatiya at Rs. 5.3 lacs and taxed it. On appeal the Assistant Commissioner (Judicial), Sales Tax reduced the taxable turnover of purchase by Rs. 1.5 lacs. Cross revisions by the appellant as well as by the respondent were allowed by the Additional Judge (Revisions), Sales Tax who by his order negatived the plea of the assessee that he was not a dealer but held from the material on record that the taxable turnover of the assessee could not reasonably be determined at Rs. 3.8 lacs. The orders of the Assistant Commissioner (Judicial) and Sales Tax officer were set aside and a fresh best judgment assessment was directed to be made. 549 The High Court upon reference, as to the liability of the assessee to tax on the transactions effected by it as kutcha arhatiya held that the assessee was not a dealer. It further held that a person can be liable to tax as a dealer only if he acts as an agent having the authority to pass title in the goods sold, and that a kutcha arhatiya merely brought together the seller and the purchaser and helped in settling the price and weighment of the goods etc. In the appeal to this Court it was contended on behalf of the appellant, that the High Court was wrong in holding that the assessee was not a dealer within section 2(c) of the Act and that the High Court had completely overlooked the Explanation to section 2(c) which was inserted by the U.P. Sales Tax (Amendment) Act, 1959 particularly the words "through whom the goods are sold or purchased", and that the Sales Tax Officer was not justified in making an assessment to the best of his judgment under section 7(3). Allowing the appeal ^ HELD: 1(i) The finding arrived at by the High Court that the assessee as a kutcha arhatiya merely brought together the seller and the buyer charging an additional sum by way of commission and, therefore, could not be regarded as a dealer i.e. a person engaged in the business of buying and selling goods, is contrary to the admitted facts of the case. [551 H] (ii) Explanation to section 2(c) brought within the definition of 'dealer ' not only a commission agent, a factor, a del credere agent or any other mercantile agent by whatever name called, and whether of such description or not, but also a broker, an auctioneer as well as an arhatiya. [554 D] (iii) The definition of 'dealer ' in section 2(c) is wide enough to include selling or purchasing agent of whatever name or description. The term 'arhatiya ' is wide enough to include kutcha arhatiya. [554 E] (iv) The basic distinction between a kutcha and a pucca arhatiya is that a kutcha arhatiya acts as an agent on behalf of his constituent and never acts as a principal to him. A pucca arhatiya acts as a principal as regards his constituent and not as disinterested middleman who brings principals together, there being no privity of contract between the constituent and the third party. On the other hand a kutcha arhatiya usually denotes a person who merely 'brings together the buyer and seller ' charging his commission, who has no dominion or control over the goods unlike a pucca arhatiya who deals as a principal in relation to both his constituent and to the third party. In a commercial sense, a kutcha arhatiya acts as an agent on behalf of his constituent. [552 G 553 B, F] Bhagwandas Parasram vs Burjorji Ruttonji Bomanji, LR (1917 18) 45 IA 29, Shivnarayan Kabra vs State of Madras. ; , Sobhagmal Gianmal vs Mukundchand Balia, L.R. (1926) 53 I.A. 241, Chowringhee Sales Bureau (P) Ltd. vs C.I.T. West Bengal; , , referred to. 2(i) The High Court should have declined to go into the question of the applicability of section 7(3) of the Act. When a question of law was neither raised before the Addl. Judge (Revisions) nor considered by him nor did it arise on findings given by him, it will not be a question arising out of his order. [556 F] (ii) The question as to whether the Sales Tax Officer was justified in making a best judgment assessment under section 7(3) of the Act was not referred to the High Court. It was, therefore, not open to the High Court to go into the question. It could not allow the new point to be raised for the first time in reference. [556 G] 550 (iii) The High Court was also not entitled on a reference under section 11(4) of the Act to set aside the findings of the Addl. Judge (Revisions) merely because on a reappraisal of the evidence it would have come to a contrary conclusion. It was also not entitled to examine whether the explanation of the assessee in regard to the deficiencies found in the account books should or should not be accepted. [556 H] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 575 of 1970. From the Judgment and Decree dated 17 2 1966 of the Allahabad High Court in Special Appeal No. 92 of 1960. section section Javali and B. R. Aggarwal for the Appellant. R. K. Garg and V. J. Francis for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. Hulas Chand and Bilas Chand, original owners of a certain plot of land in Saharanpur, granted a permanent lease of the land to Patel Mills Ltd., in May, 1930. The annual rent 823 was Rs. 75/ . The lease was empowered to use the land for any purpose whatsoever. The rights of the lessee were expressly made transferable. Though the lease was permanent, there was a condition that the lessor could forfeit the lease if the lessee failed to pay rent for three consecutive years. On November 1, 1932 Hulas Chand and Bilas Chand transferred their interest to Budh Singh and Jialal. Jugal Kishore, became entitled to the rights of Budh Singh and Jialal by purchase under sale deeds dated April 17, 1943 and May 11, 1943. But, Shankerlal and Piareylal (present plaintiff) filed a suit for presumption against the vendors and Jugal Kishore and as a result of the decree passed in the suit, they became entitled to the lessor 's interest in the suit plot of land on August 13, 1945. Meanwhile the lessee Patel Mills went into liquidation and Mehra was appointed voluntary liquidator of the company on May 11, 1937 by a special resolution at a meeting of the creditors of the company. Benaras Bank Ltd., was the biggest creditor of the Company. So the liquidator negotiated the sale of all the assets of the Company to the Benaras Bank Ltd., for a sum of Rs. 70,000/ and on February 23, 1939 executed an agreement of sale after receiving the consideration. The lease hold interest in the suit plot was also included as one of the assets in the agreement of sale. As a meeting held on May 4, 1939 the creditors accepted the final report of the voluntary liquidator. The report was sent to the Registrar of Joint Stock Companies, and registered on September 9, 1939. The company thus stood dissolved with effect from December 9, 1939. Subsequently on March 1, 1940 the Benaras Bank Ltd, itself went into liquidation. The Official Liquidator of the Benaras Bank Ltd. found that there was no duly executed deed of transfer executed by the voluntary liquidator of the company in favour of the Benaras Bank Ltd. in respect of the lease hold interest in the suit plot of land. At the instance of the official liquidator of the bank, Shri Mehra the erstwhile voluntary liquidator of the company executed a deed of sale on January 28, 1941 and had it duly registered. On March 9, 1943 the official liquidator transferred the lease hold interest in the suit plot of land to the defendant appellant. We have mentioned that Patel Mills Ltd., stood dissolved with effect from December 9, 1939. Budh Singh and Jialal had earlier, i.e. on April 12, 1939, accepted rent from the voluntary liquidator of the company. After the dissolution of the company and the transfer of the lease hold interest by the voluntary liquidator to the Benaras Bank Ltd. Budh Singh and Jialal sent a notice dated January 11, 1941 to the liquidator of the Benaras Bank Ltd. through their lawyer demanding payment of arrears of rent for four years and asserting that the 15 91SCI/80 824 lease was forfeited consequent on the lessee 's failure to pay rent for a continuous period of three years. The liquidator denied the claim of right of the lessor to forfeit the lease but admitted the claim for rent. Rent was accordingly paid and was accepted by Budh Singh and Jialal. Later, on March 21, 1946, Jugal Kishore who had purchased the rights of Budh Singh and Jialal also accepted rent from the official liquidator of the Benaras Bank Ltd. Shankerlal and Piarey Lal who became entitled to the lessor 's interest in the suit plot of land as a result of the decree from pre emption which they obtained against Jugal Kishore and his vendors, filed the suit out of which the appeal arises to recover possession of the land. Their case was that the lease hold interest in the land was not validly transferred by the voluntary liquidator and therefore, the defendant acquired no right in the land. Several defences were raised. It was claimed that the voluntary liquidator had the authority in law to execute the deed of sale and formally complete a transaction which had already taken place. It was also claimed that the predecessors in the interest of the plaintiffs having accepted rent from the official liquidator of the bank, the plaintiffs were estopped from contending that the transfer in favour of the bank was not valid. Section 53A Transfer of Property Act was also invoked as a defence to the action of the plaintiffs. It was lastly pleaded that the plaintiffs had no right to sue for possession as the lease hold interest in the land had escheated to the Government on the dissolution of the Company. The suit was dismissed by the Trial Court. The judgment and decree of the Trial Court were affirmed by the 1st Appellate Court and a learned single Judge of the High Court in second appeal. The learned Single Judge found in favour of the defendant on the question of estopped, escheat and authority of the voluntary liquidator to execute the sale deed but found against the defendant on the applicability of section 53A of the Transfer of Property Act. On appeal by the plaintiffs under clause 10 of the Letters Patent a Division Bench of the High Court reversed the judgment and decree of the Subordinate Courts and decreed the suit. The Division Bench held that the voluntary liquidator had no authority to execute the deed of sale after the dissolution of the company and that there was neither estopped nor escheat. The Division Bench also held that section 53A of the Transfer of Property Act did not protect the defendant. The defendant has preferred this appeal after obtaining a certificate from the High Court under article 133(1)(b) of the Constitution. The submissions of Shri Javali learned counsel for the appellant on the question of applicability of section 53A of the Transfer of Property 825 Act and the authority of the voluntary liquidator after the dissolution of the company to execute the deed of sale may be easily disposed of. We do not think that section 53A of the Transfer of Property Act is attracted to the facts of the present case. The right under section 53A is available against the transferor (effecting the incomplete transfer) and any person claiming under him. It is difficult to understand how the successor in interest of a lessor can ever be said to a person claiming under a lessee making an incomplete transfer of the lease hold interest. Nor do we find force in the submission of the learned counsel that the voluntary liquidator had legal authority, after dissolution of the company to execute the deed of sale so as to formally complete the transaction which had already been entered into. Reliance was placed by the learned counsel for the appellant on the decision of Farwell, J., in Pulsford vs Demanish(1). In that case a liquidator was guilty of gross dereliction of duty. In the words of Farwell J., "A more gross dereliction of duty by a liquidator I have seldom heard of". Though in possession of sufficient assets of the liquidating company to pay all its debts in full the liquidator took no steps to ascertain the creditors of the liquidating company or to see that they were paid. Instead he sold the business and assets of the company to a purchasing company who covenanted to pay all the debts and liabilities of the liquidating company. The purchasing company did not pay the debts. The liquidating company was dissolved. The creditors had no remedy by which they could recover their debts. A creditor of the liquidating company sued the liquidator for recovery of damages. It was held that the liquidator was guilty of negligence in the discharge of his statutory duty and was liable in damages to the unpaid creditors of the liquidating company. What was decided in the case was not that a liquidator could represent the erstwhile company after it was dissolved but that a liquidator could be sued in damages for breach of a statutory duty which he had failed to perform while functioning as liquidator. We do not think that this case is of any assistance to the appellant. We are unable to appreciate how after the company was dissolved the liquidator could still claim to represent the company and execute a registered deed of sale. Once the company was dissolved it ceased to exist and the liquidator could not represent a non existing company. If the liquidator was to discharge any duty or perform any function on behalf of the dissolved company he should have express statutory authority. The Companies Act 1913 contained no provision enabling the liquidator to do any act on behalf of a dissolved company. section 209(H) of the Companies Act, 1913 enjoined the liquidator as soon as the affairs of the company were wound up to make up an account of the winding up and to call a gene 826 ral meeting of the company and a meeting of the creditors for the purpose of laying the accounts before the meetings. The liquidator was then required to send to the Registrar a copy of the account and to make a return to him of the holding of the meetings. The Registrar on receiving the accounts and the returns was required to register them an on the expiration of three months of registration the company was to be deemed as dissolved. The only duty cast upon the liquidator thereafter was that under section 244(B). It was that the liquidator should on the dissolution of the company pay into the Reserve Bank of India, to the credit of the Central Government in an account called the Companies Liquidation Account any money representing unclaimed dividend or any undistributed assets in his hands on the day of dissolution. No other duty was stipulated to be performed by the liquidator under the provisions of the Companies Act, 1913, after the dissolution of the company. We are, therefore, unable to agree with the submission of the learned counsel that the liquidator had the jurisdiction to execute the deed of sale dated January 28, 1941 after the company had been dissolved. The next question which we must consider is what was the effect of the dissolution of the company on the lease hold interest which the company had in the land. No term of the lease has been brought to our notice by which the lease would stand extinguished on the dissolution of the company. If the company had a subsisting interest in the lease on the date of dissolution such interest must necessarily vest in the Government by escheat or as bona vacantia. In India the law is well settled that the property of an intestate dying without leaving lawful heirs and the property of a dissolved Corporation passes to the Government by escheat or as bona vacantia. Of course such property will be subject to trusts and charges, if any, previously effecting its vide M/s. Pierce Leslie & Co. Ltd., vs Violat Ouchterlong Wapshare & Ors.(1). It is also to be noticed here that section 244(B) of the Companies Act 1913, as well as section 555(2) of the expressly enjoin a duty on the liquidator to deposit, on the dissolution of the company, into an account in the Reserve Bank of India known as the Companies Liquidation Account any money representing unpaid dividend or undisputed assets lying in his hands at the time of dissolution. The learned counsel for the appellant relied upon the decisions of the Allahabad High Court in Tulshi Ram Sahu & Anr. vs Gur Dayal Singh & Anr.(2) and Mussamat Ramman Bibi vs Mathura Prasad & Anr.(3). Both were cases of fixed rate tenancies. As pointed out 827 by the Full Bench in Tulsi Ram Sahu & Anr. vs Gur Dayal Singh & Anr.,(1) one of the incidents of a fixed rate tenancy was that provided by section 18 of the Agra Tenancy Act 1901 which prescribed that a right of occupancy would stand extinguished when a fixed rate tenant died leaving no heir entitled under the Act to inherit the right of occupancy. It followed therefrom that the land had to revert to the landlord and could not go to the Government by escheat. On the other hand in Sonet Kooer vs Himmat Bahadur & ors.(2). The Privy Council held that on the failure of heirs to a tenant holding land under Mukerrori Tenure there was nothing in the nature of the tenure which prevented the Crown from taking the Mukerrori by escheat, subject to the payment of rent to the Zamindar. If the lease hold interest of the company in the land became vested in the government on the dissolution of the company it must follow that the suit at the instance of the plaintiffs was not maintainable. The next question for consideration is whether the plaintiffs were estopped from denying the validity of the sale in favour of the Benaras Bank Ltd., and the character of the possession of the Benaras Bank. Ltd., and its successors in interest. As already mentioned by us Budhsingh and Jialal sent a notice dated January 11, 1941, through their lawyer demanding of the liquidator of the Benaras Bank Ltd., payment of arrears of rent for four years and asserting that the lease was forfeited consequent on the lessee 's failure to pay rent for a continuous period of three years. The liquidator denied the claim of right of the lessor to forfeit the lease but admitted the claim for rent. The liquidator paid the rent and it was accepted by Budh Singh and Jialal. Later also the evidence shows that Jugal Kishore the purchaser from Budh Singh and Jialal also accepted rent from the official liquidator of the Benaras Bank Ltd. This course of conduct of Budh Singh and Jialal and their successor Jugal Kishore clearly indicates the acceptance, by them, of the position that the Benaras Bank Ltd. had succeeded to the rights of the company in the lease hold interest. Further, the official liquidator of the Benaras Bank Ltd. said first tried to sell the lease hold interest by public auction. When that sale did not fructify because of the failure of the highest bidder to deposit the sale price, the lease hold interest was sold to the defendant with the sanction of the Company Judge. At no point of time did the predecessors in interest of the plaintiffs raise the slightest objection to the sale of the leas hold interest. It was thereafter that the defendant obtained the permission 828 of the Municipal Board, Saharanpur, and raised construction on the land. The plaintiffs themselves admittedly reside near about the land in dispute. They did not raise any objection to the raising of the constructions. The plaintiffs as well as the defendants appeared to proceed on the common understanding that the defendants had succeeded to the interest of Patel Mills Ltd., in the lease hold interest. We are, therefore, of the view that the plaintiffs were estopped from contending that the defendant had no interest in land. The amount only right of the plaintiffs was to receive the rent. The result of our discussion is that the appeal is allowed and the suit is dismissed with costs throughout. It is, however, made clear that the plaintiffs have the right to receive rent from the defendants. P.B.R. Appeal allowed. [/INST]The appellant was convicted and sentenced to two years ' imprisonment and fine of Rs. 2,000 and imprisonment for six months and fine of Rs. 500 for car lifting and scooter poaching. On the question of sentence. Allowing the appeals, ^ HELD : (a) The sentence of imprisonment is reduced to the extent of the period already undergone; but the sentences of fine and the alternative period of imprisonment in case of default are maintained. [865 H] (b) The long protracted litigation from 1971 onwards is some deterrent for a young man in his 20s. The youthful age of the offender is a factor which deserve consideration. A long period of incarceration may brutalise a boy and blunt his finer sensibilities so that the incarceration may perhaps be more criminal than the one at the point of entry. The offender having served a term of nearly six months must have realised that the game of crime does not pay. [864 D, 865 C] (c) Payment of fine brings home the sense of responsibility in a surer fashion than even short terms of imprisonment in some cases. [865 C] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 712 of 1972. From the Judgment and Order dated 21 2 1972 of the Allahabad High Court in Civil ' Misc. Writ No. 5271/71. 772 Civil Appeal Nos. 962 964 of 1972 From the Judgments and Orders dated 14 2 1972/21 2 1972 of the Allahabad High Court in Civil Writ No. 335/71, 4778/71, and 3334/71. Civil Appeal No. 1013 of 1972. From the Judgment and Order dated 14 2 1972 of the Allahabad High Court in Civil Misc. Writ No. 2791/71. Civil Appeal Nos. 1063 1065 of 1972. From the Judgment and Order dated 21/22 2 1972 of the Allahabad High Court in Civil Writ Nos. 572, 843 and 1169/72. Civil Appeal Nos. 1066 & 1067 of 1972. From the Judgment and Order dated 21/22nd Feb. 1972 of the Allahabad High Court in C.W. Nos. 5273/71 and 1170/72. Civil Appeal Nos. 1140 1142 of 1972. From the Judgment and order dated 29 3 1972/14 2 1972 and 21 2 1972 of the Allahabad High Court in Civil Misc. Writ Nos. 5064/71, 1801/71 and 5018/71. Civil Appeal No. 1160 of 1972. From the Judgment and order dated 18 4 1972 of the Allahabad High Court in Civil Misc. Writ No. 4223/71. Civil Appeal Nos. 1329 1330 of 1972. From the Judgment and order dated 18 4 1972 of the Allahabad High Court in Civil Misc. Writ Nos. 4587/71 and 4605/71. Civi] Appeal No. 1367 of 1972. From the Judgment and order dated 5 4 1972 of the Allahabad High Court in C.M.W. No. 2278/70. Civil Appeal No. 1405 of 1972. From the Judgment and order dated 14 2 1972 of the Allahabad High Court in Civil Misc. Writ No. 1803/71. Civil Appeal Nos. 1415 & 1598 of 1972. From the Judgment and order dated 14 2 1972 of the Allahabad High Court in Civil Misc. Writ No. 1802/71 & 3668/70. Shanti Bhushan (in C.A. 712) P.R. Mridul (in C.A. 962) P.N. Tiwari, K.J. John and J.S. Sinha for the Appellants in CA 773 712, 962 963, 1063 1069, 1140 1142, 1160, 1329, 1330 and 1598/72. Shanti Bhushan (in C.A. 409), O.P. Malhotra (in C.A. 1415) R.K.P. Shankar Das (1013 and 1409) H. K. Puri and V.K. Bahl for the appellants in CA 1013 and 1409 and 1415/72. Yogeshwar Prasad, Mrs. Rani Chhabra and Mrs. section Bagga for the Appellants in CA 1367/72. O. P. Rana and R. Ramachandran for the Respondents. The Judgment or the Court was delivered by KRISHNA IYER, J. This phalanx of appeals, over 200 strong, has stagnated for eight years and slowed down other disposals, which is unfortunate. We believe that the price of healthy justice from the highest Bench is eschewal of all but those cases which possess the twin attributes of (i) substantial question of law of general importance (ii) which needs to be decided by the Supreme Court itself, whether the jurisdiction be under Article 133, 134 or 136. Such being the jurisdictional dynamic of the Supreme Court, save in exceptional cases of appalling injustice, we hope the Bar will share this concern and avoid a breakdown for, truly, the question today is: To be or not to be. All these appeals spring from a common demand for tax by the State of Uttar Pradesh from a number of sugar mills on the purchase of sugarcane at a rate related by weight, not value, a pragmatic novelty in the sales tax pattern which has provoked an argument about its validity. Legal ingenuity, which rich mills, making common cause, could summon, spun out several constitutional and other challenges to the levy in the High Court, all of which became casualty when the Division Bench delivered judgment. Even so, the memoranda of appeals have set forth an imposing array of grounds of varying merit, all save three of which, by the wise husbandry of counsel, have been mercifully abandoned. The three survivors deserve no better fate but it behoves the court to state the triple challenges presented from various angles and ratiocinate at some length to reach the litigative terminus. One or two more minor matters, which figure in the debate at the bar, may, however, be noticed in the course of the stride. Far more facts and a fuller projection of the law may be in place here. We are concerned with a levy under the U.P. Sugarcane (Purchase Tax) Act, 1961, (for short, the Act). Sales tax, item 54 in the State List, was once described in the thirties by a far sighted Chief 774 Minister and nation builder, Sri C. Rajagopalachariar, as a Kamadhenu. True to his prescience, every State, today, relies heavily on this levy for which the common man eventually pays heavily. Uttar Pradesh, which grows sugarcane and runs sugar mills in the private sector, hit upon a tax on the purchase of cane by millers who manufactured sugar and Khandasari at differential rates, but it is a heritage from the thirties. A little legislative history, mixed with tentative inferences, illuminates the legal controversy since appellants ' counsel set much store by this as an auxiliary circumstance. A broad brush projection of the fiscal story and back ground economy may now be attempted, although we regret that no authoritative material, beyond what Can be culled from the High Court judgment, is forthcoming. We will make to with it although litigants, especially in the battle field of unconstitutionally, must produce the socio economic bio data of challenged legislation, explaining the 'how ', the 'why ' and 'why not ' of each clause lest lay minds, lost in legal tuning, should miss meaningful sound and social sense which experts may explain. Law cannot go it alone nor lawyers. Many Stales in India grow sugarcane, all of which, save negligible quantities, suffer crushing and its sucrose content is recovered as sugar, khandasari and, on a cottage industry basis, as gur. Andhra Pradesh, Bihar, Gujarat, Haryana, Kerala, Karnataka, Maharashtra, Madhya Pradesh, Punjab, Pondicherry, Tamil Nadu and Uttar Pradesh not only grow sugarcane but enjoy purchase tax, a majority of which levy By weight rather than on price. And we cannot lose sight of the All India impact when the law is laid down under Article 141. Judgments of this Court are decisional between litigants but declaratory for the nation. Sugar is an export item and, of course, is a daily necessary at home. Uttar Pradesh, according to the Report of the Tariff Commission on the cost Structure of the Sugar Industry and the Fair Price for Sugar (1969) has the heaviest concentration of sugar mills in the country but several of them are uneconomic and some sick. Modernization is a message lost on U.P. sugar, manufacture and the cane cultivator 's fortune hangs on the fluctuating prosperity of the marginal millers. The sugar and sugarcane economy is the victim of a variety of forces which add to the precariousness and poor efficiency of factories The area under cultivation recedes or expands with the decrease or increase of crushing by the factories and the misery of losses and instability of acreage under cane cultivation have played havoc with agriculturists. Dithering prices of sugar, export promotion as a policy, 'Levy ' of sugar to feed the poor and a number of other intricate economic facts 775 have made the fiscal manoeuvring a matter of expertise and social justice. While, on a pan Indian survey, wide variations in quality of cane and efficiency of mills may be found, within Uttar Pradesh, broadly speaking, the sucrose content differs but little and the percentage of recovery also is more or less the same or factories in the State save where the machinery effects efficiency. So much so, the price of sugarcane, usually decided by the Central Governments notification of minimum price, depends on its weight and sucrose recovery and, in practice, within a region both gravitate towards a common point. Moreover, the Uttar Pradesh sugar map reveals, as pointed out, by the High Court, that 'the more you crush, the more you produce; the more you produce, the more you earn. So the quantity of sugarcane crushed by a factory is an index of its earnings '. The relevance of this relationship between consumption of quantity by the mills, their sugar production and quantum of profits, to the question of tax incidence, its equity and equality will be taken up by us later on. Prima facie, there is a cane sucrose correlation for the State. Apart from it, the more the cane purchased, the more the profits spun; and the justice of fixing the tax tag on the weight of cane purchased argues itself. And what makes for just impost of the tax burden is the antithesis of arbitrariness. When the majority of the sugarcane States have imposed purchase tax by weight, net value, a reinforcement of sorts is added to this inference. The High Court observes, based on these data: "Prime facie, purchase tax by weight would ensure more stable revenue over the years than the purchase tax by the price of sugarcane, which rises and falls in a four years ' cycle". This statement has not been upset by any facts placed before the court and ipse dixits of counsel, sans data, are airy economics. Another market eccentricity must be noticed. Business cycles of boom and slump have been the bane of the sorry sugar and sugarcane story of that State, and fiscal policy to stabilise a wobbling market G economy has been presumably evolved thoughtfully. The Report we have referred to bears testimony to this cyclical factor and the High Court has drawn inferences therefrom. Let us view the inequity of the impost had it been related to the price of cane. The High Court gives some facts : "The price of sugarcane is, according to the Report of the Tariff Commission, determined by the law of supply and 776 demand in a particular year. Accordingly it may vary disproportionately in various regions of the State. One factory may pay more for the same quantity of sugarcane than the other. Indeed, the Basti Sugar Mills Company Limited has made that allegation. The Basti Sugar Mills Company Limited paid Rs. 7,00,000/ less than the Seksaria Sugar Mills Private Limited for the same quantity of sugarcane. If the quantity of sugar manufactured by them in that year is more or less the same, their earnings will be the same. So tax b. price would be more oppressive on the Seksaria Sugar Mills Private Limited. On the other hand, as tax is by weight, both of them would have paid the same amount of tax in that year. Neither of them could complain of unfair or inequitable incidence of taxation. Of course, stabilization or uniform fixation of cane prices is the annual endeavour of Central and State Governments and this reduces disparity among millers, except the factor of efficiency. Variations in cane transport costs ale minimized and taken care of by zoning purchases statutorily, and then weight price correlation becomes more stable and sober in practice that abstract arguments based on printed paper and flight of fancy may luridly suggest. The life of the law is real life, not little logic and the High Court 's deductions, though a lay exercise, cannot be faulted as fallacious by lay advocacy. Regrettably, we have no contrary statistics and the learned judges, have stressed this weakness. We agree with those observations and accept them since nothing urged before us has furnished factual contradiction of these premises: "The petitioners have not supplied for any period figures of actual prices paid by them, actual quantity of cane crushed by them, actual quantity of juice derived, actual quantity of sugar produced and their earnings. They have not tried to prove that the standard of price would be more just and equitable than the standard of weight for levy of purchase tax. From the meagre data gleaned from the Tariff Commission 's Report, it is not possible to take the view that tax by weight is unfair and inequitable. And Article 14 ensures to the citizen the basic principle on which rests justice under the law. It assures to the citizen the ideal of fairness (Corpus Juris Secundum Vol. XVI A p. 296). The petitioners have failed to discharge the heavy burden of proof". 777 Abstract submissions flung from imagination do not each the point of forensic take off, if we may add. Tentatively, subject to further examination, the conclusion of the High Court commends itself to us: "The incidence of purchase tax by weight appears to be more related to the earning capacity of the assessee than the incidence of tax by price of sugarcane". To clinch the issue, as it were, the High Court winds up: "The petitioners have not argued that the impugned provision is confiscatory in nature. I have already shown, that tax by weight has got fairer relation to the production of sugar by an earning of a factory than tax by price. Consequently, no one can fairly complain that the impugned provision treats unequals as equals. Equal crushing attracts equal tax. " We may comment by way of supplement that equal crushing means equal weight of cane. So cane quantity and tax liability roughly match and remove the fear of uneven imposts. Let us go back to pick up the threads, leaving this pertinent detour for a while. Sugarcane agriculture and sugar industry have been the cynosure of legislative attention at Central and State levels for long. We may start a rapid survey from 1932 when the Sugar Industry Protection Act, 1932 was put on the statute book. Its object was to foster and develop the sugar industry by protective tariffs. Then came the which empowered the Provincial Government to fix a floor price for sugarcane sold to sugar factories. This was followed by the U.P. Sugar Factories Control Act 39 .8, which replaced the earlier 1934 Act. Thus came into existence a statutory Sugarcane Control Board and a Cane Commissioner. Section 29(1) of this Act imposed a. sales tax on the sale of sugarcane. Sub section (3) provides for a cess on the entry or sugarcane into a local area. The necessity for the fostering legislative care of sugarcane cultivation and the imposition of a tax in this behalf is explained in the Statement of objects and Reasons to the Bill of. 1938: "The future of the sugar industry depends to a very large extent on a big drive for the improvement of cane cultivation and its planned production on a rational basis. To enable Government to carry out the necessary measures in this connection, which will involve considerable expenditure, and to take other steps conducive to the welfare of 778 the industry, cane growers and agriculturists generally, it is proposed to impose a tax upto a maximum limit of six pies a maund of the sale of sugarcane to a factory or a cess at the same rate on the entry of cane into a local area notified in this behalf for consumption, use or sale therein. " It is significant that 40 years ago the tax for the benefit of cane growers was linked up with weight. It is not as if a freak flash flit past the legislative mind of linking up purchase tax with weight of cane in 1961 only. Apparently, measure of tax by weight of stuff in the peculiar circumstances of sugarcane economy has been tested by time and metabolized into the consciousness of the affected Trade and the Administration. Be that as it may, the development of sugarcane cultivation was taken up on a systematic basis as per the statutory mandate. Both the tax and the cess contemplated by the 1938 Act went by the maund and although the cess was to be levied from the seller he was allowed to recover it from the purchaser. The 1938 Act gave place to the U.P. Sugarcane (Regulations of Supply and Purchase) Act, 1953, which created a scientific scheme, created a Fund, injected the concept of cane growers ' cooperatives and provided for levy of cess. The cess part of the Act was replaced by the U.P. Sugarcane Cess Act 1956. We must remember that by now the Government of India Act 1935 had ceased to exist and the Constitution of India had come vibrantly into being with the fundamental rights of Part III. The cess under the 1956 Act was attacked and fell victim to a constitutional challenge and this Court in Diamond Sugar Mills ' Case declared the Cess Act ultra vires. The consequence of this mortality was the incarnation of the U.P. Sugarcane Purchase Tax Act 1961 which is being impeached as ultra vires in these appeals. When cess failed, the State would have been constrained to refund nearly half a hundred crores of rupees. Validation by parliamentary legislation in conformity with the Constitution was, therefore, done. Eventually, the levy of a purchase tax was enacted into law by the U.P. Sugarcane (Purchase Tax) Act 1961 (referred to as the Act). In a fiscal sense, the Purchase Tax Act is a reincarnation of the Cess Act but, in a legislative sense, it is an independent statute with a different source of power, impact and structure. While the appellants have a case that this fiscal history substantiates their thesis that the present purchase tax is a disingenuous disguise, the State contends that its power to impose a purchase tax is well within List II, Entry 54. An appeal to history cannot impeach power. Plainly read, the Act, architectures 779 a, typical tax scheme, leviable at the purchase point with one difference, but we have been invited by Shri Shanti Bhushan, counsel for some of the appellants, to lift the veil, look at the true anatomy of the Act and discover the unseemly unconstitutionality in its bosom. Before we adventure into an assessment of the vulnerability of the provisions to the appellants ' artillery, we must project a picture af the impugned Act in its essentials, sufficient to appreciate the grievances and their constitutional merit, remembering the judicial limitation that where economic diagnostics and administrative pragmatics blend to produce a legislative outfit, restraint is prudence save where caprice compels. The saga of the Act having been chronicled, we may proceed to a dissection of the Act from the Constitutional angle. It is worth mentioning that Central and State Governments have been deeply concerned with the economic pros and cons of sugarcane and sugar. The Tariff Commission in its report gives much of the material relied on by the High Court. Indeed, when any legislation is assailed as arbitrary, unreasonable or otherwise unconstitutional one expects both sides not to assume the Court to be omniscient but to furnish the surrounding materials, statistical data and the compulsive factors which operated to provide the prescriptions in the legislation consistently with the imperatives of Part III. This statutory "intelligence" should be a necessary accompaniment to any litigative exercise where constitutionality depends on social facts. Orality unlimited and invitation into abstractions can hardly do duty for a methodical marshalling of meaningful facts. Anyway, we will discuss the merits of the contentions on the available materials supplemented by warrantable guesses, with a presumption in favour of constitutionality strengthened by the High Court 's affirmance since the principal attack is Article 14. Historically, the tax in question is a successor to the cess which was struck down, but jurisprudentially, the levies are different in character and attributes and constitutionally, the imposts derive from different legislative entries and have to be tested by different standards. In short, the Purchase Tax Act has to be judged on its own merits in the light of submissions of counsel. The anatomy of the Act, to the extent relevant, may now be envisaged. Section 3 is the charging section and creates a Liability on the purchase of sugar cane payable by a factory owner or a unit owner. The rate is one rupee 25 Paise per quintal and 50 Paise per quintal for factories and unit respectively. The taxing event is the purchase transaction by the owner of a factory or a unit. An option is provided for in the case of owners 780 of units to pay tax on an assumed quantity prescribed by Government. This is obviously to simplify and to benefit owners of Units who are presumably tiny producers of khandsari sugar. By definition, factories and units fall under different categories, the former being geared to manufacture of sugar by power, the latter being engaged in the production of Gur, Rab or Khandsari sugar in crushers driven by mechanical power. A classification based on scale of operations, product manufactured an other substantial differences bearing on production capacity, profits of business and ability to pay tax, is constitutionally valid and the feeble contention counsel put forward that there is discrimination between owners of factories and units must fail without much argument. Section 3A, intended to guard against escape of tax, ensures that the sugar produced out of the sugarcane transaction exigible to tax shall virtually stand security, if we may crudely express ourselves that way. The sugar produced in the factory shall not be removed until the tax levied under Section 3 is paid. Other detailed provisions calculated to safeguard the tax are also contained in Section 3A Provision for revision of assessment is contained in Section 3B. While fines and punishments for contraventions find a place in Section 8, remission of taxes is also provided for in Section 14 and comprehensive rule making power is vested in government under Section 15. Section 15(2) (F) (G) and (H), in particular, chase the sugar manufactured from the taxable sugarcane and empower Government to make rules to secure the sugar bags from leaving the factory premises until the liability of the State is discharged. To sum up, the scheme is simple and workable. Uttar Pradesh has a number of factories which manufacture sugar. There are quite a few units which, with less mechanisation, produce, out of raw sugarcane, less refined, perhaps more nutritious, end products like khandsari sugar gur or rab. These two classes are well established, their operations, economics and manufactures are different and the fiscal legislation in question classifies them as factories and units and imposes differential levies. The Act, by Sec. 3, imposes a rate of tax of 1 rupee 25 Paise per quintal of sugarcane purchased by a factory owner, the corresponding, rate for a 'unit ' being but 50 Paise. The charge is on the purchase transaction payable by the owner of the factory or 'unit 'on such date, at such place and in such installments as may be prescribed ' (Sec. ) Interest and penalty, appeal, prosecution and other consequential provisions find a place as usual but the basic challenge is to the charge of tax on three grounds. The charge is had, firstly, because, argues counsel, it is, in its true character, 781 a legislation in respect of a 'controlled industry ' and this power belongs exclusively to Parliament under Entry 53 of List I (VII Schedule). The next submission to shoot down the measure is that the Act, masked as purchase tax, in essence asks for an excise duty on sugar manufacture and is, therefore, invalid as colourable legislation, seeking to achieve, on the sly, what it dare not do straight. Surely, excise duty falls under Entry 54 of List I and the State Legislature cannot usurp that power. Even if the levy be a hybrid one, as Sri Malhotra made it out to be, it falls under Entry 97 of List I, out of bounds for the State Legislature. The final shot fired to bring down the fiscal levy on the score of ultra vires is from the customary barrel of Article 14. A multiprolonged attack, based on Article 14, was launched. The levy cast equal burdens on unequals and so was invalid on the ground of discrimination. A tax, by this canon, must be linked to price of canon, not its quantity, lest the millers be made to pay unevenly for two consignments of equal weight but unequal price. A refinement of the same argument was developed on the basis of the sugar output from the cane crushed. The sucrose content of sugarcane varies from cane to cane and, perhaps, from mill to mill and to lump them together quantitatively for a uniform impost is to turn the Nelson 's eye on the inter se inequality. Procrustean cruelty is anathema for the law where unequals are equalised into arbitrary conformity. Counsel submit that sucrose is the touchstone and where that content varies but the levy is standardized on the weight of cane the exaction must he outlawed under Articles 14 and 13 and even 19 (unreasonable). We reject all the three contentions and hold that the Act can parachute to safety despite the ineffectual artillery. For, as on Bubaivat, we 'heard great argument about it and about but evermore came out by the same door as in we 'went '. Let us anyway scan, the 'substantial points ' which have sojourned in this Court all these years awaiting a constitutional pronouncement. Incidentally, most of these pleas have been negatived by this Court on earlier occasions but phantom arguments often survive after death. Is the legislation ultra vires because the State enters the forbidden ground by enacting on controlled industry? It is undisputed that sugar industry is a controlled industry, within the meaning of Entry 52, List I of Schedule and, therefore, the legislative power of Parliament covers enactments with respect to industries having regard to Article 246(1) of the Constitution If the impugned legislation invades Entry 52 it must be repulsed by this Court. But entry 54 in List II 782 of the Seventh Schedule empowers the State to legislate for taxes on purchase of goods and so if the Act under consideration is attracted, in pith and substance, by this Entry legislative incompetence cannot void the Act. The primary question, which we have to pose to ourselves, is as to whether this State Purchase Tax Act is bad because it is a legislation with respect to a controlled industry, to wit, the sugar industry. What matters is not the name of the Act but its real nature, its pith and substance. The same problem demands our attention at a later stage in considering the contention that the levy under examination is, in a sense, an excise duty and not a purchase tax. We are somewhat surprised that the argument about the invalidity of the Act on the score that it is with respect to a 'controlled industry dies hard, despite the lethal decision of this Court in Ch. Tika Ramji 's case. Enlightened litigative policy in the country must accept as final the pronouncements of this Court by a Constitution Bench Unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong. Stare decisis is not a ritual of convenience but a rule with limited exceptions. Pronouncements by Constitution Benches should not be treated so cavalierly as to be revised frequently. We cannot devalue the decisions of this Court to brief ephemerality which recalls the opinion expressed by Justice Roberts of the U.S. Supreme Court in Smith vs Allwright "that adjudications of the Court were rapidly , gravitating 'into the same class as a restricted railroad ticket, good for this day and train only ' ". Let us examine the worth of the contention that the impugned legislation is one on a 'controlled industry ' and therefore out of bounds for the State legislature. Tika Ramji 's case (supra) deals with the identical question of 'controlled industry ' vis a vis a U.P. Legislation regulating sugarcane supply and purchase. Certain sugarcane growers of Uttar Pradesh assailed the vires of the U.P. Sugarcane (Regulations of Supply and Purchase) Act 1953. That statute reserved or assigned to sugar factories specified cane purchasing centres for the purpose. This regimentation of sugarcane growers and regulation of cane supplies to specified millers by a State enactment was attacked on the precise ground that sugar being, a 'controlled industry ' any enactment effecting such industry including the regulation of supplies of raw materials 783 thereto was taboo. The plea was dismissed as specious, and the appeals under our consideration are a fortiori case where the rejection of the contention can be more confidently made. N.H. Bhagwati, J., speaking for the Court traced the legislative history bearing on sugar and sugarcane. Reference was made to the Industries (Development and Regulation) Act 1951 which brought in as Item 8 of the First Schedule to the Act the industry engaged in the manufacture or production of sugar. The impugned legislative measures occasioned by the need to streamline the supplies of cane to factories. The law was designed to provide for a rational distribution of sugarcane to factories for its development on organised scientific lines to protect the interests of the cane growers and of the industry. The submission made there was that even though the impugned Act purported to legislate in regard to sugarcane required for use in sugar factories, it was, in pith and substance and in its true nature and effect, legislation in regard to sugar industry which had been declared by Act LXV of 1951 to be an industry under Entry 52 of List I. It was urged that the word 'industry ' was of wide import and included not merely manufacture but also the raw materials for the industry. The supply and Distribution of raw materials for the sugar industry were, therefore matters having a clear impact on the production of sugar. In this view, it was pleaded that sugarcane control vis a vis sugar factories was a colourable exercise of legislative power by the State trespassing upon ' the field of Entry 52 in List I. Tika Ramji 's case (supra) gave short shrift to the submission that all sugarcane legislation linked to sugar factories was sugar legislation. Bhagwati, J. Observed: "What we are concerned with here is not the wise construction to be put on the term 'industry ' as such but whether the raw materials of an industry which form an integral part of the process are within the topic of 'industry ' for which forms the subject matter of Item 52 of List I as ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in that topic and whether the Central Legislature while legislating upon sugar industry could, acting within the sphere of Entry 52 of List I, as well legislate upon sugarcane." The learned Judge stripped the argument naked and presented it for examination: "It was suggested that Item 52 of List I comprised not only legislation in regard to sugar industry but also in regard 784 to sugarcane which was an essential ingredient of the industrial process of the manufacture or production of sugar and was, therefore, ancillary to it and was covered within the topic. If legislation with regard to sugarcane thus came within the exclusive province of the Central Legislature, the Provincial Legislature was not entitled to legislate upon the same . The court was pressed to impart the widest amplitude to the topic 'industry ' and take within its wings ancillary matters lie raw materials of the industry . "It was, therefore, contended that the Legislation in regard to sugarcane should be considered as ancillary to the legislation in regard to sugar industry which is a controlled industry and comprised within Entry 52 of List I. ' The edifice of exclusive Parliamentary jurisdiction so built stood on shifting sands. The semantic sweep of Entry 52 did not come in the way of the State Legislature making laws on subjects within its sphere and not directly going to the heart of the industry itself. The key to the problem was furnished in Tika Ramji 's case (supra). After comparing the provisions of the U.P. Act there considered, which related to the regulation of sugarcane to factories and securing its price to the grower from the occupier of the factory even by checking the accounts relating to The manufacture of sugar, The Court clinched the issue thus: "This comparison goes to show that the impugned Act merely confined itself to the regulation of the supply and purchase of sugarcane required for use in sugar factories and did not concern itself at all with the controlling or licensing of the sugar factories, with the production or manufacture of sugar or with the trade and commerce in, and the production, supply and distribution of sugar. If that was so, there was no question whatever of its trenching upon the jurisdiction of the Centre in regard to sugar industry which was a controlled industry within Entry 52 of List I and the U.P. legislature had jurisdiction to enact the law with regard to sugarcane and had legislative competence to enact the impugned Act. " 785 Even the argument of repugnancy was repelled: "The pith and substance argument also cannot be imported here for the simple reason that, when both the Centre as well as the State Legislatures were operating in the concur rent field, there was no question of any trespass upon the exclusive jurisdiction vested in the Centre under Entry 52 of List I, the only question which survived being whether, putting both the pieces of legislation enacted by the Centre and the State Legislature together, there was any repugnancy . This Court further quoted Sulaiman, J. In Shyamakant Lal to lend strength to this latter limb of reasoning, where the learned Judge had laid down the principle of construction in; situations of apparent conflict: "When the question is whether a Provincial legislation is repugnant to all existing Indian Law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity, and every effort should be made to reconcile them and construe both so as to avoid their being repugnant to each other; and care should be taken to see whether the two do not really operate in different fields without encroachment. Further, repugnancy must exist in fact, and not depend merely on a possibility." Tika Ramji notwithstanding. the contention was advanced by Sri Shanti Bhushan that industry was a pervasive expression, ambient enough to embrace raw materials used for the industry and so, sugar industry, as a topic of legislation, vested in Parliament exclusive power to legislate on sugarcane supplies to sugar factories, and, pursuing this expansionist logic. any taxation on supplies of cane to mills would be legislation on sugar industry. Ergo the Purchase Tax Act was a usurpation by the U.P. Legislature breaching the dykes of article 26(1) read with entry 52 of List I. He expanded on the theme by urging that any legislation which affected the sugar industry by taxing its raw materials was one with respect to that industry. The Tika Ramji ratio is diametrically opposed to this reasoning and a ruling which has stood the field so long, has been followed by another Constitution 786 Bench as late as 1973 in the Kannan Devan case, and its force of logic has our deferential assent and cannot be brushed aside by a mere appeal for reconsideration. Shri Shanti Bhushan candidly conceded that if Tika Ramji were good law his submission was still born. We agree Industry as a legislative topic is of large and liberal import; true. But what peripherally affects cannot be confuse with what goes to the heart. An acquisition of land for sugar mills or of sugar mills may affect the industry but is not an action in the legislative field forbidden for the States. [See the Kannan Devan Hills Produce Company Ltd. case (supra) ]. Sales tax on raw materials going to a factory may affect the costing process or the manufacture but is not legislation on industrial process or allied matters. Indeed, if the State Legislature cannot go anywhere near measures which may affect topics reserved for Parliament a situation of reduction ad absurdum may be reached. The further refinement made by counsel that here was legislation confined to factories and units only, the other buyers of sugarcane being left out, and that therefore the Act was in intent and effect one with respect to the sugar industry has no substance either. For one thing, the bulk of the consumption of sugarcane was by factories and khandsari units only and the omission of trivial consumers did not mean that the legislation was not on sugarcane purchases generally. Secondly, it was open to the Legislature to make an intelligent choice of the persons on whom the tax should be imposed. Here, the bulk consumers were selected and the marginal buyers omitted. We discern nothing in this policy which legislates upon the sugar industry. Before we move on to the submission as to the nature of the levy being an excise duty, we may dispose of the little contention on alleged discrimination between sugar factories and khandsari units by the imp post of differential rates of tax and more serious contention founded on the breach of Article 14 to the effect that when a purchase tax liability is computed by the weight of the case, as distinguished from its monetary value, there is an inevitable arbitrariness built into the texture of the Scheme. If either of these submissions has substance, the tax in question must fall to the forces of Articles 14, 19 and 13, especially article 14, article 19 coming in only consequentially or where expropriation ensues. Article 14, a great right by any canon, by its promiscuous forensic misuse, despite the Dalmia decision has given the impression of being 787 the last sanctuary of losing litigants. In present case, the levy which is uniform on all sugarcane purchases, is attacked as ultra vires, on the score that the sucrose content of various consignments may vary from place to place, the range of variation being of the order of 8 to 10 per cent and yet a uniform levy by weight on these unequals is sanctioned by the Act. Price of cane is commended as the only permissible criterion for purchase tax. The whole case is given away by the very circumstance that, substantially, the sucrose content is the same for sugarcane in the State, the marginal difference being too inconsequential to build a case of discrimination or is blamable on the old machinery. Neither in intent nor in effect is there any discriminatory treatment discernible to the constitutional eye. Price is surely a safe guide but other methods are not necessarily vocational. It depends, practical considerations of the Administration, traditional practices in the Trade, other economic pros and cons enter the verdict but, after a judicial generosity is extended to the legislative wisdom, if there is writ on the status perversity, 'madness ' in the method or gross disparity, judicial credulity may snap and the measure may meet with its funeral. Even so, taxing statutes have enjoyed more judicial indulgence This Court has uniformly held that classification for taxation and the application of Article 14, in that context, must be viewed liberally, not meticulously. We must always remember that while the executive and legislative branches are subject to judicial restraint, "the only check upon our exercise of power is our own sense of self restraint. " In the Murthy Match Works case, this Court observed: "Certain principles which bear upon classification may be mentioned here. It is true that a Ste may classify persons and objects for the purpose of legislation and pass laws for the purpose of obtaining revenue or other objects. Every differentiation is not a discrimination. But classification can be sustained only if it is founded on pertinent and real differences as distinguished from irrelevant and artificial ones. The constitutional standard by which the sufficiency of the differentia which form a valid basis for classification may be measured, has been repeatedly stated by the courts. If it rests on a difference which bears a fair and just relation to the object for which it is proposed it is constitutional. To put it differently, the means must have nexus with the ends. Even so, a large latitude is allowed to the State for classification upon: a reasonable basis and what is reasonable 788 is a question of practical details and a variety of factors which the court will be relucant and perhaps ill equipped to investigate. In this imperfect world perfection even in grouping is an ambition hardly even accomplished. In this context, we have to remember the relationship between the legislative and judicial departments of government in the determination of the validity of classification. Of course, in the last analysis courts possess the power to pronounce on the constitutionality of the acts of the other branches whether a classification is based upon substantial differences or is arbitrary, fanciful and consequently illegal. At the same time, the question of classification is primarily for legislative judgment and ordinarily does not become a judicial question. A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the judicature cannot rush in where even the legislature varily treads. " The further challenge must be clarified here. Counsel submitted that unequals were being treated equally by a uniform purchase tax where equality would have dictated classification and taxation based on sucrose recovery from the cane or its market price. Even here, we may notice the observations in Murthy Match Works (supra). Another proposition which is equally settled is that merely because there is room for classification it does not follow that legislation without classification is always unconstitutional. The court cannot strike down a law because it has not made the classification which commends to the court as proper. How can the legislative power be said to have been unconstitutionally exercised because within the class a sub classification was reasonable but has not been made. It is well established that the modern State, in exercising its sovereign powers of taxation, has to deal with complex factors relating to the objects to be taxed, the quantum to be levied, the conditions subject to which the levy has to be made, the social and economic policies which the tax is designed to subserve, and what not. In the famous words of Holmes, J. in Bain Peanut Co. vs Finson: 'We must remember that the machinery of Government would not work if it were not allowed a little play in its joints. " 789 It is well established that classification is primarily for the legislature and becomes a judicial issue only when the legislation bears on its bosom obvious condemnation by way of caprice or irrationality. We have discussed earlier the history of legislative control, the imposition of tax or cess by weight of cane and the acceptance of that methodology all through the decades without demur by the Trade. Moreover, this Court has negatived an identical argument in a case from Andhra Pradesh (where also a similar levy based on weight of sugarcane is extent) in Andhra Sugar Ltd. Anr. etc. vs State of Andhra Pradesh & ors.(l) The Court there observed: "Mr. Setalvad submitted that there can be no levy of a purchase tax with reference to the tonnage of the cane. We cannot accept this contention. Usually the purchase tax is levied with reference to the price of the goods. But the legislature is competent to levy the tax with reference to the weight of the goods purchased. The contention of Mr. Chatterjee that a purchase tax must be levied with reference to the turnover only is equally devoid of merit. Where the purchase tax is levied on a dealer, the levy is usually with reference to his turnover, which normally means the aggregate of the amounts of purchase prices. But the tax need not necessarily be levied on a dealer or by reference to his turnover. It may be levied on the occupier of a factory by reference to the weight of the goods purchased by him. " Maybe the discussion is brief but the conclusion is sound, and we concur. Tax on sale or purchase must be on the occurrence of a taxing event of sale transaction. Beyond that is left to the free play of the legislature, subject, of course, to the contra indications about capricious, arbitrary or irrational features. It is a superstition, cultivated by familiarity, to consider that all sales tax must necessarily have nexus with the price of the commodity. Of course, price as basis is not only usual but also safe to avoid uneven, unequal burdens, although it is conceivable that a legislature can regard prices which fluctuate frequently, as too impractical to tailor the purchase tax. It may even be, in rare cases, iniquitous to link purchase tax with price, if more sensible bases can be found. Supposing a legislature classifies sales tax on the basis of human categories and reduces the rate or exempts the tax in respect of abject destitutes, or starving flood 790 victims or notoriously hazardous habitations, with respect to necessity of life. Such differentiation cannot be castigated as discrimination out of hand. Of course, it is common and commonsense that reliable standard is the price, although in regard to customs duties there are still items levied on the nature of the goods rather than its value in money. For the present, it is sufficient to state that the practice has been to impose purchase tax by weight of cane. Also, in weight of cane its sucrose content and its price have a close nexus, although, theoretically, they may appear unconnected. The High Court has stated that the quantity crushed, the sugar produced and the profits earned, have a substantial linkage. The quality of cane over the whole of Uttar Pradesh varies over a range of 8 to 10 per cent which, if converted to purchase tax, may inflict a trivial difference per quintal Moreover, for many years past the bulk of the sugar has been absorbed by 'levy ' by the State and in the costing components the State, as buyer of sugar, has borne the burnt. We have no facts to hold that arbitrary or various burdens are cast because weight, not price, has been the yardstick for tax. Fine tuning to attain perfect equality may be a fiscal ideal but, in the rough and tumble of work a day economics, the practical is preferred to the ideal, provided glaring caprice of gross disparity does not make the levy arbitrary or frolicsome. Article 14 is not intellectual chess unrelated to actual impact or the wear and tear of life but even handed justice with some play in the joints. Sri Mridul, one of the advocates appearing for the appellants, made a naive presentation that equality is inflexible as enshrined in Article 14 and so the differential in rate of tax as between sugar mills arid khandsari units is bad. The plea that infants and adults, weeklings and strongmen, paupers and princes should be put on a par lest legislative validity be imperilled has an elitist merit but sounds like an argumentum ad absurdum in the context of social justice. Unequals cannot be treated equally since mechanical uniformity may become unmitigated injustice. Khandsari units are cottage industries unlike sugar factories and need legislative succour for survival. Their economy justifies State action, classifying them as apart from factories and we fail to appreciate the flaw in the scheme on this score. Reference to K. T. Moopil Nair 's case was made at the bar to persuade us that unequals cannot be tortured into equality a vice which stultifies the soul of Article 14 as Anatole France exposed in his sardom epigram that 'the law, in its majestic equality, forbids the 791 rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread '. We are sure that equality has two sides, both important, and Moopil Nair adverted to one of the facets. Nothing more can be squeezed out of that case. The inequality of situation, in the total conspectus of socio economic facts and human condition, must be striking and the unjust equality the rule forces down on unequals must be glaring. In taxation, the many criteria of intrinsic intricacy and pragmatic plurality persuade the Court, as a realist instrument and respecter of the other two branches, to allow considerable free play although never any! play for caprice, mala fides or cruel recklessness in intent and effect Sri Malhotra, counsel for some appellants, explored beyond Sri Shanti Bhushan, the 'excise ' argument in detail, read to us several sections and rules which enables the tax authorities to keep effective track of and control over the sugar in the factories to the extent needed for recovery of the tax. Nothing in these provisions regulates or controls the industry itself nor exacts any levy on the manufacture of sugar or its wide ramifications. Nothing more than prevention of escapement of purchase tax on cane is done and what is done is legitimately incidental to the taxing power. Peripheral similarity between purchase tax and excise levy does not spell essential sameness. Sugarcane tax operates in the neighbourhood of sugar excise but proximity is not identity. The tax is only on purchase of cane, not its conversion into sugar. If the miller has his own cane farm and crushes it, he his no purchase tax to pay but cannot escape excise duty, if any. Again, if cane is purchased by a miller and it is later robbed or destroyed before sugar is manufactured, the State tax is exigible although excise on production is not. A perspicacious appreciation of the implications of purchase and production. dispels confusion on this issue. To buy raw produce is a step preliminary to manufacture but is not part of manufacture. Maybe, in some cases tax on such purchase and duty on manufacture therewith are so close that thin 'partition do their bounds divide ' but how can we obliterate those bounds and telescope the two ? All the appeals deserve to be and are dismissed with costs, one set. [/INST]These appeals arise from a common demand for tax by the State from a number of Sugar Mills on the purchase of Sugarcane at a rate regulated by weight and not on value. The Cess under the U.P. Sugarcane Cess Act, 1956 was declared ultra vires which resulted in the enactment of Sugarcane Purchase Tax Act, 1961. In a fiscal sense, the Purchase Tax Act, is a reincarnation of the Cess Act, but in a legislative sense, it is an independent statute with a different source of power, impact and structure. The tax in question is a successor to the Cess which was struck down but jurisprudentially, the levies are different in character and attributes and constitutionally the imposts derive from different legislative entities and have to be tested by different standards. The Act by Section 3 imposes a rate of tax at the rate of Rs. 1.25 paise per quintal of sugarcane purchased by a factory owner, the corresponding rate for a "unit" being paise 50. Under Section 3(2) of the Act, the charge is on the purchase transaction payable by the owner of the factory or unit "on such date" at such place and in such instalment as may be prescribed. The appellant had challenged the charge of tax. The High Court dismissed the Writ Petition on the ground that the petitioners have not supplied for any period figures of actual prices paid by them, actual quantity of cane crushed, actual quantity of juice derived, actual quantity of sugar produced and their earnings and, therefore, it was not possible to take the view that tax by weight was unfair and inequitable. The High Court further held that tax by weight had fairer relation to the production of sugar by earnings of a factory than tax by price and consequently no one could complain that the impugned provisions treated unequals as equals, Equal crushing attracts equal tax. On appeal to this Court, it was argued on behalf of the appellants that (i) the scheme and sections of the Act are ultra vires (ii) the charge of tax is bad because in its true character it is a legislation in respect of "Controlled Industry" and this power belongs exclusively to Parliament under Entry 52 of List I (Seventh Schedule) of the Constitution, (iii) there is discrimination between sugar factories and khandsari units by the impost of differential rates of tax and liability is computed by the weight of the cane as distinguished from its monetary value, there is an inevitable arbitrariness built into the texture of the scheme and (iv) the Act, masked as Purchase Tax, in essence asks for an Excise Duty on sugar manufacture and is, therefore, invalid as colourable legislation. 770 ^ HELD: (i) This Court cannot lose sight of the all India impact when the law is laid down under Article 141 of the Constitution and judgments of this Court are decisional between litigants but declaratory for the nation. The scheme of the Act is simple and workable. It is undisputed that sugar industry is a controlled industry within the meaning of Entry 52, List I of Schedule and therefore, the legislative power of Parliament covers enactments with regard to industries having regard to Article 246(1) of the Constitution. Entry 54 in List II of the Seventh Schedule, empowers the State legislature to legislate for taxes on purchase of goods and so if the Act under consideration is attracted, in pith and substance by this entry, legislative incompetence cannot void the Act. [774 E F, 781 G H, 782 A] (ii) The contention that the charge of tax is bad because in its true character it is a legislation in respect of controlled industry and which power belongs exclusively to Parliament under Entry 52 of List I has no force. Tika Ram 's case deals with the identical question of "controlled industry ' vis a vis U.P. Legislation regulating Sugarcane supply and purchase under the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953. That statute reserved or assigned to sugar factories specified cane purchasing centres for the purpose. This regimentation of sugarcane growers and regulation of cane supplies to specified millers by a State enactment was attached on the precise ground that sugar being a "controlled industry" any enactment affecting such industry including the regulation of supplies of raw materials thereto was taboo. The plea was dismissed as specious, and the appeals under this Court 's consideration are a fortiori cases where the rejection of the contention can be more confidently made. [782 C, F H, 783 A] "Industry" as a legislative topic has a large and liberal import, true. But what peripherally affects cannot be confused with what goes to the heart. An acquisition of land for sugar mills or of sugar mills may affect the industry but is not an action in the legislative field forbidden for the States. Sales tax on raw materials going to a factory may affect the costing process of the manufacture but is not legislation on industrial process or allied matters. Indeed, if the State Legislature cannot go anywhere near measures which may affect topics reserved for Parliament a situation of reductio ad absurdum may be reached. [780 B C] Ch. Tikka Ram 's case ; Shyamkant Lal , Kanan Devan Hills Produce Company Ltd. followed. (iii) The contention that there is discrimination between sugar factories and khandsari units by the impost of differential rates of tax and that when a purchase tax liability is computed by the weight of the cane as distinguished from its monetary value, there is an inevitable arbitrariness built into the texture of the scheme, has no force. Neither in intent nor in effect is there any discriminatory treatment discernible to the constitutional eye. Price is surely a safe guide but other methods are not necessarily vocational. It depends Practical considerations of the Administration. traditional. practices in the Trade. Other economic pros and cons enter the verdict but, after a judicial generosity is extended to the legislative wisdom, if there is writ on the statute perversity. 'madness ' in the method or gross disparity, judicial credulity may snap and the measure may meet with its funeral. This Court has uniformly held that classi 771 fication for taxation and the application of Article 14, in that context, must be viewed liberally, not meticulously. [786 F H, 787 B D] Murthy Match Works case; , , applied. It is well established that classification is primarily for the legislature and becomes a judicial issue only when the legislation bears on its bosom obvious condemnation by way of caprice or irrationality. [789 A] (iv) The contention that the Act masked as Purchase tax, in essence asks for an Excise Duty on sugar manufacture and is therefore invalid as colourable legislation has no force. Tax on sale of purchase must be on the occurrence of a taxing event of sale transaction. Beyond that is left to the free play of the legislature, subject, of course, to the contra indication about capricious, arbitrary or irrational features. It is a superstition, cultivated by familiarity, to consider that all sales tax must necessarily have nexus with the price of the commodity. Price as basis is not only usual but also safe to avoid uneven, unequal burdens, although it is conceivable that a legislature can regard prices which fluctuate frequently, as too impractical to tailor the purchase tax. It may even be, in rare cases, iniquitous to link purchase tax with price, if more sensible bases can be found. Supposing a legislature classifies sales tax on the basis of human categories and reduces the rate or exempts the tax in respect of abject desuetudes, or starving flood victims or notoriously hazardous habitations, with respect lo necessity of life. Such differentiation cannot be castigated as discrimination out of hand. It is common and commonsense that reliable stand is the price, although in regard to customs duties there are still items levied on the nature of the goods rather than its value in money. For the present, it is sufficient to state that the practice has been to impose purchase tax by weight of cane. Also, in weight of cane, its sucrose content and its price have a close nexus, although, theoretically, they may appear unconnected. Unequals cannot be treated equally since mechanical uniformity may become unmitigated injustice. Khandsari units are cottage industries unlike sugar factories and need legislative succor for survival. Their economy justifies State action, classifying them as apart from factories and we fail to appreciate the flaw in the scheme on this score. [789 F H. 790 A B. F G] Nothing more than prevention of escapement of purchase tax on cane is done and what is done is legitimately incidental to the taxing power. Peripheral similarity between purchase tax and excise levy does not spell essential sameness. Sugarcane tax operates in the neighborhood of sugar excise but proximity is not identity. The tax is only on purchase of cane, not its conversion into sugar. If the miller has his own cane farm and crushes it, he has no purchase tax to pay but cannot escape excise duty if any. Again if cane is purchased by a miller and it is later robbed or destroyed before sugar is manufactured, the State tax is exigible although excise on production is not. A perspicacious appreciation of the implications of purchase and production dispels confusion on this issue. To buy new produce is a step preliminary to manufacture but is not part of manufacture. [791 D F] </s>

<s>[INST] Summarize the judgementivil Appeal No. 2446 of 1991. From the Judgement and Order dated 11.10.1990 of the Bombay High Court in F.A. No. 649 of 1990. Mrs. C.M. Chopra for the Appellant. Respondent in person. The Judgment of the Court was delivered by KULDIP SINGH, J. His parents advertised for " homely non medico" bride. Her parents responded. Marriage took place on January 24, 1988 at Noida near Delhi. They hardly lived as husband and wife at Pune for about seven months when on August 16, 1988 the husband filed a petition under Section 13 of the Hindu Marriage Act for dissolution of Marriage on the ground of cruelty. He alleged "she had a habit of smoking" and "it was found that she was in the habit of drinking and even once came drunk to the applicant 's house and abused everybody". He further alleged " it was found by the applicant that she was working as a model prior to marriage and he found few pictures of the respondent in bikini and semi nude clothes in magazines". She vehemently denied the allegations and claimed that the she was a homely, vegetarian, non smoking, teetotaller and faithful house wife. The Family Court at Pune proceeded ex parte and granted divorce decree by the order dated November 30, 1989. Wife 's application for setting aside the ex parte decree was dismissed by the Family Court on June 24, 1990. The High Court by its judgment dated October 10/11, 1990 unheld the findings of the Family Court with the modification that in place of decree for dissolution of marriage it granted a decree for judicial separation. This appeal by way of special leave is by the wife against the judgments of the courts below. 85 During the pendency of the divorce proceedings before Family Court, Pune, the wife filed a petition, on May 1, 1989, before this Court seeking transfer of the case from the Family Court, Pune to Delhi. This Court granted ad interim stay of the proceedings before the Family Court, Pune. The stay remained operative till September 11, 1989 when this Court dismissed the transfer petition and vacated the stay. Thereafter the husband appeared before the Family Court on September 15, 1989 whereas the appellant wife remained absent. Notices were sent by registered post to the wife on her address at Noida and also at her Delhi address given by her in the proceedings before this Court. The notice came back with the remarks "not found". The Family Court ordered substituted service and a notice was published in the "Times of India" New Delhi of dated October 24.1989 asking the wife to appear before the Family Court on November 16, 1989 or the proceedings would be taken ex parte. On November 16, 1989 the Family Court ordered ex parte proceedings. The issues were framed on November 21, 1989, the evidence of the husband was recorded on November 25, 1989 and the judgment was pronounced on November 30, 1989. The appellant filed an application dated December 18, 1989 for setting aside the ex parte divorce decree wherein she stated that after she was forced to leave her matrimonial home at Pune, she was residing with her parents at Noida. She further stated that in October/November, 1989 she had gone to reside with her brother at Delhi. According to her she applied to the Army Authorities claiming maintenance out of her husband 's salary. Respondent husband is an Army officer. The Army Authorities sent a letter dated December 14, 1989 to her father wherein it was mentioned that his daughter 's application for maintenance allowance could not be entertained because the husband had already obtained a divorce decree from the court. A copy of the Family Court Judgment granting divorce decree to the husband was also annexed to the letter. The appellant claims that for the first time, on or about December 14, 1989, She came to know through her father that the respondent had already been granted an ex parte divorce decree by the Family Court. The appellant in her application inter alia stated as under: "The applicant submits that the applicant did not receive any notice/letter/summons or communication from this Hon 'ble Court 's office. Even there was no intimation given by postal 86 authorities and the applicant honestly states that till the receipt of the letter from the Army H.Q. New Delhi, she was not aware of the date of proceeding. The applicant submits, the applicant was under bona fide belief that she will receive a notice from this Hon 'ble Court. As such and being far from Pune, either in Noida ( U.P.) or at New Delhi, it was not possible for her to approach this Hon 'ble Court for any enquiry since she was also not permitted to appear through the lawyer. .At any rate and in any event, the applicant also did not come across the public notice published in Times of India, New Delhi on 24th October 1989 as stated in the decree. The applicant submits, the applicant had every intention to resist the marriage petition filed by the opponent since the same was absolutely false, frivolous and out and out false, and has been resisted by the applicant by filing written statement, preliminary objection including to approach the Supreme Court of India. The intention of the applicant was clear. The applicant submits, the applicant was also advised by her Advocate that she will receive a fresh notice in due course of time after the stay was vacated by the Hon 'ble Supreme Court of India from this Hon 'ble Court. The applicant states, she resides at a far long distance from Pune. She was also refused any assistance of lawyer. The applicant has no relation or any representative who can look after her in the present proceeding in Pune. It was in these circumstances, the applicant was prevented by sufficient cause from appearing in the marriage petition proceeding No.561/89 and as such the said decree is required to be set aside . . The applicant states, the applicant is unable to maintain herself, she has no source of income . . The applicant submits because of the passing of ex parte decree, she has been refused maintenance allowance. The applicant also prays for granting of maintenance allowance pending final disposal of this application." The Family Court dismissed the application for setting aside ex parte divorce decree on the following reasoning: "But where the party itself knows that stay obtained by it has been vacated, there appears no warrant for the proposition that again a notice is required to be given to the said party. I do 87 not think that such advice was really given to the applicant. The applicant has not produced any evidence to the effect that she received such advice from a lawyer. It is her own statement. It is a self serving statement and can hardly be believed. I think that if the applicant was really keen and desirous to contest matrimonial petition, she would have at once made enquiries to find out as to when the next date for hearing in this court was fixed after her application for transfer of the case was dismissed by the Supreme Court and the stay obtained by her was vacated. The order of vacating the stay was passed on 11th September 1989 by the Hon 'ble Supreme Court and the applicant knew fully well about it. The opponent who had also appeared in the Supreme Court in connection of that matter did appear in this Court on 15.9.1989. The record of P.A. No. 561/89 shows that opponent applied for issuing of notice to the present applicant. The notice was issued by registered post on two separate addresses. One of the address was the one shown by applicant herself in Supreme Court petition and the other address was the one which was admitted to be her address in the matrimonial petition (which was address of her father at Delhi). Both these notices were sent by registered post in due course. The court waited till return of this notice. On both these envelops postal authorities have endorsed that the present applicant was not found on these addresses. The opponent had, therefore, made application that the applicant was avoiding to take notice and hence substituted service by publishing in Times of India be made. Accordingly, a notice was published as per order of the Court on opponent 's application. Thus the contention of the respondent that she had no notice of the further proceeding in marriage petition does not appear convincing. As stated already in the first instance, there was no necessity for her to wait for receipt of the notice in the circumstances of the present case. The notices sent to her were obviously evaded, otherwise there was no reason why the applicant was found on either of the addresses which she admits to be the correct addresses. Even if she was not present, there was no reason why other major members of the family did not accept these notices. And lastly the publication of the notice 88 in one of the most widely circulated newspaper at Delhi was sufficient notice to the applicant. " The High Court upheld the reasoning and the conclusions reached by the Family Court and dismissed the appeals filed by the wife. The respondent appeared before us in person and himself argued his case. The learned counsel for the appellant raised the following points for our consideration: (a) That the Family Court and the High Court grossly erred in dismissing the application filed by the appellant for setting aside the ex parte proceedings; (b) That the divorce petition was filed hardly seven months after the marriage. Section 14 of the Hindu Marriage Act provides "it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage". The divorce petition should have been dismissed as not competent in terms of Section 14 of the Hindu Marriage Act; (c) that even on merits the divorce decree is based on no evidence. The allegations in the divorce petition are wholly vague. In any case the evidence of Major Ved Prakash being wholly interested and contrary to the record the courts below fell into grave error in accepting serious allegations against the appellant on the basis of his evidence; (d) that the High Court acted illegally in substituting the decree of divorce to that of a decree for judicial separation. The High Court should have dismissed the divorce petition. We may take up the Fist Point. The appellant filed written statement before the Family Court, Pune vehemently denying the allegations made against her by the respondent. She also raised preliminary objections regarding the maintainability of the divorce petition. She filed a transfer petition before this Court which was dismissed in September, 1989. She filed another transfer petition which was dismissed by this Court on April 12,1990 with the following observations: 89 "It is open to the petitioner to move the High Court under Section 24, Code of Civil Procedure for consideration of her prayer that the case be transferred to another Judge. On the merits of this prayer, we decline to make any observation. It would appear that the case is now listed before the Family Judge at Pune on 13.4.90. It will be appropriate that having regard to the apprehension expressed by the petitioner the Court should not proceed with the matter until her prayer for transfer is considered by the High Court. We accordingly direct the Family Court, Pune to stay further proceeding in the case, a period of 60 days from today to enable the petitioner to approach the High Court. " It is no doubt correct that the appellant did not approach the High Court for the transfer of the case but the fact remains that she was been seriously contesting the divorce proceedings and it would not be fair to assume that she deliberately choose to abstain from the Family Court and was intentionally avoiding the summons. The Family Court and the High Court have held that after the dismissal of the transfer petition and vacation of stay by this Court the appellant wife should have, on her own, joined the proceeding before the Family Court. According to the courts below no notice for appearance was required to be sent to the parties after the stay was vacated. It is not necessary for us to go into the question as to whether a fresh notice to the parties is necessary where the superior Court vacates the stay order and as a consequence the proceeding recommence before the court below. We are of the view that in the fact and circumstances of this case the interest of justice required the issue of such a notice. The admitted facts in this case are as under: (i) While dismissing the transfer petition and vacating the stay order this Court did not fix any date for the appearance of the parties before the Family Court, Pune (ii) The Family Court had permitted the assistance of a lawyer to the appellant wife in the following terms: "As applicant is from Delhi and it would cause hardship, permission is granted 90 for engaging an Advocate for pleading her case only for the purpose of presenting applications or serving notices and noting the orders of the Court. " (iii) The appellant did not engage a lawyer to represent her before the Family Court, Pune. (iv) The appellant wife was residing with her parents at Noida (Delhi). Even the distance between Noida and Pune was a big hassle for the appellant especially when she had no counsel to look after the proceedings before the Family Court, Pune. We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties. The applicability of the Rules of natural justice depends upon the facts and circumstances of each case. We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court would be resumed after fresh notice to the parties. The applicability of the Rules of natural justice depends upon the facts and circumstances of each case. We are of the view that in this case fair play and the interest of justice required the issuance of a fresh notice to the parties after the stay order was vacated by this Court. We do not, therefore, agree with the findings of the Courts below to the contrary. In any case realising the requirements of natural justice the Family Court, sent two registered notices to the appellant at her Noida address and also at the address given by her in the proceedings before this Court. Unfortunately, both the notices came back with the endorsements that the appellant could not be found on the given addresses. There is no material on the record to reach a conclusion that the appellant refused to receive the notices. There is also nothing on the record to show as to whether the postal authorities made any efforts to deliver the registered letters to any of the appellant 's relations at the given addresses. The courts below are wholly unjustified in holding that the appellant refused to receive the notices and further that the said notices could have been received by any of her relations on the given addresses. After the notices sent by registered post were received back, the Family Court did not make any attempt to serve the appellant through the process of the Court. The appellant was no stranger to the respondent. She was his wife. It could not have been difficult for him to find out the address where she was staying. Under the circumstances, resort to the substitute service by way of publication in the newspaper was not justified. 91 We are, therefore, of the view that there was sufficient cause for the non appearance of the appellant in the matrimonial petition before the Family Court. The view we have taken on the first point, it is not necessary to deal, with the other points raised by the learned counsel for the appellant. We, therefore, set aside the order of the Family Court dated June 24, 1990 and allow the appellant 's application dated December 18, 1989 and set aside the ex parte decree passed against the appellant in Marriage petition No. A 561/89. As a consequence the judgment of the Family Court, Pune dated November 30, 1989 and the judgment of the High Court in First Appeal No. 649/90 dated October 10/11, 1990 are also set aside. The appellant had asked for transfer of her case from the Principal Judge, Family Court, Pune to some other court and this Court gave liberty to the appellant to move the High Court for the said purpose. We are satisfied that the reason given by the appellant for such transfer and the apprehensions entertained by her are wholly unjustified. We ar, however, of the view that the Principal Judge, Family Court Pune, has taken the grievances made by the appellant before this Court rather seriously and has commented adversely about the same. With a view to do complete justice between the parties we direct that this case be transferred from the file of Principal Judge, Family Court, Pune to the Principal Judge, Family Court, Bombay. The parties are directed to appear before the Principal Judge, Family Court, Bombay on June 22, 1992. Before concluding we wish to place on record that we tried to persuade the parties to live together and in the alternative to settle their dispute amicably but with no result. We allow the appeal in the above terms with no order as to costs. N.V.K. Appeal allowed. [/INST]While pronouncing its Judgment in Reserve Bank of India vs Peerless General Finance and Investment Co. Ltd., ; , this Court observed that it would be open to the Reserve Bank of India (RBI) to take such steps as were open to it in law to regulate 407 the savings schemes run by Residuary Non Banking Companies (RNBCs) to prevent exploitation of ignorant investors while at the same time taking care to protect the thousands of employees working in such companies. This Court also expressed grave concern at the mushroom growth of financial investment companies offering staggering rates of interests to depositors leading to suspicion whether these companies were speculative ventures floated to attract unwary and credulous investors and capture their hard earned savings. Pursuant to the said observations of this Court and keeping in mind the public interest, the RBI in exercise of its powers under sections 45J and 45K of the , and of all powers enabling it in that behalf, issued certain directions by way of Notification No. DFC 55/DG (O) 87 dated 15.5.1987. A Writ Petition was filed before the High Court challenging the constitutional validity of the said directions issued by the RBI. A Single Judge of the High Court passed certain interim orders. Being aggrieved against the interim orders, the RBI preferred an appeal before the Division Bench. The Division Bench disposed of the appeal as well as the Writ Petition. It held that the RBI was empowered to issue directions to the Residuary Non Banking Companies in the interest of depositors; but to the extent such directions were found to be prohibitory or unworkable and as such unreasonable, would be beyond the powers of RBI. Peerless which became a party respondent, filed an application for clarification of the judgment, as regards payment against discontinued certificates. The High Court clarified that in such cases the depositors be allowed to take loan against payments made till discontinuance on such terms and conditions as the company may stipulate. The present appeals were filed by RBI against the orders of the High Court. A Writ Petition has been filed directly before this Court, challenging the directions as being ultra vires of sections 45J and 45K of the as also violative of the provisions of the constitution. On behalf of the Writ Petitioners it was contended that since the 1987 directions issued by RBI were in the nature of subordinate legislation, it was clear that RBI overstepped the bounds of the 408 parent statute; that the source of power for issuing the directions as being derived from section 45L was only an after thought; that from the working results it appeared impossible to carry on the traditional business for any longer period without incurring huge losses; that from in the business carried on by Peerless and other similar RNBCs that the working capital is generated out of the subscriptions received from the certificate holders either in lump sum or in instalments and such deposits are paid back with the guaranteed accretions, bonus, interest etc. in terms of contract at the end of the stipulated term; that the interest of the depositors has not been impaired in any manner whatsoever by the method of accountancy followed by Peerless and all similar companies, namely, appropriation of a part of the subscription to the profit and loss account and meeting the working capital requirements out of the same. On behalf of the appellant RBI, it was contended that it had the power to issue the said directions, that the said directions were issued in pursuance to this Court 's observations, and in public interest; that the said directions had not imposed any restriction on the right to carry on business but only placed a restriction with respect to one of the modes of raising reserves i.e. through public deposits; that the directions cannot be condemned as being violative of Article 19(1) (g); and that formula laid down by the High Court was self defeating and deprived altogether the benefits of security provisions given to depositors under the 1987 directions. On behalf of the Peerless Field Officers Association, it was contended that if the directions of 1987 were to be upheld, the undertakings of Peerless would face inevitable closure and almost 14 lac field officers would lose their only source of livelihood. Allowing the appeals filed by RBI and dismissing the Writ Petition filed by the Finance Companies, this Court, HELD: Per Kasliwal, J 1.1 The Reserve Bank was competent and authorised to issue the impugned directions of 1987, in exercise of powers conferred under Section 45K(3) of the Act. [431 C] 1.2 A combined reading of Section 45J, 45K and 45L of the unmistakably goes to show that the Reserve Bank if it considers necessary in the public interest so to do, can specify the conditions subject to which any prospectus or advertisement soliciting deposits of money from the public may be 409 issued. It can also give directions to non banking institutions in respect of any matters relating to or connected with the receipt of deposits, including the rates of interest payable on such deposits, and the periods for which deposits may be received. This latter power flows from sub section (3) of Section 45K of the Act. The Bank under this provision can give directions in respect of any matters relating to or connected with the receipt of deposits. Thus a very wide power is given to the RBI to issue dirctions in respect of any matters relating to or connected with the receipt of deposits. It cannot be considered as a power restricted or limited to receipt of deposits only. Such an interpretation would be violating the language of section 45K (3) which furnishes a wide power to the Reserve Bank to give any directions in respect of any matters relating to or connected with the receipt of deposits. The Reserve Bank under this provision is entitled to give directions with regard to the manner in which the deposits are to be invested and also the manner in which such deposits are to be disclosed in the balance sheet or books of accounts of the company. The word `any ' qualifying matters relating to or connected with the receipt of deposits in the above provision is of great significance and directions of 1987 are fully covered under Section 45K (3) of the Act, which gives power to the Reserve Bank to issue such directions. [430 D H; 431 A] 1.3 When an authority takes action which is within its competence, it cannot be said to be invalid merely because it purports to be made under a wrong provision, if it can be shown to be within its power under any other provision. [431 B] Indian Aluminium Company etc. vs Kerala State Electricity Board; , , relied on. 2.1 The function of the Court is to see that lawful authority is not abused but not to attain itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the Courts to sit in Judgment over matters of economic policy and it must necessarily be left to the expert bodies. The function of the Court is not to advice in matters relating to financial and economic policies for which bodies like Reserve Bank are fully competent. It would be hazardous and risky for the Courts to tread an 410 unknown path and should leave such task to the expert bodies. [442 C D] 2.2 Reserve Bank of India which is banker 's bank is a creature of Statue. It has large contingent of expert advice relating to matters affecting the economy of the entire country and nobody can doubt the bonafides of the Reserve Bank in issuing the impugned directions of 1987. The Reserve Bank plays an important role in the economy and financial affairs of India and one of its important functions is to regulate the banking system in the country. It is the duty of the Reserve Bank to safeguard the economy and financial stability of the country. In fact the directions of 1987 were issued by RBI after mature consideration with the help and advice of experts. [441 B D, 443 D E] Delhi Cloth and General Mills etc. vs Union of India etc. ; , ; M/s Prag Ice & Oil Mills and Anr. vs Union of India; , ; Shri Sitaram Sugar Company Limited and Anr. vs Union of India & Ors. , ; ; R.K. Garg vs Union of India & Ors. etc.; , , relied on. The Reserve Bank was right in taking the stand that if the companies want to do their business, they should invest their own working capital and find such resources elsewhere with which the Reserve Bank has no concern. [445 C] 4. It is not the concern of this Court to find out as to whether actuaial method of accounting or any other method would be feasible or possible for the companies to adopt while carrying out the conditions contained in paragraphs 6 and 12 of the directions of 1987. The companies are free to adopt any mode of accounting permissible under the law but it is certain that they will have to follow the entire terms and conditions contained in the directions of 1987 including those contained in paragraphs 6 and 12. [445 E F] 5.1 It is not possible for the Court to determine as to how much percentage of deposit of first instalment should be allowed towards expenses which may consist of commission to agents, office expenses etc. It would depend from company to company based on various factors such as paid up capital, percentage of commission paid to the agents, rate of interest paid to the depositors, period of maturity for repayment, office expenses and various other factors necessary to mop up working capital out of the depositors money. 411 One cannot ignore the possibility of persons having no stake of their own starting such business and after collecting huge deposits from the investors belonging to the poor and weaker sections of the society residing in rural areas, and to stop such business after a few years thus devouring the hard earned money of the small investors. In such kind of business, the agents always take interest in finding new depositors because they get a high rate of commission out of the first instalment, but they do not have same enthusiasm in respect of deposit of subsequent instalments. In these circumstances if the Reserve Bank has issued the directions of 1987 to safeguard the larger interest of the public and small depositors it cannot be said that the directions are so unreasonable as to be declared constitutionally invalid. [447 E H, 448 A] 5.2 It cannot be said that the directions of 1987 amount to prohibition of the business in a commercial sense and without reasonable basis. Nor are the directions violative of Article 19(1) (g) of the Constitution of India. [442 G H, 443 A B] Mohammad Yasin vs The Town Area Committee, Jalalabad and Anr., ; ; Premier Automobiles Ltd. and Anr vs Union of India, ; ; Shree Meenakshi Mills Ltd. vs Union of India, ; , referred to. So far as Peerless is concerned there is no possibility of its closing down such business. It has already large accumulated funds collected by making profits in the past serveral years. Thus it has enough working capital in order to meet the expenses. It cannot be said that after some years Peerless will have to close down its business if the directions contained in paragraphs 6 and 12 are to be followed. The working capital is not needed every year as it can be rotated after having invested once. If the entire amount of the subscriptions is deposited or invested in the proportion of 10% in public sector banks, 70% in approved securities and 20% in other investments, such amounts will also start earning interest which can be added and adjusted while depositing or investing the subsequent years ' deposits of the subscribers. In any case it lies with the new entrepreneurs while entering such field of business to make arrangement of their own resources for working capital and for meeting the expenses and they cannot insist in utilising the money of the depositors for this purpose. So far as the companies already in this field they must have earned profits in the past years which can be utilised as their working capital. It is important to note that the direc 412 tions of 1987 have been made applicable from 15th May, 1987 prospectively and not retrospectively. [447 H; 448 C F] 7. The directions of 1987 as well as any other directions issued from time to time by the Reserve Bank relating to economic or financial policy are never so sacrosanct that the same cannot be changed. Even the financial budget for every year depends on the economic and financial policy of the Government existing at the relevant time. So far as the impugned directions are concerned if it is found in future that the same are not workable or working against the public interest, the Reserve Bank is always free to change its policy and scrap or amend the directions as and when necessary. If at any time, the Reserve Bank feels that the business of the kind run at present by the Peerless and other companies in terms of the directions of 1987 are not yielding the result as envisaged by the Reserve Bank, it will always be prepared to consider any new proposals which may be conductive both in the interest of the large multitude of the investors as well as the employees of such companies. [448 G H, 449 A B] Per Ramaswamy, J. (Concurring) : 1. The directions of 1987 issued by RBI are within the power of the RBI to provide tardy, stable, identifiable and monitorable method of operations by each RNBC and its compliance of the directions. This will ensure security to the depositors at all times and also make the accounts of the company accurate, accountable and easy to monitor the working system of the company itself and continuance of its workmen. The directions in paragraphs 6 and 12 are just, fair and reasonable not only to the depositors, but in the long run to the every existence of the company and its continued business itself. Therefore, they are legal, valid and constitutionally permissible. [464 G H, 465 A] 2. Section 45K of the empowers the RBI to collect information from non banking institutions as to deposit and to give directions that every non banking institution shall furnish to the Bank, in such form, at such intervals and within such time, such statements, information or particulars relating to or connected with deposits received by the non banking institution, as may be specified by RBI by general or special order including the rates of interest and other terms and conditions on which they are received. Under sub section (3) thereof the RBI is entitled to issue 413 in the public interest directions to non banking institutions in respect of any matter relating to or connected with the receipt of deposits including the rates of interest payable on such deposits and the periods for which deposits may be received. The use of the adjective `any ' matter relating to or connected with the receipt of deposits is wide and comprehensive to empower the RBI to issue directions in connection therewith or relating to the receipt of deposits. But exercise of the power is hedged with and should be `in the public interest '. [450 C F] 3.1 The State can regulate the exercise of the fundamental right to save the public from a substantive evil. The existence of the evil as well as the means adopted to check it are the matters for the legislative judgment. But the court is entitled to consider whether the degree and mode of the regulation is in excess of the requirement or is imposed in an arbitrary manner. The Court has to see whether the measure adopted is relevant or appropriate to the power exercised by the authority or whether it over stepped the limits of social legislation. Smaller inroads may lead to larger inroads and ultimately result in total prohibition by indirect method. If if directly transgresses or substantially and inevitably affects the fundametal right, it becomes unconstitutional, but not where the impact is only remotely possible or incidental. The Court must life the veil of the form and appearance to discover the true character and the nature of the legislation, and every endeavour should be made to have the efficacy of fundamental right maintained and the legislature is not invested with unbounded power. The Court has, therefore, always to guard against the gradual encroachments and strike down a restriction as soon as it reaches that magnitude of total annihilation of the right. [453 F H, 454 A] 3.2 In the interest of the general public, the law may impose restrictions on the freedom of the citizen to start or carry on his business. Whether an impugned provision imposing a fetter on the exercise of the fundamental right guaranteed by Article 19(1) (g) amounts to a reasonable restriction imposed in the interest of general public, must be adjudged not in the background of any theoretical standard or pre determinate patterns, but in the light of the nature and the incidence of the right, the interest of the general public sought to be secured by imposing restrictions and the reasonableness of the quality and the extent of the fetters imposed by the directions. The credit worthiness of RNBCs undoubtedly would 414 be sensitive. It thrives upon the confidence of the public, on the honesty of its management and its reputation of solvency. The directions intended to promote `freedom ' and facility which are required to be regulated in the interest of all concerned. [457 E F] Hatisingh Mfg. Co. Ltd. & Anr. vs Union of India & Ors. , ; ; Latafat Ali Khan & Ors. vs State of U.P., [1971] Supp. SCR 719, relied on. There is presumption of constitutionality of every statute and its validity is not to be determined by artificial standards. The court has to examine with some strictness the substance of the legislation to find what actually and really the legislature has done. The court would not be over persuaded by the mere presence of the legislation. In adjudging the reasonableness of the law, the court will necessarily ask the question whether the measure or scheme is just, fair, reasonable and appropriate or unreasonable, unnecessary and arbitrarily interferes with the exercise of the right guaranteed in of the Constitution. The Court has to maintain a delicate balance between the public interest envisaged in the challenged provision and the individual 's right taking into account the nature of his right said to be infringed, the underlying purpose of the restriction, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the restriction imposed, the prevailing condition at the time, the surrounding circumstances, the larger public interest which the law seeks to achieve and all other relevant factors germane for the purpose. All these factors should enter into the zone of consideration to find the reasonableness of the impugned restriction. The Court weighs in each case which of the two conflicting public or private interest demands greater protection and if it finds that the restriction imposed is appropriate, fair and reasonable, it would uphold the restriction. The court would not uphold a restriction which is not germane to achieve the purpose of the statute or is arbitrary or out of its limits. [454 B C, E G] 5. The directions are incorporated and became part of the Act itself. They must be governed by the same principles as the statute itself. The statutory presumption that the legislature inserted every part thereof for a purpose and the legislative intention should be given affect to, would be applicable to the directions of 1987 as well. [445 E] 6.1 The RBI issued the directions to regulate the operations 415 of the RNBCs, to safeguard the interest of the depositors. Payment of interest, bonus, premium or other advantage, in whatever name it may be called is reward for waiting or parting with liquidity. It is paid because of positive time preference (one rupee today is preferred to one rupee tomorrow) on the part of the depositor. Therefore, the directions avowed to preserve the right of the depositors to receive back the amount deposited with the contracted rate of interest; it aims to prevent depletion of the deposits collected from the weaker segments of the society and also tends to affect free flow of the business of the RNBCs who would desire to operate in their own way. [455 F H] 6.2 Mushroom growth of non banking agencies put afloat diverse schemes with alluring offers of staggering high rate of interest and other catchy advantages which would generate suspicion of the bona fides of the offer. But gullible depositors are lured to make deposits. It is not uncommon that after collecting fabulous deposits, some unscrupulous people surreptiously close the company and decamp with the collections keeping the depositors at bay. Therefore, the need to regulate the deposits/subscriptions, in particular in private sector became imperative to prevent exploitation or mismanagement as a social justice strategem. [457 A B] 6.3 RBI occupies place of `pre eminence ' to ensure monetary discipline and to regulate the economy or the credit system of the country as an expert body. It also advises the Government in public finance and monetary regulations. The banks or non banking institutions shall have to regulate their operations in accordance with not only as per the provisions of the Act but also the rules and directions or instuctions issued by the RBI in exercise of the power thereunder. Chapter 3B of the expressly deals with regulations of deposit and finance received by the RNBCs. The directions, therefore, are statutory regulations. [455 B D] Joseph Kuruvilla Vellukunnel vs Reserve Bank of India & Ors., [1962] Suppl. 3 SCR 632; State of U.P. vs Babu Ram, ; ; D.V.K. Prasada Rao vs Govt. of A.P., AIR 1984 A.P. 75, relied on. The objects of the direction are to preserve the ability of the RNBC to pay back to subscribers/depostitors at any given 416 time; safety of the subscribers ' money and his right to unencumbered repayment are thus of paramount public interest and the directions aimed to protect them. The directions cannot and would not be adjudged to be ultra vires or arbitrary by reasons of successful financial management of an individual company. An overall view of the working system of the scheme is relevant and germane. [460 C D] 8. The obligation in paragraph 12 of periodical disclosure in the accounts of a company of the deposits together with the interest securd thereon, whether or not payable, but admittedly due as a liability, is to monitor the discipline of the operation of the schemes and any infraction, would be dealt with as per law. The certificate by a qualified Chartered Accountant is to vouchsafe the correctness and authenticity of accounts and would and should adhere to the statutory compliance. [460 D E] 9. The settled accounting practice is that a loan or deposit received from a creditor has to be shown as a liability together with accrued interest whether due or deferred. The actuarial accounting applies to revenues and costs to which the concept of the `going concern ' can be adopted. Therefore, in providing the costs of the company it can set apart its costs on the basis that liability is created for interest, bonus etc. payable in foreseeable future. Undoubtedly the actuarial principle applied by the LIC or the gratuity schemes are linked with life of the assured or the premature death before retirement of an employee, but RNBC in its contract does not undertake any such risk. The deposit or loan is a capital receipt but not a revenue receipt and its full value shall be shown in the account books or balance sheet as liability of the company. It cannot be credited to the profit and loss account. of Schedule I of the requires that the amount shown in the profit and loss account should be confined to the income and expenditure of the company. Para 12 of the directions is, thus, in consonance with the . Paragraph 6 only elongates the contract in the public interest to safeguard the interest of the vulnerable sections of the depositors. The RBI cannot be expected to constantly monitor the working of the RNBC in its day to day function. The actuarial basis cannot be adopted by the RNBCs. and the liability must always be reflected in its balance sheet at its full value. Compliance of the direction in para 12, dehors any method of accountancy adopted by a company, intended to discipline its operations. [460 E H, 461 A C] 417 10. Regulation includes total prohibition in a given case where the mischief to be remedied warrants total prohibition. The directions of 1987 are neither palpably arbitrary nor unjust nor unfair. The mechanism evolved in the directions is fool proof, to secure the interest of the depositors, as well as capable of monitoring the business management of every RNBC. It also protects the interest of the employees/field staff/commission agents etc. on permanent basis over coming initial convulsion. It was included, in the best possible manner, to subserve the interest of all without putting any prohibition in the ability of a company to raise the deposit, even the absence of any adequate paid up capital or reserve fund or such pre commitment of the owner, to secure such deposits. [462 E G] Narendra Kumar vs Union of India, ; , relied on. Reserve Bank of India etc. vs Peerless General Finance and Investment Co. Ltd. & Ors. ; , , referred to. So long as the power is traceable to the statute, mere omission to recite the provision does not denude the power of the legislature or rule making authority to make the regulations, nor consiered without authority of law. The asbsence of reiteration of objective satisfaction in the preamble as of one under Section 45L does not denude the powers; the RBI admittedly has the power under Section 45L, to justify the actions. Though Section 45L was neither expressly stated nor mentioned in the Preamble of the directions of the required recitation or satisfaction of objective facts to issue the directions, from the facts and circumstances it is demonstrated that the RBI, had such satisfaction in its consideration the power under Section 45L, when the directions were issued. Even otherwise Section 45K (3) itself is sufficient to uphold the directions. [464 F H] 1.2. The court has to see whether the scheme, measure or regulation adopted is relevant or appropriate to the power exercised by the authority. Prejudice to the interest of depositors is a relevant factor. Mismanagement or inability to pay the accrued liabilities are evils sought to be remedied. The directions of 1987 designed to preserve the right of the depositors and the ability of RNBC to pay back the contractual liability. It also intended to prevent mismanagement of the deposits collected from vulnerable social segments who have no knowledge of banking operations or credit system and repose unfounded blind faith on the company with fond hope of its ability to pay back the contracted amount. Thus the directions maintain 418 the thrift for saving and streamline and strengthen the monetary operations of RNBCs. [463 E G] </s>

<s>[INST] Summarize the judgementiminal Appeals Nos. 146 and 147 of 60. Appeals by special leave from the judgment and order dated February 11, 1960, of the Madhya Pradesh High Court in Criminal Revisions Nos. 270 to 274 of 1959. G. C. Mathur, for the appellants. I. N. Shroff, for the respondents. February 5. The Judgment of the Court was delivered by KAPUR, J. There are two appeals directed against the order of the High Court of Madhya 22 Pradesh reiecting a Reference made by the Sessions Judge against the prosecution of. the appellant for contravening the provisions of the C. P. and Berar Sales Tax Act (C. P. XXI of 1947), hereinafter called the 'Act '. A firm of which five brothers including the two appellants were partners submitted their sales tax returns for the quarters beginning June 1, 1947, to the quarters ending December 31, 1951. A .complaint was filed against the partners on July 19, 1957, on the ground that the returns filed by them were false and the accounts produced were incorrect and therefore an offence under section 24(1)(b) and (g) of the Act was committed. On December 12, 1958, an objection was taken by the accused. persons that under section 26(2) of the Act, the prosecution could not be instituted as it was barred by time, having been instituted more than three months after the commission of the offence. The learned, Magistrate did not go into the objection on the ground that it was not the proper forum for raising the objection. Four revisions were taken to the Sessions Judge who on May 4, 1959, made a reference to the High Court for quashing the proceedings But the High Court rejected the reference on the ground that a person making a false return neither acts nor purports to act under the Act and therefore section 26(2) is not applicable to him. It is against that order that these peals were brought by Special Leave. In order to decide this question, it is necessary to refer to the relevant provisions of the Act. Under section 10 of the Act every dealer is required to furnish a return when called upon to do so and every registered dealer is required to furnish returns by such dates as may be prescribed. The ap pellants are registered dealers and they have made returns under that section. Section 15 deals with 23 production and inspection of accounts and section 24 enumerates the offenses under the Act. The alleged offence of the appellants falls under is. 34(1) (b) and (g). failing without sufficient use to submit any return or furnishing false returns and knowingly producing incorrect accounts, registers or documents or knowingly furnishing incorrect information. Section 26 relates to the protection of persons acting in good faith and limitation for suits and prosecutions. The section when quoted is as follows section 26 (1) "No suit, prosecution or other legal proceedings shall lie against any servant of the Government for anything which is in good faith done or intended to be done under this Act or rules made thereunder. (2) No suit shall be instituted against the Government and no prosecution or suit shall be instituted against 'any person in respect of anything done or intended to be done under this Act unless the suit or prosecution has been instituted within three months from the date of the act complained of. " For the appellants, it was contended that the words "no prosecution or suit shall be, instituted against any person in respect of anything done" in sub section (2) of section 26 cover their cases also and they fall within the words ",any person". The respondent 's submission on this point was that the two sub sections of section 26 should be read together and the intention of the Legislature was to give protection to Government servants in regard to prosecutions or other legal proceedings. That, in our opinion, is not *hat the words used in sub section (2) mean. , They are words of wider import and would cover cases of all persons including persons other than Government servants. There are ' no words restricting the meaning of "any person" and no 24 reason has been shown why those words should not include the appellants. The ground on which the High Court rejected the Reference was that in its opinion the appellants neither acted nor purported to act under any of the provisions of the Act when they filed false returns or produced false accounts and in fact they were rendering. themselves liable to punishment under the provisions of section 24 of the Act. It observed as follows : "The test whether an act is done or intended to be done under a certain law might well be whether the person who committed it can, if challenged, reasonably justify his act under any provision contained in that law". This opinion is, in our view, not sustainable. When the appellants submitted their returns they did so under section 10 of the Act and when they produced their accounts they did so under section 15 of the Act. Therefore both the making of the returns and production of the accounts were done under the Act and cannot be said to be outside the provisions of the Act. In our opinion the High Court was in error in rejecting the Reference. The appeals are therefore allowed, the order of the High Court is set aside aid the proceedings in the trial court are quashed. Appeals allowed. [/INST]The owner of a certain plot of land granted a perpetual lease of it on an annual rent to some persons who sublet it to the respondent on a higher rent. The respondent sublet the plot to the appellant on a still higher rent. In all the three deeds of lease it was recited that the lessee might construct buildings on the land after obtaining sanction of the appropriate authority but on the dates of all the three leases the plot was assessed for agricultural purposes under the Bombay Land Revenue Code, 1879. The appellant obtained sanction of the Collector for conversion of user of the land to non agricultural purposes. The appellant thereafter applied to the court for fixation of standard rent of the plot under 's.11 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947. The 'respondent contended that the land when granted in lease being agriculture I, the provisions of the Act did not apply thereto. The question which arose for decision was whether the plot of land was 'Premises ' within the meaning of s.5(8)of the Act. Held, that the material date for ascertaining whether the plot is 'premises ' is the date of letting and not the date of the application for fixing the standard rent. In the present case the plot in dispute could not be regarded as 'premises ' under section 5(8) of the Bombay Act on the date of letting and the application for fixation of standard rent was not maintainable. </s>

<s>[INST] Summarize the judgementCivil Appeal Nos. 10160 10162 of 1983. From the Judgment and Order dated 20.10.1983 of the Punjab and Haryana High Court in Writ Petition No. 2495 of 1983. P.P. Rao, A. Mariarputham, K.S. Kendriya and R. Venkatarumani for the Appellants in C.A. No. 10160 of 1983. G.L. Sanghi, S.K. Mehta, P.N. Puri, M.K. Dua and A.K. Vachar for the Appellants in C.A. No. 10161 of 1983. A.K. Ganguli for the Appellants in C.A. No. 10162 of 1983. M.K. Ramamurthi, Mahabir Singh, section Srinivasan and Vijay Hansaria for the Respondents Nos. 6 & 7 in C.A. No. 10160 of 1983. R.K. Garg, Mahabir Singh, section Srinivasan and Vijay Hansaria for the Respondents Nos. 1, 2 and 16 in C.A. No. 10161 and Respondents Nos. 8 & 9 in C.A. No. 10162 of 1983. The Judgment of the Court was delivered by BHAGWATI, J. These appeals by special leave are directed against a judgment of the Division Bench of the Punjab & Haryana High Court quashing and setting aside certain selections made by the Haryana Public Service Commission to the Haryana Civil Service (Executive) and other allied services. The judgment in part proceeds on surmises and conjectures and has made certain uncharitable observations against the Chairman and Members of the Haryana Public Service Commission without any warrant and hence it is necessary to set out the facts giving rise to the appeals in some detail. Sometime in October 1980 the Haryana Public Service Commission invited applications for recruitment to 61 posts in Haryana Civil Service (Executive) and other allied Services. The procedure for recruitment was governed by the Punjab Civil Service (Executive Branch) Rules, 1930 as applicable in the State of Haryana. Rule 9 clause (1) of these Rules provided that a competitive examination shall be held at any place in Haryana in each year in or about the month of January for the purpose of selection by competition of as many candidates for the Haryana Civil Service (Executive), and others allied services as the Governor of Haryana may determine and 666 such competitive examination shall be held in accordance with the Regulations contained in Appendix I to the Rules. Rule 10 laid down the conditions for eligibility to appear at the competitive examination but we are not concerned with these conditions of eligibility in the present appeals. Regulation I in Appendix I provided that the competitive examination shall include compulsory and optional subjects and every candidate shall take all the compulsory subjects and not more than three of the optional subjects, provided that ex serviceman shall not be required to appear in the optional subjects. The compulsory subjects included English Essay, Hindi Essay and General knowledge carrying in the aggregate 400 marks and there was also viva voce examination which was compulsory and which carried 200 marks and each optional subject carried 100 marks. Vide Regulation 5. The result was that the written examination carried an aggregate of 700 marks for candidates in general and for ex servicemen, it carried an aggregate of 400 marks while in case of both, the viva voce examination carried 200 marks. Some argument has turned on the true interpretation of Regulation 3 and hence it would be desirable to set it out in extenso. It read as follows: "3. No candidate shall be eligible to appear in the viva voce test unless he obtains 45 per cent marks in the aggregate of all subjects including at least 33 per cent marks in each of the language papers in Hindi (in Devnagri Script) and Hindi Essay provided that if at any examination a sufficient number of candidates do not obtain 45 per cent marks in the aggregate the Commission may at their discretion lower this percentage to not below 40 per cent for the language papers remaining unchanged. " It appears that in response to the advertisement issued by the Haryana Public Service Commission, about 6000 candidates applied for recruitment and appeared at the written examination held by the Haryana Public Service Commission. Out of about 6000 candidates who appeared for the written examination, over 1300 obtained more than 45 per cent marks and thus qualified for being called for interview for the viva voce examination. The Haryana Public Service Commission invited all the 1300 and more candidates who qualified for the viva voce test, for interview and the interviews lasted for almost half a year. It seems that though originally applications were invited for recruitment to 61 posts, the number of vacancies rose 667 during the time taken up in the written examination and the viva voce test and test and ultimately 119 posts became available for being filled and on the basis of total marks obtained in the written examination as well as viva voce test, 119 candidates were selected and recommended by the Haryana Public Service Commission to the State Government. It seems that there were some candidates who had obtained very high marks at the written examination but owing to rather poor marks obtained by them in the viva voce test, they could not come within the first 119 candidates and they were consequently not selected. They were aggrieved by the selections made by the Haryana Public Service Commission and three out of them accordingly filed Civil writ No. 2495 of 1983 in the High Court of Punjab and Haryana challenging the validity of the selections and seeking writ for quashing and setting aside the same. They also claimed that the marks given in the viva voce test should be ignored and selections should be made only on the basis of the marks obtained by the candidates at the written examination and they contended that if that was done, they would be within first 119 to be selected by the Haryana Public Service Commission. Some other candidates who did not figure in the list of 119 selected candidates also filed Civil Writ Petition Nos. 2317, 3344, 3345, 3434, 3457, 3435 and 3719 of 1983 in the High Court of Punjab and Haryana challenging the validity of the selections on substantially the same grounds and claiming substantially the same reliefs as the petitioners in Civil Writ Petition 2495 of 1983. The State of Haryana was joined as 1st respondent, the Haryana Public Service Commission as 2nd respondent and three out of the five members of the Haryana Public Service Commission, as respondents Nos. 3 to 5 in these writ petitions. The Chairman and one other member of Haryana Public Service Commission, namely, Shri B.S. Lather and Shri Gurmesh Prakash Bishnoi were however not impleaded as respondents in the writ petitions. None of the 119 selected candidates were also joined as respondents in the writ petitions. Five our of the 119 selected candidates thereupon applied for being joined as respondents to these writ petitions and on their application, they were added as respondent Nos. 6 to 10 in the writ petitions. This was broadly the array of parties in the writ petitions. Since all the writ petitions raised substantially the same issues and the pleadings in the writ petitions also followed substantially the same pattern, one writ petition, namely, Civil Writ Petition 2495 of 1983 was treated as the main writ petition and the principal arguments were advanced in that writ petition, It would therefore be 668 convenient to refer only to Civil Writ Petition 2495 of 1983 and trace the course followed by it in the High Court because whatever we say in regard to this writ petition would apply equally to the other writ petitions. So far as Civil Writ Petition No. 2495 of 1983 is concerned, the State of Haryana filed its counter affidavit in reply to the writ petition and so also did the Haryana Public Service Commission. The five selected candidates who were impleaded as respondents Nos. 6 to 10 also filed their counter affidavit joining issue with the petitioners. We do not propose to set out here at this stage the averments made in the writ petition or the answer to those averments made on behalf of the respondents, because we shall have to refer to them in some detail when we deal with the arguments advanced on behalf of the parties. Suffice it to state that the avernments made in the writ petition and the answer sought to be given on behalf of the respondents raised issues of considerable importance affecting not only the Haryana Public Service Commission but also all other State Public Service Commissions and calling for formulation of principle and norms which should guide all State Public Service Commissions in the discharge of their functions. We may briefly set out the grounds on which the petitioners challenged the validity of the selections made by the Haryana Public Service Commission. There were several grounds on which the validity of the selections made by the Haryana Public Service Commission was assailed on behalf of the petitioners and a declaration was sought that they were entitled to be selected as falling within the first 119 candidates. The first ground was that the Chairman and members of the Haryana Public Service Commission were not men of high integrity, calibre and qualification and they were appointed solely as a matter of political patronage and hence the selections made by them were invalid. Secondly, it was urged on behalf of the petitioners that two of the selected candidates, namely, Mrs. Shakuntala Rani and Balbir Singh were related to one of the members of the Haryana Public Service Commission namely, Sh. R.C. Marya, while the third selected candidate namely Trilok Nath Sharma was related to another member namely, Sh. Raghubar Dayal Gaur and though these two members did not participate in the interview of their respective relatives they did participate in the interview of other candidates and the tactics adopted by the Chairman and the members of the Commission was to give high marks to the relatives and award low marks to the other candidates so as to ensure the selection of their relatives. This, according to 669 petitioners, vitiated the entire selection process. Thirdly, contended the petitioners, it was contrary to the well settled practice followed by the Union Public Service Commission and other selecting authorities to call for interview as many as 1300 candidates even though the number of vacancies required to be filled in was only 119. The number of candidates called for interview was almost 20 times the number of vacancies and this not only imposed an intolerable burden on the Haryana Public Service Commission but also widened the scope for arbitrariness in selection by making it possible for the Haryana Public Service Commission to boost up or deflate the total marks which might be obtained by a candidate. The argument of the petitioners was that the number of candidates to be called for interview should not exceed twice or at the highest, thrice the number of vacancies because otherwise the objective test of written examination would be considerably diluted by the subjective assessment made in the vive voce test and there would be considerable scope for arbitrariness in the process of selection. This infirmity, submitted the petitioners, had the effect of invaliding the selections made by the Haryana Public Service Commission. The fourth contention urged on behalf of the petitioners was that the allocation of 200 marks for the viva voce test out of a total of 900 marks for the generality of students and a total of 600 marks for ex servicemen, was arbitrary and excessive and it had the effect of distorting the entire process of selection by introducting in a preponderant measure subjective element which could facilitate arbitrariness and manipulation and it was accordingly unconstitutional as involving denial of equal opportunity in public employment. Lastly, it was contended on behalf of the petitioners that the viva voce test was not conducted fairly and honestly and the selections made were vitiated on account of nepotism, favouritism and casteism and also political motivation. These were broadly the grounds of attack levelled against the validity of the selections made by the Haryana Public Service Commission. These ground of challenge were sought to be repelled on behalf of the respondents and it was contended that not only was it not competent to the court on the existing set of pleadings to examine whether the Chairman and members of the Haryana Public Service Commission were men of high integrity, calibre and qualification but also there was no material at all on the basis of which the Court could possibly come to the conclusion that they were men lacking in integrity, calibre or qualification. It was also urged on behalf of the respondents that the Haryana Public Service Commission being 670 a constitutional authority it was not necessary for Sh. R.C. Marya and Sh. Raghubar Dayal Gaur to withdraw altogether from the interviews and they acted correctly in abstaining from participation when their relatives came to be interviewed. This was according to the respondents, in conformity with the principles of fair play and did not affect the validity of the selections. The respondents also contended that under Regulation 3 in Appendix I every candidate who obtained 45 per cent and more marks in the written examination was eligible to be called for interview and the Haryana Public Service Commission was therefore justified in calling for interview all the 1300 and odd candidates, who qualified by getting more than 45 per cent marks and in fact it would have been a denial of equal opportunity in public employment if some of them had not been called despited having qualified for the viva voce test. So far as the allocation of 200 marks for the viva voce test is concerned, it was contended that this allocation of 200 marks for the viva voce test was made under the Punjab Civil Service (Executive Branch) Rules 1930 which had been in force since over 50 years and no one had raised any objection to it during this long period of half a century and it had stood the test of time and could not possibly be regarded as arbitrary or excessive. The allegation that the selections were not made fairly and honestly and they were tainted by nepotism, favouritism casteism or political patronage was vehemently denied on behalf of the respondents and it was contended that there was nothing to show that any extraneous considerations had influenced the selection process. The respondents accordingly submitted that the challenge to the validity of the selections was unfounded and the writ petitions were liable to be dismissed. The writ petitions came to be heard by a Division Bench of the High Court of Punjab and Haryana. The Division Bench after hearing the parties at great length delivered a judgment on 20th October 1983 allowing the writ petitions. The Division Bench held that the Chairman and members of the Haryana Public Service Commission had been appointed purely on the basis of political partisanship and caste considerations and that they did not satisfy the stringent test of being men of high integrity, calibre and qualification. The Division Bench actually went to the length of alleging corruption against the Chairman and members of the Haryana Public Service Commission and observed that they were not competent "to validly wield the golden scale of viva voce test for entrants into the prestigious public service. " This ground alone, accordingly to the Division Bench, was sufficient to invalidate the selections made by 671 the Haryana Public Service Commission. The Division Bench then proceeded to hold that it was not enough for Sh. R.C. Marya and Sh. Raghubar Dayal Gaur to abstain from participating in the interview when their relatives came up for the viva voce test and their presence and participation at the time of interview of the other candidates was sufficient to taint the selection process with a serious infirmity. The Division Bench almost seemed to suggest, without there being the slightest warrant for it, that "it was a familiar and deliberate tactic adopted by the members of the Commission to abstain from participating in the interview of their close relatives which in effect made patent to the remaining members about their deep interest in them and further that each member of the Commission adjusted the relatives" of the other and awarded low marks in interview to other candidates who had secured high marks in the written examination in order to oust the latter and bolster up the former in the merit list. The Division Bench also condemned out of hand the practice adopted by the Haryana Public Service Commission of calling for interview all the candidates who obtained more than 45% marks in the written examination and who thus proved themselves eligible for the viva voce test. The view taken by the Division Bench was that the number of candidates to be called for interview should not exceed twice or at the highest, thrice the number of vacancies required to be filled up. The Division Bench also observed that the allocation of 200 marks for the viva voce test was arbitrary and excessive, as it introduced a large amount of subjective discretion in the process of selection which subordinated the objective test of written examination and this, according to the Division Bench, constituted denial of equal opportunity in public employment. The Division Bench also came to the conclusion that candidates who had obtained high marks in the written examination had been depressed by award of low marks in the viva voce test and candidates who had obtained low marks were pulled up by award of high marks in the viva voce test and the entire selection process was vitiated by an "obvious oblique motive" and tainted by nepotism, favouritism, caste considerations and political pressures. The Division Bench on this view set aside the selections made by the Haryana Public Service Commission and directed the Haryana Public Service Commission and the State of Haryana" to forthwith declare the result of candidates of all categories on the basis of written examination alone, scrupulously excluding all considerations of the viva voce test. Respondents No. 6 to 10 thereupon preferred Civil Appeal No. 10160 of 1983 with special leave obtained from this Court and similarly with special leave, Civil Appeal No. 10161 of 1983 was preferred by 672 the State of Haryana and the Haryana Public Service Commission against the judgment of the Division Bench. Since disparaging observations were made against the Chairman and members of the Haryana Public Service Commission by the Division Bench in its judgment, three members of the Haryana Public Service Commission who were impleaded as respondents No. 3, 4 and 5 in the writ petitions also applied for special leave to appeal and on such leave being obtained, preferred Civil Appeal No. 10161 of 1983. All these three appeals were heard together since they were directed against the same judgment of the Division Bench and we proceed to dispose them of by this common judgment. The first question that arises for consideration in these appeals is whether the Division Bench of the High Court was right in condemning the Chairman and members of the Haryana Public Service Commission as men lacking in integrity, calibre and qualification and alleging corrupt motives against them. The answer must plainly be in the negative and for more than one reason. In the first place, it is common ground that the Haryana Public Service Commission consisted of 5 members including the Chairman and all of them participated in the interviews save and except Shri. R.C. Marya, who did not participate in the interview of his daughter in law Shakuntala Rani and the brother of his son in law, Balbir Singh and Shri Raghubar Dayal Gaur who did not participate in the interview of the son in law of his sister, Trilok Nath Sharma. The Division Bench of the High Court cast serious aspersions on all the members of the Haryana Public Service Commission including the Chairman and observed that "in the matter of appointments to the Haryana Public Service Commission, the actualities of work a day politics have wholly whittled away the ideal and the purpose" in which the constitutional institution of Public Service Commission was conceived. The Division Bench of the High Court went to the length of holding that the appointments of the Chairman and the member of the Haryana Public Service Commission were made "wholly caste considerations and political affiliations" and all of them including the Chairman did not satisfy the stringent test of "men of high integrity, calibre and qualification". These were highly disparaging observations made against the Chairman and member of the Haryana Public Service Commission and cast serious refection on their character and integrity. Surprisingly, these condemnatory observations were made against the Chairman and all the members of the Haryana public Service Commission without their being party respondents to the writ petitions. Three members namely S/Sh. 673 D. R. Chaudhary, Raghubar Dayal Gaur and R. C. Marya were joined as respondent Nos. 3, 4 and 5 but the Chairman Shri B. section Lather and another member Shri Gurmesh Parkash Bishnoi were not impleaded in the writ petitions and yet the most damaging observations were made against them. This was clearly in violation of the principles of natural justice. The observations made against Shri B. section Lather and Shri Gurmesh Prakash Bishnoi cannot therefore be allowed to stand and if these observations are obliterated from the judgment, the entire super structure of the argument assailing the constitution of the Haryana Public Service Commission as a whole must collapse. Secondly, these observations against the Chairman and members of the Haryana Public Service Commission were made without any factual basis in the pleadings or the evidence. There were no averments made in any of the writ petitions, save and except Civil Writ petition No. 3344 of 1983, regarding the Chairman or any of the members of the Haryana Public Service Commission. It was nowhere alleged in any of these writ petitions that the Chairman and members of the Haryana public Service Commission were lacking in integrity, calibre and qualification or that they were appointed on the Haryana Public Service Commission purely on account of caste considerations or political affiliations without any merit or competence. The only averments in regard to the appointments of the Chairman and members of the Haryana Public Service Commission were to be found in paragraph 9 of Civil Writ petition No. 3344 of 1983 where a direct allegation was made that all the members of the Haryana Public Service Commission including the Chairman had political links and backing and their appointments were "only due to political and caste considerations". The petitioners in this writ petition proceeded to point out the relationship of the Chairman and members of the Haryana Public Service Commission to one or the other member of the political party ruling the State at the date of the respective appointments and sought to draw an inference from such relationship that their appointments were on account of caste considerations and political linkages and merit, competence and integrity were sacrificed. The relationship alleged in paragraph 9 was not disputed on behalf of the respondents but the inference sought to be drawn there from was stoutly resisted and it was contended that there was no material at all on the basis of which it could be said that the Chairman and members of the Haryana Public Service Commission were appointed solely "due to political and caste considerations" without taking into account calibre, competence or 674 integrity. In fact the State of Haryana in its counter affidavit seriously disputed that the Chairman and members of the Haryana Public Service Commission had any political affiliations. Now it is difficult to see how on the basis of a mere averment in paragraph 9 of one of the writ petitions, which averment was disputed on behalf of the respondents, the Division Bench of the High Court could possibly come to the conclusion that politics had played a major role in appointment of the Chairman and members of the Haryana Public Service Commission and that they were men lacking in integrity, calibre and qualification, particularly when no such allegation was made by the petitioners in any of the other writ petitions. We do not think that the Division Bench of the High Court was at all justified in drawing from the facts set out in paragraph 9 of Civil Writ petition No. 3344 of 1983 any inference that the Chairman and members were totally unfit to be appointed on the Haryana Public Service Commission or that they were not men of integrity calibre and qualification. Merely because Shri B. section Lather was the brother of Shri Mahinder Singh Lather who was allegedly influential with the Government of Haryana when the Janta Party was in power or Shri R. C. Marya was close to Shri Chand Ram who was a Union Minister for State during the Janta regime or Shri D. R. Chaudhary was close to Ch. Devi Lal former Chief Minister of Haryana and belonged to his caste as well as to his village or Shri Raghubar Dayal Gaur was close to and belonged to the caste of Shri Chiranji Lal Sharma who was a Congress Member of Parliament or Shri Gurmesh Prasad Bishnoi was close to and belonged the caste of Shri Bhajan Lal, present Chief Minister of Haryana, it does not necessarily follow that they were not fit to be appointed but were appointed solely on account of personal relationship and caste considerations. The Division Bench of the High Court proceeded solely on surmises and conjectures and committed a grievous error in jumping to the conclusion that the Chairman and members of the Public Service Commission were lacking in integrity, calibre and qualification and were appointed solely on account of extraneous considerations. It is a very serious matter to cast aspersions on the character, integrity and competence of men occupying the high office of Chairman and members of a Public Service Commission and we wish the Division Bench of the High Court had acted with care and circumspection in making such imputation against the Chairman and members of the Haryana Public Service Commission, when it was not even specifically alleged in paragraph 9 of Civil Writ Petition 3344 of 1983 that the Chairman and members of the Haryana Public Service Commission were unfit to hold the office to which they were appointed or 675 were lacking in integrity, character and qualification. We may point out that even if the Chairman and members of the Haryana Public Service Commission were appointed on account of political and caste considerations, they could still be men of character, integrity and competence and the extraneous considerations which might have weighed with the appointing authority need not necessarily reflect upon their competence, character or fitness. The condemnatory observations made against the Chairman and members of the Haryana Public Service Commission thus not only went beyond the averments made in the writ petitions but were also totally unjustified and unwarranted. Thirdly, it is difficult to see how the Division Bench of the High Court could possibly undertake an inquiry into the question whether the Chairman and members of the Haryana Public Service Commission were men of integrity, calibre and qualification or not. It was totally irrelevant inquiry, because even if they were men lacking in integrity, calibre and qualification, it would not make their appointments invalid, so long as the constitutional and legal requirements in regard to appointment were fulfilled. Article 316 of the Constitution makes provision for appointment and term of office of members of a State Public Service Commission. Clause (1) of this Article provides that the Chairman and members of a State Public Service Commission shall be appointed by the Governor of the State and the proviso to that clause enacts that "as nearly as may be one half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years" under the Government of a State. Clause(2) of Article 316 declares that a member of a State Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains the age of sixty two years, which ever is earlier. Article 319 lays down inter alia that on ceasing to hold office, the Chairman of State Public Service Commission shall not be eligible for any employment under the Government of India or the Government of a State, save and except that of Chairman or any other member of the Union Public Service Commission and similarly, a member of a State Public Service Commission. These are the only provisions in the Constitution bearing on the appointment of Chairman and members of a State Public Service Commission. Now concededly none of these constitutional provisions was violated in making appointments of the 676 Chairman and members of the Haryana Public Service Commission nor was any legal provision breached and the appointments of the Chairman and members of the Haryana Public Service Commission were in conformity with the constitutional and legal requirements. If that be so, it passes our comprehension as to how the appointments of the Chairman and members of the Haryana Public Service Commission could be regarded as suffering from any infirmity or any selections made by them could be said to be vitiated, merely on the ground that they were not, in the opinion of the Division Bench of the High Court possessed of integrity, calibre or qualification. We may take an analogy to illustrate the point we are making. Suppose a District Judge is appointed by the Governor of the State in consultation with the High Court in accordance with the requirements of Article 233 and the appropriate rules made in that behalf. Can a judgment delivered by him be assailed as invalid on the ground that he has not the requisite integrity, calibre or qualification ? The judgment may be set aside if it is wrong but not because it is given by a Judge who is lacking in integrity, calibre or qualification. Similarly, selections made by the Chairman and members of the Haryana Public Service Commission may be quashed if they are found to be vitiated by the influence of extraneous considerations or are made in breach of the rules, but they cannot be invalidated merely by showing in a general sort of way that they were not men possessed of high integrity, calibre or qualification. Lastly, we do not think that the Division Bench of the High Court was justified in going into the question whether the Chairman and members of the Haryana Public Service Commission were appointed an account of caste considerations and political patronage or were lacking in integrity, calibre or qualification, when the validity of their appointments was not challenged in the writ petitions nor was any relief claimed for setting aside their appointments. The validity of their appointments could not be questioned collaterally while considering the challenge to the selections made by them. This view receives support from the observations of Chinnappa 677 Reddy, J. speaking on behalf of the Court in C. Ranga Raju vs State of Andhra Pradesh ; There, the learned Judge pointed out: "The defective appointment of a de facto judge may be questioned directly a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private title cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise as soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judge 's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. " We wholly endorse these observations and conclude that the principle underlying these observations must be held to be equally applicable in the present case and the title of the Chairman and members of the Haryana Public Service Commission cannot be allowed to be placed in jeopardy in proceeding for challenging the selections made by them. This ground of attack against the validity of the selections must therefore be rejected. That takes us to the next ground of attack which found favour with the Division Bench of the High Courts, namely that the participation of Shri R.C. Marya and Shri Raghubar Dayal Guar in the process of selection introduced a serious infirmity in the selections. It was not disputed and indeed on the record it could not be, than when the close relatives of Shri R.C. Marya and Shri Raghubar Dayal Guar came up for interview, but, according to the Division Bench of the High Court, such limited withdrawal from participation was not enough and both the members, said the Division Bench ought to have withdrawn from the selection process altogether. The Division Bench of the High Court relied heavily on the fact that Trilok Nath Sharma, who was the son in law of the sister of Shri Raghubar Dayal Guar obtained 160 marks out of 300 in the viva voce test while Shakuntala Rani daughter in law of Shri. R.C. Marya obtained 131 marks and Balbir Singh brother of the son in law of Shri R.C. Marya obtained 130 marks and observed that "these 678 admitted facts are obviously telltale". The Division Bench went to the length of imputing nepotism and favouritism to the Chairman and members of the Haryana Public Service Commission by observing that each member of the Haryana Public Service Commissions adjusted the relatives of the others and awarded low marks in the interview to the other candidates with a view to ousting the latter and bolstering up the former in the merit list. We are pained to observe that such a serious aspersion should have been cast on the Chairman and members of the Haryana Public Service Commission without any basis or justification. Merely because Trilok Nath Sharma obtained 160 marks, Shakuntala Rani obtained 131 marks and Balbir Singh obtained 130 marks, no inference can necessarily be drawn that these high marks were given to them in viva voce examination undeservedly with a view to favouring them at the cost of more meritorious candidates. There is nothing to show that these three candidates who happened to be related to Shri Raghubar Dayal Guar and Shri R.C. Marya were not possessed of any requisite calibre or competence or their performance at the viva voce examination did not justify the marks awarded to them. The only circumstance on which the Division Bench relied for raising the inference that such high marks were given to these three candidates, not on merits, but as an act of nepotism with a view to unduly favouring them so that they can some within the range of selection, was that out of these three candidates, two were related to Shri R.C. Marya and one was related to Shri Raghubar Dayal Gaur. This inference, we are constrained to observe, was wholly unjustified. We cannot help remarking that the Division Bench indulged in surmises and conjectures in reaching the conclusion that high marks were given unjustifiably to these three candidates at the viva voce examination with a view to pushing them up and low marks were deliberately given to other more meritorious candidates with a view to pushing them down and thus facilitating the selection of these three candidates who would not otherwise have come within the range of selection. We fail to appreciate what is the basis on which the Division Bench could observe that these three candidates got high marks at the viva voce examination only because they were elated to Shri R.C. Marya and Shri Raghubar Dayal Gaur. Can a relative of a member of a Public Service Commission, Central or State, not get high marks at the viva voce examination on his own merit? Must he always get low marks, so that if high marks are awarded to him, that would necessarily be attributed to his relationship with the member of the Public Service Commission? 679 The Division Bench sought to draw support for its inference from an article written by Shri D.R. Chaudhari, a member of the Haryana Public Service Commission, who is arrayed as respondent No. 3 in the writ petition. This article was captioned "Public Service Commissions under Pressures" and was written by Shri D.R. Chaudhari and published in the issue of Tribune dated 13th March 1981. Shri D.R. Chaudhari was appointed a member of the Haryana Public Service Commission on 2nd December 1977. He had been such member for over three years at the time of writing this article. He pointed out in this article, and we are quoting here a passage which has been strongly relied upon by the Division Bench: "With political morality in our system at its lowest abb, the politicians are always in a hurry to pack the P.S. Cs with such persons who would be pliable tools in the matter of recruitment. Academic worth, intellectual calibre, experience of men and matters, and integrity are of no relevance. What is important is a person 's "dependability. " Narrow caste, communal and regional issues dominate Indian Politics today and these considerations override questions of talent in the matter of recruitment. In the process a member with little intellectual calibre and less integrity begin to serve his own interests a those of his political benefactor, No vender there is a widespread feeling in the States (mercifully, with the U.P.S.C. as a possible exception) that every post carries a price tag. We have reached a state when the composition and functioning of our P.S. Cs should be critically evaluated. This is necessary if the institution has to survive as a meaningful body. Its functioning should be brought 680 under public gaze. At present there is a halo of secrecy surrounding the P.S.C. and secrecy always breeds corruption. It would be suicidal to treat the P.S.C. as a sacred cow. There is nothing more sacred than the public interest and the public interest demands that the functioning of the P.S. Cs should be widely debated through the press and other forums. I invite my, colleagues of the P.S. Cs and public spirited individuals to join the debate. " We may reasonably assume that a person who write such an article would never be a party to any manipulations in the selection of candidates nor would he debase or demean himself by indulging in or even lending his support to, any acts of nepotism or favouritism. It would be quite legitimate to infer that if there had been any attempt to manipulate the marks at the viva voce examination with a view to favouring the undeserving or pushing down the meritorious, Shri D.R. Chaudhuri would have protested against such improper and unholy attempt. The very fact that Shri D.R. Chaudhari not only did not register any dissent in regard to the marks awarded at the viva voce examination but actually agreed with the evaluation made by his colleagues shows that there was nothing wrong with the marking nor was there any manipulation of marks indicating nepotism or favouritism. In fact Shri D.R. Chaudhari filed an affidavit in these proceedings where he candidly said that this article written by him was based on his direct experience of working in the Haryana Public Service Commission and he proceeded to add boldly and courageously: "As a member of H.P.S.C., I noticed various forces trying to undermine the independent functioning of the Commission. What irked me most was the political interference. An attempt was made to convert this august body into a petty government department where politicians ' writ could rung large. Besides this, caste lobbies and money bags were active to influence its decisions at every stage. I was in a state of agony. I decided to take the matter to the public through the medium of the press. I knew 681 that I would incur the wrath of the powers that be and dismay caste lobbies and money bags. I took a calculated risk and wrote the article under question. It did infuriate the political posses as is evident from a news item published in the Tribune dated June 25, 1981 (clipping attached). But at the same time it served the purpose I had in mind. It started a public debate. It created a furore. It was read and debated widely. A number of letters to the Editor appeared in the Tribune. It also figured in the session of the Haryana Vidhan Sabha. The article had a desired effect. Pressures ceased. Political operators and other manipulators were put on the alert. As such I did not feel the necessity of writing again on the same issue though I continued writing on other matters. " Then speaking specifically about the viva voce examination held by the Haryana Public Service Commission in the present case, Shri D.R. Chaudhari stated: "The interviews for the recruitment of H.C.S. and Allied Services, which is the subject of writ petitions in the Hon 'ble Punjab and Haryana High Court, were conducted about two years after the publication of the article. No pressure, political or otherwise, was exercised on me, nor to the best of my knowledge, on any other colleague of mine in the commission during the course of this recruitment. " There is no reason why this statement made by Shri D.R. Chaudhari should not be believed. It is indeed surprising that the Division Bench accepted readily what was said by Shri D.R. Chaudhari in the article written by him on 13th March, 1981 but for some inexplicable reason, refused to believe the same Shri D.R. Chaudhari when he stated that this article had the desired effect and on account of the exposure made in this article, pressures, political or otherwise, ceased so far as the functioning of the Haryana Public 682 Service Commission was concerned and in awarding of marks at the viva voce examination, no pressure, political or otherwise, was exercised on Shri D.R. Chaudhari nor to the best of his knowledge, on any of his other colleagues. We accept what has been stated by Shri D.R. Chaudhari in his affidavit and disapprove of the observation made by the Division Bench that high marks were undeservedly given to the three candidates related to Shri R.C. Marya and Shri Raghubar Dayal Gaur and low marks were deliberately given to the meritorious candidates with a view to manipulating the selection of the former at the cost of the latter. We are of the view that there was no material whatsoever on record to justify such observation on the part of the Division Bench. In fact, far from there being any material supportive of such observation. We find that there is one circumstance, which, in our opinion, completely militates against the view taken by the Division Bench and that circumstance is that the marks obtained by the candidates at the written examination were not disclosed to the members of the Haryana Public Service Commission who held the viva voce examination. If the members, who interviewed the candidates, did not know what were the marks obtained by the candidates at the written examination, it is difficult to see how they could have manipulated the marks at the viva voce examination with view to pushing up the three candidates related to Shri R.C. Marya and Shri Raghubar Dayal Gaur or any other candidates of their choice so as to bring them within the range of selection. But the question still remains whether the selections made by the Haryana Public Service Commission could be said to be vitiated on account of the fact that Shri R.C. Marya and Shri Raghubar Dayal Gaur participated in the selection process, though Trilok Nath Sharma who was related to Shri Raghubar Dayal Gaur and Shakuntala Rani and Balbir Singh both of whom were related to Shri R.C. Marya, were candidates for selection. It is undoubtedly true that Shri Raghubar Dayal Gaur did not participate when Trilok Nath Sharma came up for interview and similarly Shri R.C. Marya did not participate when Shakuntala Rani and Balbir Singh appeared for interview at the viva voce examination. But, according to the petitioners, this was not sufficient to wipe out the blemish in the process of selection for two reasons: firstly, because Shri R C. Marya and Shri Raghubar Dayal Gaur participated in the interviews of the other candidates and that gave rise to a reasonable apprehension in 683 the mind of the candidates that Shri R.C. Marya and Shri Raghubar Dayal Gaur might tend to depress the marks of the other candidates with a view to ensuring the selection of the candidates related to them and secondly, because there could be reasonable apprehension in the mind of the candidates that the other members of the Haryana Public Service Commission interviewing the candidates might, out of regard for their colleagues, tend to give higher marks to the candidates related to them, The argument of the petitioners was that the presence of Shri R.C. Marya and Shri Raghubar Dayal Gaur on the interviewing committee gave rise to an impression that there was reasonable likelihood of bias in favour of the three candidates related to Shri R.C. Marya and Shri Raghubar Dayal Gaur and this had the effect of vitiating the entire selection process. This argument was sought to be supported by the petitioners by relying on the decisions reported in D.K. Khanna vs Union of India & Ors. Surinder Nath Goel vs State of Punjab and M. Ariffudin vs D.D. Chitaley & Ors. We do not think this argument can be sustained and for reasons, which we shall presently state, it is liable to be rejected. We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be a Judge in his own cause and that if there is a reasonable likelihood of bias it is "in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the 684 function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies in increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner. This was the basis on which the applicability of this rule was extended to the decision making process of a selection committee constituted for selecting officers to the Indian Forests Service in A.K. Kraipak vs Union of India happened in this case was that one Naquisbund, the acting Chief Conservator of Forests, Jammu and Kashmir was a member of the Selection Board which had been set up to select officers to the Indian Forest Service from those serving in the Forest Department of Jammu and Kashmir. Naquisbund who was a member of the Selection Board was also one of the candidates for selection to the Indian Forest Service. He did not sit on the Selection Board at the time when his name was considered for selection but he did sit on the Selection Board and participated in the deliberations when the names of his rival officers were considered for selection and took part in the deliberations of the Selection Board while preparing the list of the selected candidates in order of preference. This Court held that the presence of Naquishbund vitiated the selection on the ground that there was reasonable likelihood of bias affecting the process of selection. Hegde, J. speaking on behalf of the Court countered the argument that Naquisbund did not take part in the deliberations of the Selection Board when his name was considered, by saying: "But then the very fact that he was a member of the Selection Board must have its own impact on the decision of the Selection Board. Further, admittedly, he participated in the deliberations of the Selection Board when the claims of his rivals . were considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberation of the selection board, there was a conflict between his interest and duty . The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we 685 have to see is whether there is reasonable ground for believing that he was likely to have been biased . . There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct." This Court emphasised that it was not necessary to establishes as but it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. The likelihood of bias may arise on account of proprietory interest or on account of personal reasons, such as, hostility to one party or personal friendship or family relationship with the other. Where reasonable likelihood of basis is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection. The High Court of Himachal Pradesh in D.K. Khanna 's case (supra) drawing inspiration from A.K. Kraipak 's case, held that where one of the members of the Committee constituted for selecting members of the State Civil Service for promotion to the Indian Administrative Service, was the son in law of a candidate who was competing for inclusion in the list of selected candidates, the entire selection process was vitiated by the presence of such member, though he did not take any part in the consideration of his father in law 's candidature or in any manner try to influence his colleagues in regard to his father in law. The High Court observed that the degree of relationship in this case was so close as to reasonably give an impression to the other candidates that there was a real likelihood of the son in law espousing the cause of his father in law as his own. So also in Surinder Nath Goel 's case (supra), the High Court of Punjab and Haryana took the same view where it was found that two of the candidates appearing for selection were related to one of the members of the Selection Committee. The same approach was adopted by the High Court of Andhra Pradesh in M. Aiffurdin 's case (supra) where one of the members of the Andhra Pradesh Public Service Commission who sat on the Commission and participated in the selection for the posts of Professor and Lecturer in the Andhra Pradesh Technical Education Service, was a partner with some of the candidates appearing for the selection and it was held that the 686 entire selection process was vitiated, because there was clearly reasonable likelihood of bias in favour of those candidates on the part of such member of the Commission. We may point out that so far as this last decision is concerned, it does not appear that the member of the Commission who was a partner with some of the candidates, withdrew when those candidates came to be interviewed and did not participate in the consideration of their candidature. We must straightaway point out that A.K. Kraipak 's case is a landmark in the development of administrative law and it has contributed in a large measure to the strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in this decision which has nourished the roots of the rule of law and injected justice and fair play into legality. There can be no doubt that if a selection committee is constituted for the purpose of selecting candidates on merits and one of the members of the Selection Committee is closely related to a candidate appearing for the selection, it would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him but he must withdraw altogether from the entire selection process and ask the authorities to nominate another person in his place on the selection committee, because otherwise all the selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection. But the situation here is a little different because the selection of candidates to the Haryana Civil Service (Executive) and allied services is being made not by any Selection Committee constituted for that purpose but it is being done by the Haryana Public Service Commission which is a Commission set up under Article 316 of the Constitution. It is a Commission which consists of a Chairman and a specified member of members and is a Constitutional Authority. We do not think that the principle which requires that a member of a Selection Committee whose close relative is appearing for selection should decline to become a member of the selection committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need be applied in case of a Constitutional Authority like the Public Service Commission, whether Central or State. If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such 687 member and the functioning of the Public Service Commission may be affected. When two or more members of a Public Service Commission are holding a viva voce examination. they are functioning not as individuals but as the Public Service Commission. Of course, we must make it clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him. Chinnappa Reddy, J observed to the same effect in Javid Rasool Bhat vs State of J and K while dealing with a similar question which arose before him for consideration: "The procedure adopted by the Selection Committee and the member concerned was in accord with the quite well known and generally accepted procedure adopted by the Public Service Commission everywhere. It is not unusual for candidates related to members of the Service Commission or Other Selection Committee to seek employment. Whenever such a situation arises, the practice generally is for the member concerned to excuse himself when the particular candidate is interviewed. We notice that such a situation had also been noticed by this Court in the case of Nagarajan vs State of Mysore where it was pointed out that in the absence of mala fides, it would not be right to set aside the selection merely because one of the candidates happened to be related to a member of the Selection Committee who had abstained from participating in the interview of that candidate. Nothing unusual was one by the present Selection Committee. The girl 's father was not present when she was interviewed. She was one among several hundred candidates. The marks obtained by her in the written test were not even known when she was interviewed. In the case before us, the Principal of the Medical College, Srinagar, dissociated himself from the written test and did not participate in the proceedings when his daughter was interviewed. When the other candidates were interviewed, he did not know the marks obtained either by his daughter or by any of the candi 688 dates. There was no occasion to suspect his bona fides even remotely. There was not even a suspicion of bias, leave alone a reasonable likelihood of bias. There was no violation of the principles of natural justice. " We wholly endorse there observations. Here in the present case it was common ground between the parties that Shri Raghubar Gaur Dayal Gaur did not participate at all in interviewing Trilok Nath Sharma and likewise Shri R.C. Marya did not participate at all when Shakuntala Rani and Balbir Singh came to be interviewed and in fact, both of them retired from the room when the interviews of their respective relatives were held. Moreover, neither of them took any part in any discussion in regard to the merits of his relatives nor is there anything to show that the marks or credits obtained by their respective relatives at the interviews were disclosed to them. We are therefore of the view that there was no infirmity attaching to the selections made by the Haryana Public Service Commission on the ground that, though their close relative were appearing for the interview, Shri Raghubar Dayal Gaur and Shri R.C. Marya did not withdraw completely from the entire selection process. This ground urged on behalf of the petitioners must therefore be rejected. There was also one other contention which found favour with the Division Bench in support of its conclusion that there was reasonable likelihood of bias vitiating the "whole gamut of the selection process". This contention was based on the fact that though only 61 vacant posts were advertised for being filled up, over 1300 candidates representing more than 20 times the number of available vacancies, were called for the viva voce examination. The Division Bench pointed out that in order to have a proper balance between the objective assessment of a written examination and the subjective assessment of personality by a viva voce test, the candidates to be called for interview at the viva voce test should not exceed twice or at the highest, thrice the number of available vacancies. This practice of confining the number of candidates to be called for interview to twice or at the highest, thrice the number of vacancies to be filled up, was being followed consistently by the Union Public Service Commission in case of Civil Services Examination, but in the present case, observed the Division Bench, a departure was made by the Haryana Public Service Commission and candidates numbering more than 20 times the available vacancies were called for interview. The result, according to the Division Bench, was that the area of 689 arbitrariness in the viva voce test was considerably enlarged and even a student who had got poor marks in the written examination and who having regard to dismal performance at the written examination did not deserve to be called for interview, could get a chance of being called and he could then be pulled up within the range of selection by awarding unduly high marks at the viva voce examination. This conclusion was sought to be buttressed by the Division Bench by relying on a comparison of the marks obtained by some of the petitioners in the written examination and at the viva voce test. This comparison showed that eight of the petitioners secured "a percentage of around 60 per cent rising up to a highest of 68.5 per cent" in the written examination, but they were awarded "a disastrously low percentage of marks in the viva voce ranging from the rock bottom of 13 per cent to 21 per cent", making it impossible for them to bridge the difference so as to be able to come within the range of selection. How could such brilliant candidates who had done so well in the written examination fare so poorly in the viva voce test that they could not get more than 20 per cent marks, asked the Division Bench? The Division Bench also pointed out that some out of these eight petitioners had appeared in an earlier examination held in 1977 78 and at the viva voce test held at that time. they had secured more than 50 to 55 per cent marks and it was difficult to believe that during the next three succeeding years, they had deteriorated to such an extent that they slumpted down to 20 per cent marks. The Division Bench also analysed the comparative marks obtained by the first 16 candidates who topped the list in the written examination and noted that on account of the poor marks obtained by them at the viva voce test, 10 out of these 16 candidates were "knocked out of the race" because their ranking, on the basis of the total marks obtained by them in them in the written examination and the viva voce test, went for below 61 and only 4 out of the remaining 6 could rank within the first 16 so as to be eligible for appointment in the Haryana Civil Service (Executive Branch) which is a superior service compared to other allied services. It was also pointed out by the Division Bench that out of 16 candidates who topped the list on the basis of combined marks obtained in the written and viva voce examinations and who consequently secured appointment to posts in the Haryana Civil Service (Executive Branch), 12 could make it only on account of the high marks obtained by them at the viva voce examination, though they were not high up in ranking in the written examination. On the basis of 690 these facts and circumstances, the Division Bench concluded that the petitioners had discharged the burden of showing that there was reasonable likelihood of bias vitiating the entire selection process. We do not think we can agree with this conclusion reached by the Division Bench. But whilst disagreeing with the conclusion, we must admit that the Haryana Public Service Commission was not right in calling for interview all the 1300 and odd candidates who secure 45 per cent or more marks in the written examination. The respondents sought to justify the action of the Haryana Public Service Commission by relying on Regulation 3 of the Regulations contained in Appendix 1 of the Punjab Civil Service (Executive Branch) Rules 1930 which were applicable in the State of Haryana and contended that on a true interpretation of that Regulation, the Haryana Public Service Commission was bound to call for interview all the candidates who secured a minimum of 45 per cent marks in the aggregate at the written examination. We do not think this contention is well founded. A plain reading of Regulation 3 will show that it is wholly unjustified. We have already referred to Regulation 3 in an earlier part of the judgment and we need not reproduce it again. It is clear on a plain natural construction of Regulation 3 that what it prescribes is merely a minimum qualification for eligibility to appear at the viva voce test. Every candidate to be eligible for appearing at the viva voce test must obtain at least 45 per cent marks in the aggregate in the written examination. But obtaining of minimum 45 per cent marks does not by itself entitle a candidate to insist that he should be called for the viva voce test. There is no obligation on the Haryana Public Service Commission to call for the viva test all candidates who satisfy the minimum eligibility requirement. It is open to the Haryana Public Service Commission to say that out of the candidates who satisfy the eligibility critarion of minimum 45 per cent marks in the written examination, only a limited number of candidates at the top of the list shall be called for interview. And this has necessarily to be done because otherwise the viva voce test would reduced to a farce. It is indeed difficult to see how a viva voce test for properly and satisfactorily measuring the personality of a candidate can be carried out, if over 1300 candidates are to be interviewed for recruitment to a service. If a viva voce test is to be carried out in a thorough and scientific manner, as it must be in order to arrive at a fair and satisfactory evaluation of the personality of a candidates, the interview must take anything between 10 to 30 691 minutes. In fact, Herman Finer in his book on "Theory and Practice of Modern Government" points out that "the interview should last at least half an hour". The Union Public Service Commission making selections for the Indian Administrative Service also interviews a candidate for almost half an hour. Only 11 to 12 candidates are called for interview in a day of 51/2 hours. It is obvious that in the circumstances, it would be impossible to carry out a satisfactory viva voce test if such a large unmanageable number of over 1300 candidates are to be interviewer. The interviews would then tend to be casual, superficial and sloppy and the assessment made at such interviews would not correctly reflect the true measure of the personality of the candidate. Moreover, such a course would widen the area of arbitrariness, for even a candidate who is very much lower down in the list on the basis of marks obtained in the written examination, can, to borrow an expression used by the Division Bench, 'gate crash ' into the range of selection, if he is awarded unduly high marks at the viva voce examination. It has therefore always been the practice of the Union Public Service Commission to call for interview, candidates representing not more than twice or thrice the number of available vacancies. Kothari Committee 's Report on the 'Recruitment Policy and Selection Methods for the Civil Services Examination ' also points out, after an indepth examination of the question as to what should be the number of candidates to be called for interview : "The number of candidates to be called for interview, in order of the total marks in written papers, should not exceed, we think, twice the number of vacancies to be filled. " Otherwise the written examination which is definitely more objective in its assessment than the viva voce test will lose all meaning and credibility and the viva voce test which is to some extent subjective and discretionary in its evaluation will become the decisive factor in the process of selection. We are therefore of the view that where there is a composite test consisting of a written examination followed by a viva voce test, the number of candidates to be called for interview in order of the marks obtained in the written examination, should not exceed twice or at the highest, thrice the number of vacancies to be filled. The Haryana Public Service Commission in the present case called for interview all candidates numbering over 1300 who satisfied the minimum eligibility requirement by securing a 692 minimum of 45 per cent marks in the written examination and this was certainly not right, but we may point out that in doing so the Haryana Public Service Commission could not be said to be actuated by any malafide or oblique motive, because it was common ground between the parties that this was the practice which was being consistently followed by the Haryana Public Service Commission over the years and what was done in this case was nothing exceptional. The only question is whether this had any invalidating effect on the selections made by the Haryana Public Service Commission. We do not think that the selections made by the Haryana Public Service Commission could be said to be vitiated merely on the ground that as many as 1300 and more candidates representing more than 20 times the number of available vacancies were called for interview, though on the view taken by us that was not the right course to follow and not more than twice or at the highest thrice, the number of candidates should have been called for interview. Something more than merely calling an unduly large number of candidates for interview must be shown in order to invalidate the selections made. That is why the Division Bench relied on the comparative figures of marks obtained in the written examination and at the viva voce test by the petitioners, the first 16 candidates who topped the list in the written examination and the first 16 candidates who topped the list on the basis of the combined marks obtained in the written examination and the viva voce test, and observed that these figures showed that there was reasonable likelihood of arbitrariness and bias having operated in the marking at the viva voce test. Now it is true that some of the petitioners did quite well in the written examination but faired badly in the viva voce test and in fact their performance at the viva voce test appeared to have deteriorated in comparison to their performance in the year 1977 78. Equally it is true that out of the first 16 candidates who topped the list in the written examination, 10 secured poor rating in viva voce test and where knocked out of the reckoning while 2 also got low marks in the viva voce test but just managed to scrape through to come within the range of selection. It is also true that out of the first 16 candidates who topped the list on the basis of the combined marks obtained in the written examination and the viva voce test, 12 could come in the list only on account of the high marks obtained by them at the viva voce test, though the marks obtained by them in the written examination were not of sufficiently high order. These 693 figures relied upon by the Division Bench may create a suspicion in one 's mind that some element of arbitrariness might have entered the assessment in the viva voce examination. But suspicion cannot take the place of proof and we cannot strike down the selections made on the ground that the evaluation of the merits of the candidates in the viva voce examination might be arbitrary. It is necessary to point out that the Court cannot sit in judgment over the marks awarded by interviewing bodies unless it is proved or obvious that the marking is plainly and indubitably arbitrary or affected by oblique motives. It is only if the assessment is patently arbitrary or the risk of arbitrariness is so high that a reasonable person would regard arbitrariness as inevitable, that the assessment of marks at the viva voce test may be regarded as suffering from the vice of arbitrariness. Moreover, apart from the only three candidates, namely. Trilok Nath Sharma, Shakuntala Rani and Balbir Singh one of whom belonged to the general category and was related to Shri Raghubar Dayal Gaur and the other two were candidates for the seats reserved for Scheduled Castes and were related to Shri R.C. Marya, there was no other candidate in whom the Chairman or any member of the Haryana Public Service Commission was interested, so that there could be any motive for manipulation of the marks at the viva voce examination. There were of course general allegations of casteism made against the Chairman and the members of the Haryana Public Service Commission, but these allegations were not substantiated by producing any reliable material before the Court. The Chairman and members of the Haryana Public Service Commission in fact belonged to different castes and it was not as if any particular caste was predominant amongst the Chairman and members of the Haryana Public Service Commission so as even to remotely justify an inference that the marks might have been manipulated to favour the candidates of that caste. We do not think that the Division Bench was right in striking down the selections made by the Haryana Public Service Commission on the ground that they were vitiated by arbitrariness or by reasonable likelihood of bias. That takes us to the next ground of challenge which found acceptance with the Division Bench. This ground of challenge was strenuously urged on behalf of the petitioners and it was sought to be supported by reference to the decision of this Court in Ajay Hasia vs Khalid Mujjubudin. The contention of the petitioners under this 694 ground of challenge was that in comparison to the marks allocated to the written examination, the proportion of the marks allocated to the viva voce test was excessively high and that introduced an irredeemable element of arbitrariness in the selection process so as to offend Articles 14 and 16 of the Constitution. It is necessary in order to appreciate this contention and to adjudicate upon its validity to consider the relative weight attached by the relevant rules to the written examination and viva voce test. We have already referred to the Punjab Civil Service (Executive Branch) Rules 1930 as applicable in the State of Haryana. Rule 9 of these rules prescribes that a competitive examination shall be held in accordance with the Regulations set out in Appendix 1 for the purpose of selection by competition of candidates to the Haryana Civil Service (Executive Branch) and other allied services and under Regulations 1 and 5 every ex service officer has to appear in a written examination in 5 compulsory subjects carrying in the aggregate 400 marks and a viva voce test carrying 200 marks and likewise, every candidate belonging to the general category has to appear in a written examination in 8 subjects carrying in the aggregate 700 marks and for him also there is a viva voce test carrying 200 marks. The argument of the petitioners was that in case of ex service officers the marks allocated for the viva voce test were 200 as against 400 allocated for the written examination so that the marks allocated for the viva voce test came to 33.3% of the total number of taken into account for the purpose of making selection. So also in the case of candidates belonging to the general category, the marks allocated for the viva voce test were 200 as against 700 allocated for the written examination with the result that the marks allocated for the viva voce test came to 22.2% of the total number of marks for the competitive examination. This percentage of 33.3% in the case of ex service officers and 22.2% in the case of other candidates was, according to the Division Bench, unduly high and rendered the selection of the candidates arbitrary. The correctness of this view has been challenged before us on behalf of the respondents. This Court speaking through Chinnappa Reddy, J. pointed out in Liladhar vs State of Rajasthan that the object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the 695 essential foundation of any useful and efficient public service. So open competitive examination has come to be accepted almost universally as the gateway to public services. But the question is how should the competitive examination be devised? The competitive examination may be based exclusively on written examination or it may be based exclusively on oral interview or it may be a mixture of both. It is entirely for the Government to decide what kind of competitive examination would be appropriate in a given case. To quote the words of Chinnappa Reddy, J. "In the very nature of things it would not be within the province or even the competence of the court and the Court would not venture into such exclusive thickets to discover ways out, when the matters are more appropriately left" to the wisdom of the experts. It is not for the Court to lay down whether interview test should be held at all or how many marks should be allowed for the interview test. Of course the marks must be minimal so as to avoid charges of arbitrariness, but not necessarily always. There may posts and appointments where the only proper method of selection may be by a viva voce test. Even in the case of admission to higher degree courses, it may sometimes be necessary to allow a fairly high percentage of marks for the viva voce test. That is why rigid rules cannot be laid down in these matters and not any courts. The experts bodies are generally the best judges. The Government aided by experts in the field may appropriately decide to have a written examination followed by a viva voce test. It is now admitted on all hands that while a written examination assesses the candidate 's knowledge and intellectual ability, a viva voce test seeks to assess a candidate 's overall intellectual and personal qualities. While a written examination has certain distinct advantages over the viva voce test, there are yet no written tests which can evaluate a candidate 's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities can be evaluated, perhaps with some degree of error, by a viva voce test, much depending on the constitution of the interview Board. Glenn Stahl has pointed out in his book on Public Personnel Administration that the viva voce test does suffer from certain disadvantages such as the difficulty of developing a valid and reliable oral test, the difficulty of securing a reviewable record of an oral test 696 and public suspicion of the oral test as a channel for the exertion of political influence and, as pointed out by this Court in Ajay Hasia ' case (supra), also of other corrupt, nepotistic or extraneous considerations, but despite these acknowledged disadvantages, the viva voce test has been used increasingly in the public personnel testing and has become an important instrument whenever tests of personnel attributes are considered essential. Glenn Stahl proceeds to add that "no satisfactory written tests have yet been devised for measuring such personnel characteristics as initiative, ingenuity and ability to elicit cooperation, many of which are of prime importance. When properly employed, the oral test today deserves a place in the battery used by the technical examiner. " There can therefore be no doubt that the viva voce test performs a very useful function in assessing personnel characteristics and traits and in fact, tests the man himself and is therefore regarded as an important tool along with the written examination. Now if both written examination and viva voce test are accepted as essential features of proper selection in a given case, the question may arise as to the weight to be attached respectively to them. "In the case of admission to a college for instance", as observed by Chinnappa Reddy, J. in Liladhar 's case, "where the candidate 's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later lief, greater weight has perforce to be given to performance in the written examination" and the importance to be attached to the viva voce test in such a case would therefore necessarily be minimal. It was for this reason that in Ajay Haisa 's case this Court took the view that the allocation of as high a percentage of marks as 33.3% to the viva voce test was "beyond all reasonable proportion and rendered the selection of the candidates arbitrary". But, as pointed out by Chinnappa Reddy, J., "in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way subject to basic and essential academic and professional requirements being satisfied". There may also be services "to which recruitment is made from younger candidates whose personalities are on the thresh hold of development and who show sings of great promise" and in case of such services where sound selection must combine academic ability with personality promise, some weight has to be given to the viva voce test. There cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination. It must vary from service to service 697 according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding the viva voce test is proposed to be entrusted and a host of other factors. It is essentially a matter for determination by experts. The Court does not possess the necessary equipment and it would not be right for the Court to pronounce upon it, unless to use the words of Chinnappa Reddy, J. in Liladhar 's case "exaggerated weight has been given with proven or obvious oblique motives. " We may now, in the background of this discussion, proceed to consider whether the allocation of as high a percentage of marks as 33.3 per cent in case of ex service officers and 22.2 per cent in case of other candidates, for the viva voce test renders the selection process arbitrary. So far as ex service officers are concerned, there can be no doubt that the percentage of marks allocated for the viva voce test in their case is unduly high and it does suffer from the vice of arbitrariness. It has been pointed out by the Division Bench in a fairly elaborate discussion that so far as the present selections in the category of ex service officers are concerned, the spread of marks in the viva voce test was inordinately high compared to the spread of marks in the written examination. The minimum marks required to be obtained in the written examination for eligibility for the viva voce test are 180 and as against these minimum 180 marks, the highest marks obtained in the written examination in the category of ex service officers were 270, the spread of marks in the written examination thus being only 90 marks which works out to a ratio of 22.2 per cent. But when we turn to the marks obtained in the viva voce test, we find that in case of ex service officers the lowest marks obtained were 20 while the highest marks secured were 171 and the spread of marks in the viva voce test was thus as wide as 151 in a total of 200 marks, which worked out to an inordinately high percentage of 76. The spread of marks in the viva voce test being enormously large compared to the spread of marks in the written examination, the viva voce test tended to become a determining factor in the selection process, because even if a candidate secured the highest marks in the written examination, he could be easily knocked out of the race by awarding him the lowest marks in the viva voce test and correspondingly, a candidate who obtained the lowest marks in the written examination could be raised to the top most position in the merit list by an inordinately high marking in the viva voce test. It is therefore obvious that the allocation of 698 such a high percentage of marks as 33.3 per cent opens the door wide for arbitrariness, and in order to diminish, if not eliminate the risk of arbitrariness, this percentage need to be reduced. But while considering what percentage of marks may legitimately be allocated for the viva voce test without incurring the reproach of arbitrariness it must be remembered that ex service officers would ordinarily be middle aged persons of mature personality and it would be hard on them at that age to go through a long written examination involving 8 subjects and hence it would not be unfair to require them to go through a shorter written examination in only 5 subjects and submit to a viva voce test carrying a higher percentage of marks than that might be prescribed in case of younger candidates. The personalties of these ex service officers being fully mature and developed, it would not be difficult to arrive at a fair assessment of their merits on the basis of searching and incisive viva voce test and therefore in their case, the viva voce test may be accorded relatively greater weight. But in any event the marks allocate for the viva voce test cannot be as high as 33.3 per cent. The position is no different when we examine the question in regard to the percentage of marks allocated for the viva voce test in case of persons belonging to the general category. The percentage in the case of these candidates is less than that in the case of ex service officers, but even so it is quite high at the figure of 22.2. Here also it has been pointed out by the Division Bench by giving facts and figures as to how in the case of present selections from the general category the spread of marks in the viva voce test was inordinately high compared to the spread of marks in the written examination so that a candidate receiving low marks in the written examination could be pulled up to a high position in the merit list by inordinately high marking in the viva voce test. The viva voce test in the general category, too, would consequently tend to become a determining factor in the process of selection, tilting the scales in favour of one candidate or the other according to the marks awarded to him in the viva voce test. This is amply borne out by the observations of the Kothari Committee in the Report made by it in regard to the selections to the Indian Administrative Service and other allied services. The competitive examination in the Indian Administrative Service and other allied services also consists of a written examination followed by a viva voce test. Earlier in 1948 the percentage of marks allocated for the viva voce 699 test was 22 and it was marginally brought down to 21.60 in 1951 and then again in 1964, it was scaled down to 17.11. The Kothari Committee in its Report made in 1976 pleaded for further reduction of the percentage of marks allocated for the viva voce test and strongly recommended that the viva voce test should carry only 300 out of a total of 3000 marks. The Kothari Committee pointed out that even where the percentage of marks allocated for the viva voce test was 17.11, nearly 1/4th of the candidates selected owed their success to the marks obtained by them at the viva voce test. This proportion was regarded by the Kothari Committee as "somewhat on the high side". It is significant to note that consequent upon the Kothari Committee Report, the percentage of marks allocated for the viva voce test in the competitive examination for the Indian Administrative Service and other allied services was brought down still further to 12.2. The result is that since the last few years, even for selection of candidates in the Indian Administrative Service and other allied services where the personality of the candidate and his personnel characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for the viva voce test constitute only 12.2 per cent of the total marks. Now if it was found in the case of selections to the Indian Administrative Service and other allied services that the allocation of even 17.11 per cent marks for the viva voce test was on the higher side and it was responsible for nearly 1/4th of the selected candidates securing a place in the select list owing to the marks obtained by them at the viva voce test, the allocation of 22.2 per cent marks for the viva voce test would certainly be likely to create a wider scope for arbitrariness. When the Kothari Committee admittedly an Expert Committee, constituted for the purpose of examining recruitment policy and selection methods for the Indian Administrative Service and other allied services took the view that the allocation of 17.1 per cent marks for the viva voce test was on the higher side and required to be reduced, it would be legitimate to hold that in case of selections to the Haryana Civil Services (Executive Branch) and other allied services, which are services of similar nature in the State, the allocation of 22.2 per cent marks for the viva voce test was unreasonable. We must therefore regard the allocation of 22.2 per cent of the total marks for the viva voce test as infecting the selection process with the vice of arbitrariness. But the question which then arises for consideration is as to what is the effect of allocation of such a high percentage of marks 700 for the viva voce test, both in case of ex service officers and in case of other candidates, on the selections made by the Haryana Public Service Commission. Though we have taken the view that the percentage of marks allocated for the viva voce test in both these cases is excessive, we do not think we would be justified in the exercise of our discretion in setting aside the selections made by the Haryana Public Service Commission after the lapse of almost two years. The candidates selected by the Haryana Public Service Commission have already been appointed to various posts and have been working on these posts since the last about two years. Moreover the Punjab Civil Service (Executive Branch) Rules 1930 under which 33.3 per cent marks in case of ex service officers and 22.2 per cent marks in case of other candidates, have been allocated for the viva voce test have been in force for almost 50 years and everyone has acted on the basis rules. If selections made in accordance with the prescription contained in these rules are now to be set aside, it will upset a large number of appointments already made on the basis of such selections and the integrity and efficiency of the entire administrative machinery would be seriously jeopardised. We do not therefore propose to set aside the selections made by the Haryana Public Service Commission though they have been made on the basis of an unduly high percentage of marks allocated for the viva voce test. Now if the allocation of such a high percentage of marks as 33.3 in case of ex service officers and 22.2 in case of other candidates, for the viva voce test is excessive, as held by us, what should be the proper percentage of marks to be allocated for the viva voce test in both these cases. So far as candidates in the general category are concerned we think that it would be prudent and safe to follow the percentage adopted by the Union Public Service Commission in case of selections to the Indian Administrative Service and other allied services. The percentage of marks allocated for the viva voce test by the Union Public Service Commission in case of selections to the Indian Administrative Services and other allied service is 12.2. and that has been found to be fair and just, as striking a proper balance between the written examination and the viva voce test. We would therefore direct that hereafter in case of selections to be made to the Haryana Civil Services (Executive Branch) and other allied services, where the competitive examination consists of a written examination followed by a viva voce test, the marks allocated for 701 the viva voce test shall not exceed 12.2 per cent of the total marks taken into account for the purpose of selection. We would suggest that this percentage should also be adopted by the Public Service Commissions is other States, because it is desirable that there should be uniformity in the selection process throughout the country and the practice followed by the Union Public Service Commission should be taken as a guide for the State Public Service Commissions to adopt and follow. The percentage of marks allocated for the viva voce test case of ex service officers may, for reasons we have already discussed, be somewhat higher than the percentage for the candidates belonging to the general category. We would therefore direct that in case of ex service officers, having regard to the fact that they would ordinarily be middle aged persons with personalities fully developed the percentage of marks allocated for the viva voce test may be 25. Whatever selections are made by the Haryana Public Service Commission in the future shall be on the basis that the marks allocated for the viva voce test shall not exceed 12.2 per cent in case of candidates belonging to the general category and 25 per cent in case of ex service officers. Before we part with this judgment we would like to point out that the Public Service Commission occupies a pivotal place of importance in the State and the integrity and efficiency of its administrative apparatus depends considerably on the quality of the selections made by the Public Service Commission. It is absolutely essential that the best and finest talent should be drawn in the administration and administrative services must be composed of men who are honest, upright and independent and who are not swayed by the political winds blowing in the country. The selection of candidates for the administrative services must therefore be made strictly on merits, keeping in view various factors which go to make up a strong, efficient and people oriented administrator. This can be achieved only if the Chairman and members of the Public Service Commission are eminent men possessing a high degree of calibre, competence and integrity, who would inspire confidence in the public mind about the objectivity and impartiality of the selections to be made by them. We would therefore like to strongly impress upon every State Government to take care to see that its Public Service Commission is manned by competent, honest and independent persons of outstanding ability and high reputation who command the confidence of the people and who would not allow themselves to be deflected by 702 any extraneous considerations from discharging their duty of making selections strictly on merits. Whilst making these observations we would like to make it clear that we do no for a moment wish to suggest that the Chairman and members of the Haryana Public Service Commission in the present case were lacking in calibre, competence or integrity. We would also like to point out that in some of the States, and the State of Haryana is one of them, the practice followed is to invite a retired Judge of the High Court as an expert when selections for recruitment to the Judicial Service of the State are being made and the advice given by such retired High Court Judge who participates in the viva voce test as an expert is sometimes ignored by the Chairman and members of the Public Service Commission. This practice is in our opinion undesirable and does not commend itself to us. When selections for the Judicial Service of the State are being made, it is necessary to exercise the utmost care to see that competent and able persons possessing a high degree of rectitude and integrity are selected, because if we do not have good, competent and honest judges, the democratic polity of the State itself will be in serious peril. It is therefore essential that when selections to the Judicial Service are being made, a sitting Judge of the High Court to be nominated by the Chief Justice of the State should be invited to participate in the interview as an expert and since such sitting Judge comes as an expert who, by reason of the fact that he is a sitting High Court Judge, knows the quality and character of the candidates appearing for the interview, the advice given by him should ordinarily be accepted, unless there are strong and cogent reasons for not accepting such advice and such strong and cogent reasons must be recorded in writing by the Chairman and members of the Public Service Commission. We are giving this direction to the Public Service Commission in every State because we are anxious that the finest talent should be recruited in the Judicial Service and that can be secured only by having a real expert whose advice constitutes a determinative factor in the selection process. We accordingly allow the appeals, set aside the judgment of the Punjab and Haryana High Court and reject the challenge to the validity of the selections made by the Haryana Public Service Commission to the Haryana Civil Services (Executive Branch) and other allied services. But in view of the fact that an unduly large number of candidates were called for interview and the marks 703 allocated in the viva voce test were excessively high, it is possible that some of the candidates who might have otherwise come in the select list were left out of it, perhaps unjustifiably. We would therefore direct that all the candidates who secured a minimum of 45 per cent marks in the written examination but who could not find entry in the select list, should be given one more opportunity of appearing in the competitive examination which would now have to be held in accordance with the principles laid down in this Judgment and this opportunity should be given to them, even though they may have passed the maximum age prescribed by the rules for recruitment to the Haryana Civil Services (Executive Branch) and other allied services. We would direct that in the circumstances of the case the fair order of costs would be that each party should bear and pay his own costs throughout. [/INST]One N. Kanti Lal had 28% share in a partnership firm. The Partnership Deed, by cl. (10) provided that the firm shall not stand dissolved on death of any of the partners and the partner dying shall have no right whatever in the goodwill of the firm. On his death, the respondent accountable person filed necessary return under the without including the value of the share of the deceased in the goodwill of the firm. The Assistant Controller of Estate Duty, however, held that the share of the deceased in the goodwill of the firm was liable to be included in the principal value of his property and added the same to the value of the interest which the deceased had in the partnership assets. The Appellate Controller of Estate Duty confirmed the aforesaid order in appeal. The accountable person preferred appeal before the Appellate Tribunal contending: (1) that the deceased had no interest in the assets of the firm and hence his share in the goodwill did not pass at all; (2) that in view of cl. (10) of the Partnership Deed the share of the deceased partner in the goodwill did not pass and as such was not liable to the charge of estate duty; and (3) that when a partnership was a going concern, there could not be any separate valuation of the goodwill which went with the running business. The Tribunal rejected all the contentions and held that in spite of cl. (10) of the partnership agreement, the value of the goodwill to the extent of the share of the deceased passed on his death and it was liable to be charged to estate duty. 46 On reference by the Tribunal, the High Court held: (i) that the interest of the deceased in the firm was property within the meaning of the provisions of the ; and (ii) that the value of the interest of the deceased in the partnership firm would not include the goodwill of the partnership firm. This Court, on the question: 'Whether the value of the interest of the deceased in a partnership firm would include the goodwill of the partnership firm and liable to estate duty ', allowing the Appeal of the Revenue, ^ HELD: 1. In a partnership there is a community of interest in which all the partners take in the property of the firm. But that does not mean that during the subsistence of the partnership a particular partner has any proprietary interest in the assets of the firm. Every partner of the firm has a right to get his share of profits till the firm subsists, and he has also a right to see that all the assets of the partnership are applied to and used for the purpose of the partnership business. All these rights of a partner show that he has got a marketable interest in all the capital assets of the firm including the goodwill asset even during the subsistence of the partnership. This interest is 'property ' within the meaning of section 2(15) of the . [53 D F] 2. The goodwill of the firm is an asset in which the dying partner has a share. It passes on the death of the dying partner and the beneficiary of such passing would be one who by virtue of the partnership agreement would be entitled to the value of that asset. The fact that such interest might devolve not on the legal representatives but on a different group or category of persons or that from the goodwill the legal representatives might be excluded, would not make any difference for the purpose of assessment of estate duty. The entirety of the interest of the deceased partner that would pass, which necessarily included goodwill, would be includible in the estate. The valuation of such entire interest has to be determined as provided under section 36 of the read with Rule 7(2) of the Estate Duty Rules, 1953. [61 E G] 3. The share of the deceased in the partnership did not evaporate or disappear. It went together with the other assets and should be valued in the manner contemplated under Rule 7(c) of the Estate Duty Rules. The goodwill of the firm after the death of the dying partner does not get diminished or extinguished. Whoever has the benefit of that firm has the benefit of the value of that goodwill. Therefore, if by any 47 arrangement, for instance, clause (10) of the partnership agreement in the instant case, heirs do not get any share in the good will, the surviving partners who will have the benefit of the partnership will certainly have that benefit. Therefore, as a result of the death of the dying partner, there is cesser of interest as well as accrual or arising of benefit of the said cesser. B D] 4. Difficulties in making apportionment do not make a taxable item non taxable.[58 C] Perpetual Executors and Trustees Association of Australia Ltd. vs Commissioner of Taxes, = 25 I.T.R. (ED) 47, Attorney General vs Boden and Another, 1912 (I) K.B. 539, Addanki Narayanappa & Anr. vs Bhashara Krishnappa and 13 ors. , A.I.R. 1966 S.C. 1330=[1966] 3 SCR 400, Commission of Income tax, Madras vs Best and Co. (Private) Ltd., 60 I.T.R.11 and Khushal Khemgar Shah vs Mrs. Khorshed Banu; , relied upon. Controller of Estate Duty, Madras vs Ibrahim Gulam Hussain Currimbhoy, , State vs Prem Nath, , Controller of Estate Duty, Bombay City I vs Fakirchand Fatchchand Sachdev, , Controller of Estate Duty vs Kanta Devi Taneja, and Controller of Estate Duty, West Bengal vs Annaraj Mehta and Deoraj Mehta, , approved. Attorney General of Ceylon vs AR. Arunachalam Chettiar and Others, E.D., Alladi Kuppuswami vs Controller of Estate Duty, Madras, and Smt. Surumbayi Ammal vs Controller of Estate Duty, Madras, , distinguished. Controller of Estate Duty vs Smt. Ram Sumarni Devi, and P. Abdul Sattar vs Controller of Estate Duty, , overruled. </s>

<s>[INST] Summarize the judgementAppeals Nos. 1062 and 1063 of 1966. Appeals by special leave from the judgment and order dated February 15, 1965 of the Calcutta High Court in matters Nos. 231 ,in,] 232 of 1964. R. M. Hazarnavis, K. D. Karkhanis, R. H. Dhebar and R. N. Sachthey, for the appellant. A. K. Sen, T. A. Rancachandran, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent. The judgment of the Court was delivered by Wanchoo, J. These two appeals by special leave arise out of two applications by the appellant to the Income tax Appellate 175 Tribunal for reference to the High Court of a question of law, which was formulated as follows: "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the reassessment proceedings under section 17(b) of the Wealth Tax Act were not validly initiated and in setting aside the same. " The facts which led to the applications for reference are briefly these. The respondent submitted wealth tax returns for the years 1957 58 and 1958 59. For the year 1957 58 the respondent claimed that an amount of Rs. 51 lakhs and odd being provision for taxation and another amount of Rs. 37 lakhs and odd being provision for contingencies, being ascertained liability, should be allowed as deduction from the total wealth. For the year 1958 59, the respondent claimed Rs. 31 lakhs and odd being provision for contingencies as ascertained liability as deduction from the total wealth. Assessment for the year 1957 58 was completed on December 30, 1957 and the Wealth tax Officer accepted the contention of the respondent and allowed the claim for deduction. Subsequently the Commissioner of Wealth tax by his order dated December 29, 1958 passed under section 25(2) of the Wealth Tax Act, No. XXXVII of 1957, (hereinafter referred to as the Act) disallowed the deduction of Rs. 51 lakhs and odd being the provision for taxation for the assessment year 1957 58. The order of the Wealth tax Officer allowing deduction for contingencies for the assessment year 1957 58 however stood. The assessment for the year 1958 59 was completed on December 9, 1958 and deduction was allowed for contingencies only. It may be added that we are not concerned in the present appeals so far as deduction for provision for taxa tion is concerned. On March 22, 1960, the Wealth tax Officer completed the assessment of the respondent for the year 1959 60 and disallowed the claim for deduction of the provision for contingencies. On June 2, 1960, the Wealth tax Officer issued two notices under section 17(b) of the Act for reassessment of net wealth for the years 1957 58 and 1958 59. On September 24, 1961 orders of reassessment under section 16(3) read with section 17(b) of the Act were passed in respect of the assessment years 1957 58 and 1958 59 and by these orders the amounts which had been formerly allowed as deduction with respect to contingencies were included in the total wealth of the respondent. The respondent then went in appeal against the two reassessment orders and the Appellate Assistant Commissioner sustained the decision of the Wealth tax Officer with respect to the reassessments in question. The case of the respondent was that the Wealth tax Officer had no information on the basis of which he could proceed to reassess the net wealth of the respondent and in this connection reliance was placed on the words "in consequence of any information in his possession" appearing in section 17(b) of the Act. 176 The respondent then went in appeal to the Appellate Tribunal and his contention there was that the issue of notices under section 17(b) of the Act was invalid as it was based on a mere change of opinion on the part of the Wealth tax Officer, as at that time there was no information in the possession of the Wealth tax Officer which could lead him to believe that the net wealth chargeable to tax had escaped assessment. It was contended that such information must be information which came into possession of the Wealth tax Officer subsequent to the making of the original assessment and that the information must lead him to believe that income chargeable to tax had escaped assessment. The Tribunal accepted this contention of the respondent. It may be pointed out that the assessment made by the Wealth tax Officer for the year 1959 60 was taken in appeal to the Appellate Assistant Commissioner by the respondent and the respondent 's appeal was dismissed in November 1960. The Tribunal pointed out that if the Wealth tax Officer had waited till after the decision of the Appellate Assistant Commissioner about the assessment for the year 1959 60 and then issued notices there would have been sufficient information for the purpose of section 17(b) with the Wealth tax Officer to authorise him to issue notice thereunder , but as the Wealth tax Officer issued the notices in June 1960 before that appeal was decided, it was only a case of change 'of opinion by the Wealth tax Officer which did not justify issue of notices under section 17(b). The Tribunal also pointed out that the departmental representative was specifically asked what the information was upon which the Wealth tax Officer came to the conclusion that taxable wealth had escaped assessment. The departmental representative was unable to point to any specific information which came into the possession of the Wealth tax Officer and which could lead him to issue the notices in question. The Tribunal therefore held that the reassessment proceedings under section 17(b) for the years 1957 58 and 1958 59 were not validly initiated and set them aside. Thereupon the appellant applied to the Tribunal for making references under section 27(1) of the Act. The Tribunal rejected the applications. The appellant then applied to the High Court under section 27(3) of the Act for direction to the Tribunal to state a case. The High Court however rejected the applications summarily. Thereupon the appellant applied to this Court for special leave which was granted; and that is how the matter has come before us. The main contention that has been urged on behalf of the appellant before us is that there is divergence of opinion among the High Courts on the question as to what constitutes "information" for the purpose of section 34(1)(b) of the Indian Income tax Act. No. IT of 1922, (hereinafter referred to as the Income tax Act). That section is in pari materia with section 17(b) of the Act and therefore a question of law did arise which should have been referred to the 177 High Court for its decision on the question raised by the appellant. Reliance in this connection is placed on the decision of this Court in Maharajkumar Kamal Singh vs Commissioner of Income tax Bihar(1) where this Court held that "the word 'information ' in section 34(1)(b) included information as to the true and correct state of the law, and so would cover information as to relevant judicial decisions". A further question was raised in that case, namely, "whether it would be open to the Income tax Officer to take action under section 34(1) on the ground that he thinks that his original decision in making the order of assessment was wrong without any fresh information from an external source or whether the successor of the Income tax Officer can act under section 34 on the ground that the order of assessment passed by his predecessor was erroneous". That question was not decided by this Court in that case, though this Court pointed out that in construing the scope and effect of section 34, the High Courts had expressed divergent views on the point. It is urged on behalf of the appellant that the precise question left undecided by this Court in Maharajkumar Kamalsingh 's case(1) arises in the present case, and as there are divergent views taken by the High Courts on that question, a question of law did arise on the order of the Appellate Tribunal and therefore the Tribunal should have made a reference. In Commissioner of Income tax Bombay vs Sir Mohomed Yusuf Ismail(1) it was held by the Bombay High Court as far back as 1943 that under section 34 a mere change of opinion on the same facts or on a question of law or the mere discovery of a mistake of law is not sufficient information within the meaning of section 34 and that in order to take action under section 34 there must be some information as a fact which leads the Income tax Officer to discover that income has escaped or has been under assessed. The same view was taken in a later case by the Nagpur High Court in Income tax Appellate Tribunal Bombay vs B. P. Byramji & Co.(1) where it was again emphasised that a mere change of opinion by the Income tax Officer is no ground for taking action under section 34, Further in Bhimraj Pannalal vs Commissioner of Income tax Bihar(1) it was held by the Patna High Court that "an order of assessment made after investigation by a particular officer should Jr not at his sweet will and pleasure be allowed to be revised merely because he changed his opinion and that there must exist something either suppressed by the assessee or a fact or a point of law which was inadvertently or otherwise omitted to be considered by the Income tax Officer, before he can proceed to act under section 34; and a mere change of opinion on the same facts and law is not covered by that section." (1) [1959] supp. 1 S.C.R. 10: (2) (1944) 12 T.T.R. section (3) (4) 178 The appellant on the other hand relies on some recent deci sions which show that there is some divergence of opinion in the High Courts on this question. In Salem Provident Fund Society Limited vs Commissioner of Income tax Madras(1) the Madras High Court held that "information for the purpose of section 34 need not be wholly extraneous to the record of the original assessment. A mistake apparent on the face of the order of assessment would itself constitute 'information '; whether someone else gave that information to the Income tax Officer or whether he informed himself was immaterial. " In Commissioner of Income tax vs Rathinasabhapathy Muda liar(1) the Madras High Court again held that "the discovery of the Income tax Officer after he had made the assessments that he had committed an error in not including the minor 's income in the father 's assessment was 'information ' obtained after the assessment, and even though all the facts were in the original records, the case was covered by section 34(1)(b) of the Income tax Act and the reassessment was not invalid, and this was not a case of mere change of opinion on the same facts but a case of getting information that income had escaped assessment. " In Canara Industrial and Banking Syndicate Limited vs Com missioner of Income tax, Mysore,(1) the Mysore High Court held that "if income had escaped assessment owing to the failure of the Income tax Officer to understand the true implication of a notification, and the Income tax Officer later on finds that on a correct interpretation of the notification the income was liable to be assessed, he can take proceedings under section 34 for assessment of such income; the word 'information ' in section 34 is wide enough to apply to such a case." The last case to which reference is made is Asghar Ali Mohammad Ali vs Commissioner of Income tax(1) wherein the Allahabad High Court held that "the word 'information ' used in the provision covers all kinds of information received from any person whatsoever or in any manner whatsoever; all that is required is that the Income tax Officer should learn something i.e. he should know something which he did not know previously. " It was further held that "if there is information leading to the belief that income has escaped assessment, the mere fact that this information has resulted in a change of opinion will not make section 34 inapplicable. A change of opinion is not sufficient for initiating proceedings under section 34, only when such change of opinion is the result of a different method of reasoning, and not based on 'information ' (1) (2) (3) (4) 179 It does appear that some High Courts at any rate are taking the view that a change of opinion by the Income tax Officer in certain circumstances will be sufficient for the purpose of section 34(1) (b) and will justify the issue of a notice thereunder. It may be added that after the decision of this Court in Maharajkumar Kamal Sigh 's case(1) it is now settled that "information in section 34(1)(b) included information as to the true and correct state of law, and so would cover information as to relevant judicial decisions" and that such information for the purpose of section 34(1)(b) of the Income tax Act need not be confined only to cases where the Income tax Officer discovers as a fact that income has escaped assessment. To that extent the decision of the Bombay High Court in Sir Mohanmed Yusuf Ismail(1) has been overruled. That is why the Appellate Tribunal stated in its decision that if the notices in the present case had been issued after the decision of the Appellate Assistant Commissioner in the appeal from the assessment for the year 1959 60, there would have been information in possession of the Wealth tax Officer to justify him in issuing notices under section 17(b) of the Act. But in the present case the Wealth tax Officer issued notices before that decision was known to him and the question is whether in the circumstances, in view of the later decisions of the High Courts to which we have referred, a question of law arose or not. The language of section 17(b) of the Act is in pari materia with the language of section 34(1)(b) of the Income tax Act and therefore the decisions under section 34(1)(b) of the latter Act would be relevant in construing the scope and effect of section 17(b) of the Act. There does appear to be divergence of opinion among the High Courts as to the meaning of the word "information" in section 34(1)(b) of the Income tax Act, and in view of that divergence we are of opinion that a question of law did arise in the present case as to the interpretation of the word "information" in section 17(b) of the Act and should have been referred by the Tribunal. We therefore allow the appeals, set aside the order of the High Court and direct the Tribunal to state a case referring the question of law arising in these cases in the form suggested by the appellant. The Tribunal will be free to decide whether to refer the matter to the High Court under section 27(1) or to this Court under section 27 (3A) of the Act. Costs of this Court will abide the result of the reference. Appeals allowed. (1) [1959] Supp. 1 S.C.R. 10. [/INST]In August 1957 the appellant created two Trusts by two sepa rate deeds, one of which was a charitable trust and the other a family trust. He then transferred certain shares to the family trust the scheme of which was that during the minority of each of three children of the appellant the property in Schedules A, B and C to the deed qua each beneficiary was to remain vested in the trustees for the benefit of the charitable trust, and after the expiry of the period specified in each case, the corpus and income was to be herd for the beneficial, ownership of the three children. By Clause 9 of the family trust deed, it was provided that the interests granted or created in the respective beneficiaries shall vest in them immediately upon execution of the deed; Clause 21 conferred upon the trustees power either to use the income accruing under the trust for the benefit of the charitable trust during the period prescribed in each case upto the time that each of the three children attained majority or to accumulate the income and deliver it on the expiry of the periods specified to the trustees of the charitable trust. Clause 26 provided that notwithstanding anything. contained in Clauses 21 to 25 the trustees could expend the income accruing under the settlement to each of the beneficiaries therein for the maintenance, education, health, marriage and. advancement of the beneficiaries. In computing the nett wealth of the assesses under the Wealth Tax Act 1957, as on March 31, 1958 and March 31, 1959, the valuation dates respectively for the assessment years 1958 59 and 1959 60, the Wealth Tax Officer and the Appellate Assistant Commissioner included the value of the shares held by the trustees under the family trust, on the ground that these shares were held by them for the benefit of the minor children within the meaning of Section 4(1)(a) (iii) of the Act. On appeal the Appellate Tribunal reversed this decision but. upon a reference, the High Court decided the issue against the assessee. In the appeal to this court, it was contended on behalf of the Revenue that the word "benefit" in the Section meant immediate or deferred benefit and the amendment of Section 4(1)(a)(iii) by Act 46 of 1964 whereby the words "immediate or deferred" were introduced before the word "benefit" in the Section, was in effect only declaratory; and that in any event it was clear from the recitals in the preamble and the other terms of the family trust deed that the intention of the appellant was to make a settlement for the benefit of his minor children within the meaning of the Section prior to its amendment. 420 HELD: (per Wanchoo and Sikri, JJ.). Considering the terms of the family trust deed as a whole, the shares transferred to the trustees were not held for the benefit of the three minor children as on March 31, 1958 and March 31, 1959 within the meaning of section 4(1)(a) (iii)and could not therefore be included in the nett wealth of the as e. [426E] By the terms of the deed, it, war. the charitable trust which was entitled to the income of the shares in Schedules A, B and C during the years before the minor children attained majority; upto that time the children had no interest whatsoever in that income. It could not therefore be said that the settlement was for the immediate benefit of the minor children. [426B C] Although the non obstante clause 26 purported to override the provisions of Clauses 21 to 25, the inclusion of Clause 21 appeared to be a typographical error. In any event even assuming that there was a conflict between Clauses 21 and 26, the earlier disposition under Clause 21 would Prevail over the later directions contained in Clause 26. Sahabzada Mohammed Kamgar Shah vs Jagdish Chandra Deo Dhabal Deo ; , 611. and Ramkishore Lai vs Kamal Narain (1963) Supp. 2 S.C.R. 417, 425; referred to. [427B C] (per Shah J. dissenting): The primary intention of the appellant as disclosed in the preamble of the family trust deed was to make provision for his children; from the terms of the trust deed and particularly from reading Clauses 9 & 26 together, it was clear that there was a vested interest immediately arising in favour of the children on the execution of the instrument, and that they were the real beneficiaries. The High Court had therefore rightly held that the shares transferred to the family Trust were for the immediate benefit of the settlor 's minor children within the meaning of Section 4(1)(a)(iii) and were liable to be included in the computation of wealth of the appellant. [435C E] (By the Court): The words "immediate or deferred" introduced into Section 4(1) (a)(iii) by Act 1946 of 1964 were not merely declaratory. The amendment made a deliberate change. The word 'benefit ' must therefore be construed apart from the amendments and in the context meant "for the immediate benefit of the individual or his wife or minor child". [422C, D] </s>

<s>[INST] Summarize the judgementvil Appeal No. 636 of 1964. Appeal from the judgment and decree dated September 1, 1959 of the Madras High Court in O. section Appeal No. 104 of 1955. T. V. R. Tatachari, for the appellants. R. Thiagarajan, Jayaram and M. R. K. Iyer, for respondents, Nos. 1 and 9. 722 The Judgment of the Court was delivered by Mitter, J. This is an appeal from a judgment of the High .Court at Madras on a certificate granted by it. The main question in this appeal relates to the rate of interest payable in respect of four mortgages executed in between March 20, 1936 and January 2, 1938. Both the learned trial Judge, Ramaswami J. of the Madras High Court and the Bench of two Judges in appeal were of the view that the provision for interest in the impugned mortgages should be reduced; but whereas the learned trial Judge reduced the rate of interest from 15 pet cent compoundable every quarter to 15 per cent compoundable with yearly rests, the Judges in appeal after taking all the circumstances into consideration held that 10 per cent compound interest with yearly rests would not be excessive and they reduced the rate accordingly. They also scaled down the rate of interest to 6 per cent from the date of the institution of the suit. The creditor has come up before this Court in appeal and his substantial complaint is that the rate of interest should not have been cut down by the Division Bench of the Madras High Court. The power of the court to reduce interest in a case like this is derived from section 3 of the Usurious Loans (Madras Amendment) Act VIII of 1937. Sub section (1) of that section gives the court the power to give relief in various ways if it has reason to believe that the transaction as between the parties thereto was substantially unfair. One of such reliefs is the reopening of the transaction and relieving the debtor of all liability in respect of any excessive interest. Explanation I to the section lays down that "if the interest is excessive, the court shall presume that the transaction was substantially unfair; but such presumption may be rebutted by a number of special circumstances justifying the rate of interest. " Sub section (2) of section 3 provides by clause (a) that the word "excessive" in the section means in excess of that which the court deems to be reasonable having regard to the risk incurred as it appeared or must be taken to have appeared, to the creditor at the date of the loan. Under clause (b) of the said sub section the court has also to take into account any amounts charged or paid etc. and if compound interest is charged, the period at which it is calculated and the total advantage which may reasonably be taken to have been expected from the transaction. Clause (c) of sub section 2 provides that in considering the question of risk, the court shall take into account the presence or absence of security and the value thereof, the financial condition of the debtor and the result of any previous transactions of the debtor, by way of loan, so far as the same were known, or must be taken to have been known, to the creditor. Clause (d) of the said sub section enjoins upon the court to consider also all circumstances materially affecting the relations 723 the parties at the time of the loan or tending to show that the transaction was unfair, including the necessities or supposed necessities of the debtor at the time of the loan so far as the same were known, or must be taken to have been known, to the creditor. In effect the provisions of the section which are relevant for the purpose of this appeal are as follows: (a)If the Court has reason to believe that the transaction was unfair it will exercise the powers given by subsection, (1). (b)The court shall presume the transaction to be sub stantially unfair if the interest is excessive, such pre sumption being a rebuttable one by the special circumstances of the case; (c)In order to find out whether the interest is excessive the court must examine the circumstances of the case in the light of the risk incurred or the risk as would be apparent to the creditor at the date of the loan, and then judge whether compound interest at the rate prescribed and with therests provided for was justifiable keeping also in view thesecurity given by the mortgagor, the value of such securityand the condition of the debtor including the result of any previous transaction. The net result of the above seems to be that the Court must go back to the date of the original transaction and form an opinion as to the rate of interest which would be reasonable after considering (a) the value of the security offered; (b) the financial condition of the debtor including the result of any prior transaction; (c) the known or probable risks in getting repayment, (d) whether compound interest was provided for and if so the frequency of the period of calculation of interest for being added to the principal amount of the loan. The facts of the case may now be briefly stated. The original mortgagor Dhanakoti Ammal had succeeded to the properties of her father along with her sisters under a will executed by him on the basis that the properties were his self acquired properties. Her brother Alavandar filed a suit in the year 1919 through a next friend claiming that the properties were not the self acquired properties of his father and as such not capable of bequest under a will. This suit was dismissed as also the appeal therefrom to 724 the Madras High Court preferred in 1922. By the year 1936 when the first mortgage in favour of Srinivasavaradachariar, the appellant, before us, was executed, Dhanakoti Ammal was involved in debts. The most important item of her properties was a market on the outskirts of the city of Madras which had become dilapidated and the Corporation of Madras was refusing to renew the licence unless it was put in good order. She had further borrowed a sum of money repayable with interest at 20 per cent compoundable monthly. Her brother Alavandar who was due to attain majority very soon threatened to file another suit impeaching the decree in the earlier suit. As a matter of fact, the first two mortgages were executed in 1936 before Alavandar had filed his suit and the last mortgage was executed in January 1938. Dhanakoti Ammal got more and more involved in debt and was adjudicated an insolvent in 0. P. 148 of 1949. Her properties got vested in the Official Assignee of Madras. The Official Assignee brought the properties to sale which were ultimately purchased by Dr. Gopala Menon for Rs. 5,0001 . Dr. Gopala Menon tried to come to an arrangement with Srinivasavaradachariar but nothing came out of it and the suit out of which this appeal has arisen was filed in the year 1950. Other aliences were involved in the suit but we are not concerned with them. According to the learned trial Judge the risks which the creditor ran in advancing the money were considerable in that the adequacy of the security was questionable in view of the threat of suit by Dhanakoti Ammal 's brother and the condition of the property in an undeveloped area of Kodambakkam. The learned trial Judge could not find anything unfair in the transaction, but nevertheless he thought that the rate of interest should be scaled down to 15 per cent compoundable at the end of each. The learned Judges of the Division Bench of the Madras High Court found that the amount advanced under the old mortgages came to nearly Rs. 48,000/ that there was already a prior mortgage in respect of which nearly Rs. 8,000/ was due and the value of the security though not very ample could not be said to be markedly inadequate and there was a shadow on the title of the mortgagor by reason of the threat of suit by her brother. On a consideration of the entire evidence bearing on the point revealing the circumstances in which the loan transaction came into existence the appellate bench held that 15 per cent compound interest calculated with quarterly rests was certainly excessive. Taking note of several decisions of the Madras High Court to which we shall presently refer, the learned Judges thought that the rate of interest to be allowed was 10 per cent compound interest with yearly rests. It is difficult to predicate of any rate of interest as being excessive divorced from the circumstances of the case unless the rate 725 fixed is so high as to be suggestive of an unfair transaction on the face of things. It is not for us to speculate as to why the Legislature of the State of Madras proceeded in such a round about way in making amendments to the Usurious Loans Act of 1918 for the purpose of giving relief to borrowers when it is well known that at or about the time of the Madras amendment the Legislatures of other States in India had fixed certain rates as being the maximum beyond which the courts of law were not competent to go. So far as we are aware difference was made in the treatment of unsecured loans and secured loans and even in the case of the former the rate allowed was not to exceed 12 per cent simple in most of the States. With regard to the rate of interest allowed by the Madras High Court after 1937 we find that in Venkatarao vs Venkataratnam(l) a bench consisting of Govinda Menon and Ramaswami JJ. observed, "that anything above 12 per cent per annum simple interest is excessive, considering the nature of transaction in this State. " There the suit was on a mortgage which provided for payment of interest at 12 1/2 per cent per mensem with annual rests. In Sri Balasaraswati vs A. Parameswara Aiyar(2) a Division Bench consisting of Rajamannar C. J. and Panchapekesa Ayyar J. observed, "in normal cases where the security is ample to cover the loan and there is no danger at all to the principal and interest the court will hold more than 12 per cent simple interest to be excessive, as held in A.I.R. 1952 Madras 872 and by us in A.S. 348 and 361 of 1948". According to the learned Judges "Where the security is not sound, 10 per cent compound interest can be allowed as in In the result the learned Judges only allowed simple interest at 12 per cent per annum. In the instant cases the learned Judges in appeal also referred to a judgment, of Subba Rao J. (as he then was) in C. section 163 of 1949 as containing an observation that the dictum in Venkatarao vs Venkatratnam(l) that "anything above 12 per cent simple interest was excessive would not be taken as a principle of law applicable to all cases irrespective of the circumstances obtaining at the time of the transaction". That transaction also related to Dhanakoti Ammal the original debtor in this case and Subba Rao J. (as he then was) reduced the rate of interest from 15 per cent compound interest to 12 per cent per annum simple. We have not had the benefit of reading the judgment of his Lordship, but we take it that the result of it is as indicated in the judgment in appeal before us. It appears to us therefore that in the opinion of a number of Judges of the Madras High Court who were cognizant of the state of affairs prevailing in the State interest beyond the rate of 12%. per annum simple would be considered excessive by court of law where the security was not inadequate and the risk run by the creditor was not abnormal. There can be no dispute that (1) A.I.R. 1952 Madras 872. (2) A.I.R. 1957 Madras 122, 129. 726 interest payable at the rate of 10 per cent compoundable annually over a number of years would be more in the interest of the creditor than 12 per cent per annum simple for the same period. In our opinion the learned Judges of the Division Bench of the Madras High Court were right in holding that 10 per cent compound interest with yearly rests would meet the justice of the case. The security was not inadequate and the threat of suit by Alavandar in view of the fact that his earlier suit which had been taken in appeal to the Madras High Court and subsequently lost, was never regarded seriously. This is corroborated by the fact that even after the institution of that suit in 1937 the appellant before us advanced further sums of money to Dhanakoti Ammal at the same rate of interest as before; if he had thought that his security was put in jeopardy by the institution of the suit he would have been careful not to advance any further amounts and would in any case have insisted on the rate of interest being higher than that provided for in the earlier mortgages. In our opinion the Division Bench of the Madras High Court made a correct assessment of the situation and their pronouncement with regard to the rate of interest prior to the date of the suit ought not to be disturbed. We also find no reason to interfere with the scaling down of the rate of interest to 6 per cent from the date of the filing of the suit. Although the reasons are not indicated, it seems fairly plain that their Lordships were using their discretion as regards interest pendente lite. We cannot overlook the fact that the mortgages were executed as far back as 1936 and 1938 and that the creditor who had waited till 1950 for the institution of the suit would, in any event, get interest substantially exceeding the principal amount of the loans. In this view of things we are not prepared to interfere with the exercise of the discretion exercised by the learned Judges of the Madras High Court even though they have given no reasons for the reduction of rate of interest pendente lite. In the result the appeal fails and is dismissed with costs. G. C. Appeal dismissed. [/INST]Three brothers and J entered into a partnership business. The firm owned both movable and immovable properties. Later, the three brothers created a Trust, with themselves as the first three trustees. They also executed an unregistered deed of relinquishment by which they relinquished their rights in and claims to all the properties and assets of the firm, in favour of J. and of themselves in the capacity of trustees. A new partnership firm was constituted between J. and the Trust by means of a partnership deed which specified the shares of the two partners in the profits and losses. The Trust introduced a sum. of Rs. 50,000 as its capital in the new firm. For the assessment year 1943 44 the new firm applied for registration under section 26A of the Indian Income tax Act, 1922 but the Income tax Officer, Appellate Assistant Commissioner 'and the Appellate Tribunal rejected the application. The Tribunal relied mainly on the ground that the deed of relinquishment being unregistered could not legally transfer the rights and the title to the immovable properties owned by the original firm, to the Trust and that as the immovable properties were not separable from the other business assets there was no legal transfer of any portion of the business assets of the original firm in favour of the Trust. On a reference to the High Court, as to whether the new partnership legally came into existence and, as such, should be registered, it was contended on behalf of the Commissioner that the Tribunal had recorded a finding of fact that the firm seeking registration was not a genuine one and had never come into existence. The High Court, after calling for further statements, held that the Tribunal had not recorded any such finding of fact, that the firm did in fact come into existence, and that there was no impediment to its registration. in appeal to this Court, HELD : (i) The existence of a firm could be challenged on two alternative grounds; (a) that a firm had not come into existence at all, and (b) that though it came into existence in fact, its existence was not valid in law. In the present case it was only the second question that was referred to the High Court. The first could not at all be referred to the High Court as it would be a pure question of fact; and if the Appellate Tribunal had in fact recorded a finding of fact that the firm had not come into existence, the question of law referred to the High Court, would not arise at all. Therefore, the new firm did in fact come into existence. [788 E H] (ii)The new partnership between the Trust and J. was constituted under a deed which was property executed, was valid in law, and so the firm should be registered. [791 C D] 785 The deed of relinquishment was in respect of the individual interests of the three brothers in the assets of the original firm, in favour of the Trust, and consequently, did not require registration, even though the assets of that firm included immovable property. The deed was therefore valid without registration. [790 F] Addanki Narayanappa vs Bhakara Krishnappa, ; followed. Even if the deed of relinquishment required registration, it could only be invalid insofar as it affected immovable properties, but to the extent that it purported to transfer movable assets of the original firm, it would be valid. A deed of relinquishment is in the nature of a deed of gift where the various properties dealt with are separable. In the present case, therefore, the deed of relinquishment was valid at least in respect of movable properties, and the partnership seeking registration thus became owner of all the movable assets of the first partnership in addition to the Rs. 50,000 contributed as a capital investment by the Trust. [790 G; 791 A, C] </s>

<s>[INST] Summarize the judgementivil Appeal Nos. 583 and 686 of 1974. Appeal from the Judgment and Order dated 28 2 74 of the Andhra Pradesh High Court in Election Petition No. 1/72 and Civil Appeal No. 686 of 1974. From the Judgment and Order dated 28 2 74 of the Andhra Pradesh High Court in Election Appeal No. 52/73. M.C. Bhandare, K. Krishna Rao, K. Rajindra Choudhary and Mrs. Veena Devi Khanna for the Appellant in CA 583/74. 492 A.K. Sen, I. Kotireddy and G.N. Rao, for Respondent No. 1 in C.A. 583/74 and also for the Appellant in C.A. 686/74. The Judgment of the Court was delivered by UNTWALIA, J. These are two appeals under section 116A of the Representation of People Act, 1951 hereinafter referred to as the Act, arising out of an election dispute concerning the election held on the 5th and 8th of March, 1972 to the Andhra Pradesh Legislative Assembly from Purchur Constituency. Six persons had filed nominations for stand ing as candidates at the election. Four of them, who were impleaded as respondents 2 to 5 in the election petition, withdrew in time and did not contest the election. The only two persons left in the field for a straight contest were the two appellants in the two appeals namely M. Narayana Rao, appellant in Civil Appeal No. 583 of 1974 hereinafter referred to as Rao or respondent No. 1 (for brevity, the respondent) according to his position in the election peti tion and G. Venkata Reddy, appellant in Civil Appeal 686 of 1974 hereinafter to be called Reddy or the election peti tioner. Rao was declared elected on the 11th March, 1972 by a margin of a few hundred votes. Reddy challenged his election by filing an election petition under the Act on several grounds of corrupt practices said to have been committed by or on behalf of Rao as also on the ground that several malpractices and mistakes had taken place in the counting of the votes. Reddy in his election petition besides asking for the setting aside of the election of Rao, also claimed that he should be declared elected in his place. A learned single Judge of the Andhra Pradesh High Court in a very long, elaborate, exhaustive, which at times was exhausting, judgment has accepted the case of the election petitioner in regard to one type of corrupt prac tice having been committed on behalf of the respondent and set aside his election. Rao has preferred the appeal from the said order. A recount of the votes polled was ordered by the learned Judge and even after re examination of the validity or invalidity of certain votes, he found on re count, that Rao had still majority of votes in his favour although the margin was further reduced. In that view of the matter, Reddy 's prayer for being declared elected was refused by the High Court. Hence Reddy 's appeal. Both the appeals arising out of the same election petition have been heard together and are being disposed of by this common judgment. We would like to state at the outset that even in regard to the limited questions which fell for our deter mination in these appeals, the judgment of the High Court is so lengthy and cumbersome, at times suffering from unneces sary repetitions and discussions, that while discussing the main issues in these appeals, we have not thought it neces sary to meet and deal with all the reasonings of the High Court although in arriving at the decision we have taken them into consideration. If we do so, our judgment will also be unnecessarily very long. But we must record our appreciation for the tremendous labour put in the High Court by lawyers on either side and the very great pains which the learned Judge has taken in preparing a careful and exhaustive judgment both on facts and in law. 493 Reddy contested the election as a candidate of the Indian National Congress Party and Rao was an Independent candidate. Reddy 's election symbol was "Cow and Calf" while that of Rao was a "Tractor". The polling in the Constituen cy was held on the 5th of March, 1972. Due to disturbances at the 8 polling booths at Chinna Ganjam with which we shall be concerned in Rao 's appeal, polling had to be postponed to the 8th of March, 1972 on which date the polling was com pleted at Chinna Ganjam. At the counting of votes done on the 11th of March, 1972 the Sub Collector, Ongole, who was the Returning Officer of the constituency, found that Rao had polled 31,038 votes while the votes polled by Reddy were only 30,728. Approximately 1,398 votes were declared as invalid by the Returning Officer. It may just be stated here that the total number of electorates in Purchur Constituency was 77,932. Votes polled were quite a good number amounting to 63,164. In short the election petitioner 's case was that being a sitting member of the Assembly from the Purchur Constituency he was very popular and had great chances of success in the election in question. The respondent, his supporters and agents felt that the election petitioner could be defeated only by use of undue influence, force and violence on a large scale and not by a fair election. With that end in view it was averred by Reddy in his election petition that one Sri Mandava Sitaramayya, an influential worker of his was assaulted at Purchur on the 2nd of March, 1972 by Yarla gadda Subbarao, brother in law of the respondent. Although the beating of Sitaramayya and the illegal activities of the respondent were brought to the notice of the Deputy Superin tendent of Police and Sub Collector, Ongole at 7.00 P.M. on the 4th of March, 1972 when they were camping at Purchur and they were requested to take adequate precautions for a fair and free poll, the Deputy Superintendent of Police failed to do so. By the 4th of March, 1972, according to the case of Reddy, the atmosphere was thick with rumours that he and his men would be beaten and done to death, his supporters and voters would be prevented from exercising their fran chise and that in these endearvours of Rao he and his agents had the full support and cooperation of the Police Depart ment headed by Shri A. Gopal Reddy, Deputy Superintendent of Police. Chinna Ganjam and its surrounding villages, Reddy claimed, lay in his stronghold area. Rao and his agents under the umbrella of protection of the police started an orgy of violence particularly in Chinna Ganjam and its surrounding villages. On the 4th of March, 1972 the re spondent collected his agents and supporters at his election office at Chinna Ganjam and instructed them to go ahead by using undue influence, violence and force to prevent the voters from casting their votes and not to allow peaceful conduct of the poll at Chinna Ganjam. The case of Reddy, the election petitioner, further was that on the morning of the 5th of March, 1972 Rao 's support ers, about 200 in number, gathered from various villages with the active assistance of J.S. Krishnamurthy (respond ent No. 2 in the election petition one of the candidates who had withdrawn) and Muddana Rangarao of Alankar Theatre, Inkollu, started threatening, beating and stone pelting 494 of the voters and supporters of Reddy in Chinna Ganjam near the polling station and elsewhere. This mob, amongst oth ers, included the 18 persons mentioned in paragraph 8(f) of the election petition. As a result of the violent activities of the supporters of the respondent and the panic created thereby, the polling at Chinna Ganjam which had started at 7.30 A.M. on the 5th of March, 1972, was stopped between 9.00 A.M. and 11.30 A.M. When it was resumed again 11.30 A.M. the electors were all scared and there was poor re sponse from them. Rao 's agents again started an orgy of violence at about mid day. Voters who were waiting at the polling booths were threatened and dispersed and when Reddy 's supporters including Marri Subba Reddy of Munnamva ripalem were attempting to infuse confidence in the voters, the mob consisting of persons wearing badges with "Tractor" symbol, rushed upon the innocent voters and forced them to flee for their lives. This was all done with the active support of the police. During the afternoon disturbances, Reddy 's case has been, the police most unjustly opened fire upon the dispersing and fleeing persons killing outright Marri Subba Reddy and seriously injuring, Komatla Rama chandra Reddy, a resident of Pedda Ganjam, an innocent passerby. Reddy 's case further runs thus. He went to Chinna Gan jam at about 2.00 p.m. on the 5th of March, 1972 and when he was taking coffee in a hotel, the hooligans numbering in all about 300 engaged by Rao including the 18 persons named in paragraph 8(f) of the election petition armed with sticks, iron rodes and other weapons surrounded the hotel, forced Reddy to come out and severely assaulted him. Reddy had to be removed first to Chirala Government Hospital gad finally to Guntur Hospital where he remained under treatment for a few days. As a result of the violent disturbances created by Rao 's agents and supporters at Chinna Ganjam the voting was postponed to March 8, 1972 and completed on that date. The election petitioner had also taken a stand in his election petition that the respondent and his supporters went round canvassing from 3.00 p.m. on the 5th of March, 1972 that Reddy was dead or was sure to die and there was no use casting votes in his favour. The panic created by the respondent and his men prevented several voters from exer cising their franchise or coerced them to cast their votes in favour of the respondent. Certain other allegations were made in the election petition alleging that the respondent had utilised the services of a Government servant, and had indulged in other various types of malpractices. It is not necessary to refer to them in any detail as the Trial Judge has not accepted the election petitioner 's case in regard to the said allegedly corrupt practices. The findings of the High Court were not challenged by Reddy before us. We may, however, state in passing that reckless allegations were made by Reddy against Rao alleging the commission of corrupt practices within the meaning of almost every sub section of section 123 of the Act. But the only one found by the High Court against Rao is the commission of corrupt practice of undue influence within the meaning of sub section (2) of section 123. Reddy in his election petition alleged Commission of several malpractices, mistakes and irregularities in the counting of the votes. 495 Several of his valid votes were said to have been wrongly rejected, several of the invalid votes were wrongly counted for Rao and so on and so forth. He asserted that the Retur ing Officer had wrongly turned down his request for a re count and if recount is ordered by the Court it would be found that he had polled the majority of votes. Upon such allegations, the details of some of which but not of all, were given in the election petition, Reddy claimed a decla ration for himself of having been elected to the Legislative Assembly from Purchur. On the pleadings of the parties the High Court framed several issues and the relevant ones for the disposal of these appeals are the following: "1 (a) Whether the allegations made in para graph 8(a) to (k) of the petition constitute cor rupt practice of and 'Undue Influence ' envisaged under Sec. 123(2) of the Representation of the People Act, and the I st respondent himself or his agent or any other person with his consent or that of his election agent committed the same ? (b) If the allegations made in paragraph 8(a) to (k) of the petition be true, is the election of the I st respondent liable to be set aside on the ground of commission of corrupt practice, namely exercise of 'Undue Influence ' envisaged under section 123(2) of the Representation of the People Act? (c) Whether any such corrupt practice if proved to have been committed by an Agent of the 1st respondent, other than his Election Agent, has materially affected the result of the Election in so far as it concerns the 1st respondent? 6(a) Whether the allegation that the Return ing Officer and his staff committed several mis takes and irregularities in the matter of counting, bundling, rejection and reception of votes as alleged in paragraph 9(a) to (k) of the petition is true ? (b) Whether 472 votes said to have been cast in favour of the petitioner were rejected on the ground that the mark was put on the back on the ballot papers and whether such rejection is improp er and void ? (c) Whether the pleading in paragraph 9(b) of the petition is liable to be struck down for not fur nishing the particulars such as serial numbers of ballot papers etc. , ? (d) Whether the allegations regarding the irregularities and violations in the rejection or reception or counting of votes made in paragraph 9(c) to (k) of the petition are vague and are liable to be struck down for want of material particulars ? 496 (e) Whether the improper reception of void votes or improper rejection of valid votes and mistakes if any in counting of votes has materially affected the result of the election ? 7 (a) Whether the order of the Returning Officer rejecting the request of the petitioner for recount of votes is erroneous and contrary to law ? If so what is its effect ? (b) Whether in the circumstances mentioned in paragraphs 9(a) to (k) of the petition the peti tioner is entitled to scrutiny of ballot papers and recount of votes by this Court ? 8. Whether the election of the 1st respondent is liable to be set aside on any of the grounds alleged in the petition ? 9. Whether the petitioner is entitled to be declared duly elected candidate to the Purchur Constituency ?" The High Court states in its judgment: "Issues l(a), (b) and (c) relate to the allegations in paragraphs 8(a)to (k) of the election petition. They cover several allegations of corrupt practice of undue influence envisaged by section 123 (2) of the Act. " For the sake of convenience the learned Judge split up issue 1 (a) incidence wise with reference to each of the alleged ones. It would be useful to quote the split up issues from the judgment of the High Court. 1 (a)(i)Whether the allegation made in paragraph 8(c) of the election petition viz., the attack on Mandava Seetaramayya, an influential worker and supporter of the petitioner on 2 3 1972 by Yarlagadda Subbarao of Karamchadu is true ? 1 (a) (ii) Whether the allegations made in paragraph 8(f) of the election petition that on the night of 4 3 1972 the 1 st respondent collected his agents and supporters in Chinna Ganjam at his election office and instructed them to use undue influence, violence and force in preventing the voters from exercising their franchise and peaceful conduct of the poll is true ? 1(a)(iii) whether the 'allegation contained in paragraph 8(g) of the election petition that the 1st respondent 's agents, workers and supporters including the 18 persons named in the said para graph started threatening, beating and pelting stones on the voters and supporters of the peti tioner at Chinna Ganjam Polling Stations and as a consequence thereof the polling was stopped and the voters were prevented from casting their votes between 9.00 A.M. and 11.30 A.M. 1 (a)(iv) Whether the polling was resumed at 11.30 A. M. and the 1st respondent 's agents again started an. orgy of violence by the 1st respond ent 's agents, workers and supporters including those named in paragraph 8(f) of the 497 election petition and several others wearing "Tractor Badges" and disturbed the polling and forced the voters to flee away without casting their votes and the police most unjustly opened fire upon the fleeing persons as alleged in para graph 8(h) of the election petition ? 1 (a)(v) Whether the petitioner was attacked by the 300 persons as alleged in paragraph 8(i) of the election petition ? 1(a)(vi) Whether as alleged in paragraph 8(i) of the petition a little later some of the petitioner 's voters were threatened and beaten by the 1st respondent 's supporters including the persons mentioned in paragraph 8(f) of the petition ? 1(a) (vii) Whether the allegation in para graph 8(j) that the I st respondent and his agents workers and supporters went round canvassing from about 3.00 P.M. on 5 3 1972, that the petitioner was dead or was sure to die and as such there was no use of casting votes in his favour, is true ? 1(a)(viii) Whether as a result of the above incident several voters failed to cast their votes even at the repoll held on 8 3 1972 ?" Although the High Court has found that Yarlagadda Subbarao and four others beat Mandava Seetaramayya, it could not be established that they were the agents of Rao or had attacked him with his consent. Issue No. 1(a)(i) was decid ed against the election petitioner. The finding of the High Court on Issue No. 1 (a)(ii) is as follows: "From the above discussion, it is established that the 1st respondent came to his election office at Chinna Ganjam on the night of 4 3 1972 accompa nied by R.W. 13, Ravipudi Venkatadri, Respondent No. 2, and one Muddana Rangarao. It is also estab lished that at his election office, Koyi Mohanarao, Karanam Balaram, Karanam Nayudamma, Karanam Ankamma, Muddana Madana Mohana Rao, Parvathareddy Narasimharao, Parvathareddy Satyanarayana, Parva thareddy Sriramayya, Ghanta Subbayya, Thumalapenta Venkateswandu, Thummalapenta Venkateswamy, Ghunta Venkateswarulu, Narahari Venkatasubbarao, Chunduri Radhakrishna Murty, B.P.R. Vittal were present alongwith some other persons whose names are not specially mentioned by any of the witnesses. It is also proved as alleged in paragraph 8(f) of the election petition that in the presence of the abovementioned persons, the I st respondent instructed and advised those persons and others present there "to go ahead by using undue influ ence, violence and force in preventing the voters from exercising their right of franchise and the peaceful conduct of the poll as otherwise. he had little chance of success." 498 Issue No. 1 (a)(iii) was also decided against the respondent and it was held: "Though the petitioner 's deposition in this behalf is based only on the information furnished by the other witnesses whose evidence has already been discussed, the other evidence discussed above clearly establishes that Koyi Mohana Rao, Karnam Nayudarnma, Karanam Balaram, Karanam Ankamm, R.W. 13, Ravipudi Venkatadri, B.P.R. Vittal, Chunduri Radhakrishna Murty, Muddana Madann Mohana Rao, Parvathareddy Narasimha Rao, Munsif of Sobhirala and his sons, Satyam, Sriramnlu his grandson Ghanta Subbayya and Thummalapenta Venka taswamy, Narahari Venkata Subbarao and Thummala penta Venkateswarlu and some other people of Chirala and other villages over 100 in number pelted stones and disturbed the voters in the queues at the polling booths of Chinna Ganjam as a result of which polling was suspended from 9.30 A.M. to 11.30 A.M. While deciding this issue presence of a few persons names in paragraph 8 (f) of the election petition was not found as persons taking part in the disturbance. On Issue No. 1 (a) (iv) the finding of the High Court is: "From the evidence discussed above, I find that the polling which was resumed at about 11.30 A.M., continued peacefully till about 2.00 P.M., thereafter the polling was was disturbed by the persons who are found under Issue No. 1 (a)(iii) to have disturbed the polling in the morning by violence alongwith others which consti tuted a mob of nearly 300 persons armed with sticks and stones, they pelted stones at the queues of the voters standing near the polling booths causing injuries to one Kanna Nagayya and thus scared them away. The Police apprehending fur ther danger opened fire resulting in the death of Marri Subba Reddy and injuries to Komatla Ramachan dra Reddy (P.W. 33). The persons among others whose identity is clearly established by the evidence discussed above in the commission of the act of undue influence are (1) Koyi Mohana Rao, (2) Karanam Nayadamma, (3) Karanam Balaram, (4) Karanam Ankamma, (5) R.W. 13, Ravipudi Venkata dri, (6) B.P.R. VittaI, (7) Chunduri Radhakrishna Murty, (8) Muddana Madhans Mohana Rao, (9) Parva thareddy Narasimha Rao, Munsif of Sobhirala and his sons, (10) Satyam, (11) Sriramulu, (22) his grandson Ghanta Subbayya, (13) Thummalapenta Venkwataswamy, (14) Narahari Venkata Subba Rao and (15) Thummalapenta Venkateswarlu." Issue No. 1 (a)(v) was also decided against Rao the re spondent and it was found: "From the evidence discussed above, in my view, it is established beyond all reasonable doubt that the petitioner 499 was attacked after he ran out of P.W. 12 's hotel and covered a distance of about 10 to 12 yards towards the Railway level crossing; he was attacked by an armed mob of over 100 persons some of whom were wearing "Tractor badges" and among the assailants of the petitioner were (1) Koyi Mohana Rao of Nagendla, Mangali Krishna of Chira la, Karnam Balaram of Thimma Samudram, Parva thareddy Narasimha Rao, Village Munsif of Sobhira la, Thummalapenta Venkataswamy of Sobhirala, Parvathareddy Sriramayya and parvathareddy Sat yanarayana the sons of Parvathareddy Narasimha Rao, the Village Munsif of Sobhirala. " Case against two of the alleged assailants namely Karnam Nayudamma and Pallapolu Venkateswarlu were not accepted. In regard to Issue No. 1 (a)(vi) the learned Judge held against the election petitioner stating "In this state of evidence, I am reluctant to act on the solitary statement of P.W. 41 and bold this allegation proved." Issue No. 1 (a) (vii) was also decided against the election petitioner and the learned Judge stated: "I, therefore, hold that the petitioner has failed to prove that the 1st respondent or his supporters spread the rumour of the attack on and the death of the petitioner and that thereby number of Congress voters left the queues at the polling booths without casting their votes. " Under Issue No. 1 (a)(viii) the findings recorded by the High Court against the election petitioner are: In view of the above discussion, it cannot be held that several hundred voters failed to cast their votes even at the re poll on 8 3 72 on ac count of the fear engendered by the violence perpe trated. by the 1st respondent or his agents or supporters on 5 3 72." Having thus recorded the findings under the various sub issues under Issue No. 1 (a) the Court proceeded to advert to the discussions of (b) and (c) and came to the conclu sion: "In view of the above discussion, I hold that the acts of 'corrupt practice ' were committed by the per sons above named with the consent of the 1st respondent and therefore the election of the 1st respondent is liable to be declared void under section 100 (1)(b) of the Act. His election is also liable to be declared void because his election agent, R.W. 13 is found guilty of corrupt practice of undue influence. The elec tion of the 1st respondent is liable to be declared void without the further proof that the result of the election has been materially affected. Issue 1 (b) is answered accordingly. " In regard to Issue No. 1 (c) the High Court came to the conclusion that though some of the persons who committed the corrupt practice 500 of undue influence on 5 3 1972 were agents of the respond ent, if R.W. 13, Rao 's election agent, would not have been among them and if Rao 's consent to the acts of those others were not established, the election of the respondent could not have been set aside because there was no proof that the result of the election had been materially affected on account of the commission of those corrupt practices. But since the Court found that undue influence on the 5th March had been committed not only with the consent of the respond ent but also by his election agent himself he being present at Chinna Ganjam on that date, the election of Rao was frt to be declared void without any proof of the result having been materially affected. The High Court, if correct on facts, was undoubtedly right in law. The High Court had decided issue No. 7 in favour of the election petitioner and ordered recount. After a detailed discussion of the various allegations made in connection with the malpractices and mistakes committed in the counting of the votes under the various subissues of issue No. 6, the final conclusion of the High Court was that out of 31,038 votes counted for Rao by the Returning Officer, two had to be deducted as on recount the number was found less and on various grounds mentioned in the judgment, 129 more were directed to be deducted from Rao 's count thus leaving the net result of 30,907 valid votes in favour of Rao as per the decision of the High Court. For the reasons given in its judgment the High Court held that 27 votes ought to have been counted for Reddy which were wrongly not counted. Thus adding those 27 to his original figure of 30,728 the total valid votes, according to the High Court polled by Reddy were 30,755 sti11 short by 100 and odd from those of Rao. We first take up Civil Appeal 583 of 1974 filed by Rao. The principles of law governing election disputes and espe cially in regard to the charge of a commission of corrupt practice are well established by several decisions of this Court many of which have been noticed in the judgment of the High Court also. We do not propose to refer to any. We shall, however, keep the following principles in view in relation to this appeal: (1 ) That the charge of commission of corrupt practice has to be proved and established beyond doubt like a criminal charge or a quasi criminal charge but not exactly in the manner of establish ment of the guilt in a criminal prosecution giving the liberty to the accused to keep mum. The charge has to be proved on appraisal of the evidence ad duced by both sides especially by the elec tion petitioner. (2) That the election held and results declared on the choice of the voters should not be lightly interfered with or set aside by a court of law. After all, in the holding of a fresh election are involved numerous botherations, tremendous ex penses, loss of public time and money and the uncertainty of the public representation from a particular Constituency. 501 (3) A charge of corrupt practice is easy to level but difficult to prove. If it is sought to be proved only or mainly by oral evidence without there being contemporaneous documents to support it, court should be very careful in scrutinizing the oral evidence and should not lightly accept it unless the evidence is credible, trustworthy, natural and showing beyond doubt the commission of corrupt practice, as alleged. (4) That, this Court ordinarily and generally does not, as it ought not to, interfere with the findings of fact recorded by the High Court unless there are compelling reasons for the same, espe cially findings recorded on appreciation of oral evidence. (5) This Court, however, does not approve of the finding recorded by the High Court on a misreading or wrong appreciation of the oral evidence espe cially when it is unsupported or runs counter to the contemporaneous documentary evidence. (6) It must always be borne in mind that the consequences of setting aside of an election on the ground of corrupt practice are very serious for the candidate concerned as well as others involved in it. A court, therefore, should reach its conclusion with care and caution taking into consideration the broad probabilities, the natural conduct of the persons involved and the special situation in which a corrupt practice is alleged to have been committed. In the background of the above principles we proceed to examine whether the finding of the High Court against appel lant Rao on some parts of issue No. 1 resulting in the declaration of his election as void is sustainable. Broadly speaking, the findings against him are (1) that he had created a tense situation to bring about the defeat of Reddy before the holding of the poll on the 5th March, 1972; (2) that he had come to Chinna Ganjam in the night of the 4th March at about 9.00 p.m. in the company of his election agent Venkatadri and had instructed his workers to create violence, use force and not allow a free poll at chinna Ganjam; (3) that Rao 's election agent Venkatadri was present in Chinna Ganjam on the 5th March and had taken active part in the disturbances created on the date of the poll; (4) that Rao 's election agents, workers and supporters including more than 100 from outside Chinna Ganjam were responsible for creating violent disturbances both in the morning as also in the afternoon on the date of poll i.e. 5th March, 1972; (5) that as a result of the police firing one person on the side of Reddy was killed and another was seriously injured. But it may pointedly be stated here that there is no finding recorded by the learned Judge that the police was in league with Rao and had deliberately fired on the fleeing party of Reddy; (6) Reddy was assaulted by the workers and supporters of Rao at about 2.00 p.m. near the Railway crossing in the hotel of P.W. 12 Satyanarayana; (7) the respondent had not been able to establish that he had not come 502 Chinna Ganjam in the night of 4th of March and had gone somewhere else or that his case of the genesis of the occur rence which led to the disturbances on the 5th March was true. Apart from some witnesses being different, here or there, most of the witnesses to prove the case of Reddy apropos the findings above, are common and they are P.Ws 12, 29, 30, 31, 32, 42 besides P.W. 27 Reddy himself. Shorn of details we shall examine the main ingredients of the case to see how far they have been proved to bring home the charge of commission of corrupt practice on the part of Rao. As usual there must have been some tension in the Constituency because it was a straight contest and neck to neck fight, as the results show, between Reddy and Rao. Chinna Ganjam was not the only place where Reddy hoped to get an absolute majority of votes. The results indicate, although there is no separate counting of the votes polled at each booth these days, that in some parts of the Constit uency Reddy must have polled majority of the votes and in some parts Rao must have done 80. How is it then that Rao took into his head to create disturbances at Chinna Ganjam only ? Sitaramayya, as the finding of the High Court is, was assaulted by some person on the 2nd of March, That must have put Reddy on his guard to meet any eventuality of force. After all he was a sitting member belonging to the ruling party who, we are told, was in power in the State of Andhra Pradesh at the time of the election in question. It is difficult to accept or imagine that any police officer especially a person of the rank of a Deputy Superintendent of Police or the police in general would have gone against Reddy and favoured and sided with Rao. On the face of it, it was almost an absurd story and the High Court could not persuade itself to accept it. On 2 3 1972 Reddy had asked for police bundobust at several places (vide Ext. A 97, letter dated 2 3 1972) but had not included Chinna Ganjam in the list of those places. In the evening of the 4th March, 1972, as the evidence adduced on behalf of Reddy shows, he was present in the travellers bungalow at Purchur wherein were also staying the Returning Officer, the Deputy Superin tendent of Police and others. There is no evidence to show, that on receipt of the information from P.W. 31 as to what had happened in the election office of Rao in the night of the 4th March, Reddy contacted the Returning Officer or the Deputy Superintendent of Police and informed them about the alleged design of Rao and the instructions issued by him in that regard. It is no doubt true that there were some persons working for Rao at Chinna Ganjam who did not belong to that village but were outsiders. That by itself does not justify the inference that Rao had collected a mob of out siders to create violence. Rao was ill advised to deny in his written statement that the 18 persons named in paragraph 8(f) of the election petition were his workers or support ers. But they were so working from before at Chinna Ganjam as admitted by P.Ws 12, 29, 31 and 32. One thing is clear from the evidence in this case that inhabitants Sobhirals, a hamlet of Channa Ganjam, which is mostly inhabited by Telgas, had enmity with Reddy. Chinna Ganjam lay within the 503 Panchayat Samithi of Jetapalom of which Ronda Ramaswami Reddy was the President. He was an influential man on the side of Reddy. He had created several enemies including Balaram. Sobhirala people were inimically disposed towards him as he had not allowed them to have a separate Gram Panchayat. In this background, we proceed to examine the documentary evidence first to find out whether the allega tions made by Reddy against Rao as to the alleged happenings on the 4th and 5th of March, '72 are correct or not. If correct, they were very important events and they must have found place in one document or the other. But conspicuously they are absent. In this connection we would first refer to Ext. A 271 the Returning Officer 's Report dated 5 3 1972. In the report it is mentioned that Chinna Ganjam village is a troublesome village and not that Rao had made it troublesome just before the day of poll. Additional police bundobust was asked for in this village. It further mentions that at about 10.00 A.M. there were clashes outside the polling station when agents of both the candidates were present and on account of the disturbances, voters were not turning up. After the voting was resumed, for sometime, it went on peacefully, but at 3.45 P.M. the Returning Officer received a phone message from the Election Deputy Tehsildar, Chirala from Chinna Ganjam that polling was adjourned by all the Presiding Officers at 2.45 P.M. "consequent on the opening of fire by the police on an unruly mob gathered at the Polling Stations which has resulted in injuries to two persons of whom one was reported to have been seriously injured". This report further mentions that the election to Purchur Assembly was a straight contest between Reddy and Rao and on a complaint made by two boys of Rao 's group at about 10.00 A.M. that Sri Ramaswami Reddy, President, Pan chayat Samithi, Vetapalem and a few of his followers had assaulted them, "both sides gathered in large numbers and prepared for a clash. " Relating to the afternoon incident the report states: "The people belonging to both the par ties are said to have begun to reassemble near the Polling Stations with sticks and stones. They exchanged blows with sticks and hurled stones at each other." Then the report proceeds "Apprehending danger to the Polling Material and polling personnel the Presiding Officers are reported to have closed the doors of the polling Stations". The report further states "Apprehending danger to his life as also to the Polling parties, and danger to the polling material, the Inspector opened fire on the mob". It is to be emphasised that if the story set up by Reddy as to the happening in the election office of Rao in the night of the 4th March had any semblance of truth, the Returning Officer must have learnt if from Reddy either the same night at travellers ' bungalow at Purchur or on the 5th March before he sent his report to the Election Commission. It was neither alleged nor found that the Returning Officer had any animus against Reddy or was favourably disposed towards Rao. The version given in the report speaks a volume. We would now refer to Ext. A lO6 the First Information Report drawn on the statement of the Inspector of Police, Chirala, camping at Chinna Ganjam, in connection with the firing case. This was drawn 16 1104SC1/76 504 up at 5.15 P.M. on the 5th of March, 1972. Before we advert to some portions of this First Information Report, an admitted position of the topography may be stated which emerged from the evidence. There were 8 polling booths in Chinna Ganjam situated in two school buildings. On the Western side of the building is a road and the Railway line. On the Northern side of the Railway line is a railway crossing west of which is village Sobhirala and near the Railway crossing is the hotel of P.W. 12. Workers and supporters of Reddy admittedly were on the eastern side at or near about the time of disturbances and those of Rao were on the western side mostly on the road. In this background, let us see what the Inspector states in Ext. A 106. He says that on receipt of the information about the disturbances at Chinna Ganjam D.S.P. Ongole and he started from Purchur and picked up a striking force on the way. When they reached China Ganjam they "found a large gathering on the road and also on the eastern side of the High Court beyond the High School premises. " One Balaram of Thimmasamudram was leading the gathering, which was on the west of the High School compound. On being enquired by the Inspector he said that men of Reddy had assaulted their people. This was in conection with the assault on Maddana Madana Mohan Rao and Maddana Ramasinga Rao the two boys on the side of Rao:Statement of Ramasinga Rao recorded by the Inspector is Ext. B 27. entry on the basis of this statement in the police papers is B 28. The F.I.R. then states: "At about 2.45 p.m. the mob began gathering in large numbers on both the sides and hurling stones at each other. Ramaswamy Reddy was in the mob, which was hurling stones . . The mob belonging to both the candidates viz, Sri Gade Venkata Reddy and Maddukun Narayana was determined in their violent attitude and advanced towards the polling station to break open the same to enter into it to commit all unruly acts. " This report states that in all three rounds were fired. In the first Information Report as drawn originally 4 persons are named as accused, 3 belonging to the party of Rao and Ramaswamy Reddy a staunch and influential helper of Reddy. The case diary Ext. A 107 of the same date shows the total number of accused as 42, including the four mentioned earlier. Mr. M.C. Bhandare, counsel for Rao and Mr. A.K. Sen, counsel for Reddy drew our attention to this list of 42 persons which almost evenly included as members of the mob persons of both sides. It is remarkable that though Ronda Ramaswami President of the Panchayat Samithi, Vetapalem is shown as one of the leading member in the firing case, no where is to be found in any paper the name of Venkatadri the election agent of Rao. No paper mentions even his presence at Chinna Ganjam on the 5th of March. Now comes the most important document__statement of Reddy himself recorded at 5.55 p.m. on 5.3.1972 by a Second Class Judicial Magistrate which could be treated as a dying declaration, if unfortunately, Reddy would not have survived, but the injuries inflicted on him were not so severe as to result in his death. On the basis of this statement, later, a formal First Information Report was drawn up. This is 505 Ext. A 100. In answer to the Magistrate 's question as to how did Reddy receive injuries he narrated the story that when he came to Chinna Ganjam and Ongole road junction he heard that some 200 persons were brought for hire from Chirala, Thimmasamudram and other villages to disturb poll ing as he commanded 85% of electorate there. The persons who are said to have Collected the mob are Mohan Rao, Mangali Krishna Balaram, Krishna Murthy Babu of Chirala, Raghavaiah, Radha Krishnamurthy of Thimmasamudram, Rangarao, Cinema hall proprietor of Inkollu and Nayudamma, President of Chintagumpalli village. Neither Rao is mentioned nor Ven katadri 's name is mentioned as the persons who had collected the mob there. If there was any semblance of truth in the Reddy 's version of what happened on the night of the 4th in the election office of Rao, Reddy could not have missed to refer to that incident. If Venkatadri was present at Chinna Ganjam on the 4th or the 5th March, his name would have found first in the statement of Reddy. We deplore and deprecate the assault on Reddy a fact which has been found to be true by the High Court. We were informed and copies of the judgments were tried to be filed before us showing that all the cases have ended in acquittal and no person has been convicted of the alleged offences. But that apart, we reiterate, even at the risk of repetition, that the main story set up by Reddy as to what happened on the 4th night as also on the morning of the 5th and afternoon does not find support from any of the contemporaneous documents not even from the statement of Reddy himself. The statement of Ramasinga Rao was entered in the Station House General Diary, Vetapalem and it is Ext. A 128. The entry is Ext. The Entry of report is Ext. Although it is unfortunate that on behalf of Rao neither of the two boys said to have been assaulted nor any body else was examined to prove the incident of assault on them which led to the further disturbances on the 5th of March, 1972 at Chinna Ganjam, the contemporaneous documents do indicate that the genesis of the disturbance was the alleged assault on the two boys. It does not appear to be a case where a false story of assault on two boys was made a pre tence to start assault at Reddy 's workers and voters. Hardly any voter was injured or examined to state that a planned attempt was made on behalf of Rao to prevent the voters from casting their votes in favour of Reddy. Let us now see what kind of oral evidence is there to prove the incident. As to what happened in the Rao 's elec tion office at Chinna Ganjam in the night of 4th March, P.W. 32 Raju Bali Reddy is the primary witness of the alleged episode. He had a bunk near the election offices of the two candidates. We regret to find that Rao had in the beginning denied that he had any election office at Chinna Ganjam but he was constrained to admit that such an office had been opened by his supporters. We also do not appreciate the attempt on the part of Rao in challenging the claim of P.W. 32 of his running a beedi bunk at Chinna Ganjam near the houses where the election offices of the two candidates had been set up. Nevertheless 506 the story told by P.W. 32 is too imaginative and unreal to inspire any confidence. The High Court, in our opin ion, was wholly wrong in accepting his evidence to be true. He (P.W. 32) says that he saw the respondent coming in a car on the 4th of March, 1972 to Chinna Ganjam between 8.30 and 9.00 p.m. to his election office. He was asked to bring sodas to his election office. He took two dozens of soda bottles to Rao 's office and there he heard him saying "If Congress votes are polled I am sure to lose and requested them to see that votes are not polled if necessary even by violence". He names certain persons present there. There after he was asked to take some soda bottles to the Congress election office of Reddy. There P.W. 31 asked him "You had been to the election office of the first respondent, what is going on there ?". The said sodawala replied "that the first respondent was telling that if all the votes in Chinna Ganjam are polled he was sure to be defeated and even by resorting to violence they should see that votes are not polled". Is it a natural story ? Is it at all believable ? Was this conspiracy for creating violence at Chinna Ganjam suddenly and so openly hatched up in the Rao 's election office at Chinna Ganjam and in the presence of so many persons ? Was it so done uttering every relevant word of the conspiracy in the presence of the sodawala and making it audible to him ? Is it possible to believe that the sodawala passed on the words of the conspiracy to create violence at Chinna Ganjam in a cavalier and casual manner on the query of P.W. 31 ? All these questions posed above are suggestive of one and one answer only. The whole story smacks of nothing but untruth. It could never have happened in the manner stated by P.W. 32. P.Ws. 29,30, 31 and 42 who claimed to have heard this story from the sodawala are all out to support Reddy on any version and they cannot fare any better if the most unnatural story told by sodawala is too big to swallow and too incredible to accept .In disagreement with the findings of the High Court, we hold that Reddy has failed to prove that Rao and Venkatadri came to Chinna Ganjam in the evening of the 4th March, 1972 or that they instructed their agents and workers to deliberately create violence on the date of poll. We also hold that Venkatadri was not present at Chinna Ganjam on the 5th of March and had no part to play in the disturbances which took place on that date. It is no doubt true that disturbances did take place at Chinna Ganjam on the 5th of March. It was not a one side affair. Both sides were responsible for entering into clash es. The High Court has lightly brushed aside one very significant fact in this connection and which is a very telling one. How is it that in the police fire two persons were injured one of whom died, and both of them were men of Reddy ? In the circumstances, is it possible to accept that the police fired only on the fleeing party of about 2,000 persons ? The evidence on the side of Reddy shows that they did not aim any firing on the aggressors and attackers the men of Rao who all were on the western side. Unless one could go to the absurd extent of saying that members of the police force had also joined hands with the mob of Rao one has got to conclude that, mainly, aggressors and attackers 507 were the persons on the side of Reddy. They were the source of danger and .terror to the polling staff and the materials of the polling booths and the police had to open fire aiming at them for the protection of the polling staff and the materials. It is because of that reason that by the police firing two persons on the side of Reddy only were injured and none on the side of Rao. We are inclined to think strongly and justifiably that because of the disturbances which took place on the 5th of March, 1972 both in the morning and in the afternoon at Chinna Ganjam, Reddy felt it advisable to make a mountain out of it, and apart from many other unsustainable allegations of corrupt practices, which are made against Rao, he made use of the incident of dis turbances on the date of poll at Chinna Ganjam to connect Rao and his election agent with them. Without alleging their active participation or consent he had no material to succeed merely. on the ground of disturbances. And that led him to invent two tissues of untrue stories one the alleged talk by Rao in his election office in the night of the 4th March and the other the presence of Venkatadri at Chinna Ganjam on the 5th. In our opinion none of the two stories has any semblance of truth. The High Court committed a gross error in placing reliance upon such intrinsically and inherently weak pieces of oral evidence as against the contemporaneous documents. The reports Exts. A 374 to A 381 of the Presiding Officers of the Polling Station at Chinna Ganjam do not throw any further light except that due to. rioting polling had to be adjourned. The total number of electors in Chinna Ganjam was about 6000 and odd and as we have said above even assuming that a large majority of this was to cast their votes in favour of Reddy, by creating disturbances at Chinna Ganjam and preventing the voters from casting their votes in favour of Reddy or forcing ,them to cast them in favour of Rao, Rao could not have imagined to succeed in the election. There is no evidence to indicate what was the estimated strength of Rao and Reddy in the remaining 67,000 votes which were to be cast at several booths other than those at Chinna Ganjam. The date of poll being the 5th of March in the entire Purchur Constituency it was not possible even to estimate as to what actually had happened in other booths to induce Rao to plan the creation of disturbances at Chinna Ganjam. We do not agree with the finding of the High Court on issue No. l(a)(iii) that the polling had to be suspended because Rao 's people over 100 in number pelted stones and disturbed the voters in the queues at the polling booths of Chinna Ganjam. We are of the opinion that it was a sponta neous trial of strength on both sides in which were involved persons on the side of Reddy led by Ronda Ramaswami Reddy and several others who were helpers and workers of Rao. The under current of their participation in the disturbances was their previous enmity as already alluded to. Similarly we do not agree with the finding of the High Court as recorded under issue no. l(a)(iv). If 300 persons armed with sticks and stones pelted stones on the queues of the voters then some of them must have been injured by the police firing. But none was injured. No responsible government servant has been examined to say anything in support of Reddy 's story of the disturbances. We were informed 508 by Mr. Bhandare that a magisterial enquiry into the inci dent had been made. An Inspector General of Police, Andra Pradesh had also held an enquiry in respect of the disturb ances which took place at Chinna Ganjam on the 5th of March. By filing an affidavit in the High Court Rao wanted the reports of the Magistrate and the Inspector General of Police to be produced. But they were not made available as according to him the reports must have stated matters going in favour of Rao and against Reddy. Coming to the finding of the High Court apropos issue No. l(a)(v) we want to merely observe that Reddy must have been attacked by the mob in which must have been Rao 's men. But it was not as a result of any conspiracy, instructions or consent of Rao or his election agent. At or about the time when the clashes on the two sides were at their peak at about 2.00 p.m. the mob on the side of Reddy was on the eastern side and that of Rao was on the western side. Apprehending police firing or on its start the mob fled helter skelter. The mob on the western side must have lied towards village Sobhirala for their safety. In the way, they came across Reddy and as saulted him. While condemning in the strongest language the assault on Reddy, whoever were responsible for this, we do not find good reasons to connect the assault with Rao or Venkatadri. The High Court has presumed consent of the respondent in what happened on the 5th of March at Chinna Ganjam because of the respondent 's application Ext. A 273 in connection with the release of an Ambassador car MSM 2383 engaged in his election campaign which had been seized by the police while parked at the railway gate of Chinna Ganjam. It was just a coincidence that at the time the assault was made on Reddy, the car happened to be there. The presence of Badugn Subbarao either in ,the car or near it again may be an isolated act of Badugu Subbarao but the gap to connect the incident directly or indirectly with Rao to say that it was done with his consent is too big to be filled in by refer ence to the seizure of the car and the prayer of release of the Ambassador car. For the reasons stated above, we hold that the High Court has not decided issue No. 1 (b) correctly. No corrupt practice was established to have been committed by any person with the consent of the respondent or by his election agent and the election of Rao, therefore, was wrongly de clared to be void under section 100(1)(b) of the Act. Even so, we had to consider whether Civil Appeal 686 of 1974 filed by Reddy is fit to be allowed. Rao may not be guilty of having committed any corrupt practice yet, if on recount it could be found that Reddy had polled majority of votes, he could succeed in both the appeals. Mr. Sen, learned counsel for appellant Reddy made his submissions in regard to two types of ballot papers only and urged that if we were to hold in his favour in that regard the result of the counting would definitely tilt in favour of Reddy as he will have polled more votes than those polled by Rao. For the reasons to be hereinafter stated, we do not accept the argument of Mr. Sen to be well founded and correct and hold that the result of the number of 509 votes polled by each candidate arrived at by the High Court is correct and does not call for any interference by this Court. The first objection raised on behalf of Reddy relates to rejection of 338 votes apparently appearing to have been cast in his favour but were rejected on the ground that the marks given on them were on the reverse side of the symbol and not on the obverse side. Several such votes apparently cast in favour of Rao were also rejected. Mr. Sen submitted that 338 votes ought to have been treated as validly polled by Reddy. We do not accept this contention to be sound. In our opinion the High Court has rightly maintained their rejection. Rule 39(2)(b) of the Conduct of Election Rules, 1961 hereinafter referred to as the Rules, requires: (2) The elector on receiving the ballot paper shall forthwith; (a) proceed to one of the voting compartments; (b) there make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote;" On a plain reading of the said rule it is clear that the voter has to make the mark on the ballot paper and not behind the ballot paper. The symbols are given on the ob verse or the front side of the ballot paper and the require ment of the rule to mark on the ballot paper on or near the symbol of the candidate for whom the elector intends to vote necessarily means marking on the obverse side either on the symbol itself or so near it as to clearly indicate the intention of the voter. Putting a mark on the reverse side even though because of the thinness of the paper the symbol may be visible is far from complying with the requirement of the rule. Such a mark will make the ballot paper in substance and in effect bearing no mark at all within the meaning of clause (b) of sub rule (2) of rule 56 of the Rules or bearing a mark indicating the vote thereon placed in such a manner as to make it doubtful to which candidate the vote has been given justifying its rejection under clause (d). Mr. Sen called our attention to the recent amendment of the Rules made in 1974 wherein it has been clearly specified that the mark must be put on the face of the ballot paper and also that the ballot paper must be rejected if it does not bear a mark on the face, and submitted that on the language of the rules as they stood at the relevant time in this case ballot papers bearing mark on the reverse side against the symbol of a particular candi date indicating the choice of the voter could not be reject ed as invalid. We think that the amendment of the rule merely clarifies what was intended earlier and does not make any change or departure from the previous position. Since some High Courts had taken a contrary view while considering the rules or similar rules, for the sake of clarification and precision, it appears to us, that amendment of the rule became necessary. A single Judge of the Andhra Pradesh High Court dealing with similar Gram Panchayat Rules had taken a contrary view in W.P. 2851/70, decided on 10 12 1970. The learned Judge followed the decision of the Allahabad 510 High Court in Swarup Singh vs Election Tribunal(1) and a decision of the Rajasthan High Court in Dhanpatlal vs Harisingh(2). We hold that the view expressed in those cases is not correct. On the contrary the decision of the Madras High Court in A. V. Palaniawami vs The Election Court (District Munsif), Tiruppur and others(3) in this regard expresses the correct opinion. The point in that case, has been well discussed with reference to various authorities both in India and other countries. We would like to refer to the dictum of Baron Pollock in Mr. Sykee vs Mr. Mc Arl hur(4) wherein it has been said that the mark must be on the face of the ballot paper and that the vote bearing cross on the back being not in compliance with the Act was rightly rejected. On the basis of the decision aforesaid as also on some others a passage is to be found at page 140 in Hals bury 's Laws of England, Third Edition, Vol. 14 to the fol lowing effect: "A ballot paper marked on the back only should not be counted, even though the mark shows through the paper on to the front". The High Court has noticed in its judgment paragraph 17(k) of Chapter VIII of the Hand Book issued and published by the Election Commission in 1972 for the guidance of the Return ing Officers. While indicating the procedure for counting, the Returning Officers have been instructed to reject a ballot paper when there is no mark at all on the front or when the mark is in blank area, that is to say at the back or entirely in the shaded area. It is no doubt true that the binding directions either generally or specially could be issued by the Election Commission under sub rule (1) of Rule 56. Sub rule (2) does not speak about the issu ance of any such directions. Even so in our opinion the administrative instructions issued by the Election Commis sion give a clue to the interpretation of rule 39(2) and rule 56(2) of the Rules. The instructions so issued are in onsonance with the interpretation of the rules aforesaid as put by us. The second objection relates to the acceptance in favour of Rao two groups of ballot papers one group consisting of 186 votes and the other 262 votes. The High Court has separately dealt with them in its judgment. Out of 186 votes Ext. X 26 contains 135 votes, X.27 11 votes, X.28 38 votes. X.29 one vote and X.30 one vote. Out of the other group Ext. X.31 contains 241 votes, X.32 one vote and X.33 20 votes. The High Court has mentioned the different types of defects which remained on the two groups of ballot papers aforesaid. Broadly speaking the defects were an infraction of rule 38(1) of the Rules making them liable to be rejected under clause (h) of sub rule (2) of rule 56. But then under the first proviso to sub rule (2) it has been stated ; "Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part (1) A.IR. 1960 All. 66. (2) AI.R. (3) (4) 4 O 'Malley and Hardeastle, 110. 511 of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. " On a consideration of the evidence adduced by the par ties and the broad probabilities and the circumstances of the case the High Court has come to the conclusion, and in our opinion rightly, that the said two groups of ballot papers were rightly not rejected by the Returning Officer and were correctly counted for Rao. The Returning Officer while accepting a ballot paper, even though, he does so under the proviso aforesaid, is not required to record any reasons for acceptance. Reddy had not made out any case that any objection had been taken on his behalf as respects the acceptance of the above mentioned votes of the two groups. No objection was specifically raised in the elec tion petition that any of the ballot papers counted in favour of Rao should have been rejected under rule 56(2)(h) or that it could not be accepted under the proviso. Reddy seems to have fished in troubled waters because of the order of recount made by the High Court in connection with some other defects which justified the making of such an order. The finding of the High Court in clearest term, which could not be assailed before us with any success, is as follows: "Having regard to the above discussion, it cannot be held that in the instant case the ballot papers which did not contain both the distinguish ing mark and the signature of the Presiding or Polling Officer or where either the signature or the mark was not present were accepted by the Returning Officer, without satisfying himself as to whether that defect was due to the mistake or the failure of the Presiding Officer or Polling Offi cer. As that is not established and as it is, also clear to the Court from the record placed before it, that these defects have occurred only due to the failure of the Presiding Officer and further as there is no doubt aS to the genuineness of these ballot papers, it is held that the ballot papers were rightly accepted by the Returning Officer. " In our judgment the High Court is right in arriving at the respective figures of valid votes 'polled by the two candi dates after recount as per the order of the High Court and in arriving at the conclusion that Rao had polled the major ity of the votes. For the reasons stated above we allow Civil Appeal No. 583 of 1974, set aside the judgment and order of the High Court declaring the election of M. Narayana Rao the appel lant in that appeal, void. We dismiss Civil Appeal No. 686 of 1974 filed by C. Venkata Reddy. Taking into consideration the totality of the circumstances of the case, we shall make no order as to costs in either of the two appeals. C.A. 583 of 1974 allowed. P.H.P. C.A. 686 of 1974 dismissed. [/INST]Under the proviso to section 58(2) of the an application for renewal of an existing permit shall be made not less than 120 days before the date of expiry of the permit. The procedure to be followed in this respect is the same as provided in section 57 for the grant of a fresh permit. Under section 58(3) a delay of not more than 15 days in making the renewal application can be condoned by the Re gional Transport Authority. The proviso to section 68F(1D) provides for the renewal of an existing permit for a limited period when a Scheme is pub lished under section 68C. Since a Scheme was published under this section the appellant made an application under section 68F(1D) for renewal of his permit. R was rejected by the RTA on the ground that there was delay of 18 days which was not capable of being condoned. The Transport Appellate Tribunal dismissed his appeal and the High Court summarily rejected his writ petition. In appeal to this Court it was contended that (i) Chapter IVA of the Act, which section 68 occurs, being a self contained code the proviso to section 58(2) was not applicable in the case of an application for renewal filed under the proviso to section 68F(1D) or (ii) in the alternative the delay could be con doned by the RTA for sufficient cause under section 5 read with section 29(2) of the . Dismissing the appeal, HELD: (1) (a) Section 68F(1D) imposes a prohibition on grant or renewal of permit during the intervening period between the publication of a scheme under section 68C and the publication of the approved scheme and if the proviso were not enacted. renewal of an existing permit expiring after the publication of the scheme under section 68C would have been barred. This, the legislature did not want and hence the proviso was introduced permitting renewal of an existing permit though for a limited period, despite the general prohibition enacted in sub section This renewal was not intended to be some special kind of renewal. There is no reason why the provisions of section 57 and the proviso to section 58(2) should not apply in case of a renewal application under the proviso to section 68F(1D).[569 A B] (b) chapter IVA is not a self contained code and the other sections apply to an application under the proviso to section 68F(1D)of the Act. [569D] (i) The procedure in section 57 applies because. there is no other procedure prescribed by the Act. [569C] (ii) The time limit specified in the proviso to section 58(2) also applied as otherwise there would be no time limit for making an application for renewal.[569D] (iii) Section 68F(3) also proceeds on the assumption that, but for its enactment, an order made by the RTA under sub~3 (1) or (2) of section 68F would have been appealable under section 64 and it was to exclude the applicability of section 64 that 68F(3) was enacted. [569 E F] 564 (2) The word used in sub section 3 is 'may ' and not 'shall ' and the RTA is given a discretion to entertain an applica tion for renewal of a permit even where it is beyond time, though not more than 15 days. It could never have been the intention of the legislature that even where there is no sufficient cause for delay in making an application for renewal, the Regional Transport Authority should still be bound to entertain the application for renewal merely on the ground that the delay is of not more than 15 days. [570F. 571A B] 3 (a) Section 29(2) of the makes section 5 applicable in the ease of an application for renewal unless its applicability can be said to be expressly exclud ed by any provision of the Act. Sub section (3) of section 58 in so many terms says that the RTA .may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the RTA shall not be entitled to entetain it. [571E G] (b) There is an express provision in sub section (3) that delay in making an application for renewal shall be condona ble only if it is of not more than 15 days and that express ly excludes the applicability of section 5 in cases where an application for renewal is delayed by more than 15 days. [571G] </s>

<s>[INST] Summarize the judgementAppeals Nos. 1003 and 1004 of 1964. Appeals by special leave from the judgment and order dated January 7, 1963 of the Bombay High Court, Nagpur Bench in Civil Revision Applications Nos. 294 and 295 of 1962. section T. Desai, G. L. Sanghi and O. C. Mathur, for the appel lant (in both the appeals). C. B. Agarwala, section K. Gambhir and Ganpat Rai, for respondent No. 1 (in both the appeals). R. N. Sachthey, section P. Nayar for R. H. Dhebar, for the res pondent No. 3 (in both the appeals). The Judgment of the Court was delivered by Sikri, J. These two appeals, by special leave, are directed against the judgment of High Court of Judicature at Bombay (Nagpur Bench), dated January 7, 1963, allowing two Civil Revision applications Nos. 294 of 1962 and 295 of 1962, filed by Paramsukhdas, a respondent before us. The High Court, by this judgment, quashed orders dated April 9, 1962, in the Land Acquisition Cases No. 189 of 1961. and No. 190 of 1961 (as amended subsequently on July 6, 1962) and remitted the matter to the Court of the Civil Judge, Akola, for a fresh decision on merits with advertence to the remarks in the judgment. The High Court further directed that Paramsukhdas be allowed to be impleaded as a non applicant in the two proceedings and all parties will be allowed to amend their pleadings or make fresh pleadings with respect to the alleged compromise as filed before the High Court in Special Civil Application No. 232 of 1960. Mr. section T. Desai, the learned counsel for the appellant, con tends: (1)That the High Court has no jurisdiction under section 115. to interfere with the orders of the Civil Judge, dated April 9, 1962; 364 (2) That Paramsukhdas, respondent No. 1, is not a person interested in the compensation and is not entitled to be impleaded as a party to the references under section 18 of the Land Acquisition Act, 1894, (I of 1894) hereinafter referred to as the Act , (3) That, if at all, no revision but appeal lay to the High Court. Before dealing with the above contentions it is necessary to state the relevant facts. Sunderlal, appellant, owned some land (field No. 22) in Monza Umari, Taluq and District Akola. This field had been leased to Khushal Singh under a registered lease for 5 years commencing from April 1, 1954. The field was acquired by the Government. The Land Acquisition Officer made his award on January 30, 1960, and assessed the total compensation at Rs. 26,105.58, and apportioned the amount equally between Sunderlal and Khushal Singh. On February 17, 1960, the Land Acquisition Officer noted the following regarding Khushal Singh: "2. Khushalsing s/o Tolaram (a) According to letter No. 154 / 60 of 15th February 1960 from the Court of Civil Judge (Sr. Dn.) Khamgaon, and the attachment order issued by that Court, in C.S. No. 4 B/1958, the amount to be paid to Khushalsing Tolaram be kept in Revenue Deposit. (b) One Sunderlal minor guardian father Madanlal Harjimal, of Akola, has presented an objection petition against this payment. " Sunderlal filed an application for reference under section 18 of the Act, claiming more compensation and also complaining in regard to the apportionment of the amount of compensation between him and Khushal Singh. According to him, Khushal Singh was not a protected tenant and his period of lease having expired, he was not at all entitled to any portion of the amount of compensation. A reference under section 18 was made on June 27, 1961, and this reference was numbered Land Acquisition Case No. 189 of 1961. Khushal Singh also applied for a reference and he claimed enhancement of compensation and challenged the basis of apportionment adopted by the Land Asquisition Officer. The Collector made the reference and it was numbered Land Acquisition No. 190 of 1961. Before we deal with what happened before the Civil Judge, it is necessary to give some facts about the litigation between Sunderlal and Khushal Singh. 'On July 21, 1956, Sunderlal filed a suit (Civil Suit No. 133 B of 1956) against Khushal Singh for rent due on January 1, 1955, and January 1, 1956, in the, Court of Civil Judge, Akola. On July 22, 1957, the Civil Court referred the matter to the Revenue Court under section 16 A of the Berar Regulation of Agricultural Leases Act, 1951. On July 25, 1958, the Sub Divisional Officer, Akola, answered the reference 365 Revenue Case No. 79 of 1957 58) holding that Khushal Singh was not a protected lessee. On appeal, the Deputy Collector. Akola, held, on October 8, 1959, that Khushal Singh was a protected lessee. The Bombay Revenue Tribunal confirmed the order of the Deputy Collector on March 22, 1960. Sunderlal filed a petition before the High Court under article 226 of the Constitution. It was numbered Special Civil Application No. 232 of 1960. On February 8, 1961, a compromise petition (Civil Application No. 163 of 1961) was filed in the High Court, in Special Civil Application No. 232 of 1960. It was stated in. the compromise petition that Khushal Singh did not wish to dispute Sunderlal 's contention that the land was leased for horticulture purposes and that he had not acquired the status of a protected lessee, as defined in the Berar Regulation of Agricultural Leases Act, 1951. Khushal Singh further stated that he had no objection to the quashing of the orders of the Bombay Revenue Tribunal dated March 22, 1960, and of the Deputy Collector dated October 8, 1959. On March 11, 1961, Paramsukhdas filed an application (Civil Application No. 246 of 1961) in the High Court in Special Civil Application No. 232 of 1960, claiming to be heard. He alleged that he had obtained a decree against Khushal Singh and started execution proceedings for Rs. 20,013/ and the amount of Rs. 13,644.27 ordered to be paid to Khushal Singh as compensation had been attached by him for the satisfaction of his decree. He alleged that Khushal Singh and Sunderlal had mala fide entered into an agreement and had filed a compromise application asking for quashing of the orders of the Revenue Courts with the sole object of setting at naught the attachment and execution of his decree. He prayed, therefore, for leave to appear in the case as a party vitally interested. He further prayed that the compromise application should not be entertained and, should be dismissed in the interest of justice. It appears that on March 20, 1961, this application came up for hearing before the High Court. Paramsukhdas, however, took three weeks ' more time from the High Court, which was granted to him. It further appears that Paramsukhdas withdrew the said amount of Rs. 13,644 27 towards satisfaction of his decree. On April 18, 1961, he filed another application (Civil Application No. 365/61) wherein he stated that he had withdrawn the amount and alleged that he was now an interested party, and, therefore, he should be joined as a party. On the same date, his Advocate, Mr. Sohoni gave an undertaking in the following terms: "Mr. Sohoni undertakes to hold the moneys withdrawn 'by his client subject to the orders of this Court 'on this application." On August 3, 1961, the High Court disposed of Civil Applica tion No. 163 of 1961, Civil Application No. 246 of 1961 and Civil Application No. 365 of 1961. The High Court held that in L/S5SCI 10 366 the circumstances "we do not consider it advisable to proceed in this matter ourselves. The parties will be at liberty to file the compromise petition in the Civil Court where proceedings are pending on reference under section 18 of the Land Acquisition Act." The High Court, in order to safeguard the interests of the parties, kept these proceedings pending till the decision on the, compromise petition by the Civil Court. The compromise petition was directed to be returned to Sunderlal. On September 18, 1961, Sunderlal and Khushal Singh filed applications for compromise in both the Land Acquisition references. Paramsukhdas filed applications under 0. XXII r. 10, read with section 151, C.P.C., praying that his name be substituted or added as an applicant. He alleged that the compromise was fraudulent and that Khushal Singh was abandoning the case, and as an attaching creditor, he was entitled to be added a party to the case. Both Khushal Singh and Sunderlal objected, and by two orders dated April 9, 1962, the Civil Judge rejected the applications of Paramsukhdas. He framed the issue: "Whether Paramsukhdas can be permitted to be substituted or added as a party to these two references." He held that admittedly Paramsukhdas had not approached the Land Acquisition Officer in the proceedings in which the award was passed on January 30, 1960. He had not appeared before the Land Acquisition Officer as a person interested in the land or the compensation that would be determined by the authorities. He further held that under the circumstances Paramsukhdas was not one of the persons interested in the acquired land before the Collector, and he also could not be one, of the persons interested in the objections under section 20.(b) of the Act. After referring to Manjoor Ahmad vs Rajlaxmi Dasi (1) and Abu Bakar vs Peary Mohan Mukherjee (2), he hold that the scope of the reference under section 18 was limited and new questions not covered by the reference could not be entertained. He reviewed his orders on July 6, 1962, but nothing turns on that in the present appeals. Paramsukhdas filed two revisions, Nos. 294 and 295 of 1962, before the High Court on June 30, 1962. On August 22, 1962, Sunderlal filed an application for withdrawal of Special Civil Application No. 232 of 1960. The High Court, on September 24, 1962, ordered: "Allowed, main petition dismissed as withdrawn. No costs.". Before the High Court a preliminary objection was raised in Civil Revisions Nos. 294 and 295 of 1962, that revisions were not competent because appeals lay against the orders of the Civil (1) A.I.R, 1956 Cal, 263. (2) I.L.R. 367 Judge. The High Court overruled this objection. Regarding the ,claim of Paramsukhdas to be added as a party, the High Court ;held that his application showed that he was not claiming any interest in the lands themselves but was only claiming an interest in the compensation for the land which had been deposited in the Court for payment to the persons concerned, and as such was a person interested, as defined in section 3 (b) of the Act, and he. would, therefore, be entitled to claim that he should be allowed to join as a party. Mr. Desai contends that an attaching creditor is not interested in the amount of compensation as compensation. His interest, he urges, is only to get moneys belonging to the judgment debtor in enforcement of his rights, and accordingly he is not entitled to be made a party to the reference under section 18 of the Act. He further contends that the Court in hearing a reference under section 18 of the Act can only deal with an objection, which has been referred and cannot go into any matter beyond the reference. He con cludes: if this is so, even if Paramsukhdas is ordered to be added a party he would not be able to challenge the compromise between Sunderlal and Khushal Singh. The learned counsel for the respondent, Mr. C. B. Agarwala, controverts these submissions. ,He says that Paramsukhdas is a person interested in the objection within section 20, and is a person affected by the objection within section 21 of the Act. He also relies on 0. XXII r. 10(2), C.P.C., which is made applicable by section 53 of the Act. Before examining the authorities cited at the Bar, it is necessary to examine the scheme and the provisions of the Act insofar as they are relevant to the question of determination of compensation, the question of apportionment of the compensation, and the question as to the persons who are entitled to be heard. Section 3(b) defines the expression "person interested" as follows: "the expression person interested includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act, and a person shall be deemed to be interested in land if be is interested in an easement affecting the land. " It will be noticed that it is an inclusive definition. It is not necessary that in order to fall within the definition a person should claim an interest in land, which has been acquired. A person becomes a person interested if he claims an interest in compensation to be awarded. It seems to us that Paramsukhdas is a "person interested" within section 3(b) of the Act because he claims an interest in compensation. But before he can be made a party in a reference it has to be seen whether he comes within s, 20(b) and s.21 of the Act. L/S5SCI 10(a) 368 The scheme of the Act seems to be to first deal with persons who are interested in land. These persons are heard under section 5A of the Act. The ordinary meaning of "the person interested in land" is expanded by section 5A(3), for the purposes of this section, to include a person who would be entitled to claim an interest in compensation. It would be strange to come to the conclusion that the Legislature is keen that a person claiming an interest in compensation should be heard before the land is acquired but is not interested in him after the land is acquired. On the contrary, it follows from section 5A(3) that a person claiming an interest in compensation would be one of the persons whose interests are meant to be safeguarded. It appears from sections 6 to 10 that a person claiming an interest in compensation is not expressly mentioned. But in section 11 he is expressly mentioned, and it is directed that the Collector shall inquire into respective interests of the persons claiming the compensation and shall make an award. Section 12 makes the award final and conclusive as between persons interested, i.e., including persons claiming an interest in compensation. Under section 14 the Collector has power, inter alia, to summon the parties interested. Under section 18 any person interested can claim a reference. A person claiming an interest in compensation would also be entitled to claim a reference. After a reference is made the Court is enjoined under section 20 to determine the objections, and serve, among others, all persons interested in the objection. A person claiming an interest in compensation would, it seems to us, be a person interested in the objection if the objection is to the amount of compensation or the apportionment of compensation, and if his claim is likely to be affected by the decision on the objection. Section 21 restricts the scope of enquiry to a consideration of the interests of the persons affected by the objection. But it does not follow from section 21 that there is any restriction on the grounds which can be raised by a person affected by the objection to protect his interests. The restriction that is laid is not to consider the interests of a person who is not affected by the objection. Section 29 deals with apportionment of compensation, if there is agreement, and section 30 enables the Collector to refer disputes as to apportionment to the Court. From the above discussion it follows that a person claiming an interest in compensation is entitled to be heard under sections 20 and 21 of the Act. The provisions of the Act, including sections 20 and 21, do not prescribe that his claim to an interest in compensation should be "as compensation", as urged by Mr. Desai. This is really a contradictory statement. For, a fortiori, he has no interest in land, and compensation is given for interests in land. He can never claim compensation qua compensation for what he claims is an interest in the compensation to be awarded. This is not to say that a person claiming an interest in compensation may not claim that the compensation awarded for the acquired land is low, if it affects his interests, 369 In the view we have taken we are supported by some autho rities. Shah, J., speaking for the majority in Grant vs State of Bihar,(1) observed: "The right of the State of Bihar arose on May 22, 1952 when the title to the land vested in it by virtue of the notification issued under the Bihar Land Reforms Act. There is nothing in the Land Acquisition Act which prohibits the Collector from making a reference under section 30 for determination of the title of the person who has since the date of the award acquired a right to the compensation. If after a reference is made to the Court the person interested dies and his title devolves upon another person, because of inheritance, succession, insolvency, forfeiture, compulsory winding up or other form of statutory transfer, it would be open to the, party upon whom the title has devolved to prosecute the claim which the person from whom the title has devolved could have prosecuted. In Promotha Nath Mitra vs Rakshal Das Addy(2) it was held that a reference made by the Collector under section 30 of the Land Acquisition Act at the in stance of a proprietor of land may be prosecuted by the purchaser of his rights after the award at a revenue auction. If the right to prosecute a reference by a person on whom the title of the person interested has devolved be granted, there is no reason why the right to claim a reference of a dispute about the person entitled to compensation may not be exercised by the person on whom the title has devolved since the date of the award. The scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act; it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the Court to which power is entrusted. Jurisdiction of the Court in this behalf is not restricted to cases of apportionment, but extends to adjudication of disputes as to the person who are entitled to receive compensation, and there is nothing in section 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, since the award, devolved. " In Golap Khan vs Bholanath Marick(3) an attaching creditor was directed to be made a party to the reference under the Land (1) ; (2) (3) 370 Acquisition Act, before the Civil Court. Mookerjee, J., observed: "The petitioner was entitled to be added as a party, not under Rule 10, but on the ground that he was a person interested in the subject matter of the litigation and that no order ought to have been made for its disposal without any opportunity afforded to him to establish his claim." In Siva Pratapa Bhattadu vs A.E.L. Mission(1) an attaching creditor was held to be a person interested within section 3(b) of the Act. Mr. Desai relies on Manjur Ahmed vs Rajlakshmi(2) but in that case the point decided by the Court was different. It was held there that if a party to a land acquisition proceeding before the Collector had not obtained a reference under section 18 of the Act, its representative could not do indirectly what they did not do directly, i.e. they could not be added a party in a reference pending at the instance of other parties in order that the nil award against the party might be reversed and in order that they might be awarded a share of the compensation money. Here no such point has been raised. It has not been urged before us that Paramsukhdas was a party before the Collector and that having not applied for a reference under section 18 he is now debarred from being added as a party. The case of Gobinda Kumar Roy Chowdhury vs Debendra Kumar Roy Chowdhury(3) was also decided on the same lines. Similar view was reiterated in Mahammad Safi vs Haran Chandra(4). Both these cases had followed Abu Bakar vs Peary Mahan Mukerjee(5). Maclean, C. J., observed as follows in Abu Bakar vs Peary Mohan Mukerjee(5). "If we read that section in connection with section 20 and section 18, I think it is impossible to avoid the conclusion that the Legislature intended that all that the Court could deal with was the objection which had been referred to it; and this seems to be a view consistent with commonsense and with the ordinary method of procedure in civil cases. The zemindar here could, if he liked, have raised the objection as to the whole com pensation for the trees being given to the tenants, but he did not do so. He must, therefore, be taken to have accepted the award in that respect; and it would be little less than dangerous if we were to hold that the Judge to (1) A.I.R. 1926 Mad. 307. (2) A.I.R. 1956 Cal. 263. (3) C.W.N. 98. (4) (5) 371 whom only one objection was referred could go into all sorts of questions and objections which had not been referred to him. " These three cases are distinguishable inasmuch as they are dealing with the cases of persons who having a right to seek a reference failed to claim that reference but ought to raise the point in a, reference made at the instance of another party. The case of Karuna Sindhu Dhar vs Panna Lal Paramanik(1) also does not assist the appellant. The High Court held in that case that as Rajmohan never claimed the entire compensation money before the Collector, the Land Acquisition Judge was not entitled to vary the awards by a declaration that Rajmohan alone was entitled to get the compensation. It seems to us that Paramsukhdas was clearly a person in terested in the objections which were pending before the Court in the references made to it and that he was also a person whose interest would be affected by the objections, within section 21. He was accordingly entitled to be made a party. In the result we uphold the order made by the High Court in this respect. Mr. Desai says that at any rate direction should be given that Paramsukhdas should not be entitled to challenge the compromise entered into between Sunderlal and Khushal Singh. We are unable to accept this submission. Paramsukhdas is entitled to raise all points to protect his interests which were affected by the objections. It is also in the interest of justice that there should not be multifarious proceedings and all points arising which are not expressly barred under section 21 should be gone into by the Court. This leaves only the two points regarding the jurisdiction of the High Court. In our view, the High Court is quite right in holding that the orders of the Civil Judge, dated April 9, 1962, were not awards within section 54 of the Act. The awards had still to be made. If no appeal lay, then the revisions were competent and the High Court was right in entertaining the revisions because the Civil Judge had either refused to exercise jurisdiction vesting in him or had acted with material irregularity in the exercise of his jurisdiction. In the result the appeals fail and are dismissed with costs in favour of Respondent No. 1; one hearing fee. Y.P. Appeal dismissed. [/INST]On August 19, 1964, officers belonging to the Department of the appellant raided and searched the premises of a company and foreibly removed certain accounts and goods. The respondents challenged the department 's action by writ petitions filed in the High Court under article 226 of the Constitution praying that the articles seized should be returned. It was contended by the petitioners that on a proper construction of section 41 of the Madras General Sales Tax Act, No. 1 of 1959, the officers of the Department had no authority to search the premises and seize any account books or goods found there; that if section 41(4) authorised seizure and confiscation of goods, it was beyond the legislative competence of the State Legislature, for it was not covered by item 54 of List II of the Seventh Schedule to the Constitution relating to "taxes on the sale or purchase of goods"; and that if various provisions in section 41 were capable of being construed as authorising search and seizure, they were violative of article 19(1)(f) and (g) of the Constitution. The High Court allowed the Petitions holding, inter alia, that section 41 (2) did not permit a search being made and only provided for inspection; the power of seizure or confiscation in section 41(4) was beyond the legislative competence of the State Legislature; and that subsections (2), (3) and (4) of section 41 contained unreasonable res trictions and were violative of article 19(1) (f) and (g). The High Court also found with respect to one of the petitions that the search warrant had been issued without the application of Mind by the magistrate and was bad. On appeal to this Court; Held: dismissing the appeal, (i)Anything recovered during the search must be returned to the petitioners for the safeguards provided by section 165 of the Code of Criminal Procedure were not followed and in one case the finding of the High Court that the search warrant issued by the magistrate was bad on various grounds was not challenged; furthermore anything confiscated must also be returned as sub section (4) of section 41 must fall.[163 B D]. Clause (a) of the second proviso to sub section (4) gives power to the officer ordering confiscation to give the person affected an option to pay in lieu of confiscation, in cases where the goods are taxable under the Act, the tax recoverable and an additional amount and thus provides for recovery of tax even before the first sale in 149 the State which is the point of time in a large majority of cases for recovery of tax. As such it was repugnant to the entire scheme of the Act and sub section (4) must therefore be struck down. As Clause (a) compels the officer to give the option and thus compels recovery of tax before the first point of sale, which cannot have occurred in cases of goods seized from the dealer himself, it is clearly intended by the legislature to go together with the main part of the Section and is not therefore severable. [159F 16OD]. (ii) Although generally speaking the power to inspect does not give power to search, where, as in the case of section 41 (2) the power has been given to inspect not merely accounts registers, records, goods, etc., but also to inspect the offices, shops etc. , these two powers together amount to giving the concerned officer the power to enter and search the offices etc. and if he finds any accounts or goods in the offices, shops, etc., to respect them. The High Court was therefore wrong in holding that there was no power of search whatsoever under sub section (2). [154H 155E]. The proviso to sub section (2) in providing that all searches under "this sub section" shall be made in accordance with the provisions of the Code of Criminal Procedure, bears out the construction that the main part of sub section (2) contemplates searches. Similarly it is clear from sub section (3) which gives power to seize accounts etc., in certain circumstances, that sub section (2) must include the power of search for a seizure under sub section (3) is not possible unless there is a search. [156D E. 158B C]. The contention that as the main part of sub section (2) does not provide for search of a purely residential accommodation and therefore the proviso is otiose must be rejected. Although generally a provision is an exception to the main part of the section, it Is recognised that in exceptional cases, as in the present case, the provision may be a substantive provision itself. [156D F]. Bhonda Urban District Council vs Taff Vale Railway Co., L. R. Commissioner of Income tax vs Nandlal Bhandari & Sons , and State of Rajasthan vs Leela Jain. ; , referred to. (ii)Sub sections (2) and (3) of section 41 are not violative of article 19 as they are protected by clauses (5) and (6) of article 19 of the Constitution. [162F G]. The High Court had wrongly assumed that the provisions of the Criminal Procedure Code did not apply to a search under section 41(2). In view of the safeguards provided in section 165 Cr. P.C. and in Chapter VII of that Code, it cannot be said that the power to search provided in sub section (2) is not a reasonable restriction keeping in View the object of the search, namely, prevention of evasion of tax. [161EG]. The mere fact that the Act gives power to Government to em power any officer to conduct the search is no reason to strike down the provision for it cannot be assumed that Government will not empower officers of proper status to make searches. [160 H], To, exercise the power of seizure under sub section (3) the officer concerned has to record his reasons in writing, has to give a receipt for the accounts seized, and can only retain the items seized beyond a period of 30 days with the permission of the next higher officer. These are sufficient safeguards and the restriction, if any, on 150 the right to hold property and the right to carry on trade by sub section (3) must therefore be held to be a reasonable restriction. [162 D G]. While the court held that the Legislature has power to provide for search and seizure in connection with taxation law in order that evasion may be checked, it did not decide the general question whether a power to confiscate goods which are found on search and which are not entered in account books of the dealer is an ancillary power necessary for the purpose of stopping evasion of tax. [159C D]. K.S. Papanna and another vs Deputy Commercial Tax Officer, Gunkakal, (1967) XIX S.T.C. 506; referred to. </s>

<s>[INST] Summarize the judgementON:Criminal Appeal No. 680 of 1987. From the Judgement and Order dated 16.8.1984 of the Andhra Pradesh High Court in Crl. A. No. 604 of 1982. N. Santosh Hegde, A.D.N. Rao and A, Subha Rao for the Appellants. G. Prabhakar for the Respondent. The Judgement of the Court was delivered by 877 V.RAMASWAMI, J. The appellants along 11 others were tried for causing the murder of on Appikatla Tataiah, and for causing injuries on Jarugu Rama Koteshwararao (PW2) on 24th June, 1981 near `Manchineeti Cheruyu '(fresh water tank) at or about 8.00 P.M. in Machavaram Village. The learned Sessions Judge, Krishna Division Machilipatnam by his Judgment dated 16.7.1982 acquitted A 3, A 4, A 6 to A 10, A 12 and A 15 of all the charges. He convicted Kurakula Nagamelleswarao (A 1), Jarugu Kotaiah (A 2), Appikatla Krishnamurthy (A 5) and Appikatla Nagulu (A 11) under section 148, Indian Penal Code and sentenced each of them to undergo two years rigorous imprisonment. A 1 was further convicted under section 302, IPC and sentenced to imprisonment for life. A 2 was convicted under section 302 read with section 34, IPC and sentenced to imprisonment for life. A 5 and A 11 were convicted under section 302 read with section 149, IPC and each of them were sentenced to undergo imprisonment of life. Regarding the attack on PW 2 jarugu Rama Koteshwararao the learned Sessions Judge convicted A 1 and A 2 under section 326, IPC read with section 149 and sentenced each of them to undergo rigorous imprisonment for four years. The learned Judge further convicted A 5 and A 11 under section 324, IPC for causing simple hurt to PW 2 and sentenced each one of them to undergo rigorous imprisonment for two years. A 1 and A 2 were also convicted under section 324 read with section 149, IPC and each of them were sentenced to two years rigorous imprisonment. The sentences awarded against each accused under various ground were ordered to run concurrently. The convicted accused preferred Criminal Appeal No. 604 of 1982 and the State appealed against the acquittal of the rest of the accused in Criminal Appeal No. 630 of 1983. At the time of admission of appeal, however, the State appeal was dismissed as against A 9, A 10, A 12, A 13, A 14, and A 15 and it was admitted only as against acquittal of A 3, A 4 and A 6 to A 8. The High Court confirmed the conviction and sentence of A 1, A 2, A 5 and A 11 under section 148, IPC. However, it alterted the conviction of A 1 and A 2 under section 302, IPC and Section 302 read with section 34 respectively into one under section 148 and section 302 read with section 149 and the sentence awarded thereunder were also confirmed. The High Court also confirmed the conviction and sentences on the accused under sections 326 and 324 read with section 149 and sections 324 read with 878 section 149, IPC. The sentences were directed to run concurrently. the lerned Judges of the High Court dismissed the appeal preferred by the State in respect of acquittal of the other accused. In this appeal Sh. Santosh Hedge, Senior Advocate appearing for the accused appellants did not canvass the conviction of the four appellants, namely, A 1, A 2, A 5 and A 11 under section 324 and 326, IPC and section 324 read with section 149, IPC and section 326 read with section 149, IPC in relation to the attack on PW 2 but without prejudice to his contention that on the facts section 149, IPC could not have been invoked in relation to the offence under section 302,IPC. This stand was taken on the basis that the appellants had already served or had almost finished serving the four year terms which was awarded for those offences. The conviction and sentence under section 148 was also not canvassed for the same reason without prejudice the above said contention. He confined his arguments against the convictions and sentences of A 1, A 2, A 5 and A 11 under section 302 read with section 149, IPC. The argument of the learned counsel for the appellant was that in the absence of specific finding to the effect and apart from the four appellants the prosecution has proved the involvement of other persons, section 149 IPC cannot be used for convicting for four appellants under section 302. In this connection, he also relied on the decisions of this Court in Amar Singh V. State of Punjab, [1987] 1SCC 679 and Maina Singh V. State of Punjab, [1976]3SCR651. So far this part of the case is concerned in the present case the High Court observed: "The lower court has convicted A 1 under section 302 of the Indian Panal Code for attacking the deceased. A 2, was convicted under sections 149, 302 r.w. section 34, 324 r.w. section 149 and 326 I.P.C. for attacking the deceased. A 5 and A 11 were convicted under sections 148, 302 r.w. section 149, 324 and 326 r.w. section 149 IPC. As already observed the facts and circumstances undoubtedly show that there was an unlawful assembly consisting of more than five persons and the common object of the unlawful assembly was to attack and kill the deceased and attack PW 2. As already observed only such of accused whose presence and participation is established can safely be held to be the members of the unlawful assembly. To arrive at such a conclusion we have indicated that the evidence of PW 2 to extent consisting with the earlier versions of exhibit P 2 can 879 safely be accepted to be the basis and if corroboration is necessary the same can be found in the evidence of PWs 1, 3 and 4P. Ws. 2 's evidence is subjected to scrutiny in the light of the contents in exhibit P 2. The consistent version regarding the presence and participation by A 1,A 2, A 5 and A 11 can safely be accepted and they can be held to be the members of the unlawful assembly along with some others unidentified persons. The common object of the unlawful assembly along with some others unidentified persons. The common object of the unlawful assembly was to commit murder of the deceased. All of them can be conviction under section 302 read with section 149 IPC in as much as there can be no doubt whatsoever that the object of such an unlawful assembly of which A 1, A 2, A 5 and A 11 are members is to attack the deceased and PW 2. In this context it must also be remembered that PW 2 who received the serious injuries, would be the last person to leave out the real assailants and implicate the innocent persons.". (Emphasis supplied) We are of the view that there is some confusion in the statement of the High Court. The charges under section 324 and section 326 read with section 149 and section 326 and section 324 read with section 149 are in relation to the injuries inflicted on PW 2. So far as injuries inflicted on PW 2 is concerned as already stated the conviction and sentence in regard to the same are not canvassed in this appeal. So far as the attack on the deceased is concerned P 1 the statement of PW 1 given to the village Munsif on 24.6.1981 immediately after the occurence stated that: ". surrounded my husband and my elder brother armed with axes, curved knives, and spears. Then Kurakula Nagamalleswararao hacked my elder brother with curved knife (Yerukala Kathi) on the left shoulder. Jargugu Kotiah hacked my elder brother with an axe on the left shoulder. Appikatla Nagulu beat my elder brother on the head with stick portion of the spear. I raised hue and cry loudly that they are killing my husband and my elder brother. On hearing my cries Ummadisetti Pooraniah and my sister in law Srikrishna came there. the above fifteen persons caused injuries to my husband by beating and hacking with axes, spears and curved knives (Yerukala Kathi)which were in their hand. My husband succumbed to the knife injuries. " 880 It may be seen from this report that there is a bald statement that fifteen persons caused injuries to her husband (deceased) by beating and hacking with axes, spears and curved knives (Yerukala Kathi) which were in their hands and her husband succumbed to the knife injuries. It did not attribute any overt act to A 1, A 2, A 5 and A 11, who are the appellants in this case. The PW2 gave the statement exhibit P 2 dated 25.6.1981 recorded by the Munsiff Magistrate, Avamigadda as a dying declaration which was later taken as a statement under section 157 Code of Criminal Procedure. In this so far as the injuries inflicted on the deceased are concerned he had merely stated: "The aforesaid four persons and the other eleven persons, beat and hacked my younger sisters ' husband Appikatla Tataiah and felled him down." The charges framed against the accused appellants also stated: "That you, accused Np. 1 to 15, on the night of 24th day of June, 1981, at about 8.P.M. near the Manchineeti Cheruvu ' in Machavaram Village, Divi taluk, were members of an unlawful assembly and did, in prosecution of the common object of which viz. in killing Appikatla Tataiah, S/o Chittonna alias Chinna Ammanna an d Jarugu Rama Koteswara Rao, S/o Mangaiah of Machavaram village. " Thus the specific prosecution case was that accused 1 to 15 attacked the deceased and no specific overt act was attributed to any of the accused. It is true that PW 1 in her evidence stated that A 1 hacked the deceased on the left side of neck with Yerukala Kathi and the evidence of doctor PW 8 showed that this is injury No. 2 which proves fatal by itself. But in the light of the first information report P 1 and the dying declaration exhibit P 2 dated 25.6.1981 of P.W. 2 recorded by the Munsiff Magistrate which was later on treated as statement under section 57 of the Criminal Procedure Code which did not attribute any specific overt act to any of the appellant accused in this case, this case was not accepted by the High Court. It is because of this reason the High Court did not accept the conviction of the appellants 1 and 2, namely, accused 1 and 2 under section 302 and section 302 and section 302 read with section 34, accused 1 and 2 under section 302 and section 302 read with section 34, IPC and altered the conviction into one under section 302 read with the section 149, IPC. The learned counsel for the appellant also contended that the evidence of PW 1 apart from the fact it was not accepted by the High 881 Court in so far as it related to the specific overt acts of A 1, 2, 5 and 11 are concerned are also not acceptable as they are full of infirmities and improbabilities and also by reason of the possibility of improving the case. He had pointed out that though PW 2 and deceased were said to have gone to the Manchineeti Cheruyu (fresh water tank) to verify whether the paddy bags kept by them for soaking were in tact, paddy bags were not found the investigating officer or anybody and they were not recovered. the learned counsel also pointed out, the story that PWs 1 and 3 and had gone that side for calls of nature are also not believable as the place were ladies ease was on the opposite direction and not in the direction of the fresh water. The houses of the deceased and PW 2 and that of Pw 4 were about 150 yards away from the scene of occurence and the occurrence is stated to have taken place at 8.00 P.M. These ladies ran to the scene of occurrence on hearing the cries of the deceased and PW 2. It was also pointed out that though they stated that when they (ladies) went to answer the calls of nature they had taken along with them chambus or lotas with water, and those chambus or lotas were not recovered. In her evidence PW 1 stated that when she found her husband lying dead with number of injuries and blood everywhere she fell over her husband and wept but none of her blood stained clothes were recovered. Though they had stated that when she found her husband PW 2 injured she carried him but her blood stained clothes were also not recovered. Though they had stated before going to the village Munsiff for giving the complaint and after taking PW2 to the house they have changed the clothing their evidence clearly throw a doubt as to the presence at the time of occurrence. It should be kept in mind that PW1 is the wife of the deceased PW3. And thus they are all closely related and the possibility of an exaggeration or of improving in their evidence cannot be ruled out. It may also be pointed out that these witnesses stated that there was electric lamp post and there was no question of any electric light being on. There is ample evidence of rivalry between the parties also. In these circumstances their presence at the time of occurrence is doubtful and it is also not possible to believe the evidence of PWs 1,2,3 and 4 in respect overt acts attributed to the four appellants herein. In fact, as already stated the High Court was not willing to accept their evidence in this regard and that is why the conviction was made under section 302 read with section 149, IPC. 882 However, the learned Judges over looked that since the accused who are are convicted were only four in number and the prosecution has not proved the involvement of other persons and the courts below have acquitted all the other accused of all the offences, section 149 cannot be invoked for convicting the four appellants herein. The learned Judges were not correct in stating that A1, A2, A5 and A11 "can be held to be the members of the unlawful assembly along with some others unidentified persons ' on the facts and circumstances of this case. The charge was not that accused 1, 2, 5 and 11 "and others ' or "and other unidentified persons" formed into an unlawful assembly but it is that "you accused 1 to 15" who formed into an unlawful assembly. It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime. When the 11 other accused were acquitted it means that their involvement in the offence had not been proved. It would not also be permisible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object. In Maina Singh 's case (supra) the appellant in that case and four others were charged with offences under sections 302/149, IPC, the appellant with having shot at the deceased and the other accused with giving blows to the deceased with a sharp edged weapon. The Trail Court acquitted the four accused and convicted the appellant under section 302 read with section 34. The High Court dismissed the appeal for the State against the acquittal as also the appellants appeal against the conviction. In the appeal before the Supreme Court it was contended for the appellant that it was not permissible to take the view that a criminal act was done by the appellant in furtherance of the common intention of other co accused when those accused who had been named had all been acquitted and that all that was permissible for the High Court was to convict the appellant of an offence which he might have committed in his individual capacity. The head note in the report brings the ratio of the judgement correctly and that may be quoted: "In a given case even if the charge disclosed only the named persons as co accused and the prosecution witness confined their testimony to them, it would be permissible to conclude that others, named or unnamed, acted cojointly with one of the charged accused if there was other 883 evidence to lead to that conclusion, but not otherwise. The charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with four named co accused, and with no other person. The trial in fact went on the basis throughout. There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person. So when the other four co accused had been given the benefit of doubt and acquitted, it would not be permissible to take the view that there must have been some other person alongwith with the appellant in causing injuries to the deceased. the appellant would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.". The facts in the Amar Singh 's case (supra) in short were that seven accused were charged for murder under section 302 read with section 149 IPC. Two out of the seven accused were acquitted by the Trial Court and on appeal the High Court acquitted one more accused. However, the High Court convicted four of the accused under section 302 read with section 149 IPC and sentenced them for life imprisonment. The four convicted accused appealed to this Court and it was contended on their behalf that after the acquittal for three accused persons out of seven, the appellants who were remaining four cannot be held to have formed an unlawful assembly within the meaning of Section 141, IPC and accordingly the charge under section 149 was not maintainable. Accepting this contention this Court observed: "As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of section 141 IPC. It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime. Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under section 148 or section 149 IPC for any offence, for, the first condition to be fulfilled in designating an assembly an `unlawful assembly ' is that such assembly must be of five or more persons, as required under section 141 IPC. In our opinion, the convictions of the appellants under sections 148 and 149 IPC cannot be sustained. " 884 The ratio of these judgements are also applicable to the facts and circumstnces of this case. In the result the appeal of the appellants against the conviction and sentence under section 302 read with section 149, IPC is allowed and the same is set aside. We, however, confirm the conviction and sentence of the appellants under the other charges. R.N.J. Appeal allowed. 885 GURMUKH SINGH V AMAR SINGH MARCH 15, 1991 [N.M.KASLIWAL AND K. RAMASWAMY, JJ.] : Section 23 Contract opposed to public policy What is Agreement to purchase property in public auction and thereafter convey half the property Specific performance of Whether enforceable. The respondent field a suit for specific performance of an agreement of sale of land or refund of the money paid to him contending that he and the appellant had contracted that the appellant would participate, on their behalf in public aution to purchase the evacuee property and the appellant would convey half the property purchased thereat and in furtherance of that he had contributed his share, but the appellant who became the highest bidder and got a sale certificate issued by the custodian of the evacuee property had not performed his part of the contract. The appellant resisted the suit, and denied the execution of the agreement. He also pleaded that the contract was illegal and void, being opposed to public policy, and that the relief of specific performance being discretionary could not be granted in favour of the respondent. The trial court decreed the suit. On appeal by the appellant, both the first appellate court and the High Court confirmed the decree. Hence the appeal, by special leave. On behalf of the appellant it was contended that the agreement was opposed to public policy since it was to knock out the public property on a minimum price and, therefore, void under section 23 of the contract Act, 1872. Dismissing the appeal, this Court. , HELD: 1.1 Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law, or is of such a nature that, if permitted, it would defeat the provision of any law; or is fraudulent; or involved or implied injury to 886 the persons or property of another; or the court regards it as immoral or opposed to public policy. In each of these cases, the consideration or object of an agreement is unlawful. Thus, every agreement of the consideration or object of which is unlawful is void. [888F G] 1.2 The word "object" would mean the purpose and design which is the object of the contracts; it is opposed to public policy if it tends to defeat any provision of law or purpose of law, and it becomes unlawful and void under section 23 of the Contract Act. Section 23 is concerned with only the object or consideration of the transaction and not the reasons or motive which prompted it. Public policy imposes certain limitation upon freedom of contract. Certain objects of contract are forbidden or discouraged by law; though all other requisites for the formation of a contract are complied with, yet if these objects are in contemplation of the parties when they entered into the agreement, the law will not permit them to enforce any rights under it. Most cases of illegality are of this sort; the illegality lie in the purpose which one or both parties have in mind. But in some instances the law strikes at the agreement itself, and the contract is then by its very nature illegal. [888G H,889A B] 1.3 The public policy is not static. It is variable with the changing times and the needs for the society. The march of law must match with the fact situation. A contract tending to injure public interest or public welfare or fraudulent to defeat the right of the third parties is void under section 23 of the Contract Act. [892F] 1.4 The object of conducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose. If such a contract to form a ring among the bidders was to peg down the price and to have the property knocked out a low price it would defeat the above economic interest of the debtor or public welfare. Thereby the agreement becomes fraudulent and opposed to public policy and is void under section 23. [ 890E F] In the instant case, the facts demonstrate that the agreement between the appellant and the respondent was only a combination to participate at an auction of the evacuee property. There is no intention either to peg down the price or to defraud the Government to knock out the sale at a lower price. Thus, the object of the agreement is not opposed to public policy, and therefore, it is not void under section 23 of the Contract Act. Therefore the agreement between the appellant and the 887 respondent is lawful contract. The courts below committed no error of law warranting interference.[892H,893A B] Rattan Chand Hira Chand vs Askar Nawaj Jung, J.T. 1991 1SC 433 and Cheerulal Prakash vs Mabadeodas Maiyua & Ors., [1959] (Suppl.) 2 SCR 406, referred to. Scott vs Brown. Deorning Mc Nab & Co., [1892] 2 K.B. 724 and Mohamed Meerta vs S.V. Raghunadha Gopalar, 27 Indian Appeals 17, referred to. Kayjay Industries (P) Ltd. vs Asnew Drums (P) Ltd. & Ors.,[1974] 3 SRC 678; Central Inland Water Transport Corpn. Ltd. & Anr vs Brojo Nath Ganguli & Anr., {1986] 2 SCR 278 and Delhi Transport Corporation vs D.T.C. Mazdoor Congress & Ors., A.I.R. 1991 SC 190, inapplicable. Chandra Sreenivasa Rao vs Korrapati Raja Rama Mohana Rao and Anr., ; Ram Lal Misra vs Rajendra Nath Sanyal, A.I.R. (1933) Oudh P. 124 at 127; Nand Singh @ Ghuddha vs Emperor, A.I.R. (30) 1943 Lahore 101; Hutchegowda vs H.M. Basaviah, A.I.R. ; Ratanchand Hirachand vs Askar Nawaz Jung & Ors., A.I.R. 1976 A.P. 112; Mo. Issac V. Sreeramula, A.I.R. Mad. 289= [1946] 1 Madras Law journal, 187; Ramalingiah vs Subbarami Reddi A.I.R. 1951 Mad. 390; Mohafazul Rahim vs Babulal, A.I.R. 1949 Nagpur 113 and Lachhman Das & Ors v Hakim Sita Ram & Ors. A.I.R. 1975 Delhi 159, referred to. Chitty 's contract, 26th Edn., Vol. I Paragraph 1134, P. 686 and Halsbury 's Laws of England. Fourth Edition, Vol. 9 Paragraph 392 at p. 266 and paragraph 746 at 383, referred to. & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1335 of 1977. From the Judgement and Order dated 7.3.1977 of the Punjab & Haryana High Court in R.S.A. No. 1162 of 1966. J.M. Khanna and Mr. I.B. Gaur for the Appellant. Dhruv Mehta, Aman Vachhar, S.K. Mehta, Arvind Verma and Romesh Chand for the Respondent. 888 The Judgement of the Court was delivered by K. RAMASWAMY, J. The unsuccessful defendant/appellant resisted the suit of the respondent for specific performance of the agreement of sale of 27 Bhigas and 2 Biswas of the land situated in Chakkar Karman Village. According to the respondent he and the appellant contracted that the appellant would participate on their behalf in a public auction to purchase the evacuee property. he contributed his share. The appellant agreed to convey half the property purchased at the auction. The appellant became the highest bidder for a sum of Rs. 5,000 and he contributed his share and the sale was confirmed on March 11, 1964 and a sale certificate was issued by the custodian of he evacuee property but the appellant had not performed his part of the contract. Accordingly he laid the suit for specific performance or refund the amount advanced by him. The suit was resisted by the appellant denying the execution of the agreement and also pleaded that the contract is illegal and void being opposed to public policy. The relief of specific performance being discretionary cannot be granted in favour of the respondent. The Trial Court decreed the suit; on appeal and on further second appeal the District Court and the High Court confirmed the same. Thus this appeal on social leave under article 136 of the Constitution. The contention neatly argued by Shri Khanna, the learned counsel for the appellant, is that the agreement is opposed to public policy and, therefore, it is void under section 23 of the Contract Act, 1872. According to him the agreement was to knock out the public property on a minimum price and that, therefore, the object of the agreement is opposed to public policy and is hit by section 23. We found no force in the contention . Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law; or is of such of nature that, if permitted, it would defeat the provision of any law; or is fraudulent; or involved or implied injury to the persons or property of another; or the court regard it as immoral or opposed to public policy. In each of these cases, the consideration or object of an agreement is a said to be unlawful. Every agreement of which the object or consideration is unlawful is void. The word object would mean the purpose and design which is the object of the contract, if is opposed to public policy which tends to defeat any provision of law or purpose of law, it becomes unlawful and thereby it is void under section 23 of the Contract Act. Section 23 is concerned with only the object or consideration of the transaction and not the reasons or motive which prompted it. Public policy imposes certain limitations upon free 889 dom of contract. Certain objects of contract are forbidden or discouraged by law; though all other requisites for the formation of a contract are complied with, year if these objects are in contemplation of the parties when they entered into the agreement, the law will not permit them to enforce any rights under it. Most cases of illegality are of this sort: the illegality lies in the purpose which one or both parties have in mind. But in some instances the law strikes at the agreement itself, and the contract is then by its very nature illegal. Whenever a plea of illegality or against public policy is raised as a defence to a contractual claim, the test to be applied is: Does public policy require that this claimant, in the circumstances which have occurred, should be refused relief of which he would otherwise have been entitled with respect to all or part of his claim . In addition, once the court finds that the contract is illegal and unenfocreable, a second question should be posed which would also lead to greater clarity: do the facts justify the granting of some consequential relief (other than enforcement of the contract) to either of the parties to the contract. In Chandra Sreenivasa Rao vs Korrapati Raja Rama Mohan Rao and Anr., , Subba Rao J., as he then was, while considering the word "object" in section 23 of the Contract Act in the context of enforceability of the debt secured to celebrate the marriage of the minor which was prohibited by the Child Marriage Restraint Act, held that the word "object" in section 23 meant "purpose" or "design" of the contract. The purpose of borrowing was unlawful as it was opposed to the public policy of celebrating the marriage of a minor in violation of the statutory provisions, and therefore, the promissory note was held to be unenforcable. An agreement between A & B to purchase property at an auction sale jointly and not to bid against each other at the auction is perfectly lawful, though the object may be to avoid competition between the two. But if there is an agreement between all the competing bidders at the auction sale, be it of the court sale or revenue sale, or sale by the government of its property or privilege and formed a ring to peg down the price and to purchase the property at knock out price, the purpose or design of the agreement is to defraud the third party, namely , the debtor or Govt. whose property is sold out at the court auction or revenue sale, or public welfare. The object or consideration of the contract, oral or written, to share such property is unlawful. There is also implied "injury to the debtor" within the meaning of section 23. Thereby the contract was fraudulent. The contract thus is also opposed to public policy and is void. Take for instance four persons participated at an aution sale; pursuant to their previous agreement, they made pretext of partici 890 pation in the auction; bid upto an agreed price though the real value of the property is much more than what they had offered for. Here the design or object of their forming a ring is to knock out the property for a song to defraud the debtor or public. What is the object of the public policy in this regard ? The scope of public policy was classified into five groups in paragraph 1134 at p. 686 of Chitty 's on Contract , 26th Edn., Vol. I, thus: "Objects which on ground of public policy invalidate contracts may, for convenience, be generally classified into five groups; first, objects which are illegal by common law or by legislation; secondly, objects injurious to good government either in the field of domestic or foreign affairs; thirdly objects which interfere with the proper working of the machinery of justice; fourthly, objects injurious to marriage and morality and fifthly, objects economically against the public interest. " In Halsbury 's Laws of England , Fourth Edition, Vol. 9, in paragraph 392 at p. 266 it is stated that an agreement which tends to be injurious to the public or against the public good is invalidated on the ground of public policy. "The question whether a particular agreement is contrary to public policy is a question of law, to be determined like any other by the proper application of prior decisions" The object of conducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose. If such a contract to form a ring among the bidders was to peg down the price and to have the property knocked out at a low price would defeat the above economic interest of the debtor or public welfare. Thereby the agreement becomes fraudulent and opposed to public policy and is void under section 23 . In Ram Lal Misra vs Rajendra Nath Sanyal, A.I.R. (1933) Oudh p. 124 at 127 the finding was that the agreement was not merely of an honest combination between two bidders to purchase the property at an advantageous price but goes further by resorting to secret artifice for the purpose of defrauding a third person, namely, the rival decreeholder. Accordingly, it was held that the agreement was fraudulent and that, therefore, void under section 23 of the contract Act; Same is the view expressed by the Lahore High Court in Nand Singh @ Ghudda vs Emperor, A.I.R. 30 1943 Lahore 101 and in Hutchegowda vs H.M. Basaviah, A.I.R. (1954)Mysore 29. In Rattan Chand Hira Chand vs Askar Nawaj Jung,J.T. this Court held that an agreement to influence authorities to obtain favourable verdict was held to 891 be opposed to public policy and void under section 23 and approved the decision of the A.P. High Court in Ratanchand Hirachand vs Askar Nawaz Jung & Ors. A.I.R. 1976 A.P. 112. An agreement to rig the market for share has been held to be fraudulent and unenforceable in Scott vs Drown, Deorning McNab & Co. [1872]2K.B. 724. In Halsbury 's Laws of England Fourth Edition, Vol. 2, paragraph 746 at p. 383, it was stated that where good were purchased at an auction by a person who had entered into an agreement with another or others that the other or the others, or some of them, shall abstain from bidding for the goods, and he or the other party, or one of the other parties, to the agreement is a dealer, the seller may avoid the contract under which the goods are purchased. Where a contract is avoided by virtue of this provision, then if the purchaser has obtained possession of the goods and restitution thereof is not made, the persons who were parties to the agreement are jointly or severally liable to make good to the vendor any loss he sustained by reason of the operation of the agreement. In Md. Issac vs Sreeramulu, A.I.R.1946 Mad. 289=(1946) 1 Madras Lw Journal, 187 the Madras High court held that an agreement between two bidders not to bid against each other at an auction is not illegal and is not opposed to public policy. The same was followed in Ramalingiah vs Subbartami Reddi, A.I.R. 1951 Mad 390. In Mohafazul Robim vs Babulal, A.I.R. 1949 Nagpur 113 the Nagpur High Court also held that persons agreeing not to bid against each other is not opposed to public policy. The Division Bench of Delhi High Court in Lachman Das & Ors. vs Hakim Sita Ram & Ors. A.I.R. 1975 Delhi 159 had to consider that an agreement entered into by the parties not to bid at the auction against each other is not opposed to public policy, and therefore, it is not avoid. While upholding the agreement it was also held that where agreements are likely to prevent the property put up for sale in not realising its fair value and to dump the sale would certainly be against public good and, therefore, is void being opposed to public policy. In Cheerulal Prakash v Madadeodas maiyua & Ors., [1959] (suppl.) 2 SCR 406 this court held that though a wagering contract was void and unenforceable under section 30 of the ContractAct, it was not forbidden by law and agreement collateral to such a contract was not unlawful within the meaning of section 23 of the Contract Act. A partnership with the object of carrying on wagering transaction was not therefore, hit by section 23. In Mohomed Meerta vs S.V. Raghunadha Gopalar, 27 Indian Appeals, 17 the sale was impugned, on one of the grounds that the agreement was made for the benefit of the Papanand Zamidar and 892 the appellant, intended to sell the property back to the former when he should be in a position to repurchase it and both of them had combined to dissuade persons from bidding, and did in fact dissuade them. Thereby they purchased the property for lesser price than the real value. The execution was set aside. On appeal, the High Court did not agree with the finding that the appellant and the Jainilabdin and the Papanand Zamindar did combine to dissuade the persons from bidding but fount that the appellant played fraud on the court by suppressing the contract as being a decree holder obtained leave of the count and bid in the auction. Therefore, the sale was void on that ground. On further appeal the judicial committee found that the ground on which the High Court set aside the sale was not pleaded, nor an opportunity given to the appellant. Therefore, for the first time that ground cannot be taken before the High Court and having disagree with the executing court that there was an agreement to dissuade third party to participate in the bid, the sale cannot be set aside on the new ground. The Privy Council confirmed the sale. On those facts the ratio is of no assistance to the appellant since there is no agreement between the appellant and the respondent to dissuade third party to participate in the bid. The ratio in Kayjay Industries (P) Ltd. vs Asnew Drums (P) Ltd. & Ors. ; is of no assistance to the appellant. Therein the executing court, on the previous occasion, with a view to secure better price did not confirm the sale, the conduct of the second sale, therefore, was held not to be vitiated by any material irregularity. The general principles of public policy discussed by this Court in Central Inland Water Transport Corpn. Ltd. & Anr. vs Brojo Nath Ganguli & Anr., [1986] 2SCR 278 and one of us (K.R.S., J.) in Delhi Transport Corporation vs D.T.C. Mazdoor Congerss & Ors. A.I.R. 1991 SC 190 are of no assistance on the facts in this case. The public policy is not static. It is variable with the changing times and the needs of the society. The March of law must match with the fact situation. A contract tending to injure public interest or public welfare or fraudulent to defeat the rights of the third parties are void under section 23 of the Contract Act. From the record it is clear that there were as many as six bidders who participated in the auction, the upset price was fixed at Rs. 1,000. The auction was started with the bid at Rs. 1,000 and ultimately at 20th knock the highest bid of the respondent was at Rs. 5,000. Thus, the facts demonstrate that the agreement between the appellant and the respondent was only a combination to participate at an auction of the 893 evacuee property. There is no intention either to peg down the price or to defraud the Government to knock out the sale at a lower price. Thus, the object of the agreement is not opposed to public policy, and therefore, it is not void under section 23 of the Contract Act. Thus, on the facts of this case we have no hesitation to conclude that the impugned agreement between the appellant and the respondent is lawful Contract. The Courts below committed no error of law warranting interference. The appeal is accordingly dismissed, but in the circumstances without costs as we did not call upon the respondent to argue the case. N.P.V. Appeal dismissed. [/INST]The D.T.C. Workers ' Union and some of its members have filed this Writ Petition under Article 32 of the Constitution praying, as the main relief, for issue of a Writ of Mandamus or Direction to the respondent Corporation to implement w.e.f. 1.1.86 the recommendations of the Fourth Pay Commission as approved by the Government of India to the Central Government employees as per the undertakings given to its employees vide Office Orders No. PLD IX (465/83/10589 dated 15.9.1983 and DGM(IR)/84/90 dated 7.2.1984. Relying on the undertakings given in the said Office Orders it has been contended on behalf of the petitioners that the D.T.C. employees will be entitled not only to new pay scales as recommended by the Fourth Pay Commission to the corresponding categories in the Central Government but more in the shape of interim reliefs which they has enjoyed during the period of interregnum between their original pay scale and the new pay scales. On behalf of the Corporation it has been submitted that all the reliefs which its employees had earlier received, be it additional payment in the nature of interim relief in the sum of Rs.50 or Rs.70 as the case may be, or the revised interim pay scale, pending adoption of the new scale recommended by the Fourth Pay Commission, would merge into the new scale and they would have no entitlement to any additional payment as any such differential treatment will be discriminatory and, therefore, unsustainable. Disposing of the Writ Petition, this Court, HELD: The overriding consideration behind the Order dated 7.2.1984 is that, as in the case of all Government employees, so in the case of the Corporation employees, the new scales recommended by the Fourth Pay Commission should be fully implemented. Whatever may be the amounts actually payable in terms to the interim reliefs, the 985 employees of the Corporation should neither be paid less nor more than the Government employees in the corresponding categories.[989C] All employees, whether retained on the original pay scale or placed on the revised interim pay scale during the period preceding 1.1.86, will be placed on the pay scale adopted as per the recommendations of the Fourth Pay Commission in such a way that will be fitted exactly in positions corresponding to their positions on the earlier pay scales. But the corresponding positions in the new pay scale will naturally carry better emoluments, so as to maintain parity with the Government employees in like categories. We have no doubt that the recommendations of the Fourth Pay Commission will be fully implemented in terms thereof. [989D E] </s>

<s>[INST] Summarize the judgementAppeal No. 4541 of 1991. From the Judgment and Order dated 6.8.1991 of the Punjab and Haryana High Court in C.W.P. No. 2415 of 1991. Dr. Anand Prakash, Mrs. Veena Birbal and Raj Birbal for the Appellants. D.R. Sehgal, S.K. Bagga and Mrs. S.K. Bagga for the Respond ents. The Judgment of the Court was delivered by VERMA, J. The respondent, Jagjit Singh Mehta, is em ployed at present in the Bank of India as an officer in Junior Management Grade Scale 1 and posted in a Branch Office of the Bank in District Giridih in the State of Bihar. The respondent was earlier employed in the clerical cadre of the Bank and was posted at Chandigarh. According to the policy contained in Annexure B read with notice dated March 28, 1988 (Annexure C), on promotion from the clerical cadre to the Officers ' Grade, the respondent had to indicate his preparedness for posting anywhere in India according to the availability of vacancies. The respondent readily indi cated his preparedness to be posted anywhere in India by Annexure D dated April 19, 1988 when the respondent was posted as a Clerk at Chandigarh prior to his promotion as an Officer. After getting the promotion as an officer and being posted in Bihar on the above basis, the petitioner filed Civil Writ Petition No. 2415 of 1991 in the High Court of Punjab and Haryana for a direction to the Bank to transfer him from the Bihar Zone to the Chandigarh Zone on the ground that his wife is employed as a Senior Accountant at Chandi garh. The writ petition has been allowed by a Division Bench (M.R Agnihotri & D.S.Mehra, JJ,) of the High Court by a cryptic order dated 6.8.1991 which reads as under : "After hearing the learned counsel for the parties, we allow this petition and direct the respondents by issuing a writ of mandamus commanding the Bank of India to transfer the peti 495 tioner and post him somewhere near Chandigarh as his wife is posted as a Clerk in the office of the Advocate General, Punjab, Chandigarh. This shall be done within a period of two months. No costs. " The petitioner Bank of India is aggrieved by the above order of the High Court. Special leave is granted. In the face of Regulation 47 of the Bank of India (Officers ') Service Regulations, 1979 according to which every officer is liable for transfer to any office or branch of the Bank of India or to any place in India and the clear provision for such a transfer in the policy (Annexure B) read with notice dated March 28, 1988 (Annexure C), it is difficult to sustain the High Court 's order. However, learned counsel for the respondent placed reliance on para 4 (vi) of a Memorandum dated April 3, 1986 (AnnexureH) of the Government of India containing guidelines for posting of husband and wife at one station which are meant to be fol lowed also by all the Public Sector Undertakings. Learned counsel urged that according to the statutory provisions contained in the and the Bank of India (Officers ') Service Regulations, 1979 made thereunder, the Bank is bound to follow the guidelines and directions issued by the Cen tral Government in this behalf. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the deci sion in accordance with the administrative needs. In the case of All India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other 's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the adminis tration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one 496 station, they cannot as of right claim to be relieved of the ordinary incidents of All India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was. prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the Officers ' grade and thereafter he seeks to be relieved of that necessary incident of All India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consid er this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administra tive needs and the claim of other employees. The High Court was in error in overlooking all the relevant aspects as well as the absence of any legal fight in the respondent to claim the relief which the High Court has granted as a matter of course. The High Court 's order must, therefore, be set aside. Consequently, the appeal is allowed, the impugned order of the High Court is set aside and the respondent 's writ petition is dismissed. No costs. P. Appeal allowed. [/INST]The A.P. Engineering Subordinate Service Rules were amended in 1972 by way of Government order. It provided that supervisors who acquired B.E./A.M.I.E. degree while in service would be entitled to count 50 % of the services rendered as Supervisors prior to acquiring the said qualification subject to a maximum of four years. However, this was subject to certain conditions, the Chief among them was that they should be considered to have been placed below the last of the Junior Engineer of the year, after giving such weightage. Order dated 10.6.76 required that the Supervisors who acquire the degree qualification while in service would be appointed, as Junior Engineers with immediate effect. The abovesaid order was amended on 8.11.76 giving benefit of the weightage to only those who acquired the degree qualification prior to 28.2.72. In 1977, by another order of the State Government, the post of Junior Engineer was made Gazetted post. In separate petition before the Andhra Pradesh Administrative Tribunal, the Supervisors upgraded as Junior Engineers including those who acquired the degree qualification after 28.2.72, as well as the State of A.P. agitated the issue regarding inter se seniority between the upgraded Junior Engineers and the direct recruit Junior Engineers. The Tribunal heard all the matters together and gave a finding that there was no bar to the retrospective regularisation 296 of the directly recruited Engineers from the dates of their initial appointments. The Tribunal also upheld the action of the Government in giving the benefit of the notional date of appointment to the upgraded Junior Engineers and the benefit of the date of regularisation of their services from the dates of their notional appointments subject to maintenance of order or ranking given by the Public Service Commission. The Tribunal also ordered that the ranking given by the Public Service Commission in respect of directly recruited Junior Engineers his to be maintained and each of them would be entitled to count has seniority from the date on which his service has been regularised or from the date of regularisation of the service of the person immediately below in the order of ranking given by the Public Service Commission, whichever was earlier. In respect of upgraded Junior Engineers who acquired degree qualification after 28.2.1972, the Tribunal gave a specific direction that their seniority has to be fixed on the basis of specific notional date of appointment given to them by interspersing their names among regular Junior Engineers as arranged in chronological order of dates from which such regular Junior Engineers are entitled to count their seniority. Aggrieved against the Tribunal 's order, the State Government and the supervisors upgraded as Junior Engineers, preferred the present appeals. On behalf of the State, it was contended that the direction of the tribunal particularly interspersing was not workable, since the upgraded Junior Engineers have put in long years of service and were discharging the same duties as the directly recruited Junior Engineers and this factor should be taken into account in fixing the notional date of appointment and inter se seniority. On behalf of the upgraded Junior Engineers, it was contended that in G.O. Ms No.559 it is specifically laid down that Supervisors who have acquired graduate qualification may be appointed as Junior Engineers after 28.2.75 and the weightage of four years should be reckoned from the date of acquiring the degree qualification i.e.28.2.72 or thereafter; and their seniority should not be fixed from the date of the order of appointment. On the order hand, the direct recruit Junior Engineers contended that the upgraded Junior Engineers can under no 297 circumstances be treated as seniors to the directly recruited Junior Engineers for the appointment of Junior Engineers was suspended for some time and in view of the exigencies the degree holders were appointed on temporary basis and they have served for a number of years; the Government decided to make regular appointments and accordingly a Special Qualifying Test was held in which they qualified and they were given the appointments; and a seniority list strictly on the basis of performance in the test and on merit was prepared by the Public Service Commission and a retrospective effect was given. It was further contended that so far as the upgraded Junior Engineers are concerned all the relevant G.O.Ms. make it clear that the crucial date has to be reckoned on the basis of the actual date of appointment and not on the date of acquiring the degree. Disposing of the matters, this court, HELD: 1.1. The weightage of four years in respect of upgraded Junior Engineers as provided in G.O.Ms. No.559 has to be reckoned from the date of appointment and not the date of their acquiring the degree qualification. On the basis of that notional date, their inter se seniority has to be fixed. [311 B C] 1.2.G.O. Ms. No. 559 makes it abundantly clear that the appointments of the upgraded Junior Engineers who acquired the graduate qualification while in service, would be prospective only and that they would be entitled to the weightage of four years of service rendered before the appointment. It does not anywhere indicate that the weightage should be from the date of acquiring the degree qualification. It is only after acquiring such degree qualification that a Supervisor is appointed as Junior Engineer and having regard to the service rendered by him, the Government, as a policy, decided to give weightage of four years for the purpose of considering the eligibility for promotion as Assistant Engineer. [308 C D] 2.1.The regularisation of the degree holders Junior Engineers who passed the Special Qualifying Test by giving restrospective effect cannot be held to be illegal, and their seniority among themselves shall be subject to the order of ranking given by the Public Service Commission on the basis of the Special Qualifying Test. [311 D] 2.2. The degree holders were appointed temporarily because of a ban and later the Government again, as a policy decision, decided 298 to make regular appointments by direct recruitment but enabled the degree holders who were in temporary service to appear in a Special Qualifying Test. Here again, as a matter of policy, the Government decided to give some weightage to the service rendered by them before the appointment by selection. Thus, the Governement, in fixing the seniority for the purpose of future promotion of the appointees both the upgraded Junior Engineers as well as those selected by the Public Service Commission in the Special Qualifying Test has taken into account the past service rendered by them. [308 E F] 3. In the case of upgraded Junior Engineers weightage of four years service was given and in the other case two years, weightage was given. As a matter of policy, the Government gave weightage to both the categories discharging the same duties. The upgraded Junior Engineers who having got the benefit of four years` service, therefore, cannot say that similar weightage should not be given to the direct recruits who, prior to the selection, were working on temporary basis. B, F] Devi Prasad and Ors. vs Government of Andhra Pradesh and Ors. , AIR 1980 SC 1185, relied on. M. Nirmala and Ors. vs State of Andhra Pradesh and Ors. ; , ; Ashok Gulati and Ors. vs B.S.Jain and Ors., [1986] Sup. SCC 597; Direct Recruit Class II Engineering Officers Association vs State of Maharashtra and Ors. , ; ; Masood Akhtar Khan and Ors. vs State of Madhya Pradesh and Ors., , referred to. The Tribunal has rightly pointed out that under Rule 23 A of the A.P State and Subordinate Service Rules, 1962 if a person having been appointed temporarily under Rule 10 to a post borne on the cadre is subsequently appointed in the service in accordance with the rules, he shall commence his probation from such subsequent date or the earlier date as the appointing authority may determine. The Tribunal was also right in holding that there was no bar to the retrospective regularisation of the service of the direct recruit Junior Engineers. [308 G H; 309 A] 5. In the light of this Judgment, the State Government shall prepare a common seniority list of the degree holder Junior Engineers and the upgraded Junior Engineers and that list shall be the 299 basis for all the subsequent promotions. Any promotion already given shall be reviewed and readjusted in accordance with the said seniority list. [311 D E] 6. Since this litigation has been pending for about two decades, it is high time a finality has to be reached by resolving the controversies and in this context the approval of the Public Service Commission in respect of these appointments need not be sought, if the Government has not already obtained the approval of the Public Service Commission. [311 A B] </s>

<s>[INST] Summarize the judgementminal Appeal No. 818 of 1985. From the Judgment and Order dated 4.7.1985 of the Kerala High Court in Criminal Appeal No. 251 of 1982. P.S. Poti and Ms. Malini Poduval for the Appellant. M.T. George for the Respondent. The Judgment of the Court was delivered by N.P. SINGH, J. The appellant along with others was put on trial for offenses under sections 302 read with 149, 148, 323 of the Penal Code on the charge of committing the murder of Moideen Kutty (hereinafter referred to as the deceased). The Trial Court on consideration of the 695 materials on record came to the conclusion that the charges leveled against the accused persons have not been established, beyond all reasonable doubt and on that finding acquitted the appellant as well others. On appeal being filed on behalf of the State of Kerala the High Court convicted the appellant under section 302 of the Penal Code and sentenced him to undergo rigorous imprisonment for life. So far another accused Alavi who had been acquitted by the Trial Court was also convicted by the High Court under section 323 of the Penal Code and sentenced to pay a fine of Rs. 250 and in default thereof to suffer simple imprisonment for a term of one month. The acquittal of other accused persons was affirmed by the High Court by dismissal of the appeal against them. The case of the prosecution is that on 16.9.1980 Mammed Kutty at 6.00 A.M. in the morning pelted stones at the house of the deceased. At about 12.00 in the noon while Mammed Kutty and his brother Abdulla Kutty were passing in front of the house of the deceased, a protest was made by the deceased in respect of the morning incident. They denied that any stone had been pelted by them. It is the further case of the prosecution that at about 2 P.M. while the deceased was sitting with his wife (PW4) and others on the varandah of his house, five persons including the appellant came to his courtyard and challenged him to come out, if he wanted to beat aforesaid Mammed Kutty and Abdulla. The deceased stepped out into his courtyard and asked the accused persons not to create a scene. At this the appellant and the other accused (since acquitted) gave some blows to the deceased on his hand. Thereafter the deceased raised his hand to give a blow to the appellant. At this very moment, the appellant took out a dagger from his waist and gave an injury on the upper part of the chest of the deceased near the left shoulder and above the armpit. The deceased ran towards the house of PW1 and fell on the varandah. Thereafter the accused persons escaped. The victim was removed to the Medical Hospital Calicut, where he was examined by PW9. But soon thereafter he expired. The First Information Report was lodged at 7.15 P.M. After investigation the charge sheet was submitted against five accused persons. At the trial prosecution examined four eye witnesses PW1 to PW4. The doctor who held the post mortem examination was examined as PW8. He found only one incised penetrating wound vertically placed on the front of left shoulder above the left armpit 'tailing 6 cm. in length running towards from the lower sharp end. " According to his opinion, "The an 696 died because the artery was cut. . This injury became dangerous only because it cut the artery. . In the cross examination PW8 stated that it was impossible to cause an injury like one which was found on the person of the victim by the assailant standing in front of the victim. He also stated that the tailing of the injury show that either the knife was dragged after stabing or that the injury was caused during the course of the struggle. According to him, if the accused had given a direct blow, as is normally done, there would not have been the tailing of the injury. The learned counsel appearing for the appellant placed the statement made in the First Information Report, the evidence of the eye witnesses, in connection with the morning incident of pelting of stones, to show that it was a concoction and none had pelted any stone on the house of the deceased. According to the learned counsel, if this part of the prosecution case is disbelieved then it shall have a bearing on the main occurrence itself. It was also pointed out that the prosecution has suppressed real manner of occurrence in as much as one Abdulla on the side of the accused persons was first assaulted by the prosecution party on the same day at about 1.30 P.M. and he was hospitalised after having received the injuries. That incident was an integral part of the occurrence which has not been disclosed by the prosecution. In this connection our attention was drawn to the evidence of DW1 who has stated that he had examined the injuries on the person of one Abdulla on 16.9.1980 at 4.30 P.M. and found three injuries on his person, (i) A contusion on the left shoulder 4 x 2 cm, (ii) abrasion below the right collar bone 3 x 5 cm. and (iii) injury on the outer side of the left ankle 4 x 3 cm. He has also stated that the said Abdulla had alleged that he had been assaulted with a wooden stick at 1.30 P.M. the same day. The Trial Court while acquitting the accused persons has attached great importance to the injury found on the person of aforesaid Abdulla and has drawn adverse inference against the prosecution case. The High Court has rightly pointed out that merely non disclosure of the aforesaid superficial injuries on the person of Abdulla even if those injuries had been caused in the same occurrence, shall not in any manner affect the prosecution case: It is well settled that if the evidence of the eye witnesses are held to be reliable and inspire confidence then the accused cannot be acquitted solely on the ground that some superficial injuries found on the person of the accused concerned, had not been explained by the prosecution. 697 According to us, if the evidence of four eve witnesses including the evidence of the son and the wife of the deceased are accepted as reliable and trust worthy then the prosecution case cannot be rejected merely on .the ground that the incident of pelting of the stones on behalf of the accused in the early morning had not been proved or established or that some minor injuries on the person of Abdulla caused in the same occurrence had not been disclosed and explained by the prosecution. So far the four eve witnesses are concerned they have been named in the First Information Report. The First Information Report was lodged at 7.15 P.M. the same evening, within two hours of the death of the victim. In the First Information Report the details of the occurrence was men tioned. The version disclosed in the First Information Report has been supported by the eye witnesses before the Court. The learned counsel appearing for the appellant could not point out any reason why their evidence against the appellant should not be accepted. It may be pointed out that in the First Information Report itself PW1, the informant, stated that this appellant came to the house of the deceased and challenged him as to who was there to beat Abdulla and Muhammed Kutty. He further stated that having heard this the deceased moved towards them and asked them to go back. At that very moment this appellant and the other co accused Alavi gave him blows on his hand. Thereafter the deceased tried to give counter blow to the appellant. Then the appellant took out a knife from his waist and gave a blow from the said knife, to the deceased at his left collar bone. The prosecution very fairly admitted that accused persons were not carrying any weapon in their hands and during the protest made, a sudden quarrel and fight took place between the prosecution party and the accused persons. Even at trial evidence the eve witnesses have admitted this part of the version and have stated that first the appellant and the other co accused gave blows on the hand of the deceased. The knife blow was given by the appellant when the deceased was trying to give a counter blow to the appellant. There is no dispute that the appellant suddenly took out the knife during the course of the quarrel and fight from his waist. From the evidence of doctor PW8 referred to above it appears that injury aforesaid could not have been caused by the assailant standing in front of the victim. It could have been caused only during the struggle. In view of the admitted position that a sudden fight and quarrel preceded the giving of the knife 698 blow by the appellant to the victim which in all probabilities was given not while the victim and the appellant were standing face to face but during a struggle between them, causing tailing of the injury, it shall not be just and proper to hold that appellant had an intention to cause the death of the victim. Taking the evidence of the witnesses along with circumstances of the case, according to us, the appellant had the knowledge that injury which he was causing was likely to cause death but he had no intention to cause the death of the victim. In such a circumstances it is not possible to uphold the conviction of the appellant under section 302 of the Penal Code. Accordingly, the conviction and sentence passed against the appellant under section 302 of the Penal Code are set aside. The appellant is convicted under section 304 part 11 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years. The appeal is allowed in part to the extent indicated above. The bail bond is cancelled. N.V.K. Appeal partly allowed. [/INST]The appellants who were the hereditary worshippers, called Guravs, of the Shree Dnyaneshwar Sansthan of Alandi, claimed to be its owners. The respondents as trustees of the said Sansthan dismissed eleven of the Guravs in 1911, served a notice on the rest calling upon them to agree to act according to the orders of the Temple committee and appointed six Brahmins to carry on the services of the Sansthan. The Guravs did not agree and sued the respondents for a declaration of their rights of ownership and consequential reliefs. That litigation ended in the High Court in 1921 with the result that their claim of ownership stood rejected but their rights as hereditary worshippers were left open. Thereafter the Guravs took forcible possession of the temple on July 25,1922. The trustees brought a suit under section 9 of the Specific Relief Act on September 12, 1922, and obtained a decree on November 4, 1932. In execution of that decree the Guravs were dispossessed. The suits, out of which the present appeals arise, were filed by the appellants against the trustees for declaration of their rights as hereditary servants of the Sansthan, a permanent injunction restraining the trustees from obstructing them in the exercise of the said rights and accounts. The respondents claimed that the appellants were servants of the Temple committee and had no hereditary rights as claimed by them; even if they had, their claim to such rights was barred by limitation. The trial Court decreed the suits. In appeal the High Court, while agreeing with the trial court on the merits, disagreed on the question of limitation, held the suits to be barred by limitation under article 120 Of the Limitation Act, the cause of action arising either on the filing of the section 9 suit by the respondents or, in any event, on the date when the said suit was decreed, section 23 of the Act having no application, and allowed the appeals. It was contended on behalf of the appellants in this Court that the suits were governed by article I24 Of the Limitation Act, and even if article 120 applied, section 23 saved limitation. Held, that the High Court was right in holding that article 120 and not article 124, of the Limitation Act applied and that section 23 had no application to the suits in question. 477 Article 124 Of the Limitation Act applies only where the cause of action for the suit is wrongful dispossession of the plaintiff and adverse possession by the defendant in respect of the hereditary office in question. In such suits, the contest usually is between rival claimants to the hereditary office and not between such claimants and trustees. It is impossible to ignore the provision Of Col. 3 to that article in deciding its applicability. Kunj Bihari Prasadji vs Keshavlal Hiralal, Bom. 567 and jalim Singh Srimal vs Choonee Lall Johurry, , held inapplicable. Thathachariar vs Singarachariar, A.I.R. 1928 Mad. 377, ap proved. Annasami vs Advarachari, I.L.R. , distin guished. Jhalandar Thakur vs jharula Das, Cal. 2444, referred to. Section 23 Of the Limitation Act refers not to a continuing right but to a continuing wrong. A continuing wrong is essentially one that creates a source of continuing injury as opposed to one that was complete and makes the doer liable for such continuance. A completed inJury would not be a continuing wrong even though it might give rise to continuing damage. Thus tested, the injury to the appellants resulting from the decree obtained by the trustees in the section 9 suit, which amounted to a ouster, was complete at the date of the ouster and section 23 Of the Limitation Act could not apply so as to save limitation. Choudhury Bibhuti Narayan Singh vs Maharaja Sir Guru Mahadeu Asram Prasad Saki Bahadur, Pat. 208 and Khair Mohammad Khan vs Mst. jannat, Lah. 22, referred to. Maharani Rajroop Koer vs Syaed Abdul Hossein, [1880] L.R. 7 I.A. 240 and Hukum Chand vs Maharaj Bahadur Singh, [1933] L.R. 60 I.A. 313, distinguished and held inapplicable. </s>

<s>[INST] Summarize the judgementCivil Appeal No. 1633 of 1968. Appeal by special leave from the judgment and order dated the 2nd December, 1967 of the Government of India, Ministry of Steel, Mines and Metals (Department of Mines and Metals) at New Delhi in No. M.V. 1 (141)/67. section K. Mehta and K. R. Nagaraia, for the appellant. section P. Nayar and Girish Chandra, for respondent No. 1. U. P. Singh and Shambhu Nath Jha, for respondent No. 2. The judgment of the Court was delivered by BHAGWATI, J. This appeal can be disposed of on a very narrow point and we will, therefore, set out only so much of the facts giving rise t(s the appeal as bear on this point and omit what is unnecessary. Since 23rd December, 1959 the appellants had a sub lease from the Receiver in Suit No. 203 of 1905 for extracting phosphate from 1043 an area of 400 hectares situate in Singhbhum District in the State of Bihar. This sub lease, according to the State of Bihar, came to an end from 1st September, 1964 and the appellants, therefore, made an application to the State of Bihar on 22nd/24th March, 1965 for a grant of fresh mining lease for extraction of apatite and phosphate from the same area under Rule 22 of the Mineral Concession Rules, 1960 made by the Central Government under section 13 of the Mines Minerals (Regulation Development) Act, 1957. The State Government failed to dispose of the application within a period of nine months from the date of its receipt and hence under Rule 24(3) of the Mineral Concession Rules, 1960 the application was deemed to have been refused by the State Government. The appellants preferred a revision application to the Central Government on 16th February, 1966 against the deemed refusal of their application under Rule 54 of the Mineral Concession Rules, 1960. The Central Government disposed of the revision application by an order dated 31st December, 1966 directing the State Government to consider the application of the appellants and to decide it on merits. The State Government thereafter by an order dated 9th February, 1967 rejected the application of the appellants on the ground that the State Government had already taken a decision not to grant lease for phosphate ore to any individual or private party as it had decided "to work this mineral in the public sector". The appellants again filed a revision application to the Central Government against the order of the State Government rejecting their application. The Central Government invited comments of the State Government on the revision application and on the comments submitted by the State Government, the appellants were given an opportunity to submit their cross comments which they did on 8th August, 1967. Whilst the revision application was pending, the appellants read an advertisement in the issue of Statesman dated 13th September, 1967 to the following effect: "Government of Bihar Department of Mines & Geology, Patna. Mining and beatification of low grade apatite of Singhbhum. A reserve of a little over 1 million tonnes of low grade Apatite Mineral with average 16% P.O. has been proved in a belt consisting of several mouzas in the Singhbhum District of Bihar. The representative bulk samples of the minerals have laboratory Jamshedpur, and it has been found that the mineral can be suitably upgraded by benefication, to yield Apatite concentrate with 36% to 40% P.O., suitable for use as raw material for the manufacture of Phosphetic fertiliser. Report of economic feasibility studies available. The State Government may consider giving tax holidays for a filed period and also may guarantee the safety of the investment invested parties capable of making investment to the tuner of 40 to 50 lakhs in undertaking to above project may obtain further particulars from the 1044 Mines Commissioner, Department of Mines and Geology, Government of Bihar. Patna. Sd/ K. ABRAHAM, Commissioner of Mines & Geology. " The appellant immediately addressed a communication dated 26th September, 1967 to the Central Government enclosing a copy of the advertisement and pointing out that it was clear from the advertisement that the State Government had abandoned the idea of working apatite and phosphate in the public sector and that the ground for rejecting the application of the appellants for mining lease no longer existed. The Central Government, however by an order dated 2nd December, 1967 rejected the revision application stating that: ". the Central Government have come to conclusion that as the State`Government are anxious to do phosphate mining for their own fertilizer factory in public sector, there is no valid ground for interfering with the decision of the State Government rejecting your application for grant of mining lease for apatite and phosphate in Singhbhum district. " The appellants thereupon preferred the present appeal against the order of the Central Government with special leave obtained from this Court. It is apparent from the order of the Central Government dated 2nd December, 1967 that the Central Government rejected the revision application of the appellants on the ground that the State Government was anxious to do phosphate mining for its own fertilizer factory in the public sector. This was undoubtedly the original ground put forward by the State Government for rejecting the application of the appellants for mining lease. But it does appear prime facie from the advertisement in the issue of the Statesman dated 13th September, 1967 that the proposal of the State Government to mine apatite and phosphate for its own fertilizer factory in the public sector was abandoned and the State Government was prepared to give mining lease to a party which was prepared to undertake a project of setting up a plant for beatification of this mineral so as to make it suitable for use as raw material for the manufacture of phosphatic fertilizer. The appellants brought this advertisement to the notice of the Central Government by their representation dated 26th September, 1967 and this was done before the revision application was disposed of by the Central Government. Even so, the Central Government failed to take into consideration this advertisement which appeared to indicate a change in the stand of the State Government and made its order dated 2nd December, 1967 in complete disregard of it. The order of the Central Government dated 2nd December, 1967 clearly shows that the Central Government failed to apply its mind to this advertisement though it was brought to its notice in time and proceeded to dispose of the revision application as if no such advertisement had been issued by the State Government. The Central Government did not even care to invite the comments of the State 1045 Government in regard to the advertisement and ignored it altogether A in making its order rejecting the revision application. This was clear non application of mind on the part of the Central Government to a very material circumstance which was brought to its notice before it disposed of the revision application. The order of the Central Government, therefore, suffers from a patent error and it must be quashed and set aside and the matter must go back to the Central Government for fresh determination. We accordingly set aside the order dated 2nd December, 1967 passed by the Central Government and remand the case to the Central Government with a direction to dispose of the revision application, after taking into account the entire material before it, including the advertisement given by the State Government in the issue of Statesman dated 13th September, 1967 and giving an opportunity to the State Government to offer its comments in regard to this advertisement and a further opportunity to the appellants to make their submissions on the comments, if any, offered by the State Government. The State of Bihar will pay the costs of the appeal to the appellants. M.R. Appeal allowed. [/INST]The appellant was a Veterinary Compounder serving under the Panehayat Samiti, Hansi. The Zilla Parishad Tribunaul tranferred him from Hansi to Singhani. The Chairman of the Panchayat Samiti. Hansi requested the Chairman of Zilla Parishad Tribunal served a notice on the appellant to show cause why he should not be dismissed for not having handed over the charge of the dispensary to the person who was appointed in his place and also on the ground that when the Secretary of the Zilla Parishaod Tribunal with the help of the compounder, who was directed to take charge from the appellant, was prepaering a list of stock, the appellant and others entered the office and one of the persons out of the appellant 's group snatched the papers from the Secretry and manhandled him. The appellant submitted an interim explanation and reserved his right to submit a final reply after inspection of certain records was given to him. The Zilla Parishad Tribunal did not give any opportunity to the appellant for inspecation of record nor sent any communication to him rejecting the request giving any justifiable reasons. However, the appellant was served with a letter dismissisng him from service. Section 124(2) of the Punjab Panchayat. Samitis & Zilla Parishad. Act, 1961, authorises the Tribunal to impose any punishment including the punishment of dismissal on any servant of the Panchayat Samiti or Zilla Parishad. The proviso,howvever. requires the Tribunal before passing any order of dismissal or removal to give a notice to the servant to show cause against the action proposed to be taken against him The appellant filed a writ petition in the High Court challengaing the dismissal order. The High Court dismissed the writ petition. Allowing the appeal by special leave, ^ HELD: (1) A perusal of section 124(2) goes to show that before any action is taken for dismissal or removal of an employee the Tribunal has to enquire into his conduct justifying such action. This enquiry must necessarily be made in the presence of the employee giving him an opportunity to rebut the allegations made against him. It is only after affourding him a reasonable opportunity to rebut the allegations in the charge and after the Tribunal is satisfied that the misconduct is established, the question of final punitive action either of dismissal or removal has to be considered. The employee must be given a full and fair. reasonable opportunity to meet the charges. [633D E] (2) In the instant case apart from giving the show cause notice no other communication was made to the appellant except the order of dismissal. This is a clear case where the reasonable opportunity envisaged under section 124(2) has not been afforded to the appellant for making an effective representation to establish his innocence. Even in respect of the incident of 15 8 1967, the appellant was acquitted in a criminal case lodged against him. In the instant case the provisions of section 124(2) which embody the principles of natural justice and which are of a mandatory character have been violated vitiating the order of dismissal. [633G. 634A C] (3) In the ordinary course it would have been open to the authority to institute a fresh enquiry after the reinstatement. But in this case, that procedure was not permitted because the appellant was dismissed in December, 1967, and 631 has been out of employment for over 8 years. Secondly, he does not have many years to serve. Thirdly, the serious allegations regarding the incident of 15 8 1967 have not been found to be established in a judicial trial. The Court, therefore, quashed the order of dismissal and directed that the appellant should be treated on leave without pay and further directed that no further enquiry into the allegations forming the subject matter of charge should be made. [634C E] </s>

<s>[INST] Summarize the judgementAppeals No.s. 2276 10 2278 of 1968. 33 Appeal by special leave from the judgment and order dated February 23, 1968 of the Calcutta High Court in Income tax Reference No. 158 of 1964. Jagdish Swarup, Solicitor General, T.A. Ramachandran, R.N. Sachthey and B.D. Sharma, for the appellant (in all the appeals). P. Burman, R. Ghose and Sukumar Ghose, for the respondent (in all the appeals). C.J. Shaila Behari Lal Singha hereinafter called 'the assessee ' is a shareholder of a company styled the Ukhara Estates Zamindaries Ltd. The following table sets out the amounts of dividend received by the assessee from the Company and the years in respect of which they were received : Year of Year of declaration Amount of assessment of dividend dividend 1951 52 1357 B.S. Rs. 37,125/ 1952 53 1358 B.S. Rs. 29,250/ 1953 54 1359 B.S. Rs. 28,125/ The assessee claimed that out of the amounts set out in the table only Rs. 8,669/ for the year 1357 B.S., Rs. 20,469/ for the year 1358 B.S., and Rs. 21,822/ for the year 1359 B.S. were taxable as dividend, and the remaining amounts were not taxable, since they were declared out of capital gains of the Company which comprised salami or premia received by it as consideration for grant of long term mining and other leases and as compensation for compulsory acquisition of lands for public purposes. The Income tax Officer brought the entire amount to tax declared as dividend for each of the three years in question and grossed up the amounts under section 16(2) of the Income tax Act, 1922. In appeal, the Appellate Assistant Commissioner held that the entire amount for each year was income in the hands of the assessee, but only a part of it being dividend, within the meaning of section 2(6A) of the Income tax Act, 1922, was liable to be grossed up. In second appeal, the Appellate Tribunal held that part of the amount distributed which was attributable to salami received by the Company for the grant of longterm leases was not taxable as dividend, but as income of the assessee from "other sources". 34 The Tribunal then referred under section 66(1) of the Indian Income tax Act, 1922, three questions to the High Court of Calcutta the first two questions were referred at the instance of the assessee, and the third question at the instance of the Commissioner : "(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the distribution to the assessee of the amount attributable to land acquisition compensation received by the Ukhara Estate Zamindaries (P) Ltd., after the 31st March, 1948, was in the hands of the assessee, receipt of dividend within the meaning of section 2(6A) of the Indian Income tax Act, 1922? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the receipt by the assessee of the amount attributable to salamis realized by the Ukhara Estate. Zamindaries (P) Ltd. for grant of long term leases after the 31st March, 1948, was a receipt of income in the hands of the assessee and taxable as the income of the assessee from other sources ? (3) Whether, on the facts and in the circumstances of the case, the distribution to the assessee of the amount attributable to, salamis realised by the Ukhara Estate Zamindaries (P) Ltd. for grant of long term leases after the 31st March, 1948, was not in the hands of the assessee receipt of dividend within the meaning of section 2(6A) of the Indian Income tax ACt, 1922 ?" The High Court recorded answers on all the questions in the negative, following their earlier judgments in Income tax References Nos. 131 of 1961 and 3 of 1964. The High Court however observed that it was agreed between the parties that the answers in the negative on all the questions were subject to the final decision in appeals filed against the orders made in Income tax References Nos. 131 of 1961 and 3 of 1964 and pending in this Court. In our judgment, even with the consent of the parties, the learned Judges could not dispose of the reference in the manner they have done. They had to record their answers and their reasons in support of the answers: those answers were, insofar as the High Court was concerned, final. They could not stand modified by reason of any judgment in other cases decided by this Court. Apart from the technical defect that the High Court has not recorded final answers, the order is subject to another infirmity. The High Court had to decide on the facts of each case 35 whether any amount of salami was capital gain, and whether any part of the compensation received for compulsory acquisition of land was capital gain. Prima facie, receipt of compensation for land compulsorily acquired which forms part of the fixed assets of a Company is of a capital nature: Senairam Doongarmall vs Commissioner of Income tax, Assam(1), but interest which is statutorily payable on compensation is income and is not capital gain: Dr. Shamlal Narula vs Commissioner of Income tax, Punjab, Jammu and Kashmir, Himachal Pradesh and Patiala(2). The assumption made that the entire amount of compensation is deemed to be capital gain cannot therefore be sustained. It is also, necessary to observe that in Appeals Nos. 737 to 739 of 1968 and 13 of 1968 and 1621 of 1968 which arose out of Reference No. 131 of 1961 and other references, decided by this Court on July 25, 1969, the only question of law raised was whether distribution of dividend out of capital gains was taxable. The scope of enquiry in this group of cases, in view of the form of the questions, is more extensive. In appeals Nos. 737 to 739 of 1968 we held that, having regard to the Explanation to section 2(6A) capital gains arising after 31st day of March, 1948 (and before the 1st day of April, 1956) were not part of accumulated profits, and if dividend be distributed to the shareholders of the Company out of those capital gains, to ' the extent of the distribution out of the capital gains the dividend must be deemed exempt from liability to tax under section 12 as dividend income liable to tax. In that case we could not consider whether the receipt from the capital gains was still income liable to tax from "other sources" (not being dividend) under section 12 of the Indian Income tax Act, for no such question was referred. But that question has been expressly referred in this case. The order passed by the High Court is therefore set aside and the case is remanded to the High Court for disposal according to law. There will be no order as to costs in this Court. Costs in the High Court will be costs in the references. [/INST]The appellant, the owner of a permanent cinema theatre in the Tanjore District, was granted a license by the District Magistrate, Tanjore, subject to certain conditions imposed by him in pursuance of 2 notifications (G. 0. 1054, Home, dated 28th March, 1948, and G. O. Mis. 3422 dated 15th September, 1948) issued by the State of Madras purporting to act in exercise of powers conferred by section 8 of the Cinematograph Act (II of 1918). The impugned conditions inter alia were as follows: " 4(a) The licensee shall exhibit at each performance one or more approved films of such length and for such length of time, as the Provincial Government or the Central Government may, by general or special order, direct. 687 special condition 3. The licensee should exhibit at the commencement of each performance not less than 2,000 feet of one or more approved films. " Held, that condition No. 4(a) and special condition No. 3, imposed unreasonable restrictions on the right of the licensee to carry on his business and were void as they infringed the fundamental right of the appellant guaranteed to him under article 19(1) (g) of the Constitution. </s>

<s>[INST] Summarize the judgementN: Criminal Appeal No. 368 of 1986. From the Judgment and order dated 11.4.1986 of the Calcutta High Court in Crl . No . 1181 of 1985 . WITH Criminal Appeals Nos. 251 252 of 1986. From the Judgment and order dated 26.7.1975 of the Calcutta High Court in Crl. 222 and 448 of 1985. Dr. Y.S. Chitale and H.K. Puri for the Appellant. Parijat Sinha for the Respondent in Crl. A. No. 368 of 1986. S.K. Kapur, Ranjan Dev and Mrs. Indra Sawhney for the Respondents in Crl. A. No. 251 252 of 1986. Tapas Roy and D.K. Sinha for the State of West Bengal. D.K. Sinha, K.R. Nambiar, Ms. Reba Roy, K.K. Lahitri and Ms Apsi Ditta for the Interveners. The following order of the Court was delivered O R D E R After hearing Shri S.K. Kapoor, learned counsel appearing for respondent No. 1 in Criminal Appeals Nos. 251 252 of 1986 at quite some length, we are not persuaded to take a view different from the one expressed by this Court in the recent judgment in Baldev Krishna Sahi vs Shipping Corporation of India Ltd. & Anr., [ 1987] 4 SCC 361 overruling the judgment of the Calcutta High Court in Amrit Lal Chum vs Devi Ranjan Jha, as to the scope and effect of sub section (1) of section 630 of the . The Court in Baldev Krishna Sahi 's case has placed a beneficent construction on the provisions contained in sub section (1) of section 630 of the Act 785 and according to it the term 'officer or employee ' in sub section (1) of section 630 must be interpreted to mean not only the present officers and employees of a company but also to include the past officers and employees of the Company. It has also taken the view that the words 'any such property ' in cl. (b) thereof qualify the words 'any property of a company ' appearing in cl. As observed in Baldev Krishna Sahi 's case, section 630 of the Act plainly makes it an offence if an officer or employee of a company who was permitted to use the property of the company during his employment, wrongfully retains or occupies the same after the termination of his employment. It is the wrongful withholding of such property, meaning the property of the company after termination of the employment, which is an offence under section 630(l)(b) of the Act. The construction placed by this Court in Baldev Krishna Sahi 's case is the only construction possible. There is therefore no warrant to give a restrictive meaning to the term 'officer or employee ' appearing in sub section (1) of section 630 of the Act as meaning only the existing officers and employees and not those whose employment have been terminated. The Court in Baldev Krishna Sahi 's case has expressly overruled the judgment of the Calcutta High Court in Amrit Lal Chum vs Devi Ranjan Jha, supra, against which these appeals have been filed and upheld the consistent view to the contrary taken by the High Court of Bombay in a series of cases. [See Harkishin Lakhimal Gidwani vs Achyut Kashinath Wagh, and Govind T. Jagtiani vs Sirajuddin section Kazi, Accordingly, these appeals must succeed and are allowed with costs. The judgment of the High Court allowing the applications under section 482 of the Code of Criminal Procedure, 1973 are set aside. Shri S.K. Kapoor, learned counsel appearing for respondent No. 1 in Criminal Appeals Nos. 251 252 of 1986 and Shri Parijat Sinha, learned counsel for respondent No. 1 in Criminal Appeal No. 368 of 1986 pray for time to vacate the premises in their occupation. We grant the respondents time till June 30, 1988 to vacate the premises subject to their furnishing the usual undertaking in this Court within four weeks from today. If there is a failure on the part of the respondents to comply with these conditions, namely, failure to file the said undertaking and/or to vacate the premises within the time allowed, the cases against them i.e. Complaint Case No. 1053/83 in the Court of IIIrd Additional Judicial Magistrate, Alipore, 24 Paraganas and Complaint Case No. 2788/84 in the Court of Special Divisional Judicial Magistrate, Alipore, 24 Paraganas shall continue. In the event of respondents ' failure to file the undertaking and/or vacate the premises within 786 the time specified, the learned Magistrates shall proceed with the trial of these cases and dispose them of as expeditiously as possible and in any event, not later than October 31, 1988. The intervention application filed by Tata Iron and Steel Company Limited is not pressed. N. P.V. Appeals allowed. [/INST]% Section 630 of the empowers the court, on the complaint of the Company, or any creditor or contributory thereof, to punish an officer or employee of such company, by levy of fine, if such officer or employee wrongfully obtains possession of, or having obtained possession, wrongfully withholds or knowingly misapplies, the property of the company, and also order him to deliver up or refund, within a stipulated time, such property or, in default, to suffer imprisonment. In these appeals against the Judgment of the High Court, the question for consideration was as to the scope and interpretation of this provision. E Allowing the appeals, ^ HELD: Section 630 of the plainly makes it an offence if an officer or employee of a company who was permitted to use the property of the company during his employment, wrongfully retains or occupies the same after the termination of his employment. It is the wrongful withholding of such property, meaning the property of the company after termination of the employment, which is an offence under section 630(l) of the Act. [785B C] There is, therefore, no warrant to give a restrictive meaning to the term "officer or employee" appearing in sub section (1) of section 630 of the Act as meaning only the existing officers and employees and not those whose employment has been terminated. [785C D] Baldev Krishna Sahi vs Shipping Corporation of India Ltd. & Anr., [ 1987} 4 SCC 361, followed. H 784 [Time granted to respondents till June 30, 1988 to vacate the premises subject to the furnishing of usual undertaking. In the event of failure to furnish the undertaking and/or vacate the premises within the time stipulated, the cases against the respondents to continue and the trial court to proceed with the trial and dispose them of expeditiously, but not later than 31.10.88.] [785G H; 786A] </s>

<s>[INST] Summarize the judgementivil Appeal No. 220 I of 1978. From the judgment and order dated the 13th September, 1978 of the Central Govt. , Ministry of Finance Department 'of Revenue, New Delhi in order No. 819 of 1978. V. J. Taraporavala, J. B. Dadachanji and Shri Narain for the appellants. N.C. Talukdar and R.N. Poddar for the Respondent. The Judgment of the Court was delivered by BALAKRISHNA ERADI, J. This appeal by special leave is directed against an order dated August 3, 1978 passed by the Government of India under Section 16 of the Central Excise and Salt Act, 1944 (hereinafter referred to as the Act), rejecting a Revision Petition filed by the present appellant and confirming the view taken by the Appellate Collector of Excise, Bombay, that the appellant herein is not entitled to the benefit of the exemption from duty of excise conferred by a Notification No. 4/68 CE dated January 20, 1968. The appellant Company which has its factories at Sion East and Andheri East in Bombay is engaged in the manufacture of various process chemicals required for the Textile industry. Amongst the process chemicals so manufactured by them are substances known as emulsifiers and wetting out agents. These products fall within the scope of Tariff Item 15AA of the First Schedule to the Act, which reads: "Organic Surface Active Agents (other than soap); Surface Active preparations and washing preparations, whether or not containing soap. " For use as raw material for the manufacture of the emulsifiers wetting out agents, the appellant Company had purchased a total quantity of 1,64,500 kgs. Of organic surface active agents from another company called 'The Industrial General Products Private 624 Limited '. The aforesaid organic surface active agents sold to the appellant by the Industrial General Products Private Limited had not been subjected to the levy of excise duty inasmuch as the said supplier Company was eligible for exemption from payment of excise duty on account of the fact that the goods were manufactured by it without the aid of power. Emulsifiers/wetting out agents, etc. intended for use in any industrial process were exempted from the levy of duty under Entry 15AA of the First Schedule to the Act, subject to certain conditions, by a Notification dated January 20, 1968 issued by the Government of India. The relevant part of that Notification is in the following terms: "The Central Government has exempted the excisable goods specified in column (2) of the Table hereto annexed and falling under this Item from the whole of the duty of excise leviable thereon subject to the conditions laid down in the corresponding entries in column (3) of the said Table. TABLE Sl. Description Conditions No. (1) (2) (3) 1. . . 2. . . 3. . . 4. Emulsifiers, wetting out If in respect of surface agents, softness and active agents used in the other like preparations manufacture of such intended for use in any emulsifiers, wetting out industrial process. agents, softners and other like preparations the appropriate amount of the duty of excise or the additional duty under section 2A of the Indian Tariff Act 1934 (32 of 1934), has already been paid or where such surface active agents are purchased from the open market on or after the 20th day of January, 1968.") 625 It is common ground that the organic surface active agents A used by the appellant as raw material for the manufacture of emulsifiers/wetting out agents were purchased by it. subsequent to the 20th day of January 1968. The Central Excise authorities originally treated the manufactured product, namely the emulsifiers etc. as exempt from levy of duty by virtue of the Notification dated January 20, 1968. But, subsequently, by a notice dated August 6, 1974, issued by the Superintendent of Central Excise, Inspection Group No. 1, Bombay Division V, the appellant Company was directed to show cause why an amount of Rs. 1,21,709.57 should not be recovered from the Company by way of excise duty in respect of the period August 1973 to February 1974 on the ground that the said amount represented escaped duty in respect of the emulsifiers/ wetting out agents manufactured by the petitioner Company during the aforesaid period. In reply to the said notice, the appellant Company objected to the said demand contending that it was entitled to the benefit of exemption from levy of duty in respect of the manufactured products under the Notification dated January 20, 1968 inasmuch as surface active agents used in the manufacture of the emulsifiers/wetting out agents had been purchased by the appellant from the open market after the 20th day of January 1968. This contention was rejected by the concerned Assistant Collector. He took the view that, in order to attract the exemption provided for in the aforesaid Notification, duty should actually have been paid in respect of the surface active agents used as raw material and since the appellant had purchased the raw material from a manufacturing unit which was exempt from the levy of excise duty for the reason that the manufacture was carried out by it without the aid of power, the conditions prescribed in the Notification were not fulfilled. The said order was confirmed by the Appellate Collector of Central Excise, Bombay, before whom the matter was carried in appeal by the present appellant. While upholding the view taken by the Assistant Collector that the benefit of the exemption granted by the Notification would be available only in cases where the raw material, namely, the surface active agents had been subjected to duty at the primary stage, the Appellate Collector went further and held that the purchase of the aforesaid raw material effected by the appellant from M/s. Industrial General Products Private Limited could not be regarded as "purchased from the open market" and that for this 626 additional reason also, the appellant was ineligible to claim the benefit of the exemption. A Revision Petition filed by the appellant before the Government of India was rejected by the order (Exh. 'A ') dated August 3, 1978, wherein the Central Government took the view that "purchases made from a particular manufacturer, the production from whose factory is exempt from payment of duty, being manufactured without the aid of power, cannot be treated at par with purchases made from the open market". It is against this order of the Government of India that the appellant has come up to this Court with this appeal. The language used in Columns (2) and (3) of the Table appended to the Notification dated January 20, 1968 is simple and unambiguous. It shows that the benefit of the exemption will be available in respect of the emulsifiers/wetting out agents provided that either of the following two conditions is fulfilled: (a) Excise duty (inclusive of additional duty under section 2A) should have been already paid in respect of the surface active agents used as raw material in the manufacture of the emulsifiers, wetting out agents, etc. (b) The surface active agents used as raw material for the manufacture of the emulsifiers/wetting out agents should have been purchased from the open market on or after the 20th day of January, 1968. The first of the aforementioned conditions was obviously not satisfied in the present case since the surface active agents were purchased by the appellant Company from a manufacturer who was exempt from payment of excise duty on account of the fact that the process of manufacture was being carried out without the aid of power. The appellant Company contends that the second of the aforesaid conditions, namely, that the surface active agents should have been purchased from the open market on or after the 20th day of January 1968 was fully satisfied in the present case, and hence it was entitled to the benefit of the exemption granted by the Notification, That the appellant had purchased the surface active agents used in the manufacture of the emulisifiers/wetting out agents subsequent to the 20th day of January, 1968 is undisputed. The purchases of the raw material had been made by the appellant from 627 the Industrial General Products Private Limited. The short question to be considered is, whether those transactions of purchase effected by the appellant from the Industrial General Products Private Limited can be regarded as purchases "from the open market"? In determining the eligibility of a person for the benefit of the exemption conferred by the Notification on the basis of the fulfillment of the second of the aforementioned conditions, it is wholly irrelevant to enquire whether duty of excise had already been paid in respect of the surface active agents purchased and utilised as raw material for the manufacture of the emulsifiers/wetting out agents. The sole question to be examined is, whether the surface active agents used in the manufacture of the emulsifiers were purchased "from the open market" on or after the 20th day of January, 1968 ? The Assistant Collector as well as the Appellate Revisional Authorities have taken the view that the exemption granted by the Notification will get attracted only if the surface active agents used as raw material had been already subjected to levy of duty at the primary stage. In our opinion, the said view is based on an erroneous interpretation of the provisions contained in item 4 of the Table appended to the Notification. The condition that the duty of excise should have already been paid on the raw material (surface active agents) has no application to cases covered by the second part of Column (3) of Sl. No. 4 of the Table, namely, cases where the surface active agents were purchased from the open market on or after the 20th day of January, 1968. That brings us back to the question, whether the purchases effected by the appellant from M/s. Industrial General Products Private Limited were purchases "from the open market"? Having due regard to the context in which the expression "open market ' ' has been used in the Notification, it would be wholly wrong to understand the said expression "open market" as connoting only a market yard, bazar or a shopping complex where goods are offered for sale. Industrial chemicals (which have to he ordinarily purchased in bulk for use as raw material in the manufacture of secon dary products) are not commodities that are usually exposed for sale in bazars and shops. Such bulk purchases of chemicals etc., are effected by placing orders with the concerned manufacturing units. In our opinion, if the transactions of sale and purchases are effected under conditions enabling every person desirous of purchasing the goods in question to place orders with such manufac 628 turing unit and obtain supplies, they will constitute purchases "from the open market". We may in this context refer with advantage to the following observations of Swinfen Eady, J. in Inland Revenue Commissioners vs Clay(l), where the Court of appeal had to consider the scope of the expression "open market" occurring in section 25 (1) of the Finance Act, 1910 (10 Edw. 7, c. 8): "The market is to be the open market, as distinguished from an offer to a limited class only, such as the members of the family. The market is not necessarily an auction sale. The section means such amount as the land might be expected to realize if offered under conditions enabling every person desirous of purchasing to come in and make an offer, and if proper steps were taken to advertise the property and let all likely purchasers know that the land is in the market for sale. " We fully agree with these observations. In the present case, it was open to every person desirous of purchasing the surface active agents to place orders with the manufacturing Company, namely, M/s. Industrial General Products Private Limited, and obtain the supply on payment of the price at the prevailing rate. The sales by the said Company were not to a limited class only. Hence, the purchases of the surface active agents effected by the appellant from M/s. Industrial General Products Private Limited ' have to be treated as purchases made "from the open market. " The denial to the appellant of the benefit of the exemption provided for by the Notification was, therefore, clearly illegal. Accordingly, we allow this appeal, set aside the orders passed by the Government of India, the Appellate Collector, Bombay and the Assistant Collector of Central Excise, Bombay, and declare that the appellant Company is entitled to the benefit of the exemption granted by the Notification dated January 20, 1968 in respect of the emulsifiers, wetting out agents, softners etc., manufactured by the Company for use during the relevant period (August 1973 to February 1974). The respondent shall pay costs to the appellant Company in this appeal. N.K.A. Appeal allowed. [/INST]The Bombay Provincial Municipal Corporations Act, 1949 came into operation in the city of Poona on 15th of February, 1950. Section 127(2) thereof authorised the Corporation to impose octroi and other taxes, while section 149 prescribed the procedure to be allowed in levying taxes. In the year 1957, the Corporation in order to boost industrial development and to encourage the industrialists to establish industries in the city, decided to give certain concession in the nature of exemption from octroi duty. Pursuant to this objective the Corporation made rule 62 B in Chapter VIII to the Schedule of the said Act in 1957, which envisaged the creation of an "Industrial Estate or Area", by which was meant the area which the Corporation may from time to demarcate as the area in which industries can be suitably located in the interest of industrialisation of the city. Under this rule no levy of octroi was to be made for a period of twelve years. Later on, the Corporation framed extensive new octroi Rules under their resolution dated 7th of August, 1962. Rule 5(8) of the new Rules provided for exemption in respect of levy of octroi. The Corporation had been levying octroi on the materials received by the appellants. The appellants sought exemption under rule S(8). The Corporation rejected their claim for exemption of octroi on the ground that exemption can only be granted if the area within which the concern was situated was declared as industrial area and demarcated for the purpose. Being aggrieved, the appellants filed petitions under Article 226 of tho Constitution in the High Court for the issue of a writ of Mandamus requiring the respondent Corporation to define and demarcate the area where their factories were situated as industrial area, within the meaning of rule 5(8), and to exempt them from payment of octroi. During the pendency of these petitions rule 5(8) was repealed. The appellants amended the writ petitions and further contended that (1) that the repeal of rule 5(8) was illegal and/or ultra vires and, therefore, rule S(8) still continues to be effective and (2) that in any event they were entitled to get the benefit of rule 62 B which had not been repealed. The High Court repelled both the contentions and held that old rule 62B and the new rule 730 5(8) were repealed and that there was no legal flaw. It however took the view that despite the repeal of Rule S(8) the appellant could still get the relief under rule 5(8) because if the proviso attached to the repealing rule the area in question was not demarcated as industrial estate or area for the purpose of rule S(8) and that it was solely in the discretion of the Corporation to demarcate an area as industrial estate. It consequently dismissed the writ petitions. In the appeals to this Court it was contended on behalf of the appellants (I) that the disputed area had been included in the development plan under the Bombay Town Planning Act, 1954 before the promulgation of rule S(8) and had thus automatically become an industrial estate or area for the purposes of that rule. (2) The Corporation had refused to grant exemption to the appellants on the arbitrary ground that the concern of the appellants was not a new one. (3) There had been violation of Article 14 of the Constitution in as much as some industries in similar situations have been granted exemption while the appellants have been deprived of the benefit of rule S(8) and (4) While denying the benefit of rule S(8) the Corporation had taken into consideration extraneous or irrelevant considerations. Dismissing the appeals ^ HELD: 1 (i) No area had been declared as industrial area under the Development plan before 1957 and in fact it was only after the enforcement of the development plan on 15th of August, 1966 that the disputed area became an industrial area under the Bombay Town Planning Act. [735 C D] (ii) A bare perusal of rule 5(8) makes it apparent that for the purpose of the exemption from octroi, an industrial estate or area means the area which the Corporation may from time to time demarcate for the purpose of the rule as the area in which industries can be suitably located for the interest of industrialisation of the City. Therefore, the demarcation made under the Town Planning Act will not be a demarcation for the purpose of rule S(8) and unless there is a demarcation as contemplated by rule S(8) the appellants cannot claim exemption from octroi. The view taken by the High Court is fully warranted by rule S(8) of the octroi Rules. [735 E G] 2. The purpose of the Town Planning Act is to plan the town and to keep industrial areas away from the residential or commercial areas and that no industries could be set up in an area other than the industrial area declared in pursuance of the Act. The purpose of demarcation as industrial estate or area under rule S(8) is for the giving of incentive and impetus to industries in a particular area. [736 B C] 3. An analysis of the preamble to the new octroi Rules makes it clear that rule 62 B relating to octroi was repealed by implication. It is noteworthy that chapter VIII does not contain any rule relating to octroi, except rule 62 B which did not find a place in the preamble. All rules relating to octroi and enacted under the 1901 and the 1925 Acts were also repealed without exemption. Another pointer is available in the fact that octroi was made the subject matter of a new and comprehensive set of rules which not only dealt with the matters 731 covered by the rules contained in chapter VIII and specifically mentioned in the A preamble but also the one covered by rule 62 B, namely the matter of exemption of goods from octroi in areas considered suitable for industrialisation. The promulgation of rule 5(8) as a part of an exhaustive set of new rules, has the effect of a repeal of rule 62 B by necessary implication, although not in express terms. [737 D G] 4. The considerations which have weighed with the Corporation for denying the benefit of exemption from octroi to the appellants cannot be said to be either irrelevant or extraneous. These are within the ambit of rule S(8) of the octroi Rules. [739 B] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 1868 of 1974. From the Judgment and order dated 2.9.1974 of the Madr as High Court in Writ Petition No. 2729/1974. F.S. Nanman, C.S. Vaidyanathan and K.R. Nambiar for t he Appellants. T.S. Krishnamoorthy Iyer, A.V. Rangam and T.V. Ratn am for the Respondent. section Balakrishnan (not present) for the Intervener. The Judgment of the Court was delivered by 39 PATHAK, CJ. The appellants in these two appeals a re manufacturers of Ayurvedic drugs and medicines, 'includi ng Arishtams and Asavas. Arishtams and Asavas contain alcoho l, and it is said that the presence of alcohol is essential f or the effective and easy absorption of the medicine by t he human system and also because it acts as a preservative. A ll the Ayurvedic preparations as well as Allopathic, Siddha a nd Unani medicines were originally subject to a multi poi nt levy of 31/2 % under the Tamil Nadu General Sales Tax Ac t, 1959. By a notification dated 4 March, 1974, the State of Tamil Nadu included a large number of items in the Fir st Schedule to the aforesaid Act in order to make them subje ct to a single point levy. While all other patent or propri e tary medicinal preparations belonging to the differe nt systems of medicines were taxed at the rate of 7% onl y, Arishtams prepared under the Ayurvedic system were ma de subject to a levy of 30%. It seems that representations we re made to the State Government against the high rate of tax on Arishtams, and therefore a separate entry was introduced by Tamil Nadu Act No. 23 of 1974 in the First Schedule as it em 135 dealing specifically with Arishtams and Asavas. Th ey were shown as attracting a rate of 30% while all oth er medicinal preparations were shown under item No. 95 a nd subjected to tax at 7%. The appellants filed writ petitions in the High Court of Madras challenging the levy of 30% on Arishtams and Asava s, but on 2 September, 1974 the High Court dismissed the wr it petitions. From the counter affidavit filed by the Government of Tamil Nadu in the writ petition, out of which one of t he present appeals arises, it appears that the higher levy of sales tax on Arishtams and Asavas was introduced by t he State Legislature to curb the abuse of medicinal prepar a tions for their alcoholic content by drink addicts and to eliminate the mushroom growth of Ayurvedic Pharmacies pr e paring sub standard Arishtams and Asavas for purposes oth er than medicinal use. The appellants contend that Arishta ms and Asavas manufactured by them are essentially Ayurved ic medicines, and that in any event the object of controlli ng the consumption of liquor is amply served by several oth er existing statutes, including the Medicinal and Toilet Prep a rations (Excise Duty) Act, 1955, Drugs and Cosmetic Ac t, 1940, as amended in the year 1964, and Spirituous Prepar a tions (Inter State Trade and Commerce) Control Act, 1955. It is said that there are over 130 Allopathic medicines co n taining alcohol which are potable as against only thr ee Ayurvedic medicines, and that therefore the levy of tax at 30% of Arishtams and Asavas alone while 40 other medicinal preparations are subjected to tax at 7% (n ow increased to 8%) results in an invidious discriminati on against the manufacturers of those Ayurvedic preparatio ns thus violating article 14 of the Constitution. It is contend ed that the impugned rate of tax also offend Article 19(1)( g) of the Constitution. The appellants in Civil Appeal No. 18 68 of 1974 have also taken the point that the high rate of t ax on Arishtams and Asavas has been imposed by the State of Tamil Nadu with the object of discouraging the import of these Ayurvedic medicines from the neighbouring State of Kerala, and consequently the measure is violative of Ar t. 301 as well. While dismissing the writ petitions the High Cou rt observed that the imposition of the rate of 30% on the sa le of Arishtams and Asavas must be regarded principally as a measure for raising revenue, and it repelled the argume nt that the rate of tax was discriminatory or that Ar t. 19(1)(g) was infringed. It rejected the plea of the appe l lants that article 301 was contravened and refused to acce pt that there was any ulterior object in imposing a high ra te of tax on those two commodities. Now there is no doubt that Arishtams and Asavas a re Ayurvedic medicinal preparations. The question is wheth er these two medicines attract different considerations fr om those applied to other medicinal preparations. Reference is made by the State to their high content of alcohol, a nd that, it is said, attracts a class of customers who purcha se them for their alcoholic content rather than their medicin al value. On that basis, it is urged, there is justificati on for a higher rate of tax. We think that the appeals are entitled to succeed. It em 95 mentions the rate of 7% (now 8%) as the tax to be levi ed at the point of first sale in the State. Item 135 provides a rate of 30% in respect of Arishtams and Asavas at the poi nt of first sale. We see no reason why Arishtams and Asav as should be treated differently from the general class of Ayurvedic medicines covered by Item 95. It is open to t he Legislature, or the State Government if it is authorised in that behalf by the Legislature, to select different rates of tax for different commodities. But where the commoditi es belong ' to the same class or category, there must be a rational basis for discriminating between one commodity a nd another for the purpose of imposing tax. It is common ly known that considerations of economic policy constitute a basis for levying different rates of sales tax. For i n stance, the object may be to encourage a certain trade or industry in the context of the State policy for econom ic growth, and a lower rate would be considered 41 justified in the case of such a commodity. There may be several such considerations bearing directly on the choi ce of the rate of sales tax, and so long as there is go od reason for making the distinction from other commodities no complaint can be made. What the actual rate should be is n ot a matter for the courts to determine generally, but where a distinction is made between commodities fairing in the sa me category a question arises at once before a Court wheth er there is justification for the discrimination. In t he present case, we are not satisfied that the reason behi nd the rate of 30% on the turnover of Arishtams and Asav as constitutes good ground for taking those two preparatio ns out from the general class of medicinal preparations to which a lower rate has been applied. In Adhyaksha Math ur Babu 's Sakti Oushadhalaya Dacca (P) Ltd. and others vs Uni on of India, this Court considered whether t he Ayurvedic medicinal preparations known as Mirtasanjiban i, Mritasanjibani Sudha and Mritasanjibanj Sura, prepared in accordance with an acknowledged Ayurvedic formula, could be brought to tax under the relevant State Excise Act wh en medicinal preparations were liable to excise duty under t he Medicinal and Toilet Preparations (Excise Duty) Act, whi ch was a Central Act. The Court held that the three prepar a tions were medicinal preparations, and observed that t he mere circumstance that they contained a high percentage of alcohol and could be used as ordinary alcoholic beverag es could not justify their being treated differently from oth er medicinal preparations. The Court said: "So if these preparations are medicinal preparations but a re also capable of being used as ordinary alcoholic beverage s, they will fail under the (Central) Act and will be liable to duty under item No. 1 of the Schedule at the rate of R section 17.50nP per gallon of the strength of London Proof spiri t. On a consideration of the material that has been plac ed before us, therefore, the only conclusion to which we c an come is that these preparations are medicinal preparatio ns according to the standard Ayurvedic text books referred to already, though they are also capable of being used as ordinary alcoholic beverages. They cannot however be tax ed under the various Excise Acts in force in the concern ed States in view of their being medicinal preparations whi ch are governed by the Act. " We are of opinion that similar considerations should app ly to the appeals before us. The two preparations, Arishta ms and Asavas, are medicinal preparations, and even though th ey contain a high alcohol 42 content, so long as they continue to be identified as medi c inal preparations they must be treated, for the purposes of the Sales Tax Law, in like manner as medicinal preparatio ns generally, including those containing a lower percentage of alcohol. On this ground alone the appellants were entitl ed to succeed. In the circumstances, we do not consider it necessary to enter upon the question whether there is substance in t he complaint of the appellants that there is a violation of article 301 of the Constitution. In the result, the appeals must be allowed and t he appellants held entitled to a refund of the excess paid as sales tax on account of the turnover being treated und er Item 135 rather than under Item 95. Learned counsel for t he appellants states that the appellants will inform all the ir customers, from whom the higher rate has been charged, th at the customers are entitled to a refund of the excess paid by them and that an application will be invited for such refu nd and that if any part of the excess remains unrefunded to t he customers the appellants undertake that such balance will be paid over to the Arya Vaidya Rama Varier Educational Found a tion of Ayurveda. The appeals are allowed, the judgment and order of t he High Court on each writ petition are set aside and the Sal es Tax Authorities are directed to reassess the turnover of t he Arishtams and Asavas at the rate mentioned in Item No. 95 and to refund to the appellants the amount of tax paid in excess. The appellants, in their turn, on obtaining su ch refund will within one month thereof, serve notice on t he customers from whom such excess has been recovered to obta in a refund from the appellants of such corresponding exces section In the event of any balance of the excess remaining unr e funded by the appellant to the customers upon the expiry of three months from such notice, the balance will be paid ov er by the appellants to the Arya Vaidya Rama Varier Education al Foundation of Ayurveda. There is no order as to costs. H.L.C. Appeals allowed. [/INST]The petitioner was detained under an order dated 17 th September, 1988 made by the detaining authority under sub section (2) of section 3 of the Gujarat Prevention of Anti Social Activ i ties Act, 1985 with a view to prevent him from acting in a ny manner prejudicial to the maintenance of public order. T he grounds of detention mentioned five offences register ed against him with police records, out of which the first o ne under section 324 IPC was stated to have been compromised, t he second under section 332 IPC and the third under sections 148 and 3 07 IPC respectively were stated to be pending trial, the four th under section 302 IPC was stated not proved, while the fif th under section 302 IPC was stated to be in the court. The Government approved the said order on 21st Septe m ber, 1988. The detenu submitted his representation dat ed 22nd September, 1988 to the first respondent who by h is order dated 30th September, 1988 rejected the same. He thereupon, filed this petition under Article 32 of t he Constitution. It was contended for the petitioner that he has be en acquitted even on 26th August, 1988 in the case shown at serial No. 2 in the Table appended to the grounds of dete n tion, and on 6th June, 1988 in the case shown at Serial N o. 3, that this material and vital fact of his acquittal in t he said cases had not been placed before the detaining author i ty and this non placing and the consequent non considerati on of the said material likely to influence the mind of t he detaining authority vitiates the subjective satisfaction a nd invalidates the detention order, that the names of his s o called associates were nowhere disclosed which fact wou ld show either the authority did not know as to who the se associates were or knowing their names has refrained fr om furnishing it to the detenu thereby disabling him to ma ke his effective representation, and 44 that the grounds of detention otherwise were vague or def i cient. For the respondent it was contended that each activ i ty of the petitioner was a separate ground of detention a nd that the fact that the petitioner was acquitted in the sa id cases was of no consequence. Allowing the writ petition, HELD: The requisite subjective satisfaction, the form a tion of which is a condition precedent to passing of a detention order, will get vitiated if material or vit al facts which would have bearing on the issue and weighed t he satisfaction of the detaining authority one way or the oth er and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention orde r. [51D E] In the instant case, at the time when the detaini ng authority passed the detention order the vital fact of acquittal of the detenu in cases mentioned at serial Nos. 2 and 3 had not been brought to his notice and on the oth er hand it was withheld and the detaining authority was giv en to understand that the trial of those cases was pendin g. This non placing of the material fact resulting in no n application of the mind of the detaining authority to t he said fact has vitiated the requisite subjective satisfa c tion, rendering the impugned detention order invalid. T he same is, therefore, set aside. The detenu be set at liber ty forthwith. [51E, F, G, H] S.K. Nizamuddin vs State of West Bengal, ; ; Suresh Mahato vs The District Magistrate, Burdwan Ors., AIR 1975 SC 728; Asha Devi vs Additional Secretary to the Government of Gujarat & Anr., ; and Si ta Ram Somani vs State of Rajasthan & Ors., referred to. Shiv Rattan Makim vs Union of India & Ors., [1985] Sup p. (3) SCR 843 and Subharta vs State of West Bengal , distinguished. </s>

<s>[INST] Summarize the judgementCriminal Appeal No. 538 of 1983. From the Judgment and Order dated 6.4.1982 of the Andhra Pradesh High Court in Crl. A. No. 469 of 1981. G. Narasimhulu for the Appellants. T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Manjula Gupta for the Respondent. The Judgment of the Court was delivered by KULDIP SINGH, J. Nethala Pothuraju, Nethala Dhananjaya, Nethala Remudu and four others (hereinafter referred to as 'A 1 to A 7 ') were tried for the offences under Sections 147, 148, 323, 379 and 302 read with Section 149 I.P.C. on the allegations that they caused the death of Madda Laksha mandas of village Ramaraogudem on November 1, 1980 near the Tobacco garden of A 1. The Trial Court acquitted A 7 of all the charges A 1 to A 6 were, however, found guilty for the offences punishable under Sections 148 and 302 read with section 149 I.P.C. They were sentenced to imprisonment for life. On appeal, the High Court confirmed the conviction and sentence of A 1 to A 3. The conviction and sentence of A 4 to A 6 was set aside by the High Court and they were acquit ted on the following reasoning: . . . We feel that it would be safe to accept the evidence of P.Ws. 1 and 2 to the extent it is corroborated by the evidence 6 of P.W.3 in so far as the presence and partic ipation of the accused in the attack on the deceased is concerned. Accepting the evidence of P.W.3 we hold that the identity of A 1 to A 3 in the unlawful assembly consisting of A 1. to A 3 and some other unidentified persons is satisfactorily established. The manner in which the attack was made on the deceased can only lead to one inference namely that the common object of the unlawful assembly was to kill the deceased. We accordingly confirm the conviction and sentence of A 1 to A 3 under Sections 148 and 302 read with 149 I.P.C. We set aside the conviction and sentence of A 4 to A 6 under Sections 148 and 302 read with 149 I.P.C. and acquit them." This Court granted leave to appeal on the limited ques tion of applicability of Section 149 I.P.C. The learned counsel for the appellants has contended that after the acquittal of four accused persons by the courts below the conviction of the appellants under Section 148 and on applying 149 I.P.C. cannot be sustained. It is argued that the appellants, being three in number, could not have formed an unlawful assembly within the definition of Section 141 I.P.C. In our view, there is force in the contention of the learned counsel for the appellants. The appellants being only three in number, there was no question of their forming an unlawful assembly within the meaning of Section 141 I.P.C. It is not the prosecution case that apart from the seven accused persons there were some other unidentified persons who were involved in the crime. The High Court clearly fell into error in confirming the conviction and sentence of the appellants under Sections 148 and on apply ing 149 I.P.C. on the ground that they formed an unlawful assembly alongwith some unidentified persons. The prosecu tion case from the very beginning was that A1 to A7, the named persons, formed the Unlawful assembly. A 4 to A 7 having been acquitted, the remaining three appellants cannot be convicted under Sections 148 and on applying 149 I.P.C. We, therefore, set aside the conviction of the appellants under the said sections. The question still remains as to whether the appellants can be convieted under Section 302 read with Section 34 I.P.C. Both Sections 149 and 34 I.P.C. deal with a combina tion of persons who become liable to be punished as sharers in the commission of offences. The non applicability of Section i49 I.P.C. is, therefore, no bar in convicting the appellants under 7 Section 302 read with section 34 I.P.C. if the evidence discloses commission of an offence in furtherance of the common intention of them all. PW 1, the wife of the deceased, PW 2, the daughter of the deceased and PW 3, an adjoining land owner, are the three eye witnesses to the occurrence. It is in evidence that the complainant and the accused belonged to opposite factions and there was long standing enmity between the parties. During the last 30 years, there had been murders and rioting between the two factions. The deceased Madda Lakshamandas was undergoing life imprisonment for the murder of one of the persons belonging to the group of the accused. He had come on parole. On the day of occurrence at about 7.00 A.M. when he was passing near the field of A 1 he was attacked by the accused party. According to the eye witness es, A 1 and A 3 were armed with spears, A 2, A 4, A 5 and A 6 with knives and A 7 was armed with a stick. All of them way laid the deceased and dragged him into the Tobacco garden of A 1. It is in evidence that all the accused indis criminately inflicted injuries on the deceased with their respective weapons. When the deceased fell down the ac cused kept on giving him spear, knife and stick blows. The deceased was crying for water and when his daughter brought water A 2 caught hold of her and pushed her aside. She was also given beating by fists. Thereafter, A 1 left the spear and took a stick and gave beating to the deceased on his heals and chest and A 3 chopped of the fingers of left hand of the deceased with the knife. A 2 further gave blows to the deceased on his head. The deceased died instantaneously on the spot. Thereafter, at the asking of A 1, A 2 and A 3 dragged the dead body from the field of A 1 and placed the same on the road. There were as many as 18 injuries on the person of the deceased. Seven of those were deep penetrating wounds, 8 lacerated wounds and remaining were abrasions. The injuries caused fracture on the right perietal bone result ing in the opening of the skull. The fourth rib was broken and there was an injury to the lung. There were injuries all over the body. Keeping in view the manner of attack as disclosed by the eye witnesses and the number and nature of injuries, we have no hesitation in holding that the appellants made the mur derous attack on the deceased and caused his instantaneous death. We are satisfied that the appellants acted in fur therance of their common intention of murdering the de ceased. We, therefore, hold the appellants guilty under Section 302 read with Section 34 I.P.C. 8 Accordingly, we convert the conviction of the appellants to one under Section 302 read with section 34 I.P.C. and keep them sentenced to fife imprisonment. Appellants A 1 and A 3 are on bail under orders of this Court. We cancel the bail order. These appellants shall surrender to their bail bonds to undergo the sentence of imprisonment. T.N.A Appeal disposed of. [/INST]In the Application under Article 32 of the Constitution by 55 persons claiming the benefit of the scheme of pension for Freedom Fighters, the petitioners contended that they had joined the Arya Samaj movement in the late 1930s within the erstwhile Nizam 's State of Hyderabad and were convicted under different provisions of the criminal law and sentenced to various terms of imprisonment; that the Arya Samaj move ment had been equated with the freedom struggle and the benefit of the pension scheme was admissible to those who had participated in the movement. The respondents while not disputing the assertion of the petitioners that the Union of India has accepted the Arya Samaj movement to be a part of the freedom struggle, has disputed the entitlement of pension in the case of most of the petitioners. Allowing the petition, this Court, HELD: 1. Freedom Fighters ' Pension Scheme of 1972 which was renamed as "Swatantrata Sainik Samman Pension Scheme 1980" indicates: "A person who has suffered a minimum im prisonment for six months in the mainland jails before independence in the struggle for independence is eligible to be admitted to the benefits of the pension. " Each of the petitioners had been convicted and was ordered to suffer imprisonment of more than six months. While they were under going sentence, without their praying for any 'emission, a general amnesty was declared by the then Nizam on his birth day and the sentence was reduced and the petitioners were set free. [118 E F,D] 2. In the facts of the case it would be appropriate to hold that each of the petitioners satisfied the condition for earning the benefit of pension and the fact that while undergoing sentence which was for a period beyond 117 six months remission had been granted and they were let off earlier would not take away their right to earn pension. [118F] Duli Chand & Ors. vs Union of India & Ors. ,W.P.No. 1190/89, dated, July 16, 1991 by the Supreme Court of India, followed. </s>

<s>[INST] Summarize the judgementCivil Appeal Nos. 2084 2085/74. Appeals by Special Leave from the Judgment and Order dated 10/11/10/1974 of the Bombay High Court in First Appeal No. 160 and 173 of 1966. U. R. Lalit, V. N. Ganpule and Mrs. V. D. Khanna for the appellant. B. D. Bal, P. H. Parekh and M. Mudgal for the Respondent. The Judgment of the Court was delivered by DESAI, J. These two appeals by special leave arise from a suit filed by the respondents plaintiffs for recovering possession of land bearing Survey Nos. 487/1 to 487/6 situated at Shirwal Peta Khandala from the appellant defendant. During the pendency of this suit a portion of the land in dispute was acquired under the Land Acquisition Act and as both the plaintiffs and the defendant laid a claim to compensation, a reference was made under section 30 of the Land Acquisition Act for determining the eligibility for the amount of compensation. The trial Court decreed the plaintiffs ' suit and First Appeal No. 160 of 1966 was preferred by the defendant to the High Court of 958 Bombay. Following the decision of the trial Court, the reference under section 30 of the Land Acquisition Act was answered in favour of the plaintiffs respondents and the defendant preferred First Appeal No. 173 of 1966 to the High Court. Both the appeals were heard together and by its judgment dated 10/11 October, 1974 a Division Bench of the High Court dismissed both the appeals with costs. Thereupon the appellant preferred the present two appeals. As both the appeals arise from a common judgment, they were heard together and are being disposed of by this common judgment. Facts necessary for appreciating the point of law canvassed in these appeals lie within a narrow compass. One Dattatraya Govind Kulkarni, husband of plaintiff No. 1 and father of plaintiffs 2 to 6 had borrowed a Tagai loan of Rs. 12,000/ by making an application Exhibit 129 accompanied by prescribed form, Ext. 128 on 7th February, 1949. The loan was borrowed for constructing wells in Survey Nos. 167 and 170 and he offered as security the lands bearing Survey Nos. 165, 166, 167, 170 and 172. In the application Ext. 129 that accompanied the prescribed form it was stated that wells have to be sunk to bring barren land under cultivation. In other words, the loan was for improvement of the land. The loan was advanced and the borrower failed to repay the loan as per the stipulations. A revenue recovery proceeding was commenced and as by the sale of the land offered as security the Government could not reimburse itself the total amount outstanding, a proclamation of sale was issued and ultimately the suit land was auctioned and it was purchased by the defendant and the sale in his favour was confirmed and he was put in possession on 20th May, 1960. The plaintiff stated that prior to the date of auction there was a partition between the father and his sons on 6th July, 1956 evidenced by Ext. 53 and at this partition the suit land with its sub divisions came to the share of the plaintiffs and therefore, the father had no saleable interest in the suit land and it could not have been sold at a revenue auction for recovering the personal debt of the father. So contending, the plaintiffs brought an action for a declaration that the sale is not binding upon them and possession may be restored to them. The trial Court held that the suit land was joint family property consisting of Dattatraya and his sons but as there was an effective partition prior to the revenue sale and the partition being a genuine one, the subsequent sale is not binding upon the plaintiffs to whose share the suit land was allotted at the partition and, therefore, the sale was void and the plaintiffs are entitled to be put back in possession. 959 The High Court in appeal by the present appellant examined the question of the validity of the revenue sale in the context of the provisions of the ( 'Loans Act, for short) and held that the auction sale of the lands at the relevant time standing in the names of the plaintiffs, the land being not one in respect of which the Tagai loan was advanced, or which was offered as security for that loan, would not be binding upon the plaintiffs as the plaintiffs were not borrowers within the meaning of section 7(1) of the Loans Act and the plaintiffs ' suit on this ground was rightly decreed. The submission on behalf of the defendant that Tagai loan was a debt and that it was incumbent on the sons of Dattatraya under the doctrine of pious obligation of the sons of a Hindu father to pay their father 's debts which were not tainted with immorality or illegality, was not accepted and the High Court held that this doctrine of pious obligation cannot be extended to the debts contracted under the Loans Act as the Act applies to all citizens of India irrespective of their religion. With these findings the appeals were dismissed. Mr. U. R. Lalit, learned counsel for the appellant urged that Tagai loan was borrowed by Dattatraya, the father for improvement of lands bearing Survey Nos. 167 and 170 which were joint family property and the debt represented by Tagai loan would be joint family debt incurred by the manager for the benefit of the joint family or for the benefit of the estate of the joint family and, therefore, the joint family property, irrespective of the fact whether it was offered as security for the loan or whether it benefited by the loan, would be liable for the repayment of the loan notwithstanding the fact that a partition has taken place before the suit land, which again is a joint family property, was brought to revenue auction. It was also urged that the partition is not genuine and that it is a sham and bogus one and in fact there was no partition in the eye of law. It was further urged that the pious obligations of the sons of a Hindu father to pay the debt incurred by the father not tainted with illegality or immorality to the extent of the joint family property in their hands would certainly apply to loan borrowed under the Loans Act and the expression "borrower" under the Loans Act can as well include a joint Hindu family and thereby making the entire joint family property liable for repayment of the loan. Mr. Bal, learned counsel for the plaintiffs respondents contended that Tagai loan was not a joint family debt nor in borrowing the loan the father was acting as Karta but was acting in his personal capacity, nor the loan was for the benefit of the joint family estate. It was said that the Loans Act being a complete Code in itself and only 960 recognised borrower in his individual capacity, one cannot import the concept of Karta of a joint family borrowing under the Loans Act in his representative capacity so as to make the joint family property liable for such loans. The principal contention which goes to the root of the matter is whether the Tagai loan borrowed by Dattatraya, the father, was borrowed in his personal capacity for his personal use or as Karta of the joint family for the benefit of the joint family or joint family estate. If the loan was borrowed by Dattatraya, the father, as Karta of the joint Hindu family for the benefit of the family, certainly it would be a joint family debt and all the joint family property would be liable for this debt. Even if there is a subsequent partition before the debt is repaid, the creditor can proceed against the joint family property in the hands of any of the coparceners because the joint family property is liable for the joint family debts. The Karta or the Manager of a joint Hindu family has implied authority to borrow money for family purposes and such debts are binding on other coparceners and the liability of the coparceners in such a case does not cease by subsequent partition (See Para 240, Mulla 's Hindu Law, 14th Edn., p. 298). Where father is the Karta of a joint Hindu family and the debts are contracted by the father in his capacity as manager and head of the family for family purposes, the sons as members of the joint family are bound to pay the debts to the extent of their interest in the coparcenary property. Further, where the sons are joint with their father and the debts have been contracted by the father for his own personal benefit, the sons are liable to pay the debts provided they were not incurred for illegal or immoral purposes. This liability arises from an obligation of religion and piety which is placed upon the sons under the Mitakshara Law to discharge the father 's debts, where the debts are not tainted with immorality. This liability of the sons to pay the father 's debts exists whether the father be alive or dead, (para 290, Mulla 's Hindu Law, 14th Edn., p. 354). A further requirement is that for an effective partition of a Mitakshara joint Hindu family a provision for the joint family debts should be made. In order to determine what property is available for partition, provision must first be made for joint family debts which are payable out of the joint family property, personal debts of the father not tainted with immorality, maintenance of dependent female members and of disqualified heirs, and for the marriage expenses of unmarried daughter. This must be so because partition is of joint family property and if joint family debts are repaid before the partition only the residue would be available for partition. Therefore, if partition is effected before paying 961 the debts, provision to pay the debts should be made so as to determine the residue available for partition. Having cleared the ground in law, let us look at facts which have been found by the Courts on appreciation of evidence and which unless found to be utterly unconscionable this Court would not interfere with. The trial Court found that the suit property was joint family property and the High Court has not departed therefrom. In fact, in an earlier suit filed by these very plaintiffs being Special Suit No. 14 of 1958 it has been in terms stated that the lands described in para 1 of the plaint Ext. 37 which include the suit land, were originally owned by joint family of plaintiffs and Dattatraya. Therefore, on plaintiffs ' own admission the suit land was joint family property of plaintiffs and Dattatraya. The next important question is whether the Tagai loan was the personal debt of Dattatraya or was debt incurred by him as Karta of the joint family for the benefit of the joint family. We would only look at uncontroverted salient features of the evidence. Prescribed form of application, Ext. 128 with application Ext. 129 would show that the loan was borrowed for constructing wells for improvement in the potentiality of the lands bearing Survey Nos. 167 and 170. It was submitted that these lands, for the improvement of which the loan was borrowed, were not joint family property. There again, a reference may be made to the admission of the plaintiffs in plaint Ext. 37 which also includes lands bearing Survey Nos. 167 and 170 being described by the plaintiffs themselves as joint family property. The High Court held that Dattatraya borrowed the loan for improvement of the land. Therefore, Dattatraya, the father, borrowed loan in his capacity as the father for improvement of joint family lands and for this purpose offered as security three other pieces of land which were joint family property. In the face of this unimpeachable evidence the statement in Ext. 128, the application for loan, that Dattatraya was the full owner of the lands therein mentioned would not convey the idea that it was his separate property. It is not necessary that Karta acting in his capacity as Karta to describe himself as Karta to affirm his representative capacity. Whether he has acted in his personal capacity or representative capacity can be gathered from all the surrounding circumstances and in this case they are eloquent, in that he mortgaged or gave as collateral security joint family property, to wit land, and it extends to whole of the interest of the family and is not confined to Karta 's share, and therefore, he must be deemed to have acted in the transaction on behalf of the family (see Mulla 's Hindu Law, 14th Edn., page 313, article 251). It was, however, stated that agriculture 962 was not the avocation of the joint family and, therefore, the father as the Karta did not have the implied authority to borrow loan so to be binding on the joint family property. One has merely to look at the content of the application for loan, Ext. 129 made by Dattatraya to the Mamlatdar, Taluka Vichitragad, for advancing loan to him, to dispel the contention. The application recites that applicant Dattatraya, the father had undertaken extensive work to bring barren land under cultivation to raise sufficient crops as well as to improve the quality of Land and for improving the quality of agriculture he had undertaken, loans should be advanced to him. Mr. Bal, however, pointed out that Dattatraya was carrying on some business which would be evident from Ext. 23, a copy of execution application No. 87/60 filed by Bhor State Bank Ltd., against one Pandurang Krishnaji Kamble and Dattatraya Govind Kulkarni in which the occupation of Dattatraya is shown as business; and Ext. 22 being a copy of Execution Application No. 92/57 in which his occupation is shown as general agent, and Ext. 120 a copy of the decree in Special Civil Suit No. 2/49 wherein the occupation of Dattatraya is shown as business and which further shows that Dattatraya had running account with one Raghunath Shridhar Phadke in which Dattatraya had withdrawn Rs. 56,800/ and had credited Rs. 41,000/ and after adding interest leaving a debit balance of Rs. 19,238 14 00. It was urged that if all these aspects are taken into consideration, it would appear that agriculture was not the occupation of the joint family. Now, as against this, one may also refer to Ext. 24 a copy of the BADR Execution Application No. 294/56 for executing an Award made under the Bombay Agricultural Debtors ' Relief Act against Dattatraya which would show that Dattatraya was an agriculturist by occupation and his debts were adjusted by the Courts set up under the Bombay Agriculture Debtors ' Relief Act and this could have only been done if his principal occupation was agriculture. Therefore, mere description of Dattatraya 's avocation in Exts. 22, 23 and 120 is hardly determinative of the occupation of Dattatraya or his family. It may be that over and above agriculture Dattatraya may have been carrying on some side business but if his application Ext. 129 shows that he had on his own showing 160 bighas of land most of which are admittedly shown to be joint family property, it cannot be denied that agriculture was one of the occupations of Dattatraya and he was carrying on that avocation as Karta of the joint family consisting of himself and his minor sons. Now, if agriculture was one of the occupations of the joint family and if loan was borrowed for the purpose of improving the joint family lands, the loan would ipso facto be for legal necessity and it would be joint family debt for which all the joint family property would be liable. 963 If thus the loan for the recovery of which the suit property was brought to auction was joint family debt and if the suit property was joint family property, certainly it would be liable to be sold for recovery of joint family debt. The question, however, is: does the subsequent partition make any difference in respect of the liability of the joint family property for the joint family debts ? That would necessitate examination of the circumstances in which the partition was brought about though we are not inclined to examine the question whether the partition was a sham or bogus transaction or was a motivated one with a view to defeating the creditors of the joint family. The partition is evidenced by a registered deed, Ext. 79 dated 6th July 1956. Partition is between father and his minor sons. There is no dispute that on that date the debt of Tagai loan was outstanding as well as there were certain other debts. In the partition deed Ext. 79 there is no express or implied provision for the repayment of joint family debts or even outstanding debts of Dattatraya, the father. There was some suggestion that the property which was allotted to Dattatraya was sufficient for discharging the debts outstanding on the date of partition. That at least is not borne out by the partition deed nor has Dattatraya gone into the witness box to say that such was the position. Therefore, taking into consideration the recitals in the partition deed as well as the relevant evidence on record the position is clear that no provision was made at the time of partition for the joint family debts or alternatively outstanding debts incurred by the father. It is not for a moment suggested that on this account the partition is bogus and sham, an argument which was put forward before the High Court and negatived. The substance of the matter is that if at a partition amongst the members of the joint family no provision is made for joint family debts, then despite the partition and allotment of shares to different coparceners the joint family property in their hands which they acquired by partition would still be liable for the joint family debts. The Judicial Committee in Sat Narain vs Das(1), pointed out that when the family estate is divided, it is necessary to take account of both the assets and the debts for which the undivided estate is liable. After affirming this ratio, this Court in Pannalal & Anr. vs Mst Naraini & Ors.(2) observed as under: ". the right thing to do was to make provision for discharge of such liability when there was partition of the 964 joint estate. If there is no such provision, "the debts are to be paid severally by all the sons according to their shares of inheritance", as enjoined by Vishnu (Vishnu, Chap. 6, verse 36). In our opinion, this is the proper view to take regarding the liability of the sons under Hindu law for the pre partition debts of the father. The sons are liable to pay these debts even after partition unless there was an arrangement for payment of these debts at the time when the partition took place. This is substantially the view taken by the Allahabad High Court in the Full Bench case referred to above and it seems to us to be perfectly in accord with the principles of equity and justice". If thus the partition makes no provision for repayment of just debts payable out of the joint family property, the joint family property in the hands of coparceners acquired on partition as well as the pious obligation of the sons to pay the debts of the father will still remain. This position of law was reaffirmed in Vriddhachalam Pillai vs Shaldean Syriam Bank Ltd. & Anr.(1). The only effect of partition is that after the disruption of joint family status by partition the father has no right to deal with the property by sale or mortgage even to discharge an antecedent debt nor is the son under a legal obligation to discharge the post partition debts of the father. Assuming we are not right in holding that the debt, was for the benefit of the estate of the joint family and, therefore, a joint family debt, and assuming that Mr. Bal is right in contending that it was the personal debt of the father, yet the doctrine of pious obligation of the son to pay the father 's debt would still permit the creditor to bring the whole joint family property to auction for recovery of such debts. Where the sons are joint with their father and debts have been contracted by the father for his personal benefit, the sons are liable to pay the debts provided they were not incurred for an illegal or immoral purpose. This liability to pay the debt has been described as pious obligation of the son to pay the father 's debt not tainted with illegality or immorality. It was once believed that the liability of the son to pay the debts contracted by the father, though for his own benefit, arises from an obligation of religion and piety which is placed upon the sons under the Mitakshara law to discharge the father 's debts, where the debts are not tainted with immorality, yet in course of time this liability has passed into the realm of law. 965 In Anthonyswamy vs M. R. Chinnaswamy Koundan (dead) by l.r.s. & Ors.(1), following the decision in Muttayan vs Zamindar of Sivagiri(2), this Court held that this obligation of the son to pay the father 's debt not tained with illegality or immorality was not religious but a legal obligation and the rule would operate not only after the father 's death but even in the father 's life time and the pertinent observation is as under: "It is evident therefore that the doctrine of pious obligation is not merely a religious doctrine but has passed into the realm of law. The doctrine is a necessary and logical corollary to the doctrine of the right of the son by birth to a share of the ancestral property and both these conceptions are correlated. The liability imposed on the son to pay the debt of his father is not a gratuitous obligation thrust on him by Hindu law but is a salutary counter balance to the principle that the son from the moment of his birth acquires along with his father an interest in joint family property". It is not the case of the plaintiffs that the debt contracted by the father for which the property was sold was tainted with illegality or immorality or that it was ayyravaharik in the sense opposed to good morals. Therefore, even assuming that there was a partition, the debt being antecedent debt for which no provision was made in the partition and the debt having not been shown to be tainted with illegality or immorality, the sons were liable to pay this debt to the extent the joint family property came in their hands. Viewed from either angle, the property sold was liable for the discharge of the debt of Dattatraya, the father, and even if it came in the hands of the sons on partition, the debt admittedly being a pre partition debt not shown to be tainted with illegality or immorality, could be recovered from the joint family property in the hands of the sons. Mr. Bal, however, raised an interesting contention that if the joint family property which came in the hands of the sons on partition was to be sold for recovery of the debt of the father after partition a suit would have to be filed by the creditor and if the property in the hands of the son was to be made liable for discharge of the debt, the sons ought to be joined as parties to the suit because only in such an event the sons could set up the defence of the debt being tainted 966 with illegality or immorality. Where a revenue sale takes place, it was said, the sons would have no opportunity to contest the character of the debt, and, therefore, any sale in such circumstances, of the property that has fallen to the shares of the sons at a partition, subsequent to the partition would be void as against the sons. In support of the submission reliance was placed on an observation in Pannallal 's case (supra) that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the sons and that a separate and independent suit must be filed against the sons before their shares can be reached. After observing that a son is liable even after partition for the pre partition debts of his father which are not immoral or illegal, this Court proceeded to examine the question as to how this liability is to be enforced by the creditor, either during the life time of the father or after his death. After taking note of a large number of decisions in which it was held that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allocated to the sons on partition and a separate and independent suit must be instituted against the sons before their shares can be reached, it was held that the principle underlying these decisions is sound. This Court approved the decision in Jagnarayan vs Somaji (1). It may be noted that decree for the pre partition debt was made after partition when in the suit father after partition could not represent the sons. This very question again came up before this Court in section M. Jakati & Anr. vs section M. Borkar & Ors.(2) In that case the Deputy Registrar of Co operative Societies had made an order against Mr. Jakati for realisation of the amount and an item of property belonging to the joint family of Jakati was attached by the Collector and duly brought to sale under section 155 of the Bombay Land Revenue Code. The sale was held on 2nd February, 1943 and confirmed on 23rd June, 1943. In the meantime. On January 15, 1943, one of the sons of Jakati instituted a suit for partition and separate possession of his share in the joint family property and contended inter alia that the sale in favour of the first respondent was not binding on the joint family. If the order of the Deputy Registrar was to be treated as a decree, the sale under section 155 of the Bombay Land Revenue Act being execution of that decree, was after the institution of the suit for partition and therefore it was contended that a partition after the decree but before the auction sale limited the efficacy of the sale to the share of the father even though the sale was of a whole estate including the interest of the sons, because after the partition the 967 father no longer possessed the power to sell the shares of sons to discharge his debts. Negativing this contention it was held as under: "But this contention ignores the doctrine of pious obligation of the sons. The right of the pre partition creditor to seize the property of the erstwhile joint family in execution of his decree is not dependant upon the father 's power to alienate the share of his sons but on the principle of pious obligation on the part of the sons to discharge the debt of the father. The pious obligation continues to exist even though the power of the father to alienate may come to an end as a result of partition. The consequence is that as between the sons ' right to take a vested interest jointly with their father in their ancestral estate and the remedy of the father 's creditor to seize the whole of the estate for payment of his debt not contracted for immoral or illegal purpose, the latter will prevail and the sons are precluded from setting up their right and this will apply even to the divided property which, under the doctrine of pious obligation continues to be liable for the debts of the father. Therefore where the joint ancestral property including the share of the sons has passed out of the family in execution of the decree on the father 's debt the remedy of the sons would be to prove in appropriate proceedings taken by them the illegal or immoral purpose of the debt and in the absence of any such proof the sale will be screened from the sons ' attack, because even after the partition their share remains liable". The High Court while examining the ratio in Jakati 's (supra) case observed that even though Ganpatrao Vishwanathappa Barjibhe vs Bhimrao Sahibrao Patil(1), was referred to therein it was not specifically overruled and, therefore, the trial Court was right in relying upon it and incidentally itself relied on it. In that case it was held that in order to make the share of sons liable after partition they should be brought on record. This Court referring to Ganpatrao (1) observed that the decision should be confined to the facts of that case and further observed as under : "Therefore where after attachment and a proper notice of sale the whole estate including the sons ' share, which was attached, is sold and the purchaser buys it intending it to be the whole coparcenary estate, the presence of the sons eo nomine is not necessary because they still have the right 968 to challenge the sale on showing the immoral or illegal purpose of the debt. In our opinion where the pious obligation exists and partition takes place after the decree and pending execution proceedings as in the present case, the sale of the whole estate in execution of the decree cannot be challenged except on proof by the sons of the immoral or illegal purpose of the debt and partition cannot relieve the sons of their pious obligation or their shares of their liability to be sold or be a means of reducing the efficacy of the attachment or impair the rights of the creditor. " The binding ratio would be one laid down in Jakati 's (supra) case and it cannot be ignored by merely observing that a different approach in Ganpatrao (supra) case holds the field for the High Court as it was not overruled in Jakati 's case. It is thus crystal clear that the pious obligation of the sons continues to be effective even after partition and if the creditor in execution of a decree obtained prior to partition seizes the property in execution without making sons parties to the suit and the property is sold at an auction and the purchaser is put in possession and the property thus passes out of the family in execution of the decree on the father 's debt, the remedy of the sons would be to challenge the character of the debt in an appropriate proceeding brought by them. The sale cannot be voided on the only ground that the sale of the property took place after partition and the property sold was one which was allotted to the sons on partition once the property is liable to be sold for recovery of debt of the father incurred prior to partition and which is not tainted with illegality or immorality. Partition in such a situation merely provides a different mode of enjoyment of property without affecting its liability for discharge of pre partition debts. In the present case the sons have filed the suit and in this suit issue No. 6 framed by the learned trial judge was whether the Tagai loan of Rs. 12,000/ was incurred by Dattatraya as manager of the family, for legal necessity and the family has benefited by it, and this issue was answered in the affirmative, meaning the debt is not shown to be tainted with illegality or immorality. No submission was made to us by Mr. Bal on behalf of the respondents that the debt was tainted with illegality or immorality. In such a situation unless in this suit the sons challenged the character of the debt and established to the satisfaction of the Court that the debt was tainted with illegality or immorality, they cannot obtain any relief against the purchaser who purchased the property at an auction held by the Civil Court or by the revenue authorities for recovering the debt of the father which the sons 969 were under a pious obligation to pay. Therefore, even if the plaintiffs were not parties to the proceedings held by revenue authorities for sale of the land involved in this dispute, once the sale took place and it was confirmed and purchaser was put in possession, the sons can successfully challenge the sale by establishing the character of the debt thereby showing that they were not bound to pay it and, therefore, their share in the property cannot be sold to discharge the debt. They cannot succeed merely by showing, as is sought to be done in this case, that as the sale took place subsequent to partition and as they were not parties to the proceedings the sale is not binding on them. This clearly merges by reading Pannalal and Jakati cases (supra) together. The loan sought to be recovered was a Tagai loan advanced under the Loans Act. The amount can be recovered as arrears of land revenue. Chapter XI of the Bombay Land Revenue Code provides procedure for realisation of land revenue, recovery to be made as if they are arrears of land revenue and other revenue demands. Section 150 provides that an arrear of land revenue may be recovered inter alia by sale of the defaulter 's immovable property under section 155. Section 155 provides that the Collector may cause the right, title or interest of the defaulter in any immovable property other than the land on which the arrear is due to be sold. The sale is subject to sanction and confirmation. The first contention is that the Collector is authorised to cause the right, title or interest of the defaulter in any immovable property which is sought to be sold in a revenue auction and in this case as the sale was after the partition the defaulter Dattatraya had no interest in the property brought to auction and, therefore, no title passed to the auction purchaser. This submission overlooks again the pious duty of the sons to pay the father 's debt as also the right of the creditor to recover debts from the joint family property in the hands of the coparceners. In Jakati 's case (supra) this was the exact contention and after comparing the parallel provision in the Code of Civil Procedure, viz., "the right, title or interest of the judgment debtor", this Court held that it is a question of fact in each case as to what was sold in execution of the decree. This Court affirmed the ratio in Rai Babu Mahabir Prasad vs Rai Markunda Nath Sahai(1), that it is a question of fact in each case as to what was sold, viz., whether the right, title or interest of the debtor or defaulter was sold or the whole of the property was put up for sale and was sold and purchased. It 970 was concluded that where the right, title and interest of the judgment debtor are set up for sale as to what passed to the auction purchaser is a question of fact in each case dependent upon what was the estate put up for sale, what the Court intended to sell and what the purchaser intended to buy and did buy and what he paid for. There is not the slightest doubt that the whole of the property was sold in the instant case and that was intended to be sold and the purchaser purchased the whole of the property and the certificate was issued in respect of sale of the property and, therefore, it is futile to say that only the right, title and interest of Dattatraya was sold and that as he had no interest in the property sold on the date of auction sale, nothing passed to the purchaser. Assuming, for a moment that if the sale takes place after the partition, to such a proceeding the sons should be a party before the liability arising out of the doctrine of pious obligation to pay the father 's debt is enforced against the joint family property in the hands of the sons, evidence reveals that the sons were fully aware of the intended sale and not only they knew of the intended sale but possession was taken from them by the purchaser after notice to them. Proceedings for the recovery of the amount of Tagai loan of Rs. 12,000/ were commenced much prior to 25th April, 1955 because the first proclamation of sale in respect of four pieces of land was issued on 25th April, 1955. 79 would show that no bid was received whereupon the Kamgar Patil offered a nominal bid of Re. 1/ for four pieces of land. It may here be mentioned that this sale was challenged by none other than Dattatraya and it was quashed and he had taken back the land included in the proclamation Ext. Thus the recovery of the loan started prior to partition which took place on 6th July, 1956. Where a loan is taken under the Loans Act and it is being recovered as arrears of land revenue, the order of the revenue authority to recover the amount would tantamount to a decree and when a proclamation of sale is issued it amounts to execution of the decree, to borrow the phraseology of the Code of Civil Procedure. It is thus clear that execution started prior to the partition. Undoubtedly the proclamation for sale of suit land was issued on 22nd January, 1957 as per Ext. 80 and that was subsequent to the partition but when different properties are brought to auction by different sale proclamations it is nonetheless an execution proceeding. The sale proclamation was issued under the provisions of the land revenue code. Amongst others the proclamation of sale is to be fixed on the property which is to be auctioned. After the sale was confirmed, the purchaser was required to be put in possession. The plaintiff claimed to be in possession and yet the revenue officer on 20th May, 1960 as per Ext. 82 handed over possession of 971 the land involved in the dispute to the purchaser. It would be advantageous to point out here that the plaintiffs served notice dated 2nd February, 1957 which would mean that the notice was served prior to the date of the auction. The plaintiffs therein referred to the proclamation of sale for the land involved in dispute and they also referred to the proclamation of sale for the land involved in dispute and they also referred to the attachment of the land. They also referred to the date of intended auction sale and they called upon the Collector not to proceed with the sale. The plaintiffs thereafter filed their first suit being Special Suit No. 14/58, certified copy of the plaint of which is Ext. 37, which would show that it was filed on 6th April, 1957. In this plaint they sought a declaration that the sale held on 26th May, 1955 and 6th April, 1957 be declared illegal. It was alleged in the plaint that Dattatraya was a drunkard and was in bad company and had borrowed the Tagai loan for his own vices and in collaboration with the concerned officers of the revenue department and the loan could never be said to be a Tagai loan. Amongst others, the State of Bombay was impleaded as party defendant. Subsequently this suit was withdrawn and the present suit was filed deleting State of Bombay as party. From this narration of facts it clearly emerges that the plaintiffs had the knowledge of the proclamation of sale and yet no attempt was made by them either to appear before the Collector who had issued the proclamation or as was now sought to be urged, offered to repay the loan. If after this specific knowledge that proceeding for recovery of Tagai loan had commenced and during its pendency the partition was brought about and yet on the subsequent sale the revenue authority sold the whole of the property and the purchaser intended to buy the whole of the property, the only way the sons can challenge this sale is by establishing the character of the debt as being tainted with illegality or immorality and the purchaser would be entitled to defend his purchase and possession on all the contentions which would negative the plaintiffs ' case including the one about the pious obligation of the sons to pay the father 's debt. Therefore, there is no force in the contention that as the plaintiffs were not parties to the recovery proceedings the sale is not binding on them. That brings us to the last contention which has found favour with the High Court. The contention is that a loan borrowed under the provisions of the Loans Act could always be in the individual and personal capacity of the borrower and the Loans Act being applicable to all the communities in this country, it does not admit of a person borrowing loan in his representative capacity as Karta of the joint family and, thereby making joint family property liable for the discharge 972 of the debt. Section 5 prescribes the mode of dealing with the applications for loans and section 6 provides for the period for repayment of loans. Then comes section 7 which is material. It provides for the mode of recovery of the loans borrowed under the Act. Section 7 reads as under: "7. (1) Subject to such rules as may be made under section 10, all loans granted under this Act, all interest (if any) chargeable thereon, and costs (if any) incurred in making the same, shall, when they become due, be recoverable by the Collector in all or any of the following modes, namely: (a) from the borrower as if they were arrears of land revenue due by him; (b) from his surety (if any) as if they were arrears of land revenue due by him; (c) out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land; (d) out of the property comprised in the collateral security (if any) according to the procedure for the realisation of land revenue by the sale of immovable property other than the land on which that revenue is due: Provided that no proceeding in respect of any land under clause (c) shall affect any interest in that land which existed before the date of the order granting the loan, other than the interest of the borrower, and of mortgages of, or persons having charges on, that interest, and where the loan is granted under section 4 with the consent of another person, the interest of that person, and of mortgagees of, or persons having charges on, that interest. (2) When any sum due on account of any such loan, interest or costs is paid to the Collector by a surety or an owner of property comprised in any collateral security, or is recovered under sub section (1) by the Collector from a surety or out of any such property, the Collector shall, on the application of the surety or the owner of that property (as the case may be), recover that sum on his behalf from the borrower, or out of the land for the benefit of which the loan has been granted, in manner provided by sub section (1). (3) It shall be in the discretion of a Collector acting under this section to determine the order in which he will resort to the various modes of recovery permitted by it. " 973 The loan can be recovered from the borrower as if it were an arrear of land revenue due by him or from his surety by the same procedure or out of the land for the benefit of which the loan has been granted by following the same procedure or out of the property comprising as collateral security, if any, according to the procedure for realisation of land revenue by sale of immovable property or by the sale of immovable property other than the land on which the land revenue is due. Now the word 'borrower ' is not defined. Could it be said that a borrower for the purpose of section 7 can be an individual and no other person ? The High Court observed that the Act is applicable to all communities in India and not merely to Hindus and there are many communities which do not have the system of joint family and if the legislature intended to include in the word 'borrower ' manager of a family, it should have said so in express terms. There is nothing in the language of section 7 which would show that the borrower must always and of necessity be an individual. Even if the Act applies to other communities which do not have the system of joint family, that by itself would not exclude the manager of a joint Hindu family from becoming a borrower under section 7. If the construction as suggested by the High Court is accepted it would put joint Hindu family at a disadvantage in borrowing loans under the Loans Act because the Karta of a joint Hindu family, if he has no separate property of his own, and if he cannot borrow the loan in his representative capacity, has no security to offer, nor could he take advantage of the beneficial provision of the Act for improving the land belonging to the joint Hindu family. We see no justification for restricting the word 'borrower ' to be an individual alone. In fact the Act itself contemplates joint borrowers. Section 9 provides for joint and several liability of joint borrowers. A Karta of a joint Hindu family therefore can be a borrower in his representative capacity. If the Karta of a joint Hindu family is considered eligible for becoming a borrower would it run counter to the position of other communities in which there is no concept of a joint family and joint family properties ? In the absence of any such concept a borrower other than a Hindu can offer all the property at his disposal even if he has not sons, as security for the loan to be borrowed because in other communities governed by their personal laws the son does not acquire interest in the ancestral properties in the hand of the father from the time of his birth. But in Hindu law there are two seemingly contrary but really complimentary principles, one the principle of independent coparcenary rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty of the sons to discharge their father 's debts not tainted with immorality or illegality, 974 which lays open the whole estate to be seized for the payment of such debts (see Jakati 's case) (Supra). Now, if the sons of a Hindu father take interest in the ancestral property in the hands of the father by the incident of birth, they also incur the corresponding obligation of discharging the debts incurred by the father either for his own benefit or for the benefit of the joint family from the property in which the sons take interest by birth. Such a concept being absent in communities not governed by Hindu law in this behalf, the father would be free to encumber the property and the sons in such communities would neither get interest by birth nor the liability to pay the father 's debt and would not be able to challenge the sale or property for discharge of the debt incurred by the father. Therefore, the expression 'borrower ' in section 7 need not be given a restricted meaning merely because the Act applies to all communities. Hence a father who is the Karta of the joint family consisting of himself and his sons can become a borrower in his capacity as Karta and if the loan is for legal necessity or for the benefit of the joint family estate he would render the joint family property liable for such debt and if it is for his personal benefit the joint family property even in the hands of the sons would be liable if the debt is not tainted with illegality or immorality. The High Court said that such liability which arises from the obligation of religion and piety cannot be extended to the loans borrowed under the Loans Act because there is no such obligation in other communities to which the Act applies. In reaching this conclusion the High Court overlooked the principle that this doctrine of pious obligation is not merely a religious duty but has passed into the realm of law (see Anthonyswamy), (supra). On the facts of that case this principle was applied to parties belonging to Tamil Vannian Christians. Viewed from this angle, the High Court was in error in holding that Dharmashastras of Hindus never contemplated improvement loans being given by the Governments of the day which were usually monarchies and, therefore, a debt of the kind which is contemplated under the Loans Act could never have been under the contemplation of the writers like Brihaspati and Narada in whose texts the pious liability is imposed on the sons and others. It is not possible to subscribe to this view for the reasons hereinbefore mentioned. The decisions in Sankaran Nambudripad vs Ramaswami Ayyar,(1) and Chinnasami Mudaliar vs Tirumalai Pillai,(2) do not touch the question herein raised and are of no assistance in the matter. It, therefore, clearly transpires that Dattatraya had borrowed a loan from the Government under the Loans Act for the benefit of 975 joint family property. It was being recovered as arrears of land revenue. The property which is the subject matter of dispute in this proceeding was joint family property. It was sold at a revenue auction and the whole of the property was sold and the whole of it was purchased by the purchaser. The debt of Tagai loan for which the property was sold is not shown to be tainted with illegality or immorality or avyavaharik. Therefore, the suit property was liable to be sold at court auction for two reasons, one that the debt was joint family debt for the benefit of the joint family estate and, therefore, all segments of the joint family property were liable for the discharge of the debt, and secondly, under the doctrine of pious obligation of the sons to pay the father 's debt. In the present proceedings no attempt was made to establish that the debt was tainted with illegality or immorality. Therefore, the sale is valid and the purchaser acquired a full and complete title to the property. The sale is not void. Part of the property is acquired and the compensation is taken by the plaintiffs subject to the orders of the Court. Accordingly, both these appeals are allowed and the plaintiffs ' suit is dismissed but in the facts and circumstances of this case, with no order as to costs throughout. N.V.K. Appeals allowed. [/INST]The respondents ' father took a Tagai loan from the Government for the purpose of digging wells in his land by offering his land as security for the loan. When he failed to repay the loan, the suit land was auctioned under the revenue recovery proceeding and it was purchased by the appellants. In a suit for recovery of possession, the respondents alleged that their father had no saleable interest in the land because, prior to the date of auction. in the partition between themselves and their father, the suit land came to their share and therefore the land which belonged to them could not have been sold in an auction for recovering a personal debt of their father. The trial court declared the sale as void. The High Court affirmed the trial Court 's order. In appeal to this Court the respondents contended that the debt was not a joint family debt; neither was the father acting as Karta of the joint family nor was the loan for the benefit of the joint family and therefore the joint family property could not be made liable for such loan. Allowing the appeals the Court, ^ HELD: 1 (a) The suit land was joint family property of the respondents and their father. [961C] (b) If the loan, for the recovery of which the suit property was brought to auction, was joint family debt and if the suit property was joint family property it would be liable to be sold for recovery of joint family debt. [963A] (c) Whether the Karta acted in his personal capacity or representative capacity has to be gathered from all the surrounding circumstances. The father borrowed the loan in his capacity as Karta of the joint family for improvement of the joint family lands and for this purpose he offered as security the land which was joint family property. It is not necessary that the Karta acting in his capacity as Karta should describe himself as Karta to affirm his representative capacity. Therefore he must be deemed to have acted in the transaction on behalf of the family. [961G H] 956 (d) Agriculture was one of the occupations which the father was carrying on as Karta of the joint family. If agriculture was one of the occupations of the joint family and if the loan was borrowed for the purpose of improving the joint family lands, the loan would ipso facto be for legal necessity and it would be joint family debt. [962H] (e) Where the sons are joint with their father and debts have been contracted by the father for his personal benefit the sons are liable to pay the debts provided they were not incurred for illegal or immoral purpose. This liability to pay the debt had been described as pious obligation of the son to pay the father 's debt if it is not tainted with illegality or immorality. [960F] Muttayan vs Jamindar of Sivagiri, [1883] 9 I.A. 128 Anthonyswmy vs M. R. Chinnaswamy Koundan (dead) by L. Rs. Ors. ; ; referred to. (f) If at a partition amongst the members of the joint family no provision was made for joint family debts, then despite the partition and allotment of shares to different coparceners, the joint family property acquired by partition would still be liable for the joint family debts. [964D] Sat Narain vs Das, [1936] 63 I.A. 384; Pannalal & Anr. vs Mst. Naraini & Ors. ; at 558; Vriddhachalam Pillai vs Shaldean Syrian Bank Ltd. & Anr. ; ; referred to (g) In the instant case the property sold was liable for the discharge of the father 's debt. The debt being a pre partition debt which was not shown to be tainted with illegality or immorality, could be recovered from the joint family property in the hands of the sons. [965F] (h) The pious obligation of the sons continues to be effective even after partition. If the creditor, in execution of a decree, obtained prior to partition, seizes the property in execution without making the sons parties to the suit and the property was sold at an auction and the purchaser was put in possession, the remedy of the sons would be to challenge the character of the debt in an appropriate proceeding. The sale cannot be voided on the only ground that it took place after partition and the property sold was one which was allotted to the sons on partition. Partition in such a situation merely provides a different mode of enjoyment of property without affecting the joint family 's liability for discharge of pre partition debts. [968D F] section M. Jakati & Sons & Anr. vs section M. Barkar & Ors., referred to. (i) In the instant case the debt was not shown to be tainted with illegality or immorality. Therefore, even if the respondents were not parties to the proceeding held by the Revenue Authorities, once the sale was confirmed and the purchaser was put in possession, the sons can challenge the sale only by establishing the character of the debt. [968G, 969A] (2) The loan sought to be recovered being Tagai loan advanced under the Loans Act, it can be recovered as arrears of land revenue. The Bombay land Revenue Code, provides procedure for realisation of land revenue, recovery of which could be made as if it was arrears of land revenue and other revenue demands. [969C] 957 (3) When a loan was taken under the Loans Act and was being recovered as arrears of land revenue, the order of the Revenue Authority would tantamount to a decree and when a proclamation of sale was issued it amounted to execution of the decree. [970F] 4 (a) The High Court was wrong in holding that since the Act was applicable to all communities in India and not merely to the Hindus, if it legislature intended to include manager of a family in the word 'borrower ', it should have said so in express terms. There is nothing in the language of section 7 of the Loans Act to show that the borrower must always and of necessity be an individual. If the construction suggested by the High Court is accepted it would put the joint Hindu family at disadvantage in borrowing loans under the Loans Act because the Karta of a joint Hindu family, if he has no separate property of his own, and if he cannot borrow the loan in his representative capacity, has no security to offer. Nor would he be able to take advantage of the beneficial provision of the Act for improving the land belonging to the joint Hindu family. [973C E] (b) Moreover there is no justification for restricting the word 'borrower ' to be an individual alone. The Act itself contemplates joint borrowers. A Karta of a joint Hindu family can be a borrower in his representative capacity. [973F] Sankaran Nambudripad vs Ramaswami Ayyar, Madras 691; Chinnaswami Mudaliar vs Trimalai Pillai, Madras 572, inapplicable. </s>

<s>[INST] Summarize the judgementAppeal No. 180 of 1962. Appeal by special leave from the judgment and decree dated January 28, 1959, of the Calcutta High Court from original Decree No. 226 of 1952. B. Sen and section N. Mukherjee, for the appellant. Hem Chandra Dhar, section section Khanduja and Ganpat Rai, for the respondent. The Judgment of the Court was delivered by Mudholkar, J. This appeal, like Satyabrata Ghose vs Mugnee ram Bangur & Co. and another(1) relates to the effect of requisitioning orders made by the Government during the last war under which they took possession of land belonging to the appellant company which had been divided into building plots by them in pursuance of what is known as the Lake Colony Scheme, by constructing roads and drains. The plaintiff respondent was one of the various persons who had entered into contracts with the company for purchase of plots, in pursuance of the public offers made by the company. This he did by addressing the following letter to the company and paying Rs. 202/ by way of earnest money. "To Mugneeram Bangur and Company Land Department. Russa Road, South, Tollygunge, Calcutta. No. 499, Phone: South 135. Through Babu Re : Plots Nos. New Nos. 245 and 246 on 30 feet road in the premises No. Lake Colony Scheme No. 1, Northern: Block. Area measuring 10 ks. x sqr. ft more or less. (1) ; 632 Dear Sir, I am willing to purchase the above plot of land from you at the average rate of Rs. 1,075/ (Rupees one thousand and seventyfive only) per katta irrespective of the condition of the soil and I am ready to deposit Rs. 202/ of the actual value as an earnest money at once. I undertake to complete the transaction within one month from the date on(?) (of) completion of road on payment of the balance of the consideration money and time must be deemed as essence of the contract. If I fail to do so within the said period the earnest money deposited by me will be forfeited and you will be free to resell the land and I shall be liable for all damages that may result thereby. I also agree to sign a formal agreement in the form required by you if you so desire. Yours faithfully, Name, Gurbachan Singh, Address: 48/ 1, Chakraberia Road, North. Dated the 19 . Witness : (Illegible) Address . . . N.B. I agree to pay half of the value at the time of registration of the deeds and the balance within 6 years bearing interest at the rate of 6 per cent per annum with half yearly rests and the said plots Nos : 245 and 246 purchased by me shall remain charged for the payment of the balance of the purchase money in manner as aforesaid and the necessary security deed charged should be executed and registered by me at my own cost. Name: Gurbachan Singh Address : Witness (Illegible) 4, Baktiar Shah Road, Tollygunge. The letter does not bear any date; but probably it was written on May 14, 1941 which is the date on which the company issued a receipt in his favour. Different portions of the land covered by the scheme were requisitioned by Government between November 12, 1941 and July 25, 1944. The plots which the respondents had contracted to purchase are said to form part of the land which was requisitioned by virtue of an order made by the Government on February 18, 1944. 633 According to the company, on December 24, 1943, a circular notice was sent to all those persons who had entered into contracts for purchase of plots from them stating that a considerable portion of the land comprised in the Lake Colony Scheme area had been requisitioned under the Defence of India Rules and was taken into possession by the Government. It was not possible to say how long the Government would continue to be in possession and, therefore, it was not possible for the company to carry on the work of the construction of roads and drains during the continuance of the war and possibly for many years even after the termination of the war. The circular then proceeded to state as follows : "In these circumstances we have decided to treat the agreement as cancelled and give you the option of taking of the refund of the earnest money deposited by you within one month from the receipt of this letter. In the event of your refusal to treat the contract as cancelled, we are offering you, in the alternative, to complete the registration of the conveyance of the sale deed within one month from the receipt of this letter. In such a case you have to take the lands as it is now, the road and drain will be made by us as soon as circumstance will permit after the termination of the War. If you do not exercise your option in any of the two ways mentioned above the agreement will be deemed to have been cancelled and your earnest money forfeited. " On May 8, 1946 the respondent 's attorneys, acting under instructions, wrote to the company saying that the respondent had learnt from the company 's office that the government would be de requisitioning lands taken over by them and inquiring of the company as to when it would be possible for the company to deliver possession of the plots to the respondent. In reply to that letter the company wrote on May 29, 1946 drawing his attention to their circular letter and said that by reason of the failure of the respondent to exercise the options given by them therein the agreement stood cancelled and the earnest money had been forfeited. On June 13, 1946, the respondent 's attorneys expressed sur prise at the company 's reply and stated that the respondent had not received the circular referred to in the company 's reply and ended by saying as follows : "That my said client, therefore, now hereby asks you as to when you are going to complete the roads, so that he may do the needful for completion of the conveyances 634 within one month from such date of completion of the roads. That my said client hereby calls upon you to intimate to him within seven days from date the expected exact date of completion of roads to enable him to complete the conveyance as per agreement, failing which he will be forced to take legal steps against you in the matter as he may be advised in the matter, without further reference which please note. " Apparently the company did nothing with the result that the present suit was instituted by the respondent on August 8, 1946 in the court of the Second Subordinate Judge at Alipore. The company resisted the suit on various grounds but only two are material for the purpose of this appeal because Mr. Sen has confined his argument only to those matters. One is that the contract has been discharged by reason of frustration and the second is that the suit was premature. The suit was decreed and that decree was upheld by the High Court in appeal. A certificate that the case was fit for appeal to this Court having been refused by the High Court the company sought and obtained from this court special leave to appeal. That is how the matter comes up before us. This case would really appear to be covered by the decision of this court to which we have referred at the outset. Mr. Sen, however, points out that the question as to whether the contract could be said to have been discharged because of the fact that its performance was rendered unlawful as a result of the requisitioning orders made by the Government which was sought to be raised before this Court in that case was not permitted to be raised by it and has been left open. He admits that certain observations made by this Court towards the concluding portion of the judgment would indicate that this Court was not prepared to accept the con tention sought to be urged before it. But, Mr. Sen says that as the contention was not permitted to be raised, the observations of this Court could be said to have been made merely in passing and at best be regarded as a tentative expression of its views. We think Mr. Sen is right in the sense that the question has been actually left open by this Court. But even so, we will have to consider whether the grounds upon which the previous decision rests would not be relevant for consideration in connection with the argument advanced by Mr. Sen. 635 In so far as discharge of contract by reason of frustration is concerned there is no question of implying a term in the contract a term fundamental for its performance, as is done by the courts in England because we have here the provisions of section 56 as well as those of section 32 of the Contract Act. This is what was held by this Court in the earlier case and that decision binds us. No doubt, a contract can be frustrated either because of supervening impossibility of performance or because performance has become unlawful by reason of circumstances for which neither of the parties was responsible. In the earlier case this Court has held that where the performance of an essential condition of the contract has become impossible due to supervening circumstances the contract would be discharged. This Court has further held that the impossibility need not be an absolute one but it is sufficient if further performance becomes impracticable by some cause for which neither of the parties was responsible. It, however, held that the mere fact that the performance of an essential term of the contract that is to say, of undertaking development of the area under the scheme could not be undertaken because the land had been requisitioned, did not have the effect of frustrating the contract. For though the term regarding development was an essential term of the contract, the requisitioning of the land was only for a temporary period. Further the parties had deliberately not placed any time limit within which roads and drains had to be made apparently because they were aware of the difficulties in carrying on the work on account of scarcity of materials and the various restrictions which the Government had placed on such activities. This Court also pointed out: "Another important thing that requires notice in this connection is that the war was already on, when the parties entered into the contract. Requisition orders for taking temporary possession of lands for war purposes were normal events during this period." (pp. 326 327). Though these observations were made while dealing with the argument that the contract has been frustrated by reason of impossibility of performance they would not be wholly out of place while considering the argument based upon the ground that continued performance of the contract had been rendered unlawful. What section 56 speaks of is a contract, the performance of which has become unlawful. Now, it is true that no order was made under the Defence of India Rules prohibiting the company from carrying on the work of construction of roads and drains. The 636 actual order served upon the company, among other things, provides : "The owner/occupier of the said land: (a) shall place the said land at the disposal and under the control of the Military Estates Officer Bengal Circle on and from the 14th November, 1941 at 1 P.M. Bengal time until six months after the termination of the present war unless relinquished earlier." In consequence of this order the company lost possession of the land and automatically lost access thereto. Without getting on to the land the company could not carry out its obligation to the purchasers of constructing the roads and drains. If, in disobedience of this order, the company 's servants, agents or contractors were to carry on the work of construction of the roads and drains by entering on the land of which the possession was with the government, they would have been liable to punishment under sub r. (7) of r. 75 (a) of the Defence of India Rules and also the company. We were informed that the land was used by the Government for military purposes. It is, therefore, possible that the land might have been declared as a protected place under r. 7 of the Defence of India Rules. Even, however, without such a declaration, we agree with Mr. Sen that it would not have been possible for the company, its agents, servants or contractors to go on the land during the continuance in force of the order of requisition without being rendered liable at law. Even so it is clear that all that had become unlawful was to construct roads and drains while the land was bound to be given up by the Government sometime or other and, therefore, in essence the activities which were rendered unlawful were not forbidden for all time but only temporarily. It may be that the duration of the embargo was uncertain but not permanent. It would, therefore, be relevant to enquire whether a contract could properly be held to be frustrated because for a certain period of time its performance has become unlawful. According to Mr. Sen the moment it became unlawful for one of the parties to the contract to continue with the performance, the contract was discharged and in this connection he referred us to certain observations of Lord Wright in Denny Mott & Diskson Ltd. vs james B. Fraser & Co. Ltd.,() and certain other portions of the report. We put to him the question as to what would be the. effect of a requisitioning, say, for a period of one month. Would that operate as &charge of the (1) ; , 274. 637 contract ? To that his answer was in the negative and we think that the answer was right. The question then would be : would it make any difference if unlawfulness would attach to the performance of the contract for an indeterminate period ? In our judgment if time is of the essence of the contract or if time for performance is set out in the contract it may be that the contract would stand discharged even though its performance may have been rendered unlawful for an indeterminate time provided unlawfulness attached to the performance of the contract at the time when the contract ought to have been performed. Thus, where the performance of a contract had been rendered unlawful by reason of some subsequent event the contract would stand discharged but such discharge will take place not necessarily from the date on which the further performance was rendered unlawful, unless further performance was rendered unlawful for all time. If the performance of the contract is rendered unlawful either for a determinate period of time or for an indeterminate period of time the contract would not stand discharged unless the ban on its performance existed on the day or during the time in which it has to be performed. Here it is pointed out by Mr. Sen that the respondent had made time the essence of the contract but that only applies to the grant of conveyance after the completion of the roads and drains. As already pointed out, parties were wholly silent as to the time within which the roads and drains were to be completed. Therefore, in so far as this aspect of the contract is concerned time was in no sense made the essence of the contract. According to Mr. Sen, however, where the parties have failed to specify in the contract time within which it has to be performed section 46 of the Contract Act comes in and the parties may be presumed to have agreed that the contract will be performed within reasonable time. To that the answer would be the same as that given in the earlier case, that is, the parties when they entered into the contract, knew the prevailing circumstances and must have home in mind the possibility that something like what actually happened may happen and, therefore, did not specify the time within which the land had to be developed. In other words, the parties intended to exclude from the computation of reasonable time such time as was taken up in procuring the necessary material which was not easy to obtain and such as may be taken up if the land were requisitioned by government. Thus, in our view it cannot be said that because of the requisitioning orders which had the effect of making the entry by or on behalf of the company on the land illegal during the subsistence of the period of requisitioning the contract stood discharged. p.55 7 638 Then remains the other point argued by Mr. Sen. He said that the suit for specific performance was premature because under the agreement the respondent did not get a right to obtain a sale deed till after the development of the land comprised in the scheme was completed. That is perfectly true. But the fact remains that this work had been completed when the appeal was heard by the High Court. The Court would in such a case be justified in taking notice of subsequent events in moulding its relief accordingly. In our judgment the courts below were right in upholding the respondent 's claim. The apeal is dismissed with costs. Appeal dismissed. [/INST]The appellant company made a claim under section 5 of the Income tax (Double Taxation Relief) (Indian States) Rules, 1939, for refund of the income tax paid by it in an Indian State. The claim was rejected by the Income tax Officer as time barred. The Commissioner of Income tax and the Central Board of Revenue refused to interfere and the appellant sought no further legal remedy against their orders. Subsequently on certain tax demands being made by the Income tax Officer, the appellant made representation that the amounts in respect of which application had earlier been made under r. 5 should be set off against the demand as provided by section 49E of the Indian Income tax Act, 1922. The Income tax authorities having rejected this claim also, the appellant went to the High Court under article 226 of the Constitution. The High Court held that the expression found to be due" in section 49E clearly meant that there must be, prior to the claim of set off, an adjudication whereunder an amount is found due by way of refund to the person claiming set off. Since there was no such adjudication in the appellant 's favour, the writ petition was dismissed. However a certificate of fitness under article 133(1) (c) was granted to the appellant. HELD : (i) It is not necessary that there should be a prior adjudication before a claim can be allowed under section 49E. There is nothing to debar the Income tax Officer from determining the question whether a refund is due or not when an application is made to him under section 49E. The words "is found" do not necessarily lead to the conclusion that there must be a prior adjudication. [419 D E] (ii) The set off under section 49E must however be "in lieu of payment ' which expression connotes that payment is outstanding i.e. there is a subsisting obligation on the Income tax Officer to pay. If a claim to refund is barred by a final order, it cannot be said that there is a subsisting obligation to make the payment. [419 F G] Stubbs vs Director of Public Prosecutions , relied on. (iii) In the present case the orders of the Commissioner and the Central Board of Revenue rejecting the appellant 's claim under r. 5 of the Indian State Rules had become final. They were not challenged even in the petition under article 226. There was thus no subsisting obligation on the part of the Income tax Officer to make payment to the appellant, and the claim of the appellant under section 49E must therefore, fail. [419 G H] </s>

<s>[INST] Summarize the judgementminal Appeal No. 143 of 1961. Appeal by special leave from the judgment and order dated May 22, 1961, of the Punjab High Court, Chandigarh in Criminal Revision No. 1448 of 1960. section K. Kapur, for the appellants. Harnam Singh Chadha and Harbans Singh, for the respondent. February 13. The judgment of the Court was delivered by SUBBA RAO J. This appeal by special leave raises the question of true construction of section 488(8) of the Code of Criminal Procedure. Jagir Kaur, the first wife of jaswant Singh, was married to him in 1.930. Tile said jaswant Singh 76 was employed in the police force in Africa. The Maklawa ceremony took place about 7 years after the marriage, when the respondent was away In Africa. Thereafter, the first appellant was taken to her mother in law 's house, and after living there for a few years she returned to her parental house. 5 or 6 years thereafter, jaswant Singh came to India on 5 months ' leave and the couple lived in jaswant Singh 's or his mother 's house at Hans Kalan it is not clear to whom the house belongs for a period of 5 months and thereafter jaswant Singh left for Africa. Before going to Africa, jaswant Singh married another wife and took her with him to Africa. After 5 or 6 years, he came back to India on leave and took the first appellant also to Africa. There she gave birth to a daughter the second appellant. As disputes arose between them, he sent her back to India, promising to send her money for her maintenance but did not (lo so. In the year 1960, he came back to India. It is also in evidence that he had purchased property in Ludhiana District for Rs. 25,000/ . When he was admittedly in India, the first appellant filed a petition under section 488 of the Code of Criminal Procedure in the Court of the First Class Magistrate, Ludhiana, within whose jurisdiction the respondent was staying at that time. The petition was filed by the first appellant on behalf of herself and also as lawful guardian of the second appellant, who was a minor, claiming maintenance at Rs. 200/ per month for both of them on the ground that the respondent deserted them and did not maintain them. The respondent filed a counter affidavit denying the allegations and pleading that the said court had no on the ground that he never resided within its district nor did he last reside with the first appellant in any place within its.jurisdiction. The learned Magistrate held that the petitioner appellant was the wife of the respondent and that the Court had jurisdiction to entertain the petition as the 77 husband and wife last resided together in the District of Ludhiana. On the merits, he held that the first wife and her daughter were entitled to maintenance and awarded for the wife maintenance at the rate of Rs. 100/ per month and for the daughter at the rate of Rs. 50/ per month. The respondent preferred a revision against that order to the Additional Sessions judge, Ludhiana, and the learned Addi tional Sessions judge, agreed with the learned Magistrate both on the question of jurisdiction and also on the right to maintenance and dismissed the revision. The husband preferred a revision to the High Court of Punjab against that order. The High Court disagreed with both the lower Courts on the question of jurisdiction. It held that the husband 's permanent home was Africa and his two visits to Ludhiana for temporary periods did not make him one who resided in that district or who last resided with his wife therein. On that view, it set aside the order of the learned Additional Sessions judge and dismissed the petition. Hence the present appeal. Mr. Kapur, learned counsel for the appellants, contended that the respondent had last resided with his wife in his house in village Hans Kalan in the District of Ludhiana and was also in the said District at the time the application under section 488 of the Code of Criminal Procedure was filed by the first appellant and, therefore, the learned Magistrate had territorial jurisdiction to entertain the application. In any view, he argued, the respondent submitted to the jurisdiction of the Magistrate and, therefore, he could no longer question the validity of his order on the ground of want of jurisdiction. On the other hand, the learned counsel for the respondent sought to sustain the order of the High Court for the reasons mentioned therein. At the outset we must say that the first appellant did not raise the plea of submission 78 either in the pleadings or in any of the three Courts below. The question is a mixed question of fact and law. This Court will not ordinarily allow such questions to be raised for the first time before it and we do not see in this case any exceptional circumstances to depart from that practice. We cannot therefore, permit the first appellant to raise this belated plea. The only question in the appeal is whether the Magistrate of Ludhiana had jurisdiction to entertain the petition filed under section 488 of the Code of Criminal Procedure. The question turns upon the interpretation of the relevant provisions of section 488(8) of the Court, which demarcates the jurisdictional limits of a Court to entertain a petition under the said section. Section 488 (8) of the Code reads : "Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child.". The crucial words of the sub section are, "resides", "is" and "where lie last resided with his wife". Under the Code of 1882 the Magistrate of the District where the husband or father, as the case may be, resided only had ' jurisdiction. Now the jurisdiction is wider. It gives three alternative forums. This, in our view, has been designedly done by the Legislature to enable a discarded wife or a helpless child to get the much needed and urgent relief in one or other of the three forums convenient to them. The proceedings under this section are in the nature of civil proceedings. the remedy is a summary one and the person seeking that remedy, as we have pointed out, is ordinarily a helpless person. So, the words should be liberally construed ' without doing any violence to the language. 79 The first word is "resides". A wife can file a petition against her husband for maintenance in a Court in the District where he resides. The said word has been subject to conflicting judicial opinion. In the Oxford Dictionary it is defined as : "dwell permanently or for a considerable time; to have one 's settled or usual abode ; to live in or at a particular lace". The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense and a temporary residence. Whichever meaning is given to it, one thing is obvious and it is that it does not include a causal stay in, or a flying visit to, a particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense. The purpose of the statute would be better served if the word "resides" was understood to include temporary residence. The juxtaposition of the words "is" and " 'last resided" in the sub Section also throws light on the meaning of the word "resides". The word " 'is", as we shall explain later, confers jurisdiction on a Court on the basis of a causal visit and the expression "last resided", about which also we have something to say, indicates that the Legislature could not have intended to use the word "resides" in the technical sense of domicile. The word "resides" cannot be given a meaning different from the word "resided" in the expression " 'last resided" and, therefore, the wider meaning fits in the setting in which the word "resides" appears. A few of the decisions cited at the Bar may be useful in this context. In Santpoornam vs N. Sundaregan (1), it was held that the word "resides" implied something more than (1) , 80 a brief visit. but not such continuity as to amount to a domicile. In Khairunissa vs Bashir Ahmed (1), on a consideration of the relevant authorities it wits pointed out that a casual or a flying visit to a place was excluded from the scope of the word "resides". A full Bench of the Allahabad High Court, in Flowers vs Flowers (2), expressed the view that a mere casual residence in a place for a temporary purpose with no intention of remaining was not. covered by the word "resides". In Balakrishna vs Sakuntala Bai (3) it was held that the expression "reside" implied something more than "stay" and implied some intention to remain at a place and not merely to pay it a casual visit. In Charan Das vs Surasti Bai (2), it was held that the sole test on the question of residence was whether a party had animus manendi, or an intention to stay for an indefinite period, at one place; and if he had such an intention, then alone could he be said to "reside" there. The decisions on the subject are legion and it would be futile to survey the entire field. Generally stated no decision goes so far as to hold that "resides" in the sub section means only domicile in the technical sense of that word. There is also a broad unanimity that it means something more than a flying visit to or a casual stay in a particular place. They agree that there shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases thereon, we would define the word "resides" thus : a person resides in a place if he through choice makes it his abode permanently or even temporarily ; whether a person has chosen to make a particular place his abode depends upon the facts of each case. Some illustra tions may make our meaning clear : (i) A, living in (1) Bom. (2) All. (3) A.I.R. 1942 Mad. (4) A.I.R. 1940 Lah. 449, 81 a village, goes to a nearby town B to attend a marriage or to make purchases and stays there in a hotel for a day or two. (2) A, a tourist, goes from place to place during his peregrinations and stays for a few days in each of the places he visits, A, a resident of a village, who is suffering from a chronic disease, goes along with his wife to a town for medical treatment, takes a house and lives there for about 6 months. (4) A, a permanent resident of a town, goes to a city for higher education, takes a house and lives there, alone or with his wife, to complete his studies. In the first two cases, A makes only a flying visit and he has no intention to live either permanently or temporarily in the places he visits. It cannot, therefore, be said that he "resides" in the places he visits. In the last two illustrations, though A has a permanent house elsewhere, he has a clear intention or animus manendi to make the places where he has gone for medical relief in one and studies in the other, his temporary abode or residence. In the last two cases it can be said that though he is not a domicile of those places, he "resides" in those places. The cognate expression "last resided" takes colour from the word " 'resides" used earlier in the sub section. The same meaning should be given to the word " resides" and the word " 'resided", that is to say, if the word "resides" includes temporary residence, the expression "last resided" means the place where the person had his last temporary residence. But it is said that even on that assumption, the expression can only denote the last residence of the person with his wife in any part of the world and that it is not confined to his last residence in any part of India. If the words "where he last resided with his wife" are construed in vacuum, the construction suggested by the learned counsel for the respondent may be correct; but by giving such a wide meaning to the said expression we would be giving extra territorial operation to the 82 Code of Criminal Procedure. Section 2 (1) of th Code extends the operation of the Code to the whole of India except the States of Jammu & Kashmir; that is to say, the provisions of the Code, including section 488 (8) thereof, have operation only throughout the territory of India, except the States of Jammu & Kashmir. If so, when sub section (8) of section 488 of the Code, prescribing the limits of Jurisdiction, speaks of the last residence of a person with his wife, it can only mean his last residence with his wife in the territories of India. It cannot obviously mean his residing with her in a foreign country, for an Act cannot confer jurisdiction on a foreign court. It would, therefore, be a legitimate construction of the said expression if we held that the district where be last resided with his wife must be a district in India. In In re Drucker (No. 2) Basden, Ex Parte the words "or in any other place out of England," in sub section (6) of section 27 of the Bankruptcy Act, 1883, fell to be construed. The words were wide enough to enable a Court in England to order that any person who, if in England, would be liable to be brought before it under the section, shall be examined in any place out of England, including a place not within the jurisdiction of the British Crown. The Court held that the words must be read with some limitation and the jurisdiction conferred by that section does not extend to places abroad which are not within the jurisdiction of the British Crown. Wright, J., rejecting the wider construction sought to be placed on the said words, observed at p. 211 : "It seems to me that that restriction in prima facie necessary. It is impossible to suppose that the Legislature intended to empower the Court to order the examination of persons in (1) 83 foreign countries ; for instance, in France or Germany." In Halsbury 's Laws of England, Vol. 36, 3rd edn., at p. 429, it is stated : ". . the presumption is said to be that Parliament is concerned with all conduct taking place within the territory or territories for which it is legislating in the particular instance, and with no other conduct. In other words, the extent of a statute, and the limits of its application, are prima facie the same. " It may be mentioned that the said observations are made in the context of Parliament making a law in respect of a part of the territory under its legislative jurisdiction. If it has no power at all to make a law in respect of any foreign territory, the operation of the law made by it cannot obviously extend to a country over which it has no legislative control. It is, therefore, clear that section 488(8) of the Code, when it speaks of a district where a person last resided with his wife, can only mean "where he last resided with his wife in any district in India other than Jammu & Kashmir. " The third expression is the word "is". It is inserted between the words "resides" and "last resided". The word, therefore, cannot be given the same meaning as the word "resides" or the expression "last resided" bears. The meaning of the word is apparent if the relevant part of the subsection is read. It reads : "Proceedings under this section may be taken against any person in any district where he. . is. . ." The verb "is" ' connotes in the context the presence or the existence of the person in the district when the proceedings are taken. It is much wider than the word "resides": it is not limited by the animus manendi 84 of the person or the duration or the nature of his stay. What matters is his physical presence at a particular point of time. This meaning accords with the object of the chapter wherein the concerned section appears. It is intended to reach a person, Who deserts a wife or child leaving her or it or both of them helpless in any particular district and goes to a distant place or even to a foreign country, but returns to that district or a neighbouring one on a casual or a flying visit. The wife can take advantage of his visit and file a petition in the district where he is during his stay. So too, if the husband who deserts his wife, has no permanent residence, but is always on the move, the wife can catch him at a convenient place and file a petition under section 488 of the Code. She may accidentally meet him in a place where he happens to come by coincidence and take action against him before lie leaves the said place. This is a salutary provision intended to provide for such abnormal cases. Many illustrations can be visualized where the utility of that provision can easily be demonstrated. To summarize : Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose. Section 488 prescribes alternative forums to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief. Proceedings under the section can be taken against the husband or the father, as the case may be, in a place where he resides, permanently or temporarily, or where he last resided in any district in India or where he happens to be at the time the proceedings are initiated. Let us now apply the said principles to the instant case. To recapitulate the relevant facts : the respondent was born in India in Ludhiana District; he was married to the first appellant in the year 1930; he migrated to Africa and took up a job there 85 as a police officer; he came back to India in or about 1943 and lived with the first appellant in a house at Hans Kalan for about 5 months and thereafter he left again for Africa; 5 or 6 years thereafter, he again came to India on leave and took her to Africa where she gave birth to a daughter; the appellant was sent back to India and she was staying in Ludhiana District with the child; the respondent 's mother is staying in the aforesaid village in the same district and it is also not disputed that the respondent has purchased property worth Rs. 25,000/ in Ludhiana District in the name of his minor children by his second wife; when the petition was filed he was admittedly in the district of Ludhiana indeed, notice was served on him in that district, he filed a counter affidavit, obtained exemption from personal appearance at the time of hearing and thereafter left for Africa. It is not necessary in this case to express our opinion on the question whether on the said facts the respondent "resides" in India; but we have no doubt that he "last resided" in India,. We have held that temporary residence with animus manendi will amount to residence within the meaning of the provisions of the sub section. When the respondent came to India and lived with his wife in his or in his mother 's house in village Hans Kalan, he had a clear intention to temporarily reside with his wife in that place. He did not go to that place as a casual visitor in the course of his peregrinations. He came there with the definite purpose of living with his wife in his native place and he lived there for about 6 months with her. The second visit appears to be only a flying visit to take her to Africa. In the circumstances we must hold that he last resided with her in a place within the jurisdiction of the First Class Magistrate, Ludhiana. That apart, it is admitted that he was in a place within the jurisdiction of the said Magistrate on the date when the appellant filed her application for maintenance against him. Thee said Magistrate had jurisdiction 86 to entertain the petition, as the said proceedings can be taken against any person in any district where he "is". We, therefore , hold that the First Class Magistrate, Ludhiana, had jurisdiction to entertain the petition under section 488 (8) of the Code. The next question relates to the quantum of maintenance to be awarded to the appellants. The Magistrate, on a consideration of the entire evidence, having regard to the salary of the respondent, and the value of the property he purchased awarded maintenance to the wife at the rate of Rs. 100/ per month for herself and at the rate of Rs. 50/ per month for the maintenance of her minor child. The Additional Sessions judge, on a reconsideration of the evidence, accepted the finding of the learned Magistrate and confirmed the quantum of maintenance awarded by him. The finding is a concurrent finding of fact the correctness whereof cannot ordinarily be questioned in a revision petition in the High Court. that is why the only question argued before the High Court was that of jurisdiction. As we have held that the view accepted by the High Court was wrong, we set aside the order of the High Court and restore that of the Magistrate First Class, Ludhiana. In the result the appeal is allowed. Appeal allowed. [/INST]The appellants and the respondents trace their interest and rights through their geneology to one Veeranna who died in 1906. One of his sons Pitchayya, predeceased him in 1905 and it is alleged that sometime before his death Pitchayya took Venkayya, the son of his brother Chimpirayya, in adoption. It is further alleged that a partition of the joint family properties between Veeranna and his four sons took place. Venkayya died in 1938 having a son Subbarao. Chimpirayya died in 1945 having executed a will whereunder he gave his properties in equal shares to Subbarao and Kamalamma, the daughter of his predeceased daughter. He also directed Raghavamma, the wife of his brother Pitchayya, to take possession of the entire property belonging to him, manage it and to hand over the same to his two grand children when they attained majority. Chimpirayya excluded his daughter in law Chenchamma from management as well as inheritance. But Raghavamma allowed Chenchamma to take possession of the property. Subbarao died in 1949. In 1930, Raghavamma filed a suit for possession of the property impleading Chenchamma as the first defendant, Kamalamma as the second defendant and Punnayya as the third defendant. 934 Chenchamma, the first defendant and the present first respondent, contended that Venkayya was not given in adoption and that there was no partition as alleged by the plaintiff. She averred that Chimpirayya died undivided from his grandson Subbarao and therefore, Subbarao became entitled to all the properties of the joint family by right of survivorship. The trial Judge came to the conclusion that the plaintiff had not established adoption of Venkayya by her husband Pitchayya and that she also failed to prove that Chimpirayya and Pitchayya were divided from each other and in the result dismissed the suit. On appeal, the High. Court upheld the above two findings of the trial judge. A new pica was raised by the appellant before the High Court that the will executed by Chimpirayya contained a clear intention to divide and that this declaration constituted a severance in status enabling him to execute a will. The High Court rejected this contention also and in the result dismissed the appeal. On appeal by certificate, the appellants contended that the findings of the High Court on adoption as well as on partition were vitiated by the High Court not drawing the relevant presumptions permissible in the case of old transactions, not appreciating the great evidentiary value of public documents, ignoring or at any rate nor giving weight to admissions made by parties and witnesses, adopting a mechanical instead of an intellectual approach and perspective and above all ignoring the consistent conduct of parties spread over a long period. inevitably leading to the conclusion that the adoption and the partition set up by the appellant were true. (2) On the assumption that there was no partition by metes and bounds, the court should have held on the basis of the entire evidence that there was a division in status between Chimpiravva and Pitchayya, conferring on Chimpirayya the right to , bequeath his divided share of the family property. (3) The will itself contained recitals emphasizing the fact that he had all through been a divided member of the family and that on the date of execution of the will he continued to possess that character of a divided member so as to entitle him to execute the will in respect of his share and, therefore, the recitals in the will themselves constituted an unambiguous declaration of his intention to divide and the fact that the said manifestation of the intention was not communicated before his death to Subbarao or his guardian Chenchamma could not affect his status as a divided member. (4) Chenchamma, the guardian of Subbarao, was present at the time of execution of the will and, therefore, even if communication was 935 necessary for bringing about a divided status, it was made in the present case. The respondents raised a preliminary objection, that the certificate issued by the High Court did not contain any issue relating to adoption or partition. Hence, this Court should not allow the appellants to raise these questions. Secondly, it was contended that since the question, whether declaration in the will constituted a partition was raised in the High Court for the first time it should not be allowed to be raised. It war. further urged that on the issues of partition and adoption, there were concurrent findings of fact by the trial Court and the High Court and this Court should not interfere. Held that a successful party can question the maintain ability of the appeal on the ground that a certificate was wrongly issued by the High Court in contravention of article 133 of the Constitution, but if the certificate was good, the provisions of that Article did not confine the scope of the appeal to the certificate. This Court has the power to review the concurrent findings of fact arrived at by the lower courts in appropriate cases. But this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such as "shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave , injustice has been done ' . It is not possible nor advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. The present case is not one of those exceptional cases where a departure from the salutary practice adopted by this Court is justified. Case Law referred to. There is an essential distinction between burden or proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. The criticism levelled against the judgments of the lower courts, therefore, only pertain to the domain of appreciation of evidence. It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. In the present case, the appellant has failed to discharge that burden. 936 The burden is upon that person who sets up partition to prove that fact. The general principle is that a Hindu family is presumed to be joint unless the contrary is proved. The finding whether there was partition or not is a finding of fact. An interference in the concurrent findings of fact on this point by the courts below is not justified. Bhagavati Prasad Shah vs Dulbi Rameshwari Juar, , referred to. It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and un equivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severality. One cannot declare or manifest his mental state in a vaccum. To declare is to make known, to assert to others. Others must necessarily be those affected by the said declaration. Therefore, a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. A declaration to be effective should reach the person or persons affected by one process or other appropriate to a given situation. Adujallath Kathusumma vs Adujalath Beechu, I.L.R. 1950 Mad. 502, Suraj Narain vs Iqbal Narain, All.80 (P. C.), Ramalinga Annavi vs Narayanan Annavi, (1922) I. L. R. C.), Sayed Kasam vs Jorawar Singh, Cal. 84 (P. C.), Soundararayanl vs Arunachalam Chetty, Mad. 159 (P.C.), Bal Krishna vs Ram Krishna, C.), Babu Ramasaray Prasad Choudhary vs Radhika Devi, (1935) 43 L. W. 172 (P.C.), Kamepalli Avilamma vs Manmen Venketaswamy, , Rama Ayyar vs Meenakshi Ammal, (1930) 33 L. W. 384, Narayana Rao vs Purshothama Rao, I. L. R. and Indira vs Sivaprasad Rao, I. L. R. , discussed . Once the declaration is expressed and brought to the knowledge of the person affected, it relates back to the date of 937 declaration or the expression of intention to separate. As the doctrine of relation back involves retroactivity, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate, the rights accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved. Applying the above principles to the present case it must be held that on the death of Chimpirayya his interest devolved on Subbarao since it has not been established that Subbarao or his guardian had knowledge of the contents of Chimpirayya 's will before Chimpirayya died. </s>

<s>[INST] Summarize the judgementivil Appeal No. 1112 of 1980. From the Judgment and Order dated 13.5. 1980 of the Punjab and Haryana High Court in L.P.A. No. 521 of 1976. Ms. Kamini Jaiswal for the Appellants. V.M. Tarkunde, Harbans Singh and S.K. Bagga for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. Major General Gurbux Singh and his wife Gulwant Kaur were estranged and were living apart. Their son and daughter in law were living with Gulwant Kaur at Chandigarh. Gulwant Kaur was apparently complaining that Major General Gurbux Singh was not providing her with ade quate maintenance. Therefore, on July 28, 1958, he wrote her a letter, the relevant parts of which are as follows:. 579 "To, Shrimati Gulwant Kaur, You have been complaining that I have not paid even a penny for maintenance for the last seven/eight months. Here is an account from November 1957 to July, 1958, the details of which run as under: XXXXXXXXXXXXX XXXXXX XXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXX Now, so far as the question of future expenses is concerned, the maintenance shall be like this: FOR YOURSELF: 1. The land and house situated at Mangwal, which was constructed with the earning of my whole life, is entrusted to you, the half portion of which already stands in your name and in lieu of the produce thereof Madanjit shall provide to you, if not more, free lodging and boarding (expenses for maintenance). You stay in your own home. The land at Khurana is also entrusted to you. Its produce, lease money, etc. will fetch you a minimum of Rs. 1200 annually i.e. Rs. 100 per month for maintenance. I shall pay Rs. 100 every month for maintenance. xxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx XXXXXX The letter of Gurbux Singh suggested that he was making adequate provision for meeting the expenses of Gulwant Kaur even at the cost of great inconvenience and discomfort to himself and so. Gulwant Kaur was not entitled to complain. Gulwant Kaur apparently felt disgusted and frustrated at the tone of the letter and by her letter dated August 5, 2958, she queried if she was not to take maintenance from 580 Gurbux Singh from who else was she to get any maintenance. She said that she was not demanding anything and made no claim on him and that everything including the land and kothi belonged to him. The Khurana land also belonged to him. He might give her maintenance or not give her mainte nance as he chose. She said that she was nothing more than a heap of dust and her life was not worth living. In another portion of the letter, she mentioned that the Khurana land had not yet been leased and that there had been some delay. Other correspondence passed between the parties which is not important for the present case. Later, after a few years, Gurbux Singh conceived the idea of selling the Khurana land. The wife protested. Her letter dated January 15, 1966 was as follows: "Most respected husband, Sat Siri Akal; Previously in the summer, Col. Gurcharan Singh told us that you want to sell the land of Khurana. Now, on the day you visited Sangrur, it was learnt from you that you were interested in selling the land. I also told you that we depend upon only that. This land was given to me by you voluntarily. You had written letters to me and Madanjit on July 28, 1958 copy whereof is being sent to you by me. Therein, it was decided that I would continue enjoying the produce thereof till my life. Now, on hearing that you want to sell it, I was very much shocked . . . Now this letter is being written to you in order to impress upon you not to sell the land of Khurana because Madanjit and I depend upon it. You are very well aware that we do not possess anything else . . . . I fully hope that you will continue giving me this land and the maintenance grants to me as per your decision and will not think of selling this land. You are aware how we are hardly mai ntaining ourselves. I have made this prayer to you. I have full right over it. I hope that you will reply soon." Gulwant Kaur 's letter did not have any effect on Major General Gurbux Singh. Instead of replying her, he sold the Khurana land to the plaintiff respondents on June 18, 1968. The purchaser instituted the present suit out of which the appeal arises for an injunction restraining Gulwant Kaur and Madanjit Singh from interfering with their possession. The defendants contested the suit initially on the ground that the 581 land had been gifted to Gulwant Kaur orally by Major General Gurbux Singh. It was also claimed that Gulwant Kaur had acquired title by adverse possession. Later the written statement was amended and a further plea was taken that the land in dispute had been given to Gulwant Kaur in lieu of maintenance and that she had become the absolute owner of the land under sec. 14 of the Hindu Succession Act. All the courts found that there was no oral gift. A learned single Judge of the High Court who heard the second appeal held that the Khurana Land was given to Gulwant Kaur by her husband Major General Gurbux Singh in lieu of maintenance and that by virtue of sec. 14 of the Hindu Succession Act, she had become full owner of the property. On an appeal under the Letters Patent, a Division Bench of the High Court of Punjab & Haryana held that Gulwant Kaur was merely al lowed to receive the proceeds of the land in dispute in order to meet her day to day expenses and that she did not at all acquire any such right or interest in the property as could be termed 'limited ownership ' so as to permit her to take the benefit of the provisions of sec. 14(1) of the Hindu Succession Act. According to the learned Judges, "If the General had given over the land in dispute completely to the lady then the question of sending more money could not have arisen . . The reading of the letter leaves no manner of doubt that there was never any intention on the part of the General to give away the land of village Khurana to the lady and that instead of sending the total amount in cash, the General allowed her to utilise the amount of ckakota for meeting her day to day expenses. " The Division Bench reversed the judgment of the learned Single Judge. We are unable to agree with the conclusions of the Division Bench of the High Court. The question was not whether Major General Gurbux Singh intended to give away the Khurana land absolutely to Gulwant Kaur but whether the land was given to her in lieu of maintenance. A perusal of the letter dated July 28, 1958 from Major General Gurbux Singh to Gulwant Kaur and the letter dated January 15, 1966 clear ly establish that the Khurana land was given to Gulwant Kaur by Gurbux Singh in lieu of her maintenance. We are unable to understand the distinction made by the High Court between day today expenses and maintenance. It was argued by Shri Tarkunde, learned counsel for the respondents that even if the land was given to Gulwant Kaur in lieu of maintenance, it must be established that what was given to her was a limited estate in the sense of ownership without the right of alienation and that under sec. 14 of the Hindu Succession Act only such a limited estate would blossom into an abso lute estate. We are unable to agree with the submission of Shri Tarkunde. Shri 582 Tarkunde invited our attention to some decisions of this court as supporting the preposition stated by him. We will presently refer to all of them. 14 of the Hindu Succession Act is as follows: "(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation In this sub section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub section (1) shall apply to any property acquired by any of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. " It is obvious that sec. 14 is aimed at removing restric tions or limitations on the right of a female Hindu to enjoy, as a full owner, property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title. It makes no difference whether the property is acquired by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoev er. The explanation expressly refers to property acquired in lieu of maintenance and we do not see what further title the widow is required to establish before she can claim full ownership under sec. 14(1) in respect of property given to her and possessed by her in lieu of maintenance. The very right to receive maintenance is sufficient title to enable the ripening of possession into full ownership if she is in possession of the property in lieu of maintenance. Sub sec. 2 of sec. 14 is in the nature of an exception to sec. 583 14(1) and provides for a situation where property is ac quired by a female Hindu under a written instrument or a decree of court and not where such acquisition is traceable to any antecedents right. In Bramma vs Verrupanna, on the death of the last male holder, his two step mothers who had no vestige of title to the properties got possession of the properties and in answer to a suit by the rightful heirs, one of them claimed that she had become full owner of the property under sec. 14 of the Hindu Succession Act. The Supreme Court pointed out that the object of sec. 14 was to extinguish the estate called limited estate and to make a Hindu woman who would otherwise be a limited owner, a full owner of the property but it was not to confer a title on a female Hindu, who did not in fact possess any vestige of title. The case did not deal with the case of Hindu a woman who was given property in lieu of maintenance and in whom therefore a right or interest was created in the property. In Badri Pershad v, Smt, Kanso Devi; , The Court pointed out that a Hindu widow who after the death of her husband obtained properties under a partition award between herself and her sons, would be entitled to an abso lute estate under sec. 14(1) of the Act and that merely because the partition was by means of an arbitration award, sec. 14(2) would not be attracted. It was made clear that sec. 14(2) was in the nature of a proviso or an exception to sec. 14(1) and that it came into operation only if the Hindu woman required the property in any of the methods indicated therein for the first time without their being any pre existing right in her to the property. The principle of the case far from supporting Shri Tarkunde 's submission supports the submission of the appellants, In Naraini Devi vs Smt. Rano Devi and Ors. , ; the case of Badri Pershad vs Smt. Kanso Devi (supra) was distinguished on the ground that the widow had no pre exist ing right in the property which she obtained under an award and therefore, the case fell squarely within sec. 14(2) of the Hindu Succession Act. In Tulasamma vs Sesha Reddi, ; , it was clearly laid down that sec. 14(1) would be applicable to property given to a female Hindu in lieu of maintenance. It was also made clear that sec. 14(2) would apply only to cases where the acquisition of property was made by a Hindu female without any pre existing right. It was said. "It will, therefore, be seen that sub sec. (1) of sec. 584 14 is large in its amplitude and covers every kind of acqui sition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or subsequently acquired and possessed, she would become the full owner of the property. Now, sub section (2) of sec. 14 provides that nothing contained in sub sec. (1) shall apply to another property acquired by way of gift or under a will or any instrument or under a decree by order of a civil court or under an award when the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property. This provision is more in the nature of a proviso or an exception to sub sec. (1) and it was regarded as such by this court in Badri Pershad vs Kanso Devi (supra) . . . . . . . . . . . . . . . . It is, therefore, clear that under the Shastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged in the joint family property and even if no specific charge is created, this right would be enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim. The right of the widow to be maintained is of course not a jus in rem, since it does not give her any interest in the joint family property but it is certain ly jus ad rem, i.e., a right against the joint family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allot ment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property. It would not be a grant for the first time without any preex isting right, in the widow. The widow would be getting the property in virtue of her pre existing right, the instrument giving the property being merely a document effectuating such pre existing right and not making a grant of the property to her for the first time without any antecedent right 'or title. There is also another consideration which is very relevant to this issue and it is that, even if the instrument were silent as to the nature of the interest given 585 to the widow in the property and did not, in so many terms, prescribe that she would have a limited interest, she would have no more than a limited interest in the property under the Hindu Law 'as it stood prior to the enactment of the Act and hence a provision in the instrument prescribing that she would have only a limited interest in the property would be, to quote the words of this Court in Nirmal Chand 's case (supra), "merely recording the true legal position" and that would not attract the applicability of sub section (2) but would be governed by sub section (1) of section 14. The conclusion is, therefore, inescapable that where property is allotted to a widow under an instrument, decree, order or award prescribes a restricted estate for her in the property and sub section (2) of section 14 would have no application in such a case." In Bai Vajia vs Thakorbhai Chelabhai, ; , the court referred to the earlier judgment in Tulsamma 's case and said, "All the three Judges were thus unanimous in accepting the appeal on the ground that Tulsamma 's right to maintenance was a pre existing right, that it was in recognition of such a right that she obtained property under the compromise and that the compromise therefore did not fall within the ambit of sub section (2) of section 14 of the Act but would attract the provisions of sub section (1) thereof coupled with the Explanation thereto. With respect we find ourselves in complete agreement with the conclusions arrived at by Bhagwati and Fazal Ali, JJ., as also the reasons which weighed with them in coming to those conclusions. " Shri Tarkunde particulary relied on the following passage in Bai Vajia vs Thakorbhai 's case: "A plain reading of sub section(1) makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub section. If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression "and not as a limited owner" would not have been used at all and becomes redundant, which is against the well recognised 586 principle of interpretation of statutes that the Legislature does not employ meaningless language. " We do not understand the court as laying down that what was enlarged by sub sec. 1 of sec. 14 into a full estate was the Hindu woman 's estate known to Hindu law. When the court uses the word 'limited estate ', the words are used to connote a right in the property to which the possession of the female Hindu may be legitimately traced, but which is not a full right of ownership. If a female Hindu is put in possession of property pursuant to or in recognition of a right to maintenance, it cannot be denied that she has acquired a limited right or interest in the property and once that position is accepted, it follows that the right gets en larged to full ownership under sec. 14(1) of the Act. That seems to us to follow clearly from the language of sec. 14(1) of the Act. In Sellammal vs Nellammal, AIR 1977 SC 1265, the court held that property allotted to a Hindu widow in lieu of her maintenance in recognition of her pre existing right became her the asbolute property. In Santnanam vs Subramanya, AIR 1977 SC 2024, it was again held that property in the possession of a widow of the deceased coparcener which had been allotted to her for life in lieu of maintenance without power of alienation became her absolute property under section 14(1) of the Act with powers of alienation. In Krishna Das vs Venkayya, AIR 1978 SC 36 1, it was reiterated that where a widow was put in possession of joint family property in lieu of her right to maintenance, her right to the property became enlarged into an absolute estate under section 14(1). We, therefore, think that it is rather late in the day for Shri Tarkunde to contend that the Khurana land which was given to Gulwant Kaur in lieu of maintenance did not vest in her absolutely. We may finally refer to a recent decision of this Court in Jagannathan Pillai vs Kunjithapadam Pillai, ; where Thakkar and Ray, JJ. pointed out. " On an analysis of Section 14(1) of the Hindu Succession Act of 1955, it is evident that the legislature has abolished the concept of limited ownership in respect of a Hindu female and has enacted that any property possessed by her would thereafter be held by her as a full owner. Section 14(1) would come into operation if the property 587 (Sic) at the point of time when she has an occasion to claim or assert a title thereto. Or, in other words, at the point of time when her right to the said property is called into question. The legal effect of section 14(1) would be that after the coming into operation of the Act there would be no property in respect of which it could be contended by anyone that a Hindu female is only a limited owner and not a full owner. (We are for the moment not concerned with the fact that sub section(2) of section 14 which provides that Section 14(1) will not prevent creating a restricted estate in favour of a Hindu female either by gift or will or any instrument or decree of a civil court or award provided the very document creating title unto her confers a restricted estate on her). There is nothing in Section 14 which supports the proposition that a Hindu female should be in actual physical possession or in constructive possession of any property on the date of the coming into operation of the Act. The expression 'proposed ' has been used in the sense of having a right to the property or control over the property. The expression 'any property possessed by a Hindu female whether acquired before or after the commencement of the Act ' on an analysis yields to the following interpretation: (1) Any property possessed by a Hindu female acquired before the commencement of the Act will be held by her as a full owner thereof and not as a limited owner. (2) Any property possessed by a Hindu female acquired after the commencement of the Act will be held as a full owner thereof and not as a limited owner. " In view of the foregoing discussion, we allow the ap peal, set aside the judgment of the Division Bench of the High Court and restore that of the learned single Judge. N.P.V. Appeal allowed. [/INST]The appellant, a stage carriage operator, applied for renewal of a permit to ply his bus on a particular route but was granted only a temporary permit to do so. Thereafter he applied for issue of a regular permit, but once again, action was initiated for issue of a temporary permit only. Aggrieved by this approach of respondent No. 1, who was exercising the power of the Regional Transport authorities in the State, the appellant filed a writ petition seeking a direction that respondent No. 1 should consider and grant stage carriage permits to eligible persons under section 46 read with section 57(2) and grant renewal of such permits under section 58 of the . The High Court dismissed the petition at the admission stage. Respondent No. 1, in his counter affidavit, stated that the State Government had approved and published two Schemes under section 68(D) (2) of the Act for grant of stage carriage permits in favour of State Transport Undertakings and pri vate operators in two specified areas of the State which envisaged the complete take over of all the routes by the State Transport Undertakings in a phased manner within 3 years of the expiry of the Scheme. Since the State Transport Undertakings had not taken over the operations from the private operators in accordance with the two Schemes and the State Government had neither announced new schemes to re place them, nor declared its transport policy, Respondent No. 1 had considered it inadvisable to grant regular permits on long term basis and was issuing temporary permits only. Allowing the appeal by special leave, 662 HELD: The Transport Authorities which are statutory authorities have to discharge the duties imposed on them by the Act without waiting for any policy to be announced by the State Government. In doing so, primary consideration should be given to the public interest and also to the fundamental right of the citizens to carry on motor trans port business in accordance with law. This Court has ob served in several decisions that a Regional Transport Au thority would be failing in its duty if it grants repeatedly temporary permits to ply stage carriages on routes even though it is aware of the fact that there is a permanent need for granting regular permits in respect of the said routes. [666E; G] The entire policy followed by the State Government and the 1st Respondent is contrary to the general scheme of the Act. The schemes said to have been published under s.68 D do not specify any notified routes or any notified areas. It is not possible also to find out from the said schemes whether private operators have been excluded from any particular area or route. The schemes appear to be incomplete and, therefore, are ineffective. In the above situation the Regional Transport authorities whose functions have been delegated under the Act to the State Transport Commissioner, Punjab, cannot decline to grant stage carriage permits on applications properly made to them by intending operators only because the State Government has not announced its transport policy. The State Government cannot have any policy different from or independent of the provisions contained in Chapters IV and IV A of the Act. [666B E] In the instant case, it is not denied that there is a permanent need to grant permits to ply stage carriages on the several routes in the State of Punjab. The policy adopt ed by the 1st Respondent, namely, issuing of temporary permits from time to time, is highly irregular and is against the language and spirit of section 62 of the Act, which provides for the grant of temporary permits. [666F] </s>

<s>[INST] Summarize the judgementSpecial Leave Petition (Criminal) No. 408 of 1978. From the Judgment and order dated 22 11 1973 of the Bombay High Court in Criminal Appeal No. 747/ 72 with Criminal Review Application No. 685/72. In person for the Petitioner H. R. Khanna and M. N. Shroff for the Respondent. The order Gr the Court was delivered by KRISHNA IYER, J. A short paragraph might perhaps have been sufficient as obituary note on this Special Leave Petition but two basic issues one of prison justice and the other of sentencing caprice challenge our attention and deserve more elaboration. The facts, more flabbergasting than fantasy, present themselves in this Special Leave Petition. The appeal is against a conviction con currently rendered for a novel and daring set of crimes and follow up sentence of three year prison term. 'The offence is bizarre, the 196 offender perplexing, the sentence incredibly indiscreet at the Sessions Court stage but reasonably just at the High Court level and, to cap it all the delay in seeking leave from this Court is doubly shocking be cause it is inordinate and implicates the prison administration. A miniaturised version of the prosecution, which has culminated in the conviction, is all that is necessary in view of the ultimate order we propose to make. The petitioner, a Reader in the Saurashtra University, claims to be a Ph. D. Of Karnataka University, although there is a controversy as to this high academic qualification being a fabrication. In the present case we are not concerned with it directly. His moot academic proficiency apart, his abortive enterprise in an other field has landed him in the present criminal case. According to the prosecution, Dr. Hoskot, the petitioner, approached Dabhol kar, a block maker of Bombay, placed an order to prepare an embossing seal in the name of the Karnataka University, Dharwar, and forged a letter of authority purporting to have been signed by the Personal Assistant to the Vice Chancellor of the said University authorisig him to get the seals made. This Project Counterfeit Degrees, if we may so call it, had, perhaps, as its object the concoction of certificates of degrees by the Karnataka University. A degree hungry community like ours offers a happy hunting ground for professionals in the fine art of fabricating academic distinctions. If the expertise is perfect and its exercise undetected there is more money in it that in an honest doctorate. Anyway, the petitioner 's mis adventure was intercepted before it could fulfil itself because Dabholkar, the Bombay block maker, was too clever a customer. He gave pre emptive information to the police leading to the unearthing in time of the criminal scheme. The Sessions court tried the petitioner and held as proved beyond reasonable doubt that the petitioner was guilty of the grave offences charged, namely, under sections 417 read with 511 I.P.C. section 467 I.P.C., section 468 I.P.C. and sections 471 read with 467 I.P.C. After having rendered this draconian verdict against a person who was a Reader in a University and claimed to be M.Sc., Ph. D., around 30 years old and coming from a middle class family beyond economic compulsions to make a living by criminal means, the court swerved towards a soft sentence of simple imprisonment till the rising of the court and some fine. We are scandalized by this soft justice syndrome vis a vis white collar offenders. It stultifies social justice and camouflages needed severity with naive leniency. However, two appeals were carried to the High Court, one by the petitioner against his conviction and the other by The State against the naive sentence. The High Court dismissed the appeal against the conviction and, in allowance of the State 's 197 prayer for enhancement, imposed rigorous imprisonment for three years. The present petition for special leave to appeal is against this heavy sentence. The High Court 's judgment was pronounced in November 1973 but the Special Leave Petition has been made well over four years later. This hiatus may appear horrendous, all the more so because the petitioner has undergone his full term of imprisonment during this lengthy interregnum. The explanation offered by him for condonation of the delay, if true, discloses a disturbing episode of prison injustice. To start with the petitioner complained that the High Court granted a copy of the judgment of 1973 only in 1978, a further probe disclosed that a free copy had been sent promptly by the High Court, meant for thc applicant, to the Superintendent. Yeravada Central Prison, Pune. The petitioner denies having been served that copy and there is nothings on record which bears his signature in token of receipt of the High Court 's judgment. The Prison Superintendent on The other hand, would have us believe that a clerk of his office did deliver it to the prisoner but took it back for the purpose of enclosing L it with a mercy petition to the Governor for remission of sentence. This exonerative story may be imaginary or true but there is no writing to which the petitioner is a party to validate this plea. The fact remains that prisoners are situationally at the mercy of the prison 'brass ' but their right to appeal, which is part of the constitutional process to resist illegal deprivation of liberty, is in peril, if district jail officials ' ipse dixit that copies have been served is to pass muster without a title of prisoner 's acknowledgment. What is more, there is no statutory provision for free legal serives to a prisoner, in absence of which, a right of appeal for the legal illiterates is nugatory and therefore, a negation of that fair legal procedure which is implicit in article 21 of the Constitution, as made explicit by this Court in Maneka Gandhi(1). Having narrated the necessary facts which project the two profound but neglected problems of criminal jurisprudence we should have proceeded to discuss the merits of the evidence to decide whether leave should be granted to this petitioner. Indeed, although the court had assigned a lawyer to render free legal service to the petitioner and argue the case on his behalf, Dr. Hoskot decided to dispense with legal assistance and argued on his own. Of course, he has presented his case capably and with analytical precision in his endeavor to controvert the correctness of the findings of the courts below. We have listened to him at some length since this Court is the last in the (1) [1978 2 S.C.R. 621. 198 Indian pyramid of justice and a party in person elicits from us extra solicitude so that he may not suffer from a sense of handicap due to the absence of professional legal service. Nevertheless this Court has laid down certain fundamental principles governing its jurisdiction when special leave is sought. We cannot depart from these criteria 13 lest the endless chase for justice by every defeated litigant, civil and criminal, should flood this Court into dysfunction by a docket flood. It is dangerous to be too good. The recent pronouncement of a Bench of This Court, through the Learned Chief Justice, settles with clarity the decisive jurisdictional guideline. We quote: "In view of the concurrent findings of the Sessions Court and the High Court on the principal issues arising in the case we see no justification for granting special leave for a reconsideration of the question as regards the guilt of the petitioners. There is hardly a case, civil or criminal, which does not raise some question of law or the other. But no question of law of general public importance is involved in these petitions. It is time that it was realised that the jurisdiction of this Court to grant special leave to appeal can be invoked only in very exceptional circumstances. A question of law of general public importance or a decision which shocks the conscience of the court are some of the prime requisites for the grant of` special leave.(1) [Ujjagar Singh & Anr. vs State (Delhi Admn. ) ] Bearing this policy in mind, coupled with the efficacy of concurrent findings of Fact, we decline the request for leave even assuming there are some improbabilities in the prosecution case or errors in the con current holdings. In this view, we do not examine the merits further but insist on clarifying the two larger questions lying half hidden. No observations made by us should be understood as affecting the petitioner 's plea in any other criminal case he may be facing. The Sessions Court. having found a university professor guilty of organising (abortively though) a scheme of making bogus degrees suddenly slumped at the sentencing stage and, awarded a single day 's simple imprisonment. The reasons given arc symptomatic or chaotic sentencing and confusion about the correctional orientation of punishment. The court observed: "Accused is a young man. He has no previous conviction . He has a good family background. His father was a Deputy Collector and Magistrate in the Mysore State. He (1) order in SLP(Crl. No.1319ete. Of 1977dt.31 7 1978(unreported case) 199 struck mc as having intelligence above the average. He is not a person with a criminal tenancy. It is suggested by the learned P.P. that possibly accused did this in a fit of despartion as he was given notice of discharge by The Saurashtra University regarding his Readership in Mathematics. The modern emphasis on the corrective aspect of punishment cannot be ignored in this case which determining the adequacy of sentence, having regard to the nature of the offence and the background of the accused, I think that I should give one chance for the accused to improve. Hence I do not think it desirable to send him to jail as he might return as a confirmed criminal? which may he a liability to the society. If, on the other hand, mercy is shown to him at this stage of his first impact with justice, then it is probable that he may be reclaimed as a good citizen who call harness his talent for desirable activities. In view. of this T propose to pass the following order to which the learned Spl. Public prosecutor has no objection Substantive sentences of one day S.I. to run concurrently. (emphasis added) It is surprising that the Public Prosecutor has consented, on behalf of the State, to this unsocial softness to an anti social offender on conviction for grave charges. Does the Administration sternly view white collar offenders, or abet them by agreeing to award of token punishment, making elaborate trials mere tremendous trifles ? Social defence is the criminological foundation of punishment. The trial judge has confused between correctional approach to prison treatment and nominal punishment verging on decriminalisation of serious social offences. The first is basic, the second pathetic. That Court which ignores the grave injury to society implicit in economic crimes by the upper berth 'mafia ' ill serves social justice. Soft sentencing justice is gross injustice where many innocents are the potential victims. It is altogether a different thing to insist on therapeutic treatment, hospital setting and correctional goals inside the prison (even punctuated by parole, opportunities for welfare work, meditational normalisation and healthy self expression), so that the convict may be humanised and, on release? rehabilitated as a safe citizen. This Court has explained the correctional strategy of punishment in Giasuddin 's case(1). Coddling is not correctional, any more than torture is deter rent. While iatrogenic prison terms are bad because they dehumanize, (1) Mohammad Giasuddin vs State of Andhra Pradesh [1978]1 S.C.R.153. 200 it is functional failure and judicial pathology to hold out a benignly self efeating non sentence to deviants who endanger the morals and morale, the health and wealth of society. The 47th Report of the Law Commission of India noticed this weakness for economic offenders in the judicial personnel (of course, also in the administrative and legislative actors) and recommended: "18.2. Suggestions are often made that in order that the lower Magistracy may realise the seriousness of some of the social and economic offences, some method should be evolved of making the judiciary conscious of the grave damage caused to the country 's economy and health by such anti social crimes. The frequency and emphasis with which these suggestions have been made, and the support which they have received from very high officers has caused some anxiety to us. But we hope that the higher courts are fully alive to the harm, and we have no doubt that on appropriate occasions, such as, judicial conferences, the subject will receive attention. It is of utmost importance that all State instrumentalities involved in the investigation, prosecution and trial of these offences must be oriented to the philosophy which treats these economic Offence as a source or grave challenge to the material wealth of the nation. We hope we shall not be misunderstood if we suggest that even the holding of periodical meetings on sentencing may be beneficial, not in the context of economic offences only, but in the evolution of a rational and consistent policy of sentencing. Experience of England is, by now, familiar to those interested in the subject. A meeting of over 100 judges was held in the Royal Courts of Justice in London on January 7 8, 1965 to take part in exercises designed to increase the uniformity of sentencing. The Lord Chief Justice expressed the hope that the meeting would be a model for similar ones throughout the country. Conferences between judges, magistrates and penal administrators are, in England, organised with increasing frequency in many parts of the country with an annual conference in London for judges of the Supreme Courts. Besides holding councils on sentencing, it may be worthwhile to hold "workshops ' which would be less formal 201 but equally useful and likely to give concrete results. Such workshops could, for example, be attended by all Special Judges or other officers concerned with economic offences. National courses on sentencing strategies vis a vis social justice is a neglected cause and the Administration is, as yet, 'innocent ' of this imperative need. The second profound issue, thrown up accidentally by Dr. Hoskot 's sojourn in the Yeravada jail, disturbs us more because less capable men most prisoners in this country belong to the lower, illiterate bracket suffer silent deprivation of liberty caused by unreasonableness, arbitrariness and unfair procedures behind the 'stone walls ' and 'iron bars '. Freedom is what freedom does, and here we go straight to article 21 of the Constitution, where the guarantee of personal liberty is phrased with superb amplitude: article 21: Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law. (emphasis added). 'Procedure established by law ' are words of deep meaning for all lovers of liberty and judicial sentinels. Amplified, activist fashion, 'procedure ' means 'fair and reasonable procedure ' which comports with civilised norms like natural justice rooted firm in community consciousness, not primitive processual barbarity nor legislated normative mockery. In a land mark case, Maneka Gandhi(1), Bhagwati, J. (on this point the Court was unanimous) explained: "Does Article 21 merely require that there must be some semblance of procedure, howsoever arbitrary or fanciful. prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable ? Article 21 occurs in Part III of the Constitution which confers certain fundamental rights". "Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements ? obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly (1) [1978] 1 SCC 248 at 277, 281 and 284 14 520 SCI/78 202 stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law." "The principle of reasonableness, which legally as well. as philosophically, is an essential element of equality or nonarbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Article '21 would not be satisfied. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause can not but be condemned as unfair an(3 unjust and hence, there is in the present case clear infringement of the requirement of Article 21". One of us in his separate opinion there observed(u): "Procedure established by law", with its lethal potentiality, will reduce life and liberty to a precarious plaything it we do not ex necessitate import into those weighty words an adjectival rule of law, civilised in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head. Can the sacred essence of the human right to secure which the struggle for liberation, with 'do or die ' patriotism, was launched be sapped by formalistic and pharisaic prescriptions, regardless of essential standards ? An enacted apparition is a constitutional illusion. Processual justice is writ patently on Article 21. Procedure which deals with the modalities of regulating; restricting or even rejecting a fundamental right falling with in Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus understood, 'procedure ' must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right II can be canalised only by civilised process. What is fundamental is life and liberty. What is procedural is the manner (1) per Krishna lyer, J. at 337, 338. 203 of its exercise. This quality of fairness in the process is emphasised by the strong word 'established ' which means 'settled firmly ' not wantonly or whimsically. If it is rooted in the legal consciousness of the community it becomes 'established ' procedure. And 'law ' leaves little doubt that it is normae regarded as just since law is the means and justice is the end. Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is largely the history of procedural safeguards and right to a hearing has a human right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights; observance of fundamental rights is not regarded as good politics and their transgression as bad politics. To sum up, 'procedure ' in Article 21 means fair, not formal procedure. 'Law ' is reasonable law, not any enacted piece. '` one component of fair procedure is natural justice. Generally speaking and subject to just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty is basic to civilised jurisprudence. It is integral to fair procedure, natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on Lt collegiate basis. Ill short, a first appeal from the Sessions Court to the High Court, as provided in the Criminal Procedure Code, manifests this value upheld in article 21. What follows from the appellate imperative ? Every step that makes the right of appeal fruitful is obligatory and every action or in action which stultifies it is unfair and, ergo, unconstitutional ( In a sense, even article 19 may join hands with article 21, as the Menka Gandhi reasoning discloses). Pertinent to the point before us are two requirements: (1) service of a copy of the judgment to the prisoner in time to file all appeal and (ii) provision of free legal ser vices to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service. Both these are State responsibilities under article 21. Where the procedural law provides for further appeals what we have said regarding first appeals will similarly apply. In the present case there is something dubious about the delivery of the copy of the judgment by the Jailor to the prisoner. A simple proof of such delivery is the latter 's written acknowledgment. Any 204 jailor who, by indifference or vendetta, withholds the copy thwarts the court process and violates article 21, and may pave the way for holding the further imprisonment illegal. We hope that Jail Manuals will be updated to include the mandate, if there be any omission, and deviant jail officials punished. And courts, when prison sentence is imposed, will make available a copy of the judgment if he is straight marched into the prison. All the obligations we have specificated are necessarily implied in the right of appeal conferred by the Code read with the commitment to procedural fairness in article 21. Section 363 of the Cr. P. Code is all activist expression of this import of article 21 and is inviolable. We say no more because we have condoned the delay in the present case although it is pathetic that for want of a copy of judgment the leave is sought after the sentence has been served out. The other ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer 's services. Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer power or steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. And the American jurist, Prof. Vance of Yale, sounded sense for India too when he said(1): "What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is ? or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee ?" Gideon 's trumpet has been heard across the Atlantic. Black, J: there observed(2): "Not only those precedents but also reason and reflection require us to recognise that ill our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both State and Federal, quite (1) Justice and Reform, Earl Johnson Jr. p. 11. (2) Processual Justice to the People (May, 1973) p. 69. 205 properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public 's interest in an orderly society. Similarly, there. are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications cf the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him". The philosophy of legal aid as an inalienable element of fair procedure is evident from Mr. Justice Brennan 's(1) well known words: "Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy 's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness". More recently, the U.S. Supreme Court, in Raymond Hamlin has extended this processual facet of Poverty Jurisprudence. Douglas, J. there explicated(2): "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If (1) Legal aid and Legal Education p. 94. (2) United States Supreme Court Reports, Vol. 32 p. 530. 206 charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel it every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect. " The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot he realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. 372 US at 344. 9 L Ed 2d at 805; , Both Powell and Gideon involved felonies. But their rationale has relevance to any criminal trial, where an accused is deprived of his liberty. The court should consider the probable sentence that will follow if a conviction is obtained. The more serious the likely consequences, the greater is the probability that a lawyer should be appointed. . The court should consider the individual factors peculiar to each case. These, of course, would be the most difficult to anticipate. One relevant factor would be the competency of the individual defendant to present his own case. (Jon Richard Argersinger vs Raymond Hamlin ; 32L Ed 2d 530 at 535 36 and 554. (Emphasis added) The American Bar Association has upheld the fundamental premise that counsel should be provided in the criminal proceedings for offences punishable by loss of liberty, except those types of offences for which such punishment is not likely to be imposed. Thus in 207 America, strengthened by the Powell, Gideon and Hamlin cases, counsel for the accused in the more serious class of cases which threaten a person with imprisonment is regarded as an essential component of the administration of criminal justice and as part of procedural fair play. This is so without regard to the VIth amendment because lawyer participation is ordinarily an assurance that deprivation of liberty will not be in violation of procedure established by law. In short, it is the warp and woof of fair procedure in a sophisticated, legalistic system plus lay illiterate indigents aplenty. The Indian social legal milieu makes free legal service, at trial and higher levels. an imperative processual piece of criminal justice where deprivation of life or personal liberty hangs in the judicial balance. The widespread insistence on free legal assistance, where liberty is in jeopardy? is obvious from the Universal Declaration of Human Rights article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the Constitution or by law. article 14(3) of the International Covenant on Civil and Political Rights guarantees to everyone: "the right to be tried in, his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of his right; and to have legal assistance assigned to him in any case where the interests of justice shall require, and without payment by him in any such case if he does not have sufficient means to pay for it. " Many high level Indian Committees and Commissions have emphasised the free legal service desideratum as integral to processual fair play for pr sellers. For example, one such committee has stated(1): 93. Prisoners, men and women, regardless of means, are a peculiarly handicapped class. The morbid cell which con fines them walls them off from the world outside. Legal remedies, civil and criminal, are often beyond their physical and even financial reach unless legal aid is available within the prison as is provided in some States in India and in other countries. Without legal aid, petitions of appeal, applications for commutation or parole, bail motions and claims (1) Processual Justice to the people May, 1973, p. 34. 208 for administrative benefits would be well nigh impossible. There is a case for systematised and extensive assistance through legal aid lawyers to our prison population. The Central Government is evolving a comprehensive programme while many States already have fragmentary schemes. It needs no argument to drive home this point, now that Arts 39A, a fundamental constitutional directive, states: 39A. Equal Justice and free legal aid. The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. (emphasis added) . This article is an interpretative tool for article 21. Partial statutory implementation of the mandate is found in Sec. 304, Cr. P. Code, and in other situations courts cannot be inert in the face of article 21 and 39A. We may follow up the import of Maneka Gandhi and crystallise the conclusion. Maneka Gandhi 's case has laid down that personal liberty cannot be cut out or cut down without fair legal procedure. Enough has been set out to establish that a prisoner, deprived of his freedom by court sentence but entitled to appeal against such verdict, can claim, as part of his protection under article 21 and as implied in his statutory right to appeal, the necessary concomitant of right to counsel to prepare and argue his appeal. If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appeal, for want of legal assistance, there is implicit in the Court under article 142, read with articles 21, and 39A of the Constitution, power to assign counsel for such imprisoned individual for doing complete justice. This is a necessary incident of the right of appeal conferred by the Code and allowed by article 136 of the Constitution. The inference is inevitable that this is a State 's duty and not government 's charity. Equally affirmative is the implication that while legal services must be free to the beneficiary, the lawyer himself has to be reasonably remunerated for his services. Surely, the profession has a public commitment to the people but mere philanthropy of its members yields short mileage in the long run. Their services, 209 especially when they are on behalf of the State, must be paid for. Naturally, the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner. Of course, the court may judge the situation and consider from all angles whether it is necessary for the ends of justice to make available legal aid in the particular case. In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion resides in the court. In the present petition, the party, though proferred legal aid by the court, preferred to argue himself. Even so we uphold the right to counsel not in the permissive sense of article 22(1) and its wider amplitude but in the peremptory sense of article 21 confined to prison situations. While dismissing the Special Leave Petition we declare the legal position to put it beyond doubt: 1. Courts shall forthwith furnish a free transcript of the judgment when sentencing a person to prison term; 2. In the event of any such copy being sent to the jail authorities for delivery to the prisoner, by the appellate, revisional or other court, the official concerned shall, with quick despatch, get it delivered to the sentence and obtain written acknowledgment thereof from him. Where the prisoner seeks to file an appeal or revision, every facility for exercise of that right shall be made available by the Jail Administration. Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the Court shall, if the circumstances of the case, the gravity of the sentence, and the ends of justice so requires assign competent counsel of for the prisoner 's defence, provided the party does not object to that lawyer 5. The State which prosecuted the prisoner and set in motion the process which deprived him of his liberty shall pay to assigned counsel such sum s the court may equitably fix. These benign prescriptions operate by force of article 21 [strengthened by article 19(1)(d)] read with sub article (5) from the lowest to the highest court where deprivation of life and personal liberty is in substantial peril. S.R. Petition dismissed. [/INST]Under section 363(1) of the Criminal Procedure Code, 1973 "when the accused is sentenced to imprisonment, a copy or the judgment shall immediately after the pronouncement of the judgment, be given to him free of cost". Under section 363(2), "on the application of the accused, a certified copy of the judgment or when he so desires z. translation in his own language if practicable or in the language of the Court, shall be given to him without delay and such copy shall in, every case where the judgment is appealable by the accused be given free of cost: Provided that where the sentence of death is passed or confirmed by the High Court, a certified copy of the judgment shall be immediately given to the accused free of cost whether or not he applies for the same". section 387 of the Code, these provisions contained in Chapter XXVII are applicable so far as may be practicable to the judgment in appeal by a Court of Sessions or Chief Judicial Magistrate. section 388, however, requires that the order of the High Court on appeal should be certified to lower court and the court to which the High Court certifies its judgment shall make such orders as are comfortable to the judgment of the High Court. The petitioner was tried for the various offences under s.417 read with s.511 I.P.C`., section 467 I.P.C. section 468 I.P.C. and 471 read with section 467 I.P.C. by the Sessions Court and found guilty of the said offences but sentenced to a soft sentence of simple imprisonment till the rising of the Court and some fine. Two appeals were filed one by the petitioner and the other by the State. The High Court dismissed the petitioner 's appeal and accepting the State 's appeal enhanced the sentence to three years on 22 11 73. On 26 11 73, in conformity with the Judgement of the High Court, the Sessions Court passed necessary orders to the Central Prison Authority Bombay to take him into custody. He was later on transferred to Yeravada Jail, Pune. The petitioner under went the full period of im 193 prisonment and filed the special leave petition with a petition for condonation , of delay contending that on 10 12 73 he had applied under section 363(2) read with section 387 of the Code for a certified copy of the judgment dated 22 11 73 through the jail authorities and that though the copy was received by the jail authorities in March 1 1974 from the High Court it was never delivered to him, with the result he not only lost his right to appeal by special leave but was forced to come up with a condonation petition after obtaining another certified copy from the High Court. Condoning the delay and dismissing the petition the Court ^ HELD: l. Freedom is what freedom does. In article 21 of the Constitution the guarantee of the personal liberty is phrased with superb amplitude with the words, "No person shall be deprived of his life or personal liberty except according to procedure established by law". "Procedure established by law" are words of deep meaning for all lovers of liberty and judicial sentinels. Amplified activist fashion, 'procedure ' means 'fair and reasonable procedure ' which comports with civilised norms like natural justice rooted firm in community consciousness not primitive processual barbarity nor legislated normative mockery. [201C E] 2. One component of 'fair procedure ' is natural justice. Generally speaking and subject to just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty, is basic to civilized jurisprudence. It is integral to fair procedure, natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on a collegiate basis. In short, a first appeal from the Sessions Court to the High Court, as provided in the Criminal Procedure Code, manifests this value upheld in article 21. Every step that makes the right of appeal fruitful is obligatory and every action or inaction which stultifies it is unfair and, ergo, unconstitutional (In a sense, even article 19 may join hands with article 21, as the Maneka Gandhi reasoning discloses). Maneka Gandhi 's case has laid down that personal liberty cannot be cut out or down without fair legal procedure. [197F, 203D E. F 208E] Pertinent to the point in the case are two requirements: (i) service of a copy of the judgment to the prisoner in time to file an appeal an(l (ii) provision of free legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service. Both these are. State responsibilities under article 21 and apply where procedural law provides. for further appeals as well. [203F G] Maneka Gandhi vs Union of India , referred to. Judicial Justice with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our Judicature and Judicial Process, engineered by kindred legal technology, compel the colloboration of lawyer power for steering the wheels of equal justice under the law. [204C D] If a prisoner who is sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appear for want of legal assistance, there is implicit in the Court under article 142 194 read with Articles 21 and 39A of the Constitution power to assign counsel for such imprisoned individual "for doing complete justice". This is a necessary incident of the right of appeal conferred by the Code and allowed by article 136 of the Constitution. The accused has a right to counsel not in the permissive sense of article 22(1) and its wider amplitude but in the peremptory sense of article 21 confined to prison situations. [28F G, 209C] 4. Where the prisoner seeks to file an appeal or revision every facility for exercise of that right shall be made available by the jail administration. [209E] (a)Courts shall forthwith furnish free transcript copy OF the judgment when sentencing a person to prison term. In the event of any such copy being sent to the jail authorities for delivery to the prisoner by the appellate, unrevisional or other Court, the official concerned shall with quick despatch. get it delivered to the sentence and obtain written acknowledgement thereof from him. Any jailor who by indifference or vendetta, withholds the copy thwarts the Court process and violates article 21 and may pavc the way for holding the further imprisonment illegal. These obligations are necessary implied in the right of appeal conferred by the Code read with the commitment to procedural fairness in article 21. section 363 of the Cr. P.C. is an activist expression of this import of article 21 and is inviolable. [204A B & 209DE] John Richard Argersinger vs Raymond Hamlin, ; 530 at 535 36 and 554, quoted with approval. article 8 of the Universal Declaration on Human Rights and article 14(3) of the International Covenant on Civil and Political Rights referred to. (b) The State which prosecuted the prisoner and set in motion the process which deprived him of his liberty shall pay to the assigned counsel such sum as the Court may equitably fix. the Court may judge the situation and consider from all angles whether it is necessary in the ends of justice to make available legal aid in the particular. That discretion resides in the Court. [209A B, & G] (c) These benign prescriptions operate by force of article 21 "strengthened by article 19(1)(d) read with sub article (5) from the lowest to the highest Court where deprivation of life and personal liberty is in substantial peril. [209H] 5. Since the Supreme Court is the last in Indian pyramid of justice every party in person elicits from the Court extra solicitude so that he may not suffer from a sense of handicap due to the absence of professional legal service. The present petition, the party though proffessional legal aid by the Court preferred to argue himself [1971H. 198A, 209B] 6. (a) The Supreme Court has laid down certain fundamental principles its governing its jurisdiction when special leave is sought under article 136 of the Constitution. The Court cannot depart from this criteria lest the endless chase for justice by every defeated litigant, civil and criminal should flood it into dysfunction.[198A B] 195 Ujjagar Singh & Anr. vs State (Delhi Admn), order in S.L.P. (Crl.) No. A 1319 etc. Of 1977 dt. 31 7 78 (unreported case). (b) The soft justice syndrome vis a vis white collar offenders scandalizes the Court. It stultifies social justice and camouflages needed severity with naive leniency. [196G] (c) Social defence is the criminological foundation of punishment. In the instant case, the trial judge has confused between correctional approach to prison treatment and nominal punishment verging on decriminalisation of serious social offences. The first is basic and the second pathetic. That Court which ignores the grave injury to society implicit in economic crimes by the upperberth 'mafia ' ill serves social justice. Soft sentencing justice is gross injustice where many innocents are the potential victims. It is altogether a different thing to insist on therapeutic treatment, hospital setting and correctional goals inside the prison "even punctuated by parole, opportunities for welfare work meditational normalisation and healthy self expression so that the convict may be humanised and on release rehabilitated as a safe citizen. Coddling is not correctional any more than torture is deterrent. While iatrogenic prison terms are bad because they dehumanize, it is functional failure and judicial pathology to hold out a benignly self defeating non sentence to deviants who endanger the morals and morale, the health and wealth of society. [199E H, 200A] Mohammad Giasuddin vs State of Andhra Pradesh [1978] I SCR 153. applied. </s>

<s>[INST] Summarize the judgementiminal Appeal No. 80 of 1953. Appeal by Special Leave granted by the Supreme Court by its order dated the 9th February, 1953, from the Judgment and Order dated the 23rd September, 1952, of the High Court of Judicature at Bombay in Criminal Appeal No. 828 of 1952 arising out of the Judgment and Order dated the 27th March, 1952, of the Court of Stipendiary Magistrate, Ahmedabad, in Summary Case No. 3029 of 1954. Rajni Patel and M. section K. Sastri for the appellant. M. C. Setalvad, Attorney General of India, and (Porus A. Mehta and P. G.Gokhale, with him) for the respondent. October 29. The Judgment of the Court was delivered by BOSE, J. This case is unimportant in itself, for a small fine of Rs. 50 (Rs. 25 on each of two counts) has been imposed for a couple of breaches under section 52 (f) of the Bombay Shops and Establishments Act, 1948, read with rule 18(5) and (6) of the Rules framed under 888 the Act. But the question involved is of general importance in the State of Bombay and affects a large number of similar establishments, so in order to obtain a clarification of the law, this has been selected as a test case. The appellant is the owner of a small establishbment called the Honesty Engineering Works situate in Ahmedabad in the State of Bombay. He employs three workers. He does business in a very small way by going to certain local mills, collecting orders from them for spare parts, manufacturing the parts so ordered in his workshop, delivering them to the mills when ready and collecting the money therefor. No buying or selling is done on the premises. The question is whether a concern of this nature is a "shop" within the meaning of section 2(27) of the Act. The learned trying Magistrate held that it was not and so acquitted. The High Court, on an appeal against the acquittal, held it was and convicted. It is admitted that the appellant maintains no "leave registers" and gives his workers no "leave books" and it is admitted that the Government Inspector of Establishments discovered this on 12th January, 1951, when he inspected the appellant 's works. If his establishment is a "shop" within the meaning of section 2(27) he is guilty under the Act; if it is not, he is not guilty. "Shop" is defined as follows in section 2(27): " 'Shop ' means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers, and includes an office, a store room, godown, warehouse or work place, whether in the same premises or otherwise, mainly used in connection with such trade or business but does not include a factory, a commercial establishment, 'residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment". As we have said, it is admitted that no goods are sold on the premises and it is also admitted that no services are rendered to customers there, for the manufacture of spare parts for sale elsewhere cannot be regarded as "services rendered. " 889 The learned Attorney General contends that the definition should be read as follows: Shop includes a work place mainly used in connection with such trade or business. " He says that the word "such" in the phrase "such trade or business" relates back to the opening words of the definition which read " any premises where goods are sold. " He argues that the emphasis is on the words "goods are sold" and not on the word "premises" because a trade or business relates to the buying and selling of goods and is not confined to the premises where that occurs. He admits that the main portion of the definition which relates to "premises where goods are sold" cannot exclude the "Premises" element and that unless there are premises on which goods are sold, the main portion of the definition cannot apply, e.g., in the case of a street hawker or of a man who totes his goods from house to house and sells them at the door. But he contends that the main definition is extended by including in it matter which would not be there without the words of extension and in that portion the em phasis ceases to be on the "premises" and shifts to the nature of the business; provided there is a business of selling, any work place wherever situate "mainly used in connection with it" will fall within the definition. The other side relies on the ejusdem generis rule. The argument runs that the trade or business contemplated by the main portion of the definition is not any business of selling wherever and however conducted but only those trades where the selling is conducted on defined premises. The learned counsel contends that the very idea of a shop in that connotation betokens a room or a place or a building where goods are sold. The rest of the definition merely links on the main definition ancillary places, such as store rooms, godowns, work places, etc., which are mainly used in connection with the "business", and "business" means the kind of business defined in the earlier part of the definition, that is to say, not business in general, nor even the business of selling in general, but that portion of the business Of Selling which is confined to selling on,some defined premises. To illustrate this graphically, the 890 business of selling in general may be regarded as a big circle and the business of selling on defined premises as a small portion which is carved out of the larger whole. The second part of the definition is linked on to the carved out area and not to the circle as a whole. The word "such" confines what follows to what has gone before and what has gone before is not the trade of selling in general but only that part of the trade of selling which is carried on defined premises. Counsel argues that there is no justification for ignoring the limitation which the Legislature has placed on the main portion of the definition and holding that "such" relates to a much wider classification of "selling" which the main portion of the definition not only does not envisage but has deliberately excluded. We think that as a matter of plain construction this is logical and right. The learned Attorney General went on to contend that even if this is a possible view, his view is also tenable and therefore when we have two possible interpretations we must choose the one which best accords with the policy of the Act. Taking us through the Act he pointed out that this is a piece of social legislation designed partly to prevent sweated labour and the undesirable employment of women and young children and partly to safeguard the health and provide for the safety of workmen and employees. He con tended that this object would be partly frustrated if small establishments of this kind are placed outside the purview of the Act, for their number is very large and the persons employed in them are entitled to, and require, just as much protection as those more happily placed in larger concerns. We have considered this carefully and are of the opinion that the fear is groundless because there is express provision in the Act for such contingencies. Under section 5 the State Government can by mere notification in the Official Gazette extend the Act to any establishment or class of establishments or any person or class of persons to which or whom the Act or any of its provisions does not for the time being apply In our opinion, the Legislature did not intend to rope 891 in small establishments of this kind in the first place but reserved power to the State Government to do that when desirable by the very simple process of notification in the Official Gazette. In reaching this conclusion we are influenced by the policy of the Central Legislature on an allied topic. We do not intend to break the general rule that points to the undesirability of interpreting the provisions of one Act by those of another passed by a different Legislature, but as we have already decided the question of construction and interpretation and are now considering only the general policy of the State Legislature, we deem it right to view the matter in its larger aspect for the special reasons we shall now enumerate. Now the Central Act, the Factories Act of 1948, was passed on the 23rd of September, 1948. The Bombay Act, though entitled Act LXXIX of 1948, was not passed till the following year, namely, on 11th January, 1949. The Bombay Legislature had the Central Act in mind when it passed its own legislation because section 2(27) says that a "shop" shall not include a "factory" and section 2(9) defines a " factory " as any premises which is a factory within the meaning of section 2 of the Central Act or which is deemed to be a factory under section 85 of that Act. Under the Central Act (section 2(m) no establishment can be a factory unless it employs more than ten workmen or unless it is artificially converted into a " factory " within the meaning of this definition by a notification in the Official Gazette. Had it not been for the fact that the appellant employs less than ten workmen, his concern would have been classed as a factory under the Central Act and would then have been excluded from the definition of "shop" in the Bombay Act, for the appellant carries on a manufacturing process in his workshop with the aid of power: that is not disputed. The Central Legislature undoubtedly had the intention of excluding small concerns like this from the purview ,of the Central Act except where Government decided otherwise, and as there is this reference to the Central Act. on this very point in section.2(27) we think. , in view of the way that section 2(27) is worded, that ,Was also the intention of the Bombay Legislature, 892 Therefore, even on the assumption of the learned Attorney General that two interpretations of section 2(27) are possible, we prefer the one which, in our opinion, better accords with the logical construction of the words used. The learned High Court Judges were influenced by matters which we consider inconclusive. The appellant applied for registration under the Bombay Act and in the statement made under section 7 he called his establishment a "workshop" and described the nature of his business as a " factory ". The learned Judges considered that this imported an admission that his establishment was a " shop " because of the use of the word "shop" in "workshop". This might have raised an inference of fact against the appellant had nothing else been known but when the facts are fully set out as above and admitted, the appellant 's opinion about the legal effect of those facts is of no consequence in construing the section. No estopped arises. The appellant explained that the matter seemed doubtful, so, to be on the safe side and avoid incurring penalties for non registration should it turn out that his concern was hit by the Act, he applied for registration. It is to be observed that though he applied on 12th April, 1949, he was not registered till 4th May, 1950, and the certificate was not given to him till 8th January, 1951. The present prosecution was launched on 4th April, 1951. Government itself seems to have been in doubt. However, that is neither here nor there. What we think was wrong was placing of the burden of proof on the appellant, in a criminal case, because of a so called admission. The learned High Court Judges also advert to the fact that though the appellant 's concern was registered as a "shop" he made no protest and did not have recourse to section 7(3) of the Act. We do not think section 7(3) has any application. The appeal is allowed. The conviction and sentence are set aside and the judgment of the learned trying Magistrate acquitting the appellant is restored. The fines, if paid, will be refunded. [/INST]The appellant, the owner of a small establishment in Ahmedabad, employs three workers, does business in a very small way by going to certain local mills, collecting orders from them for spare parts, manufacturing the parts so ordered in his workshop, delivering them to the mills when ready and collecting the money therefor. No buying or selling is done on the premises. Hold, that a concern of this nature is not a shop within the meaning of section 2(27) of the Bombay Shops and Establishments Act, 1948, </s>

<s>[INST] Summarize the judgementivil Appeal No. 1102 of 1990. From the Judgment and Order dated 7.10.1988 of the Patna High Court in C.W.J.C. No. 2075 of 1988. A.K. Sen, K.D. prasad, J. Krishna and Mrs. Naresh Bakshi for the Appellant. S.K. Sinha and U.S. Prasad for the Respondents. The Judgment of the Court was delivered by: K. JAGANNATHA SHETTY, J. Special Leave is granted. This appeal from an order of the Patna High Court raises an important question as to the scope of section 33 B of the ( 'The Act '). The facts can be quite shortly stated: The appellant company is mainly engaged in construction of coal washeries on contract basis in different collieries and also doing allied and incidental work. Shivaji Prasad Sinha respondent No. 4 was a Senior Supervisor in the company 's establishment at Dhanbad. It is said that he was caught red handed when carrying 55 pieces of electromagnetic clutch plates kept concealed in the tool box of his scooter. The management held domestic enquiry into the incident and found him guilty of committing theft. He was accordingly dismissed from service. The dispute arising therefrom was referred under Section 10(1)(c) of the Act to Labour Court Dhanbad for adjudication. The Labour Court registered the case as refer ence case No. 4 of 1988 and issued notice to the parties. The parties entered appearance and filed their respective pleadings. When the matter was thus pending consideration the respondent seems to have written to the Government stating that it would be difficult for him to attend the Labour Court Dhanbad since he has been residing at Hajipur and it would be convenient for him if the case is trans ferred to Labour Court Patna. That application was made without intimation to the management. The Government howev er, has acceded to the request of the respondent and without opportunity to 294 the management transferred the case to Labour Court Patna. The Notification issued in that regard reads as follows: "NOTIFICATION Patna dated 8th August 1988 S.O. In exercise of powers conferred by sub section (1) of Section 33 B of the (14 of 1947) the Governor of Bihar after careful consideration of the application of the petitioner Shri Shivajee Prasad Sinha wherein he has prayed for the transfer of adjudication proceedings to Patna keeping in view to the difficulties expressed by him to attend the labour court, Dhanbad, regu larly due to his residence at Hajipur is pleased to withdraw the proceeding shown in Annexure 'A ' pending before Labour Court, Dhanbad and transfer the said proceeding to the Labour Court, Patna for speedy disposal from the stage at which the case is transferred. " The management moved the High Court by way of writ petition under Article 226 of the Constitution to have the Notification quashed. The High Court did not agree and summarily dismissed the writ petition with an observation: "Since no prejudice is being caused to the petitioner and no allegation of mala fide has been made against the presiding officer, Patna, we are not inclined to interfere with the order under challenge. This application is dismissed" The management in the appeal challenges the Government notification withdrawing and transferring the pending case from the Labour Court Dhanbad to Labour Court Patna. Since the impugned notification has been issued under Section 33 B of the Act, we may for immediate reference set out that Section. Omitting immaterial words, it is in these terms: "33.B. Power to transfer certain proceedings: (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, 295 Tribunal, or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special direc tions in the order of transfer, proceed either de novo or from the stage at which it was so transferred." The Section 33 B provides power to the appropriate Government to withdraw any proceedings pending before a labour court or Tribunal and transfer it for disposal to another labour court or Tribunal. It could be exercised suo motu or on representations of the parties. The expression 'may ' in sub section (1) of Section 33 B only makes it discretionary in so far as the appropriate Government taking a decision as to whether the power conferred thereunder has to be exercised or not. But when once a decision is taken to transfer a pending case then the requirement of giving reasons becomes mandatory. The authority is under legal obligation to record reasons in support of its decision. Reasons would be life of the decision. Failure to give reasons or giving reasons not germane would be fatal to the decision. In Associated Electrical Industries (P) Ltd. vs Its Workmen, [1961] II LLJ 122, 130 the Government withdrew and transferred a reference from one tribunal to another tribu nal merely stating that expediency required the withdrawal and transfer. The validity of the order of withdrawal and transfer was challenged inter alia on the ground that no reasons were stated for passing the order. Gajendragadkar, J., (as he then was) speaking for this Court observed that the requirement about the statement of reasons to be record ed must be complied with both in substance and in letter. To say that it is expedient to withdraw a case from one tribu nal and transfer it to another does not amount to giving reasons as required by the Section. In the instant case, the key question for consideration is whether the Government before accepting the representa tion of the workman and transferring the case from the labour court, Dhanbad to labour court, Patna should have given an opportunity to the management? The validity of the reasons given by the Government for transferring the case is another question to be considered. We will presently consider the question but before doing so a brief survey of some of the High Courts decisions bearing on this aspect may be usefully made. The Punjab High Court in Workman of Punjab 296 Worsted Spinning Mills Chheharta vs State of Punjab & Ors., [1965] II LLJ 2 18 has expressed the view that the power to transfer pending case under section 33 B is not a mere administrative but quasi judicial power and the appropriate Government cannot transfer a case on the basis of allega tions of one party without giving reasonable opportunity to other party to represent its point of view. This was also the view recognised by the Madras High Court in Management of Sri Rani Lakshmi Ginning and Weaving Mills Ltd. vs State of Madras, at 167. It was explained by the Madras High Court that the reasons given by a party who moved for transfer may not be valid or relevant or may not be true at all. Whether such reasons in fact exist and whether those reasons have any relevance for a transfer could be tested only if the other party has notice of the same. The High Courts of Calcutta, Andhra Pradesh and Allaha bad have however, taken contrary view. In Jay Engineering Works Ltd. vs Fourth Industrial Tribunal, Calcutta, [1977] (Lab) 1C 1739 at 1750 the Calcutta High Court has observed that it would be difficult to appreciate how under such circumstances, the Government could be called upon to give a notice to the parties before making an order under section 33 B. There could be no principle involved in giving such a notice. Nobody 's rights could possibly have been effected in taking such action and there is no question of observing the principles natural justice. The Andhra Pradesh High Court in Muthe Steels (India) Ltd. vs Labour Court, Hyderabad, [1979] (Lab) IC 325 at 329 has adopted a similar line of reasoning. It was emphasized that Section 33 B in terms does not con template any notice being given before a transfer is made of any proceeding from one Labour Court to another. There is no right to any party to have any question decided by a partic ular court. An arbitrary exercise of power of transfer is adequately safeguarded by the statutory requirement to record reasons for such transfer. The Allahabad High Court in Pioneer Ltd. vs Labour Court, Gorakhpur, [1983] (Lab) IC 335,338 has also expressed similar views. After the leading English case of Ridge vs Baldwin,I ; and an equally important case of this Court in A.K. Kraipak & Ors. vs Union of India, there was a turning point in the development of doctrine of natural justice as applicable to administrative bodies. Both the authorities laid down that for application of rules of natural justice the classification of functions as 'judi cial ' or 'administrative ' is not necessary. Lord Reid in Ridge case explained, 'that the duty to act judicially may arise from the very nature of the 297 function intended to be performed and it need not be shown to be super added '. Hegde, J., in Kraipak case said that under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. What is thus important in the modern administration is the fairness of procedure with elimination of element of arbitrariness. The State functionaries must act fairly and reasonably. That is, however, not the same thing to state that they must act judicially or quasijudicially. In Keshav Mills Co. Ltd. vs Union of India, ; Mukherjea, J., said (at 30): "The administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly." The procedural standards which are implied by the duty to act fairly has been explained by Lord Pearson in Pearl berg vs Varty, ,547: "A tribunal to whom judicial or quasi judicial functions are entrusted is held to be required to apply those principles (i.e. the rules of natural justice) in performing those functions unless there is a provision to the contrary. But where some person or body is entrusted by Parliament with administrative or executive functions there is no presump tion that compliance with the principles of natural justice is required although, as 'Parliament is not to be presumed to act unfairly ', the courts may be able in suitable cases (perhaps always) to imply an obligation to act with fair ness. " In Mohinder Singh Gill vs Chief Election Commissioner, ; at 434 Krishna Iyer, J. commented that natural justice though 298 varying is the soul of the rule as fair play in action. It extends to both the fields of judicial and administrative. The administrative power in a democratic set up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Good administration demands fair play in action and this simple desideratum is the fount of natural justice. Fairness is flexible and it is intended for improving the quality of government by injecting fairplay into its wheels. In Maneka Gandhi vs Union of India, [1978] 2 SCR 621 Bhagwati, J., expressed similar thought that audio alteram partem is a highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power. In Swadeshi Cotton Mills vs Union of India, Sarkaria, J., speaking for himself and Desai, J., said that irrespective of whether the power conferred on a statu tory body or tribunal is administrative or quasi judicial, a duty to act fairly, that is, in consonance with the funda mental principles of substantive justice is generally im plied. The presumption is that in a democratic polity wedded to the rule of law, the State or the Legislature does not intend that in the exercise of their statutory powers its functionaries should act unfairly or unjustly. In the same case, Chinnappa Reddy, J., added (at 2 12) that the princi ples of natural justice are now considered so fundamental as to be 'implicit in the concept of ordered liberty '. They are, therefore, implicit in every decision making function, call it judicial, quasi judicial or administrative. The learned Judge went on to state that where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice. The implication of natural justice being presumptive, it should be followed by the authorities unless it is excluded by express words of statute or by necessary implication. Citations could be multiplied since there is fairly abundant case law has come into existence: See, for example, Royappa vs State of Tamil Nadu, ; and Union of India vs Tulsi Ram, [1985] (Supp.) 2 SCR 13 1. More recently in a significant judgment in Charan Lal Sahu & Ors. vs Union of India, JT learned Chief Justice Sabyasachi Mukharji has referred to almost all the authori ties of this Court on this aspect and emphasized that the principles of natural justice are fundamental in the consti tutional set up of this country. No man or no man 's right should be affected without an 299 opportunity to ventilate his views. The justice is a psycho logical yearning, in which men seek acceptance of their view point by having an opportunity before the forum or the authority enjoined or obliged to take a decision affecting their right. It may be noted that the terms 'fairness of procedure ', 'fair play in action ', 'duty to act fairly ' are perhaps used as alternatives to "natural justice" without drawing any distinction. But Prof. Paul Jackson points out that "Such phrases may sometimes be used to refer not to the obligation to observe the principles of natural justice but, on the. contrary, to refer to a standard of behaviour which, in creasingly, the courts require to be followed even in cir cumstances where the duty to observe natural justice is inapplicable" (Natural Justice by Paul Jackson 2nd ed. p. 11). We share the view expressed by Professor Jackson. Fair ness, in our opinion, is a fundamental principle of good administration. It is a rule to ensure the vast power in the modern state is not abused but properly exercised. The State power is used for proper and not 'for improper purposes. The authority is not misguided by extraneous or irrelevant consideration. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. To use the time hallowed phrase "that justice should not only be done but be seen to be done" is the essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good adminis tration. It has no set form or procedure. It depends upon the facts of each case. As Lord Pearson said in Pearlberg vs Varty, (at 547), fairness does not necessarily require a plurality of hearings or representations and counter repre sentations. Indeed, it cannot have too much elaboration of procedure since wheels of administration must move quickly. A case with a not dissimilar problem was in Pannalal Binjraj and Anr. vs Union of India, There the Commissioner of Income Tax by the power vested under section 5(7A) of Income Tax Act, 1922, transferred an asses see 's case from one Income Tax Officer to another without hearing the assessee. Section 5(7A) of the Income Tax Act, 1922 provided: "The Commissioner of Income Tax may transfer any case from one Income Tax Officer subordinate to him to another, and the Central Board of Revenue may transfer any case from any one Income Tax Officer to another. Such 300 transfer may be made at any stage of the proceedings, and shall not render necessary the re issue of any notice al ready issued by the Income tax Officer from whom the case is transferred. " This Section did not provide for affording an opportuni ty to the assessee before transferring his case from one Income Tax Officer to another. The assessee challenged the constitutional validity of the Section. This Court upheld its validity on the ground that it is a provision for admin istrative convenience. N.H. Bhagwati, J., speaking for this Court, however remarked (at 589): " . . it would be prudent if the principles of natural justice are followed, where circumstances permit, before any order of transfer under section 5(7A) of the Act is made by the Commissioner of Income Tax or the Central Board of Revenue, as the case may be, and notice is given to the party affected and he is afforded a reasonable opportunity of representing his views on the question and the reasons of the order are reduced however briefly to writing . There is no presumption against the bona fide or the honesty of an assessee and normally the income tax authorities would not be justified in refusing to an assessee a reasonable oppor tunity of representing his views when any order to the prejudice of the normal procedure laid down in section 64(1) and (2) of the Act is sought to be made against him, be it a transfer from one Income Tax Officer within the State to an Income Tax Officer without it, except of course where the very object of the transfer would be frustrated if notice was given to the party affected. " Section 5(7A) was replaced by Section 127 of the Income Tax Act, 1961, which now makes it obligatory to record reasons in making the order of transfer after affording a reasonable opportunity of being heard to the assessee in the matter. In Ajantha Industries vs Central Board of Taxes, ; this Court considered the validity of a transfer order passed under Section 127 and it was held that merely recording of reasons on the file was not sufficient. It was essential to give reasons to the affected party. The order of transfer in that case was quashed for not communi cating reasons to the assessee. In the present case, the State has withdrawn the pending refe 301 rence from the Labour Court, Dhanbad and transferred it to another Labour Court at the distant District of Patna, on the representation of the workman, without getting it veri fied from the management. The State in fairness ought to have got it verified by giving an opportunity to the manage ment which is a party to the pending reference. Denial of that opportunity is a fatal flaw to the decision of the Government. The management need not establish particular prejudice for want of such opportunity. In S.L. Kapoor vs Jagrnohan, ; at 765 Chinnappa Reddy, J., after referring to the observation of Donaldson, J., in Altco Ltd. vs Suth erland, said that the concept that justice must not only be done but be seen to be done is basic to our system and it is concerned not with a case of actual injustice but with the appearance of injustice or possible injustice. It was emphasized that the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non observance of natural justice is itself prejudice to any man and proof of prejudice independ ently of proof of denial of natural justice is unnecessary. This takes us to the reasons given by the Government in support 'of the order of transfer. The Government has stated that the workman is having his residence at Hajipur and it would be therefore, inconvenient for him to attend the labour court regularly at Dhanbad. However, most of the factors do not point that way. The workman and his family members seem to be still residing in colony quarter at Dhanbad (Annexure C). His two sons are studying in De Nobili School at Mugma which is a nearby village. Reference may be made to a letter dated September 8, 1988 (Annexure D) of the Headmaster of the School in which the children of the work man are studying. Reference may also be made to a letter (Annexure E) from the Assistant Electrical Engineer in proof of the electricity supplied to the quarter occupied by the workman at Dhanbad. As against these material, the workman has not produced any proof in support of his allegation that he has been residing in a village home near Patna. In fact, in the counteraffidavit, he has not denied the documents annexed to the Special Leave Petition, and not seriously disputed the factum of his residence in the colony quarter at Dhanbad. Even the alleged recommendation of the Ward Commissioner referred in his counter affidavit has not been produced. We have, therefore, no hesitation in holding that the Government was misled by the representation of the workman. 302 In the result, we allow the appeal and quash the notifi cation dated August 8, 1988 by which the Government of Bihar transferred the case from the Labour Court, Dhanbad to the Labour Court, Patna. The Labour Court, Dhanbad shall now proceed to dispose of the matter as expeditiously as possi ble. In the 'circumstances of the case, we make no order as to costs. P.S. S Appeal allowed. [/INST]The respondent landlord filed an eviction petition against the appellants under section 13 of the East Punjab Urban Rent Restriction Act, 1949 on the grounds of arrears of rent, sub letting and making material alterations impair ing the utility of the building. On the first date of hear ing before the Rent Controller the appellants tendered the arrears of rent but the respondent landlord refused to accept it on the ground that the tender of rent was not valid since it included rent on behalf of a disputed tenant. Accepting the case of unauthorised subletting the Rent Controller allowed the eviction petition holding that the rent tendered was not in terms of the proviso to sub section (2)(i) of section 13 because only the undisputed tenant alone ought to have tendered the rent. The appellate authority dismissed the appeal on the preliminary point of validity of tendering of rent, holding that the rent deposited by the appellants was not valid, since one of the appellants was a stranger. The High Court confirmed the order of the appellate authority by dismissing the tenant 's revision in limine. In the appeal to this Court on the question, whether the word 'tenant ' included a person claiming to be a tenant, allowing the appeal, this Court, 279 HELD: 1. When a word has been defined in the interpreta tion clause, prima facie that definition governs wherever that word is used in the body of the Statute unless the context requires otherwise. The context is both internal and external. The internal context requires the interpreter to situate the disputed words within the section of which they are part and in relation to the rest of the Act. The exter nal context involves determining the meaning from ordinary linguistic usage (including any special technical meanings) from the purpose for which the provision was passed, and from the place of the provisions within the general scheme of statutory and common law rules and principles. [286E G] Cross: Statutory Interpretation, 2nd ed. p. 48, referred to. 1.1 Even where the definition is exhaustive in as much as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. [287B] Vanguard Fire and General Insurance Co. Ltd. vs M/s Fraser and Ross & Anr., , followed. The opening sentence in the definition of Section 2 of the East Punjab Urban Rent Restriction Act, 1949 states "unless there is anything repugnant in the subject or con text". In view of this qualifications, the Court has not only to look at the words but also to examine the context and collocation in the light of the object of the Act and the purpose for which a particular provision was made by the Legislature. [286G H] 3. The apparent purpose of the proviso to Section 13(2)(i) was to relieve the defaulting tenant from the extreme penalty of eviction. The provision is analogous to Section 114 of the which confers discretion on the Court to grant relief against forfeiture for non payment of rent. But the proviso goes a step further and leaves no such discretion to the controller or Court even if the tenant is a constant defaulter. If the arrears and other amounts specified are paid or tendered on the first date of hearing, the default as a ground for eviction disappears and the Controller is precluded from passing a decree for eviction. The governing principle of the proviso is that the tenant could pay and stay an action for eviction on default. At the same time, the landlord is ensured payment of arrears, interest and the costs that he has incurred without the necessity of going to civil court to 280 recover it. The proviso affords a real and sanctified pro tection to tenant against eviction on the ground of default. It should not be given a hypothetical or literal construc tion, but should be meaningfully construed. The legislative protection concerning the tenants should not be narrowly tailored. Indeed, it should be given wider meaning and broader concept. [287G H; 288A; D] Court should try to understand the spirit of the text and not be bound by letter. [288D] Mangat Rai vs Kidarnath, ; , followed. Hudson County Water Co. vs Me Carter, ; , referred to. Taking into account the intention of the legislature and the purposes for which the proviso was enacted, it is clear that the obligation to tender the rent under the proviso to Section 13(2)(i) on the first hearing date does not depend upon the existence of admitted jural relationship of landlord and tenant. When an action for eviction is brought by the landlord or the ground of default, the provi so stands attracted. The benefit of the proviso could be availed of by the tenant and also by those who claim to be the tenant. [289D E] Ram Gopal & Ors. vs Ram Prakash & Ors., [1963] RLR 1112 and Punjab Rajasthan Goods Carriers & Ors. vs Onkar Mal, [1977] RLR 1195, overruled. Law as creative response should be so interpreted to meet the different fact situations coming before the Court. For, Acts of Parliament were not drafted with divine pres cience and perfect clarity. It Is not possible for the legislators to foresee the manifold sets of facts and controversies which may arise while giving effect to a particular provision. Indeed, the legislators do not deal with the specific controversies. When conflicting interests arise or defect appears from the language of the Statute, the Court by consideration of the legislative intent must supplement the written word with 'force and life '. [287E F] Seaford Estate Ltd. vs Asher, , referred to. </s>

<s>[INST] Summarize the judgementAppeal No. 2128 of 1969. Appeal by special leave from the Award dated July 19, 1969 of the Ninth Industrial Tribunal, West Bengal, Calcutta in case No. VIII 396 of 1968. C. K. Daphtarv. Santosh Chatterjee and D. N. Mukherjee, for the appellant. section C. Gupta, Manju Gupta and section C. Agarwala, for the respondents. The Judgment of the Court was delivered by Bhargava, J. The appellant, Messrs Alloy Steel Project, is an undertaking owned, controlled and managed by a Government Company, viz., Messrs Hindustan Steel Ltd. Alloy Steel Project was started in the year 1961 and it went into production in the year 1964 65. No profit was earned at least right up to the year '1967 68. The workmen, however, claimed bonus at the minimum rate prescribed under the Payment of Bonus Act No. 21 of 1965 (hereinafter referred to as "the Act") in respect of the year 1965 631 1966 on ' the plea that this Alloy Steel Project was a / part of the Hindustan Steel Ltd. and could not be treated as a new establishment for purposes of section 16 of the Act. Hindustan Steel Ltd. was itself an establishment which had been in existence for a long period and had been even earning profits, so that exemption could not be granted to this Company in respect of payment of bonus under section 16 of the Act. This claim of the workmen was resisted, by the Company on the plea that Alloy Steel Project was a separate establishment in respect of which separate balance sheets and profit and loss accounts were maintained, so that no bonus was payable until either this Project itself earned profits, or from the sixth accounting year following the year 1964 65 when this Project went into production. The dispute between the work men and the Company. could not be resolved amicably and, consequently, a reference was made under the which came up before the Ninth Industrial Tribunal, West Bengal. The Tribunal held that Alloy Steel Project could not be treated as a separate establishment because, under the Act, a Company is itself an establishment, so that all units of a Company like Hindustan Steel Ltd. will constitute one establishment. Since this Project had not been earning any profits the Tribunal directed payment of bonus at the minimum rate of 4 per cent of wages prescribed by the Act. Aggrieved by this award of the Tribunal, the Company has come up in this appeal to this Court by special leave, though the name of the appellant is shown as Alloy Steel Project, because it was under this name that the reference was dealt with by the Tribunal. The main basis of the decision of the Tribunal is that 'the word establishment ' has been used in this Act to indicate a "Company" as called in common parlance. " It was on this view that the Tribunal further Proceeded to consider whether this Alloy Steel Project could be held to be an establishment separate from Hindustan Steel Ltd., or it had to be treated as a part of the parent establishment, viz., Hindustan Steel Ltd. In this approach, it is clear that the Tribunal committed an obvious error, as it ignored the indications which are manifest from the language used in the Act. In section 2, sub section (15) and (16), establishments have been divided into two classes and their meaning has been defined. In clause (16), "establishment in public sector ' is defined as meaning an establishment owned, controlled or managed by (a) a Government company as defined in section 617 of the ; (b) a corporation in which not less than forty per cent of its capital is held (whether singly or taken together) by 632 (i) the Government; or (ii) the Reserve Bank of India; or (iii) a corporation owned by the Government or ' the Reserve Bank of India. In clause (15) of section 2, "establishment in private sector" is defined to mean any establishment other than an establishment in public sector. Thus, between these two clauses, all establishments are covered. If an establishment is in public sector, it is covered by the definition in clause (16). If the establishment is not in public sector, it will be covered by the definition of "establishment in private sector" in clause (15). The significant words are those contained in clause (16) which show that an establishment in a public sector hag to be owned, controlled or managed by a Government company, or by a corporation of the nature described in that clause. Obviously, therefore, an establishment in a private sector would be one which is owned, controlled or managed by a person or body other than a Government company or a corpora tion of the nature described in clause (16). In this view, an establishment cannot be identified with a company. It would be absurd to say that a company is owned, controlled or managed by a Government company or a corporation. Obviously, the word "establishment" is intended to indicate something different from a company as defined in the . This is further clarify by the provisions of sub section (3) of section I which lays down the applicability of the Act. The Act has been made applicable to every factory and every other establishment in which twenty or more persons are employed on any day during an accounting year. Supposing a company has a factory in one premises and has another workshop entirely distinct and separate from that factory, in which the number of persons employed is less than 20. The Act itself will apply to the factory, but will not apply to the other establishment in which the number of employees is less than 20. This applicability of the Act will be independent of the other provisions of the Act. Learned counsel for the respondent workmen relied on section 3 of the Act to urge that even the establishment employing less than 20 persons will be a part of the parent establishment consisting of the factory. Section 3 is as follows : "3. Where an establishment consists of different departments or undertakings or has branches, whether situated in the same place or in different places, all such departments or undertakings or branches shall be treated as parts of the same establishment for the purpose of computation of bonus under this Act 633. Provided that where for any accounting year a separate balance sheet and profit and loss account are prepared and maintained in respect of any such department or undertaking or branch, then, such department or undertaking or branch shall be treated as a separate establishment for the purpose of computation of bonus under this Act for that year, unless such department or undertaking or branch was, immediately before the commencement of that accounting year treated as part of the establishment for the purpose of computation of bonus. " It is to be noted that the principal part of section 3 lays down that different departments or undertakings or branches of an establishment are to be treated as part of the same establishment only for the purpose of computation of bonus under the Act. They cannot be treated as part of one establishment for purposes of subsection (3) of section 1 of the Act. In fact, section 3 cannot be, resorted to at all when the Act itself is inapplicable in view of the provision contained in section 1, sub section It is, thus, quite clear that the Tribunal went entirely wrong in holding that simply because Alloy Steel Project is owned, controlled and managed by Hindustan Steel Ltd., it has to be treated as a part of Hindustan Steel Ltd. which is itself an establishment. Hindustan Steel Ltd. cannot be described as an establishment. The facts appearing on the record show that Hindustan Steel Ltd. has a number of. establishments. These include Alloy Steel Project besides the Head Office, Rourkela Steel Plant, Bhilai Steel Plant, Durgapur Steel Plant, Coal Washeries Project and Bokaro Steel Project. The Company, Hindustan Steel Ltd., cannot be equated with any one of these units. They are all separate undertakings, departments or branches owned, controlled and managed by one single Company and, consequently,. the point raised has to be decided on the basis whether, under the proviso to section 3 the Alloy Steel Project is to be treated as a separate establishment, or is to be treated as part of the main establishment owned by Hindustan Steel Ltd. Learned counsel for the respondent workmen, however, advanced a new argument which was not put forward before the Tribunal. His submission was that, if an establishment of a Company consists of a number of departments, undertakings or branches, the principal part of section 3 will apply and all such departments, undertakings or branches must be treated as parts of one single establishment for purposes of computation of bonus under the Act, but the proviso to section 3 will not apply in such a case. According to him, the proviso to section 3 will apply to establishments consisting of different departments, undertakings or branches which are owned, controlled or managed by persons other 634 than companies. This argument was based on the reasoning that, in order to calculate available surplus for distribution of bonus in the case of a company the Act lays down in section, 6 (d) read with the Third Schedule that the deductions to be made from net _profits will also include dividends payable on , preference share ,capital, and 8.5 per cent of its paid up equity share, capital as at the commencement of the accounting year. This provision cannot be given effect to in respect of separate units of a Company, .because the paid up capital or the preference share capital is not ,allocated between different units. In the case of the present Company, viz., Hindustan Steel Ltd., the entire paid up capital is shown in the accounts of the Head Office. The money needed for working of the various units, including the Alloy Steel Project, is shown as remittance received from the Head Office and not as. paid up capital of the Alloy Steel Project etc. The result is that, if Alloy :Steel Project or other units of the Hindustan Steel Ltd. are treated as separate establishments and available surplus is calculated separately for each unit, there will be no deduction @ 8.5 per cent ,of the paid up equity share capital as envisaged by section, 6(d) ,and the Third Schedule of the Act. We do not think that there is any force in this argument. First, it would be a strange method of construction of language to hold that the establishment referred to in the main part of section 3 will include all different departments, undertakings and "branches of a company, while it will not do so in the proviso to 'the same section. Such different meanings in the same section in respect of the same words or expression cannot be accepted. Secondly, it seems to us that no difficulty of the nature pointed out by learned counsel can arise in calculating available surplus. 'Wherever the Act lays down that certain deductions are to be made, it is obvious that those deductions will only be effective if, in fact, circumstances do exist justifying such deductions. In the 'Third Schedule itself, the first ' deduction envisaged is dividend payable on preference share capital. A number of companies do not have preference share capital. In such cases, clearly, no ,occasion would arise for making such a deduction. Very similar is the position with regard to certain other deductions which are permissible under the Second Schedule which principally lays down the method of calculation of available surplus. There is, therefore, no reason for interpreting the proviso to section 3 in the manner urged by learned counsel simply because, in the case of separate departments, undertakings or branches of the establishment of a company, it may not be possible to make a deduction @ 8.5 per cent of the paid up equity share capital. In the present case, there is very clear evidence that, though the Company, Hindustan Steel Ltd., has a number of undertakings, 635 Separate accounts are kept for each separate undertaking. The annual reports for three years were produced before the Tribunal. They clearly indicate that separate balance sheet was prepared for each unit and separate profit and loss account was worked out for each unit, except that, for the Head Office, though a separate balance sheet was prepared, the profit and loss was worked out on the basis of the consolidated accounts. The Tribunal, in support of its view that Alloy Steel Project is a part of the establishment constituted by the Company, Hindustan Steel Ltd., relied on the circumstance that a consolidated balance sheet is prepared for the Company in respect of all its units and after such consolidation, profit and loss is also worked out for all the establishments together so as to find out the actual profit and loss earned or incurred by the Company itself. From this, the tribunal sought to infer that there were no separate accounts in respect of each unit as are required to be maintained before they can be treated as separate establishments under the proviso to section 3. The Tribunal has obviously gone wrong in ignoring the fact that separate balance sheets and profit and loss accounts are in fact maintained for each separate unit and the consolidated accounts are prepared only for the purpose of complying with the requirements of the companies Act. The does lay down the requirement that a consolidated balance sheet and profit and loss account for all the units of the Company must be prepared and, for, that purpose, quarterly statements of accounts have to be sent by each unit to the Head Office. There is, however, no provision even in the containing a prohibition to maintenance of separate balance sheets and separate profit and loss statements for each unit for purposes of the Act. That accounts are separately maintained for each unit is not only established from the various annual reports filed before the Tribunal and the evidence of, the Company 's witness Umapada Chakraborty, but is also admitted by Suprakash Kanjilal, the only witness examined on behalf of the workmen. The latter also admitted that separate bonus calculation is made in respect of each unit and bonus was declared separately in each unit. No bonus was, however, declared in respect of the Alloy Steel Project. That declaration was not made because of the claim that Alloy Steel Project was exempt from payment of bonus under section 16 of the Act. Section 16 runs as follows: "16. (1) Where an establishment is newly set up, whether before or after the commencement of this Act, ,the employees of such establishment shall be entitled to be paid bonus under this Act only (a) from the accounting year in which the employer derives profit from such establishment; or 918Sup CI/71 636 (b) from the sixth accounting year following the accounting year in which the employer sells the goods produced or manufactured by him or renders services, as the case may be, from such establishment, whichever is earlier Provided that in the case of any such establishment the employees thereof shall not, save as otherwise provided in section 33, be entitled to be paid bonus under this Act in respect of any accounting year prior to the accounting year commencing on any day in the year 1964. Explanation I. For the purpose of this section, an establishment shall not be deemed to be newly set up merely by reason of a change in its location, management, name or ownership. Explanation II. For the purpose of clause (a), an employer shall not be deemed to have derived profit in any accounting year unless (a) he has made provision for that year 's depreciation to which he is entitled under the Income tax Act or, as the case may be, under the agricultural income tax law; and (b) the arrears of such depreciation and losses incurred by him in respect of the establishment for the previous accounting years have been fully set off against his profits. Explanation III. For the purpose of clause (b), sale of the goods produced or manufactured during the course of the trial run of any factory or of the prospecting stage of any mine or an oil field shall not be taken into consideration and where any question arises with regard to such production or manufacture, the decision of the appropriate Government, made after giving the parties a reasonable opportunity of representing the case, shall be final and shall not be called in question by any court or other authority. (2) The provisions of sub section (1) shall, so far as may be, apply to new departments or undertakings or branches set up by existing establishments 6 3 7 Provided that if an employer in relation to an existing establishment consisting of different departments or undertakings or branches (whether or not in the same industry) set up, at different periods has, before the 29th May, 1965, been paying bonus_to the employees of all such departments or undertakings or branches irrespective of the date on which such departments or undertakings or branches were set up, on the basis of the consolidated profits computed in respect of all such departments or undertakings or branches, then, such employer shall be liable to pay bonus in accordance with the provisions of this Act to the employees of all such departments or undertakings or branches (whether set up before or after that date) on the basis of consolidated profits computed as aforesaid. " Sub section (1) of section 16 grants exemption from payment of bonus to establishments newly set up for a period of six years, following the accounting year in which the goods produced or manufactured are sold for the first time and, in the alternative, up, to the year when the new establishment results in profit, whichever is earlier. If the Alloy Steel Project is treated as an establishment newly set up for purposes of section 16(1), the exemption claimed would be fully justified. Section 16(2) of the Act makes it clear that the provisions of sub section (1) are to apply even to new departments, undertakings or branches set up by existing establishments. Consequently, even if Alloy Steel Project is treated as a new undertaking set up by the existing establishments of Hindustan Steel Ltd., the exemption under section 16(1) would be avail able to it. The proviso to sub section (2) of section 16 also does not stand in the way of this claim, because there is no evidence at all that in any year, after Alloy Steel Project was set up bonus was paid to the employees of all the units on the basis of consolidated profits of all such units. The only exception has been in the case, of workmen of the Head Office where no separate profit and loss was worked out and the bonus was paid on the basis of the consolidated Profits of all the units belonging to Hindustan Steel Ltd. That, of course, was fully justified, because the Head Office was working for all the units, though as a separate unit. It was in the accounts of the Head Office that the entire paid up capital was credited and advances were made by the Head Office to the various units out of this capital or out of loans taken by the Head Office. In the case of the Head Office, therefore, the calculation of bonus on the basis of consolidated accounts was Justified; but that does not affect the principle to be applied to the separate units for which separate accounts, separate balance sheets and separate profit and loss statements are maintained. The proviso to sub 638 section (2) of section 16 only comes in the way it bonus is paid in any year to the employees of all the units on the basis of consolidated accounts. That has never been done in the case of the Hindustan Steel Ltd. Consequently, the Alloy Steel Project should have been treated as a separate establishment newly set up in the year 1961. It went into production in 1964 65 and did not, earn any profits at all till 1967 68. Therefore, no bonus was payable, to, the workmen of this undertaking for the year 1965 66 in view ,of the provisions of section 16(1) of the Act. The appeal is allowed, the order of the Tribunal is set aside, and the reference of the dispute is answered accordingly. In the circumstances of this case, we direct parties to bear their own ,costs of the appeal. G.C. Appeal allowed. [/INST]The Alloy Steel Project was an undertaking controlled and managed by a government company, namely, the Hindustan Steel Ltd. Alloy Steel was started in 1961 and went into production in 1964 65. No profit was earned up to 1967 68. The workmen claimed bonus at the minimum rate prescribed under the Payment of Bonus Act, 21 of 1965 in respect of the year 1965 66. On behalf of the Alloy Steel Project exemption from payment of bonus was claimed under section 16(1) of the Act on the ground that it was a new establishment and had not made profits. The Industrial Tribunal to which reference was made held that Alloy Steel could not be treated as a separate establishment because under the Act a company is itself an establishment so that all units of a company like Hindustan Steel Ltd. will constitute one establishment. However, since Alloy Steel had not been earning profits the Tribunal directed payment of bonus at the minimum rate of 4% of wages as prescribed by the Act. Aggrieved by this Award of the Tribunal the company appealed. HELD : The Tribunal erred in holding the word 'establishment ' to be synonymous with 'company '. In doing so it ignored the indications which are manifest from the language of the Act. The significant words are those contained in section 2(16) which show that an establishment in a public sector has to be owned, controlled or managed by a Government company or by a corporation of the nature described in the clause. Obviously therefore an 'establishment in private sector ' defined in section 2(15) to mean an establishment not in the public sector would be one which is owned, controlled or managed by a person or body other than a Government company or a corporation of the nature described in section 2(16). In this view an establishment cannot be identified with a company. It would be absurd to say that a company is owned, controlled or managed by a Government company or corporation Obviously, the word 'establishment ' is intended to indicate something different from a company as defined in the Companies Act. [631 F 632 D] (ii) Alloy Steel was a separate establishment by virtue of the proviso to section 3 of the Act because for each of the undertakings of Hindustan Steel Ltd. including Alloy Steel separate accounts were kept though for the purpose of compliance with the provisions of the Companies Act a consolidated balance sheet and profit and loss account were also prepared. There was no substance in the contention that the proviso to section 3 applies only to departments undertaking or branches controlled and managed by persons 630 other than companies. It would be a strange method of construction of language to hold that the establishment referred to in the main part of section 3 will include all different departments undertakings and branches of a company, while it will not do so in the proviso to the same section. There is no reason for interpreting the proviso to section 3 in this manner simply because in the case of separate departments, undertakings or branches of the establishment of a company, it may not be possible to make a deduction @ 8.5% of the paid up equity share capital. [635 C D; 633 G 634 H] (iii) Sub Section (1) of section 16 grants exemption from payment of bonus to establishments newly set up for a period of six years following ,the accounting year in which the goods produced or manufactured are sold for the first time and, in the alternative; upto the year when the new establishment results in profit, whichever is earlier. If the Alloy Steel Project was treated as an establishment newly set up for the purposes of section 16(1) the exemption claimed would be fully justified. Section 16(2) of the Act makes it clear that the provisions of sub section (1) are to apply even to new departments, undertakings, or branches set up by existing establishment. Consequently, even if Alloy Steel Project was treated as a new undertaking set up by the existing establishments of Hindustan Steel Ltd. the exemption under section 16(1) would be available to it. [637 D E] The proviso to Sub section (2) of section 16 only comes in the way if bonus is paid in any year to the employees of all the units on the basis of the consolidated accounts. That had never been done in the case of the Hindustan Steel Ltd. Consequently the Alloy Steel Project should have been treated as a separate establishment newly set up in the year 1961. , It went into production in 1964 65 and did not earn any profits at all till 1967 68. Therefore no bonus was payable to the workmen of this undertaking for the year 1965 66 in view of the provisions of section 16(1) of the Act. [638 A B] </s>

<s>[INST] Summarize the judgementminal Appeal No. 158 of 1956. Appeal by special leave from the judgment and order dated February 9, 1955, of the Calcutta High Court in Criminal Revision No. 282 of 1954, arising out of the judgment and order dated December 15, 1953, of the Second Municipal Magistrate, Calcutta, in Case No. 2629C of 1952. Feb. 8, 9, 10. section M. Bose, Advocate General for the State of West Bengal, A. C. Mitra, B. Sen, P. K. Bose and D. Gupta, for the appellant. Three questions arise for determination in this appeal: (1) whether State is a " person " within the meaning of section 386 of the Calcutta Municipal Act, 1923, (2) does the Constitution make any change in the principal of prerogative as part of the common law and (3) does article 372 of the Constitution keep the existing law intact, i. e., the law as declared in L. R. 73 1. A. 271 to the effect that the Crown is not bound by any statute unless it is expressly named or unless it can be held to be included by necessary implication. The word " person " has been held not to include the State. [A.I.R. 1954 Punj. 49 ; A.I.R. 57 Punj. 150; A.I.R. 53 Nag. 35 ; A.I.R. 1955 Nag. 177 ; I.L.R. 1953 1 Cal. 355; 62 C.W.N. 561. 33 Pat. 603 takes the contrary view.] If the word " person " included the State, article 300 of the Constitution would not be 161 necessary. How far the Crown is bound by a Statute not specifically naming it is laid down by the Privy Council in L.R. 73 I.A. 271. The decision of the Madras High Court taking a contrary view in I.L.R. was not cited before the Privy Council and is based upon the wrong assumption that common law changed with the change of legislation. The coming into force of the Constitution does not alter the law as laid down in L.R. 73 I.A. 271, I.L.R. and I.L.R. Article 372 of the Constitution includes the common law of the land and continues the same after the coming into force of the Constitution. [I.L.R. , I.L.R. This common law doctrine of the immunity of the Crown from Statutes not specifically naming it or referring to it by necessary implication is applicable in United States also. ; [52 L. Ed. 82; ; M. C. Setalvad, Attorney General for India, R. Ganapathy Iyer, R. H. Dhebar and T. M. Sen, for intervener No. 1 The question is whether the ancient rule of English common law declared to be applicable to India by the Privy Council is applicable to the construction of section 386 and it has to be examined as to what was the position before and after the Constitution. The High Court has decided that even before the Constitution the principle did not apply in spite of the Privy Council decision. The statute of 1923 must be con strued in accordance with the rule of interpretation prevailing in 1923. The makers of statute in 1923 did not intend to include State in the word " person ". The decision of the Privy Council was the binding law of the land unless there was legislation abrogating it or taking away its effect. Article 372 of the Constitution actually continues the law as laid down in L.R. 73 I.A. 271. This Article uses the expression " of the law in force in India " and not the words " existing law ". The same expression is used in section 292 of the Government of India Act and was interpreted in There is nothing in the Constitution which takes away the applicability of the rule. There is nothing in 21 162 that rule or in its nature repugnant to any provision of our Constitution. The rule is illustrated in ; and I C.L.R. 406. The rule is applicable to all forms of Governments and is based on the ground of public policy and not merely on the ground of prerogative. ; ; V. K. T. Chari, Advocate General for Madras and T. M. Sen, for intervener No. 4. Supported the Advocate General of Bengal. H. M. Seervai, Advocate General for Maharashtra and R. H. Dhebar, for intervener No. 5. The word " person " should be given its normal meaning. It does not include the Crown or the State. It would not include the State unless the statute would be meaningless without such inclusion. [L.R. 73 I.A. 271 ; I C.L.R. 406]. By " necessary implication " is meant that without the inclusion of the crown or the State the beneficent purpose of the statute would be wholly frustrated. The consensus of judicial opinion in Bombay has been the same as expressed in L.R. 73 I.A. 271. The rule has nothing to do with forms of Government.[93 L. Ed. 1406]. Indian decisions have uniformly taken this view. [5 Bom. H.C.R. 23 ; I.L.R. I Bom. 213; 36 Bom. L.R. 820; ; I.L.R. 2 All. 196]. I.L.R. accepts the rule but says that it does not apply to taxation. This was a wrongful curtailment of the prerogative. [Halsbury, Vol. 7, p. 469, para 98]. The judgments of the Privy Council delivered before January 26, 1950, are binding on all courts in India except the Supreme Court and they are binding till the Supreme Court takes a different view. [A.I.R. 1953 Cal. 524; A.I.R. 1955 Nag. 293; Government of India Act, section 212 provided that the judgments of the Federal Court and of the Privy Council shall be binding and shall be followed. section M. Sikri, Advocate General of Punjab and D. Gupta, for intervener No. 2. In pre Constitution statutes the word " person " could include " the Crown " but normally or ordinarily it would not so include. In I.L.R. 1958 Punj. 201 it was held that person " included the State of Punjab and the Union 163 of India. The rule laid down by the Privy Council is equally applicable to a Republic. ; ; 65 L. Ed. 315; ; and ; In A.I.R. 1956 Pat. 91 the State has been held to be a person. G. C. Mathur and C. P. Lal, for intervener No. 3. Adopted the arguments of the Advocate General of West Bengal and of the Attorney General of India. T. M. Sen, for intervener No. 6. Adopted the arguments of the Advocate General, Bengal and the Attorney General of India. N. C. Chatterjee, Sunil K. Basu and Sukumar Ghose, for respondents. Section 386 is directed towards maintenance of healthy condition etc. and is a wholesome provision for safeguarding the health of the people by providing for the control of storing houses and for the equality of the stores. The financial aspect, i. e., the recovery of license fees or fine is inconsequential. The prerogative of immunity from the statutes is only available when the State acts as State and not when it descends to trade and business. State is a person. Salmond, 11th Edition, p. 35, defines person as an entity capable of rights and duties. It has the power to hold and acquire property ; it can sue and be sued [Article 300 of the Constitution ; 60.Punj. L. R. 546.]. The correct rule of interpretation is that to exempt the State from the operation of a statute there must be express exclusion in favour of the State. [Friedman in The mere fact that the State cannot be sent to jail, does not indicate that it is not a person. A Corporation is a person. It is the stigma of the conviction that matters and it is not a question of hurting the State financially. ; [1950] S.C.R. 720. A Corporation can be prosecuted even where mens rea or state of mind is concerned. [Paton on Jurisprudence, 2nd Edition, p. 279]. Sanctions of criminal law should be available against the State for enforcing the law. [72 C. L. R. 409; Willis ' Constitution Law, p. 37]. State is a person. ; ; I. L. R. [1951] 1 All. 269]. When State engages in trade or commerce, it must be treated in the same 164 way as ordinary citizens. [A. 1. R. ; A. 1. R. 1956 Pat. 91.] State is not a person only for the purposes of article 14. The doctrine of immunity of States from the operation of its laws cannot be invoked in the present constitutional set up. The rule is based on royal prerogative. ; ; Willis p. 54]. The rule springs from the prerogative that the King can do no wrong. There is no one equivalent to the King now in India and therefore the prerogative does not survive. Law is a scheme of social control and the command of a superior. If the State claims immunity, it must be exempted by express legislation. Immunity cannot be implied. There has been progressive restriction on the immunity of the State. ; ; ; I.L. R. lays down the correct law. After the coming into force of the Constitution, the High Courts are not bound by the judgment of the Privy Council. All powers are derived from the Constitution and no immunities can be implied. Even if any immunity can be implied, then it cannot be invoked in respect of any trading or commercial activity. [5 Bom. H. C. R. Appendix 1 at p. 13; ; ; 90 L. Ed. 326]. The activity carried on by the State in storing food grains etc., and distributing them was trading activity and not exercise of Governmental function. The State is bound by necessary implication by the provisions of the Calcutta Municipal Act, 1.923. There are provisions in the Act which expressly exempt the State from their operation. See section 126. section M. Bose in reply. Common law can be amended by legislation. See section 4, Hindu Succession Act (30 of 1956) and Hindu Adoptions and Maintenance Act (78 of 1956). There is difference between Civil and Criminal liability. [72 C. L. R. 406, at 409, 424, 425]. The State is not carrying on any trading activity but is acting in the exercise of essential Governmental functions. ; Common law of England was introduced in the Presidency towns by statutes. See Ormond 's Rules of Court; 1. L. R. 61 Cal. 165 H. M. Seervai, (with the permission of the Court). It is a settled rule that if a word is not a term of art, you must take the ordinary meaning and not go to technical books. ; ; 90 L. Ed. 396; Halsbury Vol. 7, p. 221]. section M. Sikri, (with the permission of the Court) referred to Holdsworth History of the English Law, ' Vol. 10, p. 354. August 16. The Judgment of Sinha, C.J., Imam and Shah, JJ., was delivered by Sinha, C. J. Sarkar and Wanchoo, JJ., delivered separate judgments. SINHA C. J. This appeal by special leave is directed against the judgment and order of the High Court at Calcutta dated February 9, 1955, whereby that Court, in its revisional jurisdiction, set aside an order of acquittal dated December 15, 1953, passed by the Municipal Magistrate, Calcutta, in respect of the prosecution launched by the Corporation of Calcutta, respondent in this Court, against the appellant. The relevant facts are these. On July 1, 1952, the Corporation of Calcutta made an application for summons under section 488 of Bengal Act III of 1923, which was substituted by West Bengal Act XXXIII of 1951, against " the Director of Rationing and Distribution representing the Food Department of the Government of West Bengal ". The offence complained of was " for using or permitting to be used premises No. 259, Chitpur Road, Upper, for the purpose of storing rice etc., under the provisions of the Bengal Rationing Order, 1943, without a licence under section 386 for the year, 1951 52, corresponding section 437 of the C.M.C. Act, 1951 ". Section 386(1)(a) of the Calcutta Municipal Act is in these terms: ,, No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Corporation in this behalf, namely, any of the purposes specified in Schedule XIX 166 Item 8 of the said Schedule is " storing, packing, pressing, cleansing, preparing or manufacturing, by any process whatever, any of the following articles and the articles mentioned include rice, flour, etc. The facts alleged by the prosecution were not denied in behalf of the Department, which was in the position of the accused, but it was contended by way of a preliminary objection that the prosecution was not maintainable in law. After hearing arguments for the parties the learned trial Magistrate passed an order acquitting the accused relying upon a decision of the Calcutta High Court in the case of The Corporation of Calcutta vs Sub Postmaster, Dharamtala Post Office(1), holding that the provisions of section 386 of the Act, neither in terms nor by necessary implication, bound the Government. The respondent moved the Calcutta High Court in its revisional jurisdiction in Criminal Revision No. 282 of 1954, which was heard by a Division Bench consisting of J. P. Mitter and section N. Guha Ray, JJ. Cxuha Ray, J., who delivered the judgment of the Court, Mitter, J., concurring, held that the previous decision of the same High Court in The Corporation of Calcutta vs Sub Postmaster, Dharamtala Post Office (1) was clearly distinguishable. The distinction pointed out was that the previous decision of the Court had relied upon the decision of the Judicial Committee of the Privy Council in Province of Bombay vs Municipal Corporation of the Citu of Bombay (2), in a case arising before the coming into force of the Constitution. As the present case arose after the advent of the Constitu tion, the High Court did not feel bound by the aforesaid decision of the Privy Council and therefore examined the legal position afresh. On such an examination, the High Court came to the conclusion that the Indian Legislature in enacting laws acted on the assumption that the Government would be bound unless excluded either expressly or by necessary implication oftener than on the assumption that it would not be bound, unless the Legislature so provided expressly or by necessary implication. The High Court took the view that the decision of the Division (1) (2) (1946) L.R. 73 I.A. 271. 167 Bench of the Madras High Court in Bell vs The Municipal Commissioners for the City of Madras (1) was more in consonance with the law in India than the opposite view expressed in the Privy Council judgment aforesaid. They definitely decided that the law of India, even before the coming into effect of the Constitution, 7 and even at the time of the passing of the Government of India Act, 1935, was that the Government was bound by a Statute unless it was exempted either expressly or by necessary implication. In that view of the matter, the High Court further observed that the question whether the decision aforesaid of the Privy Council was still good law under article 372 of the Constitution did not arise and that, if it did, it was inclined to the view that the law declared by the Privy Council was not continued by any provision of law. In effect, the High Court took the view that the State was bound by the Statute unless it was excluded from its operation either expressly or by necessary implication. In that view of the matter, it held that section 386 of the Act bound the appellant, set aside the order of acquittal and sent the case back to the learned Magistrate for disposal according to law. The appellant made an application for special leave to appeal from the aforesaid judgment and order of the High Court, and obtained special leave in September 1955. It is thus clear that this case had remained pending in this Court for about five years. If this Court agreed with the view expressed by the High Court, the case would have to be tried on merits and the trial would begin more than eight years after the institution of the petition of complaint, but, as will presently appear, this prosecution was misconceived and therefore, in effect, no one has been the worse for the long pendency of the prosecution, which now must come to an end. The short question for determination in this appeal is whether any offence had been committed by the appellant, as alleged against him. If he was bound by the provisions of the Act to take out a licence on payment of the necessary fees, he must be held to have contravened the provisions of that Statute. It has (1) Mad. 457. 168 been contended by the learned Advocate General of Bengal, representing the appellant, that the decision of the Privy Council referred to above is still good law and that the contrary decision of the Division Bench of the Madras High Court (1) did not take the correct view of the legal position. The argument further is that the Privy Council decision was certainly binding on the Courts in India at the time it was rendered. That was the law of the land as declared by the highest judicial authority. Has that judicial determination been altered by the Constitution ? It has been argued that the law in India, even after the coming into effect of the Constitution, continues to be the same as the law in England in respect of the prerogatives of the Crown. The Act in question does not make any express provision binding the Government and there was nothing in the Act to show to the contrary by necessary implication. The Act could operate with reasonable efficacy without being held to be binding on the Government. It was further pointed out that the High Court had failed to take into con sideration the fact that that High Court itself had construed the Calcutta Municipal Act of 1923, which was replaced by the present Act of 1951, on the basis of the Privy Council decision not to have bound the Government. The Act of 1951 did not make any provision expressly abrogating that view. Hence, it is argued the High Court should have felt bound by the previous decision of that very Court given on the basis of the Privy Council decision; and had erred in taking the opposite view. The argument further was that the State is not a person within the meaning of the penal section with reference to which the prosecution had been launched. The common law could not have been overridden impliedly by a course of legislation. The common law applies to India even after the Constitution, not because there is the King or the Queen, but because it is the law in force. In other words, what was the prerogrative of the sovereign has now become the law of the land in respect of the sovereignty of the State. Thus the law of England, which (1) Mad, 457. 169 in its source was the prerogative of the Crown, was the common law of the land and was adopted by the Constitution by article 372, subject to the reservations contained therein. The Attorney General for India as also the Advocates General of Madras and Bombay supported the contention raised on behalf of the appellant. Mr. N. C. Chatterjee, who appeared on behalf of the respondent, contended that the State is a legal person as recognised in article 300 of the Constitution and was, therefore, capable of rights and obligations; that unless there is an express exclusion of the State by the Legislature, the Act would apply to all, including the State. He further contended that under the Constitution there is no King and, therefore, there cannot be any question of prerogative. Any exemption from the operation of the statute must be found in express immunity under the law and cannot be implied. He went to the length of contending that a State 's prerogative is inconsistent with the whole Constitution. Whatever may have been the legal position before the coming into effect of the Constitution, it has not countenanced the continuance of any such prerogative as is contended for on behalf of the appellant. Another line taken by Mr. Chatterjee is that when the State embarks upon a business, it does so not in its sovereign capacity, but as a legal person, subject to the same rights and liabilities as any other person. In effect, therefore, he contended that the State is a person within the meaning of section 386 of the Act; that the doctrine of immunity of States from the operation of its laws cannot be invoked after the advent of the Constitution, and, alternatively, that even if the immunity is available to the State as a sovereign power, it is not available to the State when it embarked upon a commercial undertaking and that. in any case, the State was bound by the law by applying the rule of necessary implication from the provisions of the Act. In this case it is manifest that it is the Government of West Bengal which is sought to be prosecuted 22 170 through one of its officers. The prosecution is not against a named person, but against the Director of a named Department of the Government. The person who was the Director of the Department at the relevant date, that is to say, in the year 1951 52 may not be the same person who answered that description on the date the prosecution was launched. In essence, therefore, it is the Government of West Bengal which has to answer the charge levelled by the respondent, the Corporation of Calcutta. Whether a prosecution against such an indeterminate person would or would not lie is a matter which has not been raised and, therefore, need not be discussed. The question most canvassed before us in whether the penal section invoked in this case applies to Government. It has been contended, and in our opinion rightly, that the provisions of the penal section neither by express terms nor by necessary implication are meant to be applied to Government. The decision of the Judicial Committee 'of the Privy Council(1), if it is good law even now, completely covers this case, but the decision of the High Court, now under examination, has taken the view that the earlier decision of the Division Bench of the Madras High Court (2 ) has laid down the correct law, and not the Privy Council decision. We have, therefore, to decide which of the two decisions has taken the correct view of the legal position as it obtained on the day the prosecution was launched. It is well established that the common law of England is that the King 's prerogative is illustrated by the rule that the Sovereign is not necessarily bound by a statutory law which binds the subject. This is further enforced by the rule that the King is not bound by a statute unless he is expressly named or unless he is bound by necessary implication or unless the statute, being for the public good, it would be absurd to exclude the King from it. Blackstone (Commentaries, Vol. I, 261 262) accurately summed up the legal position as follows: "The king is not bound by any act of Parliament, unless he be named therein by special and (1) (1946) L.R. 73 I.A. 271. (2) Mad. 457. 171 particular words. The most general words that can be devised. affect not him in the least, if they may tend to restrain or diminish any of his rights or interests. For it would be of most mischievous consequence to the public, if the strength of the executive power were liable to be curtailed without its own express consent by constructions and implications of the subject. Yet, when an act of Parliament is expressly made for the preservation of public rights and the suppression of public wrongs, and does not interfere with the established rights of the crown, it is said to be binding as well upon the king as upon the subject; and, likewise, the king may take the benefit of any particular act, though he be not specialty named." (Quoted at p. 355 of Holdsworth, A History of English Law, Vol. The King 's prerogative is thus created and limited by common law and the sovereign can claim no prerogative, except such as the law allows. (See Halsbury 's Laws of England, Vol. 7, Third Edition, para. 464, at p. 22 1). The prerogative of the Crown in respect of property is thus stated in the same volume of Halsbury 's Laws of England, para. 980, at p. 465: "The Crown not being bound by any statute whereby any prerogative right, title, or interest belonging to it may be divested or abridged, unless expressly named or bound by clear implication, property owned, and occupied by the Crown is exempt from taxation unless rendered liable either by express words or necessary implication. Moreover, an express exemption of particular classes of Crown property in a statute is not in itself sufficient to raise the implication that such property only is exempt, and that other property not falling within the exception is bound, such clauses being inserted merely ex majore cautela. " That was the law applicable to India also, as authoritatively laid down by the Privy Council in the case referred to above. That decision was rightly followed by the Calcutta High Court as stated above. That would be the legal position until the advent of the Constitution. 172 The question naturally arises: whether the Constitution has made any change in that position ? There are no words in the Constitution which can be cited in support of the proposition that the position has changed after the republican form of Government has been adumbrated by our Constitution. It was argued on behalf of the respondent that the existence of such a prerogative is negatived by the very form of our new set up, that is to say, it was contended that the republican form of Government is wholly inconsistent with the existence of such a prerogative. In our opinion, there is no warrant for such a contention. The immunity of Government from the operation of certain statutes, and particularly statutes creating offences, is based upon the fundamental concept that the Government or its officers cannot be a party to committing a crime analogous to the I prerogative of perfection ' that the King can do no wrong. Whatever may have been the historical reason of the rule, it has been adopted in our country on grounds of public policy as a rule of interpretation of statutes. That this rule is not peculiar or confined to a monarchical form of Government is illustrated by the decision of the Supreme Court of U. section A. in the case of United States of America vs United Mine Workers of America (1), where it is laid down that restrictions on the issue of injunctions in labour disputes contained in certain statutes do not apply to the United States Government as an employer or to relations between the Government and its employees and that statutes in general terms imposing certain restrictions or divesting certain privileges will not be applied to the sovereign without express words to that effect. Similarly, in the case of United States of America vs Reginald P. Wittek (2), the question arose whether the District of Columbia Emergency Rent Act applied to government owned defence housing or to government owned low rent housing in the District, and it was ruled by the Supreme Court, reversing the decision of the Municipal Court of Appeals, that the statute in question did not apply to the United States Government (1) ; (2) ; 173 which was not a " landlord " within the meaning of the Act. The decision was based on the rule that a general statute imposing restrictions does not impose them upon the Government itself without a clear expression or implication to that effect. Another illustration of the rule is to be found in the case of Jess Larson vs Domestic and Foreign Commerce Corporation (1). In that case a suit by a citizen, in effect, against the Government (War Assets Administration) for an injunction was dismissed by the District Court on the ground that the Court did not have jurisdiction, because the suit was one against the United States. The Supreme Court, by majority, held that the suit as against the United States must fail on the ground that according to the laws of the country the sovereign enjoyed an immunity which was not enjoyed by the citizens. The case of Roberts vs Ahern (2) is another illustration of the same rule. It was held by the High Court of Australia in that case that the Executive Government of the Commonwealth or of a State is not bound by a statute unless the intention that it shall be so bound is apparent. On the other hand, article 372 of the Constitution has specifically provided that subject to the other provisions of the Constitution all the laws in force in this country immediately before the commencement of the Constitution shall continue in force until altered or repealed or amended by a competent Legislature or by other competent authority. The expression " law in force " has been used in a very comprehensive sense as would appear from the provisions of sub cls. (a) and (b) of cl. (3)of article 13 of the Constitution. If we compare the provisions of article 366(10) which defines " existing law " which has reference to law made by a legislative agency in contradistinction to " laws in force " which includes not only statutory law, but also custom or usage having the force of law, it must be interpreted as including the common law of England which was adopted as the law of this country before the Constitution came into force. It is thus clear that far from (1) ; : ; (2) (1904) I. C.L.R. 406. 174 the Constitution making any change in the legal position, it has clearly indicated that the laws in force continue to have validity, even in the new set up, except in so far as they come in conflict with the express provisions of the Constitution. No such provision has been brought to our notice. That being so, we are definitely of the opinion that the rule of interpretation of statutes that the State is not bound by a statute, unless it is so provided in express terms or by necessary implication, is still good law. But Mr. Chatterjee further contended, alternatively, that even if it were held that the Government as a sovereign power may have the benefit of the immunity claimed, it is not entitled to that immunity when it embarks upon a business and, in that capacity, becomes subject to the penal provisions of the statute equally with other citizens. This question was not raised below and has not been gone into by the High Court, nor is it clear on the record, as it stands, that the Food Department of the Government of West Bengal, which undertook rationing and distribution of food on a rational basis had embarked upon any trade or business. In the absence of any indication to the contrary, apparently this Department of the Government was discharging the elementary duty of a sovereign to ensure proper and equitable distribution of available food stuffs with a view to maintaining peace and good Government. Therefore, the alternative argument suggested by Mr. Chatterjee has no foundation in fact. It only remains to consider the other alternative argument that even if the State has not been bound by the penal section in the statute in question in express terms, it must be deemed to be bound by it by necessary implication. But no specific provisions of the statute in question have been brought to our notice which could lend any support to this alternative argument. It has not been shown to us that if the section which was sought to be applied against the Government were held not expressly to apply to Government, the law will lose any of its efficacy, or that its working will be hampered in any way. It must, therefore, be 175 held that there is no substance in this contention either. The appeal is accordingly allowed, the judgment under appeal set aside and the acquittal of the appellant confirmed. SARKAR J. The appellant is an officer of the Government of West Bengal. He was prosecuted before a Municipal Magistrate of Calcutta for storing rice in certain premises without obtaining a licence for that purpose from the respondent, the Corporation of Calcutta, as required by section 386 of the Calcutta Municipal Act, 1923. That was an Act passed by the legislature of the former Province of Bengal and may, for the present purpose, be taken to have been passed by the legislature of the State of West Bengal. In storing the rice the appellant had acted in his official capacity and for carrying out the West Bengal Government 's rationing scheme. The Magistrate acquitted the appellant holding that the Act did not bind the Government as it was neither expressly nor by necessary implication made bound, and so, the appellant who had been prosecuted as representing the Government would not be liable for non compliance with its provisions. On revision the High Court at Calcutta held that the English rule that a statute did not bind the Crown unless expressly or by necessary implication made bound, did not apply to Indian statutes and so the Government would be liable for breach of the provisions of the Calcutta Municipal Act. In this view of the matter, the High Court set aside the order of acquittal and sent the case back to the Magistrate for disposal on the merits. This appeal has been taken from the order of the High Court with special leave granted by this Court. The main question is whether the English rule that The Crown is not bound by the provisions of any statute unless it is directly or by necessary implication referred to " applies to India. It is said that the rule is based on the English law of Crown prerogatives and has no application to India since the promulgation of our Constitution as we have now a republican 176 form of government where no question of royal prerogatives can arise. It is pointed out that the prosecution was in this case started since the Constitution came into force and whatever may have been the position earlier, the Government can no longer take shelter under the English rule. I think the rule applies to India even after the Constitution. It seems to me that the rule as applied in modern times, is really a rule of construction of statutes and is not dependent on royal prerogatives. This is the view that appears to have been taken in all recent authorities, to some of which I wish now to refer. In Craies on Statutes (5th Ed.) it is stated at p. 392 that " The rule is analogous, if not equivalent, to the rule already stated that the common law is not presumed to be altered by statute ". The rule, therefore, is based on the presumed intention of the legislature and is, hence, a rule of construction of statutes. Then I find it stated in Attorney General vs Donaldson (1) that " It is a well established rule, generally speaking, in the construction of Acts of Parliament, that the King is not included unless there are words to that effect; for it is inferred prima facie that the law made by the Crown with the assent of the Lords and Commons, is made for subjects and not for the Crown". Again in Comber V. Justices of Berks (2) it was said in reference to this rule, " In Rex vs Cook, 3 T.R. 519, the general principle as to the construction of statutes imposing charges as containing an exemption of the Crown was laid down ". In the Australian case of Roberts vs Ahern (3), it was said, "This rule has commonly been based on the Royal prerogative. Perhaps, however, having regard to modern developments of constitutional law, a more satisfactory basis is to be found in the words of Alderson, B." The words referred to are what I have already set out from Attorney General vs Donaldson (1). In America too this rule has been applied as a rule (1) ; , 123; ; (2) ; , 65. (3) (1904) 1.C.L.R. 406, 417. 177 of construction though there is no King there but the government is of the republican form. So in United States vs United Mine Workers of America (1) it was observed, " There is an old and well known rule that statutes which in general terms divest pre existing rights or privileges will not be applied to the sovereign without express words to that effect. It has been stated, in cases in which there were extraneous and affirmative reasons for believing that the sovereign should also be deemed subject to a restrictive statute, that this rule was a rule of construction only ". Again in reference to the same rule it was said in United States V. State of California (2). " The presumption is an aid to consistent construction of statutes of the enacting sovereign when their purpose is in doubt ". In our country also in Bell vs The Municipal Commissioners for the City of Madras(3), a case on which much reliance has been placed by the respondent, it was said after referring to various English cases dealing with the rule, " This emphatic statement of the rule being founded upon general principles of construction is undoubtedly applicable as much to Indian enactments as to Colonial or Imperial Statutes ". It was also said at the same page, " The rule of construc tion above adverted to cannot itself be regarded as a prerogative of the Crown ". Then I find that in England the rule protects from the operation of a statute not only what may strictly be called Crown prerogatives, or whatever is nowadays left of them, but all the Crown 's rights, title and interest: see Halsbury 's Laws of England (3rd Ed.) Vol. VII, p. 465. In volume XXXI of the Second Edition of the same treatise it is stated with reference to the rule that, " The Crown for this purpose means not only the King personally, but also the officers of State and servants of the Crown when acting within the scope of their authority on behalf of the Crown in the discharge of executive duties ". In Mersey Docka (1) ; , 272 ; ; , 902. (2) ; , 186; ; , 574. (3) Mad. 457, 485. 23 178 vs Cameron(1), Lord Cranworth after referring to the various instances where the rule had been applied to exempt buildings occupied for purposes of the government from rates and other impositions, said, " These decisions however have all gone on the ground more or less sound, that these might all be treated as buildings occupied by the servants of the Crown, and for the Crown, extending in some instances the shield of the Crown to what might more fitly be described as the public government of the country ". Again in Coomber vs Justices of Berks (2), Lord Blackburn after referring to certain observations of Lord Westbury in the Mersey Docks case(1) said, "He there says that the public purposes to make an exemption " must be such as are required and created by the government of the country, and are, therefore, to be deemed part of the use and service of the Crown;" and in Greig vs University of Edinburgh (3) be more clearly shews what was his view by using this language, "property occupied by the servants of the Crown, and (according to the theory of the Constitution) property occupied for the purposes of the administration of the government of the country, become exempt from liability to the poor rate ". " In this case it was held that lands with buildings constructed thereon and used by county justices, and for police purposes were not liable to income tax. In Cooper vs Hawkins (4) it was held that an engine driver employed by the Crown who drove a steam locomotive on Crown service at a speed exceeding the limit specified by regulations made under a statute, was not liable as in the absence of express words, the statute did not bind the Crown. Lastly, I refer to Roberts vs Ahern (5) where a person acting under the orders of the Government of the Commonwealth of Australia had been prosecuted for having carted away nightsoil from a Post Office without a licence from, and without having given any security to, the local authority as was required by an enactment of the State of Victoria. It was held that he was not liable to prosecution because, (1) ; , 508; ; (2) ; , 65. (3) (1868) L.R.I H.L, (SC.)348. (4) (5) ; , 417. 179 " The modern sense of the rule, at any rate, is that the Executive Government of the State is not bound by Statutes unless that intention is apparent: " p. 418. It was also said that " The doctrine is well settled in this sense in the United States of America: " (p. 418). It is unnecessary to multiply instances where acts of the executive government have received the protection of the rule. All this would seem to put it beyond doubt, that whatever its origin, the rule has long been regarded only as a rule of construction. It has been widely used to exempt executive governments from the operation of statutes quite apart from protecting prerogative rights of the British Crown strictly so called. It has been held reasonable to presume that the legislature intended that executive governments are not to be bound by statutes unless made bound expressly or by necessary implication. It would be equally reason. able to do so in our country even under the present set up for the presumption has all along been raised in the past and especially as the applicability of the rule can no longer be made to depend on the prevailing form of government. In countries with a republican form of government, the Sovereign would be the State, and its acts, which can only be the acts of its executive limb would be, under the rule exempt from the operation of its statutes. Whether the royal prerogative as understood in England, exists in the present day India is not a question that can arise in applying what is a pure rule of construction of statutes. Further it is quite clear that the rule has been applied by courts in India in the construction of Indian statutes all along at any rate upto the promulgation of our Constitution, except in the solitary instance of Bell 's case (1) earlier referred to. It would therefore be right to hold that the legislatures in our country have proceeded on the basis that the rule would govern the enactments passed by them. That being so and remembering that the rule is one of construction, there would be no reason to deny its application to Indian statutes after the Constitution. The Dew republican (1) Mad. 180 form of government adopted by us would not warrant a departure from the long established rule of construction. It was then said that the course of legislation in India would indicate that it was not intended even before the Constitution that the rule would apply to Indian statutes. This contention was based on Bell 's case(1). That case seems to me to have proceeded on a basis not very sound. On an examination of certain Indian statutes it was said, " It is noteworthy that as a general rule government is specially excluded whenever the Legislature considered that certain provisions of an enactment should not bind the Government ". From this the conclusion was drawn that "According to the uniform course of Indian legislation, statutes imposing duties or taxes bind Government as much as its subjects, unless the very nature of the duty or tax is such as to be inapplicable to the Government ". It seems to me that this decision overlooks the uniform course of decisions of Indian Courts applying the rule in the construction of Indian statutes. The legislature must be deemed to have known of these decisions and if they wanted to depart from their effect they would have passed a statute bringing about the desired result. No such statute was ever passed. It is wellknown that in these circumstances the legislatures must be taken to have proceeded on the basis that the decisions were correct and the rule was to be applied to the statutes passed by them. That being so, an examination of the course of Indian legislation would be irrelevant. The cases where the Government was expressly excluded must be taken to be instances of exemptions ex majori cautila: see Hornsey Urban Council vs Hennel(2). Furthermore, it seems to me that a comparison of the number of statutes where the Government had been specially excluded from their operation with the number where the statutes are silent on the subject, is, at best, a very unsafe guide for deciding whether the rule should be applied to Indian enactments. I therefore dissent from the view expressed in Bell 's case(1), that the rule does not apply in India. (1) Mad. (2) 181 Now it seems to me that in storing the rice in the present case, the Government of West Bengal was performing one of its governmental functions. It was storing rice for purposes of rationing, that is, making food stuff available to citizens in time of scarcity. That such activity is a part of the government 's duty is unquestionable. The act for which the appellant was prosecuted was, therefore, an act of the West Bengal Government done in discharge of its ordinary duties as the government and the rule would prevent the Act from applying to make the Government liable for a breach of it. Then it is said that the Act binds the Government by necessary implication. In support of this argument we were referred to certain provisions of the Act which expressly exempted the Government from their operation. I am unable to agree that this raises the necessary implication. It has been said in Halsbury 's Laws of England (2nd Ed.) Vol. XXXI at p. 523 that " A general prerogative of the Crown is not deemed to have been abandoned by implication by reason of the specific exemption in a statute of any class of the servants of the Crown from acting in compliance with the prerogative, nor by reason of the :fact that the Crown has foregone or curtailed its rights in some other direction in another part of the statute " ; see also Hornsey Urban Council case (1) earlier referred to. These observations would show the unsoundness of the contention raised by the respondent. Lastly, it is said that the purpose of the Act was to prevent adulteration of food stuffs and this object would be wholly defeated unless the Government was bound by it. It is not in dispute that if this were so, that might be a ground for holding that the Act bound the Government. On this aspect of the case reference may be made to Province of Bombay vs Municipal Corporation of Bombay (2). I am however unable to hold that the purpose of the Act would be wholly or at all defeated if the Government were not bound by it. It seems to me that section 386 of the Act, the breach of which is complained in this case, is concerned with (1) (2) (1946) L.R. 73 I.A. 271. 182 the use of premises and not with the prevention of adulteration of food stuffs as was contended for the respondent. The provisions with regard to adulteration of food stuffs are contained in a, different part of the statute. There is nothing to show that the purpose of the Act would wholly be defeated if some premises were used contrary to the terms of the Act. I would for these reasons hold that the Act did not bind the Government and the prosecution of the appellant for an act done in the discharge of his duties as an officer of the Government cannot be maintained. This appeal should therefore be allowed and the order of the High Court set aside and that of the Magistrate restored. WANCHOO J. I have had the advantage of reading the judgments prepared by my Lord the Chief Justice and my brother Sarkar J. I agree with their conclusion but my reasons are different. I therefore proceed to state my reasons for coming to the same conclusion. The facts have already been stated in the judgment of my Lord the Chief Justice and I will not therefore repeat them. Suffice it to say that the Corporation of Calcutta initiated this prosecution, in substance, of the State of West Bengal through its Director of Rationing and Distribution under section 488 of the Calcutta Municipal Act, No. 111 of 1923, (now equivalent to section 537 of the Calcutta Municipal Act, No. XXXIII of 1951), for using or permitting to be used certain premises for the purpose of storing rice, etc. under the provisions of the Bengal Rationing Order, 1943, without a licence under section 386 of Act III of 1923, (now equivalent to section 437 of Act XXXIII of 1951). The State did not deny the facts; but it was contended on its behalf that the prosecution was not maintainable in law. The Magistrate held that the provisions of section 386 of the 1923 Act did not apply to the State either expressly or by necessary implication and therefore passed an order of acquittal. The Corporation took the matter in revision to the High Court, which distinguished an earlier decision of the High Court relied upon by the Magistrate and held that after India became a 183 democratic republic from January 26, 1950, the High Court was not bound by the decision of the Privy Council in a similar matter reported in Province of Bombay vs Municipal Corporation of the City of Bombay (1) and that the rule of construction based on the royal prerogative that the Crown was not bound by a statute unless it was expressly named therein or at any rate could be held to be bound by necessary implication, did not apply in India after January 26, 1950, and that the true rule of construction on which the Indian legislatures acted was that the State would be bound unless excluded either expressly or by necessary implication. The High Court therefore held that section 488 of the Act of 1923 read with section 386 bound the State and set aside the order of acquittal and sent the case back to the Magistrate for disposal according to law. The most important question thus is, whether the rule of construction derived from the royal prerogative in England can still be said to apply in India after January 26, 1950. If this rule of construction based on the royal prerogative does not apply, it would necessarily follow that the ordinary rule of construction, namely, that the State would also be bound by the law like anybody else unless it is expressly excluded or excluded by necessary implication, would apply. Now the rule of construction based on the royal prerogative is a survival from the medieval theory of divine right of Kings and the conception that the sovereign was absolutely perfect, with the result that the common law of England evolved the maxim that " the King can do no wrong ". In course of time however the royal prerogative in England was held to have been created and limited by the common law and the sovereign could claim no prerogatives, except such as the law allowed nor such as were contrary to Magna Carta or any other statute or to the liberties of the subject. The courts also had jurisdiction to inquire into the existence or extent of any alleged prerogative. If any prerogative was disputed, they had to decide the question whether or not it existed in the same way as they decided any other question of law. If a, (1) (1946) L.R. 73 I.A. 271. 184 prerogative was clearly established, they could take the same judicial notice of it as they took of any other rule of law: (see Halsbury 's Laws of England, 3rd Edition, Vol. 7, p. 221, para. 464). The question of royal prerogative was also considered in Attorney General vs De Keyser 's Royal Hotel Limited(1). It was held there in that even where there was prerogative it could be curtailed by a statute, if the statute dealt with something which before it could be affected by the prerogative, inasmuch as the Crown was a party to every Act of Parliament. Thus in modern times, the royal prerogative is the residue of discretionary or arbitrary authority which at any time is legally left in the hands of the Crown and is recognised under the common law of England. Two things are clear from this modern conception of royal prerogative, namely, (1) that there must be a Crown or King to whom the royal prerogative attaches, and (2) that the prerogative must be part of the common law of England. Both these conditions existed when the Privy Council decision in Province of Bombay vs Municipal Corporation of the City of Bombay (2) was given in October 1946; the King was still there and the Privy Council held that the English common law rule of construction applied to Indian legislation as much as to English statutes. I may mention however that in England also the rule has come in for criticism by writers of books on law. Glanville L. Williams in his treatise on " Crown Proceedings " says at p. 53: " The rule originated in the Middle Ages, when it perhaps had some justification. Its survival, however, is due to little but the Vis inertiae." Again at 54, the author says " With the great extension in the activities of the State and the number of servants employed by it, and with the modern idea, expressed in the Crown Proceedings Act," (compare in this connection article 300 of our Constitution), " that the State should be accountable in wide measure to the law, the presumption should be that a statute binds the Crown rather than it does not." (1) ; (2) (1946) L.R. 73 I.A. 271. 185 After January 26, 1950, when our country became a democratic republic and the King ceased to exist, it is rather otiose to talk of the royal prerogative. It is also well to remember that the English common law as such never applied to India, except in the territories covered by the original side of the three Chartered High Courts, namely, Calcutta, Bombay and Madras, (see Kahirodebihari Datta vs Mangobinda Panda(1) ) though sometimes rules of English common law were applied by Indian courts on grounds of justice, equity and good conscience. It seems to me therefore that to apply to Indian statutes a construction based on the royal prerogative as known to the common law of England now when there is no Crown in this country and when the common law of England was generally not even applicable, (except in a very small part), would be doing violence to the ordinary principle of construction of statutes, namely, that only those are not bound by a statute who are either expressly exempted or must be held to be exempt by necessary implication. In our country the Rule of Law prevails and our Constitution has guaranteed it by the provisions contained in Pt. III thereof as well as by other provisions in other Parts: (see Virendra Singh and others vs The State of Uttar Pradesh (2) ). It is to my mind inherent in the conception of the Rule of Law that the State, no less than its citizens and others, is bound by the laws of the land. When the King as the embodiment of all power executive, legislative and judicial has disappeared and in our republican Constitution, sovereign power has been distributed among various organs created thereby, it seems to me that there is neither justification nor necessity for continuing the rule of construction based on the royal prerogative. It is said that though the King has gone, sovereignty still exists and therefore what was the prerogative of the King has become the prerogative of the sovereign. There is to my mind a misconception here. It is true that sovereignty must exist under our Constitution (1) Cal. 841, 857. (2) (1955) 1.S.C.R. 415. 186 but there is no sovereign as such now. In England, however, the King is synonymous with the sovereign and so arose the royal prerogative. But in our country it would be impossible now to point to one person or institution and to say that he or it is the sovereign under the Constitution. A further question may arise, if one is in search of a sovereign now, whether the State Government with which one is concerned here is sovereign in the same sense as the English King (though it may have plenary powers under the limits .set under our Constitution). This to my mind is another reason why there being no King or sovereign as such now in our country, the rule of construction based on the royal prerogative can no longer be invoked. Reliance was placed in this connection on certain cases from Australia and Canada and also from the United States of America. So far as Australia and Canada are concerned, the cases are not of much help for the Crown exists there still. Besides in Canada and in most of the provinces of Canada and in New Zealand provisions have been specifically introduced in the Interpretation Acts laying down that no provision or enactment in any Act shall affect, in any manner whatsoever, the rights of His Majesty, his heirs or successors, unless it is expressly stated 'therein that His Majesty shall be bound thereby: (see Street on Governmental Liability ", at p. 152). In the United States also, it is doubtful if the royal prerogative as such is relied on as the basis of certain principles which are in force there. In United States of America vs United Mine Workers of America, Etc. (1), the Supreme Court did say that there was an old and well known rule that statutes which in general terms divested pre existing rights and privileges would not be applied to the sovereign without express words to that effect. But there was no discussion of the royal prerogative as such in the judgment and the rule was called a well established rule of construction only. Besides the Court went on to consider the words of the statutes under consideration and held that on a proper construction of them the United States was not bound. (1) ; 187 In United States of America vs Reginald P. Wittek (1), the Supreme Court did say that a general statute imposing restrictions does not impose them upon the government itself without a clear expression or implication to that effect; but this decision was based mainly on the terms of the State statute there under consideration and the surrounding circumstances and legislative history of the statute concerned. Another case in the same volume is Jess Larson vs Domestic and Foreign Commerce Corporation (2) at p. 1628, where a suit was brought against an officer of the United States and it was held that it was in substance a suit against the sovereign government over which the court in the absence of consent had no jurisdiction. There is no discussion in this case of the royal prerogative having continued in the United States and the decision seems to have turned on some law of that country which provides that a suit against the Government could not be tried in a court in the absence of consent. As against these decisions I may refer to H. Snowden Marshall vs People of the State of New York (3) to show that royal prerogative as such is losing ground in the United States, if nothing more. When dealing with the priority of a State over the unsecured creditors in payment of debts out of the assets of the debtor, the Supreme Court held that whether the priority was a prerogative right or merely a right of administration was a matter of local law and the decision of the highest court of the State as to the existence of the right and its incidents would be accepted by the Federal Supreme Court as conclusive. Again in Guaranty Trust Company of New York vs United States of America (4), the Supreme Court held that the immunity of the sovereign from the operation of statutes of limitation, although originally a matter of royal prerogative, was now based upon the public policy of protecting the citizens of the State from the loss of their public rights and revenues through the (1) L. Ed. 1406. (2) L. Ed. 1628. (3) ; L. Ed. 315. (4) ; 188 negligence of the officers of the State, showing that some of those immunities which in England were claimed as royal prerogatives, though preserved in the United States, were so preserved for other reasons. Besides it must not be forgotten that though the Crown no longer remained in the United, States after the attainment of independence the American colonies out of which the United States arose were colonised by English settlers who carried the common law of England with them to America with the result that the first Constitution of some of the States (like New York) after independence provided that the common law of England which together with the statutes constituted the law of the colony before independence should be and continue to be the law of the State subject to such alterations as its legislature might thereafter make: (see H. Snowden Marshall vs People, of the State of New York( '), at p. 317). That may account for the United States recognising some of those prerogative rights which were in force in England; though even so, the basis for such recognition is now more the law or public policy than any royal prerogative as such. The position in our country was somewhat different. We had the King but the common law of England did not, as already indicated, apply as a rule in this country. Now that the King has also gone, there seems to be no reason for continuing the royal prerogatives after January 26, 1950. Further it appears to me that the royal prerogative where it deals with substantive rights of the Crown as against its subjects, as, for example, the priority of Crown debts over debts of the same nature owing to the subject, stands on a different footing from the royal prerogative put forward in the present case, which is really no more than a rule of construction of statutes passed by Parliament. Where, for example, a royal prerogative dealing with a substantive right has been accepted by the, Courts in India as applicable here also, it becomes a law in force which will continue in force under article 372(1) of the Constitution. But (1) ; ; 189 where the royal prerogative is merely a rule of construction of statutes based on the existence of the Crown in England and for historical reasons, I fail to see why in a democratic republic, the courts should not follow the ordinary principle of construction that no one is exempt from the operation of a statute unless the statute expressly grants the exemption or the exemption arises by necessary implication. On the whole therefore I am of opinion that the proper rule of construction which should now be applied, at any rate after January 26, 1950, is that the State in India whether in the Centre or in the States is bound by the law unless there is an express exemption in favour of the State or an exemption can be inferred by necessary implication. The view taken by the Calcutta High Court in this connection should be accepted and the view expressed by the Privy Council in Province of Bombay vs Municipal Corporation of the City of Bombay (1) should no longer be accepted as the rule for construction of statutes passed by Indian legislatures. Let me then come to the question whether on the view I have taken of the rule of construction, the prosecution in this case can be allowed to continue. There is nothing in the Act of 1923 or in the Act of 1951 exempting the State specifically from any of the provisions of the Calcutta Municipal Act. In this case the State is being prosecuted under section 488 (or section 537 now) and that section provides for fine for breach of section 386 (or section 437 now). The provision is a penal provision ' and immediately a question arises whether the State as such, apart from its individual officers as natural persons, is liable to prosecution under the criminal law or has to be exempted from the operation of the provisions of criminal statutes by necessary implication. A criminal proceeding generally ends with punishment which may be imprisonment, or fine, or both. Now it does not require any elaborate reason to realise that the State as such cannot be sentenced to imprisonment because there is no way of (1) (1946) L.R. 73 I.A. 271. 190 keeping it in prison; therefore, by necessary implication, the State is exempt from all penal statutes and provisions providing for sentences of imprisonment or death. Then come those penal provisions which impose fines, like the present case, and the question is whether in such a case also the State must be deemed by necessary implication to be exempt from the penal provision. Generally speaking fines when inflicted by courts are realised by the State and go to the coffers of the State. In effect, therefore if the State as such is to be prosecuted under a penal statute imposing fine the result is that the Court will sentence the State to fine which will go to the State itself. It is obvious that if such is the result of a prosecution, namely that the accused gets the fine, the intention could never be that such a prosecution should be launched. Therefore where the penalty is fine and the fine goes to the State, it must be held that by necessary implication the law does not intend the State to be prosecuted for such an offence. In the present case I find that under section 81 of the Act of 1923 (or the corres ponding section 115 of the Act of 1951) the fines imposed by the Magistrate will not go to the Corporation but in the usual way to the State. Under the circumstances whatever other methods may be possible for enforcing the provisions of section 386 (or section 437 now) against the State it cannot be intended to be enforced by prosecution resulting in fine which would go to the State itself. In these circumstances it must be held that by necessary implication the State is exempt from the penal provisions contained in section 488 (now section 537). I would therefore allow the appeal, set aside the judgment of the High Court and restore the order of acquittal by the Magistrate. Appeal allowed. [/INST]The property of the respondent was acquired under the U. P. Land Acquisition (Rehabilitation of Refugees) Act, 1948. The respondent challenged the constitutionality of the Act by way of a writ petition and though the High Court dismissed the petition it held that the two provisos to s.11 of the Act were invalid as they offended section 299(2) of the Government of India Act. Subsequently the Constitution (Fourth Amendment) Act, 1955, included the U. P. Act in the Ninth Schedule as item NO. 15. The appellant contended that the inclusion of the Act in the Ninth Schedule protected it under article 31 B of the Constitution from any challenge under section 299(2) of the Government of India Act. Held, that the U. P. Act could not be assailed on the ground of unconstitutionality based on a contravention of section 299 of the Government of India Act. The provisions of the Act having been specifically saved by article 31 B read with the Ninth Schedule, the Act could not be deemed to be void or to ever have become void on the ground of its having contravened the provisions of the Government of India Act. Dhirubha Devisingh Gohil vs The State of Bombay, ; , relied on. Saghir Ahmad vs The State of U. P., ; , not applicable. </s>

<s>[INST] Summarize the judgement: Special Leave Petition (Criminal) No. 1481 of 1984. From the Judgment and Order dated the 23rd January, 1984 of the Punjab and Haryana High Court in Crl. Appeal No. 45 of 1983. Harbans Lal and Balmokand Goyal for the Petitioner. The Order of the Court was delivered by DESAI, J. We are not inclined to grant special leave, but we make this short speaking order in order to keep the record straight that the dismissal of the special leave petition does not tentamount to affirmance of the order of the learned Judge of the High Court who for reasons utterly untenable interfered with teh 215 sentence imposed by the trial court and reduced it to sentence already undergone which in the facts and circumstances of the case was wholly impermissible. In Meet Singh vs State of Punjab,(1) this Court pointed out that Sec. 5(2) of the Prevention of Corruption Act prescribes a minimum sentence and discretion is conferred on the court to give less than the minimum for any special reasons to be recorded in writing. This Court examined what constitute special reasons for the purpose of Sec. 5(2) and pointed out that the reasons which weighed with the learned Judge in reducing the sentence to the sentence undergone could not be special reasons. Therefore, in our view, the learned Judge was entirely in error in showing a misplaced sympathy unsustainable in law. With these observations we reject the special leave petition. N.V.K. Petition dismissed. [/INST]The third respondent Maharshi Dayanand University, Rohtak issued a prospectus on June 12, 1982, inviting applications for appearing at an Entrance Test for selecting candidates for admission to M.B.B.S./B.D.S. course 1982. In this prospectus, besides reservation for other candidates, 25 seats were shown as reserved for "Rural Areas" and further clarifying the term as for deciding the eligibility of a candidate from "Rural Areas" the following criterion will be observed; a candidate must have received education from Class I to Class 8 and passed 8th Class examination from any Rural School situated in any village not having any Municipality or notified area or Town Area Committee". The petitioners, therefore, challenged only the reservation of these 25 seats for candidates coming from the Rural Areas as being violative of Articles 14, 15 (4) and 29 (2) of the Constitution inasmuch as (1) the classification is arbitrary, unintelligible and unrelated to the objects sought to be achieved and not saved by Articles 15 (4) and (ii); to classify candidates on the basis of their education in a school in Rural Area and Urban Area is international in as much as before seeking admission to the Medical Faculty even the student coming from rural areas and having been educated in common rural school from 1st to 8th standard would have taken further education for a period of 4 years before seeking admission to the medical college and that even in respect of the earlier education from 1st to 8th standard in both the cases, there was identical syllabus and examination evaluation prescribed by a common authority Allowing the petitions, the Court ^ HELD: 1. It is well settled that Article 14 forbids class legislation but 273 permits reasonable classification in the matter of legislation. In order to sustain the classification permissible under Article 14, it has to satisfy the twin tests: (1) that classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the proup and (2) the differentia must have a rational relation to the object sought to be achieved by the impugned provision. [278H; 279A B] 2:1. Classification based on students coming from common rural schools meaning thereby educated upto 1st to 8th standard in common rural schools vis a vis students educated in urban schools from 1st to 8th standard would not provide intelligible differentia for founding a classification thereon. The classification in such a situation will be wholly arbitrary and irrational and therefore the reservation based on such a classification would be constitutionally invalid. The knowledge acquired in the years spent from class 1 to class 8th is of a general nature exposing the student to reading, writing, understanding simple Arithmetics, General Knowledge of History, Geography and introductory Mathematics. The introductory knowledge of these subjects could hardly be said to equip a student for admission to medical college. The education imparted in class IX and X is little more than introductory. In these classes, the student is being prepared for deeper study. The selection of specialised subjects has to be made in classes XI and XII and in respect of education in classes IX to XII, all students being educated in all schools are similarly situated, similarly circumstanced and similarly placed with no differentiation. The earlier handicap of education in classes I to VIII, if there be any, becomes wholly irrelevant and of no consequence and therefore, cannot provide an intelligible differentia which distinguishes persons say students seeking admission being grouped together as having been educated in common rural schools from those left out namely the rest. [282F; C E] Arti Sapru vs State of Jammu and Kahmir & Ors., ; , followed. Pradeep Tandon 's case followed. Amar Bir Singh & Ors. vs Maharishi Dayanand University, Rohtak & Ors. ILR Punjab & Haryana [1980] 2 493, overruled. The classification is not founded on intelligible differentia and at any rate, it has no rational nexus to the object sought to be achieved. It does not take into account the following: (i) in order to take advantage of the reservation, students from nearby urban areas can join any rural school on the periphery agglomeration; (ii) All rural schools without an exception cannot be condemned as ill house, ill staffed and ill equipped. Agriculture in Haryana has been a very profitable pursuit and standard of life of average farmer in rural area has gone up compared to middle class and industrial worker and the slum dwellers whose children will attend as a necessity urban schools. And yet the better placed will enjoy reservation; (iii) The knowledge acquired by the students while taking instructions in class I to VIII has hardly any relevance to his being equipped for taking the test for entrance to 274 the Medical College. The real challenge would come in standard XI and XII. In this behalf all students those coming from any rural schools and urban school are similarly placed and similarly situated and yet by a reference to a past event wholly unrelated to the objects sought to be achieved, they are artificially divided; and (iv) There is no guarantee save a wishful thinking that the candidates classified as coming from rural areas that is with education from class 1 to VIII or otherwise would return to rural areas after the M.B.B.S. degree. [285H; 284G; 285C D] Sukhvinder Kaur vs State of Himachal Pradesh & Ors., A.I.R. 1974 HP 35, distinguished. </s>

<s>[INST] Summarize the judgementAppeal No. 299 of 1964. Appeal from the judgment and order dated September 26, 1961 of the Allahabad High Court in Second Appeal No. 620 of 1957. J. P. Goyal, for the appellants. B. C. Misra, for the respondent No. 1. April 15, 1964. The judgment of the Court was delivered by HIDAYATULLAH, J. In this appeal by certificate from the High Court of Judicature at Allahabad the appellants are the four original defendants in a suit for pre emption filed by the first respondent. Kaiseri Begam (respondent No. 2) sold a plot and two houses in mohalla Gher Abdul Rahman Khan, 757 Qasba Milak, Tehsil Milak, District Rampur, to the appel lants on December 4, 1953. The first respondent Labh Singh owned the adjacent house and he claimed pre emption on the ground of vicinage after making the usual demands. The suit was filed by Labh Singh in the court of Munsif, Rampur who by his judgment dated September 25, 1955 held that there was a general custom of pre emption in the town of Milak. He also held that Labh Singh was entitled to preempt and had performed the Talabs. He, however, dismissed the suit because the sale did not include a strip of land 3 feet 6 inches wide between Labh Singh 's house and the property sold. He made no order about costs. There was an appeal by Labh Singh and the present appellants objected. The District Judge, Rampur allowed the appeal and dismissed the cross objections. The appellants then filed a second appeal in the High Court of Allahabad. Mr. Justice V. D. Bhargava, who heard the appeal, referred the following question to a Division Bench: "Whether after coming into operation of the right of pre emption is contrary to the provisions of article 19(1)(f) read with article 13 of the Constitution, or is it saved by clause (5) of article 19? " The Divisional Bench held that the law relation to pre emp tion on the ground of vicinage was saved by clause (5) of article 19 and was not void under article 13 of the Constitution. In view of this answer, the second appeal was dismissed. The High Court, however, certified the case and the present appeal has been filed. The question which was posed by Mr. Justice V. D. Bhargava was considered by this Court in connection with s.10 of the Rewa State Pre emption Act, 1946 in Bhau Ram vs B. Baijnath Singh (1). This Court held by majority that the law of pre emption on the ground of vicinage imposed unreasonable restrictions on the right to acquire, hold and to dispose of property guaranteed by article 19(1)(f) of the Constitution and was void. It was pointed out that it placed restrictions both on the vendor and on the vendee and there was no advantage to the general public and. that the only reason given in support of it, that it prevented persons belonging to different religions, races or castes from acquiring property in any area peopled by persons of other religious, races or castes, could not be considered reasonable in view of article 15 of the Constitution. If this ruling applies the present appeal must succeed. Mr. B. C. Misra, who appears for Labh Singh attempts to distinguish Bhau Ram 's case(1). He contends that the earlier case was concerned with a legislative measure whereas the. (1) [1962] Supp. 3 S.C.R. 724. 758 present case of pre emption arises from custom. He refers to the decision in Digambar Singh vs Ahmad Said Khan(1) where the Judicial Committee of the Privy Council has given the early history of the law of pre emption in village com munities in India and points out that the law of pre emption had its origin in the Mohammedan Law and was the result, some times, of a contract between the sharers in a village. Mr. Misra contends that articles 14 and 15 are addressed to the State as defined in article 12 and are not applicable to custom or contract as neither, according to him, amounts to law within the definition given in article 13(3)(b) 'of the Consti tution. He submits that the ruling of this Court does not cover the present case and that it is necessary to consider the question of the validity of the customary law of pre emption based on vicinage. It is hardly necessary to go into ancient law to discover the sources of the law of pre emption whether customary or the result of contract or statute. In so far as statute law is concerned Bhau Ram 's case(2 ) decides that a law of pre emption based on vicinage is void. The reasons given by this Court to hold statute law void apply equally to a custom. The only question thus is whether custom as such is affected by Part III dealing with fundamental rights and particularly article 19(1)(f). Mr. Misra ingeniously points out in this connection that article 13(1) deals with "all laws in force" and custom is not included in the definition of the phrase "laws in force" in clause (3)(b) of article 13. It is convenient to read article 13 at this stage: "13.(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise re requires, (a) "law" includes any Ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) "law in force" includes laws passed or made by a Legislative or other competent authority in the territory of India before the commencement of this Constitution and not previously (2) [1962] Supp. 3 S.C.R. 724. (1) L.R. 42 I.A. 10, 18. 759 repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. " The argument of Mr. Misra is that the definition of "law" in article 13(3)(a) cannot be used for purposes of the first clause, because it is intended to define the word "law" in the second clause. According to him, the phrase "laws in force" which is used in clause (1) is defined in (3)(b) and that definition alone governs the first clause, and as that definition takes no account of customs or usage, the law of pre emption based on custom is unaffected by article 19(1)(f). In our judgment, the definition of the term "law" must be read with the first clause. If the definition of the phrase "laws in force" had not been given, it is quite clear that the definition of the word "law" would have been read with the first clause. The question is whether by defining the composite phrase "laws in force" the intention is to exclude the first definition. The definition of the phrase "laws in force" is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. in other words, laws, which were not in operation, though on the statute book, were included in the phrase "laws in force". But the second definition does not in any way restrict the ambit of the word "law" in the first clause as extended by the definition of that word. It merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition. There are two compelling reasons why custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force". Firstly, to hold otherwise, would restrict the operation of the first clause in such ways that none of the things mentioned in the, first definition would be affected by the fundamental rights. Secondly, it is to be seen that the second clause speaks of "laws" made by the State and custom or usage is not made by the State. If the first definition governs only cl. (2) then the words "custom or usage", would apply neither to cl. (1) nor to cl. (2) and this could hardly have been intended. It is obvious that both the definitions control the meaning of the first clause of the Article. The argument cannot, therefore, be accepted. It follows that respondent No. 1 cannot now sustain the decree in view of the prescriptions of the Constitution and the determination of this Court in Bhau Ram 's case(1). The appeal will be allowed but in the circumstances of the case parties will bear their costs throughout. Appeal allowed. [/INST]In a suit filed by the respondent, the Munsif though holding that there was a general custom of pre emption in the locality and that the respondent had a right to pre empt, under that custom, dismissed the suit because the sale did not include a strip of land 3 feet 6 inches wide between the respondent 's house and the property sold. The respondent 's appeal was allowed by the District Judge. The appellants appealed to the High Court which was unsuccessful because of the answer of the Division Bench to which the question was referred. The Division Bench held that the law relating to pre emption on the ground of vicinage was saved by article 19(5) and was not void under article 13 of the Constitution. The appellant relied on the decision of this Court in Bhau Ram vs Baijnath and claimed that pre emption on the ground of vicinage could not be claimed. The respondents in reply contended (a) that Bhau Ram 's case was concerned with a legislative measure whereas the present case arose from custom and was thus distinguishable and (b) that article 13(1) dealt with "all laws in force" and custom was not included in the definition of the phrase "laws in force" in cl. (3)(b) of article 13. Held: (i) In so far as statute law is concerned Bhau Ram 's case decides that a law of pre emption based on vicinage is void. The reasons given by this Court to hold statute law void apply equally to a custom. Bhau Ram vs B. Baijnath Singh, [1962] Supp. 3 S.C.R. 724, followed. Digambar Singh vs Ahmad Said Khan, L.R. 42 I.A. 10, referred to. (ii) Custom and usage having in the territory of India the force of law are included in the expression "all laws in force". </s>

<s>[INST] Summarize the judgementition No. 119 of 1979. (Under Article 32 of the Constitution of India) V.M. Tarkunde, G.L. Sanghi, Mrs. Jayashree Wad, G.D). Gupta and Miss Anita for the Petitioners. K. Parasaran, Solicitor General and Miss. A. Subhashini for Respondents 1 2 and 4 7. Dr. Y.S. Chitale, A.T.M. Sampath and P.N. Ramalingam for the other appearing Respondents. The Judgment of the Court was delivered by BALAKRISHNA ERADI, J. In this petition filed under Article 32 of the Constitution, the petitioners 31 in number who are all officers serving in the Aviation Research Centre (for short, the 'ARC ') have challenged the constitutionality of Rules 6 to 8 of the "Aviation Research Centre (Technical) Service Rules, 1976" issued by the President of India under the proviso to Article 309 of the Constitution, as also the legality and validity of the "absorption" of respondents Nos. 8 to 67 in the said Department pursuant to the impugned Rules. There is a further prayer in the writ petition to declare the Seniority List dated November 6, 1978 (Annexure 'G ') published by the Department as illegal, unconstitutional and void. Yet another relief claimed by the petitioners is that all the promotions granted to respondents Nos. 8 to 67 in the ARC service from 1968 till 1978 should be declared by this Court as illegal and void, and that a writ of mandamus or any other appropriate writ, order or direction should be issued to respondents Nos. 1 to 7 the Union of India, the Cabinet Secretary, the Director of Department of Personnel, the Director General of Security, the Director of ARC and the Adviser (Technical), A.R.C., respectively to constitute the ARC afresh in accordance with law and to rearrange the seniority in the Service in conformity with law. The petitioners ' case is that shortly after the formation of the ARC in 1963 the petitioners were directly recruited to the said department on a regular basis during the period between 1963 and 1966 in the category of Assistant Central Intelligence officers Grade II, (which has since been redesignated as Deputy Field officers (Tech.) 881 (for short DFO) under the impugned Rules while respondents Nos. 8 to 67 are officers whose services have been borrowed on deputation to the ARC from some departments of Central Government and from the Police Cadre of State Governments. The petitioners contend that by virtue of their regular appointments in the ARC, they were, as of right, entitled to be promoted to the higher posts of Assistant Central Intelligence officer, Grade I now called the Field officer (Tech.) Deputy Central Intelligence officer (Tech.)/Assistant Technical officer subject only to the right of the Department to supersede those found unsuitable for such promotions. However, instead of promoting the petitioners to the vacancies that arose in such higher categories of posts, the Department filled up those vacancies by granting promotions to the deputationists. thereby illegally denying to the petitioners the opportunities legitimately due to them for promotion in the Department. It is contended by the petitioners that the deputationists were occupying the posts in the Department only on ad hoc basis and such ad hoc appointees who were having the benefit of lien in their parent departments and were getting promotions in those departments had no claim whatever to seniority or promotions in the borrowing Department, namely, the ARC. On this basis the petitioners have raised a . challenge in this writ petition against the legality of the various promotions given to respondents Nos. 8 to 67 in the year 1968 and thereafter. A draft combined seniority list of Assistant Central Intelligence officers Grade II (Tech.) working in the ARC was published in March 1971 (Annexure 'A '), wherein the officers on deputation as well as those who are directly recruited in the ARC had all been included and the seniority of the deputationists had been fixed by taking into account the total length of service put in by them in the rank of ACIO in their parent departments as well as in the ARC. According to the petitioners, the said list had been prepared in violation of the principle that the same period of service of a Government servant cannot be legally considered twice over for service benefits in two Departments, namely, the parent department and the borrowing department. G A Writ Petition Civil Writ Petition No. 1020 of 1971 was filed in the Delhi High Court by three of the present petitioners complaining against the promotions given to the deputationists and challenging the validity of the combined seniority list published by the Department in 1971. During the pendency of that writ petition the impugned seniority list of 1971 was substituted by two separate 882 lists one consisting of the direct recruits and the other consisting of deputationists. Thereupon. the writ petition before the Delhi High Court was got amended by the petitioners therein by incorporating objections against the new seniority lists published by the Department. When the case came up for hearing, counsel appearing on behalf of the Union of India submitted before the High Court that statutory rules governing the service were then under preparation, that the arrangements till then made were all purely on ad hoc basis and the whole question will eventually be finalised after the rules were framed. In the light of the said submission, the High Court dismissed that writ petition observing that since no rules governing the Service had been framed and the appointments in question had all been made on purely ad hoc basis, the petitioners did not have at that point of time any legitimate grievance and the writ petition was, therefore, premature. It is submitted by the petitioners that, contrary to the assurance given to the Delhi High Court, the Department did not take early action for framing the rules but instead continued to confer on the deputationists the benefit of further illegal promotions and it was only after all the higher posts were filled by promoting deputationists that the Department ultimately promulgated the impugned statutory Service Rules on April 26, 1976. Strong reliance has been placed by the petitioners on office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs (Annexure 'C ') laying down certain general principles for determining seniority of various categories of persons employed in Central Services. According to the petitioners, in the absence of statutory rules governing the conditions of service of personnel in the ARC, the principles laid down in the aforesaid office Memorandum were applicable to the said Department. It is urged that under clause (viii) of the said office Memorandum, it was incumbent on the authorities to replace all the deputationists who, according to the petitioners, were holding the posts in the Department only on ad hoc basis, by persons approved for regular appointment by direct recruitment, and until the deputationists were so replaced the deputationists had to be placed in bloc below person directly recruited to the grade. The petitioners have sought to derive support from Annexure 'D ' which is a letter dated October 15, 1971 addressed by the Department of Personnel, Cabinet Secretariat to the Director General of Security, wherein it is pointed out that persons appointed to a grade on deputation basis are appointed for a specific period, after the expiry of which they are required to revert back to their parent departments and since the said deputationists do not have any locus standi in the borrowing departments, they are not entitled to 883 promotions/confirmations in the borrowing departments. The letter proceeds to state that the question of fixation of their inter se seniority of such deputationists vis a vis other categories of officers of a particular grade by preparing a combined seniority list does not, therefore, arise. However, it was also added in the next para. graph of the letter that though deputationists are not entitled to promotion to a higher grade, yet they can be considered for appointment on deputation to the higher grades, if the Recruitment Rules of the higher grade provide for appointment on deputation basis, and in the absence of the Recruitment Rules, it is for the appointing authority to decide whether a person already serving as a deputationist in the lower grade should be considered for appointment on deputation to the higher posts. According to the petitioners, on the basis of the principle enunciated in this letter, persons serving on deputation in the ARC should all have been repatriated to their parent departments as soon as direct recruits became available in sufficient number and the action taken by the Department in filling up the vacancies in the higher categories, namely, ACIOs Grade I (Field officers) and Assistant Technical officers by granting promotions to respondents Nos. 8 to 67 was totally illegal. The petitioners have alleged that some of the deputationists were holding posts in their parent departments which were inferior in rank in comparison with the posts of DFOs. It is contended by the petitioners that the grant of such promotions to the deputationists amounted to conferment of double benefits on them since they were simultaneously earning promotions in their parent departments. Some of the petitioners who had joined the ARC in 1963 as DFOs became eligible for promotions in 1968 by completing the five years ' qualifying period, but instead of promoting them to the category of Field officers, the Department filled up the vacancies which became available in 1968 and subsequent years by promoting some of the respondents who were only deputationists. The petitioners contend that the deputationists were serving in the ARC only on ad hoc basis and hence they were not eligible under the terms of the Memorandum dated December 27, 1959 (Annexure 'C ') for the grant of any promotions in the borrowing department. It is alleged that while effecting such irregular promotions, the petitioners were not even considered and they were illegally denied the opportunity of competing with the respondents for promotions to the posts of Field officers. In 1975, a further injustice is said to have been done to the petitioners when twenty of the deputationists functioning as Field officers were promoted as Assistant Technical officers (for short, ATOs). Writ petitioners Nos. 1 and 4 made representations 884 complaining against those promotions, but those representations were rejected by the Director, ARC by his Memorandum dated September 8, 1975 (Annexure `E '). On December 1, 1975, seven more deputationists were promoted as ATOs. The petitioners have raised the plea that the aforesaid promotions of the deputationists were illegal and discriminatory since the Department had fixed an arbitrary date, namely, December 1972 for computing the qualifying period of three years for eligibility to be considered for promotions. It was only after most of the posts in the higher categories of ATos and FOs had come to be occupied by the deputationists as a consequence of such irregular promotions that the impugned Rules were promulgated by the President of India on April 26,1976. Through the said Rules, the Department has purported to absorb all the deputationists/respondents Nos. 8 to 67 in the ARC Service as TOs/ATOs/FOs and thereby legalised all the illegal promotions granted to those deputationists. This, according to the petitioners, has been done with the mala fide intention of giving favoured treatment to a deputationist at the expense of the direct recruits like the petitioners. The petitioners have put forward the contention that the impugned Rules are arbitrary and discriminatory and are violative of Articles 14 and 16 of the Constitution. It is their further plea that the wholesale absorption of the deputationists is a colourable and unconstitutional exercise of power and the impugned Rules in so far as they provide for such absorption are in the nature of a fraud on the powers conferred on the President by the proviso to Article 309 of the Constitution. The petitioners point out that even after the constitution of the Service by the impugned Rules, no seniority list was published for more than two years, but promotions to the posts of FOs were, in the meantime, granted to several of the deputationists. It is contended by the petitioners that Rule 6 of the impugned Rules confers arbitrary powers on the controlling authority to equate the ad hoc service rendered by the deputationists in the ARC with the 'regular ' service rendered by persons like petitioners who had been directly recruited to the Department on a regular basis and this has resulted in permanently blocking all the future chances of the petitioners in matters of promotion and other service benefits. According to the petitioners the "initial constitution" of the Service purported to be brought about under the Rules is itself highly arbitrary and it infringes Articles 14 and 16 of the Constitution since it is based on illegal treatment of unequals as equals by equating persons functioning on a mere ad hoc basis with those holding posts in he organisation on a regular basis. Another ground of attack put forward by 885 the petitioners is that Rule 6(2) confers arbitrary and unfettered powers on the Screening Committee and hence it suffers from the vice of excessive delegation. It is also urged that the said sub rule is unconstitutional because it enables the controlling authority to retain to itself an arbitrary power to control the decision making of the Screening Committee by means of "general or special instructions ' thereby rendering it impossible for the Screening Committee to function in an independent and objective manner. According to the petitioners, Rule 6(2) enables the controlling authority to impose its will and whims on the Screening Committee. The petitioners allege that the controlling authority had imposed its favoured treatment to deputationists and displayed a discriminatory attitude against the regular departmental personnel like the petitioners by treating the ad hoc service of the deputationists in the ARC as regular service and absorbing them in the posts or grades to which they have been granted illegal promotions. The petitioners have urged that Rule 6(2) in so far as it vaguely uses the words "continuous appointment in the grade" has vested an arbitrary power in the Department to take into consideration the ad hoc service rendered by the deputationists in grades to which they have no right in law and hence the said provision is highly arbitrary and violative of Article 14 of the Constitution. Alternatively, it is submitted by the petitioners that the aforesaid words "continuous appointment in the grade" should be reasonably construed to mean "continuous appointment on regular basis in the grade" in which event alone the rule can be regarded as free from the vice of arbitrariness. Rule 6(6) has also been attacked by the petitioners as infringing Articles 14 and 16 of the Constitution on the ground that it enables the Screening Committee to discriminate against the direct recruits by treating them on a par with the deputationists. It is contended by the petitioners that the said sub rule confers power on the Screening Committee to absorb such of the deputationists in a lower grade who were found to be unsuitable for absorption in a higher grade and thereby completely blocks the chances of persons like the petitioners to get promotions into such lower grades despite their being found suitable for such promotions. Another point raised by the petitioners is that it was incumbent on the Screening Committee before it took its final decision regarding the absorption of personnel in the various grades to give an opportunity to the petitioners to represent their case, and inasmuch as this procedure was not followed, the decisions taken by the Screening Committee were in clear violation of the principles of natural justice. The petitioners have also voiced a grievance that 886 even though the Screening Committee had prepared a list of the officers whom it had decided to absorb in the various grades, the Department did not disclose the contents of the said list to personnel working in the ARC but kept the matter secret. Reiterating their contention that the promotions given to respondents Nos. 8 to 67 during the period from 1968 to 1978 were all illegal on the ground that these promotions had been made without considering the cases of the petitioners, the petitioners have put forward further plea that the publication of the impugned Seniority List was deliberately delayed by the Department till November 6, 1978. with intent to favour the deputationists, some of whom were promoted as ATOs on November 5, 1978. On this basis, it is contended that the action taken by the Department in publishing the Seniority List dated November 6, 1978 was mala fide. Another argument advanced by the petitioners is that Rule 7 in so far as it empowers the Department to reckon the seniority of the deputationists by giving them the benefit of the ad hoc service rendered by them in the ARC as well as the prior service put in by them in their parent departments is arbitrary. The petitioners con tend that this deviation from the principle uniformly followed for fixing the seniority in all other departments of the Government of India namely those laid down in the Home Ministry 's office Memorandum dated December 22, 1959 was wholly unjustified and as a result thereof the direct recruits in the ARC are subjected to a differential treatment resulting in gross prejudice to them with out there being any rational basis for separate classification. There is also an allegation that in fixing the seniority of personnel as per the impugned gradation list dated November 6, 1978, even service rendered by the deputationists in non comparable and lower ranks has been wrongly taken into account. Rule 8(1) has been attacked by the petitioners as empowering the controlling authority to enable the deputationists to consolidate the illegal advantage gained by them at the initial constitution by further promotions/appointments to still higher posts in the ARC. It is pointed out by the petitioners that while specifying the method of recruitment to the various posts in the Service and fixing a quota as between the vacancies to be filled up by promotions and those to be filled up by direct recruitment/deputation or re employment in Schedule II of the rules the deputationists have been treated on a par with regular departmental personnel, and this involves a clear violation of Articles 14 and 16 of the Constitution. 887 Lastly, it is contended that even if it is to be assumed that the decision taken by respondents I to 7 to retain the deputationists in the Departmental the time of the initial constitution of the ARC was valid, the position of the deputationists would, in law, be only that of persons permanently transferred from the parent departments to the ARC and under Article 26 of the Civil Service Regulations, such persons appointed by transfer shall be ranked below all the direct recruits as well as the promotees already functioning in the Department. The petitioners contend that since the Seniority List dated November 26, 1978 has been drawn up in contravention of the aforesaid principle laid down in article 26, the said list should be declared to be illegal and void. Detailed counter affidavits have been filed on behalf of respondent No. 1 and respondents Nos. 13 to 16, 22, 25, 28 and 31. In the counter affidavit filed on behalf of respondent No. 1, by the Deputy Secretary, Cabinet Secretariat, it is stated that the Aviation Research Centre was initially set up as a Sensitive Security organisation in the year 1963 on a purely temporary basis by way of an extension of the Intelligence Bureau. In February 1965, the ARC, along with two other schemes, was brought under the control of the Director General of Security. The Department was continued by the Government on temporary basis from year to year till 1971 when the Government, after reviewing all the relevant factors, took a decision to make the ARC permanent. The administrative control over the ARC was originally vested in the Ministry of External Affairs and later with the Prime Minister 's Secretariat till 1965 when it was transferred to the Cabinet Secretariat. There were no Recruitment and Cadre Rules for the ARC during the period when the Department was functioning on a temporary and purely experimental basis and a number of officers, including respondents Nos. 8 to 67, were taken on deputation from other Central and State Government Departments to man the various posts in the organisation. Some persons, like the petitioners, were also directly recruited as ACIOs II on a purely temporary and ad hoc basis against temporary posts in the ARC. The contention of the petitioners that they were regularly recruited as DFOs in the ARC is denied by the Government respondents. It is submitted in the counter affidavit of respondent No. I that the appointments given to the petitioners were merely ' ad hoc in character and this had been clearly specified in the Memos issued to them containing the order of appointment that the appointments were temporary and would not confer on them any right for permanent appointment if and when the posts were made permanent. It is stated that the Memos issued 888 to all the petitioners were on identical terms and a specimen copy of the Memo issued to the petitioners has been appended to the counter affidavit of respondent No. 1, as Annexure 'R 1 '. The further submission made in the counter affidavit of the first respondent is that in the ARC there was no regular cadre nor any Recruitment Rules prior to 1976 and as and when posts in the various categories in the grades were sanctioned, they were filled up by getting suitable hands with the requisite qualifications and some experience from other departments on deputation and some vacancies were also filled up by direct recruitment. Briefly sketching the history of the formation of the ARC, the first respondent has stated that the ARC organisation was set up in the wake of Chinese aggression that took place in the winter of 1962 and its primary role was to collect intelligence by employing the most modern highly sophisticated techniques and to furnish it to other Agencies like the Special Frontier Force and the Special Security Bureau which were in need of such intelligence in order to give better protection to our borders against external aggression. For manning such an organisation, it was absolutely essential to secure the services of persons possessing the requisite experience, technological skill, special attitude and ability. Initially, therefore, the various posts in the ARC organisation, which was started on a mere experimental basis, were filled up by taking on deputation officers from the intelligence Bureau and other departments which had the expertise in related fields, such as, the Department of Defence Science, Wireless Planning and Coordination and Directorate General of Civil Aviation. With the gradual expansion in the activities of the ARC, it was found that the aforesaid Departments could not supply on deputation basis enough hands for meeting the needs of ARC and hence, the direct recruitments from the open market had also to be made. How ever, all the appointments made by direct recruitment were merely temporary and ad hoc in character. While the deputationists were persons with rich experience and long years of service, the direct recruits were inexperienced and new to the job. In the circumstances, the higher posts of FOs, ATOs and Assistant Directors had to be filled up by ad hoc appointments from amongst the deputationists who by virtue of their long experience in the particular type of work were considered suitable for those posts. As and when direct recruits gained adequate experience, several of them were also given ad hoc appointments to such higher posts. It is further averred in the counter affidavit that in making such appointments to the higher posts, only considerations of public interest and maintenance of efficiency in the 889 functioning of the Department had weighed with the appointing authority. The allegation put forward by the petitioners that the direct recruits were discriminated against has been denied by the first respondent as totally unfounded, and it is stated that all such appointments to the various technical posts in the higher categories of FOS, ATOS and Assistant Directors were made by the Department on the recommendations of the duly constituted DPCs/Selection Committees. Some of the deputationists were also appointed to the higher post when they got promotions to the corresponding ranks in their parent departments. The Department treated both the direct recruits as well as the deputationists as ad hoc apponintees in the ARC with equal rights, and equal weightage was given to both categories of employees in respect of length of service in a given grade irrespective of whether or not it was rendered wholly in ARC. As regards the petitioners ' contentions based on the MHA Memorandum dated December 22, 1959, it is pointed out in the counter affidavit that the general principles laid down therein had no application till the matter of filling up of temporary posts in a temporary department. Stress is laid in the counter affidavit on the fact that simultaneously with the constitution of the ARC as a regular department, the ARC (Technical) Service Rules, 1976 were promulgated by the Government and it has been submitted that the principles laid down in the aforesaid Memorandum did not get attracted to the new service inasmuch as it is clearly specified in the Memo itself that the principles enunciated therein will not be applicable for such Services and posts for which separate principles have been already issued or may be issued thereafter by the Government, The allegation of the petitioners that they had not been considered for promotion at the time when the vacancies in the categories of DFOs were filled up during the year 1968 to 1975 has been denied by the first respondent and it is averred in the counter affidavit that the direct recruits were given promotions in the higher posts when they were found suitable by the DPC for ad hoc promotions to the grades of FOs (Tech.), etc. Reliance is placed by the first respondent of the observations made by the Delhi High Court in its judgment in Civil Writ Petition No. 1020 of 1971, filed by three of the present petitioners, that no discrimination could be said to have been made against the direct recruits either in drawing up the seniority list of 1971 or in the action taken by the authorities to filling up some of the higher posts by appointing deputationists. Though a decision was taken by the Government in 1971 to make the ARC a permanent department, and steps to frame rules were also immediately initiated, the draft rules could be finalised after intensive examination by various concerned Ministries only by April 1976 when the Rules were 890 promulgated. The allegation made by the petitioners that the promulgation of the rules was deliberately delayed in order to confer an undue advantage on the deputationists who were granted promotions to the higher grades in the meantime, has been categorically denied by the first respondent in its counter affidavit. The delay in promulgation of the rules was due to the fact that because of the special features of the Department and the sensitive nature of the functions to be discharged by it, various circumstances and factors had to be taken into account before the draft rules were finally cleared by the several Ministries concerned. The first respondent has stated in the counter affidavit that equal treatment had been meted out to the direct recruits and the deputationists in the matter of promotion/appointment from the grade of AClO 1 to that of ATO. The allegation of the petitioners that the DPC had fixed the crucial date for eligibility for promotion from the category of ACIO I to the grade of ATO in an arbitrary manner so as to exclude the petitioners from consideration, has f) been denied by the first respondent and it is averred that the crucial date was determined by the DPC on each occasion by taking into consideration the number of vacancies likely to be available for promotion/selection and the number of persons who could reasonably be considered for such promotions/selection. It is pointed out by tile first respondent that when deputationists were selected by the DPC, they were 'appointed ' to the higher posts on deputation and it was not a process of promotion as wrongly contended by the petitioners. In reply to the challenge made by the petitioners against Rule 6 of the impugned Rules which provides for the initial constitution of the new service to be known as the Aviation Research Centre (Technical) Service it is submitted by the first respondent that there is no principle of law prohibiting the absorption in a newly constituted Department of persons who are functioning on deputation in a temporary organisation which was later constituted into a permanent service. It is also submitted by the first respondent that the provision in the impugned rules for absorption of the deputationists in the ARC (Technical) Service was Made in public interest since it was found that the continual retention of the deputationists who possessed valuable experience and had long association with the organisation was absolutely necessary for the efficient functioning of the Department. The first respondent states that the impugned rules extend equal treatment to all categories of employees who were in position on the crucial date, namely, April 25, 1976, in the matter of absorption as 891 well as determination of seniority at the initial constitution, irrespective of whether they were direct recruits or deputationists. Since the direct recruits were all occupying the posts in the ARC only on a purely cd hoc basis, they had no legal right to be appointed in the new Department and merely by reason of their temporary appointments as ACIO II (Tech.) in the ARC organisation they could not automatically become members of the new ARC (Technical) Service which was constituted for the first time with effect from April 26, 1976. All persons working in the ARC in various temporary posts as on April 26, 1976, were given the option to express their willingness or otherwise to be absorbed in the new Department. The petitioners as well as the direct recruits were treated alike in the matter of the assessment of their suitability for absorption by the Screening Committee and on being found suitable, they were absorbed either in the same posts which they were occupying immediately prior to April 26, 1976 or in a lower post, subject to availability of permanent posts. The Screening Committee prepared the seniority list of the persons found suitable for absorption in accordance with the provisions contained in Rule 6 (2) read with Rule 7 of the impugned Rules. The counter affidavit of the first respondent goes on to state that the seniority list published on November 6, 1978 had been prepared strictly in accordance with the provisions of the impugned Rules, the names of the officers having been arranged with reference to the dates of their continuous appointment to the concerned grade. Printing out that the benefit of the ad hoc service rendered in a particular grade has been given not only to the former deputationists but also to the direct recruits in the matter of determining their inter se seniority in the grade of FOs, it is submitted by the first respondent that there is no merit in the petitioner 's contention that the seniority list of November 6, 1978 has been prepared in a discriminatory manner so as to violate Article 16 of the Constitution. The first respondent has further submitted that the charge of discrimination has been made by the petitioners on the basis of an erroneous assumption that the petitioners were in regular service in the ARC prior to the promulgation of the impugned Rules and that hence they had a superior claim for promotion to a higher post in comparison with the deputationists. The petitioners had been appointed/promoted to various grades in the ARC only on ad hoc basis prior to April, 26 1979 and the benefit of such ad hoc service rendered by them had been given to the petitioners in the same way and to the same extent as service rendered by the former deputationists on deputation. The first respondent, therefore, submits that the provisions of Rule 6 892 cannot be said to be 'arbitrary or violative ' of the principle of equality enshrined in Articles 14 and 16 of the Constitution. Repelling the contention of the petitioners that the principle for fixation of seniority laid down in the impugned Rules is illegal for the reason that it is inconsistent with the guidelines and general principles for determination of seniority in the Central Services enunciated in MHA Memorandum dated December 22, 1959 (Annexure 'C ') the first respondent has submitted in the counter affidavit that there is no substance in this plea since it has been specially stated in the Memorandum (Annexure 'C ') itself that the principles contained therein will not apply to "such services and posts for which separate principles have already been issued or may be hereafter issued by Government". The allegation made by the petitioners that the framing of the rules and the constitution of. the ARC (Technical) Service was deliberately delayed with a view to give undue advantage to the deputationists has been denied by the first respondent as baseless and untrue. Prior to 1971, there were no permanent posts at all in the ARC because the Department was temporary and all the temporary posts were being sanctioned on a year to year basis. Action to frame the rules was initiated shortly after the decision was taken in 1971 to make the ARC a permanent Department. The first set of draft rules was prepared and submitted to Government in 1972. Since it was found to be defective in certain aspects, a revised draft was prepared in 1974. Since the whole matter had to be subjected to extensive and intensive examination by various Ministries taking into account all relevant factors, the finally approved rules could be promulgated only in April 1976. The first respondent has submitted that Rule 6 of the impugned Rules provides equal treatment to all the officers in position in the ARC on the crucial date in the matter of absorption and determination of inter se seniority at the time of initial constitution of the service. The service rendered by the former deputationists in various grades prior to their absorption in the ARC could not be ignored, as their services were required by the Department in public interest. It is pointed out that if the contention of the petitioners that only persons who are regularly appointed in the ARC could be absorbed in the service is to be accepted, then none of the petitioners could have been permanently appointed in the ARC Technical Service, as the appointments held by the petitioners prior to the constitution of the ARC Service in 1976 were purely temporary and ad hoc in 893 The further plea put forward by the petitioners that Rule 6(2) of the impugned Rules suffers from the vice of excessive delegation of power has been stoutly denied by the first respondent. The Screening Committee was required to act within the frame work of the scheme of absorption envisaged in the Rules and the Committee had followed proper guidelines which had been approved by the controlling authority, namely, the Secretary, Department of Cabinet Affairs, Cabinet Secretariat. The provision enabling the controlling authority to issue general instructions was incorporated in the rules for the purpose of ensuring that the rules relating to the initial constitution of the service were applied uniformly and judiciously. The contention put forward by the petitioners that the said provision renders the functioning of the Screening Committee nugatory, is C refuted by the first respondent as being devoid of any merit. The allegation made by the petitioners that the deputationists were given illegal promotions from time to time has also been denied in the first respondent 's counter affidavit as totally baseless. It is admitted that during the period when the ARC was functioning as a temporary Department. some of the deputationists who were initially appointed as (Tech.) were subsequently appointed to higher posts on deputation basis but the first respondent submits that there could be no valid objection to such appointments, as they had all been made in the public interest and in accordance with the general instructions on the subject. Referring to the provisions contained in Rule 5(3) of the impugned Rules regarding the exercise of option by officers willing to be absorbed on permanent basis in the ARC, it is submitted in the counter affidavit that the said provision was equally applicable to direct recruits as well as the erstwhile deputationists. Since the temporary appointments of the direct recruits in the post of ACIO II (Tech.) did not confer on them any right of confirmation and the ARC (Technical) Service was altogether a new service, the first respondent states that the petitioners were rightly asked to exercise their option in terms of Rule 6(3). Dealing with the attack levelled by the petitioners against the validity of Rule 6(6), it is pointed out in the counter affidavit that the spirit and content of the rule is that persons who were holding higher posts on the crucial date and were considered suitable for permanent appointment in the said posts but could not be appointed substantively to such posts for want of vacancies, may be given permanent posts in the owner grade. It is pointed out in the counter affidavit that the said rule was applicable to direct recruits as well as to the deputationists and that, as a matter of fact, some of the petitioners got the benefit of this rule inasmuch as they were 894 appointed substantively in the grade of DFO(T) with effect from April 26, 1976, while they are holding posts of Fo(T) on the said date. The charge of discrimination levelled by the petitioners is, therefore, denied by the first respondent as being devoid of any foundation. With reference to the grievance put forward by the petitioners that they were denied an opportunity to represent their case before the Screening Committee, it is submitted by the first respondent that under the scheme of the impugned Rules, the Screening Committee was not expected to entertain any representations from any quarter and, in fact, no representations were received. The Committee had acted strictly in accordance with the provisions contained in the Rules in determining the suitability of the persons concerned for absorption in the new Department and the principles of natural justice have no applicability in such a context. The allegation of mala fides put forward by the petitioners has been stoutly denied by the first respondent. After the seniority list was prepared by the Screening Committee in accordance with the provisions contain ed in Rule 6(2) read with Rule 7 of the impugned Rules, certain formalities had to be gone through before orders regarding substantive appointments of the officers to the various grades could be issued. It was only after the issue of substantive appointment orders to persons who had opted for absorption into the service, that the Department could publish the seniority list. The formalities aforementioned included obtaining the options from all the employees, getting the approval of the parent departments of the erstwhile deputationists for their permanent absorption in the ARC Service, medical examination of employees, etc. It was on account of the delay involved for completing the said procedure that the seniority list could be finally published only on November 6, 1978. The counter affidavit proceeds to state that promotions in the Department were effected in the meantime strictly on the basis of the seniority list of officers recommended for absorption which the Screening Committee had prepared. It is further pleaded by the first respondent that no illegality whatever was involved in adopting the principle of reckoning the seniority in a particular post on the basis of total length of continuous service put in by the concerned officers in the particular grade in the ARC or in the equivalent grade in the parent department. The said rule was framed keeping in view the special requirements of the new Department. If the deputationists had not been given the benefit of the service put in by them in the equivalent grade in their parent departments, they 895 would have all opted for their reversion to their parent departments and that would have resulted incomplete dislocation of the functioning in the ARC. The first respondent states that lin formulating or applying the seniority rule there has not been any arbitrary discrimination as between direct recruits and deputationists and hence neither the rules nor the seniority list can be said to be violative of Articles 14 and 16 of the Constitution. B Dealing with the contention put forward by the petitioners on the basis of article 26 of the Civil Service Regulations, it is submitted by the first respondent that the said article, which deals with appointments by transfer "in accordance with a provision in the Recruitment Rules providing for such transfers" had no applicability at all in the matter of taking persons on deputation to the ARC when it was a purely temporary Department which had no Recruitment Rules. The subsequent absorption of such deputationists and other categories of employees has been done strictly in accordance with the provisions contained in the impugned Rules which are statutory in origin. In the absence of any Recruitment Rules, there was no legal bar whatever preventing the competent authority from borrowing persons from other departments on deputation basis to man the various posts in the ARC during the period prior to the introduction of the impugned Rules with effect from April 26, 1976. The former deputationists had occupied a larger percentage of the higher posts during the aforesaid period because they had put in more years of service in different grades and had much greater experience in carrying out the functions which were of a highly specialised nature when compared to the direct recruits whose induction in the ARC started only from 1965. On the basis of the aforesaid averments contained in his counter affidavit, the first respondent has submitted that the petitioners are not entitled to any relief in this writ petition and that the petition should be dismissed. In the separate counter affidavit filed on behalf of respondents 13, 16,22 etc., they have put forward more or less the same contentions in defence of the writ petition as have been taken by the first respondent. From the averments contained in counter affidavit of the first respondent and the documents produced before us, it is seen that . the Aviation Research Centre was a temporary and ad hoc organisation set up late in 1962, on an emergency basis, when the country 896 was threatened with the Chinese aggression for carrying out the work of collecting intelligence by the use of highly sophisticated techniques. For manning this Task Force, persons with experience in the specialised nature of the work were taken on deputation basis from different sources, such as the intelligence Bureau, the Departments of Defence Science, Wireless Panning and Coordination, the Directorate General of Civil Aviation and the Police of different States and they were grouped together to form the ARC. Subsequently, to supplement the man power, some persons were also directly recruited to the organisation on a purely ad hoc basis. The ARC organisation was initially treated as an extension of the intelligence Bureau. In February 1965, it was brought under the control of the Director General of Security. The administrative control over the organisation which was originally vested in the Ministry of External Affairs and later with tho Prime Minister 's Secretariat was transferred to the Cabinet Secretariat in 1965. The sanction for continuance of the temporary organisation was accorded by the Government from year to year till the year 1971 when decision was taken by the Government to make the ARC a permanent Department. But, the finalisation of the principles to be adopted for constitution of the new permanent Department took considerable time and it was only on April 26, 1976 that the President of India promulgated the Aviation Research Centre (Technical) Service Rules providing for the constitution of a new service to be known as Aviation Research Centre (Technical) Service and laying down the principles regulating the method of recruitment to the various posts in the said Service. Till 1976, there was no regularly constituted cadre of posts in the temporary ARC organisation and there were also no rules or even executive orders laying down any principles regulating the method of appointment to the various posts in the organisation. Clause 6 of the impugned Rules deals with the initial constitution of the new ARC permanent Service. That clause is in the following terms: "6. Initial Constitution (1) All persons holding, as on the appointed day, any one of the categories of posts specified in rule 4, whether in a permanent or temporary or officiating capacity or on deputation basis, shall be eligible for appointment to the service at the initial constitution thereof. 897 (2) The controlling authority shall constitute a Screening Committee in respect of each grade for adjudging the suitability of persons, who, being eligible to be appoint ed to the service under sub rule (1) were serving in any grade immediately before the initial constitution of the cadre for permanent appointment therein and every committee so constituted shall, subject to such general or special instructions as the controlling authority may give and after following such procedure as the committee may deem fit, prepare lists of persons considered suitable for such appointment in each grade with the names of such persons arranged in the order of seniority based on the date of continuous appointment in the grade in which they are to be absorbed or in an equivalent grade; Provided that if the controlling authority deems it necessary so to do, the same committee may be constituted to function in relation to two or more grades. D (3) An intimation shall be sent to every person considered suitable for appointment on a permanent basis to a post in any grade giving him an opportunity to express, within thirty days of the receipt of intimation by him his willingness to be so appointed on a permanent basis and the option once exercised shall be final. (4) Persons who are willing to be appointed on a permanent basis shall be so appointed in the order of seniority against permanent posts available as on the appointed day. (5) Notwithstanding anything contained in sub rules (2) to (4), every person holding, as on the appointed day, a permanent post in any one of the categories specified in rule 4 in the Aviation Research Centre shall, without prejudice to his being considered for appointment to a permanent post in the higher grade or to his continuance in such higher grade in officiating or temporary capacity, be absorbed in his respective substantive grade against the permanent posts available as on the appointed day. (6) The Screening Committee may recommend for permanent appointment in a lower grade any person who 898 is serving in a higher grade irrespective of whether he is deputationist or a direct recruit and every appointment made on such recommendation shall be without prejudice to his continuing to serve in the higher grade. (7) Persons holding posts, as on the appointed day, in any grade of the service who are not found suitable for permanent appointment under sub rules (2) to (6), may be continued in posts in the same grade of the service in a temporary or officiating capacity as the case may be." Rule 7 lays down the principles to be applied for fixation of seniority of those appointed to the various posts in the ARC at the time of its initial constitution. That rule reads: "7. Seniority of persons appointed on permanent basis in each grade at the initial constitution of the service shall be in the order in which they are shown in the relevant list prepared in accordance with provisions of rule 6. " The next rule under challenge by the petitioners is Rule 8 which deals with the topic of filling up of vacancies in various grades remaining unfilled immediately after the initial constitution of the service and all vacancies that may subsequently arise in the Department. That rule is in the following terms: "8. Maintenance (1) Subject to the initial Constitution of the various grades in the service, every post remaining unfilled and every vacancy that may arise thereafter shall be filled in accordance with the provisions contained in Schedule II, by appointment on promotion, deputation transfer, re employment after retirement or direct recruitment as the case may be. (2) For a period not exceeding three years from the date of commencement of these rules, notwithstanding the limits specified in column 7 of Schedule II, the controlling authority may, if it considers it necessary so to do, exceed the percentage specified for filling up of vacancies by deputation and decrease the percentage 899 prescribed for filling up of vacancies by promotion, direct recruitment of re employment after retirement, as it may deem fit. " The only other rule which requires to be referred to for the purpose of the present case is Rule 12 which states that "in regard to matters not specifically covered by these rules or by orders issued by the Government, members of the service shall be governed by general rules, regulations and orders applicable to persons belonging to the corresponding Central Civil Service". The petitioners are some amongst the persons recruited directly to the ARC organisation during the period between 1965 and 1971. The basic premise on which the petitioners have rested their challenge against the validity of the promotions given to respondents Nos. 8 to 67 from the year 1968 onwards as well as of the provisions contained in the impugned Rules is that they (petitioners) had all been regularly appointed to the ARC at the time of their initial appointment itself and that by virtue of such regular appointments, they had acquired vested rights for seniority, promotions etc., in the said organisation. As already noticed, during the period between 1965 and 1971, the ARC organisation was a purely temporary one, the continuance of which, on an experimental basis, was being sanctioned from year to year. There was no regular cadre of posts in the organisation nor was there any set of rules regulating the method of appointment to the various posts that had created on a mere temporary and ad hoc basis. Annexure 'R l ' produced along with the first respondent 's counter affidavit is a copy of the letter issued by the Directorate General of Security to one of the petitioners, communicating the offer of appointment to the temporary post of ACIO II(Tech.). It was on the basis of the acceptance of that offer by the said petitioner that he was appointed in the Department of ARC. It is stated in the counter affidavit of the first respondent that the appointments of all the remaining writ petitioners to the cadre of ACIO II (DFO) were made on identical terms and this averment has not been controverted by the petitioners. It is expressly recited ill exhibit R 1 that what was being offered thereunder was a temporary appointment to a temporary post and that the perm anent appointment of the person concerned to the post, if and when the post was made permanent, would depend upon various factors governing permanent appointment in such posts in force at the time, and that the temporary appointment will not 900 confer on him the title of permanency from the date the post is converted. It is further stipulated in the letter that the appointment was liable to be terminated at any time by a notice given by either side, namely, the appointee or the appointing authority without assigning any reason. There is also a further condition that the services of the appointee were liable to be terminated within a period of six months from the date of his appointment without any notice and without any reason being assigned. Since the petitioners are shown to have been appointed to the cadre of ACIO Il on the aforementioned conditions, it is difficult to see how they can successfully contend that they had been regularly appointed to the ARC with effect from the dates of their initial recruitment. They were holding merely ad hoc appointments which did not confer on them any entitlement for permanent absorption in the posts if and when the posts were made permanent. The basic premise on which the petitioners have sought to build up their case of arbitrariness and discriminations, namely, that the petitioners had all been initially recruited directly to the ARC on a regular basis while the deputationists were holding posts only on ad hoc basis, is thus seen to be contrary to facts. The correct position which obtained as on the date of the promulgation of the impugned Rules was that the petitioners as well as the deputationists were all working in the temporary ARC organisation only on a purely ad hoc basis. It is against this factual background that we have to examine the contentions put forward by the petitioners in support of the challenge levelled by them against the impugned Rules as well as against the seniority list of 1968 and the various promotions given to respondents Nos. 8 to 67. At this stage, it will be convenient to first dispose of the contentions urged by the petitioners, against the validity of the promotions given to respondents Nos. 8 to 67 during the period between 1968 and 1975. In our opinion, the challenge raised by the petitioners against those promotions is liable to be rejected on the preliminary ground that it is most highly belated. No valid explanation is forthcoming from the petitioners as to why they did not approach this Court within a reasonable time after those promotions were made, in case they really did feel aggrieved by the said action of the Department. This writ petition has been filed only in the year 1979, and after such a long lapse of time the petitioners cannot be permitted to assail before this Court the promotions that were effected during the years 1968 to 1975. A party seeking the intervention and aid of this Court under Article 32 of the Constitution for enforcement of his fundamental rights, 901 should exercise due diligence and approach this Court within a reasonable time after the cause of action arises and if there has been undue delay or laches on his part, this Court has the undoubted discretion to deny him relief. [See Rabindra Nath Bose & Ors vs Union of India & Ors. In this case before us, many of the impugned promotions had been effected during the year 1968 69 onwards. Three of the present petitioners had challenged the validity of some of the promotions granted to various deputationists as well as the ranking given to them in a seniority list of ARC personnel published in 1971 by filing Civil Writ Petition No. 1020 of 1971 in the Delhi High Court. Though the High Court by its judgment dated April 7, 1972 dismissed that writ petition on the ground that it was premature inasmuch as it had been submitted before it by the counsel for the Union of India that all the existing arrangements in the ARC were purely ad hoc and that service rules would be framed shortly, the High Court has recorded clear findings in the judgment that the principle adopted for the preparation of the combined seniority list of 1971 could not be said to have violated Articles 14 to 16 of the Constitution and that it had not been shown by the writ petitioners in that case that the impugned promotions had been effected in violation of any "statutory rules, constitutional or statutory limitations or even administrative instructions" . If the petitioners were dissatisfied with the aforementioned findings entered by the Delhi High Court, one should have expected then to approach this Court at least soon after that decision was rendered by that High Court in April 1972 we are not suggesting that the findings of the High Court operate as res judicata against the petitioners in these proceedings. There is no satisfactory explanation forthcoming from the petitioners as to why no action at all was taken by them to challenge the validity of the impugned promotions given to respondents Nos. 8 to 67 from 1968 onwards for a period of nearly seven years subsequent to the aforesaid pronouncement by the Delhi High Court. Quite apart from what has been stated above on the aspect of 'laches ', on the merits also we do not find any substance in the contentions urged by the petitioners against the legality of the promotions granted to respondents Nos. 8 to 67 during the period between 1968 and 1975. At that time, as already, noticed, the ARC was a H 902 purely temporary organisation which was being continued on a year to year basis. There was no regular cadre of posts in the said organisation, nor were there any rules governing the mode of recruitment etc. All the appointments made in the organisation, whether of direct recruits like the petitioners or of deputationists like respondents Nos. 8 to 67, had been made only on an ad hoc basis. Since there was no regularly constituted service, the principles contained in the office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs (Annexure 'C '), on which strong reliance was placed by the petitioners, could have no application at all to the temporary ARC organisation. It is clear from a reading of the said Memorandum (Annexure 'C ') that its provisions will get attracted only in relation to Government servants appointed to the Central Services. During the period aforementioned, the ARC was just a Task Force set up on an ad hoc and experimental basis for the purpose of carrying out certain functions of a highly specialised and sensitive nature. Quite naturally, the personnel required for manning the organisation had to be picked and grouped together in the manner best suited to effectuate the object and purpose underlying the creation of the organisation. So long as there was no regular cadre and hierarchy of posts and no rules laying down the mode of appointment/promotion to those posts it was perfectly open to the Government to fill up the posts by securing the services of persons who, in its opinion, were, by virtue. Of their experience and qualifications, best suited for being entrusted with the specialised kinds of functions attached to the various posts. We have already seen that the petitioners had been appointed as ACIOs II(DFOs) only on a temporary and ad hoc basis. Such appointments did not confer on them any rights even to the posts of DFos. It had also been categorically made clear to them in the letters containing the offers of appointment that such appointments will not confer on them any right to the permanently absorbed in the post if and when it was made permanent. There was also not even any executive order or administrative instruction declaring the post of DFo as the feeder category for appointment to the higher posts. In such circumstances, it has to be held that the petitioners had no legal right or claim for being appointed by promotion to the higher posts of ACIO I (FO), ATO, etc. It has been averred in the counter affidavit that as and when vacancies arose in the higher posts of FO. ATO, etc, in the tem 903 porary ARC organisation in the early years after its formation, deputationists who, by virtue of their greater experience in the particular type of specialised work, were considered suitable for carrying out the duties attached to those posts on deputation basis to the category of FO, ATO, etc. Subsequently, after the direct recruits had gained sufficient experience, some of them who were found suitable, were also appointed as ACIOs I, ATOs, etc. No illegality of any kind was involved in the action so taken by the concerned authorities to fill up the vacancies in the higher posts by ad hoc appointments of persons possessing the requisite ability and experience. We have, therefore, no hesitation to reject the contention put forward by the petitioners that the promotions granted to respondents Nos. 8 to 67 during the period between 1968 and 1975 were illegal and violative of Articles 14 and 16 of the Constitution . We shall now proceed to deal with the challenge raised by the petitioners against the provisions contained in the impugned rules. It is under Rule 3 of the Rules that the Aviation Research Centre (Technical) Service was constituted for the first time. The com position of the service has been described in Rule 4, wherein the designations, classifications and scales of pay of the various posts included in the Service have been set out. Rule 6 provides for the initial constitution of the Service. The petitioners have challenged f the validity of sub rule (I) of this Rule which declares that all persons holding, as on the appointed day, any one of the categories of posts specified in Rule 4, whether in a permanent or temporary or officiating capacity or on deputation basis, shall be eligible for appointment to the service at the initial constitution thereof. When a new service is proposed to be constituted by the Government, it is fully within the competence of the Government to decide as a matter of policy the sources from which the personnel required for manning the Service are to be drawn. It is in the exercise of the said power vested in the Government, that provision has been made by sub rule (I) that all the persons who, as on the appointed day were already working in the ARC organisation on a temporary and ad hoc basis and had thereby acquired valuable experience in the specialised kinds of work would be eligible for appointment to the new service at the stage of its initial constitution. The writ petitioners as well as the deputationists, namely, respondents Nos. 8 to 67 were all functioning in the temporary ARC organisation on an ad hoc basis. Equal opportunity was given to all of them by sub rule (I) of Rule 6 to get permanently appointed in the new ARC 904 (Technical) Service subject to their being found fit by the Screening Committee referred to in the sub rule (2). We fail to see how the said provision can be said to be violative of Articles 14 and 16 of the Constitution. The attack levelled by the petitioners against sub rule (1) of Rule 6 is thus manifestly devoid of merit. The next contention urged by the petitioners is that sub rule (2) of Rule 6 confers arbitrary and uncanalised powers on the Screening Committee and is hence violative of the principles of equality of opportunity enshrined in Article 16 of the Constitution. Another point urged is that the said sub rule in so far as it provides that the Screening Committee should discharge its functions subject to such general or special instructions as the controlling authority may give, confers an arbitrary and unlimited power on the controlling authority and enables the controlling authority to impose its will and whims on the Screening Committee. We see no force in either of the aforesaid contentions. The provision for constitution of a Screening Committee for adjudging the suitability of the persons in the field of eligibility for permanent appointment to the service is absolutely reasonable. The power conferred on the controlling authority to issue general or special instructions to a Screening Committee is really in the nature of a safeguard for ensuring that the rules relating to the initial constitution of the service were applied fairly and justly. The 'controlling authority ' is the "Secretary, Department of Cabinet Affairs". When supervisory powers are entrusted to such a high and responsible official, it is reasonable to assume that they will be exercised fairly and judiciously and not arbitrarily. We are, therefore, unable to uphold the contention of the petitioners that the provisions of sub rule (2) of Rule 6 suffer from the vice of the arbitrariness or excessive delegation. The petitioners have also attacked the provisions contained in sub Rule (2) of Rule 6 enjoining the Screening Committee to arrange the names of persons considered suitable for appointment in each grade in the order of seniority based on the date of continuous appointment in the grade in which they were absorbed or in an equivalent grade. We have already found that the basic assumption on which the petitioners have founded the attack against this provision, namely, that the petitioners were all holding regular appointments as DFOs in the ARC organisation from the dates of their initial recruitment and that the deputationists (respondents Nos. 8 to 67) l were functioning in their respective posts only on an ad hoc basis is incorrect and fallacious. As on the date of the promulgation of the rules and the initial constitution of the ARC. (Technical) Service, 905 petitioners as well as respondents Nos. 8 to 67 were all holding the various posts in the ARC organisation only on a temporary and ad hoc basis. While the petitioners had no substantive lien in respect of or title to any post in any department, the deputationists were having a lien on the posts held by them in their parent departments. l he petitioners, therefore, formed a different class consisting of persons who were virtually being recruited for the first time into regular Government service, as distinct from the respondents 8 to 67 who had been holding posts in their parent departments for several years on the regular basis who formed a separate class When recruitment to the new Service was being made from two different classes of sources, it was necessary for the Government to evolve a fair and reasonable principle for regulating the inter se seniority of the personnel appointed to a new Department. What has been done under Rule 6 is to give credit to the full length of continuous service put in by all the appointees in the concerned grade, whether such service was rendered in the temporary ARC organisation or in other departments of the Government. The criterion applied, namely the quantum of previous experience possessed by the appointees measured in terms of the length of continuous service put in by them in the concerned or equivalent grade is perfectly relevant to the purpose underlying the framing of the rule. In our opinion, the aforesaid principle laid down hl rule 6(2) for determination of inter se seniority was quite reasonable and fair and it did not involve any arbitrary or unfair discrimination against the petitioners. The attack levelled by the petitioners against the said provision contained in sub rule (2) will, therefore, stand repelled. In the light of what we have stated above, the provision contained in rule 7 that the seniority of persons appointed on permanent basis in each grade at the initial constitution of the service shall be in the order in which they are shown in the relevant list prepared by the Screening Committee in accordance with provisions of Rule 6 has also to be upheld as perfectly valid and constitutional. We see no substance at all in the challenge raised by the petitioners against Rule 8 of the impugned rules and the provisions of Schedule II. Under the said rule, the appointing authority is empowered to fill up every post remaining unfilled immediately after the initial constitution of the various grades in the service as well as 906 every vacancy that subsequently arises by making appointments on promotion, deputation/transfer, re employment after retirement or direct recruitment, in accordance with the provisions contained in Schedule II. At the time of constituting a new service and laying down the mode of appointment to the various posts, it was fully within the powers of the President of India to prescribe the methods by which vacancies arising in the different categories of posts in the department should be filled up and this is precisely what has been done as per rule 8 and the provisions of Schedule II. The petitioners have not been able to make out that the provisions of Rule 8 and Schedule II are tainted by illegality of any kind. The next point urged by the petitioners is that the Screening Committee had acted in violation of the principles of natural justice in as much as it had not afforded to the petitioners an opportunity to make their representations before the Committee. The function entrusted to the Committee was to adjudge the suitability of person who were holding posts in the different grades in the temporary ARC organisation for permanent appointment in the newly constituted ARC (Technical) Service on the basis of the records relating to their past performance in ARC organisation, etc. We do not see how the principles of natural justice can get attracted in such a context. The law does not cast any obligation on a Committee discharging such a function to invite representations from the persons in the eligible categories and consider those representations while adjudging their suitability for appointment into the new service. Hence we do not find any substance in the argument advanced on behalf of the petitioners that there was a violation of principles of natural justice by the Screening Committee. The petitioners have put forward a further plea that the promulgation of the impugned rules was deliberately delayed till April 1976 with a view to confer an unfair advantage on the deputationists, several of whom were granted promotions to higher posts during the v period between 1971 when the decision to make the department permanent was taken and April 26, 1976 when the impugned rules were finally issued. We find it stated in the counter affidavit filed on behalf of the first respondent that the draft rules were prepared by the Directorate of ARC and submitted to the Government in 1972 itself, but, on a detailed scrutiny being made, it was found that the 907 said draft required substantial modification in several respects. Revised rules were, therefore, drafted and submitted to the government late in 1974. The first respondent has submitted that the time taken in finalising the rules was due to the fact that intensive examination of all the relevant aspects had to be done by various concerned Ministries before the draft rules could be finally approved and issued. We are inclined to accept the explanation offered by the first respondent for the delay in promulgation of the Rules, and we hold that the plea of mala fides put forward by the petitioners is not established. All the promotions given to the deputationists as well as to the direct recruits during the period between 1968 and 1976 had been effected only on a purely ad hoc basis. Even though temporary in character, those promotions had been made only on the basis of the recommendations made by the Departmental Promotion Committee which had effected the selections by applying uniform and relevant considerations, such as length of service in the lower grade and over all experience and performance. It is stated in the counter affidavit that, while making such promotions for appointments to higher posts, no deputationists with lesser years of service vis a vis direct recruits had been given ad hoc appointment to any higher post. The first respondent has submitted that in making the promotions aforementioned, the authorities concerned were actuated only by considerations of the best interests of the department and the maintenance of a higher standard of efficiency in its function and there was no intention whatever to confer any advantage to the deputationists or to discriminate against the direct recruits. We do not find any ground for not accepting as correct and true the aforesaid submissions made on behalf of the first respondent. Accordingly we hold that in granting promotions to the deputationists during the period between 1971 and 1975 respondents 1 to S were not actuated by any intention to confer an unfair advantage on the deputationists. Another argument advanced on behalf of the petitioners was that at the time of their initial appointment in the ARC, they had been given high expectations regarding their promotional prospects from the post of DFO, and that by bringing in large number of deputationists and fitting them into the higher posts, the Government had illegally gone back on the promise held out to the petitioners. We see no merit in this contention. As already noticed, in the letters 908 sent to the petitioners offering appointment to the category of AClO II (DFO), it had been made abundantly clear that their appointments would be purely temporary and ad hoc in nature and would not confer on them any claim for permanent absorption even in the post of DFo. No subsequent representation is shown to have been made to the petitioners by the Department at any time prior to 1976 holding out any prospects of Department permanent absorption in service or promotions to higher grades. The petitioners continued to function in the ARC organisation only on ad hoc basis till the rules were promulgated and they were absorbed into the new ARC (Technical) Service at the stage of its initial constitution on the basis of the provisions contained in Rules 3 and 6. It is significant to note in this context that it was only after the petitioners had seen the impugned rules and had gained full knowledge of the provisions contained therein relating to absorption and seniority in the department, that they opted for absorption in the service in accordance with those rules and it was on the basis of the options so exercised by them that they were appointed in the hew constituted service. The petitioners have also put forward a case that despite the provision contained in rule 6 (3) there was, as a matter of fact, no adjustment of the suitability of the various officers by the Screening Committee and, instead, there was a wholesale absorption of all the personnel in the posts which they were holding in the ARC organisation as on April 26,1976. This allegation has been strongly refuted in the counter affidavit filed by the first respondent wherein it has 11 been staled that the Screening Committee has examined individually 9 the cases of all the concerned officers before deciding about their ,, suitability for permanent absorption in the service and prepared ranked lists strictly in accordance with the principle laid down in Rule 6 (2). The learned Solicitor General, appearing on behalf of the Union of India. submitted before us that the files containing the minutes of the meetings of the Screening Committee and the ranked select lists prepared by the Committee for the different grades were available with him in Court and he offered to place them before us for our perusal. In the circumstances, we see no reason not to accept as correct the aforesaid averments contained in the counter affidavit of the first respondent. It then follows that this contention of the petitioners has also to fail. Another point urged on behalf of the petitioners was that some of the deputationists were not holding in their parent depart 909 ments posts equivalent in rank to those in which they were appointed on deputation in the ARC organisation and such persons should not have been subsequently absorbed in the new ARC Service In those higher categories. We are unable to uphold this contention. At the time when the ARC was a mere temporary organisation without any recruitment rules the posts in that organisation could be filled up by appointing suitable hands possessing the requisite specialised skill and experience drawn from any source in respect of whatever was the position occupied by such appointees in their parent service, if any. Likewise, at the stage of the initial constitution of the new ARC (Technical) Service the Government had the right and full freedom to decide from what all sources the personnel for the new Department should be drawn and there is no warrant in law for imposing a limitation that in taking persons from other departments the field of choice should be restricted to persons holding any particular ranks in those other departments. The relevant consideration for appointment of personnel in a department of this nature has necessarily to be the suitability of the person concerned for the specialised type of the work for adjudging which the experience and expertise that he possesses in carrying out such functions would be the most relevant criterion. Once appointments are made to the various grades in the new service the inter se seniority of the persons appointed in each category or grade is to be fixed under Rule 6 on the basis of the total length of service in the particular or equivalent Grade and this, in our opinion, is a perfectly reasonable principle. The argument advanced by the petitioners that the seniority of the deputationists who have been absorbed into the ARC (Technical) Service is governed by the provisions of Article 26 (7) (iii) of the Civil Service Regulations is wholly devoid of merit. Article 26 (7) (iii) applies to cases "where a person is appointed by transfer in accordance with a provision in the recruitment rules providing for such transfer in the event of non availability of candidates by direct recruitment or promotion". The absorption of the erstwhile deputationists in the ARC (Technical) Service at the time of its initial constitution was not by such transfer and hence the provisions of Article 26 (n (iii) are not attracted. We do not also see any merit in the argument put forward on behalf of the petitioners that sub rule (6) of Rule 6 of the impugned 910 Rules enables the Screening Committee to absorb in a lower grade such of the deputationists who were found unsuitable to be absorbed in the higher posts which they were holding as on April 26, 1976. Firstly, this is not a provision applicable only to the erstwhile deputationists. On the other hand, the sub rule itself makes it very clear that its provisions apply equally to all the persons who are eligible for absorption in the service under sub rule (1) irrespective of whether they are deputationists or direct recruits. Sub rule (6) comes into operation when a person in the eligible category holding a post in a higher grade on the appointed day, who has been found suitable for permanent appointment in such higher grade cannot, however, be absorbed in the said grade on account of non availability o a vacancy therein. What the sub rule lays down is that in such eventuality the Screening Committee may recommend such a person for permanent appointment in a lower grade and thereby retain his services in the new Department. We fail to see how this provision can be said to infringe any of the fundamental rights of the petitioners. Lastly, it was contended on behalf of the petitioners that in preparing the impugned seniority list dated November 6, 1978, the principles laid down in Rule 6 (3) and Rule 7 have not been correctly observed, and that by reason of the deviation from those principles, the promotional prospects of some of the petitioners have been adversely affected. No concrete instance of any such deviation from the principles set out in Rule 6 (3) and Rule 7 has been brought to our notice. All the same, we think it necessary to observe that this Court expects that the provisions of Rule 6 (3) and Rule 7 will be strictly conformed to, both in letter as well as in spirit, by respondents Nos. I to 7, and that in case it is found on examination that the ranking assigned to any of the petitioners in the impugned seniority list dated November 6, 1978 is not consistent with the principles laid down in the aforementioned rule, necessary action should be immediately taken to rectify the said defect, and if the promotional chances of any of the petitioners have been adversely affected by reason of such defect in the seniority list, such promotions should also be reviewed after following the requisite procedure. We direct that the petitioners may bring to the notice of the first respondent specific instances, if any, of deviation from the principles enunciated in Rule 6 (3) and Rule 7 resulting in incorrect assignment of seniority and rank to them by submitting representations before the first respondent within a period of six weeks from today. In 911 case any such representations are received, they will be duly examined by the first respondent and appropriate orders will be passed thereon in the manner indicated above as expeditiously as possible. Subject to the above observations and directions, we dismiss this writ petition. The parties will bear their respective costs. [/INST]In the elections to the State Assembly in 1977 the appellant was declared elected. The election petitioner, who was one of the defeated candidates, alleged in his petition that the appellant had filed a false return of the expenses and thereby committed corrupt practice within the contemplation of section 123(6) of the Representation of the People Act, 1951. Accepting the allegation the High Court set aside his election. Allowing the appeal. ^ HELD: (1) The High Court has not made any attempt to determine whether there was any legal and acceptable evidence to prove corrupt practice alleged against the appellant. It is well settled that a charge under section 123 of the Act must be proved by clear and cogent evidence as a charge for a criminal offence. It is not open to the Court to hold that a charge of corrupt practice is proved merely on a preponderance of probabilities but it must be satisfied that there is evidence to prove the charge beyond a reasonable doubt. [635 B D] K.M. Mani vs P.J. Antony & ors. ; referred to. (i) In the instant case the petitioner himself had no personal knowledge as to the actual expenses in hiring taxies and his source of information was based on what others said. The evidence led by the petitioner falls far short of the standards required by law. [636 D, 637E] (ii) The petitioner claimed that he maintained a diary of the electioneering. Yet he did not produce it in Court from which a natural presumption arises that if he had produced the diary it would have gone against his case. [637 G H] (2) Corrupt practice being in the nature of a fraud, it is not permissible to plead one kind of fraud or one kind of corrupt practice and prove another though they may be inter connected. The High Court has rightly found that the petitioner pleaded that it was the appellant who had held a feast at which he invited his voters and exhorted them to vote for him. But the evidence shows that the appellant had not held the feast but it was hosted by one of his agents at which the appellant was present and, therefore, it could not be proved that the feast was held at the instance of the appellant. [638 G 639A] </s>

<s>[INST] Summarize the judgementAppeals Nos. 347 to 350 of 1960. Appeals by special leave from the judgment and order dated January 18, 1953, of the Incometax Appellate Tribunal, Calcutta Bench, in Incometax , Appeals Nos. 7062 7064 and C.P.T.A. No. 548 of 1951 52. N.C. Chatterjee, A. V. Viswanatha Sastri and D.N. Mukherjee, for the appellants. K.N. Rajagopal Sastri, and D. Gupta, for respondent. July 17. The Judgment of the Court. was delivered by HIDAYATULLAH, J. These appeals with special leave, were filed by one Kanhaiyalal Lohia, who died during the pendency of the appeals, and who 841 is now represented by the executors appointed under his will. By these appeals, which are consolidated, the appellants question an order dated January 8, 1953, of the Income tax Appellate Tribunal (Calcutta Bench) in appeals filed by the Department against the order of the Appellate Assistant Commissioner. The Tribunal reversed the order of the Appellate Assistant Commissioner and restored that of the Income tax Officer. Kanbaiyalal Lohia made petitions under section 66 (1) to the Tribunal, setting out a number of questions of which the following was I referred to the High Court : "Whether in the cirumstances of this case where the Income tax Officer, District III (2), separately assessed the business run in the name of Brijlal Nandkishore as belonging to a partnership firm consisting of Brijlal and Nandkishore, the Income tax Officer, Non Companies E. P. T., District can assess the income from the same business in the hands of the assessee ?" This question was answered against him. Kanhaiyalal Lohia also applied under section 66 (2) to the High Court of Calcutta for reference of the other questions, but failed. No appeal has been filed by him against the order of the High Court refusing to direct the tribunal to state a case or against the decision on the question referred, and the present appeals have been filed against the decision of the Tribunal. At the hearing of these appeals, we asked counsel for the appellants how, in view of the recent decisions of this Court in Chandi Prasad Chokhani vs State of Bihar (1) and Indian Aluminium Co. Ltd. vs Commissioner of Income tax (2), these appeals were maintainable, if the two decisions of the High Court had become final. Mr. A. V. Viswanatha Sastri relied upon the decisions in (1) ; (2) Civil Appeal No. 176 of 1959 decided on April 24, 1961. 842 Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax West Bengal (1) and Sardar Baldev Singh vs Commissioner of Income tax Delhi and Ajmer (2), and pointed out that in those cases, appeals were entertained from the Tribunal 's order, though he conceded with his usual frankness that special circumstances must exist. He contended that this was a case in which such circumstances existed. We shall deal with the appeals from that point of view, because unless special circumstances exist, the appeals must be regarded as not competent, in view of our recent rulings above mentioned. Kanhaiyalal Lohia, who was a prosperous dealer in jute, had his head office in Calcutta. He had no issue, and his family consisted of his wife,, his brother, Brijlal Lohia and Brijlal 's son, Nandkishore Lohia. The properties of Kanhaiyalal Lohia were self acquired, and he was always assessed as an individual. He maintained accounts according to the Ramaswami year. In his return for the account year, April 14, 1943 to April 1, 1944 corresponding to the assessment year, 1944 45), he indicated that he had closed down in the middle of 1943 his purchasing centres in East Bengal, which stood in the name of Nandkishore, and that, he had gifted to his brother Rs. 5,1 1, 1. 01 on July. 12, 1943, and to his nephew, Rs. 2,50,000 on September 30, 1943. He showed income of his East Bengal business only up to the closure of that business. Brijlal and Nandkishore entered into partnership between themselves, and started a business under the name and style of "Brijlal Nandkishore. " They took over the purchasing centres in East Bengal. They opened accounts in banks in the name of "Brijlal Nandkishore", and became members of the Baled Jute Association, and the Jute ,Baler,sAssociation, and traded in their own names. A deed of partnership between them was also executed on August 5, 1953. The business of Kanhaiyalal Lohia and of "Brijlal Nandkishore (1) ; (2) ; 843 was within the jurisdiction of the same Incometax Officer. In the assessment of the partnership firm, notices were issued to the partnership both under section 22(2) and section 34, and the partner ship also applied for registration under section 26A of the Income tax Act,which was granted. The partnership was also assessed for the years, 1945 46 and 1946 47. The assessment of Kanhaiyalal Lohia was completed by the Income tax Officer, Non Companies Income Tax cum Excess Profits Tax District, and during the assessment for the year, 1945 46 a notice was issued under section 22(4) of the Income Tax Act on August 24, 1949, calling for accounts of the head office at Calcutta and also the branches including the business being carried on as "Brijlal Nandkishore", Kanhaiylal Lohia proved, the above facts, producing the books of account, bank statements, registration certificate of "Brijlal Nandkhore" and evidence showing the membership of "Brijlal Nandkishore" of the two Associations. He also produced letters from four persons including one Sri A.L. Mazumdar who was questioned by the Income tax Officer without notice to ' Kanhaiyalal Lohia and whose statement was also recorded. Kanhaiyalal Lohia objected to this procedure, but the Income tax Officer, it is alleged, paid no heed to his protests, and on. March 31, 1950 the assessment was completed, and the income of the branches under the direct control of "Brijlal Nandkishore" was pooled with the income of Kanhaiyalal Lohia. The Income tax Officer held that the gifts were not bonafide, and were colourable transactions. He relied upon the statement of Sri A. L. Mazumdar, which was recorded when Kanhaiyalal Lohia was not present. Against the assessment, Kanhaiyalal Lohia, appealed to the Appellate Assistant Commissioner before whom two more letters from leading businessmen were filed. The Appellate Assistant Commissioner accepted the letters which were filed, and held that the gifts were proved and were bona fide and directed the exclusion 844 of the income of "Brijlal Nand kishore" from the assessment of Kanhaiyalal Lohia. The order of the Appellate Assistant Commissioner was pronounced on December 27, 1951. The Department appealed to the Appellate Income tax Tribunal, Calcutta Bench. The Tribunal disagreed with the Appellate Assistant Commissioner, all held on January 8, 1953, that the gifts were not proved by the assessee by unimpeachable evidence, and that the income of "Brijilal Nandkishore" was rightly included in the assessment. As stated already,. applications under section 66 (1) and section 66 (2) were made to the Tribunal and the High Court respectively. The Tribunal referred one question, but declinedto refer the. other quest ions. The High Court then moved under section 66 (2) but without success. The High Court agreed with the Tribunal and answered the question which was referred, against Kanhaiyalal Lohia. Before the High Court, Kanhaiyalal 's counsel, Dr. Pal, admitted that he. could not persuade the Court to answer the referred question against the, Department, and it appears that it was conceded by the Department before the High Court that the assessment of "Brijlal Nandkishore" would be cancelled. Kanhaiyalal Lohia then filed the present appeals against the order of the Tribunal dated January 8, 1953. This Court has pointed out in Chandi Prasad, Chokhani vs State of Bihar(1) and Indian Aluminium Co., Ltd. vs Commissioner of Income tax (2) that the two cases in which this Court interfered with appellate orders of a Tribunal and relied upon before us, were of a special kind. In Dhakheshwari Cotton Mills case(3) there was a breach of the principle, of natural justice, and that was held sufficient to entitle an aggrieved party to come to this Court against the appellate order of the Tribunal under article 136. In (1) ; (2)Civil Appeal No. 176 of 1959 decided on April 24, 1961. (3) ; 845 Baldev Singh 's case (1) this Court entertained an appeal against the appellate order of the Tribunal, because limitation to take other remedies was IS barred without an fault of the assessee concerned. The ratio in each of these cases is that a circumstance which cannot be corrected by the procedure of a stated question of law on a statement of the case may afford a ground for invoking the jurisdiction of Court under article 136. That ratio does not apply, where a question of law can be raised, and is capable of being answered by the High Court or on appeal by this Court. An appeal against an order of the High Court deciding a question referred or against a refusal to call for a statement can be brought before this Court under section 66A, if the High Court decides the question referred and under article 136, if the High Court refuses to call for a statement. In the present case, the order of the High Court on the question referred was not brought before this Court by the ordinary, mode indicated in the Indian Income tax Act, presumably because of the concession of counsel that he could not claim that the question be answered in favour of the assessee and the attitude of the Department that the assessment of "Brijlal Nandkishore" would be cancelled. The order refusing to call for a statement on questions other than the one referred is also not questioned before us. The attempt is to bring this case within the ratio of Dhakeshwari Cotton Mills ' case(2),and in support, it has been pointed out mainly that the examination of Sri A. L. Mazumdar in the absence of Kanhaiyalal Lohia was against the principles of natural justice. The statement of Sri A. L. Mazumdar was taken on March 28, 1950, and it is recorded as follows : "Mr. Mazumdar is questioned by me as to what be knows regarding the alleged gift as recorded in the books of Kanhaiyalal Lohia in favour of Brijlal and Nand Kishore. He says (1) ; (2) ; 846 that I don 't remember things very distinctly but 1 can say that the gifts to Brij Lal or Nand. Kishore were not made in my presence as alleged. Mr. Kanhaiyalal Lohia used to tell me that his brother and nephew are idling away their time hence I shall give them a. gift and make them work by that money. The partnership deed was most probably drawn up by me. The gift, was reported to have been made to Brij Lal and Nand Kishore before I should have taken up the drafting of the deed. Kanhaiyalal told me several times that he wanted to separate his brother and nephew. When the firm was started then Brijlal came to me and asked me if father and son 's partnership deed could be drawn up. I don 't know anything else than this in the matter. " The lie given by Sri Mazumdar to the statement of Kanhaiyalal Lohia has affect his credibility. The order sheet shows that Mr. B. Sen Gupta took a copy of Sri Mazumdar 's statement and expressed a desire to cross examine him; but when the opportunity was given, he failed to appear. It is impossible to think in these circumstances that there has been any breach of the principles of natural justice. The order sheets of March 29 and 30, 1950 clearly record the absence of Mr. B. Sen Gupta. In our opinion, there is no breach of the principles of natural justice in this case to entitle the appellants to invoke the ruling in Dhakeshwari Cotton Mills case It was contended before us that the finding of the Tribunal was perverse, and that on an examination of the total circumstances, it is quite clear that the gifts were not only real, but were acted upon. This was a matter within the jurisdiction of (1) ; 847 the Appellate Tribunal as the final fact finding authority. The Tribunal acted within its powers in refusing to accept the evidence tendered, and looking at the circumstances of the. case, we cannot say that the finding has been perversely reached. For a number of years, the brother and the nephew were supported by Kanhaiyalal Lohia, and it does not appear that a gift of even a small sum was made to them to put them on their legs. Suddenly in the year 1943, 'Kanhaiyalal Lohia made up ' his mind to put them in business with a gift of the order of Rs. 7,60,000 odd. For this purpose, he had to overdraw his accounts with the Bank and to pay interest to the Bank. It does not appear why he felt that the establishment of his brother and nephew in business should be made on such a grand scale, which involved him in debt. This circumstance, taken with the fact that Mr. Mazumdar stated that he had always complained that they were good for nothing and were idlers, makes the transactions auspicious. It was presumably done with a view to reduce the assessable profits in the hands of Kanhaiyalal Lohia, and on the evidence, the Tribunal was entitled to hold, as it did, that this was a sham transaction. In our opinion, no special circumstances exist, on which the appellants can claim to come to this Court against the decision of the Tribunal, by passing the decision of the of High Court on the question referred and there fusal 'the High Court to call for a statement of the case from the Tribunal on questions which the Tribunal refused to refer to the High Court. The appeals are, therefore, within the rulings of this Court in Chandi Prasad Chokhani vs State of Bihar (1) and Indian Aluminium Co., Ltd. vs Commissioner of Income tax(2), and must be regarded as incompetent. The appeals are dismissed with costs, one set. Appeal dismissed. [/INST]The appellant supported his brother and his nephew for a number of years as they were doing no work. In the year 1943 he made a gift of Rs. 7,60,000 odd to them though he had to overdraw his account with the Bank and to pay interest or the amount borrowed to raise the money. He also made a transfer of some of his businesses to them. His explanation was that these gifts were made to set these two persons up in business. The Income tax Officer held that the gifts were riot bonafide and he assessed, the income of all the businesses in the hands of the appellant. The appellant had produced letters from some businessmen in support of his case. One such person was one M. who was examined by the Income tax Officer without notice to the appellant. Later, however, a copy of the statement of M. was taken by the appellant 's counsel and at his request M. was summoned for cross examination but on the date fixed none appeared for the appellant who was also absent. The appellant made a petition under section 66(1) of the Income tax Act to the Tribunal asking that a number of questions of law be referred to the High Court. Only one question was referred by the Tribunal which declined to refer the other questions. In the High Court the question referred by the Tribunal was answered against the appellant on the admission of his counsel. The High Court was moved also under section 66(2) to order a reference of the remaining questions but the High Court rejected the application. The appellant did not appeal against these two orders of the High Court and instead filed appeals against the orders of the Tribunal. The appellant relied upon two cases of this Court viz. Dhakeshwari Colton Hills ' Case and Baldev Singh 's case and contended that tile appeal to this court was competent. Held, that the appeals were incompetent in view of the decisions of this Court in Chandi Prasad Chokhani vs State of Bihar and The Indian Aluminium Co., Ltd. 840 Held. further, that an appeal against an order of the High Court deciding a question referred or against a refusal to call for a statement can only be brought before the Supreme Court under section 66(A) of the Income tax Act, if the High Court decides the question referred, and under article 136 of the Constitution if the High Court refuses to call for a statement. There can be no direct appeal to the Supreme Court by passing the decisions of the High Court. Held,. also, that there was neither any breach of the principles of natural justice in this case nor the existence of circumstances as existed in Baldev Singh 's case to justify the appeal. Held, that where a witness has been examined by the Income tax Officer behind the back of the assessee but a copy of the statement of the witness is made available, to the assessee and an opportunity is given to him to cross examine the witness, thereis no breach of the principle of natural justice. ChandiPrasad Chokhani vs State of Bihar. (1962) 2 S.C.R. 276and Indian Aluminium Co., Ltd., vs Commissioner of Income tax. (Civil Appeal No. 176 of 1959, decided on April 24, 1961) followed. Dhakeshwari Cotton Mills Ltd. vs Commissioner of Income. tax ; and Sardar Baldev Singh vs Commissioner of Income tax, Delhi and Ajmer. ; , explained. , </s>

<s>[INST] Summarize the judgementCivil Appeal No. 1601 of 1971. Appeal by Special Leave from the Judgment and Order dated the 30th March, 1971 of the Madras High Court in C.R.P. No. 19883 of 1968. T.S. Krishnamurthy Iyer, Gopal Subramanium and Mrs. Saroja Gopalakrishnan for the Appellant. P. Govindan Nair, Miss Seita Vaidyalingam and Mrs. Baby Krishnan for the Respondent. The Judgment of the Court was delivered by PATHAK, J. This appeal by special leave is directed against an order dated March 30,1971 of the Madras High Court dismissing a revision petition arising out of proceedings under the Madras City Tenants Protection Act, 1921. Almost fifty years ago, on September 19, 1934, the respondent and his mother granted a lease in favour of one Abhirama Chettiar in respect of 50 cents of open land in Coimbatore for a period of twenty years on an annual rent of Rs. 1080 for the construction of a building suitable for use as a theatre. Abhirama Chettiar constructed a theatre on the site. Subsequently, on July 14, 1937 Abhirama 332 Chettiar assigned his rights to the appellant. The appellant attorned to the respondent and was accepted as a tenant. In March, 1964, the respondent served notice upon the appellant calling upon it to vacate the property and surrender vacant possession of the site. The appellant refused to do so, and set up an oral agreement entitling it to an extension of the lease for a further period of twenty years. The respondent filed a suit against the appellant for its ejectment. Shortly thereafter, the appellant filed a suit against the respondent for specific performance of an agreement to extend the lease. On January 16, 1957 the learned Subordinate Judge, Coimbatore, decreed the respondent 's suit for possession with mesne profits and dismissed the appellant 's suit. The appellant appealed to the High Court against the two decrees. During the pendency of the appeals the Madras City Tenants ' Protection Act, 1921 was extended to the town of Coimbatore with effect from February 19, 1958. The appellant filed Civil Miscellaneous Petition No. 1835 of 1958 in the appeal arising out of the suit for ejectment and prayed for directions under section 9 of the Act for the sale of the site to it. The application was resisted by the respondent on the ground that section 9 was void. On July 28, 1958 Panchapkesa Iyer J. passed the following order: "I declare that the petitioner is entitled to purchase the site concerned in the petition under Section 9 of the Act, but on paying the full market value current today as freely undertaken by himself. The lower Court will appoint a suitable experienced commissioner to fix the value of the site based on the market value prevalent this day (28th July 1958). The Commissioner 's fees will be paid by the commissioner who will bear it himself. In this petition all the parties will bear their own costs. As soon as this order becomes final the petitioner will withdraw A.S. No. 100 of 1957 and 255 of 1957 on the file of this Court, as infructuous as undertaken by him, and they will then be dismissed without costs. " The petition was remitted by the learned Judge to the Subordinate Court, Coimbatore for appointing a Commissioner to fix the market value of the site. Against that order the respondent preferred a Letters Patent Appeal, which was dismissed. The respondent then appealed to the Supreme Court. By its judgment dated March 4, 1964, reported as N. Vajrapani Naidu and Another vs The New Theatre 333 Carnatic Talkies Ltd., Coimbatore the Supreme Court upheld the judgment of Panchapakesa Iyer J. and dismissed the appeal. Now during the pendency of the appeal in the Supreme Court, section 9 of the Madras City Tenant 's Protection published in the Fort St. George Gazette dated July 27, 1960 Act was amended by Madras Act No. XIII of 1960. Upon that, the respondent filed two petitions in the High Court, C.M.P. No. 7241 of 1960 praying for the review and modification of the order dated July 28, 1958 in the light of the amended section 9, and C.M.P. No. 7242 of 1960 praying for stay of the enquiry directed by that order. On April 1, 1964, upon the dismissal of the respondent 's appeal in this Court, the High Court dismissed the appeals against the decrees passed by Panchapakesa Iyer J. as withdrawn. The High Court also transferred the C.M.P. Nos. 7241 and 7242 of 1960 to the trial court for consideration, and directed the trial court to fix the market value and pass final orders in C.M.P. No. 1835 of 1958. The learned Subordinate Judge held that the respondent was entitled to the benefit of the amended section 9 of the Act, and directed the Commissioner to determine the minimum extent of land necessary for convenient enjoyment by the appellant to take steps for fixing the price thereof on the basis of the average market value of the three years immediately preceding the date of its order. C.M.P. No. 7242 of 1960 was dismissed as superfluous. Against the order of the trial court the appellant filed an appeal in the court of the learned First Additional Judge, Coimbatore. The appeal was dismissed. Thereafter, the appellant filed Civil Revision Petition No. 1883 of 1968 in the High Court, and on March 30, 1971 the High Court dismissed the Revision Petition. The High Court affirmed that the case was governed by the amended section 9 of the Act, and rejected the contention of the appellant that C.M.P. No. 7241 of 1960 was not competent in the High Court as the order dated July 28, 1958 by Panchapakesa Iyer J. had been confirmed by the Supreme Court, in appeal. Two contentions have been raised by the appellant in this appeal. The first is that the amended section 9 of the Madras City Tenants ' Protection Act cannot be invoked in the present case, and that section 9, as it stood before the amendment, is the provision which governs the rights of the parties. The other contention is that, in any event, the amended section 9 should have been invoked in the appeal 334 pending in this Court and the relief not having been sought there it was not open to the respondent to seek relief after the appeal has been disposed by this Court and the order of Panchapakesa Iyer J. had acquired finality. Before its amendment by Madras Act XIII of 1960, section 9 provided as follows: "9. (1) Any tenant who is entitled to compensation under section 3 and against whom a suit in ejectment has been instituted or proceeding under section 41 of the , taken by the landlord, may within one month of the date of the Madras City Tenants Protection (Amendment) Act, 1955, coming into force or of the date with effect from which this Act is extended to the municipal town or village in which the land is situated or within one month after the service on him of summons, apply to the court for an order that the landlord shall be directed to sell the land for a price to be fixed by the court. The court shall fix the price according to the lowest market value prevalent within seven years preceding the date of the order and shall order that, within a period to be determined by the court, not being less than three months and not more than three years from the date of the order, the tenant shall pay into court or otherwise as directed the price so fixed in one or more instalments with or without interest. (2) XX XX XX (3) On payment of the price the court shall pass a final order directing the conveyance of the land by the landlord to the tenant. On such order being made the suit or proceeding shall stand dismissed, and any decree or order in ejectment that may have been passed therein but which has not been executed shall be vacated. " Upon its amendment, section 9 now reads: "9 (1) (a) Any tenant who is entitled to compensation under section 3 and against whom a suit in ejectment has been instituted or proceeding under section 41 of the , taken by the landlord, may within one month of the date of Madras 335 City Tenants, Protection (Amendment) Act, 1955 coming into force or of the date with effect from which this Act is extended to the municipal town or village in which the land is situated or within one month after the service on him of summons apply to the court for an order that the landlord shall be directed to sell for a price to be fixed by the court, the whole or part of, the extent of land specified in the application. (b) on such application, the court shall first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. The court, shall then fix the price of the minimum extent of the land decided as aforesaid, or of the extent of the land specified in the application under clause (a) whichever is less. The price aforesaid shall be the average market value of the three years immediately preceding the date of the order. The court shall order that within a period to be determined by the court not being less than three months and not more than three years from the date of the order, the tenant shall pay into court or otherwise as directed the price so fixed in one or more instalments with or without interest. (2) XX XX XX XX (3) (a) on payment of the price fixed under clause (b) of sub section (1) the court shall pass an order directing the conveyance by the landlord to the tenant of the extent of land for which the said price was fixed. The court shall by the same order direct the tenant to put the landlord into possession of the remaining extent of the land, if any. The stamp duty and registration fee in respect of such conveyance shall be borne by the tenant. (b) On the order referred to in clause (a) being made, the suit or proceeding shall stand dismissed, and any decree or order in ejectment that may have been passed therein but which has not been executed shall be vacated. " The question whether the case is governed by the unamended section 9 or the amended section 9 turns on the consideration whether the amendment of section 9 was intended to operate retrospectively or must 336 be construed as prospective only. Let us begin from the beginning. When the Madras City Tenants ' Protection Act was extended to the town of Coimbatore in 1958, the respondent 's suit for ejectment had already been filed and in fact was pending in appeal. It was never disputed between the parties that section 9 would operate retrospectively and affect the rights of the parties in the pending appeal. It was on that basis that the appellant applied to the court for the benefit of the provisions of section 9. The Act itself clearly laid down that section 9 could be invoked in a pending suit or proceeding, for section 10 declared that section 9, among other provisions, would "apply to suits in ejectment . . . which are pending . . in the city of Madras before the commencement of the Madras City Tenants ' Protection (Amendment) Act, 1958, and in any municipal town or village before the date with effect from which this Act is extended to such town or village. " It is to enable a tenant to secure the benefit of section 9 in a pending suit or proceeding that section 9 (1) provides that such tenants may apply under that provision "within one month of the date of the Madras City Tenants ' Protection (Amendment) Act, 1955 coming into force or of the date with effect from which this Act is extended to the municipal town or village in which the land is situated . ." This provision was necessary to enable section 9 to govern pending suits and proceedings. The other provision in section 9 (1) providing that the period of one month would commence from "the service on him of summons" applied to future suits and proceedings. When the Madras Act XIII of 1960 amended the principal Act, it amended not only section 9 thereof but section 10 also. Section 10 was amended in order that the amended provisions should apply to pending ejectment suits and proceedings. The Legislature employed the same device in respect of pending suits and proceedings as it had when respect of pending suits and proceedings as it had when the Act was originally applied to such suits and proceedings, the only difference being that while the original section 10 referred to the then existing provisions of the Act, the amended section 10 referred to the amended provisions, including the amended section 9, of the Act. It is apparent from the provisions of the amended section 9 (1) extracted earlier that the scheme respecting the tenant 's right to purchase and the landlord 's obligation to sell, the land now stood modified. Whereas the original section 9 (1) provided for the making of an application by the tenant within a specified period to the court for an order directing the landlord to sell the land for a price to be fixed 337 by the court, and the court was required to fix the price according to the lowest market value prevalent within seven years preceding the date of the order, and to order, within a period to be determined by the court, the tenant to pay into court or otherwise as directed the price so fixed, the amended section 9 (1) is divided into two clauses. Clause (a) entitles the tenant, within an identical period, to apply to the court for an order requiring the landlord to sell, for a price to be fixed by the court, the whole, or part of, the extent of the land specified in the application. The court can now direct the sale of a part only of the land mentioned in the application and is not compelled to pass an order in respect of the entire land. Clause (b) provides that the court will first decide the minimum extent of the land necessary for convenient enjoyment by the tenant, and thereafter the court will fix the price of such minimum extent of land or of the extent of the land specified in the application, whichever is less. Furthermore, the price is to be the average market value of the three years immediately preceding the date of the order. We are clear in our mind that if the suit was pending on the date when the amendments in the principal Act were brought into force, the amended provisions of the Act will govern the disposal of the suit. Now, the appellant had already filed C.M.P. No. 1835 of 1958 praying for directions under section 9 for the sale of the site. On that application Panchapakesa Iyer J. had passed an order dated July 28, 1958 holding the appellant entitled to purchase the site on paying the full market value current on that date, and had directed the trial court to appoint a Commissioner to fix the value of the site. The order did not dispose of the application and the suit, for under the original section (3) the statute contemplated an order by the court, after it was satisfied that the tenant had paid the price determined by it, directing the conveyance of the land by the landlord to the tenant. It was only after such order was made that the application and the suit would stand concluded. In Gnanaprakasam and Another vs Mahboob Bi and others, a learned Single Judge of the Madras High Court held that even where the original court had made an order fixing the price of the land and directing its payment by the tenant, the application filed by the tenant could not be regarded as at an end so long as final orders directing execution of conveyance and delivery of possession were not passed. The stage for passing such order had not been reached yet when the principal Act was amended by 338 Act XIII of 1960. The suit continued pending on the date when the amendments took effect. And consequently, it was now governed by the provisions of the amended s.9. We may reiterate that the order dated July 28,1958 did not complete the proceeding in the suit. It constituted one stage only in the suit, and inasmuch as the suit was now to be disposed of in accordance with the amended statute the incomplete proceeding had to give way to the operation of the amended statute. As the scheme under the original section stood superseded by the scheme enacted under the amended sections the order of July 28,1958 stood aborted and pursuant to the amended section fresh proceedings had to be taken by the court in order to dispose of the suit. The respondent, therefore, filed C.M.P. No. 7241 of 1960 praying for a review of the order dated July 28,1958 in the light of the amended s.9. In other words, the court was now called upon to dispose of the application of the appellant, not in the light of the provisions of the original s.9 but on the basis of the provisions of the amended s.9. We are of opinion that the trial court is right in taking the view, and the High Court in affirming it, that C.M.P. No. 1883 of 1968 and the suit had to be disposed of on the basis of the provisions of the amended s.9. The contention to the contrary raised by the appellant must fail. We are also unable to accept the other contention of the appellant that the respondent should have invoked the benefit of the amended section 9 in the appeal pending in this Court, and that not having done so it was not open to the respondent to apply for relief in the court below after the appeal had been disposed of by this Court. It is apparent that the scope of the appeal filed in this Court was restricted to the validity of s.9 and section 12 of the unamended Madras City Tenants ' Protection Act. It must be remembered that the order of Panchapakesa Iyer J, when gave rise to that appeal, was made before the Act was amended in 1960, and this Court concerned itself solely with the validity of the unamended statutory provisions. In fact, perusal of its judgment will show that this Court declined to consider the operation of the amendments brought about in 1960. In the circumstances, it is not possible to urge that the respondent might, or ought to, have insisted on relief under the amended s.9 in the appeal pending in this Court. It was, 339 therefore, open to the respondent after the disposal of the appeal by this Court to apply to the court below for an order in terms of the amended s.9. In the result, the appeal is dismissed with costs. N.V.U. Appeal dismissed. [/INST]The respondent and his mother granted a lease in respect of an open site of land for a period of 20 years in favour of a person, who constructed a theatre thereon and who later assigned his rights to the appellant and the appellant was accepted as a tenant by the respondent. The respondent subsequently served notice upon the appellant calling upon it to vacate the property and to surrender vacant possession of the site. The appellant refused, and set up can oral agreement entitling it to an extension of the lease for a further period of 20 years. The respondent filed a suit for ejectment against the appellant and the appellant filed a suit for specific performance of an agreement to extend the lease. The subordinate Court decreed the respondent 's suit for possession with mesne profits and dismissed the appellant 's suit. The appellant appealed to the High Court against the two decrees, and during their pendency the Madras City Tenants ' Protection Act, 1921 was extended to the town where the suit property was situated. The appellant thereupon filed a Civil Miscellaneous Petition in the appeal arising out of the suit for ejectment, for directions under section 9 of the Act for sale of the site. This application was resisted by the respondent on the ground that section 9 was void. The High Court upheld the validity of the section, declared the appellant entitled to purchase the site under section 9 and remitted the matter to the subordinate Court for appointment of a Commissioner to fix the market value of the site. Against that order the respondent preferred a Letters Patent Appeal which was dismissed and this order was confirmed by the Supreme Court. During the pendency of the appeal in this Court, section 9 of the Madras City Tenants ' Protection Act was amended by Madras Act No. XIII of 1960. The respondent filed two Civil Miscellaneous Petitions in the High Court praying for review and modification of the earlier order in view of the amended section 9, and for stay of the valuation proceedings. 330 After the dismissal of the respondent 's appeal in the Supreme Court, the High Court dismissed the pending appeals as withdrawn transferred the two Civil Miscellaneous Petitions to the trial court and directed it to fix the market value of the site and pass final orders. The subordinate Court held that the respondent was entitled to the benefit of the amended section 9, and directed the Commissioner to determine the minimum extent of land necessary for convenient enjoyment and fix the price on the basis of the average market value of the land during the three years immediately preceding the date of its order. The appeal to the District Court and the Civil Revision Petition in the High Court against this order were dismissed. In the appeal to this Court it was contended on behalf of the appellant that the amended section 9 of the Madras City Tenants ' Protection Act, could not be invoked, and that section 9, as it stood before the amendment, governed the rights of the parties, and that in any event the amended section 9 should have been invoked in the appeal pending in the Supreme Court, and that relief not having been sought there, it was not open to the respondent to seek relief after the appeal had been disposed of by the Supreme Court. Dismissing the appeal, the Court. HELD: 1 (i) If the suit was pending on the date when the amendments in the principal Act (Madras City Tenants ' Protection Act, 1921) were brought into force, the amended provisions of the Act will govern the disposal of the suit. [337 D] (ii) The suit continued pending on the date when the principal Act was amended by Act XIII of 1960. Consequently, it was governed by the provisions of the amended section 9. As the scheme under the original section stood superseded by the scheme enacted under the amended section, the order of July 28, 1958 stood aborted and pursuant to the amended section fresh proceedings had to be taken by the Court to dispose of the suit. [338 A B] (iii)When the Amendment Act XIII of 1960 amended the principal Act, it amended not only section 9 thereof but section 10 also. Section 10 was amended in order that the amended provisions should apply to pending ejectment suits and proceedings. The provisions of the amended section 9 (1) reveal that the scheme respecting the tenant 's right to purchase, and the landlord 's obligation to sell, the land stood modified. Whereas the original section 9 (1) provided for the making of an application by the tenant within a specified period to the court for an order directing the landlord to sell the land for a price to be fixed by the court, and court was required to fix the price according to the lowest market value prevalent within seven years preceding the date of the order, and to order, within a period to be determined by the court, the tenant to pay into court or otherwise as directed the price so fixed, the amended section 9 (1) is divided into two clauses. Clause (a) entitles the tenant within an identical period, to apply to the court for an order requiring the landlord to sell, for a price to be fixed by the court, the whole, or part of, the extent of the land specified in the application. Clause (b) provides that the court will first decide the minimum extent of the land necessary for convenient enjoyment by the tenant, and thereafter the 331 court will fix the price of such minimum extent of land or of the extent of the land specified in the application, whichever is less. [336 F H; 336 H 337 C] In the instant case, the appellant had already filed Civil Miscellaneous Petition No. 1835 of 1958 praying for directions under section 9 for the sale of the site. On that application the High Court passed an order dated July 28,1958 holding the appellant entitled to purchase the site on paying the full market value current on that date and had directed the trial court to appoint a Commissioner to fix the value of the site. That order did not dispose of the application and the suit, for under the original section 9(3) the statute contemplated an order by the Court, after it was satisfied that the tenant had paid the price determined by it, directing the conveyance of the land by the landlord to the tenant. It was only after such an order was made that the application and the suit would stand concluded. [337 E G] 2. The scope of the earlier appeal filed in the Supreme Court was restricted to the validity of section 9 and 12 of the unamended Madras City Tenants ' Protection Act, and the Court declined to consider the operation of the amendments brought about in 1960. It was, therefore, open to respondent after the disposal of the appeal to apply to the court below for an order in terms of the amended section 9. [338 F H; 339 A] </s>

<s>[INST] Summarize the judgementition No. 4167 68, 7346 53, 7689 97, 8638, 8640 41, 9899 of 1982, 910 912 of 1983, 7987 91 of 1982 and 29, 1642 of 1983. (Under article 32 of the Constitution) AND Civil Appeals Nos. 2464 65 of 1982. Appeals by Special leave from the Judgment and Order dated the 9th April, 1982 of the Punjab and Haryana High Court in C.P. Nos. 4805 and 5184 of 1981. For the appearing Petitioners/Appellants: S.B. Bhasme, B.R. Kapur, S.R. Srivastava, C.P. Mittal, D.B. Vohra, K.G. Bhagat, Vimal Dave, Ms. Kailash Mehta, A.K. Goel and Sarva Mitter. For Respondent: Parmod Dayal, K.K. Jain and A.D. Sanger. The Judgment of the Court was delivered by RANGANATH MISRA, J. : Each of these writ petitions is by a consumer of electric energy which has entered into a contract with the Haryana State Electricity Board ( 'Board ' for short), and challenge in these petitions under Article 32 of the Constitution is to the enhancement of security unilaterally made by the Board both in respect of meter as also for the payment of the energy dues. Clause 22 of the standard contract stipulates: 168 "22. Security Deposit: (a) Before commencing or resuming supply to a consumer the Board may require the consumer to lodge with the Board as security for the payment by the consumer of his monthly bills and for the value of the meters and/or other apparatus belonging to the Board and installed at the consumer 's premises a deposit, which may not be transferable, calculated as follows: Rs. 10.00 per KW of connected load or part thereof in the case of domestic; Rs. 20 per KW of connected load or part thereof in case of commercial and Rs. 30 per KW of connected load or part thereof in case of industrial/agricultural/bulk supply/street lighting consumers plus the following amount per meter: (1) . (2) . (3) . (4) For medium industrial supply and bulk supply above 20 KW and up to 100 KW. Rs. 100.00 (5) For industrial and bulk supply above 100 KW. Rs. 200.00 The security is obtainable in cash and an interest at the rate of 4% per annum shall be payable on security deposits of Rs. 50.00 and above. No interest will be payable if a connection is disconnected within a year of giving supply. (b) The Board will be at liberty at any time to demand further security deposit from consumers who have habitually defaulted in making payments of their monthly dues. " Clause 31 provides: "31. Rights of Board to revise schedules of tariffs and charges and conditions of supply: Subject to clause 169 30 above (relating to interpretation) the Board reserves the right at any time to amend, cancel, or add to, any of these schedules and conditions. " Each of the contracts contains detailed provisions for security deposit as provided under clause 22. The Board enhanced the tariff by almost four times but the enhancement of tariff has not been challenged by the consumers, who have filed these writ petitions. Thereafter the Board decided in October 1980 that with effect from April 1, 1981, the security contemplated under clause 22 both in regard to the meter as also for due payment of the energy bills should be enhanced and fixed a new schedule. Challenge in these petitions is to the enhancement in regard to both the meter as also security for due payment of energy bills made unilaterally by the Board. As this is the common question arising in all these writ petitions, they are being disposed of by a common judgment. The petitioning consumers have contended that the enhancement made in the security amount towards the meter is without any justification. It is all the more so where meters have been installed several years before and there is no change in the circumstances justifying an enhancement in the security deposit for it. Challenge is also advanced against the enhancement of the security deposit in the matter of payment of energy bills. From 1968 the Board had introduced the condition of taking a security from every consumer to ensure timely clearance of energy bills and in the case of industrial consumers the security was worked out at Rs. 30 per KW. With effect from April 1, 1981, in place of Rs. 30 per KW Rs. 100 per KW has been substituted. It is contended that on account of this enhancement most of the petitioning consumers have been called upon to furnish additional security to the tune of several lakhs of rupees. Similarly in regard to the meter a different basis has been adopted and from April 1, 1981, the security deposit now varies between Rs. 5000 and Rs. 10,000 in regard to industrial consumers. After the enhancement came into force the Board through its prescribed officers called upon the petitioning consumers to make additional security deposits on both counts, within a time indicated. According to the petitioners the ( 'Act ' for short) and the Rules made thereunder do not contemplate any provision of security for the timely payment of energy charges. The Board has not framed any Regulations under section 79 of the 170 for demanding security of the type in issue. According to the petitioners as the supply is controlled under an agreement entered into between the Board and the petitioning consumers, unilateral escalation would be contrary to any acceptable notion of contract. Reliance is placed on behalf of the petitioners on the decision of the Allahabad High Court in Modi Industries Ltd. (Steel Section) vs U.P. State Electricity Board, and that of the Bombay High Court in M/s. Devidayal Metal Industries vs The Municipal Corporation for Greater Bombay and Anr. Before the Allahabad High Court it was contended by the consumer that the Board contracted with it to supply 9500 KW electrical energy. The rate schedule applicable to the consumer was HV 2. Under the agreement of December 31, 1970, the consumer had deposited with the Board a sum of Rs. 3,44,135 as security. The Board demanded a further security of Rs. 9,00,000. The consumer took the plea before the High Court that neither under the ( '1910 ' for short), nor the and the agreement for supply between the parties was the Board authorised to demand additional security. The Board took the plea that the tariff had gone up from time to time and the then existing rate schedule was of 1974. Normally the meter reading was done after every 30 days or once in 30 days and it took about 15 to 20 days thereafter to prepare the bill and to send it to the consumer. A further period of 15 days was allowed to the consumer to make the payment. Seven days ' disconnection notice after expiry of the due period was to be given to the consumer. It took 2 or 3 days thereafter to verify the accounts and take steps for disconnection on the ground of non payment, of the energy bill. Thus a period of about 3 months was necessary to collect the energy bills from the date of consumption. In order to safeguard the financial interest of the Board a sum equal to energy bill for three months on the average was demanded as security. Reliance was placed on clause VI of the Schedule to the 1910 for authorising the Board to rise the additional demand of security. The Court took the view a that clause VI of the Schedule to the 1910 had no application and came to the conclusion: "The Board is a statutory authority and has to act within the framework of the statutory provisions applicable to it. If the act of the Board is found to be not 171 in consonance with or in breach of some statutory provisions of law, rule or regulation, it is open to challenge in a petition under article 226 of the Constitution. In these petitions no contractual rights are sought to be enforced which may more suitably be agitated in a competent Civil Court as contended by the learned counsel for the Board". A learned single Judge of the Bombay High Court without referring to the Allahabad decision came to the conclusion that the scheme of the made it clear that it was not open to the licenser to impose any financial burden in addition to what was provided for in the itself. If this were not so, the whole object of the , which is to ensure the supply of electricity to the consumers in a controlled manner at rates which have to be controlled and approved by the State Government would be destroyed. Because, in addition to the electricity charges, the licenser may, by contract, provide for other charges and thus impose a greater financial burden on the consumer than contemplated in the itself. As against these decisions, reliance has been placed on a Bench decision of the Andhra Pradesh High Court in Krishna Cement Works vs The Secretary, APSEB and a single Judge decision of the Rajasthan High Court in M/s. B.R. Oil Mills vs Assistant Engineer (D), RSEB, Bharatpur and Anr., on behalf of the Board in support of the demand of security. The Andhra Pradesh High Court has taken the view that sub para (a) of the first proviso to clause VI of the Schedule to the 1910 would be applicable and what would be sufficient security should be left to the Board to decide. The Andhra Pradesh Electricity Board had adopted similar justification as placed by the Board before us to justify demand of enhanced security and dealing with such stand the learned Judge observed: "To our mind, this is a quite satisfactory explanation of the reasons behind insistence on cash security. Certainly a public utility service like Electricity Board cannot launch itself on litigation to recover consumption charges on a large scale. Power generation, which it does is an essential service and that shall never be allowed to suffer on account of improper security. We 172 have already referred to the fact that it is reasonable on the part of the Board to require security for three months ' consumption charges. Now to require that amount to be deposited in the form of cash is eminently reasonable. " The Rajasthan High Court has accepted the view of the Andhra Pradesh High Court. We accept the view of the Andhra Pradesh High Court. Counsel for the Board has also placed before us a Division Bench decision of the Punjab and Haryana High Court in M/s. Goodyear India Ltd. vs Haryana State Electricity Board and Others, where the decision of the Andhra Pradesh and Rajasthan High Courts have been followed. We have been told that against that decision of the Punjab and Haryana High Court appeals have been preferred to this Court. We are of the view that the Board has been conferred statutory power under section 49(1) of the to determine the conditions on the basis of which supply is to be made. This Court in Bisra Stone Lime Company Ltd. & Anr. vs Orissa State Electricity Board & Anr., took the view that enhancement of rates by way of surcharge was well within the power of the Board to fix or revise the rates of tariff under the provisions of the . What applied to the tariff would equally apply to the security, that being a condition in the contract of supply. Each of the petitioning consumers had agreed to furnish security in cash for payment of energy bills at the time of entering into their respective supply agreements. There was no challenge in these writ petitions that the demand of security at the time of entering into supply agreements has to be struck down as being without jurisdiction. Section 49(1) of the clearly indicates that the Board may supply electricity to any person upon such terms and conditions as the Board thinks fit. In exercise of this power the Board had initially introduced the condition regarding security and each of the petitioners had accepted the term. 173 Under clause 31 of the agreement the Board reserved to itself the right to amend, cancel or add to any of the schedules and conditions at any time. The provisions of this clause are similar to clause 13 of the agreement which came to be considered in Bisra Lime Stone Company 's case (supra). We are, therefore, inclined to take the view that the Board had authority under the agreement itself to amend the conditions. In exercise of that power the Board has now raised the additional demand. We have already taken note of the fact that there has been a steep escalation in the tariff. Counsel for the Board placed before us a statement which indicates that while tariff has gone up almost four times, the demand for security raised by the Board is much less it is a little more than two times of the original security. On behalf of some of the petitioners it was contended that the security should represent the average energy bill for one month. It was claimed that the Legislature has set up the Board as an autonomous body with large powers and providing scope to act purely with a view to creating an effective public utility service. The Board should not be permitted to act either arbitrarily or capriciously; nor should it manage its affairs in a disorderly way and taking advantage of its monopoly status pass on the incidence of such vice to be shared by the consumers. We share the concern of the petitioners and their counsel that the affairs of the Boards in the different States of the country are not upto the expectation of the consumers and there have been instances which give rise to genuine anguish and dissatisfaction. The scheme of the clearly indicates a legislative mandate that the Board should manage its commercial activities in such a way that it does not make any loss. It is also clear that the Board being a public utility organisation is not expected to make any undue profit by abusing its monopoly position. An inbuilt system of control and supervision has been set up and the State Governments have been given power to give policy directions. Situation seems to have arisen when stricter control and supervision are called for and if organisational changes and provision for greater control appear necessary, to improve the functioning of the Boards, steps should be taken without delay in this regard. The Board should always remember that it is a public utility service and not a governmental agency enjoying wide powers and expected to have a share in the governance of the country. 174 We agree, however, on the facts placed that the stand of the Board that a demand equal to the energy bill of two months or a little more is not unreasonable. Once we reach the conclusion that the Board has power to unilaterally revise the conditions of supply, it must follow that the demand of higher additional security for payment of energy bills is unassailable, provided that the power is not exercised arbitrarily or unreasonably. On the security amount interest at the rate of 4% was initially payable. The same has already been enhanced to 8% per annum. Since the amount is held as security, we indicated to the counsel for the Board that security amount should bear the same interest as admissible on fixed deposits of Scheduled Banks for a term of years and we suggested keeping the present rate of interest in view that it should be enhanced to 10%. Board 's counsel has now agreed that steps would be taken to enhance the present rate of interest of 8% to 10% with effect from October 1, 1983. Once that is done, the argument that the security should be in the shape of Bank Guarantee does not call for consideration. In regard to the enhanced security for the meter the explanation advanced by the Board is that the meters are required to be replaced or many costly parts have to be substituted by way of repair. In view of the high cost of the meters the Board is justified in enhancing the security. Petitioners have not disputed their obligation to furnish security for the meter. But the challenge is to the enhancement. Indisputably all the meters to the petitioning consumers have been supplied prior to the decision to enhance the security. Keeping in view the likelihood of replacement or substantial repair, we suggested to learned counsel for the Board that the escalation may be reduced by 50%, i.e. in place of the enhanced demand varying between Rs. 5,000 and Rs. 10,000, it should be limited to Rs. 2,500 and Rs. 5,000. Learned counsel has agreed that steps would be taken by the Board to evolve a formula by which the demand for security for the meter would be revised being limited to Rs. 2,500 at the minimum and Rs. 5,000 at the maximum in regard to industrial meters in respect of which the demand now is between Rs. 5,000 and Rs. 10,000. It would, therefore, follow that the Board would not enforce its decision in regard to escalation of 175 the meter security until the new formula is evolved and it will be open for the Board to ask for additional security effective from October 1, 1983, in accordance with the new formula towards security for the meter. We make no Order as to costs. S.R. Petitions dismissed. [/INST]Allowing the State appeal, the Court ^ HELD: 1. In section 10 of COFEPOSA, both in the first and the second part of the section, it has been expressly mentioned that the detention will be for a period of one year or two years, as the case may be, from the date of detention and not from the date of the order of detention. If the submission that the appeal has become infectious in view of the fact that the maximum period of detention mentioned in section 10 of the Act has expired, was accepted, two unintended results follow: (1) if a person against whom an order of detention is made under section 3 of the Act, he can successfully abscond till the expiry of the period and altogether avoid detention; and (2) even if the period of detention is interrupted by the wrong judgment of a High Court, he gets the benefit of the invalid order which he should not. The period of one or two years, as the case may be, as mentioned in section 10 will run from the date of his actual detention, and not from the date of the order of detention. If he has served a part of the period of detention, he will have to serve out the balance. [741 H, 742 A C] 2. The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether r the material was adequate or not, which is the function of an appellate authority or Court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in section 3 of the Act is the satisfaction of the detaining authority and not of the Court. [742 E F] 3. By implication, the High Court has erroneously imported the rule of criminal jurisprudence that the guilt of an accused must be proved beyond reasonable doubt to the law of detention. [742 D] 741 </s>

<s>[INST] Summarize the judgementCivil Appeal No. 2411 of 1978. Appeal by Special Leave from the Judgment and order dated 26 7 1978 of the Karnataka High Court in Writ Petition No. 10203/ 77. And ORIGINAL JURISDICTION: Writ Petitions Nos. 4473 4474, 4415, 4488, 4528, and 4539 of 1978. (Under Article 32 of the Constitution). D G. B. Rikar, K. R. Nagaraja and Mrs. Gayathri Balee for the Petitioner (In WP. 4473 4474, 4488, 4539/78). R. B. Datar and Navin Sinha for the Petitioner (In WP. 4415 and 4528 and for Appellant in CA 2411/78). V. A. Sayield Mohammad and N. Nettar for the State of Karnataka and for Respondent No. 3 in WPs. 4473 4474, 4488, 4528 and 4539 and C.A. 2411/78. L. N. Sinha, Attorney General, K. K. Venugopal, Additional Solicitor General, V. A. Sayied Mohammad and Vineet Kumar for Karnataka State Road Transport Corporation (in All W.P.s & C.A.). It would, therefore, be convenient to dispose them of by this common judgment. The short question involved in these cases is, whether the employees of the erstwhile contract carriage operators in the State of Karnataka acquired a vested right of absorption in service with the Karnataka State Road Transport Corporation under sub cl. (3) to cl. 20 of the Karnataka Contract Carriages (Acquisition) ordinance 1976. 688 It will be convenient to refer in the first place to the legislative changes. On January 30, 1976 the Karnataka Contract Carriages (Acquisition) ordinance, 1976 was promulgated by the Governor of Karnataka under cl. (1) of article 213 of the Constitution. The said ordinance was promulgated with the object of acquiring contract carriages operating in the State and for certain matters connected therewith. On the same day, i.e., on January 30, 1976 the State Government issued a notification under cl. 4(1) of the ordinance vesting every contract carriage owned or operated by such contract carriage operator, along with permit, in the State Government absolutely free from all encumbrances. On the same day, the State Government made an order under sub cl. (1) to cl. 20 of the ordinance transferring all the contract carriages that vested in the State Government under the notification issued under sub cl. (1) to cl. 4 of the ordinance, to the Karnataka State Road Transport Corporation (hereinafter referred to as 'the Corporation '). Sub clause (3) to cl. 20 of the ordinance provided for absorption of certain categories of employees of contract carriage operators in the service of the Corporation. It also provided the ratio for absorption for different categories of employees that were entitled to be absorbed in the service of the Corporation. The ordinance was subsequently replaced by the Karnataka Contract Carriages (Acquisition) Act, 1976, Which was published in the gazette on March 12, 1976. The ordinance was repealed by the Act, and it re enacted the provisions of the repealed ordinance, with a saving clause in sub section (2) of section 31, for preservation of anything done or action taken. The Act was substantially in similar terms except for the difference that the ratio prescribed by proviso to sub cl. (3) to cl. 20 of the ordinance, which laid down the categories of persons who could be absorbed in the service of the Corporation, was substantially altered and a new ratio was inserted in the proviso to sub section (3) of section 19 of the Act. Otherwise, sub section (3) of section 19 of the Act and sub cl. (3) to cl. 20 of the ordinance were identical in every respect. Under proviso to sub cl. (3) to cl. 20, the total strength of the employees of the erstwhile contract carriage operators allowable for absorption was 7.9 per vehicle, while under proviso to sub section (3) of section 19 of the Act the same works out to 4.45 per vehicle. Further, while under the ordinance conductors were entitled to be absorbed, the ratio provided under the Act shows that conductors are not included in the categories of persons who can be absorbed in the service of the Corporation. 689 It appears that although as many as 785 contract carriages were A notified for acquisition, only 601 vehicles were actually acquired. The change in the ratio of absorption from 7.9 per vehicle under sub cl. (3) to cl. 20 of the ordinance to 4.45 per vehicle under sub section (3) of section 19 of the Act adversely affected a large number of employees of the erstwhile contract carriage operators. A large number of writ petitions were, therefore, filed in the High Court challenging the vires of the proviso to sub section (3) of section 19 of the Act on various grounds, but by the judgment under appeal the High Court has repelled all the contentions. Thereafter, the remaining writ petitions were all withdrawn. The appeal is against the judgment of the High Court and the employees have also directly approached the Court under article 32. Before dealing with the contention advanced in the appeal, it is necessary to set out the relevant provisions. Sub clause (3) to cl. 20 of the ordinance read as follows: "20.(3) Every person who is a workman within the meaning of the (Central Act 14 of 1947) and has been immediately before the commencement of this ordinance exclusively employed in connection with the acquired property, shall ', on and from the notified date, become an employee of the corporation on the same terms and conditions applicable to the employees holding corresponding posts in the corporation. Any person not willing to become such an employee of the corporation shall be entitled to retrenchment compensation as provided in the : Provided that the number of workmen that shall become employees of the corporation under this sub section shall not exceed the following scale, the junior most being excluded: Scale per vehicle 1. Drivers . . 1.5 2. Conductors . 2.65 3. Supervision . 0.125 4. Higher Supervision staff and Managers . 0.075 5. Ministerial and Secretariat staff . 0.8 6. Technical staff including Foreman . 2.75 690 Sub section (3) of section 19 of the Act, which replaced sub cl. (3) to cl. 20 of the ordinance, provides: "19.(3) Every person who is a workman within the meaning of the (Central Act 14 of 1947) and has been immediately before the commencement of this Act exclusively employed in connection with the acquired property, shall, on and from the notified date, become an employee of the corporation on the same terms and conditions applicable to the employees holding corresponding posts in the corporation. Any person not willing to ' become such an employee of the Corporation shall be entitled to retrenchment compensation as provided in the . Provided that the number of workmen that shall become employees of the Corporation under this sub section shall not exceed the following scale, the junior most being excluded: Scale per vehicle 1. Drivers . . . 1.5 2. Supervision staff and managers . 0.1 3. Ministerial and Secretariat Staff. 0.1 4. Technical staff including foreman. 2.75 4.45" The saving clause to be found in sub section (2) of section 31 of the Act, so far as material, runs thus: "31 (2) Notwithstanding such repeal: (i) anything done or any action taken under the said ordinance, shall be deemed to have been done or taken under the corresponding provisions of this Act. " It is strenuously argued that it is clear from the language of subcl. (3) to cl. (20) of the ordinance that there was, by operation of law, automatic absorption of the employees of the erstwhile contract carriage operators to the extent provided therein with effect from January 30, 1976, the date on which the notification was issued under sub cl. (1) to cl. 4 and the date on which the Government made an order under sub cl. (1) to cl. 20. It is submitted that the words "shall become an employee of the Corporation", ill sub cl. (3) to cl. 20 are clear and unambiguous and they must result in the consequence that all persons employed in connection with the acquired 691 contract carriages, became employees of the Corporation. It is said A that, though the process of absorption may take time, as and when the necessary steps were taken to fit in such employees falling within the categories mentioned in the proviso to sub cl. (3) to cl. 20, their absorption relates back to the notified date, i.e. January 30, 1976. In other words, the submission was that the legal effect of absorption of such ' employees under sub cl. (3) to cl. 20 of the ordinance is automatic. That being so, their right of absorption could not be whittled down by the subsequent enactment of the new proviso to sub section (3) of section 19 of the Act, inasmuch as they had acquired a vested right to absorption in the ratio mentioned in sub cl. (3) to cl. 20 of the ordinance. C The ordinance promulgated by the Governor in the instant case was a 'legislative act ' of the Governor under article 213(1) and, therefore, undoubtedly a temporary statute, and while it was still in force the Repealing Act was passed containing the saving clause in section 31(2) (i) providing that, notwithstanding such repeal, 'anything done ' or any 'action taken ' under the repealed ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act. The enquiry is, therefore, limited to the question whether anything was done or action taken under the repealed ordinance. If that be so, a further question arises on the submission whether the words 'things done ' in section 31 (2) (i) reasonably interpreted can mean not only things done but also the legal consequences flowing therefrom. In considering the effect of an expiration of a temporary Act, it would be unsafe to lay down any inflexible rule. It certainly requires very clear and unmistakable language in a subsequent Act of the legislature to revive or re create an expired right. If, however, the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. In order to see whether the rights and liabilities under the repealed ordinance have been put an end to by the Act, 'the line of enquiry would be not whether ', in the words of Mukherjea J. in State of Punjab vs Mohar Singh(1), 'the new Act expressly keeps alive old rights and liabilities under the repealed ordinance but whether it manifests an intention to ' destroy them '. Another line of approach may be to see as to how far the new Act is retrospective in operation. It is settled both on principle and authority, that the mere right existing under the repealed ordinance, to take advantage of the pro 11 visions of the repealed ordinance, is not a right accrued. Sub section 692 (2) of section 31 of the Act was not intended to preserve abstract right conferred by the repealed (ordinance. The legislature has the competence to so re structure the ordinance as to meet the exigencies of the situation obtaining after the taking over of the contract carriage services. It could re enact the ordinance according to its original terms, or amend or alter its provisions. What were the 'things done ' or 'action taken ' under the repealed ordinance ? The High Court rightly observes that there was neither anything done nor action taken and, therefore, the petitioners did not acquire any right to absorption under sub cl. (3) to cl. 20. The employees of the former contract carriage operators in normal course filled in the pro form giving their service particulars and reported to duty. This was in the mere 'hope or expectation ' of acquiring a right. The submission of these 'call reports ' by the employees did not subject the Corporation to a corresponding statutory obligation to absorb them in service. As a matter of fact, nothing was done while the ordinance was in force. The Act was published on March 12, 1976. on May 29, 1976, the Corporation sent up proposals for equation of posts to be filled in by the employees of the former contract carriage operators. The meeting of the Committee set up by the Government for laying down the principles for equation of posts and for determination of inter se seniority, met on June 2, 1976. The Committee decided that even in the case of helpers cleaners, there should be a 'trade test ' and ' the staff cleared by the Committee for the posts of helper 'B ' helper 'A ' and assistant artisans should be on the basis of their technical competence, experience, ability etc. The Committee also decided that all other employees of contract carriage operators who were, eligible for absorption, should be interviewed by that p Committee for the purpose of absorption on the basis of experience, ability, duties and responsibilities. These norms were not laid down till June 2, 1976. Till their actual absorption, the employees of the erstwhile contract carriage operators had only an incohate right. The distinction between what is, and what is not a right preserved by the provisions of section 6 of the General Clauses Act is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere 'hope or expectation of ', or liberty to apply for, acquiring a right. In Director of Public Works vs Ho Po Sang( ') Lord Morris speaking for the Privy Council observed: "It may be, therefore, that under some repealed enactment, a right has been given, but that, in respect of it, some 693 investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether so to right should be or should not be given. On a repeal the former is preserved by the Interpretation Act. The latter is not." (Emphasis supplied) It must be mentioned that the object of section 31(2) (i) is to preserve only the things done and action taken under the repealed Ordinance, and not the rights and privileges acquired and accrued on the one side, and the corresponding obligation or liability incurred on the other side, so that if no right acquired under the repealed ordinance was preserved, there is no question of any liability being enforced. Further, it is significant to notice that the saving clause that we are considering in section 31(2) (i) of the Act, saves things done while the ordinance was in force; it does not purport to preserve a right acquired under the repealed ordinance. It is unlike the usual saving clauses which preserve unaffected by the repeal, not only things done under the repealed enactment but also the rights acquired thereunder. It is also clear that even section 6 of the General Clauses Act, the applicability of which is excluded, is not intended to preserve the abstract rights conferred by the repealed Ordinance. It only applies to specific rights given to an individual upon the happening of one or other of the events specified in the statute. Employees in excess of the scale prescribed for the categories specified under proviso to sub section (3) of section 19 of the Act are clearly not entitled for absorption. Though sub cl. (3) to cl. 20 of the ordinance provided for absorption of certain classes of employees in a particular ratio with effect from January 30, 1976, it does not follow that there was an automatic absorption as from that date. Every such person eligible for absorption had to fulfill three conditions, viz., (1) he had to be a workman within the meaning of the ; (2) he should have been immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub cl. (3) to cl. 20. The whole object of inserting sub cl. (3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment. For this purpose the Corporation had necessarily to screen the applicants. It is necessary to mention that cl. 5 of the Ordinance, which corresponds to section 5 of the Act, provided that every contract carriage 8 625SCI/79 694 operator shall within 15 days from the notified date or within such further time as the State Government may allow, furnish to the State Government or any officer authorised by it in this behalf, complete particulars among others of persons who were in their employment immediately before the notified date. It was only after such information was received that steps had to be taken for the purpose of ascertaining as to who were entitled to be absorbed in the service of the Corporation in accordance with sub cl. (3) to cl. 20 of the ordinance. The authorities after collecting the necessary information had to determine not only the corresponding posts to which the erstwhile employees of the contract carriage operators could be absorbed in the service of the Corporation but also their relative seniority, for the purpose of excluding the employees who were in excess of the scale for the purpose of absorption. As sub cl. (3) to cl. 20 itself provides that a person who is not willing to become an employee of The Corporation is entitled to retrenchment compensation as provided for in the , the authorities were also required to ascertain as to whether the employee, who was entitled to be absorbed in service, was willing to become an employee of the Corporation or not. It was only if the employee was willing to be absorbed in the service of the Corporation that the Corporation could absorb him in service, provided the other conditions specified in sub cl. (3) to cl. 20 were satisfied. Thus it is clear that several steps had to be taken by the authorities before identifying and determining the persons who could be absorbed in the service of the Corporation, in accordance with sub cl. (3) to cl. 20 of the ordinance. The very fact that all these Various steps were necessary to be taken, which necessarily takes time, shows that automatic absorption of the employees of the erstwhile contract carriage operators was not legally permissible. When the ordinance came to be replaced by the Act, the Corporation felt that the number of employees of the erstwhile contract carriage operators was too large for its requirements. The legislature, therefore, stepped in and reduced the scale of absorption in the proviso to sub section (3) of section 19 from 7.9 per vehicle to 4.45 per vehicle. This is, in our judgment, sufficient for the determination of the appeal. But, as we have formed a clear opinion on the other aspect, we do not hesitate to express that opinion. That contention is of this nature. It is pointed out that the employees of the erstwhile contract carriage operators acquired vested right to absorption in the service of 695 the Corporation by virtue of sub cl. (3) to cl. 20 of the repealed ordinance with effect from January 30, 1976, which cannot be taken away by the proviso to sub section (3) of section 19. Even if contrary to the decision reached by us, it were possible to hold that they had some kind of such right, that right is expressly taken away by the legislature. The contention does not take note of the fact that by sub section (1) of section 1 the Act was brought into force with effect from January 30, 1976, i.e., the date on which the ordinance was promulgated. The Act substitutes a 'new ' proviso in sub section (3) of section 1 in place of the old proviso to sub cl. (3) to cl. 20 of the ordinance, altering the whole basis of absorption. The new proviso is given a retrospective effect, and it now holds the field from the notified date i.e., January a 30, 1976. The proviso in sub cl. (3) to cl. 20 laying down a particular ratio of absorption, is pro tanto avoided by an express enactment of a 'new ' proviso to sub section (3) of section 19 which is entirely inconsistent with it. When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected. In the result, the appeal as well as the writ petitions must fail and are dismissed. There shall be no order as to costs. N.V.K. Appeal and Petitions dismissed. [/INST]The Karnataka Contract Carriage (Acquisition) ordinance, 1976 was promulgated on January 30, 1976 with the object of acquiring the contract carriages operating in the State. Sub clause (3 ) to cl. 20 of the ordinance provided for absorption of certain categories of employees of contract carriage operators in the service of the Corporation, and the ratio for absorption for the different categories of employees that were entitled to be absorbed. On the same day, the State Government made an order under sub cl. (I) to cl. 20 of the ordinance transferring the contract carriages that vested in the State Government to the Karnataka State Road Transport Corporation. This ordinance was subsequently replaced by the Karnataka Contract Carriages (Acquisition) Act, 1976 which was published in the Gazette dated March 12, 1976. The ordinance was repealed by the Act, which re enacted the provisions of the repealed ordinance, with a saving clause in sub section (2) of section 31 for presentation of any thing done or any action taken. The Act was substantially in similar terms, except for the difference that the ratio prescribed by proviso to sub cl. (3) to cl. 20 of the ordinance which laid down the categories of persons who could be absorbed in the service of the Corporation, was substantially altered and a new ratio was inserted in the proviso to sub section (3) of section 19 of the Act. Otherwise, sub section (3) of section 19 of the Act and sub cl. (3) to cl. 20 of the ordinance were identical in every respect. Under the Proviso to sub cl. (3) to cl. 20, the total strength of the employees of the erstwhile Carriage operators allowable for absorption was 7.9 per vehicle while under the proviso to sub section (3) of section 19 of the Act, the ratio worked out to 4.45 per vehicle. Further, while under the ordinance, conductors were entitled to be absorbed, the ratio provided under the Act showed that conductors were not included in the categories of persons who could be absorbed in the service of Corporation. The change in the ratio of absorption from 7.9 per vehicle under. sub cl. (3) to cl. 20 of the ordinance to 4.45 per vehicle under sub section (3) of section 19 of the Act adversely affected a large number of employees of the erstwhile contract carriage operators who filed writ petitions in the High Court, 685 challenging the vires of the proviso to sub section (3) of section 19 of the Act, which dismissed the writ petitions. In the appeal and the writ petitions to this Court the question for consideration was, whether the employees of the erstwhile contract carriage operators in the State of Karnataka acquired a vested right of absorption in the service with the Karnataka State Road Transport Corporation under sub cl. (3) to cl. 20 of the Karnataka Contract Carriage (Acquisition) ordinance 1976. Dismissing the appeal and writ petitions; ^ HELD: 1. The High Court rightly observed that there was neither anything done nor action taken and, therefore, the petitioners did not acquire any right to absorption under sub cl. (3) to cl. 20. [692 C] 2. The ordinance promulgated by the Governor in the instant case was a 'legislative act ' of the Governor under article 213(1) and, therefore, undoubtedly a temporary statute, and while it was still in force the repealing Act was passed containing the saving clause in section 31(2)(i) providing that, notwithstanding such repeal, 'anything done ' or any 'action taken ' under the repealed ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act. [691 C D] 3. In considering the effect of an expiration of a temporary Act, it would be unsafe to lay down any inflexible rule. It requires very clear and unmistakable language in a subsequent Act of the legislature to revive or re create an expired right. If, however, the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. In order to see whether the rights and liabilities under the repealed ordinance have been put an end to by the Act, 'the line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities under the repealed ordinance but whether it manifests an intention to destroy them. Another line of approach may be to see as to how far the new Act is retrospective in operation. [691 F G] State of Punjab vs Mohar Singh, ; , referred to 4. (i) Sub section (2) of section 31 of the Act was not intended to preserve abstract rights conferred by the repealed ordinance. The legislature had the competence to so re structure the ordinance as to meet the exigencies of the situation obtaining after the taking over of the contract carriage services. It could re enact the ordinance according to its original terms, or amend or alter its provisions. [692 A] (ii) When the ordinance came to be replaced by the Act, the Corporation felt that the number of employees of the erstwhile contract carriage operators was too large for its requirements. The legislature, therefore stepped in and reduced the scale of absorption in the proviso to sub section (3) of section 19 from 7.9 per vehicle to 4.45 per vehicle. [694G] 5. The object of section 31(2)(i) is to preserve only the things done and action taken under the repeated ordinance and not the rights and privileges acquired and accrued on the one side, and the corresponding obligation or liability 686 incurred on the other side, so that if no right acquired under the repealed ordinance was preserved, there is no question of any liability being enforced. It is unlike the usual saving clauses which presented unaffected by the repeal, not only things done under the repealed enactment but also the rights acquired thereunder. [693 C, D] 6. (i) Every person eligible for absorption had to fulfil three conditions, viz., (1) he had to be a workman within the meaning of the ; (2) he should have been, immediately before the commencement of the ordinance, exclusively employed in connection with the acquired property, and (3) he had to come within the ratio provided in the proviso to sub cl. (3) to cl. 20. The whole object of inserting sub cl. (3) to cl. 20 of the ordinance was to obviate the unemployment of persons suitable for employment, for which purpose, the Corporation had necessarily to screen the applicants. [693 G] (ii) It was only if the employee was willing to be absorbed in the service of the Corporation that the Corporation could absorb him in service, provided the other conditions specified in sub cl. (3 ) to cl. 20 were satisfied. [694 E] (iii) Thus it is clear that several steps had to be taken by the authorities before identifying and determining the persons who could be absorbed in the service of the Corporation, in accordance with sub cl. (3) to cl. 20 of the ordinance, which indicates that automatic absorption of the employees of the erstwhile contract carriage operators was not legally permissible. [694 F] 7. The distinction between what is and what is not a right presented by the provisions of section 6 of the General Clauses Act. is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere 'hope or expectation of ', or liberty to apply for acquiring a right. [692 G] Director of Public Works vs Ho Po Sang, [1962] 2 All. ER 721 PC, referred to. The Act substitutes a 'new ' proviso in sub section (3) of section 19 in place cf the old proviso to sub cl. (3) to cl. 20 of the ordinance, altering the whole basis of absorption. The new proviso is given a retrospective effect, and it holds the field from the notified date i.e., January 30, 1976. The proviso in subcl. (3) to cl. 20 laying down a particular ratio of absorption, is pro tanto avoided by an express enactment of a 'new ' proviso to sub section (3) of section 19 which is entirely inconsistent with it. When an ordinance is replaced by an Act which is made retrospective in operation, anything done or any action taken under the ordinance stand wholly effected. [695 C] 9. (i) The employees of the former contract carriage operators in normal course filled in the pro forma giving their service particulars and reported to duty. This was in the mere 'hope or expectation ' of acquiring a right. The submission of these 'call reports ' by the employees did not subject the Corporation to a corresponding statutory obligation to absorb them in service. [692 C] (ii) The meeting of the Committee set up by the Government for laying down the principles for equation of posts and for determination of inter sc seniority, met on June 2, 1976. The Committee decided that even in the 687 case of helpers cleaners, there should be a 'trade test ' and the staff cleared by the Committee for the posts of helper 'B ', helper 'A ' and assistant artisans should be on the basis of their technical competence, experience, ability etc. The Committee also decided that all other employees of contract carriage operators, who were eligible for absorption, should be interviewed by that Committee for the purpose of absorption on the basis of experience, ability duties and responsibilities. These norms were not laid down till June 2, 1976 Till their actual absorption, the employees of the erstwhile contract carriage operators had only an inchohate right. [692 E F] </s>

<s>[INST] Summarize the judgementivil Appeal Nos. 1192 94 of 1971. From the judgment and order dated the 20th October, 1976 of the High Court of Madras in Tax Cases Nos. 205 to 207 of 1971. S.T. Desai, A.K. Verma and J.B. Dadachanji for the Appellant. A.K. Sen and A.V. Rangam for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH J. The appellant in these three appeals by special leave is a company engaged in the business of manufacture and sale of art silk yarn. It has its factory at Sirumughai in the District of Coimbatore in the State of Tamil Nadu. The appellant is registered as a dealer carrying on business at Coimbatore. In the course of its business, it sold during the relevant period large quanti 46 ties of art silk yarn to various purchasers some of whom were weavers residing in the States of Maharashtra and Gujarat who had been issued cards under a scheme called 'Export Promotion Scheme ' entitling them to buy specified quantities of art silk yarn from specified manufacturers. The question involved in these appeals relates to the exigibility of the sales effected in favour of Export Promotion Scheme card holders belonging to the States of Maharashtra and Gujarat to tax under the (hereinafter referred to as 'the Act '). The assessment years are 1962 63, 1963 64 and 1964 65. The details of the Export Promotion Scheme for distribution of art silk yarn referred to above were these: There were certain weavers in India who were entitled to an incentive in the form of import licences to import art silk yarn from abroad. The said import entitlement was cut to a certain extent and indigenous art silk yarn at concessional price was allotted to them. To regulate the scheme of allotment, a committee called the 'Art Silk Yarn Distribution Committee ' was constituted by the Government of India. The Committee made allotments to different weavers by issuing allotment cards. These allotment cards contained details of the quantity of allotment and the rayon yarn manufacturer from whom the allotted quantity of yarn could be drawn. As per the terms of the card, the yarn manufacturer should offer to the allottee rayon yarn within seven days of the date of the card without waiting for the allottee to approach him. A firm contract for the supply of yarn should be completed within a period of twenty one days from the date of allocation of the card. If a firm commitment was not entered into by the allottee with the yarn manufacturer within twenty one days from the date of allocation of the card, the yarn manufacturer should return the allocation card to the Distribution Committee with suitable remarks on the card and a covering letter explaining the reasons for the return of the card. Even in the case of actual fulfilment of the quota covered by the allocation card, the said card should be returned to the Distribution Committee after the delivery of the yarn was completed. This in brief was the Scheme. In the instant case, the appellant had supplied art silk yarn to certain card holders who were residing, as stated earlier, outside the State of Tamil Nadu. It is stated that the appellant had a selling agent and distributor by the name M/s. Rayonyarns Import Company Ltd. at Bombay and the case of the appellant was that it had 47 supplied art silk yarn to the card holders in the States of Maharashtra and Gujarat through the said agent and the delivery of the goods was effected at Bombay. In the assessment proceedings before the Joint Commercial Tax Officer, Coimbatore for the year 1964 65, the appellant claimed that the sales of art silk yarn through its agent at Bombay were not inter State sales as defined by section 3(a) of the Act as the movement of the goods in question from the State of Tamil Nadu to the State of Maharashtra or the State of Gujarat was not occasioned by the sales in question and that they were in fact sales which had taken place outside the State of Tamil Nadu. The Joint Commercial Tax Officer rejected the contention of the appellant and treated the sales effected in favour of the Export Promotion Scheme card holders through the appellant 's agent at Bombay as inter State sales and levied tax under the Act accordingly. He also revised the orders of assessment for the years 1962 63 and 1963 64 bringing to tax the turnover relating to transactions of similar nature during those years. In the appeals filed by the appellant against the order of assessment for the year 1964 65 and of revised assessment for the years 1962 63 and 1963 64 before the Appellate Assistant Commissioner, (Commercial Taxes), Coimbatore, the orders passed by the Joint Commercial Tax Officer were affirmed. The appellant then filed three appeals before the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Coimbatore against the orders passed in appeal by the Appellate Assistant Commissioner. The Tribunal also held that the sales in favour of the Export Promotion Scheme card holders outside the State of Tamil Nadu were inter State sales and were liable to be taxed under the Act. Aggrieved by the orders of the Tribunal, the appellant preferred three revision petitions before the High Court of Madras. These petitions were dismissed. Thereafter the appellant has come up in appeal to this Court by special leave. Section 3(a) of the Act provides that a sale or purchase of goods shall be deemed to take place in the course of inter State trade or commerce if the sale or purchase occasions the movement of goods from one State to the other. In order to substantiate its case, the appellant has placed before us the documents relating to one transaction stating that the decision on the true nature of the said transaction would govern all other transactions of sale in dispute as they were all of a similar kind. Those documents relate to the supply of art silk yarn to a firm known as M/s. Ramesh Silk Fabrics at Surat in the State of Gujarat made in June, 1964. The purchaser was issued an allocation card on November 7, 1963 bearing No. 48 3124. Under the card, M/s. Ramesh Silk Fabrics was entitled to purchase 273 Kgs. of indigenous art silk yarn from the appellant. The following were the relevant terms of the card: "1. The rayon manufacturers and/or our approved dealers shall ensure that the quantity sold is not more than the quantity allocated as indicated in column No. 4(b) on the reverse of the card. The rayon manufacturer shall offer yarn to the allottee within seven days from the date of allocation card without waiting for the allottee to approach him. Contract for the supply of yarn shall be concluded within 21 days from the date of the allocation card. Particulars of the quantity of yarn sold by the rayon yarn manufacturer his approved dealer with the date of or sale shall be entered and signed by the seller in column (5) on the card. No supply shall be made on allotment card on which corrections have not been attested by the Secretary or the Manager. If firm commitment is not entered into by the allottee with the yarn manufacturer, the yarn manufacturer shall return the allocation card to the Distribution Committee, with suitable remarks on the card and a covering letter explaining the reasons for returning the card. Allocation cards shall be returned to the Distribution Committee after the delivery of yarn has been completed. " At the back of his allocation card, in column 4(a) the appellant is shown as the manufacturer and in column 4(b) the quantity allotted is shown as 273 Kgs. Column (5) of the allocation card shows that quantity of 268 Kgs. had been supplied as per Invoice No. BC/132. Then we have the Invoice No. BC/132 prepared in the name of the appellant by its agent, Rayon yarn Import Co. Pvt. Ltd. and signed by the agent for and on behalf of the appellant. The cases containing goods sold had been marked as 5829, 8479 and 8505. The Invoice contains a note which reads as follows: 49 "We have charged you 2% Central Sales Tax for which purpose you are required to send us immediately your regular 'C ' form correct in all respects as required by the law in force for the time being in the absence of which you are required to remit us balance sum of Rs . being the difference between the rate charged and the revised rate at 10% applicable in such case. " But actually 2% tax was added and it was shown in the invoice as local sales tax of Maharashtra at 2% of the price. A delivery order dated June 3, 1964 prepared by the agent at Bombay on behalf of the appellant also refers to the numbers of the cases containing goods as 5829, 8479 and 8505. What is of significance is a letter dated May 23, 1964 written by the agent at Bombay to the appellant. By that letter, the agent requested the appellant to send from the factory 69 cases of yarn bearing specific numbers including case No. 5829, 8479 and 8505. The said letter further stated that the invoices of sale would be sent after the goods were sold by the agent. What is attempted to be made out by the appellant is that the appellant was informing its agent at Bombay from time to time as and when goods were manufactured the number of the cases in which the goods had been packed and at the request of its agent it had despatched the goods to Bombay but not as a result of any sale of the said goods in favour of a purchaser. According to the appellant, the sale had taken place at Bombay and the movement of goods to Bombay from the State of Tamil Nadu was not connected with the sale in question. In order to constitute an inter State sale as defined in section 3(a) of the Act, two factors should co exist (i) a sale of goods and (ii) movement of goods from one State to another under the contract of sale. If there is a conceivable link between a contract of sale and the movement of goods from one State to the other in order to discharge the obligation under the contract of sale, the inter position of an agent of the seller who may temporarily intercept the movement ought not to alter the inter State character of the sale. The facts which are glaring in this case are: (1) the allotment of a certain quantity of art silk yarn produced by the appellant in favour of the allocation card holder; (2) the requirement that the appellant should offer to sell the quantity of goods allotted to the card holder within seven days; 50 (3) the requirement that contract of sale should be completed within twenty one days of the date of the allocation card; (4) the requirement that the card should be returned to the Committee if no contract of sale was concluded as stated above; and (5) the fact that the goods have been supplied expressly against the quota allotted under the allocation card. Admittedly the allocation card bearing No. 3124 was issued on November 7, 1963 and it required the appellant to offer to sell the quantity of art silk yarn mentioned in it to the purchaser within seven days without even waiting for the purchaser approaching the appellant with a request to supply the goods in question. The card contemplated a contract of sale to be completed within twenty one days of the date of its issue. The invoice in question contained the number of the allocation card. In the letter dated May 23, 1964 the agent requested the appellant to send the cases bearing Nos. 5829, 8479 and 8505 by lorry from Sirumughai and the said boxes were later on admittedly delivered to the purchaser on June 3, 1964. These facts cumulatively suggest that the goods in question had been transported from the factory site of the appellant to Bombay for delivery to the purchaser as a result of the contract of sale established in accordance with the terms of the allocation card. It is, however, argued on behalf of the appellant relying upon the decision of this Court in Tata Engineering and Locomotive Co. Ltd. vs Commissioner of Commercial Taxes, Jamshedpur and Anr. that the sale effected by the appellant 's agent at Bombay could not be treated as the immediate case of movement of goods from the State of Tamil Nadu to the State of Maharashtra or the State of Gujarat, as the case be may. The facts in the aforesaid case are distinguishable from the facts in the present case since it was held in that case that the procedure followed by the manufacturer, the appellant in that case together with the absence of any firm orders placed by the purchasers indicated that there were no transactions of sale within the meaning of section 2(g) of the Act and assuming that any firm orders had been received by the appellant therein, they could not be regarded as anything but mere offers. This Court further held in that case that the appropriation of goods was done 51 at the appellant 's stockyard situated in the State where the vehicles were delivered to purchasers and it was open to the appellant till then to allot any vehicle to any purchaser or to transfer a vehicle from one stockyard to another. One strong circumstance which existed in that case was the absence of the firm orders which occasioned the movement of goods from the State of Bihar to other States as can be seen from the following passage in that decision: "As regards the so called firm orders it has already been pointed out that none have been shown to have existed in respect of the relevant periods of assessment. Even on the assumption that any such orders had been received by the appellant they could not be regarded as anything but mere offers in view of the specific terms in Exhibit 1 (the dealership agreement) according to which it was open to the appellant to supply or not to supply the dealer with any vehicle in response to such order. " In the instant case there is clear evidence of the existence of a prior contract of sale as per terms of the allocation card. The fact that actual sale pursuant to the said contract of sale had taken place subsequently does not militate against the transaction being treated an inter State sale under Section 3 (a) of the Act, since the movement of the goods delivered to the buyer was occasioned by the contract of sale brought into existence under the terms of the allocation card. It was, however, faintly suggested that the evidence of what took place between the appellant and the allottee within twenty one days of the issue of the allocation card was lacking in this case. Evidence about these facts was within the knowledge of the appellant and the appellant had not placed it before the assessing authority. It is likely that if such evidence had been produced it would have gone against the appellant. Even apart from that the finding recorded by the assessing authority the appellate authority, the Tribunal and the High Court on the basis of the terms of the allocation card and other material on record that there was a contract of sale within the stipulated time between the appellant and the allottee of art silk yarn is unassailable. In the circumstances no assistance can be derived by the appellant from the case of Tata Engineering and Locomotive Co. Ltd. (supra). The decision of this Court in Kelvinator of India Ltd. vs The 52 State of Haryana relied on by the appellant has also no bearing on this case. The assessee in that case had its factory where it manufactured refrigerators at Faridabad in the State of Haryana and it moved the goods manufactured by it to its godown at Delhi. The excise pass utilised for such movement was always in favour of self. During the transport of goods, the assessee paid octroi payable for bringing goods into Delhi. At Delhi, the assessee sold the goods to its distributors. The Court on a consideration of the material before it held that even though there were prior distribution agreements entered into between the assessee and its distributors, the goods in question had not been moved pursuant to the said agreements from Faridabad to Delhi, and hence there was no inter state sale. The facts of this case are, however, close to the facts in English Electric Company of India Ltd. vs The Deputy Commercial Tax officer & Ors. Here also the assessee had its factory in the State of Tamil Nadu. Its registered office was at Calcutta but it had branch offices at Madras, Bombay and other places. A Bombay buyer wrote to the Bombay branch of the appellant in that case asking for lowest quotation in respect of the goods which were being manufactured in the factory in Tamil Nadu. After some correspondence between the Bombay branch and the Madras branch, the Bombay branch, wrote to the Bombay buyer giving all the required particulars. The Bombay buyer thereafter placed an order with the Bombay branch for certain goods. The Bombay branch informed the Madras branch about the order placed by the Bombay buyer. On receipt of the invoice from the Madras branch the Bombay branch wrote to the Bombay buyer that some of the goods indented by him were ready for despatch and asked for despatch instructions. On receipt of such instructions, the Bombay branch asked the Madras Branch to send goods to Bombay. The railway receipts were sent through the Bombay branch. The goods were delivered to the Bombay buyer through clearing agents and the insurance charges were collected from the Bombay buyer. The assessee claimed in the assessment proceedings that the sale was not an inter State sale but one which had taken place at Bombay between the Bombay branch and the Bombay buyer, The said contention was rejected by this Court with the following observations: "The appellant in the present case sent the goods direct from the Madras branch factory to the Bombay buyer 53 at Bhandup, Bombay. The railway receipt was in the name of the Bombay branch to secure payment against delivery. There was no question of diverting the goods which were sent to the Bombay buyer. When the movement of goods from one State to another is an incident of the contract it is a sale in the course of inter State sale. It does not matter in which State the property in the goods passes. What is decisive is whether the sale is one which occasions the movement of goods from one State to another. The inter State movement must be the result of a covenant, express or implied, in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter State movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of inter State trade or commerce, that the covenant regarding inter State movement must be specified in the contract itself. It will be enough if the movement is in pursuance of and incidental to the contract of sale. When a branch of a company forwards a buyer 's order to the principal factory of the company and instructs them to despatch the goods direct to the buyer and the goods are sent to the buyer under those instructions it would not be a sale between the factory and its branch. If there is a conceivable link between the movement of the goods and the buyer 's contract, and if in the course of inter state movement the goods move only to reach the buyer in satisfaction of his contract of purchase and such a nexus is otherwise inexplicable, then the sale or purchase of the specific or ascertained goods ought to be deemed to have taken place in the course of inter State or commerce as such a sale or purchase occasioned the movement of the goods from one State to another, The presence of all intermediary such as the seller 's own representative or branch office, who initiated the contract may not make the matter different. Such an interception by a known person on behalf of the seller in the delivery State and such person 's activities prior to or after the implementation of the contract may not alter the position. " In the instant case, the allocation card was first sent in November, 1963 asking the appellant directly to make an offer of the 54 goods to the allottee. The allottee was expected to communicate his desire to purchase the goods within twenty one days of the date of the allocation card. Such communication brought into existence a contract sale directly between the appellant and the buyer. The goods were admittedly sent pursuant to the said contract of sale. The interposition at a later stage of the selling agent who acted on behalf of the appellant in the preparation of the invoice and the delivery of the goods would not alter the true character of the sale as the selling agent was just a conduit pipe. The goods having been despatched from one State to another State pursuant to a contract of sale which came into existence directly between the appellant and the buyer within a few days after the date of the allocation card, the sale was an inter State sale. The Tribunal and the High Court were, therefore, right in upholding the orders of the assessing authority levying tax under the Act on all sales which had taken place in favour of the Export Promotion Scheme card holders in Gujarat and Maharashtra even though the selling agent of the appellant at Bombay had on behalf of the appellant also dealt with such card holders at Bombay, as the transactions in question satisfied the tests laid down in the case of English Electric Company of India Ltd. (supra). In the result the appeals fail and are dismissed with costs. P.B.R. Appeals dismissed. [/INST]The appellant and the deceased were collaterals. On the death of his brother, the deceased was looking after the affairs of his brother 's wife and children. Some while before on the day of occurrence, the deceased attended the marriage of his brother 's daughter. The prosecution case against the appellant was that he nursed a grievance against the deceased that it was he who induced his sister in law not to invite him, (the appellant) and his brothers to the marriage and incensed by such insult he wanted to teach the deceased a lesson. After the marriage, armed with a gandhala (a common agricultural implement with a flat, rectangular iron strip with three sides blunt, embedded in a wooden handle which is used for digging holes) the appellant and his brothers emerged suddenly and in a joint assault the appellant struck a blow on the head of the deceased with the blunt side of the gandhala. The Sessions Judge held that the appellant struck the blow on the head with intent to cause such bodily injury as was sufficient in the ordinary course of nature to cause death and that, therefore, he was guilty of culpable homicide amounting to murder punishable under section 302 I.P.C. Affirming the conviction and sentence the High Court was of the view that there was no specific and positive evidence as to the motive for the murder but that it was more probable that the accused had joined the marriage and that "something happened on the spur of the movement", which resulted in the infliction of the injury leading to the death of the deceased. In appeal it was contended that the offence amounted to culpable homicide not amounting to murder punishable under section 304 part II I.P.C. because all that could be attributed to the appellant was knowledge that a blow struck on the head with the blunt side of the gandhala would cause an injury, which was likely to cause death but that in any event when he struck the blow he could not be attributed with intention to cause death. Allowing the appeal, ^ HELD: The appellant having been found to have struck the deceased with the blunt side of the gandhala in the heat of the moment without premeditation 840 and in a sudden fight all the requirements of Exception 4 to section 300 are met. Having held that it was more probable that the appellant had also attended the marriage but that something had happened on the spur of the moment resulting in the infliction of the injury and eventual death of the deceased the High Court erred in applying clause. Thirdly of section 300. Giving a solitary blow on a vital part of the body resulting in death cannot always necessarily reduce the offence to culpable homicide not amounting to murder punishable under section 304 part II of the Code. If a man deliberately struck another on the head with a heavy log or an iron rod or a lathi so as to cause a fracture of the skull, in the absence of any circumstances negativing the presumption, he must be deemed to have intended to cause death or such bodily injury as is sufficient to cause death. The intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon death. [843 B C] Under clause Thirdly of section 300 culpable homicide is murder if the act which causes death is done with intention of causing a bodily injury and that injury is sufficient in the ordinary course of nature to cause death i.e. the injury found was one that was intended to be inflicted. [844 F G] Virsa Singh vs State of Punjab ; at 1503 applied. Gudur Dusadh vs State of Bihar , Chahat Khan vs State of Haryana, A.I.R. 1972 S.C. 2574, Chamru Budhwa vs State of Madhya Pradesh, A.I.R. 1954 section C. 652, Willie (Williams) Slaney vs State Of Madhya Pradesh ; , Harjinder Singh (alias Jinda) vs Delhi Admn. ; & Lakshman Kalu Nikalje vs State of Maharashtra ; referred to. In the instant case the genesis of the quarrel was not known. The prosecution alleged that the appellant and his brothers had a grouse against the deceased and that they went to the marriage armed with weapons to teach the deceased a lesson. The defence version, on the other hand, was that they were invited to the marriage. In a controversy of such a nature the prosecution should have examined the sister in law of the deceased who was a material witness to ascertain the truth, failure to do which made the prosecution case infirm. [847 B C] Secondly when the appellant struck a blow with blunt side of the gandhala it could not be said that he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. If a man is hit with the blunt side on the head with sufficient force it is bound to cause death. The fact that the gandhala was used with sufficient force was not by itself sufficient to raise an inference that the appellant intended to cause such bodily injury as was sufficient to cause death. He could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause death. Therefore, the case does not fall within clause Thirdly of section 300 I.P.C [845 E H] </s>

<s>[INST] Summarize the judgementAppeal No. 164 of 1952. Appeal from the Judgment and Decree dated the 12th August, 1949, of the High Court of Judicature at Bombay in Appeals Nos. 63 and 148 of 1947, from Original Decree, arising out of the Decree dated the 31st July, 1946, of the Court of the Civil Judge, Senior Division, Bijapur, at Bijapur in Special Civil Suit No. 28 of 1945. J. B. Dadachanjiand Naunit Lal for the appellant. section B. Jathar and Ratnaparkhi Anant Govind for the respondents. March 23. The Judgment of the Court was delivered by VENICATARAMA AYYAR J. 3 VENKATARAMA AYYAR J. This appeal arises out of a suit for partition instituted by the appellant in the Court of the Civil Judge Senior Division, Bijapur. The relationship of the parties will appear from the following genealogical table: Ramchandra : : : : : : Siddopant Krishnarao alias Sadashiv (d. 1897) (d.1899) m. Rukmini : (D 6) : : Gundo m. Laxmibai (D 5) : : : : : I Shrinivas Devji m. Akkubai (D 4) (adopted son) (adopted) plaintiff d. 6 9 1935. : : : : : Narayan Raghavendra Gundo D 1 D 2 D 3 Siddopant and Krishnarao were members of a joint undivided family. Krishnarao died in 1897 leaving behind a widow, Rukminibai, who is the sixth defendant in the suit. Siddopant died in 1899 leaving him surviving his son, Gundo, who died in 1901 leaving behind a widow, Lakahmibai, who is the fifth defendant. On 16th December, 1901, Lakshmibai adopted Devji, who died on 6th May, 1935, leaving three sons, defendants Nos. 1 to 3, and a widow, Akkubai, the fourth defendant. On 26th April, 1944, Rukminibai adopted the plaintiff, and on 29th June, 1944, he instituted the present suit for partition claiming a half share in the family properties. Siddopant and Krishnarao represented one branch of a Kulkarni family and were entitled for their share of the Watan lands, to the whole of section No. 138 and a half share in section Nos. 133 and 136 in the village of Ukamnal and a half share in section Nos. 163, 164 and 168 in the village of Katakanhalli. The other branch was represented by Swamirao, who was entitled for his half share 4 of the Watan lands, to the whole of section No. 137 and to a half share in S.Nos. 133 and 136 in the village of Ukamnal and to a half share in section Nos. 163, 164 and 168 in the village of Katakanhalli. Siddopint purchased a house under Exhibit D 36 and lands under Exhibits D 61 and D 64, and constructed two substantial houses. His grandson, Devji, also built a house. All these properties are set out in Schedules A and B to the plaint, A Schedule consisting of houses and house sites and B Schedule of lands. It is the plaintiff 's case that these properties were either ancestral, or were acquired with the aid of joint family funds. He accordingly claims a half share in them as representing Krishnarao. Swainirao died about 1903 issueless, and on the death of his widow shortly thereafter, his properties devolved on Devji as his nearest agnate, and they are set out in Schedule C to the plaint. The plaintiff claims that by reason of his adoption he has become a preferential heir entitled to divest Devji of those properties, and sues to recover them from his sons. In the alternative, he claims a half share in them on the ground that they had been blended with the admitted Joint family properties. The defendants denied the truth and validity of the plaintiff 's adoption. They further contended that the only ancestral properties belonging to the family were the Watan lands in the villages of Ukamnal and Katakanhalli, that the purchases made by Siddopant were his self acquisitions, that the suit houses were also built with his separate funds, and that the plaintiff was not entitled to a share therein. With reference to the properties in Schedule C, they pleaded that the. plaintiff could not by reason of his adoption divest Devji of the properties which had devolved on him as heir. They denied that those properties had been blended with the joint family properties. Both the Courts below have held that the adoption of the plaintiff is true and valid, and that question is no longer in dispute before us. They have also held that the purchases made by Siddopant and the houses built by him were his self acquisitions, as was also the house built by Devji. The trial Court held that the 5 plaintiff was entitled to a half share in section Nos. 639 and 640 in Schedule A on the ground that they belonged to the family as ancestral properties; but the High Court held that that had not been established. As regards the properties set out in Schedule C, while the trial Court decided that the appellant was entitled to them exclusively under the decision of the Privy Council in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(1), the High Court held following a Full Bench decision of that Court in Jivaji Annaji vs Hanmant Ramchandra(2), that they belonged exclusively to Devji, and that the plaintiff could lay no claim to them. Both the Courts a reed in negativing the contention of the plaintiff that there had been a blending of these properties with the joint family properties. In the result, the High Court granted a decree in favour of the plaintiff for partition of the admitted Watan ,lands, and otherwise dismissed the suit. The present appeal is preferred against this decision. The first contention that has been urged on behalf of the appellant is that the finding of the Courts below that the properties purchased by Siddopant and the houses constructed by him and Devji were self acquisitions, is erroneous, firstly because the burden was wrongly cast on the plaintiff of proving that they were made with the aid of joint family funds, and secondly because certain documents which had been tendered in evidence by the plaintiff had been wrongly rejected as inadmissible. On the first question, the argument of the appellant is that as the family admittedly possessed income producing nucleus in the ancestral Watan lands of the extent of 56 acres, it must be presumed that the acquisitions standing in the name of Siddopant were made with the aid of joint family funds, that the burden lay on the defendants who claimed that they were self acquisitions to establish that they were made without the aid of joint family funds, that the evidence adduced by them fell far short of it, and that the presumption in favour of the plaintiff stood unrebutted. For deciding whether this contention is well founded, it is necessary to see (1)70 I.A. 232. (2) I.L.R. 6 what the findings of the Courts below are regarding the extent of the ancestral properties, the income they were yielding, the amounts that were invested by Siddopant in the purchases and house constructions, and the other resources that were available to him. On the question of the nucleus, the only properties which were proved to belong to the joint family were the Watan lands of the extent of about 56 acres, bearing an annual assessment of Rs. 49. There is no satisfactory evidence about the income which these lands were yielding at the material period. Rukminibai, P.W. 6, and Akkubai, D.W. 1, gave conflicting evidence on the point. But neither of them could have had much of first hand knowledge, as both of them came into the family by marriage long after the nineties, and were then very young. The lessee who cultivated the lands of Swamirao, who owned, a share in the Watan lands equal to ' that of Siddopant and Krishnarao, deposed that the net income was Rs. 30 per annum. On a consideration of the entire evidence, the trial Court put the annual income at Rs. 150. On appeal, the learned Judges of the High Court were also of the opinion that the income from the lands could not have been considerable. They characterised the oral evidence of P.W. 6 and D.W. I on the point as worthless. They observed that the assessment of less than a rupee per acre was an indication that the lands were of poor quality. They referred to the fact that both the brothers were obliged to go to the State of Hyderabad for earning their livelihood, and that Krishnarao had been obliged to borrow under Exhibits D 89 and D 90 even petty amounts like Rs. 26 and Rs. 10 on onerous terms, and they accordingly concluded that the income from the lands could not have beep sufficient even for maintenance. Coming next to the acquisitions, on 21st May, 1871, Siddopant purchased under Exhibit D 36 a house for Rs.200 from his mother in law. On 11th May,1885, he purchased under Exhibit D 61 section No. 23 Ukamnal village for a sum of Rs. 475. On 23rd July, 1890, he purchased under Exhibit D 64 lands bearing section Nos. 2025 and 2140 for Rs. 2,400. In this suit, we are concerned 7 only with section No. 2025. Apart from these purchases, he constructed two houses, one on section Nos. 639, 640 and 641, and another on S.Nos. 634 and 635. 2 and 3 have deposed that these constructions would have cost between Rs. 20,000 and Rs. 25,000, and both the Courts have accepted this evidence. It was argued for the appellant that these witnesses had no first hand knowledge of the constructions, and that their evidence could not be accepted as accurate. But making all allowances for inexactitude, there cannot be any doubt that the buildings are of a substantial character. After 1901, Devji built a house on section Nos. 642, 644 and 645 at a cost estimated between Rs. 2,000 and 4,000. Thus, sums amounting to about Rs. 30,000 had been invested in the acquisition of these properties and construction of the houses. Where did this money come from ? The evidence is that Siddopant was a Tahsildar in the State of Hyderabad, and was in service for a period of 40 years before he retired on pension. Though there is no precise evidence as to what salary he was drawing, it could not have been negligible, and salary is the least of the income which Tahsildars generally make. The lower Courts came to the conclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made, the former could not be held to be the Foundation for the latter, and on the authority of the decision of the Privy Council in Appalaswami vs Suryanarayanamurti (1) held that the initial burden which lay on the plaintiff of establishing that the properties of which a division was claimed were joint family properties had not been discharged. The law was thus stated in that case: " The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may (1) I.L.R. at 447, 448 8 have been acquired, the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property: See Babubhai Girdharlal vs Ujamlal Hargovandas (1), Venkataramayya vs Seshamma(2) Vythianatha vs Vdradaraja (3). " It is argued for the appellant that in that case the father had obtained under the partition deed, Exhibit A, properties of the value of Rs. 7,220, that he acquired properties of the value of Rs. 55,000, and that never theless, it was observed by the Privy Council that " the acquisition by the appellant of the property under Exhibit A, which as between him and his sons was joint family property, cast upon the appellant (the father) the burden of proving that the property which he possessed at the time of the plaint was his self acquired property "; and that therefore on proof that there existed ancestral lands of the extent of 56 acres, the burden was shifted on to the defendants to establish self acquisition. Whether the evidence adduced by the p plaintiff was sufficient to shift the burden which initially rested on ,him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions ' could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably product substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. In Appalaswami vs Suryanarayanamurti (4), the nucleus of Rs. 7,220 included 6/16th share in a rice mill and outstandings of the value of Rs. 3,500, and as the acquisitions in question were made during a period of (1) I.L.R. (2) I.L.R. , (3) I.L.R. (4) I.L.R. 9 16 years it was possible that the joint family income might have contributed therefor. But in the present case, the finding of the Courts is that the income from the lands was not sufficient even for the maintenance of the members, and on that they were right in holding that the plaintiff had not discharged the initial burden which lay on 'him. But even if we are to accept the contention of the appellant that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, we must hold on the facts that that burden had been discharged. In Appalaswami vs Suryanarayanamurti (1), in holding that the father had discharged the burden of proving that the acquisitions were his own, the Privy Council observed: "The evidence establishes that the property acquired by the appellant under Exhibit A is substantially intact, and has been kept distinct. The income derived from the property and the small sum derived from the sale of part of it have been properly applied towards the expenses of the family, and there is no evidence from which it can be held that the nucleus of joint family property assisted the appellant in the acquisition of the properties specified in the schedule, to the written statement. " Likewise, in the present case all the ancestral Watan lands are intact, and are available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family. Whether we hold, as did the learned Judges of the High Court, that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result is the same. The contention of the appellant that the findings of the Courts below are based on a mistaken view as to burden of proof and are in consequence erroneous, must fail. (1) I.L.R. 10 It was, next contended that certain documents which were tendered in evidence had been wrongly rejected by the Courts below, and that the finding of self acquisition reached without reference to those documents should not be accepted. These documents are judgments in two suits for maintenance instituted by Rukminibai in the Sub Court, Bijapur, C.S. No. 445 of 1903 and C.S. No. 177 of 1941 and in appeals therefrom, C.A. No. 5 of 1905 and C.A. No. 39 of 1942 respectively in the District Court, Bijapur. These documents, were produced before the, trial Court on 17th July, 1946, along with 28 other documents when the hearing was about to commence and were rejected. On appeal, dealing with the complaint of the plaintiff that these documents had been wrongly rejected, the High, Court observed : " Apart from the fact that these documents were produced at a very late stage of the case. . these judgments could have been admitted in evidence only if they could be shown to be relevant under any of the sections 40 to 44 of the Indian Evidence Act. None of these sections applied in this case. The trial Judge was, therefore, right in not admitting them in evidence." The argument of the appellant is that these judgments are admissible under section 13 of the Evidence Act as instances in which there was an assertion that the suit properties belonged to the joint family. For the respondents, it is contended that the dispute between the parties in those litigations was only about the quantum of maintenance to be awarded, that no question of title to the properties was directly involved, and that section 13 was inapplicable. We are unable to accept this contention. The amount of maintenance to be a warded would depend on the extent of the joint family properties, and an issue was actually frame d on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties, and the same was granted. We are of opinion that the judgments are admissible under section 13 of the Evidence Act as assertions of Rukminibai that the properties now in. dispute belonged to the joint family. 11 But there is another difficulty in the way of the reception of this evidence. It was contended by the respondents on the basis of the observations in the judgment of the High Court already extracted that the real ground of rejection was that the documents were produced late. The order of the trial Court rejecting the document has not been produced before us. But there, is on the record a petition filed by the plaintiff on 25th July, 1946, after the evidence was closed and before arguments were addressed, for the admission of the 32 documents rejected on 17th July, 1946, and therein it is stated that "they have been rejected on the ground of late production." The defendants endorsed on this petition that if the documents were to be admitted at that stage, an opportunity would have to be given to them to adduce evidence and the trial would have to be re commenced; and the prayer for admission of these documents was accordingly opposed. The Court dismissed the petition. The rejection of the documents was therefore clearly made under Order XIII, rule 2, and there are no grounds for now setting aside that order and reopening the whole case. This ground of objection must therefore fail. Apart from the Watan lands which are admittedly ancestral, and apart from the purchases made under Exhibits. D 36, D 61 and D 64 and the houses which we have held to be self acquisitions, there are certain plots mentioned in Schedule A in which the plaintiff claims a half share. These are the sites on which the houses have been constructed. ' The contention of the plaintiff is that they are ancestral properties. The trial Court held that in the absence of a title deed showing that the sites were acquired by members of the family they must be held to be ancestral, and on that ground, decreed to the plaintiff a half share in section Nos. 639 and 640. The High Court reversed this decision observing generally that the evidence relating to the house sites was not clear, "when they were acquired or by whom", and that in the absence of evidence showing that they formed part of the joint family properties, they must be held to be self acquisitions. With respect, we are unable to agree with this view. While it is not 12 unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be evidenced by a deed. When, therefore, a property is found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it is ancestral and to throw the burden on the party pleading self acquisition to establish it. It is necessary in this view to examine the evidence relating to the several plots for which no title deeds have been produced. section Nos. 634 and 635 form one block, on which one of the houses has been constructed. The sanads relating to them are Exhibits D 45 and D 46, and they merely recite that the grantee was in occupation of the plots, and that was confirmed. There is reference in them to a previous patta granted by the Government. Exhibits 52 to 55 are pattas showing that the properties comprised therein had been acquired from the Government. If the identity of section Nos. 634 and 635 with the properties comprised in these documents had been established, the plea that they are not ancestral would have been made out. But that has not been done, and the presumption in favour of their being ancestral property stands unrebutted. The claim of the plaintiff to a half share therein must be allowed. section Nos. 639, 640 and 641 form one block, on which there is another house standing. There is no title deed for section No. 639. Exhibit D 47 is the sanad for section No. 640, and it merely recognises the previous occupation by the grantee, and that is consistent with its character as ancestray property. Exhibit D 48 is the sanad for section No. 641 and is in the same terms as Exhibits D 45 and D 46. The claim of the plaintiff with reference to all these items must be upheld. We have next section Nos. 642, 644 and 645, on which Devji constructed a house. The relative sanads are respectively Exhibits D 49, D 50 and D 51. Their contents are similar to those of Exhibits D 45 and D 46, and for the same reasons, these plots must be held to belong to the joint family. We have next section No. 622 on which there stands a house. It is clear from Exhibit D 43 that this was purchased by Devji at a Government auction in the year 1909. The plaintiff can lay no claim to it. Then there is 13 section No. 643. The oral evidence relating to this is that a family temple stands on it. It cannot be partitioned. In the result, it must be held that the plots, section Nos. 634 and 635, section Nos. 639, 640 and 641 and section Nos. 642, 644 and 645 are ancestral properties, and that the plaintiff is entitled to a half share therein. As substantial superstructures have been put thereon, the appropriate relief to be granted to the plaintiff is that he be given half the value of those plots as on the date of the suit. It remains to deal with the claim of the plaintiff for possession of C Schedule properties on the ground that by adoption he became the preferential heir of Swamirao and is consequently entitled to divest Devji and his successors of these properties. The contention of the appellant based on the decision of the Privy Council in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1) is that on adoption the adopted son acquires all the rights of an aurasa son, that these rights relate back to the date of the death of the adoptive father, and that in consequence his right to share in the joint family properties and to inherit from the collaterals should both be worked out as from that date. The contention of the respondents based on Jivaji Annaji vs Hanmant Ramchandra (2) is that the doctrine of relation back does not extend to properties which are inherited from a collateral. The question thus raised is one of considerable importance, and involves a decision as to the correctness of the law as laid down in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1). Considering the question on principle, the ground on which an adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption is that in the eye of law his adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son. As observed by Ameer Ali J. in Pratapsing Shivsing vs Agarsingji Raisingji (3), (1) 70 I.A. 232. (2) I.L.R. (3) 46 I.A. 97 at 107. 14 Again it is to be remembered that an adopted son is the continuator of his adoptive father 's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as West and Buhler point out in their learned treatise on Hindu Law, the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible. " It is on this principle that when a widow succeeds to her husband 's estate as heir and then makes an adoption, the adopted son is held entitled, as preferential heir, to divest her of the estate. It is on the same principle that when a son dies unmarried and his mother succeeds to his estate as his heir, and then makes an adoption to h er husband, that adopted son is held entitled to divest her of the estate. (Vide Vellanki Venkata vs Venkatarama(1) and Verabhai vs Bhai Hiraba(2). The application of this principle when the adoption was made to a deceased coparcener raised questions of some difficulty. If a joint family consisted of two brothers A and B, and A died leaving a widow and the properties were taken by survivorship by B, and then W took a boy X in adoption, the question was whether the adopted son could claim a half share in the estate to which A was entitled. It was answered in the affirmative on the ground that his adoption related back to the date of the death of A. But suppose before W makes an adoption, B dies leaving no son but a widow C and the estate devolves on her, can W thereafter make an adoption so as to confer any rights on X to the estate in the hands of C ? It was held in Chandra vs Gojarabai(3) that the power to make an adoption so as to confer a right on the adopted son could be exercised only so long as the coparcenary of which the adoptive father was a member subsisted, and that when the last of the coparceners died and the properties thereafter devolved on his (1) 4 I.A. Bom. (2) 30 I.A. 234. 15 heir, the coparcenary had ceased to exist, and that therefore W could not adopt so as to divest the estate which had vested in the heir of the last coparcener. In view of the pronouncements of the Judicial Committee in Pratapsing Shivsing vs Agarsingji Raisingji(1) and Amarendra Mansingh vs Sanatan Singh(2) that the validity of an adoption did not depend on whether the adopted son could divest an estate which had devolved by inheritance or not, a Fall Bench of the Bombay High Court held in Balu Sakharam vs Lahoo Sambhaji(3) that in such cases the adoption would be valid, but that the estate which had devolved upon the heir could not be divested. In Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(4), the Privy Council dissented from this view, and held that the coparcenary must be held to subsist so long as there was in existence a widow of a coparcerier capable of bringing a son into existence by adoption, and if she made an adoption, the rights of the adopted son would be the same as if he had been in existence at the time when his adoptive father died, and that his title as coparcener would prevail as against the title of any person claiming as heir of the last coparcener. In substance, the estate in the hands of such heir was treated as impressed with the character of coparcenary property so long as there was a widow alive who could make an adoption. This principle was re affirmed in Neelangouda Limbangouda vs Ujjan Gouda(5). Thus far, the scope of the principle of relation back is clear. It applies only when the claim made by the adopted son relates to the estate of his adoptive father. This estate may be definite and ascertained as when he is the 'sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family, in which the interest of the coparceners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. The point for (1) 46 I.A. 97. (4) 70 I.A. 232. (2) 6o I.A. 242. (5) (3) I.L.R. 16 determination now is whether this doctrine of relation back can be applied when the claim made by the adopted son relates not to the estate of his adoptive father but of a collateral. The theory on which this doctrine is based is that there should be no hiatus in, the continuity of the line of the adoptive father. That, by its very nature, can apply only to him and not to his collaterals. In the Oxford Dictionary the word "collateral" is defined as meaning "descended from the same stock but not in the same line. " The reason behind the rule that there should be continuity in line does not warrant its extension to collaterals. Nor is there any authority until we come to the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(1), which applied the theory of relation back to the properties inherited from collaterals. With reference to them, the governing principle was that inheritance can never be in abeyance, and that once it devolves on a person who is the nearest heir under the law, it is thereafter not liable to be divested. The law is thus stated in Mulla 's Hindu Law, 11th Edition, at pages 20 and 21 : "On the death of a Hindu, the person who is then his nearest heir becomes entitled at once to the property left by him. The right of succession vests in him immediately on the death of the owner of the property. It cannot under any circumstances remain in abeyance in expectation of the birth of a preferential heir where such heir was not conceived at the time of the owner 's death. "Where the estate of a Hindu has vested in a person who is his nearest heir at the time of his death, it cannot be divested except either by the birth of a preferable heir such as a son or a daughter, who was conceived at the time of his death, or by adoption in certain cases of a son to the deceased." ' In Bhubaneswari Debi vs Nilkomul Lahiri(2), the facts were that Chandmoni, the widow of one Rammohun, died on 15th June, 1867, and the estate ,devolved on his nephew, Nilkomul as reversioner. Subsequently, Bhubaneswari Debi, the widow of a (1) 70 I.A. 232. (2) 12 I.A.137. 17 brother of Rammohun called Sibnath, took a boy, Jotindra, in adoption, and the suit was by him for half a share in the estate. If his adoption could relate back to the date of death of Sibnath, which was on 28th May, 1861, Jotindra would be entitled to share the inheritance equally with Nilkomul. That was the argument put forward in support of his claim. (Vide page 139). , In negativing this contention, Sir Barnes Peacock observed: "According to the law as laid down in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral. It is true that reference is also made to the fact that the boy adopted was not actually in existence on the date of the death of Chandmoni ; but that, however, would make no difference in the legal position, if the principle of relation back was applicable. One of the cases which the Privy Council had in mind was Kally Prosonno Ghose vs Gocool Chunder Mitter(1), which was relied on in the High Court. Vide Nilkomul Lahuri vs Jotendro Mohan Lahuri(2). There, it was hold that an adopted son could not claim the estate of his adoptive father 's paternal uncle, which had devolved by inheritance prior to his adoption. In 1888 Golapchandra Sarkar Sastri observed in his Tagore Law Lectures on the Law of Adoption: "As regards collateral succession opening before, adoption, it has been held that an adoption cannot relate back to the death of the adoptive father so as to entitle the adopted son to claim the estate of a collateral relation, succession to which opened before his adoption." (Vide pages 413 and 414). The law was thus well settled that when succession to the properties of a person other than an adoptive father was involved, ,the principle applicable was not the rule of relation back but the rule that inheritance once vested could not be divested. Before examining the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(3), it is (1) I.I. R. (2) I.L.R. (3) 70 I.A. 232. 3 18 necessary, to refer to the earlier pronouncements of the PrivY Council on the question, which formed the basis of that decision. In Pratap Sing Shivsing vs Agarsinqit Raisingji(1) the question related to a jivai grant of the village of Piperia which had been made by the Ruler of Gamph to a junior member on condition, that in default of male descendants it should revert to the thakur. The last incumbent, Kaliansing, died issueless in October, 1903, leaving him surviving his widow, Bai Devla. On 12th March, 1904, she adopted Pratapsing Shivsing. The thakur then sued to recover possession of the village on the ground that the adopted son was not a descendant contemplated by the grant, and that the adoption was invalid, as it would divest him of the village which had vested in him in October, 1903. With reference to the first contention, the Judicial Committee observed that under the Hindu Law an adopted son was as much a descendant as an aurasa son. On the second contention, they held that the principles laid down in Raghunandha vs Brozo Kishoro(2) and Bachoo Hurkisondas. Mankorebai(3) as to divesting of joint family properties which had vested in other persons were applicable, and that having regard to the interval between the date of the death of Kaliansing and the date of the adoption Pratapsing could be treated as a posthumous son. It will be noticed that the thakur did not claim to succeed to the village on the death of Kaliansing as his heir but on the ground of reverter under the terms of the grant, and no question of relation back of title with reference to the succession of a collateral 's estate was involved. In Amarendra Mansingh vs Sanalan Singh(1), the question arose with reference to an impartible zamindari known as Dompara Rai in Orissa. The last of its holder, Raja Bibhudendra, died on 10th December, 1922, unmarried, and by reason of a family custom which excluded females from succeeding to the Raj, a collateral Banamalai succeeded to it. On 18th December, 1922, Indumati, the mother of Bibhudendra, adopted Amarendra to her husband, Brajendra. The question (1) 46 I.A. 97. (3) 34 I.A. 107. (2) 3 I.A. 154. (4) 60 1,A, 242, 19 was whether by his adoption Amarendra could divest BanamaIai of the estate. It was held by the Privy Council that the validity of an adoption did not depend on whether an estate could be divested or not, and that the point to be considered was whether the power to adopt had come to an end by there having come into existence a son, who had attained the full legal capacity to continue the line. Applying these principles, the Judicial Committee decided that the adoption was valid, and that Amarendra took the estate as the preferential heir. It will be seen that in this case no claim of the adopted son to succeed to a collateral was involved, and no question arose as to how far the theory of relation back could be invoked in support of such a claim. The estate claimed was that of his adoptive father, Brajendra, and if the adoption was at all valid, it related back to the date of Brajendra 's death, and enabled Amarendra to divest Banamalai. The point for determination actually was whether by reason of Bibhudendra having lived for about 20 years, the power of his mother to adopt to her husband had come to an end. It may be noted that but for the special custom which excluded women from inheriting, Indumati would have succeeded Bibhudendra as mother, and an adoption by her would divest her of the estate and vest it in Amarendra, and the case would be governed by the decisions in Vellanki Venkata vs Venkatarama(1) and Verabhai vs Bhai Hiraba(2). The only difference between these cases and Amarendra Mansingh vs Sanatan Singh(3) was that on the death of Bibhudendra his heir was not Indumati but Banamalai. This decision might be taken at the most to be an authority for the position that when an adoption is made to A, the adopted son is entitled to recover the estate of A not merely when it has vested in his widow who makes the adoption but also in any other heir of his. It is no authority for the contention that he is entitled to recover the estate of B which had vested in his heir prior to his adoption to A. Vijaysingji Chhatrasingji vs Shipsangji Bhim,,sangji(4) is a case similar to the one in Amarendra Mansingh vs Sanatan Singh(3). The property concerned was (1) 4 I. A. T. (3) 60 I.A. 242. (2) 30 I.A. 234. (4) 62 I.A. 161, 20 an impartible estate. Chandrasangji who was one of the holders of the estate died, and was succeeded by his son, Chhatrasingji. Chhatrasingji was then given away in adoption, and thereafter Bhimsa@gji, the. brother of Chhatrasingji, succeed ed to the estate. Then the widow of Chhatrasingji made an adoption, and the question was whether the adopted son could divest the estate in the bands of Bhimsangji. It was held that he could. Here again, there was no question of collateral succession, the point for decision being precisely the same as in Amarendra Mansingh vs Sanatan Singh(1). We next come to the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(2). The facts of that case were that one Bhikappa died in 1905, leaving him surviving his widow, Gangabai, and an undivided son Keshav. In 1908 Narayan, the divided brother of Bhikappa died, and Keshav succeeded to his properties as heir. In 1917 Keshav died unmarried, and as the properties were Watan lands, they devolved on a collateral, Shankar. In 1930 Gangabai adopted Anant, and he sued Shankar to recover possession of the properties as the adopted son of Bhikappa. The High Court had held that as the joint family ceased to exist in 1917 when Keshav died, and as the properties had devolved on Shankar as his heir, the adoption, though valid, could not divest him of those properties. The Privy Council held that the coparcenary must be taken to continue so long as there was alive a widow of the deceased coparcener, and that GaDgabai 's adoption had the effect of vesting the family estate in Anant, even though it had descended on Shankar as the heir of Keshav. The decision so far as it relates to joint family properties calls for no comment. When once it is held that the coparcenary subsists so long as there is a widow of a coparcener alive, the conclusion must follow that the adoption of Anant by Gangabai was valid and operated to vest in him the joint family properties which had devolved on Shankar. Then, there were the properties 'which Keshav had inherited from Narayan , which had also devolved on Shankar as his (1) 60 I A, 242. (2) 701 I.A. 232, 21 heir. With reference to them, the Privy Council observed : " If the effect of an adoption by the mother of the last male owner is to take his estate out of the hands of a collateral of his who is more remote than a natural brother would have been, and to constitute the adopted person the next heir of the last male owner, no distinction can in this respect be drawn between pro perty which had come to the last male owner from his father and any other property which he may have acquired." On this reasoning, it was held that Anant was entitled also to the properties inherited by Keshav from Narayan. Anant Bhikappa Patil (Minor) vs Shankar Ram Chandra Patil(1) must, in our opinion, be taken to decide that the doctrine of relation back will apply not only as regards what was joint family estate but also properties which had devolved by inheritance from a collateral. Otherwise, it is impossible to justify the conclusion that the personal properties of Keshav which had vested in Shankar in 1917 would re vest in Anant even though he was adopted only in 1930. The question arise how this decision is to be reconciled with the principle laid down in Bhubaneswari Debi vs Nilkomul Lahiri (2) that an adoption made subsequent to the death of a collateral do es not divest the inheritance which had vested prior to that date. That that principle was not intended to be departed from is clear from the following observations of Sir George Raiikin: " Neither the present case nor Amarendra 's case(3) brings into 'question the rule of law considered in Bhuba neswari Debi vs Nilkomul Lahiri(3) (of Kalidas Das vs Krishnachandra Das(4)). . Their Lordships say nothing as to these decisions which appear to apply only to cases of inheritance ' " Nor does the discussion in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(1) throw much light on this matter. Considerable emphasis is laid on the fact that a ooparcener has only a fluctuating interest in the joint family properties, that it may increase by death and decrease by birth, and that such a qualified (1) 70 I.A.232. (3) 60 I. A. 242. (2) 12 I.A. 137. (4) 2 B.L.R. 103 F.B. 22 interest as that must carry with it the liability to be divested by the introduction of a new coparcener by adoption. This reasoning, however, is wholly inapplicable to property which is not held in coparcenary, such as the estate of a collateral devolving by inheritance. The judgment then refers to the decisions of the Board in Amarendra Mansingh vs Sanatan Singh(1) and Vijaysingji Chhatrasingji vs Shivsangji Bhimsangji(2), and it is observed that the impartible estates which were concerned therein were treated as separate property and not as joint family property, a conclusion which does not settle the question, because even on the footing that the estates were separate properties, no question of collateral succession was involved in them, the claim under litigation being ' in respect of the estate of the adoptive father and covered by the principle already established in Vellanki Venkata vs Venkatarama (3) and Verabhai vs Bhai Hiraba (4). Then follows the conclusion already quoted that no distinction can be drawn between properties which come from the father and properties which come from others. This is to ignore the principle that the doctrine of relation back based on the notion of continuity of line can apply and had been applied, only to the estate of the adoptive father and not of collaterals. We may now turn to Jivaji Annaji vs Hanmant Ram. Chandra (5) wherein the scope of the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (6) came up for consideration. There, the material facts were that Keshav and Annappa who were members of a joint family effected a partition, and thereafter, Annappa died in 1901, leaving behind a widow, Tungabai. Keshav died leaving behind a son, Vishnu, who died in 1918 without male issue, and the property being Watan lands devolved on a collateral called Hanmant as his heir. In 1922 Tungabai adopted Jivaji. The question was whether he was entitled to divest the properties which had become vested in Hanmant as the preferential heir of Vishnu, and the decision was that he was not. It will be noticed that (1)60 I.A. 242. (4) 30 I.A. 234. (2) 62 I.A. Bom. (3) 4 I.A. 1. (6) 70 I.A. 232. 23 Annappa to whom the adoption was made had at the time of his death become divided from his brother, and the principles applicable to adoption by a widow of a deceased coparcener had therefore no application. It was a case in which the adopted son laid a claim to properties, not on the ground that they belonged to the joint family into which he had been adopted but that they belonged to a collateral to whom he was entitled to succeed as a preferential heir, and it was sought to divest Hanmant of the properties which had vested in him in 1918 on the strength of the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1) The contention was that if Anant could as adopted son divest the personal properties of Keshav which had devolved on Shankar as his preferential heir, Jivaji could also divest the properties which had devolved on Hanmant as the preferential heir of Vishnu. The learned Judges made no secret of the fact that this contention received support from the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1); but they were impressed by the fact that the statement of the law in Bhubaneswari Debi vs Nilkomul Lahiri (2) as to the rights of an adopted son quoad the estate of a collateral had been reaffirmed, and they accordingly held that the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1) did not intend to alter the previous law that an adopted son could not divest properties which had been inherited from a collateral prior to the date of adoption. They distinguished the actual decision on the ground that as Keshav had vested in him both the ancestral properties as well as the properties inherited from Narayan, and as admittedly there was a relation back of the rights of Anant in respect of the ancestral properties, there should likewise be a relation back in respect of the separate properties. But it is difficult to follow this distinction. If under the law the rights of an adopted son differ according as they relate to the estate of his adoptive father or to property inherited from collaterals, the fact that both classes of properties are held by the same person can make no difference in the quality of those rights. The position will (1) 70 I.A. 232. (2) 12 1 A. 137. 24 be analogous to that of a coparcener who has also self acquisitions, in which case, the devolution by survivorship of joint family properties does not affect the devolution by inheritance of the separate properties. The fact is, as frankly conceded by the learned Judges, they were puzzled by the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1), and as it was an authority binding on the Indian Courts, they could not refuse to follow it, and were obliged to discover a distinction. This Court, however, is not hampered by any such limitation, and is free to consider the question on its own merits. In deciding that an adopted son is entitled to divest the estate of a collateral, which had devolved by inheritance prior to his adoption, Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1) went far beyond what had been previously understood to be the law. It is not in consonance with the principle well established in Indian jurisprudence that an inheritance could not be in abeyance, and that the relation back of the right of an adopted son is only quoad the estate of the adoptive father. Moreover, the law as laid down therein leads to results which are highly inconvenient. When an adoption is made by a widow of either a coparcener or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alienations made prior to the date of adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees from limited owners, whether they be widows or coparceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him. The alienees from him would have no protection, as there could be no question of supporting the alienations on the ground of necessity (1) 70 I.A. 232. 25 or benefit. And if the adoption takes place long after the succession to the collateral had opened in this case it was 41 years thereafter and the property might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations. We must hesitate to subscribe to a view of the law which leads to consequences so inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal fictions should not be extended so as to lead to unjust results. We are of opinion that the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(1) in so far as it relates to properties inherited from collaterals is not sound, and that in respect of such properties the adopted son can lay no claim on the ground of relation back. The decision of the High Court in respect of C, Schedule properties must therefore be affirmed. It was I finally contended that the defendants had blended C Schedule properties along with the admitted ancestral properties so as to impress them with the character of joint family properties. The burden of proving blending is heavily on the plaintiff. He has to establish that the defendants had so dealt with the properties. as to show an intention I to abandon their separate claim over it. This is a question of fact on which the Courts below have concurrently found against the appellant, and there are no grounds for differing from them. In the result, the decree of the lower Court will be modified by granting the plaintiff a decree for half the value of the plots, section Nos. 634 and 635, section Nos. 639, 640 and 641 'and section Nos. 642, 644 and 645 as on the date of the suit. Subject to this modification, the decree of the lower Court is confirmed, and; the appeal is dismissed. In the circumstances, the parties will bear their own costs in this appeal. Appeal dismissed. (1) 70 I.A. 232. [/INST]By a petition under Art.32 of the Constitution,the petitioner challenged an order of detention passed against him under r. 30(1)(b) of the Defence of India Rules, 1962. It was contended on his behalf, inter alia, (i) that the order of the President passed on November 3. 1962 as amended on November 11, 1962 under article 359(1) of the Constitution, suspending the right to move any court for the enforcement of the fundamental rights conferred by articles 14, 21 and 22 if any person was deprived of such right during the period of the Emergency under the Defence of India Ordinance No. 4 of 1962 or any rule or order made thereunder, was a law within the meaning of article 13(2) of the Constitution and could therefore be tested against the fundamental rights in Part III of the Constitution including the very fundamental right the enforcement of which is suspended; that only such fundamental rights can be suspended which have nexus with the reasons which led to the Proclamation of Emergency, i.e., the President can only suspend enforcement of fundamental rights under articles 22 and 31(2) by an order under article 359; that the order under article 359 in the present case was violative of article 14 as it enabled the executive to decide. in exercise of an arbitrary discretion, whether to detain a person under the more drastic provisions of the Defence of India Act 51 of 1962 or the Preventive Detention Act; (ii) that in view of the language of article 359 there should have been an express provision in the Defence of India Act and the Rules that the enforcement of fundamental rights under articles 14, 21 and 22 was suspended and in the absence of such a provision the order passed under article 359 cannot stand in the way of the detention order being tested under Part III of the Constitution; (iii) that article 22(5) requires that grounds of detention should be furnished to the detenu and the President 's order of November 1962 does not do away with this requirement which was not satisfied in the present case; and (iv) that the order of detention was not in the form required by article 166 of the Constitution and the State Government therefore had to prove that it was passed by the authority empowered to do so. Held: (by the Court) :The petitions must be dismissed. Per majority: (i) An order passed under article 359(1) cannot be tested with the aid of article 13(2) under that very fundamental right the enforcement of which it suspends. Even if an order under article 359 is assumed to be law in its widest sense, it cannot be a law within the mean 228 ing of article 13(2), for if that were so, the Article would be made nugatory. article 359 gives categorical powers to. the President during the period when a Proclamation of Emergency is in operation to suspend the enforcement of any of the fundamental rights conferred by Part III. There is nothing in it which in any way limits the power of the President and it is for him to decide the enforcement of which of the fundamental rights should be suspended during the Emergency. [234D G; 232B D] There is a basic assumption in article 359 that it may be necessary for the President to suspend the enforcement of any of the fundamental rights in the interest of the security of India and in the face of that basic assumption, there is no scope for enquiry into the question whether the fundamental right the enforcement of which the President has suspended under article 359 has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbance. It cannot be said that only fundamental rights under article 22 or article 31 (2) can be suspended under article 359. [232 F, G; 235C D] Even if the provisions for detention under the Defence of India Act and the Rules are more stringent, after the suspension of article 14 under article 359, no question of the order under article 359 being bad under article 14 can arise. [235H] Ghulam Sarwar vs Union of India ; ; dissented from. (ii) The clear intendment of the President 's order is that if any fundamental right of any person under articles 14, 21 and 22 was invaded by any action taken under the Ordinance (later replaced by the Act), or any rule or order thereunder, that action could not be tested on the anvil of those fundamental rights. It was therefore not necessary to make any express provision in the Act or the Rules for the suspension of the enforcement of the fundamental rights under articles 14, 21 and 22. [236E] (iii) As the President 's order suspending article 22 was validly made, there was no question of furnishing any ground under article 22(5) to the detenu if the detention was under the Defence of India Act or the Rules, for the entire article 22 was suspended. [236G] (iv) Article 166 has no application to the State of Jammu & Kashmir and as the detention order was made in the form required by section 45 of the Constitution of Jammu & Kashmir, it must be presumed to have been validly made. [237B] Per Hidayatullah, J. Although a suspension of a fundamental right under article 359(1) may be made either for the whole of India or any part of the territory of India, Ghulam Sarwar 's case points out that there is nothing to prevent the President from restricting the scope of the order to a class of persons provided the operation of the order is confined to an area and to a period. As the order was applicable to the whole of India and for the duration of the emergency although it affected a class, namely, foreigners, it was upheld. This was not the application of article 14. This was said because the argument was that the order could only be with reference to the whole or a part of the territory of India and not with respect to a class such as foreigners. That meant that the order was considered in relation to the words of article 359(1). The meaning now attributed to the decision in Ghulam Sarwar 's case is in view of the width of language used in that case and the decision of the majority in the present also suffers from a width of language in the other direction whereas the truth ties midway. [238A F] 229 </s>

<s>[INST] Summarize the judgementAppeal No. 423 of 1964. Appeal by special leave from the order dated October 5, 1962 of the Central Government Industrial Tribunal at Dhanbad in Application No. 53 of 1961 in Reference Nos. 45, 56, 63 and 65 of 196.1. section V. Gupte, Solicitor General and I. N. Shroff, for the appellant. Jitendra Sharma and Janardan Sharma, for the respondent. The Judgment of the Court was delivered by Gajendragadkar, C. J. This appeal raises a very short point for our decision. The appellant, the Tata Iron & Steel Co. Ltd., (N)4SCI 430 Jamadoba, filed an application under section 33(2)(b) of the (No. 14 of 1947) (hereinafter called "the Act"), before the Central Government Industrial Tribunal, Dhanbad (hereinafter called "the Tribunal"), asking for its approval of the action which it proposed to take against its employee, the respondent D. R. Singh. This application was made by the appellant, because certain industrial disputes were pending at the relevant time between the appellant and its employees under References Nos. 45, 56, 63 and 65 of 1961. This application was opposed by the respondent who filed his written statement. At the hearing of the application, the appellant urged before the Tribunal that though it had made the present application as a matter of abundant caution, its case was that it was not necessary to apply under section 32(2), because the respondent was not concerned with the industrial disputes which were pending between the appellant and its employees in the different References to which we have already referred. In other words, the appellant wanted the Tribunal to consider the question as to whether the respondent was a workman concerned in the relevant industrial disputes at all, before dealing with the merits of its application. The appellant 's case was that one of the conditions precedent for the applicability of section 33 is that the workman against whom the employer seeks to take action falling under section 33(2), must be a workman concerned in the main industrial disputes; if he is not so concerned, section 33(2) will not apply. In order to avoid any complica tions and with a view to save itself from the charge that it had contravened section 33 of the Act, the appellant had no doubt made an application as a precautionary measure; that is why it wanted the Tribunal to consider its contention that section 33 did not apply as a preliminary point. The Tribunal took the view that the appellant could not raise such a contention. It held that if the appellant thought that section 33 did not apply, it should withdraw the application and take the consequences. On that view, it refused to entertain the plea raised by the appellant and proceeded to deal with the merits of the application. In the result, the Tribunal was not satisfied that a prima facie case had been made out for the dismissal of the respondent, and so, approval was not accorded to the action which the appellant wanted to take against the respondent and its application was accordingly dismissed. It is against this order that the appellant has come to this Court by special leave. The learned Solicitor General for the appellant contends, and we think rightly, that the Tribunal was in error in not dealing with the preliminary point as to whether section 33 applied to the facts of this case. It is plain that in a situation like the present, even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself. It would be legitimate for an employer like the appellant to make an application under section 33 without prejudice to his case that section 33 did not apply. The question 431 about the construction of the words "a workman concerned in such dispute" which occur in section 33(1) and (2) has been the subject matter of judicial decisions and somewhat inconsistent views had been taken by different High Courts on this point. Some High Courts construed the said words in a narrow way, vide New Jehangir Vakil Mills Ltd., Bhavnagar vs N. L. Vyas & Ors.,(1) while others put a broader construction on them, vide Eastern Plywood Manufacturing Company Ltd vs Eastern Plywood Manufacturing Workers ' Union(2). Newton Studios Ltd. vs Ethirajulu (T. R.) & Others(3), and Andhra Scientific Company Ltd. vs Seshagiri Rao (A).(4). This problem was ultimately resolved by this Court in its two recent decisions, viz., New India Motors (Private) Ltd. vs Morris (K.T.)(5) and Digwadih Colliery vs Ramji Singh(6). In this latter case this Court considered the conflicting judicial decisions rendered by the different High Courts and has approved of the broader construction of the words "workmen concerned in such dispute". Where judicial decisions differed on the construction of the words "workmen concerned in such dispute", it would be idle and unreasonable to suggest that the employer should make up his mind whether section 33 applies or not, and, if he thinks that section 33 does not apply, he need not make the application; on the other hand, if he thinks that section 33 applies, he should make an application, but then he cannot be permitted to urge that the application is unnecessary. Such a view is, in our opinion, wholly illogical and unsatisfactory. Therefore, we must hold that the Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial disputes and as such, the application made by it was unnecessary. That raises the question as to the course that we should adopt in dealing with the merits of the present appeal. Logically, it would be necessary to make a finding on the preliminary point raised by the appellant before the merits are considered, because if the appellant is right in contending that the respondent is not a "workman concerned with such disputes" within the meaning of section 32(2), the application would be unnecessary and there would be no jurisdiction in the Tribunal either to accord or to refuse approval to the action proposed to be taken by the appellant against the respondent. In the present case, however, we do not propose to adopt such a course. The order terminating the services of the respondent was passed on December 4, 1961 and it was to take effect from December 9, 1961. The Award was pronounced by the Tribunal on October 5, 1962, and when the appeal has come for final disposal before us, more than three years have elapsed since the date of dismissal of the respondent. The learned Solicitor General fairly con ceded that the appellant has come to this Court not so much to enforce its order of dismissal against the respondent, as to have a (1) [1958] II LLJ 575. (4) [1959] II LLJ 717. (2) [1952] I LLJ 628. (5) [1960] I LLJ 551. (3) [1958] I LLJ 63. (6) [19641 II LLJ 143. 432 decision from this Court on the point of law raised by it before the Tribunal. Accordingly, we have decided that point in favour of the appellant, but having regard to the long passage of time between the date of the impugned order and the date when we are pronouncing our judgment in the present appeal, we think it would be inexpedient and unjust to send the matter back to the Tribunal with a direction that it should decide the preliminary point raised by the appellant as to whether the respondent is a "workman concerned in such disputes" within the meaning of section 33(2) of the Act. That is why though we have reversed the finding of the Tribunal on the preliminary point, we do not propose to give this litigation any further lease of life. In the result, without examining the merits of the findings recorded by the Tribunal for not according approval to the dismissal of the respondent, we direct that the appeal fails and is dismissed. There would be no order as to costs. Appeal dismissed. [/INST]Because certain industrial disputes were pending before the Industrial Tribunal at the relevant time between the appellant and its employees, the appellant filed an application under section 33(2), (b) asking for approval of action which it proposed to take against its employee the respondent. The appellant urged that this application was made as a matter of abundant caution and it wanted the Tribunal to consider the question as to whether the respondent was a workman concerned in the relevant industrial dispute at all before dealing with the merits of the application. The Tribunal, being of the view that if the appellant thought that s, 33 did not apply, it should withdraw the application and take the consequences, dealt with the merits of the application. In appeal by special leave: HELD: The Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial dispute and as such the application made by it was unnecessary. [431E] It is plain that in a situation like the present, where judicial decisions differed on the construction of the words "workman concerned in such dispute", even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself. It would he legiti mate for an employer to make an application under section 33 without prejudice to his case that section 33 did not apply. [431D E] Case law referred to. </s>

<s>[INST] Summarize the judgementCivil Appeal No. 282 of 1955. Appeal by special leave from the judgment and order dated March 20, 1953, of the Bombay High Court in Income tax Reference No. 31 of 1951. A. V. Viswanatha Sastri and I. N. Shroff, for the appellants. K. N. Rajagopal Sastri and D. Gupta, for the respondent. April 12. The Judgment of the Court was delivered by KAPUR, J. This is an appeal against the judgment and order of the High Court of Bombay in a reference under section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947), hereinafter termed the 'Act '. The assessee company was the applicant before the High Court and is the appellant 919 before us and the Commissioner of Income tax, Bombay City, was the respondent in the High Court and is the respondent here also. Being a reference under section 8(5) of the Act, it was heard and decided by three judges of the High Court. The assessee company is a private limited company which was incorporated on May 6, 1943, with a paid up capital of Rs. 20 lacs. It was promoted by two groups of persons who for the sake of convenience may be called the 'Morarka Group ' and the 'Bubna Group '. The Apollo Mills Co., Ltd. of Bombay with a capital of Rs. 50 lacs divided into 25 lacs shares of Rs. 2 each, had as its Managing Agents M/s. E. D. Sassoon & Co. Ltd., who for the sake of brevity, will be referred to in this judgment as the Sassoons '. They held 19,76,000 shares out of the 25 lacs. The promoters of the assessee company entered into an agreement with the Sassoons on April 27, 1943, by which the Sassoons agreed to transfer their Managing Agency in the Mill Co. for Rs. 12 1/2 lacs to the promoters of the assessee company and the whole of their holding of 19,76,000 shares at Rs. 4 4 0 per share, i.e., for Rs. 83,98,000. These shares were to be transferred to the promoters or to the company which they were proposing to float. By clause (3) of this agreement the sale of the Managing Agency and the transfer of the shares was to be simultaneously completed and neither party could require the completion of the one without the other. On November 1, 1943, a tripartite agreement was entered into between the Sassoons as Assignors, the promoters of the company as Confirming Parties and the assessee company as Assignees. By that agreement the Managing Agency rights were for .ally transferred to the assessee company so also the Share Certificates for the whole of holding of the Sassoons in the Mill Co. and the necessary blank transfer deeds went) Before the agreement of April 27, 1943, and during the course of negotiations with the Sassoons the promoters of the assessee company entered into an arrangement with some share brokers for the sale of a large portion of the total holding of 19,76,000 shares 920 of the Mill Co. The price of these shares varied from Rs. 5 8 0 to Rs. 5 13 0. In all 10,00,000 shares out of the total holding of the Mill Co. were sold to these brokers and: they in turn sold these block of shares in smaller lots to a number of purchasers. Some shares were sold later; 1,20,000 shares were transferred to 13 nominees of the Morarka Group at cost price. As a result of sale of all these 13,74,000 shares the assessee company received a sum of Rs. 16,52,600 as excess over the purchase price. The remaining shares the assessee company retained. The assessee company submitted that the profits of the entire holding of the shares had not been worked out and had therefore not been transferred to the profit and loss account. The assessee company was taxed by the Income tax Officer but the sum of Rs. 16,52,600 which was the excess of the sale price over the purchase price of 13,74,000 shares was held not to be profit and therefore not taxable. When the Act came into force the case of the assessee company was referred to the Investigation Commission by the Central Government and the Investigation Commission made its report on November 9, 1949, in Case No. 406A. By this report the Commission directed that appropriate assessment be made under the Indian Income tax Act for the assessment year 1945 46 and the Excess Profits Tax Act for the corresponding chargeable accounting period. At the instance of the assessee company the Commissioner of Income tax, Bombay City, by his order dated May 1, 1951, referred the following question to the High Court: "Whether on the facts found by the Commission the sum of Rs. 16,52,600 being the excess price realised by the sale of 13,74,000 shares of the Mill Company, was 'profit ' and as such taxable or whether it was either of the nature of a capital appreciation or a casual and non recurring receipt and as such exempt from taxation under Section 4(3)(vii) of the Income tax Act." The High Court reformulated the question as follows: 921 "Whether there were materials to justify the finding of the Tribunal that the transaction of purchase and sale of 13,74,000 shares was an adventure in the nature of trade?" and answered the question so formulated in the affirmative and therefore against the assessee company. In its application for reference under section 8(5) of the Act the assessee company wanted some other questions also to be referred but the Investigation Commission only referred the question which has been set out above. The assessee company therefore took out a Notice of Motion on November 8, 1952, which was dismissed by the High Court on the ground that either the questions which were sought to be raised did not arise out of the finding of the Commission or they were included in the question which had been referred and answered by the High Court. Although the High Court did not so hold, the Notice of Motion was barred by time, being filed after more than six months allowed under section 66(2) of the Indian Income tax Act. Against this judgment and order of the High Court the assessee company has come in appeal to this Court by special leave. This appeal is brought against the judgment of the High Court answering the question referred and therefore in its advisory jurisdiction. The jurisdiction which this Court exercises in appeal is of the same character and therefore any question which was not referred to the High Court cannot be allowed to be raised at this stage. Consequently the constitutional question in regard to discrimination under article 14 of the Constitution which is now sought to be raised cannot be raised. The main question which would then survive for decision is the nature of transaction relating to the sale of 13 lacs odd shares and whether or not the sale was an adventure in the nature of trade and therefore the amount of Rs. 16,52,600 the excess of sale price over the purchase price of the share is a Revenue Receipt and therefore taxable profits or is it a Capital Receipt and therefore not liable to tax. The Investigation Commission by their order dated May 1, 1949, found: 922 (1) that a distinction should be made between the 6 lacs shares which the assessee company intended to and did retain and the 13 lacs odd shares which it intended to and did sell; the former was kept in order to enable the assessee company to make their Managing Agency rights effective. (2) During the negotiations between the Sassoons and the promoters of the. assessee company, the promoters of the assessee company had started negotiations with certain brokers for the transfer of 13 lacs odd shares soon after the arrangement between the Sassoons and the assessee company was completed. (3) From the very beginning the intention of the promoters of the assessee company was to sell all the 13 lacs odd shares and in pursuance thereof they were sold. (4) The paid up capital of the assessee company was Rs. 20 lacs only and according to the agreement they had to take the whole block of shares belonging to the Sassoons and pay for the shares as well as for the Managing Agency both of which were separately valued in the agreement. It was therefore necessary and it was intended to sell the 13 lacs odd shares in order to pay off the Sassoons both for the Managing Agency and the shares. The inference drawn from this by the Commission was that a distinction had to be drawn between the 6 lacs shares which the assessee company intended to retain and did in fact retain and the 13 lacs odd shares which they intended to sell and did sell. (5) that the intention to sell which the assessee company entertained from the very outset was a complete answer to the argument that the acquisition was in the nature of an investment. In giving its finding the Commission said: "Aggregating the 121 lakhs paid for the Manag ing Agency right and the full price of 6 lakhs and odd shares at Rs. 4 4 0 per share, the capital investment must amount to 121 lakhs and 251 lakhs, i.e., 38 lacs and odd. By deducting therefrom the profits of Rs. 16,52,600, the Company showed a capital investment of Rs. 21,54,200 and with the addition 923 of a few sundry items, it was brought up to Rs. 22,06,408 (see para 7 supra). " From this finding the inference drawn by the Commission was that the sale of 13 lacs odd shares was an adventure in the nature of trade. The High Court reformulated the question which has already been quoted and it was contended that the High Court was in error in narrowing down the scope of the question referred by the Commission. It is not necessary to adjudicate upon this argument because in our opinion taking the question as referred to be a proper question arising out of the report of the Investigation Commission the answer to the first part thereof would,still be in the affirmative. Inconsidering the question whether the transaction is or is not an adventure in the nature of trade we have to take into consideration the intention of the assessee keeping in view the "legal requirements which are associated with the concept of trade or business". The inference from the facts found by the Investigation Commission, i.e., whether the assessee company 's transaction in purchasing and selling 13 lacs odd shares is or is not an adventure in the nature of trade is a mixed question of law and fact and the legal effect of the facts found by the Investigation Tribunal is a question of law. See M/s. Ramnarain Sons (Pr.) Ltd. vs Commissioner of Income tax, Bombay (1). It was argued on behalf of the assessee company that: (1) that the dominant idea with which the whole transaction was entered into was to obtain the Managing Agency of the Apollo Mills; (2) that the assessee company was forced to buy the whole block of shares, i.e., 19,76,000 shares by the Sassoons because they were not prepared to part with the Managing Agency without the whole of their stock in the mill company; (3) that as the assessee company did not not have sufficient amount of money, their capital being only Rs. 20 lacs, it was to implement the tripartite agreement dated November 1, 1943, that the sale was made; and (1) (1961] 2 S.C.R. 904, 908. 924 (4) that the Memorandum of Association of the assessee company showed that it was a holding company and dealing in shares was not one of its objects. The agreement shows that the Sassoons had separately evaluated the Managing Agency and the shares held in the Apollo Mills Co. As the Investigation Commission has found, it was never the intention of the assessee company to retain the whole block of shares. Before the agreement was entered into they had made arrangement for the sale of the bulk of shares which were to be transferred by the Sassoons and therefore division of the shares into two sets was made by the promoters of the assessee company and the assessee company themselves and was not the result of anything done by the Investigation Commission. In; support of his contention that the amount of Rs. 16,52,600 was in the nature of Capital Receipt, reliance was placed on the judgment of this Court in M/s. Ramnarain 's case (1) but there are certain features and details which distinguish that case from the present case. It was held in that case that the question had to be decided in the light of the intention of the assessee and the assessee in that case bad purchased the shares of the Dawn Mills not as a business transaction. That was clear from the fact that the assessee bad purchased the shares at Rs. 2,321 8 0 per share and the market price was only Rs. 1,610, and the purpose of acquisition of such a large block of shares at a price exceeding the market price by a million rupees was the acquisition of the Managing Agency, which yielded the inference that the intention of purchasing the shares in that case was not to acquire them as a part of the trade of the assessee in shares but for obtaining the Managing Agency of the Mills. There was no separate price paid for the Managing Agency and the shares purchased and the Managing Agency acquired were both assets of a capital nature and the shares did not constitute stock in trade of a trading venture. In the present case the facts as shown were entirely different. (1) ; , 908. 925 Counsel for the assessee company also relied on Kishan Prasad & Co. Ltd. vs Commissioner of Income tax, Punjab (1). In that case the Managing Director of the company which was formed for the purpose of carrying on general business and trade of commercial undertaking and dealing in bills, hundis and other securities, entered into an agreement with a sugar syndicate by which the company was to be given the Managing Agency of a Mill of the sugar syndicate when such mill was erected in lieu of the company subscribing shares worth 3 lacs, and undertaking to sell shares worth 2 lacs. It was further provided that if the mill was not erected the assessee company was to be paid a commission on the amount invested by them. The Managing Director died and the assessee company sold the shares and thus received Rs. 2 lacs more than they had expended. The question was whether Rs. 2 lacs were receipts from business and not a mere appreciation in capital. It was held that that amount was not a result of an adventure in the nature of trade but was merely the result of an investment. It was found as a fact that the object of the company was merely to obtain the Managing Agency of the mill which would have been an asset of an enduring nature bringing profits but there was from the very inception no intention on the part of the company to resell the shares either at profit or otherwise. It appears that it was not contested that the conclusion to be drawn from those facts was that the investment in the purchase of shares in the circumstances of the case of a capital nature, and profits arising therefrom were an accretion to the capital. In that ease the court was trying to find out the intention of the assessee (the company) and taking all the circumstances into consideration it, came to the conclusion that it was a case not of profits arising out of an adventure in the nature of trade but the, intention of the assessee company was to invest its monies and therefore the excess arising out of sale of the shares was an accretion to the capital. That case must be taken to have been decided on its facts as (1) 926 indeed was the decision in M/s. Ramnarain Son 's case (1). Counsel for the assessee company referred to other cases: Tata Hydro Electric Agencies, Bombay vs The Commissioner of Income tax, Bombay Presidency & Aden (2); Commissioner of Income tax, Central and United Provinces, Lucknow vs Messrs. Motiram Nandram (3), Jones vs Leeming (4) and Commissioner of Inland Revenue vs Reinhold (5). It is unnecessary to re view these cases in any detail because they are clearly distinguishable in material respects and were decided on their own special facts. In Tata Hydro Electric Agencies ' case (2) the question for decision was whether 25% of the commission earned which was paid to the two financiers was expenditure deductible under section 10(2)(ix) and it was held that it was not because the obligation to make the payment was in consideration of acquiring the Managing Agency and the right to conduct business and not for the purpose of producing profits in the conduct of business. Similarly in Commissioner of Income tax vs Messrs. Motiram Nandram (3) the expenditure was for securing the agency which was to carry on business. Sir George Rankin said at p. 81: "The question in such a case a,% the present must be "what is the object of the expenditure?" and it must be answered from the standpoint of the assessees at the time they made it that is, when they were embarking upon the business of organizing agents for the company." Jones vs Leeming (4) was a case of an isolated transaction. The finding was that it was not in the nature of trade. Commissioner of Inland Revenue vs Reinhold(5) was ' decided on its own facts. Another case decided by this court upon which counsel for the appellant relied was Saroj Kumar Mazumdar vs Commissioner of Income tax, West Bengal, Calcutta (6) but that case was also decided on its own facts and it was held that there was no clear evidence in support of (1) [1961] 2.C.R. 004, 908 (3) (1939) L. R. 67 I. A. 71 (5) (1953) 34 T C. 389. (2) (1937) L. R. 64 I. A. 215. (4) (6) [1959] SUPP. 2 S C.R. 846. 927 the inference of the Appellate Tribunal that the land was purchased with the sole intention of selling it later at a profit. The English and Scottish cases on which the appellant relied were considered by the House of Lords in Edwards vs Bairstow (1).In that case the assessees who were the respondents embarked on a joint venture to purchase and complete a spinning plant agreeing between themselves not to hold it but to make a quick resale. With that object in view they approached and there were diverse negotiations and the whole plant was sold in about two years ' time at a profit of about pound 18,000 and for that purpose incurred commission for help in effecting sales, for insurance and other expenses. The General Commissioners found that it was not an adventure in the nature of trade to justify an assessment to income tax under Case 1 of Schedule D to the Income tax Act, 1918. It was held that the facts led inevitably to the conclusion that the transaction was an adventure in the nature of trade and that the Commissioner 's inference to the contrary should be set aside. Counsel for the respondent next relied on a Judgment of this Court in G. Venkataswami Naidu & Co. vs The Commissioner of Income tax (2) in which it was held that the presence of all the relevant factors may help the Court to draw the inference that the transaction is in the nature of trade but it is not a matter of counting the number of facts and circumstances for and against. What is important is to consider the distinctive character and it is the total effect of all the relevant factors that determines the character of the transaction. All these cases are illustrative. As was said by Gajendragadkar, J., in the above mentioned case the totality of circumstances of a case and the pros and cons have to be considered and inference drawn from those facts whether a particular transaction was in the nature of trade or was merely an investment and the resulting excess from the transaction was therefore profit which was taxable or was merely an accretion to the capital. In the instant case (1) ; (2) [1959] SUPP. 1 S.C.R. 646. 928 the pi of its from the transaction that consisted of buying the Managing Agency of the Mill Company and the block of shares held by the Sassoons were in our view the profits of an adventure in the nature of trade. The two groups, Morarka and Bubnas, put Rs. 20 lacs into the assessee company which was floated for the acquisition of the Managing Agency and shares of the Mill Company which were beyond the holding capacity of the assessee company. That company never intended to hold the whole block of shares. It or its promoters before even entering into the agreement of purchase and during the course of negotiations for the purchase had entered into arrangements with different brokers for the sale of shares or at least of a bulk of those shares which were subsequently sold at a profit and but for that sale the transact ion could not have been completed by the assessee company. The purchase of shares was not with the intention of holding them, the intention of the assessee was just the contrary and by the sale at a profit of the shares actually sold the assessee company expected to and did finance the completion of the transaction and thus was enabled to secure the Managing Agency and keep 6 lacs shares. This inescapably was a transaction of a commercial nature. It had all the attributes of an adventure in the nature of trade. The contention that dealing in buying and selling of shares was not one of its objects is without substance. The Investigation Commission found that dealing in shares was within the objects of the assessee company and this is one circumstance in the totality of the circumstances which must be considered, though by itself it is not determinative of the question. All the circumstances lead to the inference which was rightly drawn by the Investigation Commission and by the High Court. The answer to the first part of the question referred by the Investigation Commission must therefore be in the affirmative. It was contended that the question should not have been reframed and we have therefore proceeded to answer the question as framed by the Investigation Commission. In our opinion the question even as framed must be answered in the affirmative. 929 The Notice of Motion to raise other questions in the High Court was rightly dismissed. Apart from the fact that the Notice of Motion was barred by time and there was no application for condonation of delay, the questions which were sought to be raised were rightly held either to be covered by the question answered or they did not arise at all. The constitutional question under article 14 of the Constitution cannot be raised in these proceedings because as we have said above this Court is exercising its advisory jurisdiction and its power is confined to the questions which arise in an appeal. This appeal must therefore be dismissed with costs. Appeal dismissed. [/INST]In a suit instituted by the respondent for the enforcement of the right of pre emption against the appellant, the trial court dismissed the suit but on appeal a decree was passed on March 24, 1952 under which upon the respondent paying the amount found payable as purchase money into court within four months, his title to the property would be deemed to have accrued from the date of the payment into court. The appellant applied for special leave to appeal to the Supreme Court and leave was granted on May 20, 1953, confining the appeal to the constitutional point raised therein, that the Rewa State Pre emption Act, 1949, was unconstitutional on the ground that it placed an unreasonable restriction upon the right to acquire property enumerated in article 19(1)(f) of the Constitution of India. In the meantime, the respondent deposited the price of pre emption into court within the time fixed in the decree and on November 14, 1953, the appellant withdrew the money from court. The appeal to the Supreme Court came on for hearing in due course and the question arose on a preliminary objection raised by the respondent whetber the appellant was precluded from proceeding with the appeal on the ground that by withdrawing the pre emption price he must be deemed to have accepted the decree and that he could not, therefore, be heard to say that the decree was erroneous. The respondent relied upon the doctrine that a person cannot be allowed to approbate and reprobate. Held (Sarkar, J., dissenting), that the act of the appellant in withdrawing the pre emption price did not amount to an adoption by him of the decree which he had specifically challenged in his appeal and, in the absence of some statutory provision or of a well recognised principle of equity, he could not be deprived of his statutory right of appeal. Accordingly, the appellant was not precluded from proceeding ;with the appeal. The principle that a person who takes benefit under an order cannot repudiate that part of the order which is detrimental to him, on the ground that he cannot be allowed to approbate and reprobate, is applicable only to cases where the 359 benefit conferred by the order is something apart from the merits of the claim involved. A vendee in a pre emption suit against whom a decree is passed has a right to be paid the pre emption price before the decree becomes effective, but the price cannot be characterised as a benefit under the decree; it is only in the nature of compensation to the vendee for the loss of his property. Tinkler vs Hilder, ; , VerschuYes Creameries vs Hull and Netherlands Steamship CO., , Lissenden vs C. A. V. Bosch Ltd., , Venkatarayudu vs Chinna, and Sundra Das vs Dhanpat Rai, 1907 P.R. No. 16, considered. Per Sarkar, J. The decree was one and indivisible and the appellant had no right to the money whatsoever independent of the decree and he could have drawn out the money only on the basis that the decree had been properly passed. By withdrawing the money he adopted its correctness and cannot now say it is incorrect. The prosecution of the appeal will result in the conduct of the appellant becoming inconsistent and he cannot, therefore, be allowed to proceed with the appeal. Case law reviewed. </s>

<s>[INST] Summarize the judgementCivil Appeal No. 936 of 1977. From the Judgement and Order dated 16.9.1976 of the Bombay High Court in S.C.A. No. 2741 of 1971. Shishir Sharma and P.H. Parekh for the Appellant. Dr. N.M. Ghatate, S.V. Deshpande for the Respondent. 83 The Judgement of the Court was delivered by K.N. SAIKIA, J. This appeal by Special Leave is from the Judgement of the High Court of Bombay, dated 16th September, 1976, in Special Civil Application N. 2741 of 1971 upholding the Judgement of the Maharashtra Revenue Tribunal. The suit land bearing Survey No. 182, owned by Shankarlal Kunjilal, was taken under Government management as per order of the Assistant Collector, Jalgaon bearing No. TEN. WS 946 dated 14.12.1950 as the land was lying fallow for two consecutive years. The Mallatdar, Raver was appointed as a Manager thereof under Section 45 of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Act. ' After assuming the management the land was leased out to the appellant Dhondu Choudhary by the Mamlatdar for a period of 10 years by an agreement of lease dated 7.12.1951. The period of lease accordingly expired on 6.12.1951. The period of lease accordingly expired on 6.12.1961. However, the management of the land was terminated by the Government by the Assistant Collector 's order dated 27.7.1963, and the possession thereof was ordered to be restored to the respondent landlord. There was nothing on the record to show that the lease which expired on 6.12.1961 was extended by the Manager thereafter till the termination of management by order dated 27.7.1963. The appellant claimed that he was paying rent to the Mamlatdar during the period of 7.12.1961 to 27.7.1963 and thus continued to a be tenant in respect of the land. He filed a Civil Suit against the respondent in the Court of Civil Judge, Raver, who made a reference to the Mamlatdar, Raver who held that the appellant continued to be tenant. The respondent 's appeal to the Assistant Collector having failed, he moved a revision application before the Maharashtra Revenue Tribunal, hereinafter referred to as `the Tribunal ' wherein the question arose whether the appellant 's tenancy was subsisting on 27.7.1963, and whether he had become the tenant in respect of the land since that date under the Act. Relying on a bench decision of the Bombay High Court in Special Civil Application No. 1077 of 1961 Ghambhir Lal Laxman Das vs Collector of Jalgaon, (decided on 20.12.1962) wherein it was held that the person to whom lease was granted by the Manager of the land which was taken under Government management, could not continue to be the tenant after the expiry of the period of 10 years without a fresh lease, and that after the management was terminated by the 84 Government on expiration of the lease, the tenancy under the lease could not be said to be subsisting on the date on which the management was terminated. The Tribunal held that the appellant could not continue as tenant since termination of the lease on 27.7.1963. The Tribunal further held that since the land was taken under the Government management by the order of the Assistant Collector under Section 88(1) of the Act the provision s of Sections 1 to 87 were not applicable and the appellant, therefore, could not continue to be tenant after expiration of the period of lease on 6.12.1961. The High Court in the Special Application under Article 227 of the Constitution of India having upheld the above finding of the Tribunal, the appellant obtained Special Leave. The only submission of the learned counsel for the appellant Mr. Shishir Sharma is that the appellant having continued payment of rent to Mamlatdar even after expiry of lease till the termination of management, he continued to be a tenant which the landlord could not avoid on resumption of the land. Dr. N.M. Ghatate, the learned counsel for the respondent, submits that the appellant could by no means continue to be a tenant after his lease expired and no fresh lease was granted to him and more so after the management was terminated on 27.7.1963. We find force in Dr. Ghatate 's submission. Admittedly the management of the land was assumed by the State Government under Section 65 of the Act. Section 65 deals with assumption of management of lands which remained unclutivated, and says: "65. (1) If it appears to the State Government that for any two consecutive years, any land has remained uncultivated or the full and efficient use of the land has not been made for the purpose of agriculture, through the default of the holder or any other cause whatsoever not beyond his control the State Government may, after making such inquiry as it thinks fit, declare that the management of such land shall be assumed. The declaration so made shall be conclusive. (2) On the assumption of the management, such land shall vest in the State Government during the continuance of the management and the provision of Chapter IV shall mutatis mutandis apply to the said land: 85 Provided that the manager may in suitable cases give such land on lease at rent even equal to the amount of its assessment: Provided further that, if the management of the land has been assumed under sub section (1) on account of the default of the tenant, such tenant shall cease to have any right or privilege under Chapter II or III, as the case may be, in respect of such land, with effect from the date on and from which such management has been assumed. " Admittedly, the Manager was appointed under Section 45 of the Act, Section 45 deals with vesting of estate in management, and says: "45. (1) On the publication of the notification under section 44, estate the in respect of which the notification has been published shall, so long as the management continues, vest in the State Government. Such management shall be deemed to commence from the date on which the notification is published and the State Government shall appoint a Manager to be in charge of such estate. (2) Notwithstanding the vesting of the estate in the State Government under sub section (1), the tenant holding the lands on lease comprised in the estate shall, save as otherwise provided in this Chapter, continue to have the same right and shall be subject to the same obligations, as they have or are subject under the proceeding Chapters in respect of the lands held by them on lease. " Section 61 deals with termination of management, and says: "61. The State Government, when it is of opinion that it is not necessary to continue the management of the estate, by order published in the Official Gazette, direct that the said management shall be terminated. On the termination of the said management, the estate shall be delivered into the possession of the holder, or, if he is dead, of any person entitled to the said estate together with any balances which may be due to the credit of the said holder. All acts done or purporting to be done by the Manager during the continuance of the management of the estate shall be binding on the holder or to any person to whom the possession of the estate has been delivered. " 86 Thus on termination of the management the suit land in the instant case was to be delivered into the possession of the respondent holder and all acts done or purporting to be done by the Manager during the continuance of the management of the estate should be binding on the holder or on any person to whom the possession of the estate had been delivered. In the instant case the finding of the Courts below is that after expiry of the lease no fresh lease was granted by the Manager. In view of this finding, the appellant 's claim to have continued as the tenant even after expiry of the lease on 6.12.1961 and till 27.7.1963, the date of termination, by paying rent for the period to the Mamlatdar would be of no avail, in the absence of fresh lease after expiry of the 10 years lease on 6.12.1961. The Tribunal followed the binding decision of the Bombay High Court holding that there was no lease in favour of the appellant and that by mere holding over he could not have continued the status of a tenant. This would be so because the Act does not envisage the Government as a landholder but only as Manager. While delivering back the land into the possession of the landholder, it could not be burdened with any tenancy created or resulting while under management. Besides, there could be no privacy between the landlord and the erstwhile tenant under Government in the matter of tenancy. Between the appellant and the respondent landlord, therefore, no question of the former continuing as tenant of the latter could arise after the land was reverted to the landholder. Mr. Sharma 's submission that the appellant was a deemed tenant is also not tenable. The appellant could not have been a deemed tenant under Section 4 or 4B of the Act inasmuch as Section 88 of the Act grants exemption inter alia to lands held on lease from the Government. It says: "88. (1) Save as otherwise provided in sub section(2), nothing in the forging provisions of this Act shall apply (a) to lands belonging to, or held on lease from, the Government; xxx xxx xxx xxx xxx xxx xxx xxx (d) to an estate or land taken under management by the State Government under Chapter IV or section 65 except as provided in the said Chapter IV or section 65, as the case may be, and in sections 66, 80A, 82, 83, 84, 85, 86 and 87: 87 Provided that from the date on which the land is released from management, all the foregoing provisions of this Act shall apply thereto; but subject to the modification that in the case of a tenancy, not being a permanent tenancy, which on that date subsists in the land. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx" In Keshav Vithal Mahatre vs Arbid Ranchhod Parekh, [1973] Bom. L.R. LXXXV 694, a learned Single Judge has held that a lease of land granted by a Manager under section 47 of the Bombay Tenancy and Agricultural Lands Act, 1948, comes to an end with the termination of the management of the land by virtue of section 61 of the Act. If the tenant continues to remain on the land thereafter, he would be cultivating it unlawfully as a trespasser and he cannot, therefore, claim to be a deemed tenant under section 4 of the Act. This is consistent with the decision in Ghambhir Lal 's case(supra) relied on by the Tribunal. Thus, Sections 4 and 4B were not applicable during the period from expiry of the lease to the termination of management. In the result, we find no merit in this appeal and it is dismissed, but without any order as to costs. V.P.R Appeal dismissed. [/INST]The suit land was taken under Government management as it was lying fallow for two consecutive years. The Mamlatdar, appointed as a Manager thereof under Section 45, of the Bombay Tenancy and Agricultural Lands Act, 1948, after assuming management, leased out the said land to the appellant for a period of 10 years by an agreement of lease dated 7.12.1951. The period of lease expired on 6.12.1961. However, the management of the land was terminated by Government by the Assistant Collector 's order dated 27.7.63 and possession thereof was ordered to be restored to the respondent landlord. The appellant filed a Civil Suit against the respondent contending that he was paying rent to the Mamlatdar during the period 7.12.1961 to 27.7.1963 and thus continued to be a tenant in respect of the land. The Civil Judge made a reference to the Mamlatdar, who held that the appellant continued to be tenant. The respondent 's appeal to the Assistant Collector having failed, a revision application was moved before the Revenue Tribunal wherein the question arose whether the appellant 's tenancy was subsisting on 27.7.1963, the date of termination of the management. The Tribunal held that the appellant could not continue as tenant on the termination of the management, since the land was taken under the Government management under Section 88(1) of the Act. 82 The High Court in the Application under Article 227 of the Constitution of India having upheld this finding of the Tribunal, the appellant filed Special Leave petition to this Court. The appellant contended that having continued payment of rent to the Mamlatdar even after expiry of the lease till the termination of management, he continued to be a tenant which the landlord could not avoid on resumption of the land, while the respondent submitted that the appellant could by no means continue to be a tenant after the expiry of lease, and that no fresh lease was granted to him after the management was terminated. Dismissing the appeal, this Court, HELD: 1. On the finding of the courts below that after the expiry of the lease, no fresh lease was granted by the Manager, the appellant 's claim to have continued as the tenant even after expiry of the lease on 6.12.1961 and till 27.7.1963, the date of termination, by paying rent for the period to the Mamlatdar would be of no avail, in the absence of fresh lease after expiry of the 10 years lease on 6.12.1961. This would be so because the Act does not envisage the Government as a landholder but only as Manager. While delivering back the land into the possession of the landholder, it could not be burdened with any tenancy created or resulting while under management. Besides, there could be no privacy between the landlord and the erstwhile tenant under Government in the matter of tenancy. Between the appellant and the respondent landlord, therefore, no question of the former continuing as tenant of the latter could arise after the land was reverted to the landholder. [86B D] 2. The appellant could not have been a deemed tenant either under Section 4 or 4B of the Act inasmuch as Section 88 of the Act grants exemption inter alia to lands held on lease from the Government.[86E] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 1639 of 1985 etc. From the Judgment and Order 15.1.1985 of the Kerala High Court in O.P. 760 of 1981 M. M. Abdul Khader, G. Viswa Natha Iyer, M.A. Firoz, C.S. Vaidyanathan, P. Chowdhary, S.R. Setia and K.D. Namboodiry for the Appellant. P. Subramanium Poti, F.S. Nariman, S.B. Saharya, V.B. Saharya, Vijay Bahuguna, M.L. Lahoty, S.P. Singh, Rakesh Dwivedi, Raj Kumar Singh, Miss Helen Marc, V.B. Joshi, K.R. Nambiar, Vinoo Bhagat, B.R. Kurup, K. Dileep Kumar, Ramesh C. Kohli, G.N. Rao, A.S. Nambiar, P Kesava Pillai, T. Sridharan, N Sudhakaran, E.M.S Anam and T.G.N. Nair for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. These appeals preferred by the Kerala State Electricity Board raise the question of the extent of the authority of the Board to increase the Electricity Tariff under the Electricity Supply Act. The upward revision of tariff made by the Board in 1980, 1982 and 1984 was successfully challenged in the Kerala High Court. The first two revisions were struck down by a Full Bench of three judges by a majority of two to one and, later, all three revisions were struck down by a Full Bench of Five judges by majority of four to one. The principal ground of challenge and that which was accepted by the High Court was that the Kerala State Electricity Board acted outside its statutory authority by formulating a price structure intended to yield sufficient revenue to off set not merely the expenditure properly chargeable to the revenue account for the year as contemplated by section 59 of the Act but also expenditure not so properly chargeable. Had section 636 59 been strictly followed and had items of expenditure not chargeable to the revenue account for the year been excluded, the revised tariff would have resulted in the generation of a surplus far beyond the contemplation of section 59 of the Act. According to the High Court, in the absence of a specification by the Government the Board was not entitled to generate a surplus at all and it acted entirely outside its authority in generating a surplus to be adjusted against items of expenditure not authorised to be met from the revenue receipts. The notifications prescribing revised tariffs were therefore, struck down. The view of the High Court, as might be seen, was based primarily on their construction of s.59 of the Electricity Supply Act. In order to understand the questions at issue, it is necessary to set out section 59 as it stood prior to 1978, as amended by Act No. 23 of 1978, and finally as amended by Act No. 16 of 1983: ____________________________________________________________ Section 59 prior Section 59 as Section 59 as further to 1978 amended by Act amended by Act No. 23 of 1978 No. 16 of 1983 (1) (2) (3) ____________________________________________________________ General principles General principles General Principles for Board 's for Board 's for Board 's finance finance finance The Board shall not, (1) The Board shall (1) The Board as far as practicable after taking credit shall after taking and after taking for any subvention credit for any credit for any from the State subvention from subventions from the government under section the State Govern State Government 63, carry on its ment under s.63 under s.63, carry on operations under carry on its oper its operations under this Act and adjust ations under this this Act at a loss, its tariffs so as Act and adjust its and shall adjust its to ensure that the its tarrifs so as charges accordingly total revenues in to ensure that the from time to time. any year of account total revenues provided that shall after meeting in any year of where necessary any all expenses prope account shall, amounts due for mee rly chargeable to after meeting all ting the operating, revenues, including expences properly maintenance and operating maintena chargeable to nance and manageme revenues,including nt expences, taxes operating, mainte (if any on in nance and 637 management expenses come and profits, management ex of the Board or for depreciation and penses. taxes (if the purposes of interest payable on any) on income and clauses (i) and (ii) debentures, bonds profits, deprecia of s.67 may, to such and loans, leave tion and interest extent as may be san such surplus as the payable on all ctioned by the State State Government debentures, bonds Government, be paid may, from time to and loans leave out of capital. time, specify. such surplus as is (2) In specifying not less than the surplus under three per cent or sub section (1), such higher perce the State Governmentntage, as the shall have due reg State Government ard to the may be notifica availibility of tion in the offi amounts accrued by cial Gazette, way of depreciation specify in this and the liability behalf, of the for loan amortiza value of the fixed tion and leave assets of the (a) a reasonable Board in service sum to contribute at the beginning towards the cost of of such years. capital works; and Explanation: For (b) where in res the purposes of pect of the Board this sub section a notification has "Value of the fix been issued under ed assets of the sub section(1) of Board,in service section 12A,a reasonable at the begining sum by way return of the year" mean on the capital pro the original cost vided by the state of such fixed as Goverment under sub sets as reduced section(3) of that by the aggregate section and the am of the cumulative ount of the loans depreciation in (if any) converted respect of such by the state Govern assets calculated ment into capital in accordance with under sub section(1)the provisions of of section 66A. this Act and consumers contributions for service lines. (2) In specifying any higher percentage 638 under sub section(1), the State Government shall have due regard to the availability of mounts accrued by way of depreciation and the liability for loan amortiza ation and leave (a) a reasonable sum to contribute towards the cost of capital works; and (b) where in respect of the Board, a notification has been issued under sub sec.(1) of section 12A, a reasonable sum by way of return on the capital pro vided by the State Government under sub sec.(3) of that section and the amount of the loans (if any) converted by the State Government into capital under sub section(1) of section 66A. We may mention here that we are not really concerned with section 59 as amended by Act No. 16 of 1983 since that came into effect from April 1, 1985 only. We have, however, extracted that provision also for a better understanding of section 59 as it stood before the 1983 amendment. We consider that for the purpose of understanding and construing section 59, as it stood before the 1983 amendment, we are entitled to take into consideration the Parliamentary exposition contained in the 1983 amendment. (See we will come back to the question of proper construction of s.59 later). 639 We think that it is necessary at this stage itself to refer to some of the other important provisions of the Electricity Supply Act. Section 18 prescribes the general duties of the Board and, it is as follows: "18. General Duties of the Board Subject to the provisions of this Act, the Board shall be charged with the following general duties, namely: (a) to arrange, in co ordination with the Generating Company or Generating Companies, if any, operating in the State, for the supply of electricity that may be required within the State and for the transmission and distribution of the same, in the most efficient and economical manner with particular reference to those areas which are not for the time being supplied or adequately supplied with electricity; (b) to supply electricity as soon as practicable to a lincensee or other person requiring such supply if the Board is competent under this Act so to do; (c) to exercise such control in relation to the generation, distribution and utilisation of electricity within the State as is provided for by or under this Act; (d) to collect data on the demand for, and the use of, electricity and to formulate perspective plans in co ordination with the Generating Company or Generating Companies, if any, operating in the State, for the generation, transmission and supply of electricity within the State; (e) to prepare and carry out schemes for transmission, distribution and generally for promoting the use of electricity within the State; and (f) to operate the generating stations under its control in co ordination with the Generating Company or Generating Companies, if any, operating in the State and with the Government or any other Board or agency having control over a power system. " Section 49 was not amended either in 1978 or in 1983 and it is as follows: 640 "49. Provision for the sale of electricity by the Board to persons other than licensees (1) Subject to the provisions of this Act and of regulation, if any, made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs. (2) In fixing the uniform tariffs, the Board shall have regard to all or any of the following factors, namely (a) the nature of the supply and the purposes for which it is required; (b) the co ordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee; (c) the simplification and standardization of methods and rates of charges for such supplies; (d) the extension and cheapening of supplies of electricity to sparsely developed areas. (3) Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee, having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors. (4) In fixing the tariff and terms and conditions for the supply of electricity, the Board shall not show undue preference to any person. " Section 63 enables the State Government, with the approval of the State legislature, to make subventions to the Board for the purposes of the act. Section 64 empowers the State Government to advance loans to the Board and Section 65 empowers the Board, with the 641 previous sanction of the State Government. to borrow any sum required for the purposes of the Act by the issue of debentures or bonds or otherwise. Section 66 empowers the government to guarantee the loans proposed to be raised by the Board Section 66A authorises the State Government to convert any loan obtained from the Government by the Board capital provided by the Board. Section 67 was amended in 1978 and again 1983. It is useful to set out the section as it stood originally and as amended by the two amendments of 1978 and 1983: Section 67 prior Section 67 as amen Section 67 as to 1978 ded by Act No. 23 further amended of 1978 by Act No. 16 of 1983 (1) (2) (3) Priority of Priority of liabi Priority of liab liabilities of the lities of Board ilities of the Board The revenues (1)If in any year, Board The Board of the Board shall, the revenue receipt shall distribute the after meeting its are not adequate to surplus, reffered to operating, mainte to enable complianc in sub section(1) of nance and manage with the requirment s.59 to the extent ment expenses and of section 59, the Board extent available in after provision shall,after meeting a particular year in has been made for its operating, mai in the following or the payment of tenance and manage der namely: taxes on its income ment expences and (i) repayment of and profits be dis after provision has principal of any as far as they are been made for the loan raised available in the payment of taxes(if (including following order any) on income and redemption of deb namely: profits, distribute entures or bonds (i) interest on the revenue receipt issued) under s.65 bonds not guranteed as far as they are whichs becomes due under s.66; available, in the for payment in the (ii) interest on following order, year or which became stock not so guara namely: due for payment in nteed; (i) payment of int any previous year (iii) credits to erest on loans not and has remaind un guaranteed under paid; (ii) repayment of principal of any loan advanced to the 642 depreciation s.66; Board by the State reserve under section 68 (ii) repayment of Government under (iv) interest on principal of any section 64 which becomes bond guaranteed un loan raised (incl due for payment in der s.66; uding redemption of the year or which (v) interest on st debentures or bonds became due for pay ock so guaranteed; issued) under section 65 ment in any previous (vi)interest on sum which become due for year and remained paid by the State payment in the year (iii) payment for Government under (iii) payment of purposes specified guarantees under interest on loans in sub section (2) section 66; guaranteed under of section 59 in such (vii)the write down s.66; manner as the Board amounts paid from (iv)payment of in may decide. " capital under the terest on sums paid proviso to section by the State Govern 59; ment in pursuance of (viia) the write guarantees under down of amounts in s.66; respect of intangi ble assets to the (v) payment of in to which they are terest on loans actually appropria advanced to the ted in any year for the Board by the State for the purpose in Government under the books of the section 64 or deemed to be Board; advanced under sub (viii) contribution section (2) of to general reserve section 60; of an amount not (vi) repayment of exceeding one half principal of any loan of one percentum guaranteed by the per annum of the State Government original cost of under section 66 which be fixed assets empl come due for payment oyed by the Board in the year or which be so however that the come due for payment total standing to in any previous year the credit such and has remained reserve shall not unpaid; exceed fifteen per centum of the orig inal cost of such (vii) repayment of fixed assets; principal of any loan (ix) interest on advanced to the Board loans 643 advanced or deemed under section 64 which be to be advanced to comes due for payment the Board under section in the year or which be 64 including arrear came due for payment of such interest; in any previous year (x) the balance to and has remained be appropriated to unpaid; and if any fund be called the balance amount is left Development Fund thereafter, the same to be utilised for shall be utilised for (a) purposes bene the other purposes ficial, in the opi specified in section 59 nion of the Board, in such manner as the to electrical deve Board may decide. lopment in the (2) If for any reason State; beyond the control of (b) repayment of the Board, the revenue loans advanced to receipts in any year the Board under section are not adequate to 64 and required to meet its operating, be repaid; maintenance and Provided that where management expenses, no such loan is out taxes (if any) on in standing, one half comes and profits and of the balance the liabilities referred aforesaid shall be to in clauses (i) and credited to the (ii)of sub section(1), Consolidated Fund the shortfall shall, of the State. with the previous sanction of the State Government, be paid out of its capital receipts. Section 67B which was introduced by Act 16 of 1983 defers payment of interest on loans advanced by the State Government until after all other expenses are met. It is in the following terms: "67A Interest on loans advanced by State Govt. to be paid only after other Expenses. Any interest which is payable on loans advanced under section 64 or deemed to have been advanced under section 60 to the Board by the State Government and which is charged to revenues in any year may 644 be paid only out of the balance of the revenues, if any, of that year which is left after meeting all the other expenses referred to in sub section (1) of section 59 and so much of such interest as is not paid in any year by reason of the provisions of this section shall be deemed to be deferred liability and shall be discharged in accordance with the provisions of this section in the subsequent year or years, as the case may be. " Now, a State Electricity Board created under the provisions of the Electricity Supply Act is an instrumentality of the State subject to the same constitutional and public law limitations as are applicable to the government including the Principle of law which inhibits arbitrary action by the Government. (see Rohtas Industries vs Bihar State Electricity Board, ; It is a public utility monopoly undertaking which may not be driven by pure profit motive not that profit is to be shunned but that service and not profit should inform its actions. It is not the function of the Board to so manage its affairs as to earn the maximum profit even as a private corporate body may be inspired to earn huge profits with a view to paying large dividends to its shareholders. But it does not follow that the Board may not and need not earn profits for the purpose of performing its duties and discharging its obligations under the statute. It stands to common sense that the Board must manage its affairs on sound economic principles. Having ventured into the field of Commerce, no public service undertaking can afford to say it will ignore business principles which are as essential to public service undertakings as to Commercial ventures. (see Lord Scarman in Bromely vs Greater London Council, ; If the Board borrows sums either from the Government or from other sources or by the issue of debentures and bonds, surely the Board must of necessity make provision year after year for the payment of interest on the loans taken by it and for the repayment of the capital amounts of the loans. If the Board is unable to pay interest in any year for want of sufficient revenue receipts, the Board must make provision for payment of such arrear of interest in succeeding years. The Board is not expected to run on a bare year to year survival basis. It must have its feet firmly planted on the earth. It must be able to pay the interest on the loans taken by it; it must be able to discharge its debts; it must be able to give efficient and economic service; it must be able to continue the due performance of its services by providing for depreciation etc; it must provide for the expansion of its services, for no one can pretend the country is already well supplied with electricity. Sufficient surplus has to be generated for this purpose. That we 645 take it is what the Board would necessarily do it was an ordinary commercial undertaking properly and prudently managed on sound commercial lines. Is the position any different because the Board is the public utility undertaking or because of the provisions of the Electricity Supply Act? We do not think that either the character of Electricity Board as a Public Utility Undertaking or the provisions of the Electricity Supply Act preclude the Board from managing its affairs on sound commercial lines though not with a profit thirst. It may be noticed here that section 18(a) prescribes it as one of the duties of the Board to arrange for the supply of electricity that may be required within the State and for the transmission and distribution of the same, in the most efficient and economical manner and section 49(2) (b) requires the Board to have regard, in fixing uniform tariffs, the coordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, both with particular reference to those areas which are not for the time being served or adequately supplied with electricity. The principles of efficiency and economy are, therefore, not forsaken but resolutely emphasised. Now if we turn to section 59, what do we find? Though at one time it appears to have been thought that it was enough if the Board did not carry on its operations at a loss it was realised that the statutory admonition to the Board should be positive and not negative and that the Board should be given an affirmative and self assuring direction. So section 59 was amended in 1978. The Statement of Objects and Reasons says. Section 59 of the Electricity (Supply) Act is proposed to be amended by clause 8 of the Bill to give a positive direction to the Electricity Boards that after meeting all their expenses, there should be provision for a surplus for contribution towards immediate investment needs. A similar amendment is also proposed to be made in regard to the Generating Companies by inserting a new sub section (3A) in section 75A by clause 18 of the Bill. " It was found that the 1978 amendment did not effectively improve matters as many State Government did not specify the quantum of surplus. Parliament had, therefore, to intervene once again to fix a statutory minimum surplus. The Statement of Objects and Reasons relating to the 1983 amendment may also be extracted and it is as follows: "Though section 59 of the Act, as amended in 1978, casts an obligation on the State Government has so far specied the quantum of any surplus. At present there is no uni 646 formity in the manner of classification and presentation of accounts of the Boards and this renders inter Board comparison of financial performance difficult. It is also considered necessary to re arrange the priorities with regard to distribution revenues of the Boards. It is, therefore, proposed to amend the Act (a) to provide that each Board shall have a surplus which shall not be less than three per cent, or such higher percentage as the State Government may specify, of the value of the fixed assets of the Board in service at the beginning of the year; (b) to re arrange the priorities for distribution of revenues of the Boards; (c) to bring the financial reporting system of the Boards in line with commercial accounting practice; and (d) to empower with a view to securing uniformity in the manner of classification and presentation of accounts, the Central Government to prescribe the forms in which the accounts of the Board and other records in relation thereto may be maintained." A plain reading of sec. 59 (as amended in 1978) plainly indicates that it is the mandate of Parliament that the Board should adjust its tariffs so that after meeting the various expenses properly required to be met a surplus is left. The original negative approach of functioning so as not to suffer a loss is replaced by the positive approach of requiring a surplus to be created. The quantum of surplus is to be specified by the State Government. What the State Government is to specify is the minimum surplus. This is made clear by the 1983 amendment which stipulates a minimum of 3 per cent surplus in the absence of specification by the State Government which has the liberty to specify a higher percentage than three. That section 59, as it stood before 1983 contemplated a minimum surplus was also the view expressed by this court in Rohtas Industries vs Bihar State Electricity Board (supra) where it was said, "Under the above provisions, the Board is under a statutory obligation to carry on its operations and adjust its 647 tariffs in such a way to ensure that the total revenues earned in any year of account shall after meeting all expenses chargeable to revenue, leave such surplus as the State Government may, from time to time, specify. The tariff fixation has, therefore, to be so made as to raise sufficient revenue which will not merely avoid any net loss being incurred during the financial year but will ensure a profit being earned, the rate of minimum profit to be earned being such as may be specified by the State Government." Shri Potti, learned Counsel for the consumers placed great reliance on the observations of this Court in Kerala State Electricity Board vs Indian Aluminium Co., [1976] 1 SCR 552; Bihar State Electricity Board vs Workmen, ; and Dr. P. Nalla Thamby Thera vs Union of India & Ors., ; to contend that the Electricity Board was barred from conducting its operations on commercial lines so as to earn a profit. In the first case, the observations relied upon were. "Furthermore, Electricity Boards are not trading corporations. They are public service corporations. They have to function without any profit motive. Their duty is to promote co ordinated development of the generation, supply and distribution of electricity in the most efficient and economical manner with particular reference to such development in areas not for the time being served or adequately served by any licensee (section 18). The only injunction is that as far as practicable they shall not carry on their operations at a loss (section 59). They get subventions from the State Governments (Section 63). In the discharge of their functions they are guided by directions on questions of policy given by the State Governments (Section 78A). There are no shareholders and there is no distribution of profits. " In the second case the court observed, "The Electricity Board is not an ordinary commercial concern. It is a public service institution. It is not expected to make any profit. It is expected to extend the supply of electricity to unserved areas without reference to considerations of loss that might be incurred as a result of such extension. " 648 In the third case where the court was considering the position of the Indian Railways it was observed, "The Indian Railways are a socialised public utility under taking. There is at present a general agreement among writers of repute that the price policy of such a Public Corporation should neither make a loss nor a profit after meeting all capital charges and this is expressed by covering all costs or breaking even; and secondly, the price it charges for the services should correspond to relative costs. Keeping the history of the growth of the Railways and their functioning in view, the commendable view to accept may be that the rates and fares should cover the total cost of service which would be equal to operational expenses, interest on investment, depreciation and payment of public obligations, if any. We need not, however, express any opinion about it." . . . . . . . . . . . . . . . . . "We have said earlier that the Railways are a public utility service run on monopoly basis. Since it is a public utility, there is no justification to run it merely as a commercial venture with a view to making profits. We do not know at any rate it does not fall for consideration here if a monopoly based public utility should ever be a commercial venture geared to support the general revenue of the State but there is not an iota of hestitation in us to say that the common man 's mode of transport closely connected with the free play of this fundamental right should not be. We agree that the Union Government should be free to collect the entire operational cost which would include the interest on the capital outlay out of the national exchequer. Small marginal profits cannot be ruled out. The massive operation will require a margin of adjustment and, therefore, marginal profits should be admissible. " We do not think that any of these observations is in conflict with what we have said. Pure profit motive, unjustifiable according to us even in the case of a private trading concern, can never be the sole guiding factor in the case of a public enterprise. If profit is made not for 649 profit 's sake but for the purpose of fulfilling, better and more extensively, the obligation of the services expected of it, it cannot be said that the public enterprise acted beyond its authority. The observations in the first case which were referred to us merely emphasised the fact that the Electricity Board is not an ordinary trading Corporation and that as a public utility undertaking its emphasis should be on service and not profit. In the second case, for example, the court said that it is not expected to make any profit and proceeded to explain why it is not expected to make a profit by saying that it is expected to extend the supply of Electricity to unserved areas without reference to considerations of loss. It is of interest that in the second case, dealing with the question whether interest cannot be taken into account in working out profits, the court observed, "The facile assumption by the Tribunal that the interest should not be taken into account in working out the profits is not borne out by the provisions of the statute. " In the third case, the court appeared to take the view that the railway rates and fares should cover operational expenses, interest on investment, depreciation and payment of public obligations. It was stated more than once that the total operational cost would include the interest on the capital outlay out of the national exchequer. While the court expressed the view that there was no justification to run a public utility monopoly service undertaking merely as a commercial venture with a view to make profits, the court did not rule out but refrained from expressing any opinion on the question whether a public utility monopoly service undertaking should ever be geared to earn profits to support the general revenue of the State. One of the submissions which found favour with the High Court and which was seriously pressed before us was that in the absence of specification by the State Government the position would be as it was before the 1978 amendment, that is, the Board was carry on its affairs and adjust the tariffs in such a manner as not to incur a loss and no more. We do not agree with the submission for the reasons already mentioned. We may also refer here to the decision of the Privy Council in Madras and Southern Mahratta Railway Company Ltd. vs Bezwada Municipality, which affirmed the Judgment of the Madras High Court in Madras and Southern Maharatta Railway Com 650 pany Limited vs The Municipal Council Bezwada, ILR 1941 Madras 897. One of the questions there raised was whether in the absence of rules made by the State Government, the Municipal Council was entitled to determine the capital value of property in the face of a provision which stated, "Provided that such percentage or rates shall not exceed the maxima, if any, fixed by the Local Government and that the capital value of such lands shall be determined in such manner as may be prescribed." The High Court, in that case had observed, and we agree with what had been said, "We cannot accept the contention of the appellant that, merely because the Local Government has not prescribed the manner in which the capital value should be determined, the municipal council is deprived of the power of levying the tax under section 81(3) . the omission of the rule making authority to frame rules cannot take away the right of the municipal council to levy tax at the rate mentioned in the notification issued under clause 3. If, for instance, the Local Government refrained from prescribing the manner in which the value of such lands should be determined, it cannot, we think, be said that the municipal council has no power at all to levy the tax at a percentage of the capital value merely because the method of determining the capital value has not been prescribed by the Local Government. If the Local Government does not prescribe it, then the municipal authority is free in our opinion to fix it in any manner it chooses. " We are of the view that the failure of the Government to specify the surplus which may be generated by the Board cannot prevent the Board from generating a surplus after meeting the expenses required to be met. Perhaps, the quantum of surplus may not exceed what a prudent public service undertaking may be expected to generate with out sacrificing the interests it is expected to serve and without being obsessed by the pure profit motive of the private enterpreneur. The Board may not allow its character as a public utility undertaking to be changed into that of a profit motivated private trading or manufacturing house. Neither the tariffs nor the resulting surplus may reach such 651 heights as to lead to the inevitable conclusion that the Board has shed A its public utility character. When that happens the Court may strike down the revision of tariffs as plainly arbitrary. But not until then. Not, merely because a surplus has been generated, a surplus which can by no means be said to be extravagant. The court will then refrain from touching the tariffs. After all, as has been said by this court often enough 'price fixation ' is neither the forte nor the function of the court. The occasional excursions that have been made into that field were at the request and by the agreement of the parties. This was made clear by a Constitution Bench of seven judges of this Court in Prag Ice and oil Mills vs Union of India; , where it was said, "It is customary in price fixation cases to cite the oft quoted decision in Premier Automobiles Ltd. & Anr. vs Union of India which concerned the fixation of price of motor cars. It is time that it was realized that the decision constitutes no precedent in matters of price fixation and was rendered for reasons peculiar to the particular case. At page 535 of the Report Grover, J., who spoke for the , Court, stated at the outset of the judgment. "Counsel for all the parties and the learned Attorney General are agreed that irrespective of the technical or legal points that may be involved, we should base our judgment on examination of correct and rational principles and should direct deviation from the report of the Commission which was an expert t body presided over by a former judge of a High Court only when it is shown that there has been a departure from established principles or the conclusions of the Commission are shown to be demonstrably wrong or erroneous. " By an agreement of parties the court was thus converted into a Tribunal for considering every minute detail relating to price fixation of motor cars. Secondly, as regards the escalation clause the Court recorded at page 543 that it was not ,,, disputed on behalf of the Government and the Attorney General accepted the position, that a proper method should be devised for escalation or de escalation. Thirdly, it is clear from page 544 of the Report that the Learned Attorney General also agreed that a reasonable return must be allowed to the manufacturers on their investment. The decision thus proceeded partly on an agreement bet 652 ween the parties and partly on concessions made at the Bar. That is the person why the judgment in Premier Auto mobiles (supra) cannot be treated as a precedent and can not afford any appreciable assistance in the decision of price fixation cases. " The position was again clarified in Rohtas Industries vs Bihar State Electricity Board (supra): "As pointed out by this Court in Prag Ice & oil Mills and another vs Union of India, in the ultimate analysis, the mechanics of price fixation is necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of person, the processual basis of price fixation is to be accepted in the generality of cases as valid. " On the question of appropriate pricing policy we may conveniently refer, at this juncture to what the Planning Commission had to say in the Seventh Five Year Plan. At page 128 of Vol. II in para 6.31 it was said, "6.31 The Sixth Plan had emphasised the need to give high priority to the evolution of a structure of energy prices which reflect true costs, curb excessive energy use and pro mote conservation of scarce fuels. Except in the case of oil, timely adjustments have not been made in the prices of coal and electricity to reflect the real costs. Energy pricing has not promoted, to the desired extent, inter fuel substitution. Energy users have generally not adopted conservation measures already identified. While action is being taken to L promote technologically energy efficient equipment and processes on the one hand, appropriate energy pricing policy would have to be followed, on the other hand, in order to induce economics in the use of energy in all sectors and encourage desired forms of inter fuel substitution, including renewable energy wherever viable. The pricing of energy should not only reflect the true costs to the economy but also help to ensure the financial viability of the energy industries. This is particularly relevant in respect of coal and power industry. As we have said in the past, it is wrong to think that an adjustment in the prices of 653 a basic input like energy would aggrevate the inflationary A situation; the costs to the economy are not reduced by not reflecting them in proper pricing. Indeed the continuance of wrong pricing policy has a far more deleterious effect on the health of the economy than is often realised. The formulation of an integrated energy pricing structure on the above lines should receive the highest priority in the beginning of the Plan period. " Turning back to sec. 59 and reading it along with sections 49, 67, 67A etc. we notice that the Electricity Supply Act requires the Electricity Board to follow a particular method of accounting and it is on the basis of that method of accounting that the Board is required to gene rate a surplus. Broadly, sec. 59 requires that a surplus should be left from the total revenues, in any year of account, after meeting all expenses properly chargeable to revenues. It has to be remembered that apart from subventions which may be received from the State Government, which depend entirely on the bounty of the Government, the only revenues available to the Board are the charges leviable by it from consumers. Bearing this in mind, we may now consider what expenses are properly chargeable to revenues under the Electricity Supply Act. For this purpose, we may not be justified in having recourse to the principles of corporate accounting or the rules which determine what is revenue expenditure under the Indian Income tax Act. It appears to us that the Electricity Supply Act prescribes its own special principles of accounting to be followed by the Board. To begin with section 59(1) specifies 'operating maintenance and management expenses ' 'taxes (if any) on income and profits ', 'depreciation and interest payable on all debentures, bonds and loans ', as included in 'expenses properly chargeable to revenues '. Section 59(2) further stipulates that in specifying the surplus, the Government shall have due regard to the availability of amounts accrued by way of depreciation and the liability for loan amortization. It also stipulates that a reasonable sum to contribute towards the cost of capital works and a reasonable sum by way of return on the capital provided by the State Government should be left in the surplus. This sub section, therefore makes it clear that the Board is to provide for (1) loan amortization (2) contribution towards the cost of capital works; (3) return on the capital. We may now turn to section 67 which prescribes the priority to be observed by the Board in the matter of discharging the liabilities enumerated therein out of its revenues. First the operating maintenance and management expenses have to be met, next provision has to be 654 made for payment of taxes on Income and Profits and thereafter various items of expenditure are mentioned in order of priority. If any amount is left after the discharge of the liabilities enumerated in section 67 it is further provided that the balance shall be utilised for the other purposes specified in section 59 in such manner as the Board may decide. Payment of interest is expressely mentioned among the liabilities to be discharged, as also repayment of principal of loans becoming due for payment in the year. Clause (vi) of sub section (1) of sec. 67 makes it clear that repayment of principal of any loan guaranteed by the State Government will include loans which became due for payment in the year as well as loans which became due for payment in any previous year and had remained unpaid. The submission strenuously urged on behalf of the consumers before the High Court and before us was that while interest which accrued during the year might be properly considered to be revenue expenditure, arrears of interest which accrued during the previous years and had not been paid could not be so considered. We fail to see why that should be so. Under the scheme of the Act principal amount falling due in any year has to be met from the revenue receipts of the year. It is difficult to understand how any payment towards principal could be made or accepted. If interest of previous years continued to be outstanding. The very provision for repayment of capital necessarily implies payment of all interest accrued upto the date of repayment of the capital. If as argued on behalf of the consumers arrears of interest cannot be paid from revenue receipts, how then may such arrears be paid? Not from the capital receipts. What may be paid out of capital receipts and the circumstances under which the payment may be made are expressly provided in s.67(2) which says that if for any reason beyond the control of the Board the revenue receipts in any year are not adequate to meet the operating, maintenance and management expenses, taxes on income and profits, and the liabilities referred to in clauses (i) and (ii) of section 67(1), then the shortfall shall be paid out of its capital receipts with the sanction of the State Government. We do not therefore, have any doubt that arrears of interest are, under the scheme of accounting contemplated by the Act, required to be paid out of revenue receipts of the Board and are expense properly chargeable to revenues within the meaning of that expression in section 59 of the Act. The Legislature has presently clarified the position by the amending Act 16 of 1983 which came into force from April 1, 1985. By this Act a separate section, section 67A has been introduced along with a consequential amendment of section 67 providing that interest on loans advanced under section 64 or deemed to have been advanced under section 60, which is charged to revenues in any 655 year may be paid out of revenue receipts of a year only after all other A expenses referred to in section 59(1) are met and further providing that so much of interest as is not paid in any year by reason of the priority mentioned in section 67A shall be deemed to be a deferred liability to be discharged in accordance with provision of section 67A in the subsequent year or years. In our view these provisions show beyond doubt that payment of arrears of interest is an expense properly chargeable to the revenues under the scheme of the Act. We may now assess the factual situation, Shri Abdul Khader, learned counsel for the Kerala State Electricity Board has placed before us statements containing details of interest payable in each year of accounting, the arrears of interest due and payable, the total revenue receipts and some other relevant particulars. The statements have been prepared, taking the figures from the published annual accounts of the Kerala State Electricity Board. In the year of account 1978 79, the total revenue receipts were Rs.8421.75 lakhs out of which the revenue earned by sale of energy to neighbouring States was Rs.2926.73 lakhs. After meeting operation and maintenance expenses and depreciation the balance of revenue receipts was Rs.4161. 60 lakhs. The amount of interest payable in the year of account was Rs.1946.37 lakhs. The revenue surplus left after payment of interest in the year of account was therefore, Rs.2215.23 lakhs. The arrears of interest accrued in previous years and not paid was Rs.4270.58 lakhs, since the revenue surplus available after meeting the current interest was Rs.2215.23 lakhs only there was a deficit of Rs.2055.35 lakhs. In the year of account 1979 80 the total revenue receipts were Rs.9124.90 lakhs which included revenue of Rs.3856.15 lakhs from sale of energy to neighbouring States. After meeting operation and maintenance expenses and depreciation the revenue surplus left was Rs.3253.94 lakhs. The interest which became payable in the year of account was Rs.2107.85 lakhs and after meeting it, the revenue surplus left was Rs.l146.09 lakhs. The old arrears of interest which could not be met fully in the previous year was Rs.2055.35 lakhs. Thus in the year of account year 1979 80, there was a deficit of Rs.909.27 lakhs. In the year of account 1980 81 the total revenue receipts were Rs.10,686.54 lakhs and this included a sum of Rs.4326.92 lakhs earned by sale of energy to neighbouring States. After meeting the operation and maintenance expenses and depreciation the revenue surplus left was Rs.3615.90 lakhs and after meeting interest of Rs.2369.42 lakhs which had become payable in the year of account a revenue surplus of Rs.1246.48 lakhs was left. The unpaid interest of previous years was Rs.909.27 lakhs 656 and after meeting it we find for the first time a net surplus of RS.337.21 lakhs. In the year of account 1981 82 the total revenue receipts were RS.12,144.02 lakhs which included revenue of RS.4532.42 lakhs from sale of energy to neighbouring States. After meeting operation and maintenance expenses and depreciation; there was a revenue surplus of RS.3183.77 lakhs. The total interest payable in the year of account was RS.3105.15 lakhs, this left a revenue surplus of RS.78.62 lakhs and since there was no arrears of interest what was payable the net revenue surplus was 78.62 lakhs. In the year of account 1982 83 the total revenue receipts were RS.11,228.40 lakhs which included revenue of RS.1948.63 lakhs from sale of energy to neighbouring States. After meeting operation and maintenance expenses and depreciation the revenue surplus left was RS.2810.60 lakhs. The interest which was payable in the year of account was RS.3187.62 lakhs and thus left a net revenue deficit of RS.376.76 lakhs. In the year of account 1983 84, the total revenue receipts were RS.10,518.35 lakhs including revenue of RS.175.76 lakhs from sale of energy to neighbouring States. The revenue surplus after meeting operation maintenance expenses and depreciation was RS.2246.30 lakhs. The amount of interest which had become payable was RS.3426.53 lakhs, the arrears of interest was RS.376.76 lakhs leaving a total deficit of RS.1556.99 lakhs. We may mention here that the annual account for the year 1978 79 to 1983 84 have been certified by the Accountant General and the annual accounts for the year 1984 85 are awaiting certification. The accounts awaiting certification show that in the year of account 1984 85, the revenue receipts after meeting operation and maintenance expenses and depreciation were 4692.92 lakhs, while the interest which had become payable during the year was RS.3719 and the interest of the previous year Rs. 1556.99 lakhs this left a deficit of RS.584.OO lakhs. The revised estimates for the year 1985 86 show a revenue surplus of RS.5567.00 lakhs after meeting operation and maintenance expenses and depreciation. The interest payable during the year was RS.4574.80 lakhs and the interest of previous year was RS.584 lakhs. The left a surplus of RS.409.00 lakhs. These figures show that 1978 79,1979 80, 1980 81 & 1981 82 were extraordinary years when there was a boom in the sale of energy to neighbouring States consequent on the conditions prevailing there. In those years also it would be seen from the accounts that but for the boom in the sale of energy to neighbouring States there would have been a serious deficit in every one of those years. It is clear that the Electricity Board has not been earning huge profits and generating large surpluses, as suggested by the consumers. Once we arrive at this position that there is hardly any revenue surplus left after 657 meeting the expenses required to be met by section 59, the complaint of the A consumers that there was no justification for the tariff increase because of large surpluses earned by the Board loses all force. We have examined the two reports of the Tariff Committees of the years 1980 and 1982 and the revised tariffs based on those reports in the light of the legal and factual position explained by us. Before the 1980 revision, the prevailing rates were, Extra High Tension: 8.81 ps per unit, High Tension Industrial: 14.98 ps per unit, Low Tension Domestic: 38 ps per unit, Low Tension Industrial: 14.15 ps per unit, Low Tension Commercial: 38 ps per unit, Low Tension Agricultural 14.15 ps per unit, Low Tension Commercial worked out the cost per unit at 10.9, 18.6, 57.5, 43.5, 56.5 and 53.5 ps per unit respectively in that order, but recommended, in the same order, 11.55, 21.4, 38,27.5, 74 and 18 ps per unit respectively. However, the actual tariff rates as introduced in 1980 were l0.8, 18.24, 38, 24.5, 66 and 15 ps per unit. The 1982 Tariff Committee recommended rates of 24.5, 37.3, 47.5, 48, 55 70 and 34 ps per unit. The actual tariff introduced in 1982 was 17.65, 27.24, 42.5, 24.5, 50 70 and 15 ps per unit. We notice that in the case of Low Tension Domestic and Agricultural consumers, the change is minimal. In the case of Extra High Tension and High Tension Industrial Consumers, the change effected by the 1980 revision was minimal but on the higher side in 1982. In the case of Low Tension Industrial and Commercial Consumers, the change effected in 1980 was very steep but tended to come down in 1982. On the whole, it cannot possibly be said that the rates have been so fixed by the Electricity Board as to throw a heavy burden on any section of the consumers without regard to their ability to pay without regard to the nature of the supply and purpose for which the supply is required. Now do we find that the principle of uniformity of tariffs has in any way been l: sacrificed. But, as we mentioned a little earlier the Low Tension Industrial and Commercial Tariff was subjected to a very steep rise in 1980 and brought down again in 1982 apparently in recognition of the fact that the raise had been too steep in regard to them in 1980. In the case of Low Tension Industrial Consumers, the tariff was increased from 14.5 ps per unit to 24.5 ps per unit in 1980 and maintained at the rate of 24.5 ps per unit in 1982. In the case of Low Tension Commercial Consumers, the tariff was increased from 38 ps per unit to 66 ps per unit in 1980 but brought down again considerably in 1982 to 50.70 ps per unit. The very circumstance that the tariff was either brought down or maintained at the same level in 1982 when compared with the 1980 tariff appears to be an indication that the increase in 1980 was 658 thought by the Board itself to be rather steep. We have already noticed that 1980 81 and 1981 82 were the years when the accounts of the Electricity Board recorded a net surplus after meeting all expenses including interest charges. In the circumstances, we think that it is desirable that the Board may re consider the 1980 tariff for Low Tension Commercial and Low Tension Industrial Consumers. Shri Potti submitted that the 1980 Committee took place consideration the anticipated augmentation of the generating capacity from the proposed new power stations of Idukki, Saharigiri and Idamalyar, whereas these projects were not commissioned till 1984 and thus the cost structure arrived at by the Committee was vitiated. We do not think so. From the figures supplied to us we find that notwithstanding the failure to commission the new projects, there was no shortfall in the production of energy. A large part of expenditure involved in the setting up of the new projects had to be met in the several years preceding the actual commissioning of the projects. Therefore, it is not correct to say that the cost structure arrived at by the Committee was in any way affected by the non commissioning of the new projects between 1980 and 1982. Another submission made by Shri Potti was that the Committee erred in not taking into account the financial position of the Board as brought out by the year 1978 79 which showed that the Board had already turned the corner and that there was therefore no need for enhancing the rates. This submission is again without substance. As we mentioned earlier, the rise in revenue receipts in the year 1978 79 due to the unprecedented sale of energy to neighbouring states, a special situation which was the result of peculiar circumstances which prevailed that year and continued to prevail for a few years thereafter. The sale of energy to neighbouring States was not to l be taken as a permanent phenomenon to every year. Yet another submission of Shri Potti was that the 1980 Committee having taken as the basis the 1982 projected cost so as to maintain price stability for a period of five years, it was not proper to revise the tariff again in 1982 But we find that the actual cost of producing energy in 1981 82 and 1982 83 had risen much above the projected 1982 cost and therefore the 1982 Committee has no option but to again consider further revision of the tariff. We are not delving into more details as we are satisfied that it is not within our province to examine the price structure in minute detail if we are satisfied that the revision of tariff is not arbitrary and is not the result of the application of any wrong principle. Relying upon the observation, "It would have been manifestly unjust and discriminatory that one consumer should benefit at 659 the cost of other consumers or general tax payers;" made in D.C.M. vs Rajasthan State Electricity Board, [1986]2 SCC 431 it was argued by Shri Potti that it was not open to the Board to give favoured treatment to Low Tension Domestic and Agricultural Consumers at the cost of the rest of the consumers. We do not find any force in this submission. Section 49 (3) expressly reserves the power of the Board, if it considers it necessary or expedient, to fix different tariff for the supply of electricity to any person having regard to the geographical l,, position of any area, the nature of the supply and purpose for which supply is required and other relevant factor. Different tariffs for High and Low Tension Consumers and for different classes of consumers, such as, Industrial, Commercial, Agricultural and Domestic have been prescribed and the differention appears to us to be reasonable and far from arbitrary and to be based on intelligent and intelligible criteria. In the result, we allow the appeals filed by the Kerala State Electricity Board, set aside the judgments of the High Court, uphold the validity of the notifications revising the tariffs and dismiss the writ petitions filed in the High Court, subject to direction that the Kerala State Electricity Board will reconsider the revised tariff introduced in 1980 in regard to Low Tension Industrial and Low Tension Commercial Consumers only, with liberty to fix separate rates, if necessary for the years 1980 and 1981. This direction will not affect the 1982 and 1984 tariff revisions. There will be no order regarding costs. A.P.J. Appeals allowed. [/INST]The petitioner filed the present petition under Article 32 of the Constitution for release of children below the age of 16 years detained in jails within different States of the country, production of complete information of children in jails and existence of juvenile Courts, homes and schools in the country. The petitioner also asked for a direction to the State Legal Aid Boards to appoint duty counsel to ensure availability of legal protection for children as and when they are involved in criminal cases. The Supreme Court while directing the State Legal Aid and Advice Board in each State or any other Legal Aid organisation existing in the State concerned, to send two lawyers to each jail within the State once a week for the purpose of providing legal assistance to children below the age of 16 years who are confined in the jails, called for information from the District Judges about the children below the age of 16 years detained in various jails. However several District Judges did not comply with the direction within the time granted. While showing concern and surprise that a direction given by the apex Court has not been properly carried out by the District Judges who are an effective instrumentality in the hierarchy of the judicial system, the Court, 444 ^ HELD: (1) Every defaulting District Judge who had not submit ted his report shall unfailingly comply with the direction and furnish the report by August 31, 1986 through his High Court, and the Registrar of every High Court shall ensure that compliance of the present direction is made. It is surprising that the High Courts have remained aloof and indifferent and have never endeavored to ensure submission of the reports by the District Judges within the time indicated in the order of this Court. [447G H] (2)(I) Enough the Children 's Acts are on the statute book, in some States the Act has not been brought into force. This piece of legislation is for the fulfilment of a constitutional obligation and is a beneficial statute. There is hardly any justification for not enforcing the statute. Ordinarily it is a matter for the State Government to decide as to when a particular statute should be brought into force but in the present setting, it is appropriate that without delay every State should ensure that the Act is brought into force and administered in accordance with the provisions contained therein. [448B E] (2)(II) Such of the States where the Act exists but has not been brought into force should indicate by filing a proper affidavit as to why the Act is not being brought into force in case the Act is still not in force. [448E] (3)(I) The safeguards which are provided in Jail Manuals prevalent in different States should be strictly complied with and the prisoners should have the full benefit of the provisions contained in the Manual. It is also the obligation of the High Court to ensure that all persons in judicial custody within its jurisdiction are assured of acceptable living conditions. [448F; 449A] (3)(II) Every District and Session Judge should visit the district jail at least once in two months, and in the course of his visit, he should take particular care about child prisoners, both convicts and under trials and as and when he sees any infraction in regard to the children in the prison he should draw the attention of the Administration as also of his High Court. [448G H] </s>

<s>[INST] Summarize the judgementCivil Appeal Nos. 44,45, 336, and 337 of 1957. Appeals by special leave from the decisions dated 29th June, 1956, of the Labour Appellate Tribunal of India, Calcutta in Appeals Nos. Cal.223, 226, 247 and 250 of 1955. M. C. Setalvad, Attorney General for India, Dipak Datta Chaudhury and B. N. Ghosh, for the appellants in C. A. No. 44 and respondents in C. A. No. 45. M. C. Setalvad, Attorney General for India, section N. Mukerji and B. N. Ghosh, for the appellants in C. A. Nos. 336 and respondents in C. A. No. 337. section K. Acharya, Arun Kumar Dutt, D. L. Sen Gupta and Sukumar Ghosh, for the appellants in C. A. Nos. 45 & 337 and respondents in C. A. Nos. 44 & 336. October 15. The Judgment of the Court was delivered by section K. DAS J. These four appeals by special leave arise out of certain labour disputes between the employer, Messrs. Indian Iron and Steel Company Limited and the Indian Standard Wagon Company Limited, Burnpur, Asansol, (hereinafter compendiously referred to as the Company) on one side and some of their employees on the other. Messrs. Martin Burn Limited, 12 Mission Row, Calcutta, are the Managing Agents of the Company. Originally, the case out of which Civil Appeals 44 and 45 have arisen was known as the case of 144 workmen, and the other case out of which Civil Appeals 336 and 337 have arisen was known as the case of 74 workmen. At present, the 669 number of workmen involved in the four appeals is much smaller. Civil Appeals 44 and 45 go together as they arise out of the same decision, Civil Appeal 44 being on behalf of the Company in respect now of 104 respondent workmen, and Civil Appeal 45 on behalf of 103 out of the said 104 workmen. Similarly, Civil Appeals 336 and 337 go together and arise out of a common decision, Civil Appeal 336 being on behalf of the Company in respect of 10 workmen in three groups and Civil Appeal No. 337 on behalf of 31 workmen. The facts of these two sets of appeals are somewhat different, and it will be conducive to convenience as also to clarity of discussion of the issues involved, if the two sets are dealt with separately. Civil Appeals 44 and 45. We take up first Civil Appeals 44 and 45. With regard to these appeals the relevant facts are these. In 1947 the Asansol Indian Iron and Steel Workers Union with one Prof.` Abdul Bari as President was recognised by the Company. On the death of Prof. Bari, one Mr. Michael John became President and the Union continued to be recognised by the Company. In 1951 the Company was declared a Public Utility Service under the . It was alleged on behalf of the Company that on September 12, 1951, a procedure was established for an amicable settlement of such disputes as might arise between the Company and its employees. The procedure was substantially this: in case of a dispute regarding an individual employee, the dispute would be referred first to the Shop in charge and then to a Works Committee, and the Union would discourage an individual approach to the management of the Company; if the Works Committee was able to effect a settlement, it would be final; but if it failed, the Union could take up the case on merits, with the management of the Company. The above procedure, it is stated, was accepted at a joint meeting of the Works Committee held on November 13, 195 1. Then we come to 1953. The case of the company was that on January 18, 1953, certain workers of the, Hot Mills 670 section resorted to an illegal stoppage of work, and on the next day all the three shifts of the Hot Mills section commenced a 'slow down ' strike. This adversely affected the production of the Company, and it addressed a letter to the Secretary of the Union on January 27, 1953, drawing the attention of the Union to the illegal stoppage of work and 'slow down ' tactics; the letter further stated that if there was no improvement in the attitude of the workers, the Company would be compelled to take such action as it considered necessary to bring about resumption of normal work. Two days later, the workers of the Hot Mills section submitted certain demands, but not through the Union. With regard to the demands made by the workers of the Hot Mills section, they were informed that joint petitions, without reference to the Union or the Works Committee, would not be accepted and so long as normal work was not resumed, no consideration could be given to the demands made. It appears that the Union also informed the Company that the workers concerned had made no representation to the Union, and the Union did not support their activities. It is obvious that at this stage there was a cleavage between some of the workers of the Hot Mills section and the Union. The Company then issued certain notices to the workmen advising them of the consequences of their action. The workers in their turn elected a committee of six men to press their demands; the Company, however, refused to negotiate with this committee. The impasse continued and in March, 1953, there was a tripartite conference between the Labour Commissioner of the Government of West Bengal, the General Manager of the Company and the President of the Union. Before this, the Company had issued a notice closing 'B ' and 'C ' shifts of the Hot Mills section. The tripartite conference came to certain conclusions but failed to restore harmony, and one of the reasons for its failure was that the representatives of the workers of the Hot Mills section were not included therein. The workers ' committee protested against the closing of two shifts, and the trouble continued till April 8, 1953, when the Company 671 issued a notice to the workmen that unless they voluntarily recorded their willingness to do normal work, they would be considered as no longer employed by the Company from 2 p.m. on April 10, 1953. It was stated that on April 11, 1953, some 700 workers resorted to an illegal stoppage of work. The Labour Minister, Government of West Bengal, then visited Asansol, and met the representatives of the workers, and of the Union and the Management. He made some suggestions, which did not however end the trouble. Meanwhile, an Action Committee was set up by the workmen. There was a strike on April 27, 1953. The Sub Divisional Magistrate, Asansol, promulgated an order under section 144 of the Code of Criminal Procedure and the situation continued to worsen. Iron and Steel were declared to be essential to the life of the community under the provisions of the West Bengal Security Act, 1950, and leave to all employees was stopped by the Company. Some 38 workers of different departments were discharged for alleged disobedience of orders, and on August 18,1953, the Action Committee gave a strike notice to the Company, stating that the workmen would resort to strike and abstain from duty from September 11, 1953. We now come to the crucial date, August 23, 1953. On this date the Company declared a lock out and issued a notice, which must be set out in full, because a good part of the argument of learned counsel for both parties has centred round this notice : " NOTICE. Having regard to the continued existence of the go. slow strike and the unsatisfactory working of the Plant and in consequence of the illegal strike which took place on (1) 18 1 53. (2) 9 3 53. (3) 11 4 53 to 20 4 53. (4) 27 4 53 and 28 4 53. (5) 15 7 53. the Management has no option but to declare a lockout of the entire works except the special shifts in the 672 Hot Mills Section of the Sheet Mills with effect from Monday, the 24th August, 1953. The following Departments will continue to operate: No. 3 Boiler Plant. No. 2 Power House. Nos. 1 and 2 Reservoir Pump Houses. Riverside Pump Station. Town Water Works. Town Sub Station. Coke Ovens. Workers required in the above Departments will be notified. The services of all other workers shall be deemed to be discharged with effect from Monday, August 24th, 1953. Bunpur (Sd.) J. McCraken 23rd August, 1953. General Manager. " On September 17, 1953, another notice was issued by the Company lifting the lock out with effect from 6 a.m. on Friday, September 18, 1953. This notice stated inter alia: "All employees on the Works rolls of the Company on the 23rd August, 1953, and who wish to report for duty, must resume work between 6 a. m. on Friday, the 18th September, 1953, and 10 p.m. on Saturday ' the 19th September, 1953, on their regular shift. If, however, any worker in the vicinity of the Works is unable to resume duty on account of illness, he should report himself to the Company 's Medical authorities or if unable personally to attend, send written intimation of his sickness to the Company by Saturday, the 19th September, 1953. In the latter case the Company will make arrangements for his medical examination. Such worker should resume duty from the date he is declared fit by the Company 's Medical authorities. Any worker who has left the vicinity of the Works may resume duty on or before Thursday, the 24th September, 1953, provided he produces evidence satisfactory to the Company of his absence. " On September 23, 1953, the Company issued a third notice, which quoted a request received from the 673 President of the Asansol Iron and Steel Workers ' Union for extension of the time given to the workmen to resume work, and then concluded as follows: "The Company is pleased to accede to this request to the extent of one week 's extension and its notice No. GM/CS 3B/571 dated 17 9 53 may be considered amended accordingly, i.e., the extension will be until Friday, the 2nd October, 1953. " Of the workmen with whom we are now concerned, 98 workmen reported for duty on October 1, 1953, 4 reported for duty on October 2, 1953, and one on October 9, 1953. They were not, however, allowed by the Company to resume their duties. This led to an industrial dispute which the Government of West Bengal referred to the Fifth Industrial Tribunal. The two issues were (1) whether the Company was justified in keeping the workmen mentioned in three lists A, B & C, out of employment; and (2) whether the said workmen were entitled to employment and any other relief and/or compensation. The Tribunal held that all the workmen who turned up on or before October 2, 1953, in pursuance of the notices issued by the Company were entitled to be taken back into employment without condition and of the two men who came later, one was ill of typhoid fever and had sufficient reason for reporting himself for duty on October 9, 1953. On the second issue, the Tribunal said: " Accordingly, I award that these men, barring Shri Satyanarayan, No. 5 of the list C, attached to the order of reference, would get half salary for the entire period from the 2nd October, 1953, up to the date of their actual return to duties after this award. I allow only half basic pay and no dearness allowance and no other allowance. " From the decision of the Fifth Industrial Tribunal, two appeals were preferred to the Labour Appellate Tribunal, Calcutta. The appeal on behalf of the Company was mainly against the order directing that the employees who had turned up on or before October 2, 1953, must be taken back in employment, and the appeal on behalf of the workmen raised the question 674 that full compensation should be given to the work. , men who were directed to be taken back in employment. The Labour Appellate Tribunal dismissed both appeals the appeal of the Company on merits, and the appeal of the workmen on the ground that it did not involve any substantial question of law. Both parties then asked for and obtained special leave from this Court to appeal from the decision of the Labour Appellate Tribunal, Calcutta. In Civil Appeal No. 44, Mr. M. C. Setalvad, Attorney General, has appeared for the Company and has argued that both the Tribunals below went wrong on principle in construing the notices dated August 23, 1953, and September 17, 1953, respectively. According to him, the continued illegal stoppages of work, 'slow down ' tactics and strikes indulged in by the workmen despite the advice of their Union, left the Company no alternative but to discharge the workmen, except in some essential departments, with effect from August 24, 1953, and the notice dated August 23, 1953, though it stated that the Company declared a lock out of the entire Works except for some special shifts, really terminated the services of the respondents by discharging them with effect from August 24, 1953. He has further submitted that the notice dated September 17, 1953, did not revoke the earlier order of discharge, but merely gave the respondents an opportunity of reemployment at the pleasure of the Company on fulfilment of certain conditions. The learned Attorney General contends that if the notices are so construed, then the Tribunals below are wrong in holding that the respondents are entitled to be taken back in employment as of right. He has further submitted that the Fifth Industrial Tribunal was wrong in law in holding that there could not be a lock out and discharge at the same time. In our view, the two notices in question are not capable of bearing the construction which the learned Attorney General has pressed for our acceptance, apart altogether from the question if under the , there can be a simultaneous order of discharge and lock out in respect of the 675 same employees. The question of construction is really a question of intention to be gathered primarily from the words used in the documents; and if the word . used are ambiguous, then surrounding circumstances can be looked into for the purpose of construing the notices. It is worthy of note that the first notice states inter alia that in consequence of the illegal strikes which took place on several previous dates, the Management has no option but to declare a look out of the entire Works except some special shifts with effect from Monday, August 24, 1953; then in the concluding portion the notice states " The services of all other workers shall be deemed to be discharged with effect from Monday, August 24, 1953. The expression " shall be deemed to be discharged has to be read in the context of the declaration of a lock out; such an expression is neither usually employed nor apt to effectuate an intention to terminate the services of the workmen altogether. A 'lock out ', according to the definition in the , means the " closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him ". In this context, the notice when it said that the services of all other workers shall be deemed to. be discharged with effect from the date of the lock out really meant that the Company refused to employ the respondent workmen during the period when the place of employment was closed. The second notice dated September 17, 1953, places the matter beyond any doubt. It starts by saying that the "management have reasons to believe that many workers are desirous of resuming work" etc.; then it states that "all employees on the Works rolls of the Company on August 23, 1953, and who wish to report for duty, must resume work between 6 a.m. on Friday, September 18 1953, and 10 p.m. on Saturday, September 19, 1953. " The expressions used in the second notice clearly show that the intention was not reemployment of discharged workmen, but resumption of work by employees who desired to resume work and whose employment had been stopped on account of the 86 676 look out. The third notice dated September 23, 1953, which extended the date of joining to October 2, 1953, again said that " a large number of workers might have been prevented from resuming their work for reasons beyond their control " and gave that as the reason for extending the date. If the three notices referred to above are read together against the background of events which bad happened prior to August 23, 1953, the only reasonable construction is the one adopted by the Tribunals, viz., that the employees whose employment had been refused during the lockout were permitted to resume work without any conditions if they reported for duty by a particular date, and on fulfilment of a condition if they reported for duty after that date. The learned Attorney General has referred us to some oral and documentary evidence to show that the workmen themselves understood the notice dated August 23, 1953, as a notice of discharge. He has referred particularly to the letter dated September 2, 1953, written by the Action Committee to the General Manager of the Company in which the notice dated August 23, 1953, was referred to as " an illegal and unconstitutional notice of discharge". On the other side, Mr. section K. Acharya appearing for the respondent workmen has referred us to the evidence given by some of the Company 's servants, which showed that no formal order of discharge was recorded in the service book of the employees, as required by the rules; nor any notice of one month given for discharging the workmen; but on the contrary the workmen were given continuity of service for the entire period of their absence. We do not, however, think that when the words used in the notices sufficiently and clearly bring out the intention of the Company, it is necessary to refer to other evidence in the record. Moreover, this Court does not sit as a regular Court of appeal over Industrial Tribunals, and does not ordinarily subject the evidence given on behalf of the parties to a fresh review and scrutiny, unless it is shown that exceptional or special circumstances exist, or that substantial and grave injustice has been done or that the case 677 in question presents features of sufficient gravity to warrant a review of the decision appealed from. It is necessary now to consider an alternative argument of the learned Attorney General. He has contended that assuming that the notices bear the construction which we have put on them, the respondent workmen did not join on or before Saturday, September 19, 1953, the latest day by which they could resume work without any condition; they reported for duty on October 1, 1953, or October 2, 1953, but failed to produce evidence satisfactory to the Company of their absence as required by the notice dated September 17, 1953, and, therefore, they were not entitled to be taken back as of right and without any condition. It is necessary to state here what happened between November 1953, and April 1954. It appears that a large number of workmen who reported for duty on October 1, 1953, and October 2, 1953, were subsequently interviewed, and as a result of that interview 144 workmen were not taken back to employment. What happened at the interview was stated by Shri section K. Kanwar, witness for the Company, who said : " Question: Why these 144 men were not taken ? Answer: These men were interviewed, but they could not give satisfactory explanation for not reporting for duty within the time given. These men did not comply with the condition laid down in the notice of the 17th September, 1953. Whatever happened during the interview has been put in writing. " The writing which embodied the result of the interview was not, however, produced. The same witness said that some workmen who were also subsequently interviewed were taken back without any explanation of their absence. The evidence on this point is very Conflicting; one witness said that about 2,000 men came to the main gate of the Company on October 1, 1953, and October 2, 1953, and from October 2, 1953, the instruction of the company was " to take back only those who were not harmful to the running of the factory". Another witness said that he did not 678 remember if any of the respondent workmen appeared before him on October 1, 1953, or October 2, 1953, and if any of them gave any reasons for their absence. In view of the conflicting evidence on the point, it is not possible to proceed on the footing that the respondent workmen failed to produce satisfactory evidence of their absence, and that was the reason why they were not taken back by the Company. The learned Attorney General drew our pointed attention to the evidence of Shri Promotho Nath Mukherji, witness No. 9 for the workmen, who said: "When the lock out was lifted I did not think it proper to join immediately because most people were then outside, secondly, my colleagues and others had not then joined, and. lastly, my social status in the place combined with the above circumstances restrained me from joining. " It may be that some of the workmen could have presented themselves earlier than they actually did, But that does not prove that the Company refused to take only those workmen who had failed to produce satisfactory evidence of their absence. If that was the case of the Company, then it should have produced the writing which embodied the result of the interview or given sufficient evidence to establish that in each case the respondent workmen failed to produce satisfactory evidence of absence. On the contrary, the Tribunal found that the Company scrutinised the conduct of the workmen to find out how far they were associated with the Action Committee, how far they took part in the meetings, etc., and on that basis, some workmen were taken back and some were not taken back. It is somewhat late in the day to try to make out a case that each of the respondent workmen in these two appeals failed to produce satisfactory evidence of their absence. For these reasons, we do not think that the appellant Company in Civil Appeal 44 has made out any case for our interference with the decision appealed from. There was some argument before us as to the illegal nature of the strike declared by the workmen and also as to the legality of the lock out declared by the Company. We do not pause to decide those 679 questions, because it is unnecessary to do so in the pre sent appeals. We must make it clear, however, that our reluctance to pronounce on the conduct of the workmen prior to August 23, 1953, does not signify an approval of that conduct which rightly came in for a good deal of criticism by the Industrial Tribunal. It has been somewhat faintly suggested that if the notice dated August 23, 1953, terminated the services of the workmen and the second notice, dated September 17, 1953, operated as a conditional revocation of the earlier notice, then there was no consideration for the condition imposed and the Company could change its mind : and ignore the condition. In the view which we have taken of the three notices, it becomes unnecessary" also to examine this submission. As to Civil Appeal 45 on behalf of the workmen in which the prayer is for payment of full compensation, it is sufficient to state that no question of principle is involved. The Fifth Industrial Tribunal refused to give compensation, for the period anterior to October 2, 1953, on the. ground that the workmen themselves tried to coerce the Company by 'slow down ' tactics etc.; for the period after October 2, '1953, the Tribunal allowed half the wage as compensation on the ground that some of the workmen were near Burnpur and might have joined earlier, some claimed to come back to their services as of right without any explanations and none of the workmen had done any actual work for the period. As we have said, no question of principle is involved and we do not think that the Tribunal has committed any error in the matter of awarding compensation. Civil Appeals 336 and 337. We now turn to the other two appeals. We have stated that the case out of which these two appeals have arisen dealt initially with 74 workmen who had been discharged or suspended by the Company for" one reason or another. ' The question which was referred to the Fifth Industrial Tribunal was whether the discharge and/or suspension of these 74 workmen was justified if not, to what relief these men were entitled. The Tribunal classified these men in four categories 680 (1)those whose services were terminated in accordance with the Standing Orders of the Company, for absence without permission for 14 consecutive days; (2) those who were dismissed for major misdemeanor; (3) those who were suspended but whose cases could not be disposed of finally; and (4) those who were dismissed for disobedience of orders and other activities in pursuance of a concerted plan of "go slow" strike. The Tribunal considered the case of each workman under the four categories mentioned above and ordered reinstatement of 25 out of 74 workmen and granted to 24 of the workmen directed to be reinstated compensation equal to half basic pay for the period of forced unemployment. From the decision of the Fifth Industrial Tribunal two appeals were taken to the Labour Appellate Tribunal, Calcutta, one on behalf of the Company and the other for the workmen. The Labour Appellate Tribunal dismissed both the appeals. Hence the two appeals before us by special leave. In Civil Appeal 336 we are concerned with only 10 workmen, seven of whom fall in the category of those whose services were terminated in accordance with Standing Orders of the Company for absence without permission for 14 consecutive days. These seven men are (1) Bamapado Mukherji, (2) Chandrasekhar Mukherji, (3) Niaz Hossain, (4) Dhani Ram, (5) Chandrabhan Sing, (6) Raja Sing, and (7) Jai Kishore Sing. Two others, Samar Sen and Abharani Debi, fall in the category of those who were said to have been dismissed for major misdemeanour. The tenth workman Himansu Chattoraj falls in a class by himself. In Civil Appeal 337 on behalf of the workmen there are 31 appellants, nine of whom (except Samar Sen) are those who figure in the Company 's appeal. The rest are those who were not ordered to be reinstated. The cases of two of these men Akka Hossain and D. P. Das, have been specially placed before us by Mr. section K. Acharya, on the ground that Akka Hossair, stands on the same footing as Himansu Chattoraj and D. P. Das on the same footing as those whose leave was not granted and who were absent for 14 consecutive days without permission. 681 We now proceed to consider the cases of the 10 workmen in Civil Appeal 336. Let us first take the seven workmen who were absent without leave for 14 consecutive days. Standing Order No. 9 of the Company, which is the relevant Standing Order on the subject, is in these terms: " Absenteeism Workers absent without leave will be subject to disciplinary action. Overstaying leave will be considered as absence without leave. Any worker who is absent for 14 consecutive days without permission will be automatically discharged. Also, any worker who is absent for 14 individual days during any period of 12 months is liable to discharge. " What happened in the case of these men is that on diverse dates between July 5, 1953, and July 10, 1953, they were taken in custody by the police and remained in custody for some time; they applied for leave when in custody but leave was refused. The Industrial Tribunal took the view that Standing Order No. 9 was not an inflexible rule, and a mere application for leave was sufficient to arrest the operation of the Standing Order. When the case was before the Appellate Tribunal, Mr. section K. Acharya on behalf of the workmen conceded that he was not in a position to support the view of the Fifth Industrial Tribunal in this respect; he contended, however, that the Industrial Tribunal had in each case considered the justification for absence without leave, and in view of the circumstance that the men were in custody, the Company was not justified in refusing leave. This contention found favour with the Labour Appellate Tribunal. The point is now covered by a decision of this Court: Burn and Co., Calcutta vs Their Employees (1). in that case one Ashimananda Bannerji was arrested tinder the West Bengal Security Act and detained in jail from January 25, 1949, to April '5, 1949. The Company terminated his services on April 22, 1949, on the ground of continued absence. The Appellate Tribunal Ordered his reinstatement on the ground that he had been discharged without a charge and without holding (1) ; , 798. 682 an enquiry. This Court observed: "We are unable to agree with this decision. The ground of discharge is the continued absence of the employee, and his inability to do work, and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto. The order of the Appellate Tribunal is manifestly erroneous and must be set aside. " The same principle should apply in the present case. It is true that the arrested men were not in a position to come to their work, because they had been arrested by the police. This may be unfortunate for them; but it would be unjust to hold that in such, circumstances the Company must always give leave when an application for leave is made. If a large number of workmen are arrested by the authorities in charge of law and order by reason of their questionable activities in connection with a labour dispute, as in this case, the work of the Company will be paralysed if the Company is forced to give leave to all of them for a "more or less indefinite period. Such a principle will not be just; nor will it restore harmony between labour and capital or ensure normal flow of production. It is immaterial whether the charges on Which the workmen are arrested by the police are ultimately proved or not in a court of law. The Company must carry on its work and may find it impossible to do so if a large number of Workmen are absent. Whether in such circumstances leave should be granted or not must be left to the discretion of the employer. It may be readily accepted that if the workmen are arrested at the instance of the Company for the purpose of victimisation and in order to get rid of them on the ostensible pretext of continued absence, the position will be different. It will then be a colourable or mala fide exercise of power under the relevant Standing Order; that, however, is not the case here. We, are of the view that the two Tribunals below have misdirect ed themselves as to the true scope and effect of the "Standing Order in question, and their decision with regard to the seven workmen mentioned above cannot be supported. 683 We now turn to the two persons in the second category Samar Sen and Abharani Debi, remembering what we have already stated as to the exercise of our jurisdiction on an appeal by special leave. Samar Sen worked as the Manager of the Burnpur hotel, and one of the questions raised was if he was a 'workman ' within the meaning of the relevant provisions of the . At the relevant time, `workman ' was defined in the Act as follows: " Section 2(s). " workman " means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the Government. " The question is if Samar Sen did any clerical work for hire or his duties were merely supervisory in nature. Both the Tribunals have referred to the evidence on this point and have concurrently found that Samar Sen was a workman within the meaning of that word as used in the ; they have referred to Samar Sen 's own evidence which showed that he had to write ledgers, file correspondence, enter the cash book, etc. We see no reason to hold that the finding of the two Tribunals on this point is erroneous. On merits, the case against Samar Sen was that as a result of a regular and proper enquiry, he was found guilty of unauthorised absence and insubordination, etc., and, therefore, the Company dismissed him. The argument before us is that the Company having held a regular and proper enquiry in which Samar Sen had an opportunity of meeting the charges against him, it was for the Company to decide whether the charges had been proved and the Industrial Tribunal should not have interfered with the decision of the Company, unless it found that the decision was mala fide or amounted to victimisation. It is necessary to state here, in the words of the Fifth Industrial Tribunal, its finding about Samar Sen. The Industrial Tribunal said: 87 684 "Next, I consider the merit of the case. On the 6th July, 1953, he went on leave. On the 16th July, he applied for extension of leave for one month (vide exhibit 6). He got a reply from the Company on the 25th or 26th July, 1953. But as the Company refused his leave, he jointed on the 1st August, 1953, with a medical certificate of fitness. So practically he was within 14 days ' admissible grace period for joining one 's duty. When he was on leave, he was suffering from blood pressure and fever. The doctor advised him to take rest. Of course, he should have consulted the Companies ' doctor. But even if he had not done so, it did not matter as he was then on leave allowed by the Company. So where was his fault? Yes, his fault was that he was the Secretary of the Action Committee at that time. The Action Committee to the Companies was like a red rag to the bull. I find absolutely no reason why this man should be dismissed. So I set aside the order of dismissal passed against him, and order his reinstatement. I grant him compensation at half basic pay for the period of his forced unemployment. " The finding really amounts to this that Samar Sen was victimised as he was the Secretary of the Action Committee; he was really ill and the only fault he committed was that he did not consult the Company 's doctor. The learned Attorney General has very seriously contested the aforesaid finding of the Tribunal and taken us through the relevant evidence including Samar Sen 's own statements before the Enquiry Committee. He has pointed out that though Samar Sen was said to be suffering from fever and blood pressure, his statements before the Enquiry Committee showed that he was not taking complete rest as " advised by his doctor but was engaged in doing some " public work." The argument advanced by the learned Attorney General might have been urged acceptably to a Court or Tribunal of first instance; but we are not such a Court or Tribunal, and in the absence of exceptional or special circumstances or of grave injustice, we shall not be justified in interfering with what really is a finding of fact. 685 This brings us to the case of Abharani Debi, where also the same principles apply. She was a nurse in the Burnpur Hospital and the charge against her was that she had incited and instigated one Karu, a sweeper working in the hospital, not to attend his duties on the morning of September 5, 1953. An enquiry was held and she was found guilty of the charge. The Tribunal found that the charge against her was completely baseless, and the enquiry report against her made a mountain of a mole hill. She made some comments to Karu with regard to a pass which had been issued to Karu, and the comments innocuous in themselves were magnified into a charge of intimidation. It is significant that before the Labour Appellate Tribunal, the Company did not even argue the case of Abharani. Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere (i) when there is a want of good faith, (ii) when there is victimisation or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials the finding is completely baseless or perverse. In our view, Abharani 's case comes under, clause (iv) above. Lastly, we come to Himansu Chattoraj. The Company 's case against him was the following. It was alleged that since January, 1953, he incited other workmen to resort to 'slow down ' tactics. On March 28, 1953, he was charged that he took an active part in the ` slow down ' strike in the Hot Mills section, and he initiated such action and instigated others to do the same. On March 29, 1953, he submitted his explanation. On March 31, 1953, he was suspended pending enquiries. On April 3, 1953 and April 4, 1953, some 686 evidence was taken against several workmen including Chattoraj in the course of the enquiry, but the evidence not being of an overwhelming character against Chattoraj, the management postponed its decision pending further enquiry. In May 1953, the Sub divisional Magistrate promulgated an order under section 144, Criminal Procedure Code, in which Chattoraj was mentioned. In September, 1953, the dispute was referred to the Fifth Industrial Tribunal, which included the case of Chattoraj there being a suspension order against him. It was stated that an application under section 33 of the , was made for permission to dismiss Chattoraj for activities subsequent to the charge sheet of March 28, 1953. The Tribunal instead of dealing with that application made the following observations in its award regarding Himansu Chattoraj: " He was, therefore, charged on the 28th March, 1953, along with others. There was an enquiry. But as the evidence against this man was not overwhelming, the management postponed their decision for the time being. This man, however, continued his activities with the result that the Sub divisional Officer of Asansol promulgated an order under section 144, Cr. P.C., on the 15th May, 1953, and in which order his name was mentioned. This workman was again obstructing the loyal workers after the lock out had been lifted. So in view of the above, the Companies decided to terminate his services. But it could not take any direct action as his case was referred to the Tribunal. So the position is that the charge sheet on which this man was sought to be punished was not proved even according to the Companies ' own version. For his other activities there is no charge sheet. In such circumstances I do not think that the Companies were entitled to dismiss him. So regard being had to this aspect of the matter, I order his reinstatement. But as I am satisfied that. this man indulged in activities which were prejudicial to the interest of the Companies, I do not allow him any compensation during the period of his forced unemployment consequent upon suspension. This period 687 of unemployment should be treated as leave without pay. He must be reinstated as soon as the award becomes operative." The Appellate Tribunal dealt with the case of this man very summarily by saying that his reinstatement was not open to any objection. Before us, it has been argued that the decision that Himansu Chattoraj should be reinstated is vitiated by a basic error. The only formal order against him was the order of suspension, which was certainly a valid order. The Industrial Tribunal found that Chattoraj indulged in activities prejudicial to the Company and it is now recognised that deliberate 'slow down ' tactics and an incitement to other workmen to adopt such tactics both amount to misconduct. The lower Tribunal was apparently satisfied that Chattoraj was guilty of such misconduct; yet it held that the charge sheet on which Chattoraj was suspended had not been proved. If the order of suspension was the only subject if reference, so far as Chattoraj was concerned, the Tribunal could not order his reinstatement till the enquiry was completed. If, on the contrary, the Tribunal proceeded on the footing that the company had decided to terminate the services of Chattoraj on the ground of his prejudicial and subversive activities then on being satisfied that Chattoraj was guilty of such activities the proper order would have been to give the Company permission to dismiss Chattoraj. In either view, the order of his reinstatement is unjustified. Only a few words are necessary to dispose of Civil Appeal 337. The Tribunal had considered the case of each workman under the four categories mentioned previously and had refused reinstatement to those against whom it found that the Company had good reasons for dismissal. Mr. Acharya has not been able to satisfy us that the Tribunals below committed any error with regard to the appellants of this appeal. He has pressed the case of two persons Akka Hossain and D. P. Das. Against Akka Hossain there was a charge for slow down tactics; later he was charged with assaulting the Company 's driver. Though he was acquitted in a criminal proceeding, the Tribunal 688 found that the decision of the Company to terminate his services was justified. D. P. Das absented himself from duty from July 5, 1953, and was absent without leave for more than 14 days. His case was fully considered by the Tribunal, which found that his services were rightly terminated under the Standing Orders of the Company. The result of the foregoing discussion is this: Civil Appeal 44, Civil Appeal 45 and Civil Appeal 337 are without merit and must be dismissed. Civil Appeal 336 succeeds in part, and the decision of the Tribunals below is set aside in respect of the following eight men, only (1) Bamapada Mukherji (2) Chandrasekhar Mukherji, (3) Niaz Hossain, (4)Dhani Ram, (5) Chandrabhan Sing, (6) Raja Sing, (7) Jai Kishore Sing, and (8) Himansu Chattoraj. In all other respects, the decision appealed from will stand. In the peculiar circumstances of this case, the parties will bear their own costs here. Appeal No. 336 partly allowed. Others dismissed. [/INST]The landlord respondent filed a suit against the appel lant tenant for contravention of Section 13(1)(a) of West Bengal Premises Act, 1956 for sub letting without his writ ten consent by parting with the possession of two rooms out of the four rooms of the premises in question to the sub tenant who had established a tailoring business therein. The trial court held that there was evidence of a sewing machine being used, that the sub tenant was occupying the suit premises for tailoring business, and that it was for the tenant to establish that the sub tenant had not been induct ed as a sub tenant and that he had given shelter to a help less man. In the absence of the evidence of the sub tenant, the trial court drew the inference that there was sub tenan cy. The first appellate court upheld the finding of the trial court, and the High Court, in appeal, did not inter fere with the findings of the courts below. In the appeal before this Court, it was contended that the question of sub tenancy in a situation like the present case is an inference to be drawn from a certain conduct, and that the question was whether the sub tenant was in exclu sive possession of the part of the premises or whether the tenant had retained no control or that part of the premises. 681 Allowing the appeal, this Court, HELD: 1. In order to prove tenancy or sub tenancy, two ingredients had to be established, firstly, the tenant must have exclusive right of possession or interest in the prem ises or part of the premises in question and secondly, that right must be in lieu of payment of some compensation or rent. [684G] 2.1 In view of the provisions of Rent Act, services cannot be consideration for sub lease. [686B] 2.2 Services in lieu of the right of occupation would not amount to receipt of rent under the Rent Act to create sub tenancy. Work performed by sub tenants and the wages paid by doing certain kind of services may be in lieu of rent as in the case of Agricultural Tenancies. But in urban area in civilised time that cannot be so. The Rent Act, 1956 cannot be fitted into a position where the services can be rendered in exchange of the right of occupation. [687D, E] 3. In the second appeal, no court should interfere with the concurrent findings of fact. [684F] Normally, this court is too reluctant to interfere with the concurrent findings of fact. But if the essential ingre dients necessary for finding of a fact have not in fact been found by the courts below then this court is bound to exam ine the question where injustice or wrong is done. That jurisdiction has to be exercised sparingly but, that cannot mean that injustice must be perpetuated because it has been done two or three times in a case. The burden of showing that a concurrent decision of two or more courts or tribu nals is manifestly unjust lies on the appellant but once that burden is discharged, it is not only the right but the duty of the Supreme Court to remedy the injustice. [687F, 688A] In the instant case, as there is no finding of exclusive possession nor of any payment of money in exchange of the user of the part of the premises the finding of subletting cannot in law be upheld. As the sewing machine in question was used as a part of the apparatus of the appellant in the facts of this case it could not be said to have been used separately or independently and cannot constitute a change of user as defined in Section 13(1)(h) of the Rent Act. [688B C] [Justice of the case demands increase of rent. The appellant has been in occupation since 1972 at a monthly rent of Rs.250. By present 682 standards, this is wholly inadequate. The appellant shall pay at least Rs.350 per month from 1st August, 87. If the standard rent is more, then the respondent will be at liber ty to apply for increasing the rent. [688D] Smt. Krishnawati vs Shri Hans Raj, ; ; Associated Hotels of India Ltd. Delhi vs S.B. Sardar Ranjit Singh, ; ; Sachindra Nath Shah vs Santosh Kumar Bhattacharya, A.I.R. 1987 SC 409; Barnes & Another vs Barratt and another, and M/s Variety Emporium vs V.R.M. Mohd. Ibrahim Naina, A.I.R. 1985, SC. 207, referred to. </s>

<s>[INST] Summarize the judgementminal Appeal Nos. 139 to 141 of 1968. Appeals by special leave from the judgments and orders dated January 31, 1968 of the Punjab and Haryana High Court in Criminal Appeals Nos. 653, 655 and 654 of 1967 respectively. R. L. Kohli, for the appellants (in all the appeals). Harbans Singh, for the resondent (in all the appeals). The Judgment of the Court was delivered by Grover, J. Hazara Singh, his brothers Bachan Singh and Jamail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under section 148 of the Indian Penal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to murder the police party, while these persons were armed with deadly weapons Eke pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964. Hazara Singh and Bhajan Singh were also charged under section 307, Indian Penal Code, while the other four were charged under section 307 read with section 149 of the Code for Hazara Singh and Bhajan Singh having fired pistol shots at the police party with such intention and under such circumstances that if they had there by caused the death of any member of the police party they would have been guilty of murder. Hazara Singh and Bhajan Singh were further tried on a charge under section 25 of the Indian Arms Act. The learned Sessions Judge found that all the six persons were proceeding towards Pakistan in order to smuggle six bags containing 40 Kg. cardamom each. Hazara Singh and Bhajan Singh were armed with a rifle and a pistol respectively and when challenged by the police party they fired shots from their weapons at the police party in their attempt to murder them in pursuance of the common object of them all and as such they were guilty of an offence under section 148 of the Indian Penal Code. They were con 676 victed and sentenced to one year 's rigorous imprisonment on that count. Hazara Singh and Bhajan Singh were found guilty of the offence under section 307 of the Indian Penal Code while their co accused were found guilty of the offence under sections 307 and 149, Indian Penal Code, and each one of them was sentenced to rigorous imprisonment for a period of five years and payment of a fine of Rs. 5001. The sentences were to run concurrently. Bhajan Singh and Hazara Singh were further found guilty of the illegal possession of firearms under section 25 of the Arms Act and were sentenced to rigorous imprisonment for one year each. On appeals to the High Court the conviction of the aforesaid persons was upheld but the sentences of Bachan Singh, Jarnail Singh, Baj Singh and Balwant Singh were reduced to three years ' rigorous imprisonment. All the convicted persons have filed appeals to this Court (Cr. 139 141/68) by special leave. These shall stand disposed of by this judgment. The prosecution story was that Inderjit Singh P.W. I who was posted as Deputy Superintendent of Police P.A.P. Border, Khem Karan, had received information on 31st July 1964 that a party of smugglers would be smuggling some goods to Pakistan during the night. He organised a raiding party consisting of Sub Inspector Ajit Singh P.W. 1,5, Agya Ram P.W. 12, A.S.1s. Darshan Singh, Nand Singh and Mulakh Raj, Head Constables Surjit Singh P.W. 3, and Ajai Singh P.W. 13. The entire raiding party was divided into four groups. Each group was headed by one of the officers including Inderjit Singh D.S.P. At about midnight the police party noticed some persons coining from the side of village Lakhna by the katcha path with some mares. The path led to Pakistan. It was a moonlit night but was cloudy at that time. It is unnecessary to go into the details which will be presently noticed of how the firing of the shots took place by the accused persons and how they were identified and arrested. Four of them were taken into custody at the spot but Hazara Singh and Bhajan Singh escaped on their mares ' They were arrested later and on their disclosure a rifle and 'a revolver were recovered. No one was injured and although some empty cartridges were found but no attempt was made to find the bullets which are alleged to have been fired by the party of the appellants. The evidence of the police officers was consistent and we may only refer to the deposition of Inderjit Singh D.S.P. who appeared as P.W. 1 According to him when the culprits were at a distance of 25 to 30 karams (One karam is equal to 5 67 7 feet) he alerted members of the police party to be on their guard and directed Sub Inspector Ajit Singh to challenge the culprits and inform them that the police party was holding its positions and they should stop proceeding further. Ajit Singh accordingly challenged the culprits. Thereupon the, leader of the party fired a shot at the police party. Inderjit Singh then ordered Sub Inspector Agya Ram to fire a light pistol so that there might be light and it might be possible to identify the culprits. Agya Ram fired a shot and in the light that emerged the leader of the party was identified as Hazara Singh appellant who was riding a mare and who had a rifle in his hand. He was followed by Bhajan Singh or Harbhajan Singh who also was riding a mare and had a loaded, bag and was armed with pistol. He was followed by the other four on foot. These persons then shouted to their companions Hazara Singh and Bhajan Singh that they should open fire on the police party. Thereupon Hazara Singh and ' Bhajan Singh started firing shots from their respective weapons. Sub Inspector Ajit Singh ordered the police party to open fire in defence. Four Head Constables fired two shots each from their rifles at the culprits. At this stage Agya Ram fired another light pistol shot. Hazara Singh and Bhajan Singh ran away on their mares throwing away the bags. The other four persons were found lying down on the ground. There can be no manner of doubt that if Hazara Singh and Bhajan Singh fired shots at the police party and even though no one was injured the appellants would be guilty of the offences with which they were charged. The real question is whether it had been proved beyond doubt that the shots were fired at the police party. There could be two possibilities in such a situation, one could be of the shots being fined in the direction of the police party or taking aim at them and the other could be of the shots being fired in the air or in some other direction and not in the direction of the police party merely to create confusion for the purpose of running away. On the evidence of Inderjit Singh P.W. 1 himself it was a moonlit night but owing to the weather being cloudy it was dark and light pistol shots bad to be fired by Sub Inspector Agya Ram on two occasions in order to provide sufficient light for seeing and identifying them. The light provided by these pistol shots admittedly lasted only for 2 or 2 1/2 seconds. If the shots which are alleged to have been fired by Hazara Singh and Bhajan Singh had been fired,at the time when there was light as a result of the firing of the light pistol shots by Sub Inspector Agya Ram then it could be said to have been established that the Deputy Superintendent of Police and the other witnesses could have seen in which direction the fire arms were fired by Hazara Singh and 678 Bhajan Singh and their statement could have been accepted that ,the shots had been fired at them. But from the evidence of Inderjit Singh as also of Sub Inspector Agya Ram who actually fired the light pistol shots which provided the light on two occasions it is quite clear that the shots which were fired by Hazara Singh and Bhajan Singh were not fired during the few seconds there was light as a result of the light pistol shots of Agya Ram. In other words the shots which are stated to have been fired by the aforesaid two appellants were fired in complete darkness when it was not possible for any member of the police party to see the direction in which they were fired or the aim which was taken by Hazara Singh and Bhajan Singh. It is not possible to say from this evidence that Hazara Singh and Bhajan Singh fired the shoots in the direction of the police party or at them, and the possibility that the shots were fired in the air cannot be excluded. Thus the conviction under section 307 of Hazara Singh and Bhajan Singh and of the other appellants under section 307 read with section 149, Indian Penal Code cannot be maintained and they must ' be acquitted of that charge. It is unfortunate that the judgment of the High Court ' is very sketchy and there is hardly any discussion or examination of all the above material facts. As regards, the conviction of the appellants under section 148 of the Indian Penal Code we find it difficult to uphold the same. According to that section whoever is guilty of rioting being armed with deadly weapons or with anything which used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Rioting is defined by section 146 which provides that whenever force or violence is used by an unlawful assembly or any member thereof in prosecution of the common object of such assembly every member of such assembly is guilty of the offence of rioting. Section 349 gives the meaning of the word "force". The learned counsel for the State has not been able to show how any force or violence is proved to have been used by the appellants in prosecution of the common object of the unlawful assembly of which they were members. With the exception of the firing of the shots in a direction which cannot be determined no attempt was made by any of the appellants to use any force or violence on any member of the police party. Consequently the conviction of the appellants under section 148 must also be set aside. As regards the conviction of Hazara Singh and Bhajan Singh under section 25 of the Indian Arms Act it is most unfortunate that the witnesses who were produced with regard to the disclosure statements made by them and the recoveries effected at their 6 7 9 instance are of such a type that their evidence could never have been believed by any court. Lal Singh P.W. and Karnail Singh P.W. admitted that they had been joining in the police raids and had been appearing as witnesses for the police for the last 15 years. Apart from that the statements made by them were so similar particularly with regard 'to the manner in which they happened to join the investigation that their whole evidence looks tutored and unconvincing. P.W.11 Hakam Singh admitted that Pooran Singh was the son of his cousin Geja Singh and that he had been convicted in a case of murder and sentenced to life imprisonment. Charan Singh, uncle of the two appellants had appeared as a witness against Pooran Singh in that case. He was obviously an inimical witness. It is again surprising that the High Court in its very sketchy judgment had made no mention of these salient facts and has contended itself by saying that there was nothing on the record to indicate that the appel lants had been falsely implicated. The conviction of Hazara Singh and Bhajan Singh, therefore, cannot be maintained under section 25 of the Arms Act. In the, result the appeals are allowed and the convictions and sentences of all the appellants are here by set aside. The bail bonds of the appellants who were ordered to be released on bail by this Court on July 15, 1968 shall stand discharged. [/INST]The first respondent applied to the Deputy Commissioner, Lakhimpur for settlement of a Tea Garden for "special cultivation of tea". In March, 1964 the Government of Assam permitted the settlement on payment of Rs. 3.86 lakhs as premium. Upon the respondent failing to make payment of the amount, the State Government directed the auction of the tea garden. The first respondent thereafter moved a petition in the High Court for a declaration inter alia that the State Government had acted illegally in fixing the amount of premium. The High Court allowed the petition holding that the order fixing the premium was not in conformity with rule 40 framed under the Assam Land Revenue Regulations which required the State Government to fix the rate of premium for a particular locality; it did not empower the Government to fix the premium payable by an intending holder in a particular case. On appeal to this Court, HELD : The High Court was in error in setting aside the order passed by the Government of Assam and in declaring that the offer to settle the tea garden on payment of the amount specified Rs. 3,86,000 was not in conformity with rule 40. There was no warrant for the assumption made by the _High Court that in settling the premium to be fixed in respect of its own property, the Government is bound to fix the premium generally in respect of a region. The Government is by the Act or the Rules not disqualified from fixing the premium to be paid in respect of an individual tea garden. In the absence of any indication to the contrary a tea garden may appropriately be regarded as a locality within the meaning of Rule 40. The rate of premium may be fixed by the State Government acccording to its commercial value. </s>

<s>[INST] Summarize the judgementCTION: Civil Appeal No. 398890 of 1988. From Order No. 590 592/1988 dated 18.8.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos. E 375/84 D, S.A. No. 991/88 D & 992/88 D with C.O. No. 283/ 84 D. V. Lakshmikumaran, Madhava Rao and V. Balachandran for the Appellant. A.K. Ganguli and P. Parmeshwaran for the Respondent. Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal under section 35L of the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ') against the judgment and order dated 18th August, 1988 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (hereinafter re ferred to as 'the tribunal '). The appellant was at all relevant times engaged in the manufacture, inter alia, of polyester fibre (man made) failing under tariff item 18 of the erstwhile Central Excise Tariff. In the manufacture of the aforesaid, the appellant was using, amongst other inputs, ethylene glycol and DMT (Dimethyl Tetraphthalate) duty paid ethylene glycol falling under tariff item No. 68 of the erstwhile Central Excise Tariff received by the appellant and used in the manufac ture. The notification No. 201/79 dated 4.6.79, mentioned hereinafter, exempted, according to the appellant, all excisable goods on which duty of excise was leviable and in the manufacture of which any goods falling under tariff item 68 had been used, from so much of the duty of excise as was equivalent to the duty of excise paid on the inputs. The appellants claimed set off of duty on ethylene glycol used in the manufacture of polyester fibre under notification No. 201/79 dt. 23.6.1979. In response to the appellant 's seeking set off the duty paid on ethylene glycol, they received a letter from the Assistant Collector of Central Excise, Ghaziabad, dated 6th August, 1980 by which the Asstt. Col lector held that no proforma credit was allowable in respect of ethylene glycol for the following: (a) Methanol which is not excisable and is cleared without pay 266 ment of duty; (b) Glycol residual waste which was being destroyed by the appellants by throwing in the field; and (c) Polyester fibre waste which was used in the recovery of DMT and exempt from payment of duty under Central Excise Notification dt. 19th May, 1976. The appellants were further directed to furnish the exact percentage of ethylene glycol content used/consumed in the methanol, the ethylene glycol residual waste and polyes ter fibre waste; and that not to utilise the proforma credit or set off credit till the data was furnished and the same was authenticated by the Chemical Engineer. The classifica tion list submitted by the appellants was modified in terms of the said letter. Thereafter, classification list was filed claiming set off of duty on ethylene glycol falling under tariff item 68 under exemption notification No. 201/79 as amended by noti fication No. 102/81 dt. 13th May, 1981. By this amended notification, a second proviso was added which provided that the credit of the duty allowed in respect of inputs could not be denied or varied on the ground that part of thee input was contained in any waste, refuge or by product arising during the manufacture, irrespective of the fact that such waste, refuse or byproduce was exempt from the whole of duty of excise leviable thereon or was chargeable to nil rate of duty. Hence, it is the case of the appellants that from 11th April, 1981 even though some part of the input may be con tained in any waste, refuge or by product which is charge able to nil rate of duty, the credit of the duty paid on the inputs could not be denied. By this order the set off of duty in respect of duty paid ethylene glycol was allowed from 11th April, 1981 onwards except in the case of ethylene glycol used/ consumed in polyester waste used for recovery of DMT on the ground that this polyester waste was charge able to nil rate of duty. Similarly, duty paid on ethylene glycol which was used for recovery of DMT was held not to be allowable while paying duty on polyester fibre. Aggrieved thereby, an appeal against the said order to the Collector of Central Excise, Ghaziabad was filed. The main contentions of the appellants were that the ethylene glycon received in the factory after payment of duty was consumed in the manufacture of polyester fibre only. During the course of manufacture of polyester fibre, two basic raw materials DMT and Glycol interact and thereby certain waste comes into existence. This 267 waste is recycled with glycol for the recovery of DMT in DMT recovery plant, within the factory. Hence, the entire set off of duty was to be allowed since no part of DMT produced was diverted for any other use other than production of polyester fibre nor was it taken outside the factory. The appellants contended that in case of proforma credit proce dure under rule 56 A of the Central Excise Rules, clarifica tion had been issued by the Collector of Central Excise, under trade notice No. 72 CE/80 dt. 1980 to the effect that proforma credit is permissible even where at an in termediate state of manufacture, a final product which is fully exempt from duty comes into being, provided that the fully exempted product is consumed in the production or manufacture of the finished product. This trade notice categorically states that this clarification would also be applicable to exemption notification No. 201/79. By an order dated 17th November, 1981 the Asstt. Collec tor held that the appellants were entitled to credit of duty paid on the ethylene glycol only to the extent of the per centage content as determined by the Chief Chemical Engi neer, CRCL, New Delhi. The order covered the period from 17.7.1979 to 10.4. As mentioned before, the notification was amended from 11th April, 1981 whereby the credit of the duty on any inputs was not to be denied to any waste, refuse or by product arising during the manufacture of the output irre spective of whether the waste, refuse or by product was chargeable to nil rate of duty or not. By a letter dated 27th November, 1981 the appellants were informed that set off for Rs. 15,41,673.60 was inadmis sible. By a subsequent letter of the Superintendent of Central Excise, Ghaziabad, dated 17th December, 1981 it was stated to the appellant that they had received Rs. 15,42,740.16 as set off which was inadmissible. The period mentioned was 17.7.1979 to 10.4.1981. The appellants case was that this related only to ethylene glycol content in methanol. There was a second appeal preferred to the Collector of Central Excise, Delhi, against the order dated 17.11.1981 of the Asstt. Collector disallowing the set off of duty credit paid on ethylene glycol content in methanol and ethylene glycol waste and polyester fibre waste. A third appeal was filed before the Collector (Appeals) against the duty demand of Rs. 15.42,740.16. Thereafter, the appellants received a letter dated 23rd April, 268 1983 from the Superintendent of Central Excise which stated that the stand of the appellants that the ethylene glycol contribute only H positive and not OH negative, has been accepted by the Chief Chemical Engineer, CERL, New Delhi. Consequently, since the ethylene glycol content in the methanoi, wherein the ethylene glycol contribute only H positive and not OH negative ions, the amount of inadmissi ble set off would stand reduced to Rs.90,749,76. The aforesaid three appeals were decided by the 'Collec tor of Central Excise (Appeals), by passing a single order dated 15th December, 1983, wherein he observed that the procedure under notification No. 20 1/79 was materially the same as the procedure under rule 56A and in the circum stances allowed all the appeals and set aside the Asstt. Collector 's order and the demands. Aggrieved thereby, the revenue went up in appeal before the tribunal. The tribunal after examining the aforesaid contentions noted the contention of the parties. It was the case of the revenue that prior to 1 Ith April, 1981 there was no provision in notification No. 201/79 entitling the manufacturer to obtain credit of the duty of excise already paid on the inputs resulting in waste or by product or refuge which arose in the manufacture of excisable products which used the inputs. Hence, it was argued that the duty element in the quantity of glycol which was contained in the glycol residual waster, polyester fibre waste and methanoi (by product) which was non excisable, did not qualify for credit which could be subsequently used for discharging duty liability on dutiable finished product. The provision con tained in notification No. 102/81 was not available prior to 11th April, 1981 it was submitted on behalf of revenue. It was further submitted that the trade notice issued by Pune Collectorate pertained to rule 56 A only and not to the notificaion. It was further submitted that the rule and notifications are different enactments and the provisions of one cannot be read into another even after 11th April, 1981 and the exemption was only in respect of duty on inputs in the manufacture of excisable goods and their waste, by product or refuge. It was submitted that since methanol was not excisable, it was not eligible for set off of duty on the glycol content in its manufature. On behalf of the appellants, however, it was contended that glycol is used totally in the production of polyester fibre. methanol results out of the reaction of DMT and glycol; and that the Government always maintained parity between rule 56 A and notification No. 201/79, hence, the appellants were eligible to full set off. On behalf of the appellants reliance was placed on the decision of the High Court of Bombay in Indian Aluminium Co. 269 Ltd. & Anr. vs A.K. Bandyopadhyay & Ors., The question that the tribunal had to decide was whether the set off of duty paid on inputs was admissible only if the finished excisable goods manufactured therefrom, was not exempted from duty. The process of manufacture and the out come of ethynol are not in dispute. The tribunal was of the view that the judgment of the Bombay High Court had held that dross skimmings thrown off in the process of manufac ture and aluminium sheets were not end products or finished or by products merely because such refuge might fetch some price in the market. The High Court had further held that proviso to sub rule 56 A will have no application and the skimmings cannot be said to be finished excisable goods. These were not exempted from the whole of duty of excise or chargeable to nil rate of duty whereas the sub rule pre scribed that the credit is admissible if the material is used in the manufacture of finished goods which are exempt from duty or are chargeable to nil rate of duty. The Tribu nal was of the opinion that the factual background 'of the case before the Bombay High court was different and there fore, it was of the opinion that the said decision was not applicable in the instant case. The Tribunal was of the opinion that the revenue was right that rule 56A and notification No. 201/79 were differ ent enactments and the amendment to one could not be read into the other. In that view of the matter, the Tribunal was of the view that the Collector 's observation that the proce dure under notification No.201/79 was materially the same as the procedure under rule 56A and consequently the amending notification deemed to have retrospective effect was not, in the absence of any such indication, acceptable. In the premises, the Tribunal allowed the appeals and rejected the cross objection. The question involved in these appeals, is whether the Tribunal was right. On behalf of the appellants, Shri V. Lakshmikumaran contended that the Tribunal failed to appre ciate that the provisions of rule 56A and notification No. 201/79 were para materia. It appears to us that the provi sions of rule 56A and the notification No. 201/79 are iden tical. The relevant provisions of Rule 56A are as follows: "56A(1) . . 56A(2) The Collector may, on application made in this behalf and subject to the conditions mentioned in sub rule (3) and such other conditions as may, from time to time, be prescribed by the Central Government, permit a manu 270 facturer of any excisable goods specified under sub rule (1) to receive material or component parts of finished product (like Asbestos Cement), on which the duty of excise or the additional duty under section 3 of the (51 of 1975) (herein after referred to as the countervailing duty), has been paid in his factory for the manufac ture of these goods or the more convenient distribution of finished product and allow a credit of the duty already paid on such mate rial or component parts or finished product, as the case may be: Provided that no credit of duty shall be allowed in respect of any material or compo nent parts used in the manufacture of finished excisable goods (i) if such finished excisable goods produced by the manufacturer are exempt from the whole of the duty of excise leviable thereon or are chargeable to 'nil ' rate of duty, and (ii) . . Explanation. Credit of the duty allowed in respect of any material or component parts shall not be denied or varied on the ground that part of such material or component parts is contained in any waste, refuse or by product arising during the process of manufac ture of the finished excisable goods irrespec tive of the fact that such waste, refuse or by product is exempt from the whole of the duty of excise leviable thereon or is charge able to nil rate of duty or is not notified under sub rule ( 1): Provided . . The notification No. 20 1/79 prior to 1 Ith April, 1981 in so far as relevant for the present purpose was as follows: "Set off of duty on all exciseable goods on use of duty paid goods falling under Item 68 (Tariff Items I to 68): In exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, and in supersession of the notification of the Gov ernment of India in the Ministry of Finance (Department of Revenue) No. 178/77 Central Excise, dated the 18th June, 1977, the Central Government 271 hereby exempts all excisable goods (hereinaf ter referred as "the said goods"), on which the duty of excise is leviable and in the manufacture of which any goods falling under Item No. 68 of the first Schedule to the (1 of 1944) (hereinafter referred as "the inputs") have been used, from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs: Provided that the procedure set out in the Appendix to this notification is followed: Provided further that nothing contained in this notification shall apply to the said goods which were exempted from the whole of the duty of excise leviable thereon or are chargeable to nil rate of duty." The amending notification No. 102/81 dated 11th April, 1981 is as follows: "Provided also that credit of the duty allowed in respect of the inputs shall not be denied or varied on the ground that part of such inputs is contained in any waste, refuse or by product arising during the process of manufacture of the said goods, irrespective of the fact that such waste, refuse or by product is exempt from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty or is not mentioned in the declaration referred to in the Appendix to this notifica tion." Central Board of Excise & Customs issued Circular No. 6/81CX. 6, dated 31st January, 1981, which reads as follows: "Central Excise Rule 56A Proforma Credit of duty paid on material/component parts con tained in waste, refuse or by product arising during the process of manufacture regarding. A doubt has been raised whether proforma credit of duty paid on material/component parts used in manufacture of the finished excisable goods notified under rule 56A of the Central Excise Rules, 1944, is to be denied to the extent such material or component parts are contained in any 272 waste, refuse or by product arising during the process of manufacture of the notified fin ished excisable goods on the grounds that such waste, refuse or by product is either fully exempt from duty or not notified under sub rule (1) of rule 56A. 2. Since the Government 's intention has been not to deny the benefit of proforma credit in such situation, an Explanation has been added to sub rule (2) of rule 56A, so as to remove the ambiguity in the rule. Notification No. 8/8 I CE dated 31.1. 1981 amending rule 56 A is enclosed. It may, however, be noticed that such credit cannot be utilised for payment of duty leviable on such waste, refuse or by product. " On an analysis and comparison of aforesaid, it is clear that the clarification in the form of trade notice issued by the Pune Collectorate in respect of rule 56A was as much applicable to that rule as to notification No. 20 1/79. In the premises, it is clear that the Tribunal should have held that even though a part of the ethylene glycol was contained in the by product methanoi, yet the credit of duty could not be reduced to the extent of the ethylene gIycol contained in the mathanoi as ineligible. It is true that when in a fiscal provision, if benefit of exemption is to be considered, this should be strictly considered. But the strictness of the construction of exemption notification does not mean that the full effect to the exemption notification should not be given by any circuitous process of interpretation. After all, exemption notifications are meant to be implemented and trade notices in these matters clarify the stand of the Government for the trade. It is clear, therefore, that the Tribunal failed to interpret the words of the exemption notification No. 201/79 properly and fully. The said notifi cation exempted all excisable goods on which the duty of excise was leviable and in the manufacture of which any goods falling under Tariff Item 68 (i.e. inputs) had been used from so much of the duty of excise leviable thereon as was equivalent to the duty of excise already paid on the inputs. It is clear, however, that ethylene glycol was used in the manufacture of polyester fibre. It appears that methanoi arises as a part and parcel of the chemical reac tion during the process of manufacture when ethylene glycol interacts with DMT to produce polyester fibre. It is not possible to use a lesser quantum of the ethylene glycol to prevent methanoi from arising for producing a certain quan tity of polyester fibre. Thus, the quantity of ethylene glycol required to produce a certain quantum of polyester fibre is determined 273 by the chemical reaction. It may be mentioned herein that it is not as if the appellants have used excess ethylene glycol wantonly to produce the methanol. It is clear that the appellants are not engaged in the production of methanol but in the production of polyester fibre. That position is undisputed. Therefore, it appears that the Tribunal erred when it held that the appellants were not entitled to a part of the credit of duty since ethylene glycol when it inter acts with DMT also gives rise to methanoi. This construction would frustrate the object of exemption if something which evidently arises out of the interaction is denied Credit. Even prior to amendment to notification No. 201/79 with effect from 1 Ith April, 1987, the only situation where the credit of the duty paid on the inputs could be denied was only where the final products were wholely exempt from the duty of excise or chargeable to nil rate of duty. In the present case, the excisable goods, namely, polyester fibre were not wholely exempt from duty nor chargeable to nil rate of duty. It cannot be read in the notification that the notification would not be available in case non excisable goods arise during the course of manufacture. In fact, the Tribunal seems to have erred in not bearing in mind that exemption notification was pressed in service in respect of polyester fibre which is excisable goods and not in respect of methanoi which arises as a by product as a part and parcel of chemical reaction. It appears further on a com parison of the rule 56A and the notification No. 20 1/79 that these deal with the identical situation. In this connection, reference may be made to the deci sion of the Bombay High Court in Indian Alurninium Co. and Anr. 's case (supra). In that case, the High Court came to the conclusion that dross and skimmings were merely the refuge, scum or rubbish thrown out in the process of manu facture of aluminium sheets and could not be said to be the result of treatment, labour or manipulation whereby a new and different article emerged with a distinctive name, character or use which can ordinarily come to the market to be bought and sold. The High Court further held in that case that merely because such refuse or scum may fetch some price in the market does not justify it being called a by product, much less an end product or a finished product. In the light of that fact, the High Court was of the view that in that case the end product was aluminium sheets manufactured from aluminium ingots and dross or skimmings. Therefore, the High Court was of the view that these were neither 'goods ' nor 'end products ' nor 'finished products ' liable to duty under item 27 of Central Excise Tariff. The High Court was of the view that under proviso to section 56 A (2) proforma credit was not admissible if the material is used in the manufac ture of finished excisable goods which are exempt from duty 274 or chargeable to nil rate of duty. Since dross and skimmings are mere 'ashes ', these could not be said to be finished excisable goods, nor they were exempt from the whole of duty of excise or chargeable to 'nil ' rate of duty. Therefore, proviso to sub rule (2) of rule 56A would not have any application. The High Court was of the view that refuse or skum thrown off during the process of manufacture could not by any stretch of imagination be considered as a by product and merely because such refuse or scum may fetch some price in the market they could not be said to be 'finished excisa ble goods '. Under rule 56A, the High Court was of the view, if the material is used in the manufacture of any finished excisable goods, and during the course of manufacture any non excisable by product emerged, then it could not be said that the raw material was not used in the manufacture of the finished excisable goods. In our opinion, the same analogy and reasoning would apply when the methanoi arises as a result of chemical reaction and not as a result of any by product. In the instant case, the methanoi was nonexcisable. Just because methanoi arises as a part and parcel of the chemical reac tion during the process of manufacture, it cannot be said that methanoi was not used in the manufacture of polyester fibre. The intention of the Government is evident further more, from the trade notice of Pune Collectorate No. 31/81. The Tribunal, therefore, should have taken into considera tion the trade notice for interpretation of exemption noti fication No. 201/79, which was para materia with rule 56A. In the aforesaid view of the matter, we are of the opinion that the Tribunal was in error in coming to the conclusion it did. The appeals are, therefore, allowed and the order and the judgment of the Tribunal are set aside and the combined orders of the Collector (Appeals) Nos. 284 286/CE/MT/83 dated 15th December, 1983 are restored. In the facts and the circumstances of the case, there will be no order as to costs. R.S.S. Appeals allowed. [/INST]The appellant was engaged in the manufacture of polyes ter fibre (man made) falling under tariff item 18 of the erstwhile Central Excise Tariff. In its manufacture, the appellant was using, among other things, ethylene glycol and DMT (Dimethyle Tetraphthalate) duty paid ethylene glycol falling under tariff item No. 68. During the course of manufacture of polyester fibre, two basic raw materials DMT and Glycol interact and thereby certain waste comes into existence. This interaction also gave rise to methanol, a by product. Notification No. 201/79 dated 4.6.1979 exempted all excisable goods on which duty of excise was leviable and in the manufacture of which any goods failing under tariff item 68 had been used, from so much of the duty of excise as was equivalent to the duty of excise paid on the imputs. Exemption notification No. 201/79 was amended by notifi cation No. 102/81 with effect from 11th April, 1981. By this amended notification, a second proviso was added which provided that the credit of the duty allowed in respect of inputs could not be denied or varied on the ground that part of the inputs was contained in any waste, refuse or by product arising during the manufacture, irrespective of the fact that such waste, refuse or by product was exempt from the whole of duty of excise leviable thereon or was charge able to nil rate of duty. Earlier, in the case of proforma credit procedure under rule 56 A of the Central Excise Rules, clarification had been issued by the Collector of Central Excise, under trade notice dated 19.7.1980 to the effect that proforma credit was permissible even where at an intermediate state of manufacture, a final product which was fully exempt from duty came into being, provided that the fully exempted product was consumed in 263 the production or manufacture of the finished product. This trade notice categorically stated that the clarification would also be applicable to exemption notification No. 201/79. The appellant claimed set off of duty paid on ethylene glycol used in the manufacture of polyester fibre under notification No. 201/79. The Assistant Collector of Central Excise held on 6.8.1980 that no proforma credit was allowa ble in respect of ethylene glycol used/consumed in the methanol, the ethylene glycol residual waste and polyester fibre waste. The Collector of Central Excise (Appeals), however, allowed the appeals filed by the appellant and set aside the Assistant Collector 's order and the demands. The Collector observed that the procedure under notification No. 201/79 was materially the same as the procedure under rule 56A of the Central Excise Rule. The revenue went up in appeal before the Customs, Excise was contended on behalf of the revenue that prior to 11th April, 1981 there was no provision in notification No. 201/79 entitling the manufacturer to obtain credit of the duty of excise already paid on the inputs resulting in waste or by products or refuse which arose in the manufacture of excisable products which used the inputs; that the trade notice issued pertained to rule 56 A and not to the notifi cation; that the rule and notifications were different enactments and the provisions of one could not be read into another even after 11th April, 1981; that the exemption was only in respect of duty on inputs in the manufacture of excisable goods and their waste, by product or refuse; and that since methanol was not excisable, it was not eligible for set off of duty on the glycol content in its manufac ture. On behalf of the appellant, however, it was contended that glycol was used totally in the production of polyester fibre; that methanol resulted out of the reaction of DMT and glycol; and that the Government always maintained parity between rule 56 A and notification No. 201/79. The Tribunal was of the opinion that the Collector 's observation that the procedure under notification No. 201/79 was materially the same as the procedure under rule 56 A and consequently the amending notification deemed to have retro spective effect was not, in the absence of any such indica tion, acceptable. In the premises, the Tribunal allowed the appeals, of the Revenue. 264 Allowing the appeals, this Court, HELD: (1) On an analysis and comparison of the notifi cations No. 201/79, No. 102/81 and the circulars, it is clear that the clarification in the form of trade notice issued in respect of rule 56 A was as much applicable to that rule as to notification No. 201/79. [272D] (2) It is true that when in a fiscal provision, is benefit of exemption is to be considered, this ' should be strictly considered. But the strictness of the construction of exemption notification does not mean that the full effect to the exemption notification should not be given by any circuitous process of interpretation. After all, exemption notifications are meant to be implemented and trade notices in these matters clarify the stand of the Government for the trade. [272E F] (3) The quantity of ethylene glycol required to produce a certain quantum of polyester fibre is determined by the chemical reaction. It is not possible to use a lesser quan tum of the ethylene glycol to prevent methanol from arising for producing a certain quantity of polyester fibre. It is not as if the appellants have used excess ethylene glycol wantedly to produce the methanol. It is also clear that the appellants are not engaged in the production of methanol but in the production of polyester fibre. [272H; 273A] (4) The Tribunal, in the instant case, failed to inter pret the words of the exemption notification No. 201/79 properly and fully. The said notification exempted all excisable goods on which the duty of excise was leviable and in the manufacture of which any goods falling under Tariff Item No. 68 (i.e. inputs) had been used from so much of the duty of excise already paid on the inputs. The excisable goods, namely, polyester fibre, were not wholly exempt from duty nor chargeable to nil rate of duty. It cannot be read in the notification that the notification would not be available in case non excisable goods arise during he course of manufacture. In fact, the Tribunal seems to have erred in not bearing in mind that exemption notification was pressed in service in respect of polyester fibre which is excisable goods and not in respect of methanol which arises as a by product as a part and parcel of chemical reaction. It ap pears further on a comparison of the rule 56 a and the notification No. 201/79 that these deal with identical situations. [272F; 273C D] Indian Aluminium Co. Ltd. & Anr. A.K. Bandyopadhyay & Ors., , referred to. </s>

<s>[INST] Summarize the judgementAppeal No. 155 of 1971. (Appeal by Special Leave from the Judgment and Order dated 24 3 1975 of the Andhra Pradesh High Court in Appeal No. 19/72). B.V. Subrahmanyam and A. Subba Rao, for the Appellant. A. K. Sen, K.R. Chaudhary, Miss Nihar Saha and Mrs. Veena Devi Khanna, for the ReSpondent. The Judgment of the Court was delivered by BEG, J. This is a defendant 's appeal by special leave against the judgment of the High Court of Andhra Pradesh decreeing, with costs, the claim of the plaintiffs respond ents, the Andhra Pradesh State Electricity Board and the Andhra Pradesh State Government for Rs. 3,34,443.77 as arrears of electricity charges said to be due from the Vijayawada Municipal Council in respect of amounts which were shown in its books as payable to it by consumers of electricity. The plaintiff 's claim flowed from the terms of the Andhra Pradesh (Andhra Area) Electricity Supply Undertaking (Acquisition) Act 15 of 1954 (hereinafter refered to as 'the Act '), the provisions of which were applied to the electric ity undertaking of the appellant Municipal Council with effect from 22nd December, 1961,. by the Government of Andhra Pradesh. The rights of the State were transferred to the Andhra Pradesh Electricity Board the co plaintiff re spondent. The amounts claimed were shewn in the books of the Council 's electricity undertaking on the date of its acquisition as due to it from direct consumers of electric ity to whom it used to sell electricity supplied to it in bulk. The "Electricity undertaking" was taken over by the Government by an order under Section 4 (1 ) of the Act. This section provided: "4. Power of Government to take over any undertaking : (1 ) The Government may, in respect of any undertaking not taken over by them before the commencement of this Act, by order in writing, declare that it shall vest in them on the 848 date specified therein, such date not being earlier than four months from the date of the declaration :" The Municipal Council was the licensee from whom the "undertaking", as a commercial concern, was taken over. A licensee is de fined by section 2(j) to mean: " . a person licensed under part II of the Electricity Act to supply electricity energy, or a person who has obtained sanction under section 28 of that Act to engage in the business of supplying electricity and in relation to an undertaking taken over.or an undertaking which has vested in the Government under section 4 the person, who was the licen see at the time the undertaking was taken over or vested in the Government, as the case may be, and includes the successorin interest of any such person;" The State Electricity Board stepped into the shoes of the licensee on behalf of the State, to discharge all the existing obligations of the licensee, arising out of past transactions, and, for this reason, became entitled to the benefits of all contracts, whether they had accrued in the past or were to arise in future, which existed at the time of the taking over of the undertaking. The effect of the "taking over" of an undertaking and the vesting the rights and liabilities of the former licensee in the State, by operation of law, was indicated by sections 5 and 6 of the Act. Section 5 provided for compensation to be paid on one of three alternative bases specified in this provision. The licensee could opt for one of the three bases. The provisions of section 6(2) of the Act give the consequences of vesting. Section 6(2) of the Act enacts: "6(2) (a) If compensation is payable in respect of an undertaking under Basic C, only the property, rights liabilities and obliga tions specified herein shall vest or be deemed to have vested in the Government on the vest ing date : (i) all the fixed assets of the licensee and all the documents relating to the under taking; (ii) all the rights, liabilities and obligations of the licensee under hire pur chase agreements, if any, for the supply of materials or equipment made bonafide before the vesting date; (iii) all the rights, liabilities and obligations of the licensee under any other contract entered into bona fide before the vesting date, not being a contract relating to the borrowing or lending for money. (b) All the assets specified in clause (a) (i) shall vest or shall be deemed to have vested in the Government free from any debts, mortgages or similar obligations of the licen see or attaching to the undertaking. 849 Provided that such debts, mortgages or obligations shall attach or shall be deemed to have attached to the. compensation. payable under this Act for the assets". A glance at clause (2) (a) (iii) of section 6 indicates that it clearly provides for the vesting of "all the rights liabilities and obligations of the licensee" under contracts entered into "before the date of vesting". Therefore, we find no merit in the objection, on behalf of the Municipal Council, that past dues of consumers of electricity, shown in the books of Vijayawada Municipal Council, could not vest in the State Government, in a case in which basis C is applicable for compensation. The compensation provided by Section 5(3)(vi) applicable to basis 'C ' takes in "the book value of all intangible assets to the extent such value has not been written off in the books of the licensee". The result ' is that "the aggregate value" of all items speci fied in section 5(3), including items falling under sub clause (vi), became payable as compensation to the licensee on principle 's specified in the Act. The learned Counsel for the appellant has placed a great deal of reliance on the provi sions of Section 10(2)(b) (iii), which are applicable to cases of compensation payable on basis 'C '. Section 10 gives a list of deduc tions from compensation. One of the items of this ,deduction is found in section 10(2)(b)(iii) which lays down: "all sums paid by consumers by way of security deposit and arrears of interest due thereon on the vesting date, in so far as they have not been paid over by the licensee to the Government, less the amounts which according to the books of the licensee are due from the consumers to the licensee for energy supplied by him before that date;" The provision set out above is sought to be made the corner stone of the arguments of the learned Counsel for the Appel lant Municipal Council, although this very provision was held by the High Court to be decisive against the appel lant 's case that the amounts shown as due from the consumers of the licensee for energy supplied before the vesting date were claims for amounts which the Vijayawada Municipal Council was entitled to appropriate as they must be deemed to be exempted from the effects of vesting of rights and obligations of the undertaking in the State. It is true, as the learned Counsel for the Municipal Council points out, that only those rights and liabilities and obligations which are specified in section 6(2) (a) are to vest in the State Government. But, the contention based on alleged non specification of the claims of the licensee against direct consumers to whom it used to supply electric ity over looks, the sweep of section 6(2) (a) (iii), already indicated above, which will cover all rights and liabilities under contracts entered into bona fide before the date of vesting. It is not possible to assert that the rights of the Municipal Council to realise arrears of dues from the consumers will not be transferred to the State Government when they are covered by the specific language of section 6(2) (a) (iii). The 850 explicitly wide language used dispenses with the need to specify by enumerating all items which are covered by it. That is the very object of such language. We have also indicated how section 5(3)(vi), meant for application to basis 'C ', mentions all intangible rights shewn in the books of the licensee. This also supports the interpretation we place on section 6(2)(a)(iii) and on the wide ambit of the specification here which must, obviously, not conflict with section 5(3)(vi). We are, therefore, completely unimpressed by arguments based on supposed non specification of the claims of the former licensee under taking against consumers to whom it had supplied electricity in the past and against which it had claims which vested, from the specified date, in the State Government. Learned Counsel 's argument, on the meaning of Section 10(b) (iii), is really meant to reinforce the argument indicated above, based on alleged non specification of the claims of the Municipal Council as a licensee for supplying electrici ty to consumers. If the meaning of relevant provisions of section 5 and 6 is clear, we do not think that any assist ance could be derived ' by the appellant Municipal Council from the provisions of section 10(2)(b)(iii) unless these clearly conflicted with the other provisions. If, however, two interpretations were possible of these provisions, we should, we think, prefer the one which is in harmony with the clear meanings of the terms of section 5(3), read with section 6(2) (a) of the Act as indicated above. This is the salutary rule of construction resting upon the doctrine that a statute, like any other document, must be read as a whole to extract its meaning and intendment correctly. Learned Counsel for the appellant submits that the exclu sion by section 10(2)(b)(iii) of the amounts which, accord ing to the books of the licensee, "are due from the consum ers to the licensee for energy supplied by him before that date" (i.e. the date of vesting), from the ambit of deduc tions from compensation, necessarily implies that these amounts can be appropriated by the appellant Municipality. 'We are, quite unable to see how this inference follows from an exclusion from items of deduction from compensation. A deduction from an item of compensation may, if there was nothing else to furnish a clue as to its meaning, imply that it was not being compensated for because the party whose rights were acquired was retaining the item. But, an exclusion from an item of deduction from compensation itself could, according to its natural meaning, only indicate that this was being done because this was an item which is cov ered by the compensation provided for and to be paid. A close examination of section 10(2)(b)(iii) wilt show that it is meant for security deposits and arrears of inter est due on them which are generally held in trust by the licensee so as to be ultimately returned to the consumers, if the dues of the consumers have been met without resorting to the amounts deposited. They are used for a deduction of dues where these have not been paid; We know that these deposits are required so as to cover claims from defaulting consu 851 mers in order to avoid the trouble of litigating to enforce them. If these deposits have not been made over by the licensee to the Government, they will be claimable by the depositors from the licensee. Hence, it seems fair to deduct them from any item of compensation as these deposits are not meant to be kept by the licensee. They do not constitute profits of the business or price for anything supplied or payment for services rendered or an asset out of which liabilities of the licensee may be met. If, howev er, there are any amounts shewn in the books o[ the licensee as due from the consumers of energy supplied before the date of vesting, they would become realisable by the Govt. Hence, the amounts for which deductions from items of compensation will have to be made is reduced by the amounts which are due from consumers to the licensee for energy supplied by the licensee before the date of vesting as they become the claims realisable by the successor in interest of the licensee. Therefore, the High Court 's interpretation was, obviously, correct. This provision supports the case of the respondents rather than that of the former licensee Municipal body. It is very difficult to see how it supports the appellant 's case. It appears that no question was raised before 'the High Court as to the nature of the obligation incurred by the Municipal Council to pay the amount claimed apart from its right to appropriate the amount itself as part of the assets which had, it was asserted, not vested in the State Govern ment. An attempt was, however, made before us to confuse it with the payment made by the Municipal Council itself to the Government for the bulk supply of electricity used, inter alia, for street lighting and other purposes by the Council itself. But, no question was raised in the plead ings to indicate that the plaintiff 's claim included these past dues. We do find that the licensee had set up certain reasons for its inability to realise certain amounts from the consumers. We do not know what all these reasons precisely were or whether the licensee, was really unable to realise them for any of these reasons. But, ground No. 1 of the special leave petition shows that the Municipal Council had Rs. 9 lakhs with it in deposit for the recovery of the claims not realised from which it proposed to deduct the amounts claimable towards dues and to. appropriate them itself. The ground runs as follows: "In the instant; case the learned trial judge found that there was a deposit of 3 lakhs of rupees with the Vijayawada Municipal ity and the Vijayawada Municipality by virtue of section 10(2)(b)(iii) is certainly entitled to adjust and by virtue of section 10(2)(b)(iii) of the Act 15 of 1964, the Government can deduct that security from out of compensation less the amount due to the licensee from its consumers upto the vesting date. " We may also mention that it was not argued on behalf of the Municipal Council that what was vested in the Government was only the right to realise the claims itself and not an amount of money which the Municipal Council had actually realised or could have realised if 852 it took steps to make realisations. On the other hand, ground No. 1 of the grounds of appeal quoted above, shows that the case of the Municipal Council was simply that it is 'entitled to deduct amounts claimed from whatever may be the amounts in deposit be cause. the claims against the consumers had vested in the Municipal Council and not in the Government. We think that legal questions of interpretation of the Act, to which the learned Counsel for the parties rightly con fined their arguments, apart from some at tempts to raise questions outside the plead ings which could not succeed, were rightly answered by the High Court when it held that the relevant provisions, if correctly inter preted, meant that the claims for dues on electricity supplied at enhanced rates, the validity of which had been unsuccessfully challenged by some consumers in certain other proceedings initiated before filing of the suit now before us, had vested in the State Government. Consequently, we affirm the judgment and decree of the High Court and dismiss this appeal with costs. V.P.S. Appeal dismissed. [/INST]The respondents are the owner of a building known as Viram Lodge. They run a hotel in the said building. The annual gross rental value of the. building was determined at Rs. 6,600/ in 1956. It was revised to Rs. 43,405/ by the Assessment Officer in 1965. Section 138(b) of the Madhya Pradesh Municipal Corporation Act, 1956, provides that notwithstanding anything contained in any ,other law for the time being in force, the annual value of any building shall be deemed to be the gross annual rent at which such building might be reasonably at the time of assessment be expected to let from year to year at the time of the less an allowance of 10 per cent for repairs etc. The respondent challenged the valuation on the ground that the rental value of the premises could not be fixed at a rate higher than the stand ard rent under section 7 of the Madhya Pradesh Accommoda tion Control Act, 1961. The Municipal Commissioner negatived the respondents ' contention. An appeal filed by the respondents to the Additional District Judge also failed. The High Court however allowed the Revision filed by the respondents. Allowing the appeal by Special Leave held: 1. In the. present case the building in ques tion was never let on rent and is being used by the owners as a hotel. [1019 A] 2. On a proper construction of section 138(b) where the standard rent of a building has been fixed under section 7 of the Accommodation Control Act, and there is nothing to show that there has been fraud or collusion that would be its reasonable letting value but where the building has never been let out the question of fixation standard rent does not arise. In that case it would be permissible to fix its reasonable rent without regard to the provi sions of Madhya Pradesh Accommodation Control Act. This view gives proper effect to the nonobstante clause in section 138(b). [1019 D F] The Corporation of Calcutta vs Smt. Padma Debi and others ; , Corporation of Calcutta vs Life Insurance Corporation of India , Guntur Municipal Council vs Guntur Town Rate Payers ' Association ; and New Delhi Municipal Committee vs M.N. Soi and another ; , distinguished. </s>

<s>[INST] Summarize the judgementvil Appeal No. 1088 (N) of 1969. From the Judgment and Order dated 14.8.1968 of the punjab and Haryana High Court in L.P.A. No. 95 of 1964. A. Minocha for the Appeallant. Ms. A. Subhashini, Mrs. section Sun, C.V.S. Rao and P. Par meshwaran for the Respondents. The Judgment of the Court was delivered by B.C. RAY, J. This is an appeal by special leave against the Judgment and Order made in L.P.A. No. 95 of 1964 dis missing the appeal holding that the land in question having already vested in the Government of Punjab under package deal, the authority under the Displaced Persons (Compensa tion and Rehabilitation) Act, 1954 had no jurisdiction over lands in question. Appellant, Pala Singh, a displaced person, was allotted 9 standard acres and 12 1/4 units of land in village Jhill, Tehsil and District Patiala in lieu of his land left in Chack No. 204 in 1950. He got the same quantity of land in village Alipur Arain on mutual exchange with an allottee of the said village. The appellant was not allotted any land for the land left by him in village Santpura and Jaffapur in Tehsil Phalia, District Gujarat. The area of Chack No. 204 R.B. was described as a suburban area by the State Govern ment. The appellant applied for allotment in village Tripari Sayidan, a suburban of Patiala City. After due verification from the records of the Rehabilitation Department at Jullun dur, the petitioner being found entitled to the suburban allotment to the tune of 10 standard acres and two units as also to a rural allotment of 2 standard acres and 8 units was allotted 6 standard acres 12 3/4 units of land in Tri pari Sayidan. Proprietary right in respect of both these allotments, that is, at Tripari Sayidan and village Alipur Arian were granted to him vide sanads dated 17th February, 1956. 627 In October 1961, it was detected that there was excess allotment of 6 standard acres and 12 3/4 units in village Alipur Arian and accordingly the Managing Officer, Rehabili tation Department by his order dated 21st February, 1962 allowed the petitioner to purchase the said excess area. Petitioner deposited the required amount in the Treasury on March 6, 1962. On March 27, 1962, i.e. 20 days thereafter the petitioner was served with a notice by the respondent No. 3, Assistant Registrar cum Managing Officer asking him to appear before the respondent No. 2, the Chief Settlement Commissioner, Civil Secretariat. Jullundur to show cause why the order of the Managing Officer allowing him to purchase the excess land should not be set aside, as it was a case of double allotment. The respondent No. 2, the Chief Settlement Commissioner, after hearing the petitioner passed an order holding that the excess land which was found in October 1961 could not be sold by the Managing Officer under the Dis placed Persons (Compensation and Rehabilitation) Act, 1954, as under the package deal this land had been transferred to the Punjab Government. It was for the Punjab Government to decide if the said land would be sold to the petitioner at the reserve price or not. The reference was accordingly allowed and the order of the Managing Officer allowing the allottee to purchase the said 6.12 3/4 standard acres in village Alipur Arian, Tehsil District Patiala was set aside. The petitioner then made an application under Section 33 of the said Act to the respondent No. 1, the Central Government against the said order. The said application was dismissed by the respondent No. 1. Against these orders the petitioner moved a petition under Articles 226 and 227 of the Constitu tion of India before the High Court of Punjab and Haryana under Civil Writ Petition No. 1804 of 1962 on the grounds inter alia that the petitioner is entitled to get the same land as he had already deposited the price of the allotted land in accordance with the order of the Managing Officer. The said purchase could not be cancelled on the plea that the land had already been transferred to Punjab Government by the Central Government under package deal. A return was filed on behalf of the respondents stating inter alia that in lieu of land to the extent of 6.12 3/4 standard acres allotted to him in village Tripari Sayidan, an area to the same extent was to be withdrawn from his rural allotment in village Alipur Arian. This however was not done through oversight and the allottee was in posses sion of the both lands in villages Alipur Arian and Tripari Sayidan. This resulted in double allotment to the petition er. It was also submitted therein that the Managing Officer wrongly allowed the petitioner to purchase the said land in village Alipur Arian in February 1962. The 628 order of the Managing Officer was without jurisdiction as by that time property had gone out of the Compensation Pool and it vested in the State Government. It was further averred that the transfer of the land in dispute to the petitioner was void ab initio as under the package deal it vested in the State Government. Respondent No. 2 has rightly cancelled the allotment of excess land to the petitioner. The writ petition was dismissed by the learned Single Judge holding inter alia that the Chief Settlement Commis sioner (Lands) had jurisdiction to cancel the allotment even after the conferment of the proprietary right referring to the decision in the case of Smt. Balwant Kaur vs Chief Settlement Commissioner, It was further held that the package deal came about in April 1961 whereas the offer to purchase the excess land was made in February, 1962. i.e. at a time when the land was no longer in the Central pool but it vested in the State of Punjab. The Chief Settlement Commissioner was justified in cancel ling the permission to purchase given by the Managing Offi cer as the land had already been transferred to the State of Punjab and the same ceased to vest in the Central Compensa tion Pool. Aggrieved by the judgment and order dated 16th January, 1964 passed in C.W.P. No. 1804 of 1962 an appeal under clause X of the Letters Patent was preferred by the peti tioner. This was registered as L.P.A. No. 95 of 1964. On 14th August, 1968, the Division Bench of Punjab High Court after hearing the parties held that there was no denial by the appellant that in view of the package deal the title to the land had already passed to the Punjab Government in 1961 and no authority under the could make any order in regard to the sale of land to the appellant at concessional rate. The title had passed to the Punjab Government in 1961 and after that it was only the Punjab Government who could deal with that land. It was further held that there was no denial that the land in question was covered by the package deal. The only contention made by the appellant was that an appeal was filed in the Supreme Court from the judgment in the case of Ram Chander vs State of Punjab, [1968] Current Law Jour nal (Punjab & Haryana) 668 wherein the validity of the package deal was upheld. It was held that if the appeal succeeds in this Court then it would be up to the Chief Settlement Commissioner to review his own orders in the wake of such decision of the Supreme Court in order to give relief to the appellant. The appeal was accordingly dis missed. 629 It is against this judgment and order this appeal by special leave has been filed. It appears from the letters dated 3.6.1961, 5.3.1962 as well as 23.3. 1963 issued from the office of Chief Settle ment Commissioner, Government of India that all surplus lands as well as excess area in occupation of the allottees stood transferred to the Punjab Government with effect from 1.4.1961 and the Punjab Government paid the price of the lands at the rate of Rs.445 per standard acre to the Central Government by half yearly instalments in 6 instalments within a period of three years commencing from 1st April, 1961. So these lands are package deal properties vested in the State of Punjab. It has been rightly held in the Letters Patent Appeal confirming the order of the learned Single Judge in the writ petition that since the excess land allot ted to the appellant was package deal property the same cannot be sold nor can it be allowed to be sold to the petitioner appellant by the Managing Officer under the provisions of Displaced Persons (Compensation and Rehabili tation) Act, 1954. So the order of the Managing Officer made in February, 1962 is wholly without jurisdiction inasmuch as the said property was no ' longer in the compensation pool of the Central Government but it was a package deal property vested in the State of Punjab. It has also been rightly held that the Chief Settlement Commissioner is competent under Section 24 of the Displaced Persons (Compensation and Reha bilitation) Act 44 of 1954 to cancel the allotment of land in excess of the area the petitioner is entitled to get under the provisions of the said Act. This legal position has been settled by a decision of the Punjab and Haryana High Court in the case of Ram Chander vs State of Punjab (supra) wherein it has been held: "In our opinion, the package deal has the effect of transferring the property from the Central Government to the Punjab State and the logical result which flows from it is that the Settlement Authorities as delegates of the Central Government could not pass any orders under the Act. " It appears that the Civil Appeal No. 470 of 1969 which was filed against the judgment and order passed in LPA No. 298 of 1966 was disposed of by this Court (to which both of us were parties) on 29th July, 1986 by recording the follow ing order: "In view of the judgment in Civil Appeal Nos. 2125(N) of 1968 and 1832 of 1969, there is no reason to consider the question of law raised by the State of Haryana in this 630 appeal. The appeal is accordingly disposed of without expressing any opinion on the merits. " It also appears that this Court passed an order on 29th July, 1986 dismissing Civil Appeal Nos. 2125(N) of 1968 and 1832 of 1969 by recording the following order: "There is no merit in these appeals. By the judgment, the High Court has set aside the sales and directed re auction of the proper ties. We entirely agree with the reasoning and conclusion reached by the High Court. The appeals are accordingly dismissed with no order as to costs. " It is therefore clear and evident that the judgment of the Punjab High Court rendered in the case of Ram Chander vs State of Punjab & Ors. (supra) insofar as it relates to the validity of the package deal, has been upheld by this Court. So there is no merit in this contention made on behalf of the appellant. It has also been held by the Full Bench of the Punjab High Court in the case of Smt. Balwant Kaur vs Chief Settle ment Commissioner (Lands), Punjab, [1963] Punjab Law Report er (Vol. 65) 1141 at 1187 that the Chief Settlement Commis sioner was competent to cancel or set aside the order of transfer even if the sanad was granted or the sale deed had been executed and on such order being made the sanad or the sale deed will automatically fall with it. On a conspectus of these decisions the point is now well settled that the respondent No. 2, the Chief Settlement Commissioner has duly and properly made the impugned order of cancellation of the excess allotment made to the appel lant. It appears that the petitioner has already made an application to the Government for allotment to them of the said excess land on taking from them the appropriate price. It has been further stated that Pala Singh had died during the pendency of this appeal and he left his widow and four sons and daughters as his legal representatives. It is for the Government of Punjab to consider and decide whether the legal representatives of deceased appellant are entitled to pourchase the said excess land under the provisions of the Punjab Package Deal Properties (Disposal) Act, 1976 and the rules framed thereunder. It is relevant to mention in this connection that the Gov ernment 631 of Punjab amended the rules and the said amended rules have been titled as Punjab Package Deal Properties (Disposal) Rules, 1976. These rules lay down elaborate procedure as to how the lands in excess of the entitlement which have been cancelled may be transferred to the allottees or their successors in interest. It also appears from Rule 4 that the allottee or his legal representatives will not be entitled to have the excess land which was cancelled on the ground of fraud, concealment or mis representation of material facts. It is also provided in clause 8 of the said rules that the price of the land that will be transferred shall be the current market price to be determined by the Tehsildar (Sales). For the reasons aforesaid there is no merit in the appeal and as such it is dismissed with costs, assessed at Rs. 1,000. P.S.S. Appeal dis missed. [/INST]The petitioner was an allottee of the premises held by the Government at the relevant time. The landlady applied for release of the premises but the request was rejected. However, upon a further representation made by the landlady stating that her son was not allowing her to live with him in another house belonging to her, the Government made an order releasing the premises in her favour and asked the petitioner to vacate the premises. Several notices were also issued to him in that behalf. The petitioner challenged the order of release contending that he had not been given an opportunity to show cause, and, that the Government had no power to review its earlier order rejecting the request; but the petition was dismissed by the High Court. Dismissing the petition for Special Leave to appeal. HELD: It is well settled law of this Court that in case of bona fide need, subsequent events must be taken into account if they are relevant to the question of release of possession of the premises. The contention that the Govern ment cannot review its own order cannot be accepted. When, in spite of the 'notices given to him, the petitioner did not choose to move out of the premises it cannot be said that he was not given an opportunity to show cause. [567B C] </s>

<s>[INST] Summarize the judgementCriminal Appeal No. 150 of 1986. 221 From the Judgment and Order dated 14.7.83 of the Patna High Court in Govt. Appeal No. 29/83. S.N. Misra, M.M.P. Sinha and P.C. Kapur for the Petitioner. S.C. Misra and, Mrs. Gian Sudha Misra for the Respondents. The Judgment of the Court was delivered by OZA, J. This appeal has been filed in this Court against the dismissal in limine of a petition filed by the State of Bihar in the High Court of Judicature at Patna wherein learned Judges of the High Court rejected a petition for leave to appeal against acquittal filed by the State Govern ment under Sec.378(1) and (3) of the Code of Criminal Proce dure in limine by any saying "Prayer for leave to appeal is refused. Appeal is dismissed. " Before the trial Court 25 accused persons were tried on the allegation that they committed dacoity and in the com mission of the said dacoity murder of one A jab Lal Singh was committed. Consequently all of them were charged for offence under Section 396 of the Indian Penal Code. It is alleged that in the night intervening between 5th and 6th day of June, 1980 at Village Nandial Patti situated within P.S. Amarpur in the District of Bhagalpur, occurrence took place in the house of one Jawahar Lal Singh P .W. 21 who lodged the First Information Report, his house is situated in Nandial Patti and in the course of dacoity his brother Ajab Lal Singh was killed. The incident is said to have taken place at 12 O 'clock at midnight, and the information was lodged on 6th of June 1980 at 8.45 A.M., at Bhagalpur Medical College Hospital as the informant was lying injured in the surgical ward of the Hospital. At the trial there were number of eye witnesses examined who claimed to have identified the accused persons in the light of a lentern burning at that time. The evidence also attributed different parts to different accused persons. The learned Sessions Judge after considering the evidence discarded the evidence and acquitted all the accused persons from the charge le velled against them and unfortunately Hon 'ble the High Court without examining the reasons on the basis on which the learned Sessions Judge discarded evidence dismissed the leave petition and appeal as mentioned above and therefore we are at a disadvantage as we have not before us the exami nation of the reasons by the High Court on the basis of which the learned trial Court discarded the testimony and acquitted all the accused persons. Although learned counsel for the respondent refer 222 red to portions of the evidence to justify the order of acquittal but also contended that in case this Court feels that the High Court should have considered the matter and pass a reasoned order it would be proper that we may not refer to any part of the evidence on merits nor express any opinion. Learned counsel for both the sides did not dispute that the incident was such wherein number of persons were in volved. They also frankly accepted that there are number of witnesses examined in the case. A perusal of the judgment of the learned trial Court also shows that all the reasons on the basis of which the whole of the prosecution evidence has been discarded is not so simple or reasons so good that they do not require examination. Under these circumstances there fore without going into the merits we feel that it would be better that the matter be examined by the learned Judges of the High Court so that we may have the advantage of consid ering the considered opinion of the High Court on the rea sons which weighed with the learned trial Court in discard ing the prosecution evidence and acquitting the respondents. In view of the facts of the case and the circumstances indicated above we feel that it would be better if the High Court considers the matter and dispose it of after giving reasons and in view of this we think it proper not to ex press any opinion on any of the matters that may deserve consideration. The appeal is therefore allowed. The order passed by the High Court on 14th July 1983 is set aside and the appeal alongwith petition for leave filed by the State of Bihar is restored to the file of the High Court and it is directed that Hon 'ble the High Court after hearing the parties shall dispose of the matter giving reasons for the conclusions in accordance with law. P.S.S. Appeal allowed. [/INST]A number of persons were tried on the allegation of committing a decoity with murder and charged for offence under s.396 of the Indian Penal Code. Eye witnesses claimed to have identified the accused persons in the light of a lantern. The evidence also attributed different parts to different accused persons. The trial court after considering the evidence discarded it and acquitted all the accused persons of the charge. The High Court dismissed the petition for leave to appeal against acquittal filed by the State Government under s.378(1) and (3) of the Code of Criminal Procedure in limine with the words "Prayer for leave to appeal is refused. Appeal is dismissed. " Without examining the reasons on the basis of which the trial court had discarded the evidence. The appellant appealed to this Court. Allowing the appeal, HELD: The High Court should have considered the matter and passed a reasoned order. The incident was such wherein a number of persons were involved. There were a number of witnesses examined in the case. A perusal of the record shows that all the reasons on the basis of which the whole of the prosecution evidence had been discarded by the trial court were not so simple or so good that they did not re quire examination. [222B C] The appeal alongwith the petition filed by the State for leave to appeal is restored to the file of the High Court, and directed to be disposed of after hearing the parties, giving reasons for conclusions. [222E F] </s>

<s>[INST] Summarize the judgementAppeal No. 649 of 1967. 411 Appeal by special leave from the order dated May 4, 1966 of the Calcutta High Court in Income tax Reference No. 114 of 1965. Jagadish Swarup, Solicitor General, Ram Panjwani, R. N. Sachthey and B. D. Sharma, for the appellant. C. K. Daphtary, B. P. Maheshwari and K. R. Khaitan, for the respondent. The Judgment of the Court was delivered by Shah, C.J. Burlop Dealers Ltd. hereinafter referred to as 'the assessee is a limited company. For the assessment year 1949 50 the assessee submitted a profit and loss account disclosing in the relevant year of account Rs. 1,75,875/ as profit in a joint venture from H. Manory Ltd. and claimed that Rs. 87,937/ being half the profit earned from H. Manory Ltd. was paid to Ratiram Tansukhrai under a partnership agreement. The assessee stated that on June 5, 1948, it 'had entered into an agreement with H. Manory Ltd. to do business in plywood chests and in consideration of financing the business the assessee was to receive 50% of the profits of the business. The assessee claimed that it had entered into an agreement on October 7, 1948, with Ratiram Tansukhrai for financing the transactions of H. Manory Ltd. in the joint venture, and had agreed to pay to Ratiram Tansukhrai 50% of the profit earned by it from the business with H. Manory Ltd. The Income tax Officer accepted the return filed by the assessee and included in computing the total income for the assessment year 1949 50 Rs. 87,937/ only as the profit earned on the joint venture with H. Manory Ltd. In the assessment year 195051 the assessee field a return also accompanied by a profit and loss account disclosing a total profit of Rs. 1,62,155/in the relevant account ear received from H. Manory Ltd., and claimed that it had transferred Rs. 81,077/ to the account of Ratiram Tansukhrai as his share. The Income tax Officer on examination of the transactions brought the entire amount of Rs. 1,62,155/ to tax holding that the alleged agreement of October 1948 between the assessee and Ratiram Tansukhrai had merely been "got up as a device to reduce the profits, received from H. Manory Ltd.". This order was confirmed by the Appellate Assistant Commissioner and by the Income tax Appellate Tribunal. The Tribunal then stated a case under section 66(1) of the Income tax Act to the High Court of Calcutta. The High Court agreed with the view of the Tribunal and answered the question against the assessee. 412 In the meanwhile on May 13, 1955, the Income tax Officer issued a notice under section 34 to the assessee for the assessment year 1949 50 to re open the assessment and to assess the amount of Rs. 87,937/ allowed in the assessment of income tax as paid to Ratiram Tansukhrai. The assessee filed a return which did not include the amount paid to Ratiram Tansukhrai. The Income tax Officer re assessed the income under section 34(1) (a) and added Rs. 87,937/ to the income returned by the assessee in the assessment year 1949 50. The Appellate Assistant Commissioner held that the Income tax Officer was entitled to take action under section 34(1) (a) of the Income tax Act 1922 after the ,amendment in 1948, and to re open the assessment if income had been under assessed owing to the failure cf the assessee to disclose fully and truly all material facts necessary for the assessment. He confirmed the order observing that the assessee had misled the Income tax Officer into believing that there was a genuine arrangement with Ratiram Tansukhrai and had stated in the profit and loss account that the amount paid to Ratiram Tansukhrai was the share of the latter in the partnership, whereas no much share was payable to Ratiram Tansukhrai. In appeal against the order of the Appellate Assistant Com missioner the Income tax Appellate Tribunal held that the assessee had produced all the relevant accounts and documents necessary for completing the assessment, and the assessee was under no obligation to inform the Income tax Officer about the true nature of the transactions. The tribunal on that view reversed the order of the Appellate Assistant Commissioner and directed that the amount of Rs. 87,937/ be excluded from the total income of the assessee for the year 1949 50. An application under section 66(1) of the Indian Income tax Act for stating a case to the High Court was rejected by the Tribunal. A petition to the High Court of Calcutta under section 66(2) for ,directing the Tribunal to submit a statement of the case was also ,rejected. The Commissioner has appealed to this Court. Section 34(1) of the Indian Income tax Act, 1922, as it stood in the assessment year 1949 50 provided: "If (a) the Income tax Officer has reason to elieve that by reason of the omission or failure on the part of an assessee to make a return of income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains 413 chargeable to income tax have escaped assessement for that year, or have been under assessed. (b) notwithstanding that there has. been no omission or failure as mentioned in clause (a) on the part of the assessee, the income tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to Income tax have escaped assessment for any year, or have been under assessed. he may in cases falling under clause (a) at any time within eight years and in cases falling under clause (b) at any time within four years of the end of that year, serve on the assessee, a notice containing all or any of the requirements which may be included in a notice under sub section(2) of section 22, and may proceed to assess or re assess such income, profits or gains" The Income tax Officer had in consequence of information in his possession that the agreement with Ratiram Tansukhrai was a sham transaction reason to believe, that income chargeable to tax had escaped assessment. Such a case would appropriately fall under section 34(1)(b). But the period prescribed for serving a notice under section 34(1) (b) had elapsed. Under section 34 (1 )(a) the Income tax Officer had authority to serve a notice when he had reason to believe that by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the year, income chargeable to tax had escaped assessment. As observed by this Court in Calcutta Discount Co. Ltd. vs Income tax Officer, Companies District 1, Calcutta and another(1). "The words used are "omission or failure to disclose fully and truly all material facts necessary for his assessment for that year". It postulates a duty on every assessee to disclose fully and truly all material facts necessary for his assessment. What facts 'are material and necessary for assessment will differ from case to case. In every assessment proceeding, the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts (1) 41 ; , 200. 414 in his possession whether on disclosure by the assessee, or discovered by him on the basis of the facts disclose, or otherwise, the assessing authority has to draw inferences as regards certain other facts; and ultimately, from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences, and ascertain on a correct interpretation of the taxing enactment, the proper tax leviable". We are of the view that under section 34(1) (a) if the assessee has disclosed primary facts relevant to the assessment, he is under no ,obligation to instruct the Income tax Officer about the inference which the Income tax Officer may raise from those facts. The terms of the Explanation to section 34(1) also do not impose a more onerous obligation. Mere production of the books of account or other evidence from which material facts could with due diligence have been discovered does not necessarily amount to disclosure within the meaning of section 34(1), but where on the evidence and the materials produced the Income tax Officer could 'have reached a conclusion other than one which he has reached, a proceeding under section 34(1) (a) will not lie merely on the ground that the Income tax Officer has raised an inference which he may later regard as erroneous. The assessee had disclosed his books of account and evidence from which material facts could be discovered : it was under no obligation to inform the Income tax Officer about the possible inferences which may be raised against him. It was for the Income tax Officer to raise such an inference and if he did not do so the income which has escaped assessment cannot be brought to lay under section 34(1) (a). The appeal fails and is dismissed with costs. K.B.N. Appeal dismissed. [/INST]The respondent who was the karta of his Hindu undivided family entered into partnership with one D to carry on the business of manufacturing and selling pharmaceutical products etc. On July 27, 1946 the partnership was dissolved. The assets of the firm which included goodwill, machinery, furniture etc. were valued on the date of dissolution at Rs. 2,50,000 and the respondent was paid the sum of Rs. 1,25,000 in lieu of his share and the business together with the goodwill was taken over by D. The question in income tax proceedings was whether the transaction was one of sale liable to capital gains tax under section 12B(1) of the Income tax Act. The assessing and appellate authorities held against the respondent. The High Court in reference, however, held in his favour. The revenue appealed. HELD : There was no clause in the partnership agreement providing for the method of dissolution of the firm or for winding up of its affairs. In the course of dissolution the assets of the firm may be valued and the assets divided between the partners according to their respective shares by allotting the individual assets or paying money value equivalent thereof. This is a recognised method of making up the accounts of the dissolved firm. In that case the receipt of money by a partner is nothing but a receipt of his share in the distributed assets of the firm. The respondent received the money value of his share in the assets of the firm; he did not agree to sell, exchange on transfer his share in the assets of the firm. Payment of the amount agreed to be paid to the respondent under the arrangement of his share was therefore not consequence of any sale, exchange or transfer of assets. [408 C E] James Anderson vs Commissioner of Income tax, Bombay City, and Commissioner of Income tax, Madhya Pradesh and Nagpur & Bhandara vs Dewas Cine Corporation, 68 I.T.R. 240, distinguished. </s>

<s>[INST] Summarize the judgementivil Appeal No. 3003 of 1988. From the Judgment and Order dated 8/9th April, 1986 of the Central Administrative Tribunal, New Delhi in R.A. No. 2 of 1986 in TA No. T 564 of 1985. AND Civil Appeal No. 889 of 1988. From the Judgment and Order dated 29.10.86 and 5.11.1986 in the Central Administrative Tribunal, Ahmedabad in O.A. No. 103 of 1986. J.S. Bali and L.R. Singh for the Appellant in C.A. No. 3003 of 1988. K.M.K. Nair for the Appellant in C.A. No. 889 of 1988. Kuldip Singh, Additional Solicitor General, A. Subba Rao, C.V.S. Rao and Hemant Sharma for the Respondents. The judgment of the Court was delivered by VENKATACHALIAH, J. The special leave petition and the appeal by two Central Government servants raise an interesting point of construction of a service Rule whether a Disciplinary Authority can, under Sub Rule (vi) of Rule 11 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, (Rules for short), impose the penalty of reduction on a Government Servant, recruited directly to a particular post, to a post lower than that to which he was so recruited; and if such a reduction is permissible, whether the reduction could only be to a post from which under the relevant Recruitment Rules promotion to the one to which the Government servant was directly recruited. PG NO 549 The petition and appeal are directed against the orders dated 8/9 4 1986 of the Central Administrative Tribunal, Delhi, and the order dated 29.10.1986 of the Central Administrative Tribunal, Gujarat, respectively, affirming the orders of the Disciplinary Authorities imposing on the petitioner and the appellant the penalty of reduction in rank to post lower than the one to which both of them were initially recruited. There is a divergence of judicial opinion amongst the High Courts on the point: The Division Benches of the Orissa and Karnataka High Courts have held that such a reduction in rank is not possible at all. [See: Babaji Charan Rout vs State of Orissa and Ors., [1982] 1 SLJ 496; Shivalingaswamy vs State of Karnataka, [1985] ILR Kar. 1453]. However, the Madras, Andhra Pradesh and Allahabad High Courts have held that there is no limitation on the power to impose such a penalty. [See: Gopal Rao vs C.l.T., ; Mahendra Kumar vs Union of India, [1984] 1 All India Ser. Law Jour. 34; S.N. Dey vs Union of India & Ors., [1983] 2 SLJ All. 114]. The Central Administrative Tribunal, Madras, in C.S. Balakumar vs The lnspecting Asstt. Commissioner of Income Tax, [1987] 1 All India SLJ 18 has also subscribed to this view. There is yet a third view, as typified in P.V. Srinivasa Sastry vs Comptroller & Auditor General of India, and the one taken by the Central Administrative Tribunal in the case from which the Special Leave Petition arises, that such a reduction in rank is permissible provided that promotion from the post to which the Government servant is reduced to the post from which he was so reduced is permissible, or, as it has been put, the post to which the Government servant is reduced is "in the line of promotion" and is a "feeder service". Special leave is granted in SLP (C) 9509 of 1986. Both the cases are taken up for final hearing, heard and disposed of by this common Judgment. A brief advertance to the facts of the cases is necessary. SLP (C) 9506 of 1986 is by a certain Nyadar Singh, the unsuccessful petitioner before the Central Administrative Tribunal, New Delhi, and is directed against that the Tribunal 's order No. T 564/85 (SBCWP No. 1747/80) dated PG NO 550 28th February, 1986, rejecting his challenge to the order dated 4th Sept., 1976, of the disciplinary authority imposing a penalty of `reduction in rank ' reducing the petitioner from the post of Assistant Locust Warning Officer to which he was recruited directly on 31.10.1960 and confirmed on 27.12.1971 to that of Junior Technical Assistant pursuant to certain disciplinary proceedings held against him. In 1974, he was working as an Assistant Locust Warning Officer at Nohar. On 4.11.1975 in respect of certain acts alleged to constitute misconduct on his part certain disciplinary proceedings were initiated against him which culminated in the order dated 4.9.1976 imposing the aforesaid penalty. The statutory appeal before the appellate authority was, dismissed on 24.4.1979. Thereafter he filed a writ petition before the Delhi High Court which, after the coming into force of the Central Administrative Tribunal Act, 1985, stood transferred to and was disposed of by the Central Administrative Tribunal, New Delhi, by its order dated 28.2.1986, now under appeal. It is relevant to mention that in the year 1981, after the period of penalty of five years had spent itself out, the appellant was re promoted to the post of Assistant Locust Warning Officer. Civil Appeal No. 889 of 1988 is by M.J. Ninama, an Upper Division Clerk in the Post & Telegraph Circle Office, Ahmedabad, preferred against the order No. OA 103 of 1986 dated 29.10.1986 of the Central Administrative Tribunal, Ahmedabad, rejecting appellant 's challenge to the legality and correctness of the order dated 15.5.1988 of the Post Master General who in modification of the earlier orders imposing a penalty of compulsory retirement on him, substituted in its place the order imposing the penalty of `reduction in rank ' to the post of Lower Division Clerk pursuant to the findings recorded against the appellant on the charge of accepting illegal gratification. Appellant had been directly recruited as an Upper Division Clerk in the Office of the Post Master General, Gujarat Circle, Ahmedabad. He was reduced to the lower post of Lower Division Clerk until he was found fit after a period of five years from 15.5.1986. However, the appellant 's seniority on re promotion was directed to be fixed at what it would have been, without the reduction. We have heard Shri J.S. Bali, learned counse] for the appellant Nyadar Singh and Shri K.M.K. Nair, learned counsel for the appellant Ninama; and Shri Kuldip Singh, learned Additional Solicitor General for the respondents in both the appeals. Rule 11 of the `Rules ' enumerates the penalties which may for good and sufficient reasons be imposed on a PG NO 551 Government servant. Sub rule (vi) of Rule 11 provides: "11. The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant namely: Minor penalties: Omitted as irrelevant here. Major penalties: (v) . . (vi) reduction to a lower time scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or Service from which he was reduced, with or without further directions regarding conditions of the restoration to that grade, or post or Service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or Service;" According to the contention of the appellants ' learned counsel, the appellants were, as a result of the imposition of the penalty, reduced in rank to a post lower than the one to which they were initially recruited, which on a proper construction of the Rule, is not permissible. Learned counsel relied upon the decision of this Court in Hussain Sasan Sahed Kaldgi vs State of Maharashtra, Shri Kuldip Singh, Additional Solicitor General, however, contended that this limitation which may be appropriate in the case of a `reversion ' which, as the very concept implies, could not be to a post which the Government servant did not earlier hold, is inappropriate in a case of reduction in rank imposed as a penalty. Reduction in rank, according to learned Additional Solicitor General, has a wider import than `reversion ' and there is no reason why the power to impose this penalty which is permissible on the plain language of the Rule be whittled down by any other consideration. The learned Additional Solicitor General sought to rely upon certain pronouncements of the High Courts. The import of the expression `Reduction in rank ' has been examined in the context of the constitutional PG NO 552 protection afforded to Government servants under Article 311(2) in relation to the three major penalties of 'dismissal ', 'removal ' and 'reduction in rank ' and the constitutional safeguards to be satisfied before the imposition of these three major penalties. In Article 311(2) the penalty of "reduction in rank" is classed along with 'dismissal ' and 'removal ' for the reason that the penalty of reduction in rank has the effect of removing a Government servant from a class or grade or category of post to a lessor class or grade or category. Though the Government servant is retained in service, however, as a result of the penalty he is removed from the post held by him either temporarily or permanently and retained in service in a lesser post. The expression 'rank ', in 'reduction in rank ' has, for purposes of Article 311(2), an obvious reference to the stratification of the posts or grades or categories in the official hierarchy. It does not refer to the mere seniority of the Government servant in the same class or grade or category. Though reduction in rank, in one sense, might connote the idea of reversion from a higher post to a lower post, all reversions from a higher post are not necessarily reductions in rank. A person working in a higher post, not substantively, but purely on an officiating basis may, for valid reasons, be reverted to his substantive post. That would not, by itself, be reduction in rank unless circumstances of the reversion disclose a punitiveelement. The submission of the learned Additional Solicitor General in substance, is that while 'reversion ' envisages that the lower post to which the Government servant is reverted should necessarily to amongst those earlier held by him and from which he had come on promotion, the idea of reversion being a mere antonym of promotion the importing of such a limitation into a case of "reduction in rank" imposed as a penalty would be doing, violence of the express statutory language and an unwarranted fettering of the power of the disciplinary authority. The idea of reduction in rank, says the learned Additional Solicitor General, is much wider than the ambit of the reversion and there is no justification to whittle down the ambit of this expression consciously employed by the rule making authority. Such a construction would create more difficulties than It might appear to solve and become counter productive in the sense that even where the disciplinary authority, desires to retain a Government servant in service, though not in the same post but in a lower one, the Authority would be rendered helpless by such a construction being place of in the Rule. PG NO 553 The argument in favour of this construction of the Rule is stated by by a learned Single Judge in Gopal Rao 's case (supra) thus: ". . ln effect, what the learned counsel says is that there is no difference between the order of reversion and an order of reduction in rank, that it is well established that reversion can be only to a post which a person held earlier and that reduction also can only be to a post or class of service which the person occupied at any time before. ." " '. . In my view, the expression "reduction in rank" covers a wider field than reversion to a lower post. It is true, the word "reversion" always connotes "a return to the original post or place. " But the word "reduction" has no such limitation and therefore, reduction in rank extends even to a rank which the officer concerned never held. ." Similar view has been taken by a learned Single Judge of the the Andhra Pradesh High Court in Mahendra Kumar vs Union of India and Anr., [1985] 1 SLR [8] : ". . The Central Civil Service (Classification, Control and Appeal) Rules provide for several penalties which can be imposed for good and sufficient reasons. One of the major penalties contemplated by Rule II is "reduction to a lower . . grade, post or service . . ", and I see m, reason why this penalty cannot be imposed upon a person who, on the date of imposition of penalty, is continuing in the same post to which he was appointed by direct recruitment. This is not a case of reversion of a Government servant to his substantive post for want of vacancy or otherwise, but this is a case of reduction by way of punishment. I am unable to read any limitation upon the power of the disciplinary authority to impose this punishment on the petitioner, as suggested. No decision has also been brought to my notice supporting this contention It must, however, be observed that in the above case the High Court upheld the challenge of the appellant that there was no misconduct at all. The other observations as to the scope of the Rude were, therefore, unnecessary for the decision of the case. PG NO 554 7. The opposite view is taken by the Orissa High Court in Babaji Charan Rout vs State of Orissa and Ors., [1982] 1 All India SLJ 496 and by a Division Bench of the Karnataka High Court in Shivalingaswamy v: State ot Karnataka, [l985] ILR Kar. 1453. In the first case, there is no discussion of the matter as the Division Bench merely followed an earlier unreported decision of another Division Bench of the same High Court. In the Karnataka case, a person who had been directly recruited as "Village Accountant had been reduced by the Disciplinary Authority to the post of "daftarband". The Division Bench interpreting an analogous rule in the State 's Service Rules, held the reduction impermissible, observing: ". Rule 8 [v] of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, as amended, in our opinion, does not justify such an action. It will lead to most unreasonable results if a person directly recruited to a post is reduced to a post which he never came to hold in service. That is not the scheme of the CCA Rules and therefore we have no hesitation in holding that the Deputy Commissioner had no competence to impose the penalty of reducing the appellant to the post of Daftar band Attender when in fact he entered service only as Village Accountant. If the disciplinary authority felt that the gravity of the charges proved warrants that the appellant should be removed from service it was open to the authorities to make an order either dismissing or removing him from service . . The third view of the matter which while holding such a reduction is permissible, but subject to the post to which the Government servant is reduced being one from which promotion to the post from which reduction is effected is permissible, is to be found in Srinivasa Sastry 's, case (supra) where Rama Jois, J. of the Karnataka High Court held: ". It is no doubt true that normally penalty of 'reduction in rank ' is imposed only so as to bring down a civil servant to a lower time scale, grade, service or post, held earlier by him before promotion and not below the post, grade, service, or time scale to which a civil servant was directly recruited, and it appears, that it is also PG NO 555 reasonable to do so. The learned counsel, however, could not substantiate the point with reference to the rule which empowered the disciplinary authority to impose the penalty of reduction in rank as it does not make any such differentiation . ." [See at 515, para 91. This is also the view taken by the Tribunal in the first of the appeals now before us. The Tribunal held : "12. In the light of the aforesaid discussion we find that rule 11 (vi) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, on its true construction permits reduction in rank in the case of a direct recruit if the post to which he is reduced is in the line of promotion i.e. is a feeder service . . " But as against this judicial opinion in Srinivasa Sastry 's case, the learned Judge, as auther, [See 'Services under the State ': Indian Law Institute, page 220] expressed the view: "Therefore, it is reasonable to take the view that a civil servant earns promotion by exhibiting his merit and ability and suffers reduction in rank instead of removal or dismissal for misconduct or inefficiency during his service in the higher post unless he is unworthy of being retained in the service and that the word 'reduction in rank ' is used in Article 311 in this sense. It appears that the punishment by way of reduction in rank can be inflicted only against a civil servant who held a lower post and who has been promoted to the higher post; . ." 9. The contention of the learned Additional Solicitor General that when a legislative authority uses the expression "reduction in rank" without imposing any limitations there is no justification to fetter or otherwise limit the plenitude of the idea of 'reduction ', looks, at the first blush, seemingly plausible and even somewhat attractive. The view has commended itself for acceptance to some of the High Courts and Tribunals. The meaning to be given to a particular statutory language depends on the evaluation of a number of interpretative criteria. Shorn of the context, the words by themselves are "slippery customers". The general presumption PG NO 556 is that these criteria do not detract or stand apart from, but are to be harmonised with, the well accepted legal principles. In a difficult case, the number of relevant interpretative criteria may be so high that the task of the court in assessing their effect is, correspondingly, difficult. Even the statutory language apparently free from the sins of semantic ambiguity might not, in the context of the purpose, connote or convey its lexicographic thrust; but would acquire a different shade or colour imparted to it by the variations of the interpretation criteria. The ambiguity need not necessarily be a grammatical ambiguity, but one of appropriateness of the meaning in a particular context. Francis Bennion in his "Statutory lnterpretation" refers to the nature of the task in weighing the factors: ". it is necessary for the interpreter to assess the respective weights of the relevant interpretative factors and determine which of the opposing constructions they favour on balance . . " "We may speak of the factors tending in a certain direction as a bundle of factors. This is figurative, but then so is the idea of factors being 'weighed '. The court is unlikely even to consider the factors one by one, and certainly will not proceed in any mechanistic way . . " "We find that one bundle of factors favours one of the opposing constructions of the enactment. while the other bundle favours the other construction. [As to opposing constructions see section 84 of this Code. ] . There may be factors drawn from a single interpretative criterion in both bundles . . " [See `Statutory lnterpretation ' by Francis Bennion. 1984 End. page 390] It is true that where statutory language should be given its most obvious meaning to accord with how a man in the street might answer the problems posed by the words ' the Statute must be taken as one finds it. Consideration relevant to interpretation are not whether a differently conceived or worded statute would have yielded results more consonant with fairness and reasonableness. Consequences do not alter the statutory Ianguage, but may only help to fix its meaning. PG NO 557 10. As to whether a person initially recruited to a higher time scale, grade or service or post can be reduced by way of punishment, to a post in a lower time scale, grade, service or post which he never held before, the statutory language authorises the imposition of penalty does not, it is true, by itself impose any limitations. The question is whether the interpretative factors, relevant to the provision, impart aNy such limitation. On a consideration of the relevant factors to which we will presently refer we must hold that they do. Though the idea of reduction may not be fully equivalent with 'reversion ', there are certain assumptions basic to service law which bring in the limitations of the latter on the former. The penalty of reduction in rank of a Government servant initially recruited to a higher time scale, grade, service or post to a lower time scale, grade, service or post virtually amounts to his removal from the higher post and the substitution of his recruitment to lower post, affecting the policy of recruitment itself. In Worthington vs Robin, [l896] 75 Law Times Reports 446 where a supervisor of Inland Revenue was reduced in rank by statutory authority, referring to the effect of reduction in rank. though in a different context, brought about by the order of the statutory authority, the Court of appeals understood the process as a dismissal from the higher post and reappointment to the Iower post. Rigby. L.J observed: " . . 1 treat what has happened as a dismissal, because, though in effect he has been reduced to a lower position, his new appointment is in fact a re appointment. If we could see any point in this action upon which there might be a possibility of his succeeding, we should be most anxious to give him the opportunity . . " But action was dismissed because the civil servant was holding the office at the pleasure of the Commissioners under the Inland Revenue Regulation Act governing the situation. There are, therefore, certain considerations of policy that might militate against such a wide meaning to be given to the power. In conceivable cases, the Government servant may not have the qualifications requisite for the post which may require and involve different, though not necessarily higher, skills and attainments. Here enter considerations of the recruitment policy. The rule must be read in consonance PG NO 558 with the general principles and so construed the expression `reduction ' in it would not admit of a wider connotation. The power should, of course, be available to reduce a civil servant to any lower time scale, grade, service or post from which he had subsequently earned his promotion. The Second, and perhaps equally relevant, consideration, is the anomaly that a pushing to its logical limits of such power might produce. In Srinivasa Sastry 's case, (supra), the learned Judge of the Karnataka High Court visualised these anomalies thus. ". . Acceptance of the contentions urged for the respondents would lead to incongruous and absurd results. To illustrate, could a Doctor be reduced in rank to the post of a Compounder, or an Engineer to the post of a Fitter, or a Teacher in a High School to the post of a Peon, or a Scientific Officer to the post of a ministerial officer, in the absence of any provision in the rules for the consideration of the case of the civil servant concerned, for promotion from the latter category to the former category? It appears to me that on a fair and proper construction of rule II (vi) of the Rules, the condition precedent for the exercise of power under that rule by way of imposing penalty of reduction in rank to a lower post is, that the higher post from which the concerned civil servant is sought to be reduced must be a promotional post in relation to the lower post to which he is sought to be reduced . . [See at 516]. " The argument that the rule enables a reduction in rank to a post lower than the one to which the civil servant was initially recruited for a specified period and also enables restoration of the Government servant to the original post, with the restoration of seniority as well, and that, therefore, there is nothing anomalous about the matter, does not, in our opinion, wholly answer the problem. It is at best one of the criteria supporting a plausible view of the matter. The rule also enables an order without the stipulation of such restoration. The other implications of the effect of the reduction as a fresh induction into a lower grade, service or post not at any time earlier held by the Government servant remain unanswered. Then again, there is an inherent anomaly of a person recruited to the higher grade or class of post being asked to work in a lower grade which in certain conceivable cases might require different qualifications. It might be contended that these anomalies PG NO 559 Could well be avoided by a judicious choice of the penalty in a given fact situation and that these considerations are more matters to be taken into account in tailoring out the penalty than those limiting the scope of the punitive power itself. But, an over all view of the balance of the relevant criteria indicates that it is reasonable, to assume that the rule making authority did not intend to chothe the disciplinary authority with the power which would produce such anomaious and unreasonable situations. The contrary view taken by the High Courts in the several decisions referred to earlier cannot be taken to laid down the principle correctly. The pronouncement of this Court in Hussain Sasan Saheb Kaldgi vs State of Maharashtra, [l987[ AIR (SC) 1627 relied upon by the appellant is one which deals with a case of 'reversion '. Appellant in that case who, while working as a primary teacher in the services of the District Local Board, offered himself for and was selected by direct recruitment to the post of the Asst. Deputy Educational Inspector. But after four years he was sought to be reverted to the post of primary teacher. His suit for the declaration that the purported reversion was illegal and void was decreed by the trial court, but was dismissed by the High Court in appeal. This court restored the decree of the trial court. As rightly pointed out by the learned Additional Solicitor General, the case dealt with the scope and limitations of the process of 'reversion ' and is of no assistance in deciding the point under consideration. But this does not make any difference to the conclusion we have reached. The point now is as to what orders are to be made in these appeals. Appellants in the two appeals have been reduced to posts lower than these to which they were initially directly recruited. As these penalties cannot be sustained in the view we take of the rule, in the normal course the penalties imposed would require to be set aside and the disciplinary authority directed to re consider which other penalty which it would now choose to impose. But, we are of the opinion that it would be somewhat unfair that at this distance of time the matters are re opened. We think, having regard to all the circumstances of the cases the orders that commend themselves appropriate in the two cases are in terms following: (i) In the first of the appeals, appellant Nyadar Singh, has, after the period of the reduction in rank has spent itself out, been restored to the original position. It would, therefore, be sufficient to set aside the penalty imposed on him and direct that the period of service in the PG NO 560 reduced post be treated as service in the post held by him prior to imposition of the penalty, subject to the condition, however, that the appellant shall not be entitled to any difference of salary for and during the period of reduction. In view of this, we think that the proceedings taken against him should come to an end and there is no need to remit the matter to the Disciplinary Authority for selection and imposition of a fresh penalty. (ii) In the case of M.J. Ninama the penalty of reduction in rank is set aside and he shall be restored to the post which he held before the imposition of the penalty. However, for the period, if any, served by him in the lower post pursuant to the penalty imposed on him, he shall not be entitled to the difference of salary. It will also not be necessary to remit his case for fresh consideration of the choice of the penalty having regard to the lapse of time. It is ordered and the appeals disposed of accordingly. No costs. R.S.S. Appeals disposed of. [/INST]Pursuant to separate disciplinary proceedings the penalty of `reduction in rank ' was imposed on the appellants, Nyadar Singh and M.J. Ninama, reducing each of them to a post lower than the one to which they were directly recruited. The Central Administrative Tribunals rejected the appellants ' challenge to the orders imposing the penalty. Before this Court, the appellants ' contention was that as a result of the imposition of the penalty, they were reduced in rank to posts lower than the one to which they were initially recruited, which on a proper construction of Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 was not permissible. The Additional Solicitor General, on the other hand, contended that this limitation which might be appropriate in the case of a `reversion ', was inappropriate in a case of `reduction in rank ' imposed as a penalty. The argument was that `reduction in rank ' had a wider import than `reversion ' and there was no reason why the power to impose this penalty which was permissible on the plain language of the Rule, be whittled down by any other consideration. PG NO 547 PG NO 548 Disposing of the appeals, it was, HELD: (1) The meaning to be given to a particular statutory language depends on the evaluation of a number of interpretative criteria. Shorn of the context, the words by themselves are `slippery customers '. The general presumption is that these criteria do not detract or stand apart from, but are to be harmonised with, the well accepted legal principles. Considerations relevant to interpretation are not whether a differently conceived or worded statute would have yielded results more consonant with fairness and reasonableness. Consequences do not alter the statutory language, but might only help to fix its meaning. [555H; 556A B, G H] (2) The expression `rank ', in `reduction in rank ' has, for purposes of Article 311(2), an obvious reference to the stratification of the posts or grades or categories in the official hierarchy. It does not refer to the mere seniority of the Government Servant in the same class or grade or category. [552B C] (3) The penalty of `reduction in rank ' of a Government servant initially recruited to a higher time scale, grade, service or post to a lower time scale, grade, service or post virtually amounted to his removal from the higher post and the substitution of his recruitment to lower post, affecting the policy of recruitment itself. ln conceivable cases, the Government servant might not have the qualification requisite for the post which might require and involve different, though not necessarily higher, skills and attainment. [551B C, 557G] [Worthington vs Robin, [1896] 75 Law Times Reports 446, referred to.] (4) Rule 11 must be read in consonance with general principles and so construed the expression `reduction ' in it would not admit of a wider meaning. [557H; 558A] Babaji Charan Rout vs State of Orissa, [1982] 1 SLJ 496; Shivalingaswamy vs State of Karnataka, [1985] ILR Kar. 1453; approved. Gopal Rao vs C.I.T., ; Mahendra Kumar vs Union of India, [1984] 1 All India Ser. Law Journal 34; ; S.N. Dey vs Union of India, [1983] 2 SLJ All. 114; C.S. Balakumar vs The lnspecting Asstt. Commissioner of Income Tax, [1987] 1 All India SLJ 18, over ruled. PG NO 548 P. V. Srinivasa Sastry vs Comptroller & Auditor General of India, and Hussain Sasan Saheb Kaldgi vs State of Maharashtra, , referred to. </s>

<s>[INST] Summarize the judgementAppeals Nos. 244 and 245 of 1954. Appeals from the judgment and order dated August 19, 1952, of the Labour Appellate Tribunal of India (Calcutta) at Allahabad in Miscellaneous Cases Nos, C 91 and 93 of 1952. 919 N. C. Chatterji, H. J. Umrigar, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellant in both appeals. Purshottam Tricumdas, R. Ganapathy Iyer and B. P. Maheshwari, for respondents in both appeals. M. C. Setalvad, Attorney General for India, Porus A. Mehta and R. H. Dhebar, for the Intervener. October 24. The Judgment of the Court was delivered by BHAGWATI J. These two appeals :by special leave arise out of an order of the Labour Appellate Tribunal of India, Lucknow Bench, by which it dismissed the application of the appellant under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, hereinafter referred to as the Act for permission to dismiss the respondents from its employ and allowed the application of the respondents under section 23 of the Act for reinstatement. The respondents are 76 employees of the appellant, a limited company of Sugar Mills, situated in village Chitauni in the district of Deoria and were working in the engineering department of the mills in the mill house, boiling house and the workshop sections. There were disputes between the appellant and its workmen and, on the date in question, i.e., May 27, 1952, there was pending before the Labour Appellate Tribunal an appeal which was registered as Cal 101/51. It appears that one Motilal Singh, an employee of the appellant, had been dismissed by it sometime prior thereto and he had been inciting the workmen to make common cause with him, and, at a meeting held the previous night, some sort of action had been decided upon. When the workmen of the appellant entered the mills on the morning of May 27, 1952, these 76 workmen, though they entered their respective sections of the engineering department, did not commence any work from 7 a.m. as they should have done. The sectional engineers in charge asked these workmen as to why they did not commence their work and became a ware of their intention to resort 920 to a tools down strike. They reported the fact to the Chief Engineer who sent a slip to the General Manager informing him that the workers had gone on a tools down strike. The General. Manager thereupon personally went to the workshop, mill house and the boiling house and asked these workmen not to resort to such strike but the latter did not pay any heed to his advice. The General Manager then asked the Chief Engineer to persuade these workmen to commence the work, give them time for about 2 hours till 10 30 a.m. and report to him if, in spite of his persuasions, they did not commence work. The persuasions of the Chief Engineer and also of the section engineers proved of no avail and the 76 workmen persisted in their attitude with the result that the section engineers made their reports to the General Manager through the Chief Engineer giving the names of the workmen belonging to their respective sections who had resorted to the tools down strike with effect from 7 a.m. that day. These reports were endorsed by the Chief Engineer and passed on to the General Manager who,in his turn, passed an order at about 10 30 a.m. suspending these 76 workmen till further orders. The order for suspension was communicated to these workmen through their sectional heads and was also pasted on the notice board of the mills. There was a recess between 11 a.m. and 1 p.m. and when the gates were opened at 1 p.m. these 76 workmen, in spite of the warnings of the gatekeepers and Jemadar to the contrary, rushed into the mills, entered their respective sections and adopted a threatening attitude. The sectional engineers made reports to the General Manager in regard to this occurrence and these reports also were endorsed by the Chief Engineer and passed on by him to the General Manager. The situation which was created by these workmen by forcibly entering their respective sections and continuing there threatening violence was explosive and the management had to call in the police in order to avert violence and damage to the property. The police came in at 5 p.m. and order appears to have been restored. There was no untoward incident that day 921 but the management appears to have viewed the situation with, seriousness and approached the Regional Conciliation Officer the next day in order to ask for advice in regard to the dismissal of these workmen. The Regional Conciliation Officer, however, pointed out to the General Manager that, in view of the pendency of the appeal before the Labour Appel, late Tribunal, he had no jurisdiction to entertain any application for such permission and referred the General Manager to the Labour Appellate Tribunal. The workmen, on the other hand, got a letter dated May 28, 1952, addressed to the General Manager by the General Secretary of the Chini Mill Mazdoor Sangh to the effect that they had gone to the gates of 'the mills as usual at 7 a.m. that day to attend to their work but they were not allowed to enter the mill pre mises. They charged the management with the intention to victimise them on the charge of a tools down strike and stated that they had neither struck nor intended to strike but had been prevented from attending to their work and had therefore been advised to go back to their quarters with a view to maintain peace. The last paragraph of that letter was very significant. The General Manager was told that if he did not mend his illegal mistakes and did not take the workmen back on duty he would be responsible for any breach of peace. After receipt of that letter it was evident that the workmen would resort to violent measures in order to attend to their work and a breach of peace was apprehended. The management evidently continued the police precautions and, after having waited for some time, the General Manager furnished to these 76 workmen on June 2, 1952, a charge sheet wherein he charged them with having committed misconduct within the meaning of cl. L. I (a) and (b) and wailful insubordination within the meaning of el. L. I (a), (b) and (w) of the Standing Orders. He called upon them to show cause within 24 hours of the receipt of the charge sheet why disciplinary action should not be taken against them and gave them intimation that an open enquiry in connection with the said charges 120 922 would be held by him at 8 a.m. on June 6, 1952. He also intimated that if all the workmen arranged to present themselves earlier than June 6, 1952, he would take up the said enquiry earlier provided, however, an intimation was received to that effect from them or from their Union. The workmen were to remain suspended till the enquiry was finished. The workmen addressed uniform letters to the General Manager denying that there was any tools down strike on May 27, 1952, and alleging that the sectional heads and the Chief Engineer bad conspired together "under some mysterious preconceived plans" and stated that no useful purpose would be served by holding an enquiry on the 1 1 th day of their suspension. They pointed out that such indefinite period of suspension during the pendency of the appeal before the Labour Appellate Tribunal and Reconciliation Board was illegal and unjustified and was in utter disregard of the Standing Orders. By their further letter dated June 5, 1952, similarly addressed to the General Manager, they voiced their apprehension that they would not get any justice from an enquiry held by the management itself and asked for investigation by an impartial tribunal. The management, however, held the enquiry as intimated at 8 a.m. on June 6, 1952. The workmen non co operated and did not present themselves at the enquiry. The General Manager immediately addressed a letter to these workmen putting on record that in spite of the orders conveyed by him earlier the workmen had disobeyed the. same and had not appeared at the appointed time and place for the enquiry into the tools down strike. He pointed out that by not appearing in this manner they had made themselves liable to dismissal for insubordination, and intimated that the management was applying to the proper authorities for permission to dismiss them pending receipt of which the workmen would remain under suspension. This letter was received by the workmen at 9 a.m. that day and they replied through the General Secretary of the Chini Mill Mazdoor Sangh repeating that a demand had been made for an 923 investigation by an impartial tribunal and in so far as no impartial tribunal had been appointed they were not agreeable to present themselves and submit their defence at the enquiry which was conducted by the management itself. The appellant thereafter made the necessary application under section 22 of the Act before the Labour Appellate Tribunal of India, Lucknow Bench, for permission to dismiss these 76 workmen. In the affidavit which was filed in support of that application, all the facts herein before mentioned were set out in extenso and it was pointed out that the management, after giving full consideration to the explanations and offering every possible opportunity to these workmen to explain their conduct coupled with the unreasonable attitude adopted by them, had adjudged them guilty of misconduct under cl. L. I (a), (b) and (w) of the Standing Orders and considered that any further employment of these workmen would be extremely detrimental to discipline and dangerous in the interests of the industry. The workmen, in their turn, filed on June 9, 1952, an application under section 23 of the Act for requisite action to be taken against the appellant for having contravened section 22(b) of the Act by inflicting on them the punishment in the shape of harassment by resorting to an illegal lookout for an indefinite period with effect from May 27, 1952, without obtaining the prior permission of the , Labour Appellate Tribunal and "thereby acting contrary to law and resorting to mala fide actions in direct violation of the provisions of the Standing Orders in continuation of the management 's anti trade (Union) activities". Counter affidavits were made by the workmen as also the management in reply to both the above applications. The Labour Appellate Tribunal held that the appellant did not act in strict compliance with cl. L. 12 of the Standing Orders and was, therefore, not entitled to ask for permission to dismiss the 76 workmen. It accordingly dismissed the appellant 's application under section 22 of the Act. In regard to the application of the workmen under section 23 of the Act, it held 924 that the wholesale suspension of the 76 workmen and their prevention from resuming work at I p.m. after the lunch hour amounted to a lockout and that this conduct of the appellant amounted to punishment of the workers whether by dismissal or otherwise and was, therefore, in contravention of section 22(b) of the Act. It accordingly ordered the reinstatement of the workmen if they presented themselves at the office of the General Manager during office hours on any day within 15 days of the order and also ordered payment of half the salary and allowances for the period of non payment, viz., from the date of their suspension up to the date on which they were taken back in service. Shri N. C. Chatterjee for the appellant before us has strenuously urged that the workmen had resorted to the tools down strike which was an illegal strike and that the appellant was well within its rights in suspending the pending enquiry and also pending the application for permission to dismiss them made before the Labour Appellate Tribunal. Even if it be held that the appellant had declared a lockout, such a lockout was in consequence of the illegal strike resorted to by the workmen and could not be deemed to be illegal. He further urged that the management had held an enquiry into the illegal strike which had been resorted to by the workmen and found that the workmen were guilty of misconduct and insubordination within the meaning of cl. L. I (a), (b) and (w) of the Standing Orders and the appellant rightly came to the conclusion that any further employment of these workmen would be extremely detrimental to discipline and dangerous in the interests of the indus try. He also contended that the delay in holding the enquiry was not unreasonable and the suspension of the workmen pending enquiry for more than four days was due to sufficient reason, the atmosphere created by the non cooperation of the workers being so tense as not being appropriate for the holding of an enquiry within those four days, that there was no breach of cl. L. 12 of the Standing Orders and that the Labour Appellate Tribunal was in error when it 925 refused to grant the application under section 22 of the Act. Civil Appeal No. 245 of 1954 which is directed against the order of the Labour Appellate Tribunal under section 23 of the Act may be disposed of at once. The Labour Appellate Tribunal was of opinion that the conduct of the appellant in preventing the workmen from continuing work after I p.m. on May 27, 1952, came within the definition of a lockout and the workmen being employed in a public utility concern such lockout would be illegal without a proper notice. It was further of opinion that this conduct amounted to punishment of a worker whether by dismissal or otherwise and was, therefore, in contravention of section 22(b) of the Act. This conclusion of the Labour Appellate Tribunal was, in our opinion, based on a misapprehension of the whole position. The position had been summed up by the Labour Appellate Tribunal in the following words: "As a matter of fact the management never thought of a lockout. Their idea was to suspend the suspected persons pending enquiry for which they gave a notice". If this was the correct position, the conclusion reached by the Labour Appellate Tribunal that the conduct of the management came within the definition of a lockout was absolutely unjustifiable. The Labour Appellate Tribunal recorded its inability to come to a definite finding as to what was the position which obtained on May 27, 1952. It observed "We have got a number of affidavits in support of the parties ' case and there is oath against oath. We do not find ourselves in a position to hold definitely as to what was the exact situation. But it does appear to us that a mountain has been made of a mole hill and conclusions have been arrived at without going deep into the matter". Even if the parties had made a mountain of a mole hill and had reached conclusions without going deep into the matter, it was certainly the business of the Labour Appellate Tribunal itself to record a finding of fact in regard to the situation as it obtained on 926 that day. This unfortunately the Labour Appellate Tribunal did not do and it came to record its conclusion, that the conduct of the management came within the definition of a lockout without realizing that such conclusion was inconsistent with what it ' had stated a little earlier that the management as a matter of fact never thought of a lockout. We have been taken through the whole evidence by the learned counsel for the appellant and there is clear documentary evidence to show that the 76 workmen resorted to a tools down strike from 7 a.m. on May 27, 1952. The reports which were made by the section engineers and sent to the General Manager through the Chief Engineer were clear and categoric in regard to such tools down strike having been resorted to by the workmen in question and the list of the 76 workmen which was prepared by the General Manager ordering their suspension was based on those reports. The further reports which were made by the section engineers again sent by them to the General Manager through the Chief Engineer in the afternoon of May 27, 1952, also were clear and categoric in regard to the said workmen having been asked not to enter the workshop, the boiling house and the mill house at 1 p.m. but their having entered the same threatening violence. A faint attempt was made to charge the section engineers and the Chief Engineer with having conspired "under some mysterious preconceived plans" but the same rested merely on a bare allegation and was not substantiated by any tangible evidence. Even though there was some conflict of evidence in regard to the time when the notice of suspension was given by the General Manager to these workmen and when the notice in that behalf was pasted on the notice board of the appellant, it is abundantly clear on the documentary evidence above referred to that the 76 workmen resorted to a tools down strike from 7 a.m. on the morning of May 27, 1952, that they were suspended till further orders immediately after the receipt by the General Manager of the first series of reports from the section engineers, that they were prevented from entering the premises 927 at I p.m. but entered the same threatening violence. If this is the true position it follows that there was no lockout declared by the appellant, much less an illegal lockout. The workmen bad resorted to an illegal strike and the General Manager rightly ordered that the workmen indulging in such strike should be suspended pending further orders which obviously meant pending enquiry into their conduct and the obtaining of the permission to. dismiss them as a result of such enquiry if the management thought fit. If there was thus no illegal lockout at all, the conclusion reached by the Labour Appellate Tribunal in that behalf was absolutely unjustified. Even if there had been a lockout as concluded by the Labour Appellate Tribunal the same was in consequence of the illegal strike which had been resorted to by these workmen and could not by virtue of section 24(3) of the , be deemed to be illegal. There is, however, a more fundamental objection that, even if the appellant be held responsible for having declared an illegal lockout, the lockout would not come within the ban of section 22 of the Act. The Labour Appellate Tribunal had before it an earlier decision of its own in Jute Workers Federation, Calcutta vs Clive Jute Mills(1), in which the same question had beed considered with reference to section 33 of the . In that case, a lockout had been declared which involved 4,000 workers of the company and a preliminary contention was urged that there was no contravention of the provisions of section 33 of the . The Labour Appellate Tribunal considered the question whether the lockout had (1) in fact altered the conditions of service of the workmen to their prejudice, or (2) had the effect of discharge, or (3) amounted to punishment of the workmen. It came to the conclusion that a lockout had not the effect of a discharge, for a lockout does not automatically terminate the services of the workmen. It did not also amount to punishment, for punishment presup (1) [1951] II L.L.J. 344. 928 poses an offence or misconduct. A lockout is generally adopted as a security measure and may in certain cases be used as a weapon corresponding to what the employees have in the shape of a strike and that, therefore, a. 33(b) would not be contravened by the company by. declaring a lockout. The Labour Appellate Tribunal then considered whether a lockout would attract the operation of section 33(a). It was of opinion that no automatic termination of the services of the employees was brought about by a lockout and the question was whether any of the conditions of service was altered thereby to their prejudice. The contention of the Union was that the conditions of service were altered to the prejudice of the workmen because those employees did, not in fact get their pay during the period of the lockout with the possibility of losing it. This contention was negatived and the Labour Appellate Tribunal was of opinion that the conditions of their service would be altered by the lockout if the employees lost their right to receive their pay during the period of lockout in 'all circumstances but the question whether they would be entitled to get their pay during that period could not be postulated with certainty for that would depend on a variety of considerations. In the opinion of the Labour Appellate Tribunal to bring a case within section 33(a), the questioned act of the employer must directly and in fact alter the conditions of service to the prejudice of the workmen concerned, that is to say, the moment the lockout was declared. The possibility that they may or may not get their pay meant that the lockout may or may not alter the conditions of their service to their prejudice. Section 33(a) would not, therefore, be attracted by the mere fact of a lockout. The Labour Appellate Tribunal thus came to the conclusion that neither section 33(a) nor section 33(b) would be contravened by the company in de claring the lockout. This decision of the Labour. Appellate Tribunal was followed in Colliery Mazdoor Congress, Asansol, vs New Beerbhoom Coal Co. Ltd.(1) and the Labour (1) 11952] L A.C. 219. 929 Appellate Tribunal there held that a lockout did not come within the ambit of section 33 and, therefore, no permission under that section was required for declaring a lockout. We agree with the reasoning adopted in the above cases and are of opinion that a lockout is neither an alteration to the prejudice of the workmen of the conditions of service applicable to them within the meaning of cl. (a) nor a discharge or punishment whether by dismissal or otherwise of the workmen within the meaning of cl. (b) of section 33 of the , or section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, and that, therefore, no permission of the Conciliation Officer, Board or Tribunal as the case may be is necessary to be obtained before a lockout can be declared. If the lockout is legal, no question can at all arise. If, on the other hand,, the lockout is illegal, a remedy is provided in section 26 of the . The employees affected by a lock out would in any event be entitled to refer the industrial dispute arising between themselves and the employer for adjudication by adopting the proper procedure in regard thereto. The Labour Appellate Tribunal was, therefore, clearly in error when it came to the conclusion that the conduct of the appellant came within the definition of a lockout and that it amounted to punishment of the workmen whether by dismissal or otherwise and was, therefore, in contravention of s, 22(b) of the Act. The application of the respondents under section 23 of the Act was accordingly liable to be dismissed and should have been dismissed by the Labour Appellate Tribunal. Civil Appeal No. 245 of 1954 will, therefore, be allowed and the order of the Labour Appellate Tribunal reinstating the respondents in the service of the appellant will be set aside. Coming now to Civil Appeal No. 244 of 1954, the first question to determine is whether the respondents had resorted to an illegal strike. We have already pointed out the circumstances under which the 76 workmen resorted to the tools down strike from 7 a.m. on May 27, 1952, and recorded the finding 121 930 that they not only resorted to such strike but persisted in their attitude in spite of the persuasions of the Chief Engineer and the General Manager of the appellant. The appellant having been declared a public utility concern, the workmen were not entitled to resort to such strike without giving to the appellant notice of the strike in terms of section 22(1) of the , and the tools down strike which was resorted to by them was, therefore, an illegal strike. The fact that the strike was of a short duration viz., from 7 a.m. till 10 30 a.m. would not exculpate the respondents from the consequence" of having resorted to such illegal strike, the avowed intention of the strikers being not to resume work until their pre concerted plan conceived at, the meeting held on the previous night was carried out. The strike resorted to by the workmen was of an indefinite duration. and the management, having failed in its attempts to persuade the workmen to resume their work was well within its rights to suspend these workmen pending further orders. (Vide Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham ' and Carnatic Co. Ltd.(1)). The Labour Appellate Tribunal did not decide this issue at all but only considered the alleged non compliance by the appellant of cl. L. 12 of the Standing Orders as determinative of the whole enquiry before it observing that "although the delay (in holding the enquiry) was not unreasonable, there was no doubt that the management did violate the letter of the rule". It further observed that there was no sufficient reason indicated for extending the period of suspension beyond the period of four days provided in cl. L. 12 of the Standing Orders, the tension created by the non co operation of the workers not having been considered sufficient to preclude the management from collecting materials for conducting the enquiry within the said period of 4 days, This reasoning of the Labour Appellate Tribunal was unsound. Having once come to the conclusion that the delay was not unreasonable, there was no justification for the further (1) ; 931 conclusion reached by the Labour Appellate Tribunal that the tension created by the non co operation of the workers was not a sufficient reason for extending the period of such suspension. The workmen had forcibly entered the premises of the mills in spite of the warnings of the watchmen and the Jemadar and had also entered the workshop, the boiling house and the mill house and continued to stay there threatening violence. In their letter dated June 3, 1952, they had also threatened the General Manager that if he did not mend his illegal mistakes and did not take the workmen back on duty be would be responsible for any breach of peace. This was enough evidence of their mentality and the management naturally enough apprehended breach of peace at the hands of these workmen. If this was the tense atmosphere created by the non co operation of the workmen, the management was perfectly justified in postponing the enquiry by a few days and continuing the workmen under sus pension. The delay which was thus caused in furnishing the charge sheets and giving notice of the enquiry to these workmen on June 2, 1952, was, therefore, sufficiently explained and if there was any one responsible for this. delay it was the workmen and not the management. It did not then lie in the mouth of the workmen to protest against this delay in the enquiry and trot out their suspension for a period exceeding four day 's as an excuse for abstaining from the enquiry. As a matter of fact, the management intimated to the workmen that in spite of June 6, 1952, having been fixed as the date for the open enquiry, the management would be prepared to take up the enquiry earlier provided an intimation was received either from the workmen or from their Union to that effect. Instead of responding to this gesture of the appellant the workmen persisted in asking for an independent enquiry and non co operated with the management in the enquiry which was ultimately held by it as notified at 8 a.m. on June 6, 1952. We are of opinion that under the circumstances the appellant was not guilty of having contravened el. L. 12 of the Standing Orders and the Labour Appellate 932 Tribunal was in error when it came to the contrary conclusion and dismissed the application of the appellant under section 22 merely on that ground without making any further enquiry into the circumstances of the case. It appears that the Labour Appellate Tribunal was driven to take this step because it found itself unable to hold definitely as to what was the exact situation on May 27, 1952. We shall only observe that if the Labour Appellate Tribunal had really ap plied its mind to the question it would have come to the conclusion that the respondents in fact did resort to the illegal strike from 7 a.m. on May 27, 1952, and that there was no contravention of cl. L. 12 of the Standing Orders by the appellant. The next question that falls to be determined is whether the enquiry which was held by the management on June 6, 1952, was a fair enquiry and whether the General Manager observed the principles of natural justice in the conduct of that enquiry Due notice of the enquiry was given to the respondents by the letter of the management addressed to them on June 2, 1952, and if the respondents did not avail themselves of the opportunity of presenting themselves and defending their action at the enquiry they had only themselves to blame for it. It was within the province of the management to hold such an enquiry after giving due notice thereof to the respondents and to come to its own conclusion as a result of such enquiry whether the respondents were guilty of the charges which had been leveled against them. If full and free opportunity was given to the respondents to present themselves at the enquiry and defend themselves it could not be said that the enquiry was anything but fair. No principles of natural justice were violated and the management was at liberty to come to its own conclusions in regard to the culpability of the respondents and also to determine what punishment should be meted out to the respondents for the misconduct and insubordination proved against them. If the ban which is imposed by section 22 of the Act had not been in existence, the management would have been entitled to impose the punishment on the 933 respondents and dismiss them without anything more, if it honestly came to the conclusion that dismissal of these workmen was the only punishment which should be meted out to them in all the circumstances of the case. The respondents would no doubt then have been entitled to refer the industrial dispute which arose out of their dismissal for adjudication by adopting the proper procedure set out in the , and the Industrial Tribunal appointed by the Government for the adjudication of such dispute would have been in a position to thrash out all the circumstances and award to them the appropriate relief This course was, however, not open to the appellant by reason of the pendency of the appeal before the Labour Appellate Tribunal and the only thing which the appellant could do, therefore, was, after coming to its own conclusion as a result of such enquiry, to apply to the Labour Appellate Tribunal under s.22 of the Act for permission to dismiss the respondents and this the appellant did on June 8, 1952. It was not open to the respondents then, having regard to the attitude which they had adopted throughout in relation to the said enquiry, to urge that the enquiry was not fair or impartial or that the principles of natural justice had been violated by the General Manager of the appellant in the conduct of the enquiry. It was, however, urged on behalf of the respondents that the suspension for an indefinite period beyond the period of four days provided in cl. L. 12 of the Standing Orders was a punitive measure and the appellant was not justified in imposing that punishment on them without the permission of the Labour Appellate Tribunal. It was contended that such suspension involved loss of pay by the respondents and being of an indefinite duration inflicted such harassment on them that it could not be deemed to be anything except a punishment. We do not accept this contention. It has been rightly held by the Labour Appellate Tribunal that suspension without pay pending enquiry as also pending permission of the Tribunal under the relevant section could not 934 be considered a punishment as such suspension without payment would only be an interim measure and would last till the application for permission to punish the workman was made and the Tribunal bad passed orders thereupon. If the permission was accorded the workman would not be paid during the period of suspension but if the permission was refused he would have to be paid for the whole period of suspension. There is nothing like a contingent punishment of a workman and therefore such suspension could not be deemed to be a punishment of the workman at all. Such suspension would of necessity be of an indefinite duration because to get a written permission of the Tribunal would mean delay and no Tribunal would likely issue any order without notice and without hearing all the parties concerned. Orders for suspension were meant only as security measures or precau tionary ones taken in the interest of the industry itself or its employees in general. These measures were sometimes called for immediately after an incident and any delay, however small, might defeat the purpose for which such measures were intended. It would therefore be necessary to adopt these measures immediately and to suspend the workman pending the enquiry as also the permission to be obtained from the appropriate Tribunal for dismissing him if as a result of the enquiry the, management thought fit to inflict such punishment upon him. The suspension. , however, would not be a punishment by itself. The ordinary dictionary meaning of the word "Punish" is "to cause the offender to suffer for the offence" or "to inflict penalty on the offender" or "to inflict penalty for the offence" (Concise Oxford Dictionary, 4th Ed.). Punishment can be otherwise defined (Vide Law Lexicon by P.R. Aiyar, 1943 Ed.) as penalty for the transgression. of law, and the word cc punish" denotes or signifies some offence committed by the person who is punished. Any action of the employer to the detriment of the workman 's interest would not be punishment so long as no offence was found to have been committed by the workman. The suspension under such circumstances, therefore, could 935 not be a punishment even though it may be of an indefinite duration and would not attract the operation of section 22 of the Act. It could not be contended, therefore, that suspension without pay even for an indefinite period pending enquiry or pending the permission of the appropriate Tribunal to dismiss the workman would be a punishment which would require permission under section 22 of the Act before the same could be meted out to the workman. (Vide Champdany Jute Mills And Certain Workmen(1); Joint Steamer Companies And Their Workmen(2); Assam Oil Co. Ltd. vs Appalswami(3); Standard Vacuum Oil Co. vs Gunaseelan, M. O.(4)). The scope of the enquiry before the Labour Appellate Tribunal under section 22 of the Act has been the subject matter of decisions by this Court in Atherton West & Co. Ltd. vs Suti Mill Mazdoor Union and Others(5) and The Automobile Products of India Ltd. vs Rukmaji Bala & Others(6). The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the conditions of employment 'to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during tile pendency of the proceedings therein referred to should be lifted. A prima facie case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization. It cannot impose any conditions on the employer before such permission is granted nor can it substitute another prayer for the one which the employer has set out in his application. If the permission is granted, the ban would be lifted and the employer would be at liberty, if he so chooses thereafter, to deal out the (1) [1952] I L.L.J. 554. (2) [1954] II L.L.J. 328. ; (4) [1951] II L.L J. 221. (5) [1954] II L.L.J. 656. (6) , 936 punishment to the workman. On such action being taken by the employer the workman would be entitled to raise an industrial dispute which would have to be referred to the appropriate Tribunal for adjudication by the Government on proper steps being taken in that behalf. When such industrial dispute comes to be adjudicated upon by the appropriate Tribunal, the workman would be entitled to have all the circumstances of the case scrutinized by the Tribu nal and would be entitled to get the appropriate relief at. the hands of the Tribunal. If, on the other hand, such permission is refused, the parties would be relegated to the status quo and the employer would not be able to deal out the punishment which he intends to do to the workman. Even then an industrial dispute might arise between the employer and the workman if the workman was not paid his due wages and other benefits. Such industrial dispute also would have to be referred to the appropriate Tribunal by the Government and the Tribunal would award to the workman the appropriate relief having regard to all the circumstances of the case. The Tribunal before whom such an 'application for permission is made under section 22 of the Act would not be entitled to sit in judgment on the action of the employer if once it came to the conclusion that a prima facie case had been made out for dealing out the punishment to the workman. It would not be concerned with the measure of the punishment nor with the harshness or otherwise of the action proposed to be taken by the employer except perhaps to the extent that it might bear on the question whether the action of the management was bona fide or was actuated by the motive of victimization. If on the materials before it the Tribunal came to the conclusion that a fair enquiry was held by the management in the circumstances of the case and it bad bona fide come to the conclusion that the workman was guilty of misconduct with which he had been charged a prima facie case would be made out by the employer and the Tribunal would under these circumstances be bound to give the requisite permission to the employer to deal 937 out the punishment to the workman. If the punishment was harsh or excessive or was not such as should be dealt out by the employer having regard to all the circumstances of the case the dealing out of such punishment by the employer to the workman after such permission was granted would be the subject matter of an industrial dispute to be raised by the workman and to be dealt with as aforesaid. The Tribunal, however, would have no jurisdiction to go into that question and the only function of the Tribunal under section 22 of the Act would be to either grant the permission or to refuse it. (Vide Champdani Jute Mills And Shri Alijan(1); R.B section Lachmandas Mohan Lal & Sons Ltd. And Chini Mill Karmachari Union(2) Assam Oil Companies ' case(3)). In the circumstances of the present case, once the appellant succeeded in establishing that the workmen had resorted to an illegal strike from 7 a.m. on May 27, 1952, that a fair enquiry into the alleged misconduct and insubordination of the workmen had been held by the management without violating any principles of natural justice, that the management had as a result of such enquiry found that the workmen had been guilty of misconduct and insubordination with which they had been charged and that the management had come to the bona fide conclusion that continuing the workmen in its employ was detrimental to discipline and dangerous in the interests of the appellant, the Labour Appellate Tribunal ought to have held that a prima facie case for the dismissal of the workmen had been made out by the appellant and ought to have granted the appellant the permission to dismiss the workmen. We are, therefore, of opinion that the Labour Appellate Tribunal was clearly in error in rejecting the application of the appellant under section 22 of the Act and refusing it the permission to discharge the respondents from its employ. Civil Appeal go. 244 of 1954 will, therefore, be allowed and the order of (1) [1952] II L.L.J. 629. (2) [1952] II L.L.J. 787, (8) 122 938 the Labour Appellate Tribunal dismissing the application under section 22 of the Act will be set aside. The appellant will be granted permission under section 22 of the Act to discharge the respondents from its employ. Under the orders of the Court, one half of their salary has been already paid by the appellant to the respondents from May 27, 1952, onwards. As a result of this decision, the appellant would be entitled to recover the same back from them. Shri N. C. Chatterjee appearing on behalf of the appellant has, however, stated that the appellant would forego the recovery of that amount and would also keep the respondents on the reserve list to be employed in the mills as and when there were vacancies in their permanent cadre. We hope that the respondents will take this offer in the true spirit with, which it has been made on behalf of the appellant and behave better in the future. Shri N. C. Chatterjee has also left the question of costs of both these appeals to us and we do order that, in all the circumstances of the case, it would be proper that each party do bear and pay its own costs of both these appeals. Appeals allowed. [/INST]The respondent landlord filed a petition for eviction of the appellant, under section 14A read with section 25B of the Delhi Rent Control Act, 1958 on the ground of requirement for personal occupation, in view of the fact that he was forced to pay penal rent of Rs. 1,448 from his Government accommodation as per Government of India notification dated 9 9 1975 and the special order dated 22 1 1976 requiring him to vacate the Government accommodation by 31 12 1975. After presentation of the eviction petition and service of notice under section 25B of the Act, the appellant filed a petition for grant of leave to defend the main petition and raised several objections in the written statement. One such objection was that in view of the later circular of the Government dated 14 7 1977, the respondent was not required to vacate the Government accommodation and, therefore, he was not entitled to evict the appellants under the provisions of section 14A of the Delhi Rent Control Act. The said objection having been disallowed by the Additional Rent Controller the appellant filed Civil Revision Petition before the Delhi High Court, which met with the same fate. Hence the appeal against that order by special leave. Dismissing the appeal, the Court ^ HELD: 1. The respondent landlord is entitled to have recourse to section 14A of the Delhi Rent Control Act, 1958 for evicting the appellants from the premises in question. [68 A B] 2. The second notification dated 14 7 1977 of the Government, without taking away the obligation imposed by the first notification dated 9 9 75 on Government employees owning houses in their own names or in the name of any other member of their families, within the limits of their place of posting, vacate the Government accommodation within three months from 1st of October, 1975, has given an option to those employees to continue to occupy the Government accommodation subject to the obligation mentioned in the second notification, namely, that the house owning Government employee will have to pay normal rent for the Government accommodation if the income from his own house does not exceed Rs. 1,000 per mensem half the market rent if the 54 income from his own house exceeds Rs. 1,000 per mensem but does not exceed Rs. 2,000/ per mensem and full market rent if the income from his house is above Rs. 2,000 per mensem with effect from 1 6 1977. [64 C E] 3. In the present case, (i) even apart from the first notification dated 9 9 1975 which is general in nature and has been modified by the second notification dated 14 7 1977 there is the special order dated 22 1 1976 which required the respondent to vacate the Government accommodation by 31 12 1975, failing which he is to pay market rent with effect from 1 1 1976: (ii) the market rent/licence fee which the respondent had to pay for the Government accommodation on the date of institution of the Eviction Petition was Rs. 1,448 per mensem and it had been increased to Rs. 1,543 per mensem and further enhanced to Rs. 2,898 per mensem by the letter dated 17/18 7 1981 of the Assistant Director of Estates addressed to the respondent: (iii) there is nothing on record to show that the obligation imposed upon respondent by the first notification to vacate the Government accommodation within three months from 1st of October, 1975 and by the special order dated 22 1 1976 by 31st December, 1975 has been withdrawn; (iv) the respondent has an option to continue to occupy the Government accommodation subject to certain obligations contained in the two notifications without vacating the Government accommodation within a period of three months from 1st of October, 1975 and (v) it is not open to the appellants to compel the respondent to exercise his option and continue to occupy the Government accommodation in order that he may continue to occupy the premises in question as the tenant. [64 E H, 65 A B] Busching Schmitz Private Ltd. vs P.T. Menghani and Anr., ; referred to. K.D. Singh vs Shri Hari Babu Kanwal, , overruled. J.L. Paul vs Ranjit Singh, , approved. </s>

<s>[INST] Summarize the judgementAppeal No. 909 of 1971. Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated May 21, 1971 of the Patna High Court in Election Petition No. 2 of 1970. 363 Frank Anthony, A. T. M. Sampath and E. C. A Agrawala, for. the appellant. L. M. Singhvi, Basudeva Prasad, Ravinder Narain and P. C. Bhartari, for the respondent. The judgment of the Court was delivered by Grover, J. This is an appeal from a judgment of the Patna High Court holding that the nomination papers of the respondent Smt. Jahan Ara Jaipal Singh had been illegally rejected by the Returning Officer. For that reason the election of the returned candidate Shri N. E. Horo from the 51 Khunti Parliamentary (Scheduled Tribe) Constituency in the State of Bihar was set aside. On May 1, 1970 the Election Commission of India issued a notification calling upon the above named Parliamentary Constituency to elect a Member to the Lok Sabha in the vacancy caused by the death of late Shri Jaipal Singh. The last date for filing the nomination papers was May 8, 1970. The date for scrutiny was May 9, 1970. Several persons filed nomination papers including Theodore Bodra and others. Two nomination, papers were filed on behalf of the respondent who was a Congress (Ruling) candidate for the aforesaid by election. According to the respondent she was the widow of late Shri Jaipal Singh and was a member of the Munda Scheduled Tribe in the State of, Bihar. She filed certain certificates to that effect. Bodra filed an objection petition to the nomination papers of the respondent. The Returning Officer, after hearing arguments, passed an order rejecting the nomination papers of the respondent. The nomination papers of all the other candidates were accepted. After the polling took place, the result of the election was announced on June 3, 1970 and the appellant Shri Horo was declared elected to the Lok Sabha. On July 8, 1970 the respondent filed an, election petition. In the election petition it was stated inter alia that the petitioner (who is now respondent before us) was the widow of Late Shri Jaipal Singh and belonged to the Munda Scheduled Tribe although she was a Christian by religion. It was averred in paragraph 3 of the petition that according to the Munda Customary Law when a Munda male married outside the Munda Tribe if his marriage is accepted by the Tribe he continues to be a member of that Tribe and his wife also acquires its membership. It was pleaded that the wife being a member of her husband 's family had the right of succession to her husband 's property as well. In para 4 of the petition it was stated that the petitioner was a Tamil by birth. She married late Shri Jaipal Singh in the year 1954 364 according to the rights and rituals of Mundas in the presence of Parha Raja, Parha Munda, Parha Pahan, relatives of the deceased and the members of the Tribe at Morabadi a Mohalla of Ranchi. In paragraph 5 the ceremonies which were performed according 'to Munda custom were mentioned. These ceremonies inter alia were the washing of the wife 's feet by the elder sister of the husband and the holding of the feast of the male goat meat and drinks of Handia etc. A new name was given by her mother in law to the petitioner, that name being Lankashri. All these functions were witnessed by Parha Raja, Parha Munda, Parha Pahan and other members of the Tribe. In paragraph 6 more details were given of the various other ceremonies also which were performed in connection with the marriage. After referring to the relevant provisions of the Representation of People Act 1951, hereinafter called the 'Act ', it was stated that the Returning Officer had illegally allowed irrelevant personal aspersions to be .cast against the petitioner by her opponents. It was alleged that the Returning Officer had been influenced by Bodra who was the Chairman of the Bihar Legislative Council. The decision of the Returning Officer that the status of a Munda could be acquired only by birth and not by marriage and that the petitioner did not belong to the Munda Scheduled Tribe was challenged principally on the ground that the Returning Officer had not considered the custom by which if a Munda male marries a women not belonging to Munda Tribe and that is accepted by the Tribe the wife acquires the membership thereof. In his written statement the returned candidate Shri Horo maintained that even though the election petitioner might be iving as wife of late Shri Jaipal Singh she was never married in accordance with the custom of the Munda Tribe prevalent in Chhota Nagpur. It was denied that she was ever accepted as a member of the Munda community as no such custom is prevalent in that community. It was denied that the ceremonies and rituals mentioned in the election petition had been performed in respect of the marriage of the election petitioner with the late Shri Jaipal Singh. In paragraph 25 of the written statement it was asserted that a non Munda merely by virtue of the marriage with a Munda could not ipso facto become a Munda. If a person was not born of a father belonging to a Scheduled Tribe he or she could not legally claim to be a member of the said Tribe. It was asserted that since the election petitioner was not the daughter of a member of the Munda Tribe she could not claim to be a member of that Scheduled Tribe. The allegations of mala fides made against the Returning Officer were described as baseless and extraneous. During the pendency of the election petition the Lok Sabha was dissolved on December 27, 1970. A petition was filed 365 before the High Court on behalf of Shri Horo that the election petition should be dismissed as having become infructuous. The court made an order on January 14, 1971 holding that the election petition could not be dismissed on that ground. On the pleadings of the parties seven issues were framed. Issues 1, 2 and 3 which are material need be mentioned. (1) Is the election petition maintainable ? (2) Whether the petitioner was the legally married wife of late Shri Jaipal Singh according to the custom of Munda Tribe prevalent in Chhota Nagpur ? (3) Whether the petitioner could legally acquire the status of a Munda by virtue of her marriage to late Shri Jaipal Singh and whether she had been accepted as a member of the Munda Tribe by the said Tribe ? It may be mentioned that so far as issue No. 1 was concerned the objection taken was that the election petition was defective on account of the non joinder of necessary parties. When the election petition was filed only Shri Horo the returned candidate was impleaded but subsequently a petition was filed on behalf of the election petitioner making a prayer that the other contesting candidates were also necessary parties and should be impleaded. The court directed that they be added as parties. Shri Bodra who was one of the contesting parties was consequently impleaded as a party. Later on it was prayed on behalf of the petitioner that on a further consideration it was found that the persons who had been subsequently added were not necessary parties and their names might be deleted. Bodra 's name was therefore deleted. The argument raised before the High Court was that Bodra being a necessary party to the petition under cl. (b) of section 82 of the Act the petition became defective as soon as his name was struck off at the instance of the election petitioner. The High Court was of the view that although in paragraph 21 of the election petition an allegation had been made that Bodra had influenced the Returning Officer, no evidence was led on that point and the case of the election petitioner was based solely on the ground that the nomination paper had been illegally and improperly rejected. No relief had been sought on the ground that undue influence had been exercised on the Returning Officer by Bodra. The High Court was also of the view that the allegation made in the election petition that Bodra had exercised his influence in getting the nomination paper of the election petitioner rejected did not fall within the ambit and scope of sub section (7) of section 123 of the Act. The contention that the petition was not maintainable was consequently rejected. On the main issues, namely (2) and (3) it was expressly stated in the judgment that the factum of the marriage of the elec 366 tion petitioner with the late Shri Jaipal Singh had not been disputed. The real controversy between the parties in the High Court centered round the point whether the marriage was in such form that the wife acquired the membership of the Tribe. According to the arguments on behalf of Shri Horo as the election petitioner was not a Munda she could not belong to the Munda Tribe and that by marriage such a status could never be acquired. The High Court examined the evidence relating to the question whether the marriage of the election petitioner with late Shri jaipal Singh had been performed in accordance with the Munda custom and was in such form that she was accepted and treated as a member of the Munda Tribe. The court also considered the various authoritative books and other works relating to the Mundas and came to the conclusion that on a survey of the entire, evidence and the circumstances there was no reason to discredit the evidence which had been led on behalf of the petitioner that she was married according to the Munda custom and that it was with the approval and sanction of the Tribe that she had been accepted as a member of the Munda tribe. The first contention raised by Mr. Frank Anthony on behalf of the appellant relates to issue No. 1. It has been maintained by him that Bodra was a necessary party. Apart from the fact that he was the only person who had filed a written objection to the nomination of the respondent the election petition filed by the respondent contained serious allegations of corrupt practice against Bodra. As he had been given up as a party although impleaded at one stage the petition became defective and was not maintainable. According to clause (b) of section 82 of the Act the petitioner must join as a respondent any candidate against whom allegations of any corrupt practices are made in the petition. Section 86(1) provides that the High Court shall dismiss any election petition which does not comply inter alia with the provisions of section 81. There can be little doubt that if the allegations made in the election petition against Bodra amounted to the commission of a corrupt practice by him it was obligatory on the part of the election petitioner to join him as a respondent to the petition. It is equally clear that in that event the petition would have become liable to dismissal. For finding out what a corrupt practice is we have to turn to section 123 of the Act. According to Mr. Anthony the allegations made against Bodra fell within sub section (7) of section 123 which is in the following terms : section 123 "The following shall be deemed to be corrupt, practices for the purposes of this Act: 367 .lm15 (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidate 's election, from any person in the service of the Government and belonging to any of the following classes, namely : (a) gazetted officers; (b) stipendary judges and magistrates; (c) members of the armed forces of the Union: (d) members of the police forces; (e) excise officers; (f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmykhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and (g) such other class of persons in the service of the Government as may be prescribed. Explanation(1) In this section the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. (2) For the purposes of clause (7) a person shall be deemed to assist in the furtherance of the prospects of a candidates 's election if he acts as an election agent of that candidate". The allegations against Bodra are contained in para 21 of the election petition which may be set out : "That the Returning Officer, while hearing the objections illegally allowed irrelevant personal aspersions to be cast against the petitioner by her opponents and the aforesaid Shree Theodore Bodra even after protests made by and on behalf of the petitioner, Shrimati Jahanara Jaipal Singh, against the same '. plain reading of the above paragraph shows that no such alletion was made that Bodra had influenced the Returning Officer I L887 Sup CI/72 368 for the purpose mentioned in section 123(7) of the Act. The essential ingredient of that provision is to obtain, procure etc. by a candidate of any assistance (other than the giving of a vote) for the furtherance of the prospects of that candidate 's election from any person in service of the Government and belonging to the classes mentioned in the sub section. There is absolutely no allegation or suggestion in para 21 that the Returning Officer was influenced by Bodra for the purpose of rendering assistance for the furtherance of the prospects of the election of any candidate. All that has been stated in that paragraph is that while hearing the objection the Returning Officer allowed irrelevant personal aspersions to be cast against the election petitioner by her opponents and Bodra. It was further stated that on inquiry the election petitioner came to learn that the Returning Officer had been influenced by Bodra. This influence apparently can have reference only to the conduct or act of the Returning Officer in allowing personal aspersions to be cast against the election petitioner. Even by stretching the language it is not possible to discover any of the ingredients which would constitute a corrupt practice under section 123(7) of the Act. Faced with this situation Mr. Anthony sought to rely on sub section (2) of section 123 the relevant part of which is as follows : "(2) 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 person with the consent of the candidate or his election agent with the free exercise of any electoral right: Provided that ". . " It is not possible to comprehend how the allegation contained in para 21 can be understood to amount to a suggestion of direct or indirect interference, or attempt to interfere on the part of the candidate etc. with the free exercise of any electoral right. We are accordingly satisfied that no allegation of any corrupt practice had been made in the election petition against Bodra and therefore he was not a necessary party within section 82 of the Act. In this view of the matter it is not necessary to examine the criticism of Mr. Anthony of that part of the judgment of the High Court according to which one of the reasons given for deciding issue No. 1 in favour of the present respondent was that no relief had been sought on the ground that undue influence had 'been exercised on the Returning Officer by Bodra and that no evidence was led on that point. On issues 2 and 3 Mr. Anthony has raised three main points The first was that the respondent who was a Christian by birth, was a divorcee and according to her own statement the decree 369 nisi in the divorcee proceedings had been made absolute on May 6, 1954. According to her she got married to late Shri Jaipal Singh on May 7, 1954. This marriage was a nullity as under section 57 of the she could not enter into a second marriage until after the expiry of six months from the date the decree had been made absolute. Secondly the High Court had palpably erred in holding that the respondent had become a member of the Munda tribe by marrying Shri Jaipal Singh and set aside the order of the Returning Officer who had held that she was a Christian by birth and Munda tribe being an ethnic group its membership could not be acquired by marriage but could be acquired only by birth. Thirdly it has been strongly urged that the respondent failed to prove the custom that a non Munda could be initiated into tribe as its full fledged member either by performance of certain rituals and ceremonies or by the acceptance as such by the tribe or its panchayat. As regards the first point it was never canvassed or argued before the High Court. No plea was taken by Shri Horo in the written statement that there could be no valid marriage between the respondent and late Shri Jaipal Singh owing to the provisions contained in section 57 of the until after the lapse of. a period of six months from the date the decree of divorce was made absolute. None of the issues which was framed by the High Court involve the question now sought to be agitated based on the provisions of section 57 of the . It appears that advantage is sought to be taken from the statement of the respondent about the various dates when the decree absolute was granted and the date when the marriage took place between the respondent and the late Shri Jaipal Singh. In the absence of any pleadings or issues no material has been placed on the record to show that in view of the provisions of section 57 of the aforesaid Act there could not be a valid marriage according to the Munda customary law. It must be remembered that the respondent contracted a marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and not as one Christian marrying another Christian. Nor was the matter pursued in cross examination of the respondent and she was not asked as to how she could get over the bar of section 57 in theway of remarriage before the expiry of the prescribed period. In these circumstances we do not consider that such a pointcan be allowed to be agitated for the first time before this Court. On the second and the third points, a great deal of reliance has been placed on the following statement in the well known book of section C. Roy "Mundas and their country", 1912 Edn. "The Munda tribe is divided into a large number of exogamous groups called kilis. According to 370 Munda tradition, all the members of the same Kili are descended from one common ancestor. But such a tradition may not be quite correct with regard to the original kilis. Though exogamous as regards the kilis, the Mundas are endogamous so far as other tribes are concerned. Thus, there can now be no valid marriage, according to Munda custom, between a Munda and the member of any other 'kolarian ' tribe, such as the Santals, the Kharias the Asurs, or the Bir hors". According to Roy the family came to be evolved from tribes and sub tribes. Communal marriage was superseded by the individual marriage and Matriarchal Age was superseded by Patriarchal. Kinship came to be traced not as before, through a common female ancestor but through a male ancestor. D. N. Mazumdar in his work on the Ho tribe entitled "Affairs of a Tribe", 1950 Edn. points out that the rule of endogamy has its base in superstitious belief. According to him villages which are closely allied by ties of marriage are those which share the same God and Spirits and the same Deonwa. The influence of Deonwas, in other words, the knowledge of the Bongas of an area, determines the limit of exogamy, for there is a risk in marrying in villages the Bongas of which are unknown; (pp. 237 238). From the account given by section C. Roy himself it appears that according to the Munda custom the rule of endogamy is not absolute; for instance, in the case of Munda female married or unmarried found to have gone astray with a man of a different caste or tribe, it is said, that the latter is summoned before a Panchayat and a heavy fine is imposed on the lover and the fine, if realised, is paid as compensation to the parents of the seduced maiden or the husband of the married female and the seducer is compelled to take the girl or woman as a wife or a mistress and in case of refusal (which is rare) to submit to the orders of the Panchayat. The family of the seduced female remains outcaste until a purificatory ceremony is performed and thus restored to caste. The members of the family then cook rice. and pulse and themselves distribute the food to the assembled relatives; (see pp. 544 545.) The question that has to be enquired into is whether the strict rule of endogamy of the Munda tribe has been deviated from and whether custom has sanctioned such deviation. D. W. Mazumdar in his work "Races and Cultures of India" deals with tribal organisations in Chapter 17. According to him the definition that is found in the current literature on the subject is given in the Imperial Gazetteer which is, "A tribe is a collection of families bearing a common name, speaking a common dialect occupying or professing to occupy a common territory and is 371 not usually endogamous though originally it might have been so". Endogamy is an essential feature of the tribe though intertribal marriages are breaking the limits of endogamy. It is further stated by him that "the importance of the blood bond or the kinship group is forced to the background, the communal economy of the clan is superseded by individual desire for gain and property, money assumes an importance it seldom had before, and the ties of reciprocity and mutuality of obligation are reoriented to suit new conditions. Tribal custom and practices which established social life lose their value and the choice of 'leader and of mate is guided by different considerations". The Munda tribe cannot be said to be immune from the above process of change in their social Organisation. Changes in their belief, customs, traditions and practices have taken place under the in fluence of Hinduism, Christianity, and on account of the impact of western education, urbanisation, industrialisation and improved means of communication. The sense of individualism and lack of love for, the traditional code of conduct and social taboos ,ire stated to be apparent among the emerging urban industrial oriented adivasi communities. D. N. Mazumdar has made an intensive study of the rule of endogamy among the Ho tribe which is an off shoot of the Munda tribe. A reference to, the Ho practice may, therefore, help us in understanding the practice among the Mundas. According to D. N. Mazumdar "A Ho does not marry outside the tribe as a rule but there is today no legal or social prohibition against his doing so. Though tribal code has relaxed considerably those who work in the mining and industrial centers in and outside Kolhan contract such alliances and when they come back to their villages they are not outcasted by the society;" (pp. 124125, "Races and Cultures of India"). At another place he records : "The endogamy of the tribe is not sacred today, with the result that many marriages have taken place between the Hos and other tribes. Liaison between Diku men and Ho girls is increasing, and cases that have occurred in Chaibassa during the last ten years or so would fill a volume. Thus, there being no longer ,my deterrent to mating with strangers, social authority vested in the Killi punch has to exercise its prerogative to ensure a compliance with social traditions. Killi exogamy has not led to an indiscriminate alliance between the different killis and as far as our knowledge goes, taboo on marriage outside a particular local area can be traced to a dread of unfamiliar Bongas, who were conceived as hostile,. and therefore dangerous". (p. 236). 372 L. P. Vidyarthi in his work mentioned before based on his study of the social life of the Oraon and Munda tribes living in the city of Ranchi points out that a good number of cases of marriage between tribals and non tribals have occurred and that in his investigation he came across 53 cases of non tribal males marrying tribal girls. He points out that greater percentage of love marriages and marriages by 'Kept ' have been socially disapproved while 83.3% and 100 % of arranged and legal (civil) marriages have been approved. (See pages 102 103). We may how deal with the evidence produced by the parties on the above points. P.W. I who was working as District Wel fare Officer in May 1970 at Ranchi and who belongs to the Munda tribe stated that if a Munda male married a non Munda girl and such marriage was accepted by the society it would be a valid and proper marriage. The wife would, therefore, be accepted as a member of the tribe. He had himself married an Oraon girl and his wife though a non Munda has been accepted as a member of the Munda tribe. He further deposed that if the Munda married a non Munda a feast is given and if the elders of the society accept the marriage and participate in the feast that by itself would show that the tribal society has accepted the marriage and the wife has become a member of the tribe. P.W. 2 who is a nephew of the late Shri Jaipal Singh gave details of the ceremonies which were performed when the marriage between his uncle and the respondent took place. After the performance of those ceremonies the members of the tribe and the family declared that the respondent had been accepted as a member of the tribe. He himself is married to a non Munda girl though he was married according to Munda marriage rights as well as according to Hindu law. P.W. 3 who was at the material time working as Assistant Director in Sociology, Bihar Tribal Welfare Institute, stated that he had been doing research on the subject of Bihar Tribal Marriage and Family Transformation with special reference to Family law. One of his major duties was to ascertain from the members of different tribes facts relating to the subject of his research. According to his evidence a Munda male can marry a non Munda girl. After adopting a special procedure in some cases a non Munda wife is accepted as a member of the tribe. A certain procedure or formality has to be gone through. The council of elders of the tribal people has to be consulted and the special reason for the marriage is to be stated. Then various rituals are gone through and the marriage is allowed by the elders. He gave instances where, a Munda male had married a non Munda girl and their marriage had been accepted by the tribal people. One of these instances given by him related to persons belonging to the Santhals and Ho tribes. He maintained that the customs prevalent among these tribes were broad 373 ly the same as among the Mundas. In cross examination he stated that he had met the members of the Munda elder council and he had remained in touch with that council since 1952. He had made special research of Jojo Hatu which was a Munda village. He claimed to have submitted a report to the government in which he had collected hundreds of cases where a girl of a particular tribe had married outside her tribe. P.W. 4 was the Superintendent of the Anthropological Survey of India, Ministry of Education. As an Anthropologist he had to undertake full study in different parts of India mostly among the tribal community. He had studied Munda tribal custom which assignment had been given to him in 1965 66. In course of the research he found that a Munda could marry a non Munda girl even before 1954. He gave three kinds of unusual marriages one of which was where a Munda male married a non Munda female. The social consequences of that marriage was called Jati Bora. That meant that the Munda male had committed an offence against the whole community. Normally he would be ostracised along with his family but there was a process by which he and his wife could be admitted into the community. This process was known 'Niyar ' which means "to bring in or take in". The offending party invites the members of the Parha gives them a feast at which a white goat is sacrificed and the blood is smeared on the body of the boy and the girl along with Tarmolik and then they are allowed to sit along with the members of the community in the same Pankti. After that they are formally considered as members of the community. He was specifically asked a question with regard to the manner in which a Munda boy marrying a non Munda girl would be accepted by the community and his reply was that in his opinion the Parha was the ultimate authority in the matter of acceptance of a non Munda girl in the community. If a Parha accepted her that was final. in cross examination he stated that if a marriage of the nature under discussion is not approved by Parha he did not think it would be accepted by the members of the society. It may be mentioned that the evidence of this witness has been subjected to a good deal criticism by Mr. Anthony for the reason that he was only expressing an opinion on the last matter and was not making a def inite statement of fact. P.W. 5, who was attached to the office of the Deputy Commissioner, Palamau, gave an ac count of the ceremonies which were performed of the marriage between the respondent and late Shri Jaipal Singh. According to him the elders of the community unanimously decided that since permission had been given by the elders they would be taken as members of the tribe. He denied the suggestion that it was on account of the influence of late Shri Jaipal Singh that Pahans had given sanction to the marriage. According to him there had been other cases also where such sanction had been given. 374 P.W. 8 who claimed to be a Parha Raja of three Parhas, viz., Takara Parha, Sada Parha and Sagha Parha comprising 36 vil lages also gave evidence about the ceremonies which were performed at the marriage of late Shri Jaipal Singh with the respondent. After the performance of the ceremonies the Samaj of the Munda tribe accepted the marriage, according to him. He deposed to other instances where Munda had married non Mundals. He had attended a marriage of a Munda who had married a Ho girl. Sanction was given by the elders to that marriage. It is unnecessary to refer to the evidence of P.W. 10 who is also a Pahan and who claimed to have been present at the time of the marriage in question. He made a statement which has been subjected to justifiable criticism by Mr. Anthony about the document Exht 3. His evidence, therefore, does not deserve consideration. Out of the witnesses examined on behalf of the respondent mention may be made of the statement of Shri Horo himself who appeared as R.W. 6. After stating that the late Shri Jaipal Singh who was a leader of the Jharkhand Party and was an Adivasi and a Munda professing the Christian religion, he affirmed that the respondent did not have the right and status of a Munda on the basis of established custom. He admitted that there was a custom that a Munda who had been excommunicated from the tribe could be taken back but according to him that person must be a Munda and no non Munda could be accepted as a member of the tribe. The Munda could of course marry a non Munda but in the manner in which the Munda usually married a Munda. The custom among the Mundas is changing and it is dynamic and not static. The other witnesses produced by Shri Horo are not impressive and do not afford much assistance in deciding the points under discussion. According to the observations of the High Court Shri Horo did not examine any witness on his behalf who could say that he had made a special study and research of the marriage custom of the Munda tribe and that such a marriage was not acceptable in the present times in spite of all the changes which have taken place in the life and social structure of the community owing to the impact of the various factors which have been mentioned in the authoritative studies of eminent Anthropologists mentioned before. Our attention ha,, been drawn by Mr. Anthony to certain decisions for the proposition that in a tribe which is endoganotus birth alone can confer the status of membership of the tribal community. In V. V. Giri vs D. Suri Dora & Others(1) one of the, questions raised, was whether respondent No. 1 in that case had ceased to be a member of the Schedule Tribe at the material time because be had become a Kshtriya. This court observed that it (1) 375 was essential to bear in mind the broad and recognised features of the hierarchical social stricture prevalent amongst the Hindus. It was considered enough to state that whatever might have been the origin of the Hindu castes and tribes in ancient times, gradually status came to be based on birth alone. It was pointed out that a person who belonged by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status. We are unable to see how this case can be of any assistance in deciding the matter before us, namely, whether a non Munda can by marriage be recognised as a member of the Munda tribe in certain circumstances. The High Court, after discussing the evidence and referring to other authoritative books like "Tribes and Castes of Bengal" by H. H. Risley and "Encyclopedia Mundarica" by Rev. John Hoffman as also the statement in Encyclopedia Britannica, Vol. 15, and the Encylopaedia of Religion and Ethics by James Hastin ings, Vol. IX, apart from the work of J. Reid, I.C.S., on Chhota Nagpur Tenancy Act, observed that although originally very severe restrictions were imposed amongst the Mundas as far as marriage in their own Kili or seat was concerned, the process of Munda assimilation to the larger Indian society facilitated by im proved communications and the introduction of formal system of education was being accelerated under the independent Government of India. In Encyclopedia Britannica, Vol. 15 in the Chapter relating to Mundas it is also mentioned. "The Munda speaking people, with the other Indian tribal groups, are being encouraged to adopt new customs and to become fully participating members of Indian society". (page 991). Similarly in the Encyclopedia of Religion and Ethics by James Hastings, Vol. IX, it has been stated as to how Munda customs are being changed with the impact of the influence of Christianity. Referring to the Chapter in Reid 's book it has been noticed by the High Court that according to the Munda conception a wife becomes a member of the Kili of her husband by legal fiction. The High Court further relied on the decision in Wilson Reads vs C. section Booth(1) in which it was held that the question whether a person can be regarded as a member of the Khasi tribe was a question of fact depending upon the evidence produced in the case. It was said that the whole object of reserving a seat for a particular tribe was to afford the community, ;is a whole, a right of representation and therefore the question of the membership of a particular individual of that community could not be considered divorced from the very object of legislation. Thus the conduct of the community which had been given the right of special representation. the manner and how the (1) A. T. R 376 community regarded a particular individual and whether the community as a whole intended to take the individual within its fold were all matters which would be relevant for consideration of the question whether a particular person could be regarded as a member of the Scheduled Tribe. The High Court was alive to the fact and this point of distinction has been greatly emphasised by Mr. Anthony that in that case the appellant claimed to be a Khasi, his father being a European and his mother a member of the Khasi tribe. Even though the facts were different, the approach in such matters which commended itself to the Assam High Court can hardly be regarded as unsound. It appears to us, on a full consideration of the entire material. that the following matters stand established in the present case : (1) The Mundas are endogamous and inter marriage with non Mundas is normally prohibited. (2) That a Munda male along with his family on marrying a non Munda girl is often ex communicated or outcasted. (3) That the rule of endogamy is not so rigid that a Munda cannot marry a non Munda after performing special ceremonies. (4) That such marriages have been and are being sanctioned by the Parha Panchayat. (5) That where a Munda male and his family are ' outcasted for marrying a non Munda they are admitted to the tribe after certain special ceremonies are performed. Even in the account given by S.C. Roy as well as by P.W. 4 a Munda male is excommunicated for marrying a non Munda girl but such excommunication is not automatic. It is left to the discretion of the panchayat. If the panchayat approved of a particular marriage with a non Munda then no question of excommunication arises. Thus several inroads appears to have been made on the rigid system of endogamy which might have existed at one time but over the course of years several matters are left to be decided by the panchayat or elders of the tribe itself. There is no evidence whatsoever that the late Shri Jaipal Singh was excommunicated or outcasted because he had married a non Munda. On the contrary there is abundant evidence that his marriage was accepted as valid and was approved by the Parha Panchayat or the elders of the tribe. Reverting to the argument that a non Munda women cannot become a member of the Munda tribe by marriage even if the 377 marriage be valid because the Mundas are a patriarchical society and constitute an ethnic group, we have already referred to the evidence of the witnesses produced by the respondent who had made, special research in the matter and even if we exclude the opinion of P.W. 4 who was Superintendent of Anthropological Survey of India that the Parha was the final authority in the matter of acceptance of an non Munda girl in the community but the rest of his evidence cannot be brushed aside. From all this evidence it is proved that once the marriage of a Munda male with a non Munda female is approved or sanctioned by the Parha panchayat they become members of the community. They contention of Mr. Anthony that a person can be Munda by birth alone can be sustained only if the custom of endogamy is established without any exception. We have already held that the rule of endogamy has not been proved to exist in the rigid or strict form canvassed by Mr. Anthony. That rule has not been strictly followed and the marriage of a Munda male with a non Munda woman has been and is being approved and sanctioned by the Parha panchayat. If a non Munda woman 's marriage with a Munda male is valid it is difficult to say that she will not become a member of the Munda tribe. The, concept of a tribe is bound to undergo changes, when numerous social, economic, educational and other like factors in a progressive country start having their impact. It is noteworthy that a Hinduised Munda and a Munda converted to Christianity can inter marry and conversion to Christianity has not become an obstacle in the way of such marriage among the Mundas. Mr. Horo himself in all fairness affirmed that custom among the Mundas was not static but was dynamic and was changing. We do not find cogent or weighty reasons for disagreeing with the view of the High Court on the points under discussion. We may also refer to Article 330 of the Constitution accord ing to which the seats reserved for the Scheduled Tribes are to be reserved in the House of the People, inter alia, for members of these Tribes. Under section 33 (2) of the Act a candidate for a reserved seat has to file a declaration specifying a particular caste or tribe of which he is a member. Article 342(1) empowers the President to specify 'the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be. In Parts 1 to 12 of the Schedule to the Constitution (Scheduled Tribes) Order 1952 are specified the tribes or tribal communities or parts of or groups within the tribes or tribal communities who are to be deemed to be Scheduled tribes. Munda is one of such specified tribes or tribal communities. It can well be said that the term "tribal community" has a wider connotation than the expression "tribe". A person who, according to the strict custom of a tribe '. 378 cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community. Where a non Munda woman is married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe. She cannot, however, be_ excluded from the larger group, namely, the tribal community. The High Court has taken the view that the use oil the term "tribal communities" in addition to the term "tribes" in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal community to which her husband belongs on the anology of the wife taking the husband 's domicile. Even without invoking the doctrine of domicile the respondent 's marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can be said that she became a me mber of the Munda tribal community. We have not been shown any infirmity in the reasoning of the High Court on this point. When a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions. In the result this appeal fails and it is dismissed but in view of the nature of the points involved we leave the parties to bear their own costs in this Court. V.P.S. Appeal dismissed. [/INST]An order of dismissal of complaint under section 203 Cr. P.C., has to be made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. A Magistrate is not debarred,. at this stage, from going into the merits of the evidence produced by the complainant, but the, object of such consideration could only be to whether There are sufficient grounds for proceeding further. The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessary fail. On the other hand, such grounds indicate the need for proceeding further in order to discover the truth after a full and proper investigation. If, however, a bare perusal of a complaint or the evidence led in support of it show that the essential ingredients of the offences alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in the evidence produced that it would be a waste of time to proceed further the complaint could be properly dismissed under the section. [9176 F H] Where, therefore, the Magistrate dismisses a complaint on a misreading of the oral evidence and the evidence, in fact, does not reveal,any absurdity so as to merit a forthright dismissal of the complaint under the section, such an order is. fit to be set aside by the High Court. </s>

<s>[INST] Summarize the judgement: Special Leave Petition (Civil) No. 5523 of 1984. From the Judgment and Order dated 28th November, 1983 of the High Court of Gujarat in Special Civil Application No. 4649 OF 1981. Vimal Dave for the Petitioner. The Judgment of the Court was delivered by DESAI, J. Petitioner is shown to be guilty of suppression of a material fact which would weigh with any employer in giving him employment and therefore, the case of the petitioner does not merit consideration under article 136 of the Constitution and his petition for special leave to appeal against the decision of a Division Bench Of 558 the Gujarat High Court in Special Application No 4649 of 1981 dated November 28,1983 must accordingly fail but this short epistle became a compelling necessity in view of the statement of law appearing in the judgment of the High Court which if permitted to go uncorrected, some innocent person may suffer in future. That is the only justification for this short order. The petitioner on his application was recruited in the Sales Tax Department on September 30, 1950 and at the relevant time he was working as Sales Tax Inspector. By an order dated January, 31 1964 of the Commissioner of Sales Tax, Gujarat State, the petitioner who was at the relevant time working as Sales Tax Inspector was charged with misconduct of gross negligence and acted with gross impropriety in demanding illegal gratification, and as these charges were held proved, the Commissioner of Sales Tax imposed a penalty of removal from service. This is not in dispute and therefore it can be safely stated that the petitioner was removed from the service of the Sales Tax Department on account of the proved misconduct. After being removed from the Sales Tax Department, the petitioner joined service in Bhakta Vallabh Dhola College, Ahmedabad ( 'college ' for short) on May 15, 1964. While continuing his service with the college, the petitioner applied on January 13, 1968 for the post of Head Clerk with Ahmedabad Municipal Corporation. The application had to be made in the prescribed form, Column No. 14 of which required the applicant to state whether the applicant had been removed from service and if so, reasons for removal and if the applicant had voluntarily left previous service, reasons for leaving the service should be stated. While answering this column, the petitioner stated that he had served in the Sales Tax Department from September 30, 1950 to January 31,1964 and that he has resigned from service due to transfer. It thus appeared that the petitioner was guilty of suppressio veri and suggestio false inasmuch as he suppressed the material fact that he was removed from service on the ground of proved misconduct and that he made a false suggestion that he had voluntarily left service because of transfer. Ultimately when these facts came to light, he was charge sheeted and removed from service. A petition to the Labour Court was rejected on the ground that the misconduct alleged against the petitioner is proved. His writ petition to the High Court proved unsuccessful. Hence he filed this petition for special leave. 559 The High Court while dismissing the petition held that even if A the allegation of misconduct does not constitute misconduct amongst those enumerated in the relevant service regulations yet the employer can attribute what would otherwise per se be a misconduct though not enumerated and punish him for the same. This proposition appears to us to be startling because even though either under the Certified Standing Orders or service regulations, it is necessary for the employer to prescribe what would be the misconduct so that the workman/employee knows the pitfall he should guard against. If after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer. It is a well settled canon of penal jurisprudence removal or dismissal from service on account of the misconduct constitutes penalty in law that the workmen sought to be charged for misconduct must have adequate advance notice of what section or what conduct would constitute misconduct. The legal proposition as stated by the High Court would have necessitated in depth examination, but for a recent decision of this Court in Glaxo Laboratories vs The Presiding Officer, Labour Court Meerut & Ors.(1) in which this Court specifically repelled an identical contention advanced by Mr. Shanti Bhushan, learned counsel who appeared for the employer in that case observing as under: "Relying on these observations, Mr. Shanti Bhushan urged that this Court has in terms held that there can be some other misconduct not enumerated in the standing order and for which the employer may take appropriate action. This observation cannot be viewed divorced from the facts of the case. What started in the face of the court in that case was that the employer had raised a technical objection ignoring the past history of litigation between the parties that application under Sec. 33A was not maintain able. It is in this context that this Court observed that the previous action might have been the outcome of some misconduct not enumerated in the standing order. But the extracted observation cannot be elevated to a proposition of law that some misconduct neither defined nor enumerated and which may be believed by the employer to be misconduct ex post facto would expose the workman to a (1) [1984]1 S.C.R. 230. 560 penalty. The law will have to move two centuries back ward to accept such a construction. But it is not necessary to go so far because in Salem Erode Electricity Distribution Co. Ltd. vs Salem Erode Electricity Distribution Co. Ltd. Employees Union,(1) this Court in terms held that the object underlying the Act was to introduce uniformity of terms and conditions of employment in respect of workmen belonging to the same category and discharging the same or similar work under an industrial establishment, and that these terms and conditions of industrial employment should be well established and should be known to employees before they accept the employment. If such is the object, no vague undefined notion about any act, may be innocuous, which from the employer 's point of view may be misconduct but not provided for in the standing order for which a penalty can be imposed, cannot be incorporated in the standing orders. From certainty of conditions of employment, we would have to return to the days of hire and fire which reverse movement is hardly justified. In this connection. we may also refer to Western India Match Company Ltd vs Workmen(2) in which this Court held that any condition of service if inconsistent with certified standing orders, the same could not prevail and the certified standing orders would have precedence over all such agreements. There is really one interesting observation in this which deserves noticing Says the Court: "In the sunny days of the market economy theory people sincerely believed that the economy law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer and the workman Such a bargain, they took it for granted, would secure fair terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the verity of this law. But the experience of the working of this law over a long period has belief their faith. " Lastly we may refer to Workmen of Lakheri Cement Works (1) ; (2) ; 561 Ltd. Associated Cement Companies Ltd(1) This Court repelled the contention that the Act must prescribe the minimum which has to be prescribed in an industrial establishment, but it does not exclude the extension other wise. Relying upon the earlier decision of this Court in Rohtak Hissar District Electricity Supply Co. Ltd. vs State of Uttar Pradesh & Ors(2) the Court held that everything which is required to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is none the less a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty. Accordingly, the contention of Mr. Shanti Bhusan that some other act of misconduct which would per se be an act of misconduct though not enumerated in S.O. 22 can be punished under S.O. 23 must be rejected. It is thus well settled that unless either in the Certified Standing Order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workman even though the alleged misconduct would not be comprehended in any of the enumerated misconduct. The High Court fell into error when is observed that: "The conduct of the petitioner in suppressing the material facts and misrepresenting his past on the material aspect cannot be said to be a good conduct. On the contrary it is unbecoming of him that he should have deliberately suppressed the material fact and tried to obtain employment by deceiving the Municipal Corporation. It is clearly a misconduct " After thus holding that the suppressio very and suggestio false would constitute misconduct, the High Court held even if it (1) [1970] 20 Indian Factories & Labour Reports, 243. (2) ; 562 does not fall in any of the enumerated misconducts, yet for the purpose of service regulation, it would none the less be a misconduct punishable as such. We are unable to accept this view of law and it has to be rejected. Having clearly restated the legal position, we reject this special leave petition. M.L.A. Appeal dismissed. [/INST]In exorcise of the powers conferred by section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act 18 of 1960), the Government of Tamil Nadu by a Notification No. II (2) H. O. 6060/76 dated 21 t November, 1976 exempted the Buildings owned, inter alia by all the co operative societies from all the provisions of the said Act. Since the protection available to the petitioners, who wore tenants in a building belonging to respondent No. 2, an Apex Society registered under the Tamil Nadu Co operative Societies Act, 1961 and covered by the said notification. had been withdrawn and since the petitioners were facing the imminent prospect of suffering eviction decrees against them, they filed the present writ petitions challenging the constitutional validity of the impugned notification on the ground that the same was violative of article 14 of the Constitution. The petitioners contended that treating the buildings owned by all the co operative societies in the State of Tamil Nadu as falling into one group while exercising the power under sec. 29 of the Act will have to be regarded as a rational classification based on an intelligible differentia but the differentia on which this classification was based had no excuse with the object of curbing the two evils of rack renting and unreasonable eviction for which the power to grant exemption had been conferred upon the State Government under sec. 29 of the Act and since the impugned notification did not satisfy be test of nexus the exemption granted to all such buildings could not be sustained and Will have to be regarded as discriminatory and violative of article 14. In other words Counsel urged that there was and is up warrant OF any presumption that co operative societies qua landlords will not indulge in rack renting or will not unreasonably evict tenants; in fact they would not be different from other private landlords so far as the two evils sought to be curbed by the Act are concerned and therefore Counsel urged that the exemption granted could not be said to be in conformity with the guidance afforded by the scheme and the previsions of the Act. 417 Dismissing the petitions, ^ HELD: It is true that under sec. 4 of the Tamil Nadu Co operative Societies Act the very object of every co operative society registered thereunder is the promotion of economic interests of its members and sec. 62 of the Act provides for payment of dividends on shares to its members as also for payment of bonus to its members and paid employees. But these aspects of a co operative society do not mean that it could be likened to any other body undertaking similar activities on commercial lines and to do so would be to miss the very basis on which the co operative movement was launched and propagated and has been making progress in the country during the last several decades. Indisputably, co operative societies which carry on their activities in various fields do so for the purpose of attaining the social and economic welfare of a large section of the people belonging to the middle class and the rural class by encouraging thrift, self help and mutual aid amongst them, especially by eliminating the middle man. But the object of promoting the economic interrupts of the members has to be achieved by following co operative principles where the profit motive will be restricted to a reasonable level unlike other commercial bodies where sky is the limit so far as their desire to earn profits is concerned. Sections 4 and 62 of the Act and Rule 46 of the Rules make it clear that in the matter of distribution of profits by way of payment of dividend to members and payment of bonus to members as well as paid employees restrictions have been placed by law and the same is maintained at a reasonable level and considerable portion of the net profits is apportioned and required to be carried to various kinds of funds, like co operative development fund, co operative education fund, reserve fund etc. In fact it is such statutory appropriations and restrictions on payment of dividends and bonus which differentiates co operative societies from other bodies undertaking similar activities on commercial lines and therefore, the buildings belonging to such co operative societies are substantially different from the buildings owned by private landlords. Further it has to be appreciated that these statutory provisions are applicable to all types of co operative societies specified in Rule 14 whatever be their nature or functions. The profit element being maintained at a reasonable level by provisions of law in all types of co operative societies there is every justification for the assumption that no co operative society will indulge in rack renting or unreasonable eviction. In this view of the matter if the State Government came to the conclusion that in the case of co operative societies there being no apprehension that they would indulge in either of these two evils exemption from the provisions of the Tamil Nadu Act No. 18 of 1960 should be granted in favour of buildings belonging to such co operative societies it will have to be regarded is a legitimate exercise of the power conferred on it under sec. 29 of the Act the same being in conformity with the guidance afforded by the preamble and provisions of the Act in that behalf. [422D 5; 424C G] Besides, on the factual side of the issue the facts and circumstances put forward by the State Government in its counter affidavit which have gone unchallenged clearly show that the differentia on the basis of which the classification was made had a clear nexus with the object with which the power to grant exemption has been conferred upon the State and therefore the impugned notification will have to be regarded as valid. [425E F] 418 </s>

<s>[INST] Summarize the judgement: Criminal Appeal No. 50 of 1976. Appeal by Special leave from the Judgment and order dated the 2nd October, 1975 of the Rajasthan High Court in S.B. Criminal Appeal No. 850 of 1971. V.B. Raju and N.N. Sharma for the Appellant. Badri Das Sharma for the Respondent The Judgment of the Court was delivered by RANGANATH MISRA J. This appeal by special leave seeks to assail the conviction of the appellant under section 161 of the Indian Penal Code as also section 5(1) (d) and section 5(2) of the Prevention of Corruption Act, 1947 ( 'Act ' for short), and a consolidated sentence of two years ' rigorous imprisonment. Appellant 's conviction by the Special Judge has been upheld in appeal by the Rajasthan High Court. Appellant at the relevant time was a Head Constable attached to the Bhusawar Police Station within the District of Bharatpur. Prosecution alleged that PW. 2 Ram Swaroop had given first Information Report of two offences but appropriate investigation was not being furnished to the Court. He had approached Shanker Lal, Head Constable attached to the Police Station and had, on demand, paid him some money by way of bribe to expedite submission of the charge sheet, Shanker Lal got transferred and appellant came in his place. When contacted, appellant also demanded money. 2 thereupon informed the Anti Corruption Department about the demand and Kastoori Lal, Dy. Superintendent of Police attached to the Anti Corruption Department at Jaipur agreed to lay a trap. Details were fixed up and the trap was laid on March 30, 1969. An amount of Rs. 50 was to be passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. For that purpose 1139 Ram Swaroop, PW. 2, Kastoori Lal, PW. 6, Prabhu Dayal, a literate Constable attached to the Anti Corruption Department, PW. 1, accompanied by two Panch witnesses Girdhari, PW. 3 and Gulji, PW. 4 came to Bhusawar. Ram Swaroop came to the bus stand adjacent to the Police Station. Banshi Kumar, the waterman at the bus stand (DW. 1) was requested by PW. 2 to inform the accused at the Police Station that he (Ram Swaroop) had come prepared for the purpose as arranged earlier and accused should came and contact him. Prosecution further alleged that the accused come pursuant to the request and the money was passed on and the payment of bribe was duly detected. In due course sanction was obtained and the case came up for trial before the Special Judge. Prosecution led evidence of 8 witnesses five as indicated above and PW. 5, the Superintendent of Police (Intelligence), Jaipur; PW. 7 Kedar Nath, a literate Constable attached to the Bhusawar Police Station and PW. 8 the Superintendent of Police, Bharatpur, who proved sanction for the prosecution. Certain documents were also produced to support the charge. Defence examined four witnesses in support of its stand that the accused had not received any bribe and he was falsely implicated without any basis. The Special Judge accepted the prosecution case and convicted the appellant in the manner already indicated. His appeal to the High Court has failed. Ordinarily the Supreme Court does not enter into re appreciation of evidence in exercise of its jurisdiction under Article 136 of the Constitution (see Ram Parkash Arora vs State of Punjab). It is also true that in the case of State of Bihar vs Basawan Singh a five Judge Bench of this Court has laid down that if any of the witnesses are accomplices, their evidence is admissible in law but the Judge should indicate in his judgment that he had the rule of caution in mind namely, the danger of convicting the accused on the uncorroborated testimony of an accomplice and give reasons for considering it unnecessary to require corroboration; if, however, the witnesses are not accomplices but are merely partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested, in the same way as any other interested evidence is tested, and in a proper case, the Court may look for independent corroboration before convicting the accused person. There are certain features in this case which appear to have been overlooked both by the trial Court as also the High Court. The 1140 two panch witnesses have not only turned hostile, but have disclosed fact which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct a feature which the two Courts have overlooked. We are of the opinion that this is a case where the evidence has to be looked into with a view to finding out whether the prosecution case can at all be accepted. The restriction on appreciation of evidence of an appeal by special leave is a self imposed one and is not a jurisdictional bar. While we reiterate that ordinarily this Court would refrain from reexamining the evidence, in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. Prosecution has examined 8 witnesses in all. PW. 5, as already noted, is the Superintendent of Police (Intelligence) at Jaipur who is not a material witness at all. Similarly, PW.8 being the Superintendent of Police of Bharatpur, is connected with sanction for prosecution and is not material for any other purpose. This leaves six witnesses in the field. Of them, PWs. 1 and 6 are of the Anti Corruption Department, PW. 1 being a literate Constable attached to that establishment and PW. 6 being the Dy. Superintendent of Police under whose active supervision the trap was laid. PW. 2 is the decoy witness himself on whose report the trap was laid. 3 and 4 are the Panch witnesses and PW. 7 is a literate Constable attached to the Police Station. PW. 2 is a supplier of water at the bus stand like DW. 1. From his own evidence it appears that he has been involved in laying of traps. In his cross examination he has admitted: "before this occurrence, I took the Dy. section P. for arresting another employee Shankerlal. The statement A V in exhibit P. 8 was given by me in the presence of the Deputy Sahib. " He seems to have made two other complaints before the police and those were found to be false and police had already decided to prosecute him under section 182, I.P.C. It is after that incident that present move had been taken. PW. 2 has admitted in his cross examination: "Prior to this I took the Deputy Sahib to get Shankerlal caught but Shankerlal could not be caught and the Deputy said that you have harassed me for nothing. " It is the case of the prosecution that Shankerlal was the Head Constable 1141 attached to the police station and that PW. 2 had negotiated with him. PW. 3 who is a Panch witness has stated that the Deputy Superintendent of Police had told him that Ram Swaroop was giving illegal gratification to Shankerlal. PW. 3 was previously employed in the Police Department, and had been discharged. According to him, the name of the accused was never discussed and even at the time of payment it was Shankerlal who was supposed to receive the bribe. PW. 3 has said that he is not a literate person and his statement and signature had been extracted from him under pressure. PW. 4, the other Panch witness has similarly stated that he had been told that Shankerlal was to be bribed and he made no statement with reference to the accused. In view of this evidence it becomes doubtful whether the Panch witnesses had really anything to do with the offer of bribe to the present accused. Since PW. 2 admitted the position that the Deputy Superintendent of Police had been taken previously in respect of a bribe to Shankerlal and the two Panch witnesses have referred to that incident, it appears logical to infer that these two witnesses were really referring to the other incident. The defence version seems to be that the trap had been arranged with reference to Shankerlal. Ram Swaroop on reaching the bus stand requested DW. 1 to ask Shankerlal to come but since Shankerlal was absent from the Police Station, the accused who was the senior most of the lot then available within the police station came out. This part of the defence story has been supported by PW. 7 Kedar Nath, a Constable attached to the Police Station. He in his cross examination has stated: "Banshi Kumar said that Shankerlal Head Constable is being called at the stand. There I, Babu Ram, Constable and Khilli Ram (accused) were present. We said, 'Khilli Ram, you being the Head may go '. Accordingly he went. " To that effect is the evidence of DW. I, the person whose services Ram Swaroop had admittedly taken to call the accused from the police station. He stated: "Shankerlal was sent for from the police station at 6 p.m. 2 years 20 days ago. Then one more person was with him. I went to the Police station Bhusawar. Shankerlal was not found there. The two constables and the accused present in the Court were there. On the advice of the police constables the accused accompanied me to the bus stand. " The evidence of PW. 7 and DW. 1 thus clearly support the position we have indicated above. It is quite probable, therefore, that PW. 2 had negotiated with Shankerlal only and so far as the accused is concerned there was no negotiation and he had come out to the bus stand after being told by DW. 1 in the manner and circumstances indicated by PW. 7 and DW. 1. If that be so, 1142 implicating the accused for the offence of receiving bribe would be without any basis. PW. 2 stated in his evidence that the appellant had demanded a sum of Rs. 100. When this was pointed out to him in cross examination he stated that the accused demanded Rs. 100 from him for taking out the application and this was settled between to be paid to the accused. This part of the story runs counter to the deposition of PW. 6 who stated: "Ram Swaroop came to my office on 30.3.69 and said that Shankerlal has been transferred and in his place Khilli Ram, Head Constable has came and the latter has settled with me to accept bribe of Rs. 50. " The discrepancy is indeed a material one in the facts of the case. The defence of the appellant has all throughout been that he never received any bribe. PW. 1 in his evidence in chief has stated that the Deputy Superintendent of Police demanded the bribe amount to be taken out and the accused stated that he had not received the amount. To the same effect is the evidence of PW. 2. This evidence of PWs. 1 and 2 makes it clear that the first reaction of the accused when accosted was a denial of receipt of any bribe. That has reiterated the same in his examination under section 342, Cr. P. C. According to the defence version of the matter there was really no passing of any money. PW. 1, the Constable accompanying the Dy. Superintendent of Police, according to the prosecution, searched the person of the accused and found the five currency notes. There is no acceptable evidence that the Constable had given search of his person before he started searching the person of the accused. PW. 6, the Dy. Superintendent of Police was at a distance. He had not seen the actual passing of the money. Once PWs. 3 and 4 the Panch witnesses did not support the prosecution case, the only evidence for the passing of the money has to rest is of PWs. 1 and 2. Both of them were vitally interested in the fate of the prosecution and would, therefore, be disposed to support the prosecution case. We have already indicated that PW. 2 was anxious to satisfy the police as he was about to face the prosecution under section 182, I.P.C. for having made false allegation in two cases. The Deputy Superintendent of Police has stated that he had taken PW. 2 to task for having brought him once to Bhusawar on the allegation that Shankerlal was to receive the bribe and that had failed. In these circumstances it is quite likely that these two witnesses would go out of their way to support the prosecution version. 1143 If Shankerlal was the person with whom PW. 2 had negotiated in the matter of taking of the bribe, it would indeed be difficult to accept, the position that the accused readily agreed to receive the amount when offered. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to chose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW. 1 raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has narrated this part of the story thus. "There the Deputy Sahib and we all stood at on place and Ram Swaroop (PW. 2) and Prabhu Dayal (PW. 1) went towards the police station. Both had some talks. Prabhu Dayal remained this side and Ram Swaroop went inside the police station. Ram Swaroop returned and looked here and there. In the meantime Prabhu Dayal constable shouted that the money has been found, come on; come on. " PW. 4 stated that he did not see anybody giving or taking illegal gratification. DW. 1 has stated: "I told pointing toward Ram Swaroop and his companions that they are summoning. Thereupon the companion of Ram Swaroop (refereeing to Prabhu Dayal) shouted near the 'Imli ' tree that 'caught, caught '. He took out from the pocket of his pant notes like and putting them in his hand shouted, 'caught, caught '. " DW. 3 the hotelier has stated: "I and the Inspector went together, then the notes were in the hand of a Constable." He has further said that the Constable was shouting that the amount had been recovered from Khilli Ram. DW. 4, an independent witness 1144 described this part of the story thus: "At the same time, Banshi waterman and Killi Ram accused present in the Court came from the side of Police Station. The man standing near Ram Swaroop (obviously Prabhu Dayal), shouted: 'caught, caught '. He took out the currency notes of Rs. 50 from his (witness ') pocket and raised this alarm." In cross examination this witness stated that the person who raised the cry said that the notes have been recovered from Khilli Ram but Khilli Ram was saying that he did not take the notes. Two other aspects are relevant to be indicated here. According to PW. 1, Kastoori Lal, the Deputy Superintendent of Police ordered him to take the search of the accused whereupon he proceeded to do the needful. PW. 2, however, stated that it was the Dy. Superintendent of Police who recovered the notes from the accused. PW. 6 has, however, indicated that under his orders search was conducted by PW. 1. There is again material discrepancy as to from where the amount was recovered. PW. 2 has stated that the accused kept the notes of Rs. 50 given by him in the left side pocket of his shirt. PW. 6 has stated: "When Prabhu Dayal conducted the search of the accused, Ext. P 1, 2, 3, 4 and 5 notes of the denomination of Rs. 10 each were found out from the right side pocket of the shirt of the accused." Ext. P 1 is the recovery memo purported to have been prepared att he spot. It indicates: "Then the settled five currency notes of the denomination of Rs. 10 each were recovered from the right hand pocket of the worn shirt of khaki uniform. " There is thus a discrepancy as to the place from where recovery was made. It was pointed out by this Court in Raghbir Singh vs State of Punjab: "Where a trap is laid for a public servant, it is desirable that the marked currency notes which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the Court does not have to depend on oral evidence which is sometimes of dubious character for the purpose of deciding the fate of the public servant." Ordinarily in cases of this type the powder treatment is made. There is no material at all on the record to explain why such a 1145 process was not followed in the instant case even though detection is alleged to have been handled by experienced people of the Anti Corruption Department. PW. 6 was a very senior officer and in fact by the time the trial took place he had retired from service. It is difficult for us to accept the position that he was not aware of the powder treatment. It has been in vogue for well over three decades now. If such powder treatment had been made, the passing of the bribe would indeed not have been difficult to be proved. We are prepared to agree with counsel to the State of Rajasthan that ordinarily a case of type is difficult to prove and the law is settled that even the uncorroborated testimony of trap witnesses can be acted upon as indicated by this Court in the case of Prakash Chand vs State (Delhi Administration), and Kishan Chand Mangal vs State of Rajasthan, but in the present case the evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced, the prosecution story becomes liable to the rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. In these circumstances we are of the view that sufficient material has been brought out to merit interference in this appeal. We allow the appeal, set aside the conviction of the appellant and acquit him. He is discharged form his bail bond. N.V.K. Appeal allowed. [/INST]In accordance with the provisions of the and in terms of Para 2 of the contract of apprenticeship the appellants completed a one year apprenticeship under respondent No. 2, Punjab State Electricity Board. Contrary to the Instructions, noticed on March 23rd, 1983 and issued by of the Ministry of Labour and Rehabilitation, Department of Labour (D.G.E.T ) Government of India to all officers asking them to take necessary action to ensure that the trained apprentices are absorbed in industries upto a minimum of 50 per cent of direct recruitment vacancies, the Board advertised on July 27, 1983 50 posts of Junior Engineers II (Electrical) in its establishment for which the appellants had successfully completed a one year apprenticeship under it. The appellants, therefore, filed a writ petition in the High Court of Punjab and Haryana, challenging the issuance of the advertisement on the ground that under their respective letters of appointment, they were entitled to be appointed to 50 per cent of posts which were advertised by respondent No 2. The writ petition was dismissed by the High Court on the ground that the letters of appointment issued to the appellant did not contain any assurance or undertaking that they will be absorbed in the service of the Punjab State Electricity Board; that 47 per cent of the vacancies were already reserved for Scheduled Castes, Scheduled Tribes, backward classes, ex servicemen, etc, and that, if another 50 per cent of the posts were to be reserved for apprenticeship trainees, almost 100 per cent posts shall have been put in the reserved category which would be contrary to law. Hence the appeal by special leave Allowing the appeal, the Court, ^ HELD. 1. The object of Section 22(2) of the Apprentice Act 1961 is to guarantee to the extent of the existence of vacancies that the apprentices will not be rendered jobless after they complete their training. 153 2.1. Sub section (2) of section 22 leaves no doubt that, despite the A provision contained in sub section (1), the employer is under an obligation to offer suitable employment to the apprentice if the contract of apprentice. ship contains a condition that the apprentice shall serve the employer after the successful completion of the training. Indeed, when such an offer is made the apprentice on his part is bound to serve the employer in the capacity in which he was working as an apprentice. In a contract of apprenticeship, if a condition is not happily expressed the Court must take a broad and commonsense view of the terms of the employment. It in not proper in such cases to indulge in a hair splitting approach and find an escape for defeating the rights of employees. [155 F G] 2.2. Paragraph 2 of the letters of appointment is intended to convey the meaning that there is an obligation on the apprentices to serve the employer after the successful completion of the training. When paragraph 2 says that the apprentice "shall be absorbed in the department" the only reasonable interpretation to put upon that expression is that it creates reciprocal rights and obligations on the parties to the contract of apprenticeship, namely, the employee and the employer. "You shall be absorbed" is a double edged term of the contract. It binds the employer to offer employment to the apprentice (if there is a vacancy) and, equally, it binds the apprentice to accept the offer. In the context in which the expression "without any commitment" occurs, it only means that the obligation of the employer to offer employment to the apprentice and the corresponding obligation of the apprentice to serve the employer arises only if and when there is a vacancy in which the apprentice can be appointed. Paragraph 2 of the letters of appointment creates a binding obligation upon the employer to absorb the apprentices in the department on the successful completion of the training period, provided there is a vacancy in which the apprentices can be appointed. It would be contrary both to the letter and spirit of paragraph 2 of the letters of appointment to hold that even if there is a vacancy in which an apprentice can be appointed after the successful completion of his training, the employer is free not to appoint the apprentice and fill that vacancy by appointing an outsider Such a reading of the assurance contained in paragraph 2 will also frustrate the very object of the provision made by the legislature in section 22(2) of the apprentice Act. [157 B; E F] 3. The contention that the Executive Engineer, who sent the letters of appointment, had no authority to incorporate the particular condition in those letters cannot be accepted in as much as a senior officer in the position of an Executive Engineer would not incorporate a specific term in the contract of apprenticeship without being authorised to do so. [156 G H] 4. In the instant case, offering employment to the appellants to the extent of 50 per cent of the posts will not violate the law, as laid down by this Court, in regard to reservation of posts. The appellants are entitled to be appointed in the available vacancies not because of any reservation of posts in their favour but because of the provisions of section 22(2) of the 154 Apprertices Act and the contractual obligations arising under paragraph 2 of the letters of appointment. [157 H; 158 A] </s>

<s>[INST] Summarize the judgementvil Appeal No. 2 15 152 (NM) of 1986 etc. From the Order dated 8.5.1984 of the Customs Excise and Gold Control/Appellate Tribunal, New Delhi in Appeal No. 2530/83 D & Cross objections 27/84, Order No. 258/84 D and Misc. Order No. 67 84 D. A.K. Ganguli, P. Parmeswaran and Hemant Sharma for the Appellant. Gobinda Mukhoty and P.N. Gupta for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal under section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ') against the judgment and order of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as 'the Tribunal ') dated 8th May, 1984. The appeal is by the revenue. The respondent, Decent Dyeing Co., was dyeing acrylic yarn on job charges. The acrylic yarn was being received by the respondent from traders in the market or from the manufacturers of hosiery goods and were returning the same to them after completing the required process. The respondent was paying duty at the rate of Rs. 10 per kg. in terms of notification No. 125/75 CE dated 12th May, 1975 on the presumption that base yarn had discharged duty liability before it was received for dyeing. A show cause notice requiring the respondent to show cause to the Assistant Collector of Central Excise as to why central excise duty amounting to Rs.4,300 at Rs.24 per Kg. leviable on 180 kgs. (as applicable to base yarn under tariff item 18(i) of the Central Excise Tariff) should not be demanded under rule 9(2) of the Central Excise Rules, 1944, was issued to the respondent. The Assistant Collector of Central Excise directed the respondent to deposit an amount of Rs.4,300 on the basis 432 of the demand of duty at Rs.24 per kg. on 180.00 kgs. and directed the respondent to deposit the said amount under the proper head. On appeal, the Appellate Collector of Central Excise confirmed the said demand. There was an appeal and the Appellate Tribunal upheld the contention of the respondent. The Appellate Tribunal found that the case related to a demand for payment of differential duty for the period May, 1976 to July, 1976 with reference to texturing of base acrylic yarn received by the respondent from the manufacturers of such base yarn. The respondent, the Tribunal held, had cleared such textured yarn on payment of duty at Rs. 10 per kg. claiming the benefit of notification No. 125/75. The differential duty payment was Rs.24 per kg. leviable on the base yarn. ,The respondent denied theft liability but it was upheld as mentioned 'hereinbefore. It was contended on behalf of the appellant before the Tribunal.that duty on base yarn was payable by the manufacturers of the base yarn only and the burden of showing that the said duty had not been paid by the manufacturers was on the revenue. The authorities had, however, held that the appellant was liable to. pay the differential duty since the appellant had failed to prove the payment of duty on the base yarn and, therefore, the said orders were bad. On the other hand, on behalf of the revenue, it was contended that it was for the respondent to prove that the duty had been paid on the base yarn and if the appellant was paying the duty of Rs. 10 per kg. Only under notification relied upon and in the absence of proof of payment of duty, the base yarn, the orders of the lower authorities making the respondent liable to pay the duty were correctly passed. The Tribunal found that the respond ent was not the manufacturer of base acrylic yarn. The work done by the respondent on the base yarn was by way of textu rising the same. In respect of the, same, the duty payable on the textured yarn produced out of base yarn is the duty for the time being leviable on the base yarn, if not al ready, paid plus Rs.20 per kg. Under notification No. 125/75, the duty was reduced to the duty for the time being leviable on the base yarn, if not already paid, plus Rs. 10 per kg. In this connection, it is relevant to refer to notifi cation No. 125/ 75. The notification, which was issued under sub rule (1) of rule 8 of the Central Excise Rules, 1944, stated that the Government exempted the texturised yarn of the description specified in column (3) of the Table annexed thereto and falling under sub items of item No. 18 of the First Schedule to the Act as are specified in the corre sponding entries in column (2) of the said Table, from so much of the duty of 433 excise leviable thereon as is in excess of the duty speci fied in the corresponding entries in column (4) of the said Table. The relevant portion of the Table annexed to the said notification reads as follows: section No. Sub Item No. Description Rate of duty 1. (ii) Textured Yarn produced The duty for the out of base yarn time being leviable on the base yarn,if not already paid plus ten Rupees per kilogram. Admittedly, the respondent had paid duty at Rs. 10 per kg. and had been allowed to clear the goods. The demand for differential duty by way of duty payable on the base yarn was not in dispute. On the base yarn, the Tribunal held, the manufacturer was liable to pay duty only since purchasers of the base yarn from the market could naturally assume that duty on the base yarn would have been paid by the manufac turer before removal and that it was for the department to verify the fact of such payment and take action against the manufacturer if base duty had not been paid. Under the relevant tariff item, the duty, as mentioned before, was fixed as the duty for the time being leviable on the base yarn, if not already paid, plus Rs.20 per kg. (reduced to Rs. 10 per kg. under the notification). The notification does not change the basic position so far as base duty is concerned from the aforesaid stand. The Tribunal held that the revenue was entitled to claim duty inclusive of the duty paid on base yarn only on proof that the duty on the base yarn had not been already paid, unless otherwise, in the normal course, the presumption inevitable, in view of the nature of the business, be that the duty on base yarn had been paid. If that is so, that cannot be the responsibility or the burden of the respondent to prove that the duty on base yarn had already been paid. It further appears that when the appeal was filed before the Collector, the respond ent had disclosed the names of the persons from whom they had received the yarn as also the names of the manufacturers enclosing the copies of the relevant record. But even then the revenue had not chosen to verify these facts and the Collector (Appeals) had passed his order on the basis that it was for the respondent to prove the actual payment of base duty. This approach is not proper approach. It is not correct to state that the respondent alone should have special knowledge of the fact of payment of base duty and it was therefore for the respondent to prove the said fact. In that view of the matter, the 434 Tribunal held in favour of the respondent. We are of the opinion that the Tribunal was right. Excise is a duty on manufacture. The liability of pay ment of this duty is on the manufacturer. The language of the notification referred to hereinbefore indicates that only the duty for the time being leviable on the base yarn, if not already paid plus ten rupees per kg. was the liabili ty. The description of manufacture was textured yarn pro duced out of base yarn. We are clearly of the opinion that in view of the facts and the circumstances of the case, the Tribunal was right in the view it took. In this connection, it is instructive to refer to rule 49 of the Central Excise Rules, 1944, which deals with duty chargeable only on the removal of the goods from the factory premises or from an approved place of storage. Reference was also made before the Tribunal and our attention was also drawn to the deci sion of the Delhi High Court in Sulekh Ram & Sons vs Union of India & Ors., [1978] ELT J 525, where under rule 9 of the Central Excise Rules, it was held by the Delhi High Court that under excise system, no goods can be removed from the place of manufacturer without first paying the excise duty, therefore, a purchaser can presume that goods are duty paid. It would be intolerable if the purchasers were required to ascertain whether excise duty had already been paid as they have no means of knowing it. It has to be borne in mind that duty of excise is primarily a duty levied on a manufacturer or a producer in respect of the commodity manufactured or produced. See the observations of Lord Simonds in Governor General in Council vs Province of Madras, 72 Indian Appeals 91. In a situation of this nature, the Delhi High Court held that the processor was in the similar position as a purchas er of the goods. In that view of the matter, we are of the opinion that the Tribunal was right in the view it took. We have heard learned counsel for the appellant and considered the matter. We find no merit in the appeal for the reasons mentioned above. In that view of the matter, this appeal must fail and is accordingly dismissed without any order as to costs. Appeals dismissed. 435 CIVIL APPEAL NOS. 214 1 42 (NM) OF 1986. Collector of Central Excise, Chandigarh Versus 1. M/s Navrang Dyeing Co. & Ors. M/s Capital Dyeing Co This is an appeal under section 35L(b) of the Act from the judgment and order of the Tribunal dated 17th April, 1984. For the reasons in civil Appeals Nos. 2151 52, these appeals must also fail and are accordingly dismissed without any order as to costs. [/INST]M/s. Parekh Automobiles Ltd., respondent No. 1, had been allotted retain outlet by Indian Oil Corporation, respondent No. 2, for sale of its petroleum products at Dangiawas, which was outside the limits of the appellant. Respondent No. 2 had its depot near Raikabag Station at Jodhpur where it stored petroleum products for supply to various pump stations situated within the limits of the appellant as well as situated outside its limits. Respondent No. 2, being a public sector undertaking, was provided current account facilities under section 133 of the Rajasthan Municipalities Act, 1959, and so respondent No. 2 had not to pay octroi tax on such consignments at the time of entry of goods within the limits of the appellant. For this purpose, respondent No. 2 was provided with the export facilities and supplied with entry passes under Rule 13 of the Rajasthan Municipal Octroi Rules 1962. Under rule 13(4), the amount of duty payable, in the case or persons who had the current account facilities, was determined and collected on the basis of the total amount of goods that had come in as reduced by the total amount of goods that had gone out, the balance being presumed to have been consumed, used or sold within the municipal limits. It was alleged that the appellant suspended the current account facility under section 133 of the Act and took the stand that octroi would be charged from Respondent No. 2 on the goods brought within the municipal limits if these were sold within the limits of the appellant although such goods were mean for use and consumption of the consumers outside the municipal limits. As a consequence of this action of the appellant, respondent No. 2 charged octroi duty on supplies made to respondent No. I at Dangiawas by adding the amount of octroi tax in the bills. Respondent No. 1 filed a writ petition in the High Court praying inter alia for a direction or an order restraining the Municipal Council from realising any tax on diesel, etc. which were supplied to respondent No.1 at Dangiawas by respondent No. 2, and for refund of octroi tax already paid. It was contended on behalf of respondent No. 1, in the High Court, that the Municipal Council had no jurisdiction to levy octroi on the goods brought within the municipal limits but not sold, consumed or used therein and subsequently exported outside the said limits; that actual sale took place only at Dangiawas and since neither the sale nor the consumption nor the use of the petroleum products in ques tion took place within the limits of the municipa 50 lity of Jodhpur, and Municipal Council was not entitled to levy any octroi thereon; alternatively, even if the sale was held to have taken place at Jodhpur, still, octroi could not be levied as the goods so sold were meant for use of con sumption outside the municipal limits; and that the word 'sale ' occuring under section 104 of the Municipalities Act could not be read without reference to use or consumption, as sale simplicitor by itself did not attract the levy of octroi, unless the goods were meant for use or consumption of the ultimate consumer in the area of the Municipal Council. The defence of the Municipal Council was that because the sale took place at Jodhpur, octroi was chargeable irre spective of the fact where it was consumed or used; that as soon as the goods entered the octroi limits, it gave rise to taxable event unless a declaration as contemplated under rule 9 had been made; that respondent No. 2 did not make the declaration as required by rule 9 and rule 13(4) of the Octroi Rules; and that under sub rule (4) of rule 13 the goods exported were to be lessened only if such goods had not been sold within the municipal limits and were exported out within a period of six months from the date of entry. The claim of refund was contested on the ground that there was no privity of contract between respondent No. 1 and the Municipal Council as the demand of octroi was not made from respondent No. 1. The case of the Indian Oil Corporation, respondent No. 2, was that under the terms of the agreement respondent No. 2 was obliged to transport petroleum products out of its depots and supply petroleum products to its dealers at the destination in its own truck tankers, and till the supplies were made at the destination, the goods were at the risk of respondents No. 2 and therefore the goods were sold at the retail outlet where the deliveries were made and not at Jodhpur. The learned Single Judge did not permit the petitioners to raise the question that the sale took place only outside the municipal limits of Jodhpur since that involved an investigation into facts which could not be undertaken in a writ petition, and proceeded on the footing that the sale of the products in question took place within the limits of Jodhpur. He, however. accepted the contention of IOC and the dealer that even if the sale was taken to have been effected within Jodhpur, no octroi was leviable as admittedly the goods had been sold in Jodhpur only for their onward trans mission for use and consumption in Dangiawas outside the municipal limits. The prayer for refund of the octroi tax was, however, refused. The Division Bench dismissed the appellant 's appeal and partly allowed the appeal filed by respondent No. 1. On the basis of the judgments of this Court in Burmah Shell Oil Storage & Distribution Co. India Ltd. vs The Belgaum Borough Municipality, [1963] Supp. 2 SCR 216 and Hiralal Thakorlal Dalai vs Broach Municipality, [1976] Supp. SCR 82 wherein it was held that the sine qua non for levy of octroi was con sumption, and that the sale in order to attract levy of octroi shall be for the purpose of use or consumption 51 of the ultimate consumer, the Division Bench held that sale simplicitor would ot attract the levy of the octroi, that the word 'sale ' in this context had to be read with refer ence to the use or consumption and 'use, consumption and sale ' had to read in a disjunctive manner. The Division Bench further held that rule 13 was a special provision in regard to; the persons who had been granted current account facilities and this rule was not subject to either rule 6 or rule 9 but was an overriding rule independent of rules 6 and 9. The Division Bench was of the opinion that section 133 of the Municipalities Act, alongwith rule 13 of the octroi Rules left no doubt that no conclusive presumption of the goods having been brought within the municipal limits for consumption, use or sale therein could be drawn in cases where special current account facilities had been given to a person. The Division Bench also held that the claim of refund by respondent No. 1 was not maintainable. The Bench however directed that the Municipal Council would have to refund to the Indian Oil Corporation, respondent No. 2, the amount of octroi duty paid on the petroleum products re exported by it to Dangiawas outlet for supply to respondent No. 1, who would recover the same from the Indian Oil Corporation. M/s. Motilal Padampat Sugar Mills Co. Ltd. vs State of Uttar Pradesh & Ors., ; and State of Madhya Pradesh & Anr. vs Bhailal Bhai, ; , relied upon. Before this Court, the parties reiterated their conten tions raised before the High Court. In addition, it was contended on behalf of the appellant that there was nothing in the two judgments of this Court to the effect that if goods were brought into a local area for sale to a dealer who then transported the goods outside the local area for sale to consumers, no octroi would be chargeable. It was further contended that during the period in dispute, as also today, there was no current account facility to the respond ent No. 2 under rule 13 of the Octroi Rules and as admitted ly the respondent No. 2 was not complying with the require ments of rules 6 and 9 of the said Rules and not filing any declaration, the Municipal Council had the right to treat the goods brought within the Municipal limits, as those brought for consumption, use or sale under sub rule (2) of rule 9 of the said Rules and thereby attracting octroi. On the other hand, it was contended on behalf of the respond ents that it was incorrect to say that the current account facility was suspended or withdrawn. Dismissing the appeal, this Court, HELD: (Sabyasachi Mukharji and M.H. Kania, JJ. Per Sabyasachi Mukharji, J). (1) The High Court was right in holding that it was difficult and inappropriate under Article 226 to determine the question as to where the sale 52 took place, and that even if the sale took place within the octroi limits of Jodhpur Municipal Council for the use or consumption of the ultimate consumer outside the octroi limits of Jodhpur then the taxable even did not take place in the octroi limits of Jodhpur. [66F G] (2) In view of the decisions of this Court and in view of the language of section 104 of the Municipalities Act and the facts, the High Court was right in holding that no octroi was leviable on petroleum products re exported out side the municipal limits for consumption and use outside the municipal limits. [65F] Burmah Shell Oil Storage & Distributing Co. Ltd. vs The Belgaum Borough Municipality, [1963] Supp. 2 SCR 216 and Hiralal Thakorelal Dalai vs Broach Municipality & Ors., [1976] Sup. SCR 82, followed. (3) In view of the facts of this case, the title passed to the goods outside the municipal limits even in respect of the petroleum products which were sold within the municipal limits. If the goods were brought within the municipal limis for the purpose of sale (sale means passing of the title to the purchaser), then different considerations might have applied. [73D] (4) Analysis of Section 133 and the current account facility therein indicates that only on the goods for use, consumption or sale, octroi is leviable. Under this provi sion, octroi tax is paid at the tune of settlement of peri odical account, say after every month. Thus, question of complying with rule 6 or rule 9 does not arise as they apply when octroi tax is paid at the time of entry of goods. The delivery of entry passes and transport passes is only to facilitate settlement of octroi account on goods which have been retained in Municipal area for use and consumption. [73H; 74A] (5) A perusal of section 133 would show that current account facility is provided by substantive section, whereas rule 13 is procedure provided with ' the object of providing facility of settlement of account of payment of octroi tax. In other words, according to rule 13(4), octroi tax is charged on quantity mentioned in entry passed minus the quantity mentioned in transport passes, i.e., on quantity of petroleum products used or consumed within the Municipal limits of Jodhpur Municipality. [75A B] (6) In view of the confused state of pleadings and averments, it was not possible to hold that current account facilities were withdrawn or cancelled. If that is the position, then there is no question that the High Court was right in the order it passed and the direction it gave. [75E] Per Ranganathan, J. (1) When goods arrive at an octroi outpost, they may be coming in either for consumption, use or sale within the municipal limits or for transportation outside these limits. Rule 9 requires every person bringing goods within the municipal limits to make a declaration as to what the goods are intended for. [77E] 53 (2) Under the normal procedure for the assessment and collection of octroi duty, the declaration under Rule 9 becomes important and the terms of the declaration deter mines the incidence of the duty. Rule 13, however, contem plates a totally different scheme for the assessment and collection of octroi for the special type of cases. [78C D] (3) A comparison of the two sets of provisions will make it clear that they are two independent and mutually exclu sive modes of assessment and collection of duty. Under the cash system of payment, a declaration under rule 9 is abso lutely essential. The mode of collection of duty in respect of a person having current account facilities, however, does not depend upon any such declaration or upon the mode of utilisation of the goods as indicated in such declaration, because in the case of the current account holders, the duty payable in respect of the entirety of the goods brought in is straightaway debited to his account on the basis of entry passes. The duty payable in respect of the goods transported outside is later on credited to his account on the basis of the transport passes. [79E G] (4) The High Court was fully justified in holding that the terms of rules 6 and 9 have no relevance to the payment of duty in cases covered by the current account facility envisaged under rule 13, and that the present case cannot be brought within the terms of proviso to rule 9(2) on the basis of a deemed consumption, use or sale within the munic ipal limits. In cases where rule 13 applies, rule 9 is excluded. [80B] (5) The present case is governed by the terms of rule 13 and the Indian Oil Corporation is entitled to go on paying octroi duty on the basis of the goods brought by it within the Municipality less the goods transported outside the Municipality, may be in pursuance of a sale within the Municipality, so long as such sale is in pursuance of an intention that the goods should be consumed or used outside the Municipal limits. [80G] (6) The appellant should not be permitted to raise at this stage a new plea that the current account facility granted to the Indian Oil Corporation had been revoked when all along, in the earlier proceedings in the High Court, the case had proceeded on the footing that the Indian Oil Corpo ration had been having and continued to have current account facilities. </s>

<s>[INST] Summarize the judgementivil Appeal No. 1811 of 1975. From the Judgment and Order dated 18.4.1975 of the Allahabad High Court in Second Appeal No. 734 of 1975. R.K. Mehta, Ms. Mona Mehta and S.K. Bagga (NP) for the Appellant. P.K. Bajaj and Mrs. Rani Chhabra (NP) for the Respondents. The Judgment of the Court was delivered by S.C. AGRAWAL, J. This appeal by special leave arises from the judgment of the High Court of Judicature at Allaha bad dated April 18, 1975, dismissing the Second Appeal filed by the appellant. Teja, the common ancestor, had five sons: Nanha, Mulle, Manna, Chhota and Ram Sahai. All of them have died. Appel lant Sita Ram is the son of Nanha. Mulle had a son Nokhey who died in 1953 without any issue. Respondent No. 2 Soney Lal is the son of Manna. Kailasho Devi, respondent No. 3 is the widow of Ram Sahai. Chhota Bhondey respondent No. 1, claims to be the son of Chhota which is disputed by the appellant. The dispute in the appeal relates to sirdari holdings in Khata No. 72 and 73 in village Sambhalpur Sheoli in the State of Uttar Pradesh. Lands in Khata No. 72 were originally entered in the names of Nanha, Manna and Ram Sahai in the revenue records and on their deaths the names of the appellant and respondents Nos. 2 and 3 were entered. Respondent No. 3 sold her shares in these lands. The lands in Khata No. 73 were entered in the name of Nanha alone and on his death the same were entered in the name of the appel lant. Consolidation proceedings under the provisions of U.P. Consolidation of Holdings Act, 1953 (U.P. Act No. 5 of 1954) hereinafter referred to as 'the Act ' commenced in Village Sambhalpur Sheoli in the year 1969. Respondent No. 1 filed objections to the entries and claimed one fourth share in the holdings in both the Khatas on the basis that he is the son of Chhota and that the said lands belonged to the joint Hindu family consisting of the sons of Tej Ram. Respondents Nos. 2 and 3 filed objections claiming shares in the lands in Khata No. 73 on the ground that the said holding was jointly 187 acquired by Nanha and his brothers, Manna and Ram Sahai, and the name of Nanha was recorded in a representative charac ter. The appellant contested the said claims and claimed that lands in Khata No. 73 were acquired by Nanha in his individual capacity and not on behalf of his family. The appellant further claimed that respondent No. 1 could claim no interest in the holdings as he is not a member of the family. The case of the appellant was that respondent No. 1 is not the son of Chhota but is the son of one Heera who was a resident of a different village. The objections were considered by the Consolidation Officer, who, by order dated August 31, 1970, held that respondent No. 1 is the son of Heera alias Chhota. He gave half share to the appellant and one fourth share each to respondents Nos. 1 and 2 in all the plots of the Khata No. 73 except plots Nos. 140, 141, 142/2, 142/3 and 143/3 which were given to the appellant exclusive ly. The appellant as well as respondents Nos. 2 and 3 filed appeals against the said order of the Consolidation Officer. The Assistant Settlement Officer (Consolidation), by Order dated February 8, 1971, allowed the appeal of the appellant and directed that Khata No. 73 will be continued in the name of the appellant alone inasmuch as the lands of the said Khata were acquired by Nanha between 1927 and 193 1 before the birth of respondent No. 1 and the said land was not the ancestral acquisition nor Nanha had acquired it in a repre sentative capacity. The Assistant Settlement Officer, howev er, agreed with the findings of the Consolidation Officer that respondent No. 1 is the son of Heera alias Chhota and belongs to the family to which the appellant and respondent No. 2 belong. The respondents went in revision against the said order of the Assistant Settlement Officer. The said revisions were decided by the Deputy Director of Consolida tion by his Order dated May 13, 1971. The Deputy Director allowed the revision of respondent No. 1 in full and held that he has got a share in Khata No. 72 along with the appellant and respondent No. 2 and since respondent No. 3 has already sold her share of Khata No. 72 the remaining three branches namely the appellant and respondents Nos. 1 and 2 are entitled to one third share each in the lands included in this Khata. As regards lands in Khata No. 73 the Deputy Director disallowed the claim of the respondents in respect of plots Nos. 140, 141,142 and 143. But with regard to other plots of Khata No. 73 the Deputy Director held that the name of Nanha was entered only in a representative capacity and that the branches of Manna, Chhota and Ram Sahai also had a share in these plots and that the respond ents had acquired equal shares along with the appellant in these plots and their names may also be recorded over the same. The appellant filed a writ petition in the High Court to challenge the said decision of the Deputy Director of Consolidation, 188 but the said writ petition was dismissed in limine by the High Court by order dated July 23, 1971. The application filed by the appellant for grant of certificate of fitness to appeal to this Court under Article 133 of the Constitu tion was also rejected by the High Court by its order dated November 9, 1972. The appellant, thereafter, filed the civil suit giving rise to this appeal on January 25, 1973 for a declaration that the order of the Deputy Director of Consolidation dated May 13, 1971, is without jurisdiction. The said suit was contested by respondent No. 1. He raised a preliminary objection that the suit was barred by Section 49 of the Act. The Munsiff Hawaii, Kanpur, by judgment dated August 16, 1974 decided the said preliminary objection in favour of respondent No. 1 and dismissed the suit on the ground that it was barred by Section 49 of the Act. The said judgment and decree of the Munsiff Hawaii was affirmed in appeal by the Additional District and Sessions Judge, Kanpur Etawah by judgment dated January 17, 1975. The second Appeal filed by the appellant against the said judgment was dismissed in limine by the High Court by the judgment under appeal. The only question which arises for consideration in this appeal is whether the suit filed by the appellant was barred by Section 49 of the Act. In the instant case the consolida tion proceedings under the Act were taken during the period 1969 to 1971 and the suit was filed in 1973. At that time Section 49 read as under: "49. Bar to civil jurisdiction Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which a notification has been issued under sub section (2) of Section 4 or adju dication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act. " Shri R.K. Mehta, the learned counsel for the appellant, has urged that the bar of Section 49 of the Act is not applicable to the suit of the appellant because the orders passed by the consolidation 189 authorities were without jurisdiction inasmuch as the con solidation authorities could not decide questions as to title to the lands as well as the question relating to the parentage of respondent No. 1 which the Civil Courts alone could decide. The submission of Shri Mehta is that the bar of Section 49 of the Act is applicable in respect of only those matters which could be adjudicated upon by the consol idation authorities. Shri Mehta has placed reliance on the decision of this Court in Suba Singh vs Mahendra Singh and Others, From a perusal of Section 49 it is evident that declara tion and adjudication of rights of tenure holders in respect of land lying in an area for which a notification has been issued under Section 4(2) and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, had to be done in accordance with the provi sions of the Act only and the jurisdiction of the civil or revenue courts to entertain any suit or proceeding with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under the Act, has been taken away. The language used in Section 49 is wide and comprehensive. Declaration and adjudication of rights of tenure holders in respect of land lying in the area covered by the notification under Section 4(2) of the Act and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, would cover adjudication of questions as to title in respect of the said lands. This view also finds support from the other provisions of the Act and the amendments that have been introduced therein. In the Act, as originally enacted, Section 12 made provision for filing of objections against the statement of plots and tenure holders prepared by the consolidation authorities and in sub section (4) of Section 12 it was prescribed that where the objection filed under subsection (1) involves a question of title and such question has not already been determined by a competent court, the Consolida tion Officer shall refer the question for determination to the arbitrator. Sub section (5) of Section 12 laid down that all suits or proceedings in the Court of first instance or appeal in which a question of title in relation to some land has been raised shall be stayed. Under subsection (6) Of Section 12 finality was given to the decision of the Arbi trator under sub section (4). Similarly Section 20 made provision for filing of objections against statement of proposals prepared by the consolidation authorities under Section 19 of the Act. Section 22 prescribed that where any objection filed under Section 20 involves a 190 question of title in or over land and such question has not already been finally determined by a competent court, the Consolidation Officer shall refer it to the Arbitrator for determination and all suits or proceedings of the first instance or appeal in which a question of title in relation to the same had been raised shall be stayed and the decision of the Arbitrator shall be final. There was a similar provi sion for reference to arbitrator in Section 36. These provi sions indicate that initially the Act envisaged that ques tions of title, if not finally determined by a competent court, shall, instead of being decided by the Courts, be decided by an Arbitrator and the decision of the Arbitrator would be final. As a result the determination of questions of title was withdrawn from the jurisdiction of the Courts. On a consideration of the scheme of the Act and the policy behind the legislation, in the light of the provisions referred to above, this Court has observed: "The scheme of that Act, the policy behind that legislation and the language of the relevant provisions clearly show that the Legislature did not want questions of title to be decided by the Civil Court when the consolidation proceed ings were under way. It is perfectly plain that the frag mented holdings being converted into consolidated parcels of land is a complicated operation to be conducted by adminis trative authorities, and if long and frequent proceedings in Civil Courts hold up consolidation operations, the very transformation of land holdings in villages the legislature desired to produce .would have been indefinitely postponed and messed up. It is thus obvious that at this stage Civil Courts should not intervene even if the questions were of heirship or title to property. At the same time, the Legis lature did not want to hand over these complicated questions of title and the like to mere consolidation agencies, and so under Sections 12(4) and 22(1), it was provided that objec tions relating to title to land, if they cropped up at intermediate stages of these operations, were to be referred to arbitration." (p.420 21) Extensive amendments were made in the Act by the U .P. Consolidation of Holdings (Amendment) Act, 1958 (U.P. Act No. 38 of 1958) whereby a number of sections including section 36, were deleted and various provisions, including sections 5, 7 to 12 and 22, were substituted. As a result of these amendments the provisions with 191 regard to arbitration contained in Sections 12, 22 and 36 of the original Act were removed. In sub clause (i) of Clause (b) of Section 5, as substituted, it was provided that all proceedings for correction of the records and all suits for declaration of rights and interests over land, or for pos session of land or for partition, pending before any author ity or court, whether of first instance, appeal, or refer ence, or revision, shall stand stayed, but without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said proceeding or suits before the consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereun der. In sub clause (ii) of Clause (b) it was further provid ed that the findings of consolidation authorities in pro ceedings under the Act in respect of such right or interest in the land, shall be acceptable to the authority or court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned, proceed with the proceeding or suit, as the case may be. In Section 9 as substituted, provision was made for issuing notice of the statement prepared under Section 8 of the Act to tenure holders concerned and to persons interested calling upon them to file before him objections, if any, disputing the correctness or nature of the entries in the extracts and pointing out of any omission therefrom. In Section 10 of the Act provision was made for adjudication by the Consolidation Officer of the said objections in disputed cases. In Section 11 provision was made for appeal against the orders passed by the Assistant Consolidation Officer and the Consolidation Officer under Sections 9 and 10. Section 12, as substituted, prescribed that all matters relating to changes and trans fers affecting any of the rights or interests recorded in the revised records published under Section 1 1B for which a cause of action was non existent when proceedings under Sections 7 to 10 were started or were in progress may be raised before the Assistant Consolidation Officer as and when they arise but not later than the date of notification under Section 52 or under sub section (1) of Section 6 and that the provisions of Sections 7 to II shall mutatis mutan dis, apply to the hearing and decision of any matter praised under Section (1) as if it were a matter raised under the aforesaid Sections. The scheme of the above mentioned amend ments introduced in the Act by the Amendment Act of 1958 was to empower the consolidation authorities to adjudicate on matters involving declaration of right and interests over land or for possession of land or for partition and suits or proceedings in that regard pending before any Court were to be stayed till such determination and after such determina tion. the Court was to proceed with the said proceedings in the light of the findings of the consolidation authorities. In other words the question as to title which were 192 earlier required to be determined by arbitration were to be adjudicated upon by the consolidation authorities under the Act. From the Statement of Objects and Reasons for the Amendment Act of 1958 it appears that it become necessary to do away with the provisions for arbitration because it used to cause great delay and in order to inspire greater confi dence in the people in the adjudication of rights of tenure holders by consolidation authorities provision was made for a Second Appeal against orders passed by the Consolidation officer. Further amendment was made in Section 5 of the Act by U.P. Act No. 21 of 1966 whereby clause (b) of sub section (1) of Section 5, as renumbered, was omitted and sub section (2) was added in Section 5. By clause (a) of the said sub section (2) it has been provided that upon the publication of the notification under sub section (2) of Section 4 every proceeding for the correction of the records and all suits and other proceedings in respect of declaration of rights and interests in any land lying in the area, or for declara tion or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated. In clause (b) of sub section (2) of Section 5 it is further provided that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suit or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereunder. As a result of the said amendment which has been introduced in Section 5 the right of the Courts to adjudi cate in respect of declaration of rights or interest in any land lying in the area for which the notification has been issued under Section 4(2) or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act has been completely taken away and the adjudication of these rights is to be done by the consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereunder. Section 49 of the Act which bars the jurisdiction of the civil and revenue Courts gives effect to the aforesaid provisions contained in Section 5(2) of the Act. As a result of these amendments civil and revenue Courts have no role in the matter of determination of rights or interests in any land lying in the area for which notice has been issued under Section 4(2) of the Act or for the declaration or adjudication of any other right in regard to which proceed ings can or ought to be taken under the Act. 193 In Ram Adhar Singh vs Ramroop Singh and Others, ; this Court has dealt with the question whether a suit for recovery of possession filed by the plaintiff claiming to be 'Bhoomidar ' of the land and asserting that the defendant was a trespasser and not entitled to remain in possession of the property was covered by Section 5(2) of the Act as amended by U.P. Act No. 21 of 1966. After consid ering the various provisions of the Act this Court held that "disputes of the nature which exists between the parties in the present litigation are all now within the jurisdiction of the authorities, constituted under the Act, to adjudicate upon" and on that basis it was held that the suit had abated under Section 5(2). In Gorakh Nath Dube vs Hari Narain Singh and Others, ; this Court was concerned with a suit for cancellation of a Sale Deed to the extent of half share claimed by the plaintiff in fixed rates tenancy plots and for award of possession of the plaintiff 's share. This Court held that the said suit had abated under Section 5(2) of the Act inasmuch as the claim made in the said suit could be adjudicated upon by consolidation courts. Referring to Section 5 of the Act this Court has observed: "The whole object of this provision of the Act was to remove from the jurisdiction of ordinary civil and revenue courts, for the duration of consolidation operations, all disputes which could be decided in the course of consolidation pro ceedings before special courts governed by special proce dure. Such adjudication by consolidation authorities were considered more suitable, just and efficacious for speedy decisions which had to be taken in order to enable consoli dation operations to be finalised within a reasonable time. (P.341) This Court has held that questions relating to the validity of sale deeds, gift deeds and wills could be gone in proceedings before the consolidation authorities because such questions naturally and necessarily arose and had to be decided in the course of adjudication on rights or interests in land which are the subject matter of consolidation pro ceedings. A distinction has, however, been made between cases where the document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have.legal effect. With regard to cases falling in the first category it was held that such a claim can be 194 adjudicated by consolidation courts on the view that an alienation made excess of power to transfer would be, to the extent of the excess of power, invalid and an adjudication on the effect of such a purported alienation would be neces sarily implied in the decision of a dispute involving con flicting claims to rights, or interests in land which are the subject matter of consolidation proceedings. But as regards cases falling in the second category where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it was held that the consolidation authorities would have no power to cancel the same and it must be held to be binding no them so long as it is not cancelled by a court. In the instant case respondent No. 1 was claiming an inter est in the land lying in the area covered by notification issued under section 4(2) on the basis that he is the son of Chhota, brother of Nanha and that the lands were recorded in the name of Nanha in a representative capacity on behalf of himself and his other brothers. This claim which fell within the ambit of Section 5(2) had to be adjudicated by the consolidation authorities. Since it was a matter falling within the scope of adjudicatory functions assigned to the consolidation authorities under the Act the jurisdiction of the Civil Court to entertain the suit in respect of the said matter was expressly barred by Section 49 of the Act and the suit of the appellant was rightly dismissed on that ground. Suba Singh vs Mahendra Singh, (Supra), on which reliance has been placed by the learned counsel for the appellant,has no application to the present case. That case related to the year 1956 i.e. before the Amendment Act of 1958. At that time provision relating to arbitration were contained in Sections 12(4) and 21(1) of the Act. The provisions of sections of Section 49 of the Act which were in force at that time had a narrower scope and the jurisdiction of the Civil Court was barred "with respect of any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of the Act. " In that case after the scheme for consolidation under Section 23 of the Act had been confirmed one Jag Ram, who was held to be a Bhoomidar under the Scheme, had died. Jag Ram had four sons including Ram Bhajan who hadpre deceased Jag Ram. The plaintiff appellant claimed himself to be the son of Ram Bhajan and had applied for mutation in the consolidation proceedings on that basis which was allowed. Thereafter he approached the Civil Court for partition of the property of Jag Ram. The question was whether the said suit was barred by Section 49 of the Act. This Court held that it was not so barred on the view that the 195 question as to who were the heirs of Jag Ram was not a matter arising out of consolidation proceedings and further that the said question of inheritance to the estate of Jag Ram arose after the consolidation operations had been sub stantively completed. In this context this Court has ob served that there is no provision in the Act for any dispute of title which arises subsequent to confirmation of the statement under Section 23 to be decided by way of arbitra tion or otherwise and that the consolidation authorities had no jurisdiction to determine finally the complicated ques tion of title when the cause of action had arisen subsequent to the finalisation, publication and even implementation of the consolidation scheme so far as Jag Ram was concerned. This would show that in this case this Court was considering the question whether a dispute as to title which arises subsequent to confirmation of the statement under Section 23 could be adjudicated upon by the consolidation authorities. As pointed out earlier the position has been changed after the amendments that have been introduced in the Act by the Amendment Acts of 1958 and 1966. For the reasons aforesaid we find no substance in this appeal and it is accordingly dismissed with costs. R.S.S. Appeal dis missed. [/INST]The appellants were convicted for offence under Ss. 147, 149 and 302 IPC for murdering a villager. The prosecution case was that motivated by group rivalry the accused persons numbering over fifteen attacked the deceased with tabbals and lathis while he accompanied by his mother, PW 1, and sister, PW 5, was on his way to a nearby village to supply milk. As a result of the injuries sustained the deceased died on the spot. When PW 1 tried to intervene, site too was assaulted. She lodged the FIR thereafter the same day against the appellants others. At the trial PW 4 and PW 6 deposed to having seen appel lants Baran, Bhagau, Karan and Parsadi armed with lathis and tabbals hurriedly going towards the place of occurrence ahead of the deceased at a short distance. The medical evidence disclosed that the deceased had sustained in all seven injuries, two incised wounds on the scalp, two contu sions and three bruises. The trial court found that the appellants were members of an unlawful assembly and death of the deceased was caused by them in prosecution of a common object. The High Court on appeal agreed with the findings of the trial court. In the appeal by special leave, it was contended for the appellants that the courts below had failed to exercise the necessary care and caution that was required in scrutinising the evidence of the two eye witnesses who were close rela tions of the deceased and deeply interested in involving the appellants on account of enmity, and that in the absence of independent corroboration the conviction based on the testi mony of these witnesses was unwarranted. Disposing of the appeal, the Court, 102 HELD: 1.1 It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to involve as many persons of the opposite faction as possi ble by merely naming them as having participated in the assault. The court, therefore, has in all such cases to sift the evidence with utmost care and caution and convict only those persons against whom the prosecution witnesses can be safely relied upon without raising any element of doubt. [107C D] Baldev Singh vs State of Bihar, AIR 1972 SC 464; Raghu bir Singh vs State of U.P., AIR 1971 SC 2156 and Muthu Naicker vs State of Tamil Nadu, , referred to. 1.2 The conviction of the appellants was principally based on the evidence of PW 1 and PW 5, the mother and sister of the deceased. Though their evidence was not to be discarded as interested, necessary caution should have been observed in accepting the same in upholding the conviction of all the appellants. [104H; 105A] 2.1 In a melee, as in the instant case, where several people are giving blows at one and the same time it will be impossible to particularize the blows. If any witness at tempts to do it, his veracity is doubtful. But, it is sim pler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close crossexamination. Therefore, the nature of injuries sus tained by the victim assumes importance. [105H; 106A] 2.2 PWs 1 and 5 stated that the accused persons sur rounded the victim and each one of them assaulted him with the weapon they had. PW 1 stated that some of the assailants had given more than one blow, They did not state who caused the head injuries. They have not attempted to attribute any one of the injuries to any particular assailant. The evi dence was in general terms. If a group of more than fifteen persons had encircled the victim and simultaneously attacked him with tabbals and lathis without any resistance or any intervention, there would have been certainly corresponding injuries of the concerted attack on the person of the vic tim. The medical evidence shows that besides the two incised wounds on the scalp which proved fatal the deceased had only five minor injuries on his person. [105E G] 2.3 When the several blows with lathis and tabbals could produce only seven injuries on the person of the deceased the necessary inference would be that not more than seven persons might have participated in delivering the blows. therefore, the presence of more than seven 103 persons is doubtful. This aspect of the case has not been given due weight by the High Court while appreciating the evidence. [105H; 106A C] 3.1 The manner in which the incident happened also makes it clear that the assailants acted in prosecution of the common object to cause the death of the victim. There is no doubt that more than five persons had actually participated in the crime. There is clear evidence regarding the identity of only four persons. Appellants Baran, Karan, Bhagau and Parsadi had been located by PW 4 and PW 6, two independent witnesses, in the locality just before the incident. This evidence lends assurance to the testimony of PW 1 and PW 5 regarding their participation in the crime. [107B C ] 3.2 The conviction of these four persons has, therefore, been rightly sustained. Regarding the rest of the appellants there is scope of genuine doubt. Their conviction and sen tence are accordingly set aside. [107D] </s>

<s>[INST] Summarize the judgementAppeal No. 145 of 1955. Appeal from the judgment and decree dated the February 10, 1953, of the Bombay High Court in 65 Appeal No. 742 of 1951 from Original Decree, arising out of the judgment and decree dated July 31, 1951,, of the Court of the Senior Civil Judge, Poona, in Special ' Suit No. 89 of 1950. H. D. Banaji, R. A. Gagrat and G. Gopalakrishnan, for the appellant. H. N. Sanyal, Additional Solicitor General of India, H. J. Umrigar and R. H. Dhebar, for the respondent. January 16. The Judgment of the Court was delivered by DAS, C. J. This is an appeal from the judgment and decree of the High Court of Bombay dated February 10, 1953, setting aside the judgment and decree of the Court of Civil Judge, Senior Division, Poona dated July 31, 1951, in Special Suit No. 89 of 1950 and dismissing the appellant 's suit against the respondent with costs throughout. This appeal has been filed under a certificate of fitness granted by the High Court of Bombay. The facts leading up to this appeal may shortly be stated. The appellant is a public limited company registered under the Indian Companies Act, 1913. It is a lessee of two cinema Houses known respectively as " West End " and " Capitol " situated within the limits of Poona cantonment area. It exhibits in the said two Houses cinematograph films, both foreign and Indian. On March 20, 1947, a notice was issued by the respondent whereby, in exercise of the powers conferred on it by section 60 of the (11 of 1924), the respondent proposed to make, with the previous sanction of the Central Government, certain amendments in the notification of the Government of Bombay in the General Department No. 4160 dated June 17, 1918, and intimated that the draft amendments would be considered by the respondent on or after April 21, 1947, and invited objection in writing within 30 days from the publication of that notice. One of the items of amendments was as follows: "(ii) 'V Tax on Entertainments ' 9 66 1. Cinemas, Talkies or Rs. 5 0 0 per dramas Rs. 10 0 0 show 2. Circus Rs. 20 0 0 per show 3. Horse Races Rs. 100 0 0 per day of race meeting. 4. Amusement park Rs. 20 0 0 per day provided as follows: 1. The said tax shall be levied at the rate of Rs. 10 0 0 per show in the case of the West End and Capitol Talkies and at the rate of Rs. 5 0 0 per show in other cases ". It appears that the Cinematograph Exhibitors Association of India submitted certain objections to the proposals. The Cantonment Executive Officer, Poona, by his letter dated July 8, 1947, informed the Secretary of the Cinematograph Exhibitors Association of India that the latter 's letter had been submitted to the Government of India in original along with the respondent 's proposals and that the imposition of the entertainments tax on cinemas had been approved by the Government of India, Defence Department notification No. 1463 dated May 7, 1947. On June 17,1948, a notification was issued by the Government of Bombay to the effect that in supersession of the notifications of Government noted on the margin and of all other notifications on the same subject, the Governor in Council, with the previous sanction of the Governor General in Council was pleased to impose certain taxes in the Cantonment of Poona with effect from July 15, 1948. One of the taxes thus imposed was as follows: " V Tax on entertainments. Cinemas, Talkies or dramas Rs. 10.0 0 :in the case of the West End per show and Capitol In other cases Rs. 5 0 0 per show 2. Circus Rs. 2 0 0 per show 3. Horse Races Rs. 100 0 0 per day of race meetings. 4. Amusement park Rs. 20 0 0 per day. " 67 The appellant paid the tax under protest and on or about April 19, 1950, filed a suit (being suit No. 89 of 1950) against the respondent in the Court of the Civil Judge, Senior Division, Poona for a declaration that the levy, collection or recovery of the said tax by the respondent was illegal and invalid, for a permanent injunction restraining the respondent from levying, collecting or recovering the said tax, for refund of the sum of Rs. 45,802 0 0 being the total amount of tax collected from the appellant, for costs and interest on judgment. By its judgment dated July 31, 1951, the trial court decreed the suit in full. The respondent preferred an appeal before the High Court against the said judgment and decree of the trial court and the High Court by its judgment and decree dated February 10, 1953, allowed the appeal and dismissed the appellant 's suit with costs throughout. The High Court, however, granted to the appellant a certificate of fitness for appeal to this Court and hence this final appeal questioning the validity of the said tax. At all times material to this appeal the respondent was governed by the (Act 11 of 1924). Section 60 of that Act runs as follows: " 60(1) The Board may, with the previous sanction of the local Government, impose in any Cantonment any tax which, under any enactment for the time being in force, may be imposed in any municipality in the province wherein the Cantonment is situated. (2) Any tax imposed under this section shall take effect from the date of its notification in the official gazette ". The enactment under which shortly after the date of passing of the , tax could be imposed by the municipal boroughs in the province of Bombay was the Bombay Municipal Boroughs Act, 1925 (Bom. XVIII of 1925). Therefore the powers of the respondent to. levy and collect taxes under the provisions of the were co extensive with the powers of the Borough Municipalities under the Bombay Municipal Boroughs Act, 1925. Section 73 of the last mentioned Act specified the taxes which 68 might be imposed by a municipality. The relevant portions thereof, prior to its present adaptation, were as follows: " Subject to any general or special orders which the Provincial Government may make in this behalf and to the provisions of sections 75 and 76, a municipality may impose for the purposes of this Act any of the following taxes, namely: (xiv) any other tax (not being a toll on motor vehicles and trailers. , save as provided by section 14 of the Bombay Motor Vehicles Tax Act, 1935) which under the Government of India Act, 1935, the provincial Legislature has power to impose in the province. " The question is whether the provincial legislature of Bombay had power to impose the tax which is under consideration in this appeal. Under section 100 of the Government of India Act, 1935 read with entry 50 in Sch. VII thereto the provincial legislature had power to make law with respect to " taxes on luxuries, including taxes on entertainments, amusements, betting and gambling ". Learned counsel for the appellant contends that the impugned tax is not covered by this entry at all. This entry, according to him, contemplates a law imposing taxes on persons who receive or enjoy the luxuries or the enter tainments or the amusements and, therefore, no law made with respect to matters covered by this entry can impose a tax on persons who provide the luxuries, entertainments or amusements, for the last mentioned persons themselves receive or enjoy no luxury or entertainment or amusement, but simply carry on their profession, trade or calling. Learned counsel urges that the impugned law is really one with respect to matters specified in entry 46, namely, taxes on professions, trades, callings and employments and, there fore, cannot exceed Rs. 100 per annum under section 142A of the Government of India Act, 1935 and Rs. 250 per annum under article 276(2) of the Constitution. We are unable to accept this argument as sound. 69 As pointed out by this ' Court in Navinchandra Mafatlal vs The Commissioner of Income Tax, Bombay City (1), following certain earlier decisions referred to therein, the entries in the legislative list should not be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. It has been accepted as well settled that in construing such an entry conferring legislative powers the widest possible con struction according to their ordinary meaning must be put upon the words used therein. In view of this well established rule of interpretation, there can be no reason to construe the words " taxes on luxuries or entertainments or amusements " in entry 50 as having a restricted meaning so as to confine the operation of the law to be made thereunder only to taxes on persons receiving the luxuries, entertainments, or amusements. The entry contemplates luxuries, entertainments, and amusements as objects on which the tax is to be imposed. If the words are to be so regard ed, as we think they must, there can be no reason to differentiate between the giver and the receiver of the luxuries, entertainments, or amusements and both may, with equal propriety, be made amenable to the tax. It is true that economists regard an entertainment tax as a tax on expenditure and, indeed, when the tax is imposed on the receiver of the entertainment, it does become a tax on expenditure, but there is no warrant for holding that entry 50 contemplates only a tax on moneys spent on luxuries, entertainments or amusements. The entry, as we have said, contemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment. Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling. It is a tax imposed on every show, that is to say, on every instance of the exercise of the particular trade, calling or employment. If there is no show, there is no tax. A (1) [1955] 1 S.C.R. 829. 70 lawyer has to pay a tax or fee to take out a license irrespective of whether or not he actually practises. That tax is a tax for the privilege of having the right to exercise the profession if and when the person taking out the license chooses to do so. The impugned tax is a tax on the act of entertainment resulting in a show. In our opinion, therefore, section 73 is a law with respect to matters enumerated in entry 50 and not entry 46 and the Bombay legislature had ample power to enact this law. The only other point urged before us is that the notification is violative of the equal protection clause of our Constitution in that it has picked out the appellant 's cinema houses for discriminatory treatment by imposing on it a tax at the rate of Rs. 10 per show, while a tax of only Rs. 5 per show is imposed on other cinema houses. The meaning, scope, and effect of the provisions of article 14 of our Constitution have been fully dealt with, analysed and laid down by this Court in Budhan Choudhury vs The State of Bihar (1) and Shri Rama Krishna Dalmia vs Shri Justice section R. Tendolkar (2). It appears, however, from the record that no issue was raised and no evidence was adduced by the appellant before the trial court showing that there were other cinema Houses similarly situate as that of the appellant 's cinema Houses. It may not be unreasonable or improper if a higher tax is imposed on the shows given by a cinema house which contains large seating accommodation and is situate in fashionable or busy localities where the number of visitors is more numerous and in more affluent circumstances than the tax that may be im. posed on shows given in a smaller cinema house containing less accommodation and situate in some localities where the visitors are less numerous or financially in less affluent circumstances, for the two cannot, in those circumstances, be said to be similarly situate. There was, however, no material on which the trial court could or we may now come to a decision as to whether there had been any real discrimination in the facts and circumstances of this case. It (1) (2) ; 71 may be that the appellant may in some future proceeding adduce evidence to establish that there are other cinema houses similarly situate and that the imposition of a higher tax on the appellant is discriminatory as to which we say nothing; but all we need say is that in this suit the appellant has not discharged the onus that was on him and, on the material on record, it is impossible for us to hold in this case that there has been any discrimination in fact. For reasons stated above this appeal must be dismissed with costs. [/INST]The Sikkim State Civil Service was constituted in 1977, under the Sikkim State Civil Service Rules, 1977. The Rules provided for two methods of recruitment viz., competitive examination and selection from amongst persons serving in connection with the affairs of the State. On the basis of representations from officers who were not being considered for induction into the service at. its initial constitution, the Petitioner State decided to afford an opportunity to them. On 16.9.81 the State Government issued a notification for special recruitment and constituted a Selection Commit tee. Written examination cum viva voce test was adopted as the method of recruitment, and the Selection Committee prepared a merit list, on the basis of which 29 officers were appointed to the service in December, 1982. The Respondent who was working as Under Secertary to the State Government compete in the test but was not successful. He filed a Writ Petition before the High Court, challenging the notification dated 16.9.1981 and the consequent selec tion. The main contention raised by him was that the exer cise of power under Rule 4(3) on the basis of which the said notification was issued, was illegal on the ground of exces sive delegation, since the requisite conditions of existence of exigencies of service and consultation with the Public Service Commission were not satisfied. The Petitioner State contended that the Rules though 633 634 enforced, were inoperative since Public Service Commission was not in existence in the State, and the Government could issue the notification in exercise of its executive power under Article 162 of the Constitution of India; that the conditions precedent for holding the selection under Rule 4(3) were satisfied as the necessary opinion to issue the notification was formed on the basis of the reasons con tained in the Cabinet Memorandum dated 10.8.1981; that the consultation with the Public Service Commission under the Rules was directory and in any case the Service Commission was not in existence at the relevant time and that the Respondent having appeared in the written examination and viva voce test was estopped from challenging the selection. Rejecting the contentions of the State, the High Court held that the notification was violative of the Rules and quashed the selection and the consequent appointments. Aggrieved by the High Court 's decision, the State Gov ernment and the selected officers preferred the present appeals by special leave. The same contentions as were raised in the High Court were urged before this Court. Allowing the appeals, this Court, HELD: 1. The State Government was justified in issuing the notification in exercise of its executive power and the High Court fell into error in quashing the same. [642F] 2. The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. It is settled law that any order, instruc tion, direction or notification issued in exercise of the executive power of the State which is contrary to any statu tory provisions, is without jurisdiction and is a nullity. In the instant case, the Sikkim State Civil Service Rules, 1977 though enforced, remained unworkable for about five years. The Public Service Commission, which was the authori ty to implement the said Rules, was not in existence during the said period. There is nothing on record to show as to why the Public Service Commission was not constituted during all those five years. In the absence of any material to the contrary it is assumed that there were justifiable reasons for the delay in constituting the Commission. The executive power of the State being divided amongst various function aries under Article 166(3) of the Constitution of India there is possibility of lack of co ordination amongst var ious limbs of the Government working within their respective spheres of allocation. The 635 object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrari ness, provide consistency and crystalise the rights of employees concerned. The statutory provisions which are unworkable and inoperative cannot achive these objectives. Such provisions are non est till made operational. It is the operative statutory provisions which have the affect of ousting executive power of the State from the same field. When in a peculiar situation, the statutory provisions could not be operated, there was no bar for the State Government to act in exercise of its executive power. The notification to hold special selection was issued almost four years after the enforcement of the Rules. It was done to remove stagna tion and to afford an opportunity to the eligible persons to enter the service. [642A E] 3. The fact that the State Government purported to act under rule 4(3) of the Rules in issuing the notification is of no consequence. When the source of power can be validly traced then the State action in the exercise of such power cannot be struck down on the ground that it was labelled under a different provision. [642G] 4. After the constitution of the Sikkim Public Service Commission, the Chairman of the Commission was made to preside over the Selection Committee which took the viva voce test. Thereafter the merit list was sent to the Public Service Commission and the appointment was made with the approval of the Commission. The selection was thus finally approved by the Commission which is an independent authori ty. There could be no infirmity or illegality in the process of selection or in preparing the merit list. [642H; 643A B] </s>

<s>[INST] Summarize the judgementAppeal No. 231 of 1956. Appeal from the judgment and order dated September 11, 1953, of the Rajasthan High Court (Jaipur Bench) at Jaipur in Writ Application No. 141 of 1952. M. section K. Sastri and T. M. Sen, for the appellants. The respondent did not appear. August 18. The Judgment of the Court was delivered by RAJAGOPALA AYYANGAR, J. This appeal raises for consideration the constitutional validity of one paragraph of a notification issued by the State of Rajasthan under section 15 of the (V of 1861), under which " the Harijan " and " Muslim " inhabitants of the villages, in which an additional police force was stationed, were exempted from the obligation to bear any portion of the cost of that force. It is stated that the inhabitants of certain villages 223 in the district of Jhunjhunu in the State of Rajasthan, harboured dacoits and receivers of stolen property, and were besides creating trouble between landlords and tenants as a result of which there were serious riots in the locality in the course of which some persons lost their lives. The State Government therefore took action under section 15 of the . This Section provides : " Quartering of additional police in disturbed or dangerous districts (1) It shall be lawful for the State Government, by proclamation to be notified in the official Gazette, and in such other manner as the State Government shall direct, to declare that any area subject to its authority has been found to be in a disturbed or dangerous state, or that, from the conduct of the inhabitants of such area, or of any class or section of them, it is expedient to increase the number of police. (2) It shall thereupon be lawful for the Inspector General of Police, or other officer authorised by the State Government in this behalf, with the sanction of the State Government, to employ any police force in addition to the ordinary fixed complement to be quartered in the areas specified in such proclamation as aforesaid. (3) Subject to the provisions of sub section (5) of this section, the cost of such additional police force shall be borne by the inhabitants of such area described in the proclamation. (4) The Magistrate of the district, after such enquiry as he may deem necessary, shall apportion such cost among the inhabitants who are, as aforesaid, liable to bear the same and who shall not have been exempted under the next succeeding sub section. Such apportionment shall be made according to the Magistrate 's judgment of the respective means within such area of such inhabitants. (5) It shall be lawful for the State Government by order to exempt any persons or class or section of such inhabitants from liability to bear any portion of such cost. " Sub section (6) is omitted as not relevant. 224 The notification by which these provisions were invoked and which is impugned in these proceedings was in these terms: " Whereas the Rajpramukh is satisfied that the area shown in the schedule annexed hereto has been found to be in a disturbed and dangerous state; Now, therefore, in the exercise of the authority vested in him under Section 15(1) of the (V of 1861), the Rajpramukh is pleased to declare that the 24 villages included in the said schedule shall be deemed to be disturbed area for a period of six months from the date of this notification. Under sub section 2 of the said section 15 of the (V of 1861), the Rajpramukh is pleased to authorise the Inspector General of Police to employ, at the cost of the inhabitants of the said area any Police force in addition to the ordinary fixed complement quartered therein. Under sub section 5 of section 15 of the said Act the Rajpramukh is further pleased to exempt the Harijan and Muslim inhabitants of these villages from liability to bear any portion of the cost on account of the posting of the additional Police force. " Then followed the names of the 24 villages. The respondent Thakur Pratap Singh being an inhabitant of Baragaon one of these 24 villages, moved the High Court of Rajasthan for the issue of a writ or direction under Act. 226 of the Constitution impugning the validity of section 15 of the and in particular of sub section 5 thereof and of the notification and praying for appropriate reliefs. The High Court repelled the wider contentions urged regarding the invalidity of section 15 of the in general as also of the powers conferred on the State Government to order the exemption of " any person or classes or sections of such inhabitants " from liability to bear the cost of the additional police force. But the learned Judges hold that Para 4 of the notification which exempted " Harijan and Muslim inhabitants of the villages " from the levy, was violative of the guarantee in article 15(1) of the Constitution against discrimination on the ground of caste or religion etc. which reads. 225 " The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them." and struck it down as unconstitutional. The State of Rajasthan who felt aggrieved by this order applied to the High Court for a certificate under article 132(1) to enable it to file an appeal to this court and this having been granted, the appeal is now before us. Learned Counsel for the State made a strenuous effort to show that the exemption of the Harijan & Muslim inhabitants of the villages, was, in the impugned notification, not based " only " on the ground of 'caste or religion ' or the other criteria set out in article 15(1), but on the ground that persons belonging to these two communities were found by the State not to have been guilty of the conduct which necessitated the stationing of the additional police force. It was the same argument as was addressed to the High Court and was rejected by the learned Judges who observed : " Now this is a very strange argument that only persons of a certain community or caste were law abiding citizens, while the members of other communities were not. Disturbing elements may be found among members of any community or religion just as much as there may be saner elements among members of that community or religion. " The view here expressed by the learned Judges is, in our opinion, correct. Even if it be that the bulk of the members of the communities exempted or even all of them were law abiding, it was not contended on behalf of the State that there were no peaceful and law abiding persons in these 24 villages belonging to the other communities on whom the punitive levy had been directed to be made. In para 5(f) of the petition filed before the High Court the respondent had averred : " That the aforesaid Notification is ultra vires of the Constitution of India as it discriminates amongst the Citizens of a village on the basis of religion, race or caste, in as much as it makes a distinction between 29 226 persons professing the Mohammadan religion and others and also between persons who are Muslims and Harijans by caste and the rest. It, therefore, contravenes the provisions of Article 15 of the Constitution of India. " The answer to this by the State was in these terms: " The Harijan and Muslim inhabitants of these villages have been exempted from liability to bear any portion of the cost of the additional force not because of their religion, race or caste but because they were found to be peace loving and law abiding citizens, in the 24 villages additional force has been posted. " It would be seen that it is not the case of the State, even at the stage of the petition before the High Court that there were no persons belonging to the other communities who were peace loving and law abiding, though it might very well be, that according to the State, a great majority of these other communities were inclined the other way. If so, it follows that the notification has discriminated against the law abiding members of the other communities and in favour of the Muslim and Harijan communities, (assuming that every one of them was "peace loving and law abiding") on the basis only of " caste " or "religion ". If there were other grounds they ought to have been stated in the notification. It is plain that the notification is directly contrary to the terms of article 15(1) and that para 4 of the notification has incurred condemnation as violating a specific constitu tional prohibition. In our opinion, the learned Judges of the High Court were clearly right in striking down this paragraph of the notification. The appeal fails and is dismissed. As the respondent has not appeared there will be no order as to costs. Appeal dismissed. [/INST]N borrowed rupees one lakh from D on mortgage of a house and Zamindari interest on March 1, 1924. Interest was 8% per annum compoundable with six monthly rests. In 1932 the mortgagee filed a suit on the mortgage and a decree was passed for the recovery of Rs. 1,83,781/5/9 principal and interest upto the date of the suit and Rs. 49,280/ 2/6 interest from date of the suit upto the date fixed for payment, with future interest at 6% per annum simple on the principal sum. On the failure of the mortgagor to pay by the date fixed a final decree was passed on May 9, 1935 for sale of the property for recovery of a sum of Rs. 2,37,503/5/6 which had become due. On October 26, 1936, N made an application under section 4 of the U. P. Encumbered Estates Act, 1934, requesting that the provisions of the Act be applied to him. Section 14(4)(a) of the Act provided that " the amount of interest held to be due on the date of application shall not exceed that portion of the principal which may still be found to be due on the date of the application ". N contended that in view of section 14(4)(a), D was not entitled to recover any sum as interest in excess of the principal sum of rupees one lakh. D contended that it was not necessary to reopen the decree as the principle of section 14(4)(a) had not been violated in passing the decree. Held, that the proper decree that should have been passed on the application was for rupees two lakhs for the principal and interest plus costs and interest pendente lite and future interest at 4% per annum. The words " on the date of the application " in section 14(4)(a) of the Act had been deliberately used to benefit the applicant by reducing the interest to the amount of the principal found still due on the date of the application, whatever amount of interest may be due under the contract. The fact that there had been a decree did not make any difference in giving the benefit of the section to the applicant. Pandit Ramsagar Prasad vs Mst. Shayama, A.I.R. 1939 Oudh 75, disapproved. Rukun uddin vs Lachhmi Narain, I.L.R. 1945 All. 307, referred to. 119 </s>

<s>[INST] Summarize the judgementvil Appeal Nos. 3236 39 of 1984. From the Judgment and Order dated 7.2. 1983 of the Bombay High Court in F.C.A. Nos. 35/B, 36/B, 37/B & 38/B of 1981. Ashok H. Desai, Solicitor General, Ravinder Narain, Aditya Narain, Rajan Narain, section Sukumaran, D.N. Mishra and Pallav Sishodia for the Appellant. G.L. Sanghi, S.K. Mehta, Dhruv Mehta and Aman Vachher for the Respondent. The Judgment of the Court was delivered by RAY, J. The above four appeals on special leave by the appellant were filed against the judgment and order dated February 7, 1983 made by the Panaji Bench of the Bombay High Court in First Civil Appeal Nos. 35/B to 38/B of 1981 dis posing of all the four appeals field by the appellant against the judgment and order of the learned Civil Judge, Senior Division, Panaji, Goa dated 26.8.1981 confirming four different awards by an arbitrator appointed in pursuance to the agreement between the parties. Appeal No. 35 of 1981 relates to the award, awarding to the respondent against the appellant Rs.2,75,091.13. Appeal No. 36 of 1981 relates to an award, awarding to the respondent a sum of Rs.1,88,968.36. Appeal No. 37 of 1981 relates to an award, awarding to the respondent Rs.3,36,230.36 and Appeal No. 38 of 1981 relates to an award, awarding to the respondent Rs.46,321.32. The facts leading to these appeals are as follows: The appellant Goa, Daman & Diu Housing Board entered into two contracts on 15.3.72, and one contract each on 11.7.73 and on 4.7.73 with the respondent for the construc tion of tenements at Vasgoda Gama, Goa. The appellant ac cepted two tenders of the respondent on 9.3.72 and remaining two on 24.2.73. There was a time limit in all the aforesaid four contracts for the completion of the work referred to therein. Several extensions were granted to the respondent for completing the work out the respondent failed to com plete the construction 907 work undertaken by him under the said four contracts. On July 1, 1975 the appellant issued a notice to the respondent under clause 3 of the said contract for exercising the right of termination in view of the fact that the respondent was unable to fulfil the contractual obligation of completing the construction work in spite of the various extensions granted to the respondent. On July 14, 1975, the Engineer in Charge of the appellant Board exercised its unilateral right of terminating the contract under clause 3 of the agreement in view of the fact that the respondent did not complete the work of construction undertaken by him in spite of various extentions granted to him. On July 31, 1975, the Chairman of the appellant board confirmed that all the four contracts stood rescinded. On May 17, 1976, the respondent served a notice to the appellant on the ground that the appellant had rescinded the work contracts. The respondent stated therein various reasons why the work could not be completed. Thereafter in April, 1978, the appellant filed a suit claiming damages for a sum of Rs.4,38,786.96 with interest against the respondent in the Court of the Civil Judge, Senior Division, Panaji, Goa. Subsequently, an application was filed by the respondent under section 34 of the for stay of the suit. Respondent also made another application to the Court under section 20 of the for directing the Housing Board to file the arbitration agreement in Court and in pursuance of clause 25 of the agreement to appoint an arbitrator. Accord ingly, the Court by its order dated 28.2.1979 had the agree ment between the parties filed in court and directed the Housing Board to appoint an arbitrator. On March 29, 1979 Shri J.S. Pinto, retired Superintending Engineer w.as ap pointed as Arbitrator. The Arbitrator on March 23, 1981 submitted four awards granting the claims of the respondent as stated hereinbefore on the basis that the appellant was responsible for the slow progress and non completion of work and the work could not be completed as the contract was terminated by the appel lant, the Housing Board. The said award was filed in the Court of Civil Judge, Senior Division, Panaji, by the Arbi trator on 31st March, 1981 for making the award Rule of the Court. The appellant submitted his objections for setting aside the awards on April 27, 1981 on the grounds inter alia that the Arbitrator had misconducted himself by not framing the main issue i.e. whether or not the claimant abandoned the work and thereby committed breach of the agreement. The Arbitrator misconducted himself by ignoring the letter of termination wherein it Was clearly stated that the termina tion has been done on account of the abandonment of the work by the claimants; the learned Arbitrator failed to decide upon the 908 question of the abandonment of work and has wholly side tracked the issue; the learned Arbitrator misconducted himself by not giving reasons for the award as required under the agreement under which he was appointed. The learned Civil Judge, Senior Division, Panaji by his Order dated 26th August, 1981 rejected all the objections raised on behalf of the appellant against the said awards and confirmed the same. All the four impugned awards have been made Rule of the Court. The appellant thereafter filed the aforesaid First Civil Appeal Nos. 35/B, 36/B, 37/B and 38/B of 1981 against the said Order of the learned Civil Judge, Senior Division, Panaji, Goa on the ground that the Civil Judge did not consider that the Arbitrator misconducted himself in making the awards without recording any reasons for the same, even though the claim was Rs.50,000 and above as provided in clause 25 of the agreement between the parties and as such the awards should have been set aside by the Court. The High Court held that having regard to the clause 25 of the terms of the agreement specifically providing that in all cases where amount of claim in dispute is Rs.50,000 and above the arbitrator was bound to give reasons for his award. The statements that has been made by the Arbitrator while giving his findings could not be considered to be the reasoning for his finding of the award. The Court also held that: "The award no where contains any reasoning for the same nor does it even obliquely mentions that in giving his findings the Arbitrator has even sought to adopt the reasoning of either of the parties. In our view as the obligation of the Arbitrator under Clause 25 of the agreement stands, the reasons should appear to be so in this case. " It was further held that as the arbitrator failed to give reasons for the award it would be a misconduct on his part and the award was liable to be vitiated on that ground. The Court allowed all the appeals. The order of the lower court was set aside and the awards were remanded back to the arbitrator for giving reasons for the same as required under clause 25 of the arbitration agreement and thereafter to file the same in the court of Civil Judge, Panaji, within eight weeks after the order is served on him. 909 Against this judgment and order the impugned appeals by special leave were filed. The learned counsel on behalf of the appellants has contended that the High Court acted illegally in not consid ering at all that the arbitrator did not record any reasons for making awards allowing the claims each of which exceeds Rs.50,000 as provided under clause 25 of the arbitration agreement and as such the arbitrator has misconducted him self in the proceedings and instead of sending the awards made by the arbitrator to him for recording his reasons ought to have set aside the awards under section 30 of the . It has also been contended that the High Court though it held that the arbitrator was guilty of misconduct and the awards made by him were liable to be vitiated on that ground yet inspite of setting aside the awards they were sent to the arbitrator for recording rea sons which is totally unwarranted by law. The learned counsel appearing on behalf of the respond ent, on the other hand, submitted that the awards made by the arbitrator after hearing the parties cannot be said to be illegal or unwarranted as the same were made after con sidering all papers and documents filed by the parties and after duly hearing the parties. As such there was no ille gality nor any misconduct committed in making the awards. The arbitrator has fairly considered the issues and made the awards in question. The misconduct, if any, on the part of the arbitrator does not concern with the probity and impar tiality of the arbitrator. The only allegation against the arbitrator is that he has not recorded the reasons for the awards made by him as per term of clause 25 of the arbitra tion agreement. It has, therefore, been contended by the learned counsel on behalf of the respondent that the order of the High Court in remanding the awards to the arbitrator for recording reasons clearly fails within the purview of section 16(1)(c) of the as the objec tion to the legality of the award is apparent on the face of it. It does not fail within the provision of section 30 of the said act in as much as the arbitrator has not miscon ducted himself or the proceedings and the awards in question have not been improperly procured. Several decisions have been cited at the bar in support of the respective conten tions advanced by the counsel for the parties. Before considering the question whether the directions made by the High Court in remitting the award to the Arbi trator for giving reasons do fall within the purview of Section 16 of the , it is appropriate to set out the relevant provisions of section 16(1): 910 "Sec. 16(1): The Court may from time to time remit the award or any matter referred to arbitration to the arbitrators or umpire for reconsideration upon such terms as it thinks fit (a) where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separat ed without affecting the determination of matters referred; or (b) where the award is so indefinite as to be incapable of execution; or (c) where an objection to the legality of the award is apparent upon the face of it. " Section 16 empowers the Court to remit the award to the Arbitrator for reconsideration only in three cases specified therein. Clause (c) of Section 16(1) provides that the award shall be remitted to the Arbitrator by the Court where an objection to the legality of the award is apparent on the face of it. Of course, the High Court has come to a finding that the Arbitrator was guilty of misconduct for his failure to give reasons as required. There is, however, nothing to show that the Arbitrator misconducted himself or the pro ceedings in any other manner nor there is anything to show that the awards have been improperly procured. There is no allegation, far less, any finding, that the Arbitrator was biased or unfair or he has not heard both the parties or he has not fairly considered the submissions of the parties in making the awards in question. In our opinion, it is evident from the four awards made by the Arbitrator that the Arbi trator has considered all the specific issues raised by the parties in the arbitration proceedings and came to his finding after giving cogent reasons. The above awards cannot under any circumstances be considered to be made by the Arbitrator without recording any reasons for the same. Therefore, in such circumstances, it is not proper to hold that the Arbitrator has misconducted himself or in the proceedings in the matter of giving the awards. In these circumstances, we are unable to hold that the four awards made by the Arbitrator are bad for not recording reasons. We, therefore, uphold the said awards and we do not think it necessary to decide the question as regards the scope of Section 30 or Section 16of 911 the . The decision of the High Court remit ting the awards back to the Arbitrator for giving reasons is set aside and the awards made by the Arbitrator are upheld. Let these awards be made rule of the Court. The appeals are, therefore, dismissed. There will be no order as to costs. N.P.V. Appeals dis missed. [/INST]The Respondent retired as Judge of the High1 Court on 3.10.1983 on superannuation and elected to receive his pension under of the First SChedule to the . As a Judge of the High Court, he had put in service of 5 years 10 months and 17 days and his pension was determined at Rs.8,400 p.a. and family pension at Rs.250 p.m. In 1986, the Act was amended providing for an increased pension from 1.11.1986. Thereafter, the Respondent filed a Writ Petition before the High Court praying for directions that he was entitled to refixation of his pension from the date of his retirement at Rs.9,600 per annum on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days; that from November 1, 1986 his pension may be refixed at Rs.20,580 per annum at the rate of Rs.3,430 for six complet ed years of service; and that the family pension admissible to his wife be calculated on the basis that he had completed six years of service. During the pendency of the Writ Petition the Respondent made representations to the Government of India that since the respondent fell short of 6 completed years of service only by 1 month and 13 days, the President may be pleased to allow him to add the period so as to 874 caluclate the pension, gratuity and family pension on the basis of 6 completed years of service as a Judge. By its order dated April 16, 1987 the Government of India rejected the representation of the respondent among other grounds that the request was belated. By its judgment dated March 15, 1988 the High Court allowed the Writ Petition directing the Government to retix his pension, family pension and gratuity treating him as having put in six completed years of service. The Union of India has preferred the present appeal, by special leave against the High Court 's order. It was contended on behalf of the appellants that the High Court has re written the retirement benefit provisions of the First Schedule to the Act which it was not entitled to and hence the refxation of the pension on that basis was wholly illegal and unconstitutional However, during the pendency of the appeal this Court in its proceedings dated December 15, 1988 the Government directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of 1 month and 13 days subject to the final decision of this Court in the appeal. However, it was added that the period shall be disregarded in calculating additional pension. if any, under , and of the First Sched ule of the said Act. Allowing the appeal, this Court. HELD: 1. It is a well known practice in pensionary schemes to fix a minimum period for purposes of pension. What shall be the minimum period for such pension will depend on the particular service, the age at which a person could enter into such service. the normal period which he is expected to serve before his retirement on superannuation, and various other factors. There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary. So far as the Judges of the High Court are concerned even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension. In fact no pension was provided for those who had not com pleted seven years of service under pre constitutional scheme. Thus there are historical grounds or reasons for fixing not less than seven years of service for pension. Part I deals with pensionary scheme. Prescribing a minimum period of service before retirement on superannuation, for pension is the very scheme itself and not a classification. It is a qualification for eligibility. It is different from computation of pension. All those who 875 satisfy that condition are eligible to get pension. [885G H; 886A C] 2. Even those who had completed seven years of service were not given pension for all the completed years of serv ice at the rate of Rs.1,600 per annum and a maximum limit has been fixed for purposes of pension. If one calculates the maximum amount provided with reference to the rate per year roughly in about 14 years of service one would have reached the maximum amount. Any service above that period is not taken into account. Thus a person who had put in the minimum period for getting the maximum pension could be said to be favourably treated against the person who had put in more number of years of service than needed for the maximum pension and thereby discriminated. [886D E] 3. It is not correct to state that the amount of pension provided in paragraph 9 is minimum pension. The said para graph does not use the word 'minimum ' but only states that if a Judge retires without being eligible for pension under any of the provisions. notwithstanding anything contained in the other provisions. the pension of a particular amount mentioned therein shall be paid to the Judge. This amount is not calculated or has any reference to any period of serv ice. A Judge who had put in only two years of service before retirement will also receive the same amount as that of a Judge who has completed six years of service. If the provision is struck down as unconstitutional the condition relating to completion of seven years of service in para graph 2, all those who had put in less than six completed years of service would be seriously affected and paragraph 9 also would become inapplicable. Further, it may be open to those who have put in more than five years or more than four years as the case may be. to contend that they are discrimi nated against because persons who had put in less than that period will get pension at much higher rate. [886F H: 887A] 4. The Amending Act 38 of 1980 provided that the amend ed liberalised pension scheme would apply only to a Judge who has retired on or after the commencement of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act. A similar provision which made the amendment 01 1976 applicable only to those Judges who have retired on or after October 1. 1974 was struck down as ultra vires and it was decided that the benefit of the amendment was available to. all the retired Judges irrespective of the date of retirement but subject to the condition that the enhanced pension was payable only with effect from October 1, 1974. The Amending Act of 1986 could not restrict the applicability of the amended provision to only those who have retired on or after the commencement of the Amending Act. It 876 would be applicable to all the Judges irrespective of the dates of retirement and they would be entitled to be paid pension at the rates provided therein with effect from November 1, 1986. [883A D] Union of India vs B. Malick. ; ; N.L. Abhyankar vs Union of India, ; and D.S., Nakara vs Union of India, ; , referred to. In the instant case. High Court had exceeded its jurisdiction and power in amending and altering the provi sions of paragraph 2 by substituting different minimum period for eligibility for pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Sched ule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the rate of Rs. 15,750 per annum. [887B C] 6. Since in compliance with the mandamus issued by the High Court, the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal, this Court does not go into the question whether the High Court was right in set ting aside the earlier rejection for addition of the period. The addition of one month and 13 days does not make any difference in calculation of pension it is relevant only for the purpose of calculating the gratuity under section 17A(3) of the Act. As the period was less than three months and as the President was pleased to sanction the addition in exer cise of his power under Section 16 of the Act though subject to the final decision of this Court it is just and necessary to allow this addition to remain for the purposes of calcu lation of gratuity, and family pension only though not for pension. The respondent will be entitled to fixation of family pension and for payment of gratuity calculated on the basis of his having completed six years of service. [887D H] 7.1. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legis lature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the 877 words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law iS. and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. [885A D] 7.2 Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimina tion. What the High Court has done in this case is a clear and naked usurpation of legislative power. [885F] P.K. Unni vs Nirmala Industries, ; Mangilal vs Suganchand Rathi, ; Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Smt. Hira Devi & Ors. vs District Board, Shahjahanpur, ; ; Nalinakhya Bysack vs Shyam Sunder Haldar & Ors., ; ; Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdoor Sabha, ; ; section Narayanaswa mi v. G. Pannerselvam & Ors., ; ; N.S. Varda chari vs G. Vasantha Pai & Anr., ; ; Union of India vs Sankal Chand Himatlal Sheth & Anr., ; and Commissioner of Sales Tax, U.P.v. Auriaya Chamber of Commerce, Allahabad; , , relied on. </s>

<s>[INST] Summarize the judgementvil Appeal Nos. 3804 to 3807 of 1988. From the Judgment and Order dated 23.11.1987 of the Bombay High Court in Second Appeal No. 404 of 1985, W.P. No. 607 of 1985 ant Second Appeal No. 86 of 1986. R.K. Garg, Vijay Hansaria and Sunil K. Jain for the Appellants. PG NO 714 S.B. Bhasme, V.M. Tarkunde, A.S. Bhasme, V.N. Ganpule, S K. Agnihotri, A.G. Pawar and A.B . Lal for the Respondents. The Judgment of the Court was delivered by DUTT, J. Special leave is granted in all these matters. Heard learned Counsel for the parties. The principal question that is involved in these appeals is some what peculiar. The question is whether the Food & Civil Supplies Department, Sholapur, has a separate and independent existence or whether it is part and parcel of the Revenue Department. The best authority which can answer the question is the Government, but the Civil Courts and the High Court have not been able to accept the Government version that the Food & Civil Supplies Department, Sholapur, is an independent Government Department and does not form part of the Revenue Department. The facts leading to the question will be stated presently. The Commissioner of Pune Division, by his order dated January 27, 1981, granted promotions to the appellants to the posts of Awal Karkuns, and directed that the private respondents herein, who were holding these posts would be repatriated to their parent department, that is, the Revenue Department. Aggrieved by the said order of the Commissioner, Pune Division, some of the private respondents filed a civil suit for a declaration that the said order granting out of turn promotions to the appellants as Awal Karkuns was unjust, illegal and violative of the fundamental rights of the respondents guaranteed under Articles 14 and 16 of the Construction of India. The learned Civil Judge, Senior Division, Sholapur, decreed the suit and declared that the impugned order of the Commissioner, Pune Division was discriminatory, illegal and not binding upon the respondents. The learned Civil Judge also granted an injunction permanently restraining the Government from reverting the respondents from the posts of Awal Karkuns to the posts of Clerks on appeal. the Fourth Addition District Judge, Sholapur, upheld the judgment and decree of the Civil Court and dismissed the appeal preferred by the appellants and the State of Maharashtra The appellants and the State of Maharashtra filed two separate second appeals to the High Court of Bombay. In the meantime, some of the respondents also filed writ petitions in the High Court challenging the validity of the impugned order of the Commissioner, Pune Division. The High Court, by a common judgment, disposed of the second appeals and the writ petitions. The High Court PG NO 715 came to the finding that the Food & Civil Supplies Department, Sholapur, had no separate existence on the date the impugned order was passed, and that it was part and parcel of the Revenue Department. Upon that finding, the High Court dismissed the second appeals and allowed the writ petitions of the respondents. It is not disputed before us that before 1965, there was no such Department as the Food & Civil Supplies Department at Sholapur. Initially, the Agriculture, Food & Cooperation Department of the Government was entrusted with the subject of food and the supply thereof. By a circular dated January 13, 1965 of the Government of Maharashtra, a new department called "the Civil Supplies Department" was created. By a subsequent Government circular dated May 13, 1965 it was renamed as "Food & Civil Supplies Department . It appears from the said Government circular dated January 13, 1965, creating the department, that the Agriculture, Food & Cooperation Department was renamed as the Agriculture & Cooperation Department. In other words, the subject of food was withdrawn from the said and a new Department, namely the Civil Supplies Department. subsequently renamed as Food & Civil Supplies Department, was created. After the creation of the Food & Civil Supplies Department the rationing was introduced in Sholapur City and Salgarwadi area under the control of the Food & Civil Supplies Department which will appear from the Government resolution dated February 19, 1966. As a result of introduction of statutory rationing several posts had to be created in the establishment of the Controller of Rationing, which was admittedly a part of the Food & Civil Supplies Department. Certain posts were also transferred from the Revenue Department to the Food & Civil Supplies Department along with the holders of such posts. The most significant fact in this regard is that the holders of the posts had to be appointed afresh as personnel of the Food & Civil Supplies Department which will also appear from the Government resolution dated February 19 1966. It is not disputed that at the time that is to say, after the introduction of statutory rationing, the Food & Civil Supplies Department was an independent Government Department at Sholapur. The statutory rationing was discontinued in Sholapur with effect from May, 1, 1968. The posts in the rationing establishment were directed to be merged in the office of the Foodgrain Distribution Officer, Sholapur, and the expenditure on that account was directed to be debited to PG NO 716 the budget head "26 Miscellaneous Department Civil Supplies Department (iii) Procurement, Distribution and Price Control (b) Mofussil" and met from the grants sanctioned thereunder. It is, however, not disputed that some of the rationing staff were retrenched, some were absorbed in the Revenue Department and the remaining staff were directed to be merged in the office of the Food grain Distribution Officer, Sholapur, with effect from May 1, 1969. So far as the appellants before us are concerned, they were not retrenched, but according to the private respondents they were absorbed in the Revenue Department. This has been emphatically disputed by the appellants. Mr. Tarkunde, learned Counsel appearing on behalf of the private respondents, has drawn our attention to a letter dated October 25, 1969 written by the Foodgrain Distribution Officer, Sholapur, to the Collector, Revenue Branch, Sholapur. In that letter, the Food grain Distribution Officer, Sholapur, requested the Collector to absorb the remaining staff of the rationing department, who were then working in the Foodgrain Distribution Office. At this stage, it may be that there is no dispute that both the Departments, namely, the Food & Civil Supplies Department and the Revenue Department, were under the District Collectorate. A list was attached to the said letter dated October 25, 1969 of the Foodgrain Distribution Officer relating to absorption of rationing staff in the Revenue Department. The list contains the names of the appellants and under column No. 7 of the list, it has been recorded that the appellants and other remaining staff were willing to work in the Revenue Department. In view of the said letter of the Foodgrain Distribution Officer and the list annexed to his letter written to the Collector, it is submitted by the learned Counsel, appearing on behalf of the private respondents, that the appellants were transferred to the Revenue Department as the Food & Civil Supplies Department was abolished on the abolition of the statutory rationing. It has been already noticed that some of the staff of the rationing establishment, who were not retrenched, were transferred to the office of the Foodgrain Distribution Officer. According to the respondents, the Foodgrain Distribution Office is under the Revenue Department, while the appellants aver that it belongs to the Food & Civil Supplies Department. In this regard, the most important say is that of the Government. It is asserted on behalf of the State of Maharashtra that the Food grain Distribution Officer belongs to the Food & Civil Supplies Department. The PG NO 717 controversy in this respect can be easily resolved by referring to the said letter dated October 25, 1969 of the Foodgrain Distribution Officer to the Collector, Revenue Branch. If the Foodgrain Distribution Office belongs to the Revenue Department, there was no necessity for the Foodgrain Distribution Officer to request the Collector, Revenue Department, to absorb the unretrenched staff of the rationing establishment. Be that as it may, the question that arises is whether the appellants were absorbed in the Revenue Department. It is true that under column No. 7 of the list annexed to the said letter dated October 25, 1969 of the Food grain Distribution Officer, it has been recorded that the appellants and other staff of the rationing establishment were willing to work in the Revenue Department. There is, however, nothing to show that as a matter of fact the appellants were transferred to the Revenue Department. The appellants might be willing to be absorbed in the Revenue Department, but there is no material in proof of the alleged absorption of the appellants in the Revenue Department. It is also not the case of the State Government that the appellants were absorbed in the Revenue Department. In the counter affidavit of the respondent No. 1, it is stated as follows: "That the District Collector of Solapur by his memorandum dated 17 4 1969 laid down the conditions of giving alternative employment to the retrenched ex civil supply staff in Revenue Department. These conditions are: (1) That the services in Revenue Department are transferable throughout the district. (2) That Revenue employees are required to pass departmental examination within prescribed period. (3) That to hold Awal Karkun 's post Revenue employee is required to pass revenue qualifying exam. in addition to Sub Service Department Examination. " It is clear from the statement extracted above that one of the conditions for absorption was that the appellants were required to pass the departmental examination within the prescribed period. Another conditions was that one had to pass revenue qualifying examination in addition to Sub Service Department Examination for holding the post of Awal Karkun in the Revenue Department. It is not disputed that the appellants have not passed any of these examinations. This shows that as they did not fulfil the conditions for PG NO 718 absorption in the Revenue Department, they could not be transferred to or absorbed in that Department. The High Court proceeded on the assumption that on the abolition of the statutory rationing, the Food & Civil Supplies Department, Sholapur, also came to be absolished. Indeed, this is also the contention of the private respondents. Food is an important matter for Government 's consideration and it was the responsibility of the Agriculture, Food & Cooperation Department before the creation of the Food & Civil Supplies Department. The said Department was renamed as `Agriculture & Cooperation Department ' inasmuch as food ' was taken out of that Department and placed under the Food & Civil Supplies Department. Thus, the fact of introduction or abolition of statutory rationing has nothing to do with the question of food and supply thereof, which must be dealt with by some department of the government and after the creation of the Food & Civil Supplies Department, it was dealt with by that Department. It will be wrong to assume that the Food & Civil Supplies Department dealing with food and supply thereof, will be abolished consequent on the abolition of the statutory rationing. In the counter affidavit of the State of Maharashtra, affirmed by Shri Chandrasen Pandarinath Kamble, it has been stated inter alia that in the State of Maharashtra there is a system of Fair Price Shops and Household Card System in the areas where statutory rationing system does not exist This Fair Price Shops and Household Card system undoubtedly comes under the control and supervision of the Food & Civil Supplies Department. As the Department existed it can be reasonably presumed that it had its own staff and the appellants contention that they were retained in the Food & Civil Supplies Department seems to be correct. Merely the fact of giving of consent by the appellants to their absorption in the Revenue Department, fails to persuade us to hold that the appellants were absorbed in the Revenue Department, in the absence of any proper material in that regard. A question has, however, been raised on behalf of the private respondents that if the Department of Revenue and the Food & Civil Supplies Department are two different Departments of the Government, there is no material to show how the respondents came to hold posts in the Food & Civil Supplies Department. It is true that there is no order showing that the respondents were transferred on deputation from the Revenue Department to the Food & Civil Supplies Department. In our opinion, in view of the facts and circumstances stated above, it can be reasonably presumed PG NO 719 that the respondents were sent on deputation to the Food & Civil Supplies Department, otherwise there was no question of their repatriation to their parent department, that is, the Revenue Department. There are other materials which would also justify the finding that the Food & Civil Supplies Department and the Department of Revenue are two independent and separate Departments even after the abolition of statutory rationing. The Governor of Maharashtra, by an order dated April 13, 1983, framed rules under the proviso to Article 309 of the Constitution of India for regulating recruitment to the posts of Assistant Commissioner (Supply), District Supply Officer and Foodgrain Distribution Officer Class I under the Food & Civil Supplies Department of the Government of Maharashtra. Framing of these rules, proves two things, namely, that the Food & Civil Supplies Department has independent and separate existence, and that the Foodgrain Distribution Officer belongs to that Department. Another set of rules was framed under the proviso to Article 309 of the Constitution of India by the notification dated May 21, 1984 for regulating recruitment to Class 11 posts in the Food & Civil Supplies Department of the Government of Maharashtra. The framing of these rules for regulating the recruitment of officers in the Food & Civil Supplies Department supports the case of the appellants and also of the Government that the Food & Civil Supplies Department Sholapur, is an independent Department. The final gradation list of supply staff of directly recruited Clerks and Godown Keepers was prepared and published. It is. however contended on behalf of the private respondents that the supply staff belong to the Revenue Department. This contention is without any substance. The words supply staff undoubtedly, refer to the supply staff of the Food & Civil Supplies Department . The State Government is justified in placing reliance upon the gradation list in support of its case that the Food & Civil Supplies Department is an independent and separate Department. It is, therefore, apparent from the above facts, particularly the fact that separate rules were framed for recruitment of officers in the Food & Civil Supplies Department and a final gradation list was also prepared and published, and the Food & Civil Supplies Department not part and parcel of the Revenue Department but it has a separate and independent existence. This finding finds support from another fact that the Revenue Department has its own gradation list of its employees including the private respondents. PG NO 720 We may now deal with one more submission made on behalf of the private respondents. Our attention has been drawn to a fact which has also been noticed by the High Court, namely, that by a Government order issued to all Commissioners of Divisions, it was directed that the posts of Inspecting Officers should be made available to the persons from the Revenue Department as well as from the Food & Civil Supplies Department in the ratio of 75:25. It is submitted on behalf of the private respondents that this Government order points to the fact that both the Food & Civil Supplies Department and the Revenue Department are one and the same Department at Sholapur. We are unable to accept this contention. The Government order in question, in our opinion, establishes the fact that the two Departments are separate Departments of the Government. It has been already noticed that some officers of the Revenue Department were holding the posts in the Food & Civil Supplies Department, Sholapur, presumably on deputation and, hence, the ratio with regard to the posts of Inspecting Officers, with which we are not concerned, had to be fixed. If the two Departments were not separate Departments, there was no necessity for mentioning the names of these two Departments in the said order. It is not disputed that the posts of Inspecting Officers are posts of the Food & Civil Supplies Department. The contention of the private respondents based on the said Government order is, accordingly, rejected. Before we conclude the judgment, we may refer to an unreported Bench decision of the Nagpur Bench of the Bombay High Court in Special Civil Applications Nos. 707 of 1974 and 4258 and 4834 of 1976 (Shri Atmaram Chaturji Garbade & Ors. vs State of Maharashtra & Ors.) disposed of on January 13, 1977 where it has been held that the two departments are separate. It is, however, contended by Mr Tarkunde that the Nagpur Bench decision has no bearing on the instant appeals before us as it relates to the city of Nagpur and cantonment in Kampte where the Food & Civil Supplies Department was not abolised. It, however, appears that in that decision, the Bench has taken into consideration some common documents. Be that as it may, in the instant appeals, there are ample materials which justify the conclusion that the two departments are not one and the same department but are two separate departments. In the circumstances, we are unable to agree with the High Court that the appellants are employees of the Revenue Department inasmuch as after the abolition of the statutory rationing, the Food & Civil Supplies Department was also abolished and the appellants were absorbed in the Revenue PG NO 721 Department. As the appellants belong to a different department, their promotions will be governed by the rules of that department. Similarly, the promotions of the private respondents will be considered in accordance with the rules of the Revenue Department. We are told that after their repatriation to their parent department all the private respondents were promoted to the posts of Awal Karkuns. For the reasons aforesaid, we set aside the judgment of the High Court as also of the trial court and that of the lower appellate court and dismiss the suit and the appeals. The writ petitions filed ' in the High Court are also dismissed. The instant appeals are allowed, but in view of the peculiar facts and circumstances of the cases, there will be no order as to costs. R .S.S. Appeals allowed. [/INST]The appellants were promoted in January 1981 as Awal Karkuns in the Department of Food and Civil Supplies, Sholapur. At the same time, the private respondents holding those posts were directed to be repatriated to their parent department, that is, the Revenue Department. The private respondents challanged these orders by way of a civil suit on the ground that these orders were unjust, illegal and violative of Articles 14 and 16 of the Constitution. The Civil Judge decreed the suit. The Additional Sessions Judge and the High Court upheld the decree. The High Court came to the finding that the Food & Civil Supplies Department, Sholapur, had no separate existence on the date the impugned order was passed and that it was part and parcel of the Revenue Department. It is contended by the private respondents that on the abolition of the statutory rationing, the Food & Civil supplies Department was abolished, and the appellants were absorbed in the Revenue Department. This contention is disputed by the appellants. Allowing the appeals, it was, HELD: (1) It was not disputed that after the introduction of statutory rationing, the Food & Civil Supplies Department was an independent Government Department at Sholapur. [71G] (2) It was wrong to assume that the Food & Civil Supplies Department dealing with food and supply thereof. was abolished consequent on the abolition of the statutory rationing. [718D] (3) The fact of introduction or abolition of statutory rationing had nothing to do with the question of food and supply thereof, which must be dealt with by some department of the Government and after the creation of the Food & Civil PG NO 712 PG NO 713 Supplies Department, it was dealt with by that Department. [718C] (4) As the Department existed, it could be reasonably presumed that it had its own staff and the appellant 's contention that they were retained in the Food & Civil Supplies Department seemed to be correct. [718E] (5) There was no material in proof of the alleged absorption of the appellants in the Revenue Department. Moreover, as they did not fulfil the conditions for absorption in the Revenue Department, they could not be transferred to or absorbed in that Department. [717C; 718H] (6) It is true that there was no order showing that the respondents were transferred on deputation from the Revenue Department to the Food & Civil Supply Department. It could, however, be reasonably presumed that the respondents were sent on deputation to the Food & Civil Supplies Department, otherwise there was no question of their repatriation to their parent department. [718H; 719A] (7) It was apparent from the fact that separate rules were framed for recruitment of officers in the Food and Civil Supplies Department and a final gradation list was also prepared and published, that the Food and Civil Supplies Department was not part and parcel of the Revenue Department, but it had a separate and independent existence. [719G] (8) As the appellants belonged to a different department their promotions would be governed by the rules of that department. Similarly, the promotion of the private respondents would be considered in accordance with the rules of the Revenue Department. [721A] Shri Atmaram Chaturvedi Garbude & Ors. vs State of Maharashtra & Ors., Special Civil Application Nos. 707 of 1974 and 4834 of 1976 Bombay High Court, Nagpur Bench, referred to. </s>

<s>[INST] Summarize the judgementl Appeals Nos. 51 and 52/61 Appeals from the judgment and decree dated September 23, 1959, of the Allahabad High Court (Lucknow Bench) at Lucknow in C. M. Applications Nos. 15 (O.J.) and 16 (O.J.) of 1957 respectively. C. B. Agarwala and C. P. Lal, for the Appellants (in both the appeals). A. V. Viswanatha Sastri, and K. L. Arora, for Respondent No. 1 (in both the appeals). February 7. The Judgment of the Court was delivered by SARKAR, J. These two appeals have been heard together. The, appellants in each case are the State of Uttar Pradesh, for short called U. P. and some of its officers and the respondents in one appeal are Lakshmi Ice Factory and certain of its workers and in the other the Prakash Ice Factory and certain of its workers. These appeals involve a question of construction of certain provisions of the U. P. , hereafter referred to as the Act. By a Notification issued on February 10, 1956, the Government of U. P. referred certain disputes which had cropped up between each of the Ice Factories and its respective workmen, to an Industrial Tribunal for adjudication. The details of these disputes are not material for these appeals. The Tribunal heard the matters but failed to pronounce its award in open court. Instead, on November 8, 1956, the Registrar of the Tribunal informed the Ice Factories that the award of the Tribunal had been submitted to the Government. On December, 15, 1956, the award was published in the U. P. Gazette and it appeared from this publication that the award was dated November 8, 1956. On December 26, 1956, the Regional Conciliation Offi cer appointed under the Act " called upon the Ice 61 Factories to implement the award immediately. Thereupon the Tee Factories moved the High Court at Allahabad on January 3, 1957 under article 226 of the Constitution for writs quashing the award and prohibiting the Government and the workmen from taking steps to implement it. They contended that the award sought to be enforced was a nullity as it had not been pronounced in open court as required by certain rules to which reference will presently be made. By a judgment passed on September 23, 1959, the High Court allowed the petitions of the Ice Factories and issued writs quashing the Notification publishing the award. The appeals are against this judgment of the High Court. Section 3 of the Act gives the Government power in certain circumstances to make provisions by general, or special order (1) for appointing Industrial courts, (2) for referring any industrial dispute for adjudication in the manner provided in the order and (3) for matters incidental or supplementary to the other provisions of the order. Under this power the Government had issued an Order dated July 14, 1954 and this Order is hereafter called the "Statutory Order. " It was under powers conferred by the Act read with the Statutory Order that the Government had issued the Notification of February 10, 1956. In exercise of powers conferred by el. 8 of the Statutory Order the Government had set up the Tribunal. Clause 9 of the Statutory Order provides for the procedure to be followed by the Tribunal. Sub clause (7) of this clause is in these terms: "The decision of the Tribunal shall be in writing and shall be pronounced in open court and dated and signed by the member or members of the Tribunal, as the case may be, at the time of pronouncing it. " Clause 11 of the Statutory Order gives power to Government to refer any industrial dispute to the Tribunal. Sub clause (9) of el. 9 of the Statutory Order 62 gives power to the Tribunal to make Standing Orders relating to its practice and procedure. Under this sub clause the Tribunal framed certain Standing Orders. Standing Order No. 36 provided. "Judgment shall be pronounced in open court either immediately after the close of the arguments or on a subsequent date of which previous notice shall be given to the parties. It shall then be signed and dated by the Tribunal. " Acting presumably under Standing Order No. 36, the Tribunal in the present case bad fixed a date on which it would pronounce its judgment in open court. This date does not appear on the record but on September 25, 1956, the Tribunal informed the parties that the date for pronouncing the award had been changed to October 9, 1956. On that date, however, the award was not pronounced in open court, nor was any intimation of any other date for its pronouncement given to the parties. The lee Factories first came to know of the making of the award from the letter of the Registrar of the Tribunal dated November 8, 1956 earlier referred to. The award had in fact never been pronounced in open court. The first question is whether the provisions in sub el. (7) of el. 9 are imperative. The High Court held that they were and thereupon quashed the Notification publishing the award. The appellants contend that the High Court was in error and that the provisions are only directory and that the failure of the Tribunal to pronounce the award in open Court did not result in the award becoming void. The Ice Factories contend for the contract view. Mr. Aggarwala for the appellants referred us to the rule of construction stated in Maxwell on Interpretation of Statutes, 10th ed. at p. 381, which is as follows : ",Where the prescriptions of a statute relate to the performance of a public duty and 63 where the invalidation of acts done in neglect of them, would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words as 'directory only". Ho said that sub el. (7) of cl. 9 of the Statutory Order imposed a public duty on the Tribunal and as none of the contesting parties to the proceedings before the Tribunal had any control over it, the provision in the Statutory Order as to how the Tribunal is to discharge its duty must be regarded as merely directory and therefore a disregard of that provision by the Tribunal would not render the thing done by it a nullity. It seems to us that the rule read from Maxwell is not applicable to this case. It applies only when to hold the prescriptions in a statute as to the performance of a public duty to be imperative would work injustice and hardship without serving the object of the statute. None of these conditions are present ill the statute now before us. The rule may be illustrated by reference to the case of Montreal Street Railway Co. vs Normandin(1) which is cited in Maxwell 's book. That was a case in which certain Statutory provisions as to how the jury list was to be revised had not been followed and the question arose whether the verdict of a jury empannelled out of a list revised in disregard of the provision was a nullity. It was hold that the verdict was not a nullity as the provision regarding the revision of the jury list was merely directory. It was further held that the object of the provision was to distribute the burden of jury equally between all liable to it, to secure effective jurors likely to attend and lastly to prevent packing of the jury. It was said that "It does far less harm to allow cases tried by a jury formed as this one was (1) ; 64 with the opportunities there would be object to any unqualified man called into the box, to stand good, than to hold the proceedings null and void. So to hold would not, of course, prevent, the courts granting new trials in cases where there was reason think that a fair trial had not been had": P. 176). The case in hand is wholly different. The proceedings that were had before the Tribunal would not become null and void if we hold el. 9(7) of the Statutory Order to be imperative,. A view that the provision was imperative would cause no serious hardship to any one. The Government can always require the Tribunal to pronounce, its decision in open court extending, if necessary for the purpose. he time fixed for giving its decision. Either party of the proceeding can also ask the Government to call upon the Tribunal to pronounce its award in open court. There is no doubt that the Government will go call upon the Tribunal when the defect s brought to its 'notice for the Government itself referred the matter to the Tribunal for if decision. As soon as the Tribunal pronounces it,; award in open court, the proceedings will become fully effective. It is also an accepted rule of construction that enactments regulating the procedure in courts are usually imperative : Maxwell on Interpretation of statues 10th ed. p. 379. It further appears to us that the object of the legislature would be defeated by reading cl. 9(7) of the Statutory Order as containing a provision which is merely director vs We now proceed to ascertain that object from the, other provisions in the Statutory Order, the Act and connected legislation. Section 6 of the IT. P. Act provides as follows : (1) When an authority to which an industrial dispute has been referred for 65 adjudication has completed it,% enquiry, it shall, within such time as may be ,specified, submit its award to the State Government. (2) The State Government may. enforce for such period as it may specify all or any of the decisions in the award. It was under this section that the Tribunal submitted it,% award to the Government and the Government issued the Notification in the Gazette dated December 15, 1956 earlier mentioned and directed that the award be enforced for a period of one year from the date of the publication. Since the award has to be submitted to the Government by the Tribunal under section 6 of the Act, the award has to be in writing, for a verbal award cannot obviously be submitted to the Government. It would therefore appear that the provision in sub cle. (7) of el. 9 of the Statutory Order that the decision of the Tribunal shall be in writing is imperative, This would be an indication that the other provisions in the same sub clause connected with it were intended to be equally imperative. Then we find that el. 18 of the Statutory Order is in these terms : "The Tribunal or the adjudicator shall hear the dispute and give its or his decision within 180 days (excluding holidays but Dot annual vacations observed by courts subordinate to the High Court) from the date of reference made to it or him by the State Government and shall thereafter as soon as possible, supply a copy of the same to the parties to the dispute. . . Provided that the State Government may extend the said period from time to time. " It seems to us that the provision in this clause in clearly mandatory. The Tribunal has no power to make an award after the time mentioned in it; if it had, the proviso to el. 18 would be wholly unnecessary. The result therefore is that it is 66 obligatory on the Tribunal to give its decision within 180 days from the date of the reference. A decision given, that is an award made, beyond this period would be a nullity. Now when cl. 18 talks of giving a decision, it can only mean giving it in the manner indicated in sub cl, (7) of cl. 9 of the Statutory Order, that is, by pronouncing it in open court, for that is the only manner of giving a decision which that order contemplates. It would follow that the terms of cl. 9(7) were imperative, for otherwise no one would know whether the terms of el. 18 of the Statutory Order had been complied with, that is to say, no one would know whether the award was void or not. The provisions of cl. IS may thus be rendered nugatory by holding el. 9(7) to be only directory. It would follow that unless the provision as to the pronouncement of the award in open court was mandatory, the intention of the framers of the Statutory Order would be defeated. Sub clause (2) of cl. 24 of the Statutory Order also leads to the same conclusion. That sub clause is in these terms : "Clerical or arithmetical mistakes in decisions or awards, or errors arising therein from any accidental slip or omis sion may, within one month of giving the decision or award be corrected by the Tribunal or the adjudicator, either of its or his own motion or on the application of any of the parties. " Under this rule therefore clerical or arithmetical errors or slips may be corrected within one month of the giving of the decision and the parties have the right to apply for such corrections within that time. The Tribunal has no right to correct an error beyond that time. Nor has a party a right to move the Tribunal for making any such corrections after the time has expired. In order that the intention of cl. 24 (2) may be, given effect to, it is necessary that the date of the 67 giving of the decision should be known. It cannot promptly be known to the parties unless the award is pronounced in open court. If any other Manner of the giving of the decision was permissible as would be the result if it was not obligatory to pronounce the decision in open court, then a party may be deprived of its right under cl. 24 to move the Tribunal for correction of errors. It is for this reason that cl. 9(7) provides that the decision shall be dated and signed at the time of pronouncing it in open court. This signing and dating of the award after its pronouncement in open court makes it possible to see whether the terms of cls. 18 and 24 (2) have been complied with in any case. The third thing which to our mind indicates that pronouncement in open court is essential is cl. 31 of the Statutory Order. That clause is in these terms : "Except as provided in this Order and in the Industrial Disputes (Appellate Tribunal) Act, 1950, every order made or direction issued under the provisions of this Order shall be final and conclusive and shall not be questioned by any party thereto in any proceedings. " The Industrial Disputes (Appellate Tribunal) Act, 1950 provides for appeals from decisions of certain Industrial Tribunals to the Appellate Tribunal established under it. Clause 31 therefore makes a decision of the Tribunal on a reference to it final subject to an appeal if any allowed under the Industrial Disputes (Appellate Tribunal) Act, 1950. Under a. 7 of the Act of 1950, an appeal shall lie to the Appellate Tribunal from any award or decision of an Industrial Tribunal concerning certain specified matters. Now an Industrial Tribunal mentioned in section 7 includes a Tribunal set up under a State law which law does not provide for an appeal : see a. 2(o)(iii) of the Act of 1950. The U. P. Act does not provide for any appeal expressly but cl. 31 of the Statutory Order makes a decision of the Tribunal final subject to 68 the provisions of the Act of 1950. It would therefore appear that an appeal would lie under the Act of 1950 to the Appellate Tribunal constituted under it from a decision of a Tribunal set up under the Statutory Order. Now under a. 10 of the Act of 1950, an appeal is competent if preferred within thirty days from the date of the publication of the award where such publication is provided for by the law under which the award is made, or from the date of the making of the award where there is no provision for such publication. Now the U.P. Act or the Statutory Order does not provide for any publication of an award. Therefore an appeal from the Tribunal set up under the Statutory Order has to be filed within thirty days from the making of the award. Hence again it is essential that the date of the making of the award shall be known to the parties to enable them to avail themselves of the right of appeal. This cannot be known unless the judgment is pronounced in open court for the date of award is the date of its pronouncement. Hence again pronouncement of the judgment in open court is essential. If it were not so, the provisions for appeal might be rendered ineffective. For all these reasons it seems to us that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and judgments not so pronounced would therefore be a nullity. In the view that we have taken it is unnecessary to deal separately with Standing Order No. 36. The provisions of that Standing Order and cl. 9(7) of the Statutory Order are substantially the same. They should therefore be interpreted in the same way. In any case since we have held the el. 9(7) of the Statutory Order to be imperative. it would not matter whatever view is taken of the Standing Order for the latter cannot affect the former. 69 Mr. Aggarwala then argued that cl. 9(7) of the Statutory Order and Standing Order No. 36 were ultra vires as being in conflict with the Act under which they had been framed. His contention was this : Under section 6 of the Act all that the Tribunal has to do is to submit its award to the Government after the conclusion of the enquiry before it. The section does not require the Tribunal to pronounce its decision in open court. The provisions in the Statutory Order and the Standing Order both of which were made under powers contained in the Act, were therefore in conflict with section 6 and of no effect. Hence he contended that the question whether the provisions of cl. 9(7) of the Statutory Order or of the Standing Order No. 36 were imperative did not really arise. It seems to us that this contention of Mr. Aggarwala is without any foundation. Section 6 when it requires that the Tribunal shall submit its award to the Government necessarily contemplates the making of the award. Neither section 6 nor any other provision in the Act provides how the award is to be made. Under section 3(g) however the Government has power by general or special. order to provide for incidental or supplementary matters necessary for the decision of an industrial dispute referred for adjudication under any order made tinder section 3. 'rho provision as to the pronouncement of the decision in open court in (19(7) of the Statutory Order clearly is within the power,; contemplated in section 3(g). Section 6 does not prohibit the making of such a provision. Its main purpose is to direct that the Tribunal shall submit the award to the Government so that it may be enforced. It has nothing to do with the manner in which the 'Tribunal is to make 70 its award. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with section 6. The result is that these appeals fail and are dismissed with costs. Appeals dismissed. [/INST]The Government of Uttar Pradesh under section 3 of the U.P. , and the Statutory orders framed thereunder referred certain. disputes between the respondent Ice Factories and the respective workmen to an Industrial Tribunal. The Tribunal heard the matters but failed to pronounce its award in open court, as required under the clause 9 (7) of the Statutory Orders. Instead the Registrar of the Tribunal informed the Ice Factories that the award of the Tribunal had been submitted to the Government. The award was published in the U.P. Gazette and the Regional Conciliation officer called upon the Ice Factories to implement the award immediately. The Ice Factories moved the High Court at Allahabad alleging that the award was a nullity as it had not been pronounced in open court as required under the clause 9 (7) of the Statutory Orders and asking for writs to quash it. High Court issued the writs quashing the Notification publishing the award. The questions are whether the provisions of sub cl. (7) of cl. 9 of the Statutory Orders are imperative or merely directory and whether that sub clause is ultra vires as being in conflict with the Act under which it had been framed. Held, that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and a judgment not so pronounced would therefore be a nullity. The provision in sub cl.(7) of cl. 9 of the Statutory Order is imperative and not directory. Held, further, that the provisions as to the pronouncement of the decision in open court contained in cl. 9 (7) of the Statutory Order was clearly within the powers contemplated in section 3 (g) of the Act and section 6 of the Act does not prohibit the making of such provisions. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with section 6 of the Act. Montreal Street Railway Co. vs Normandin, ; , referred to. </s>

<s>[INST] Summarize the judgementAppeal No. 51 of 1951. Appeal from the Judgment and Decree dated the 11h September, 1945, of the High Court of Judicature at Allaha bad (Brand and Waliullah JJ.) in First Appeal No. 212 of 1942 arising out of the Judgment and Decree dated the 28th February, 1942, of the Court of the Civil Judge of Azamgarh in Original Suit No. 4 of 1941. S.P. Sinha (Shaukat Hussain, with him) for the appel lants. C.K. Daphtary (Nuruddin Ahmed, with him) for the re spondents. Oct. 22. The judgment of the Court was delivered by BHAGWATI J. This is an appeal from the judgment and decree of the High Court of judicature at Allahabad which set aside a decree passed by the Civil Judge of Azamgarh decreeing the plaintiff 's claim. One Haji Abdur Rahman, hereinafter referred to as Haji" a Sunni Mohammedan, died on the 26th January, 1940, leaving behind him a large estate. He left him surviving the plain tiffs 1 to 3, his sons, plaintiff 4 his daughter and plain tiff 5 his wife, defendant 6 his sister, defendant 7 his daughter, by a predeceased wife Batul Bibi and defendants 1 to 4 his nephews and defendant 5 his grand nephew. Plain tiffs case is that immediately after his death the defendant 1 who was the Chairman, Town Area qasba Mubarakpur and a member of the District Board, Azamgarh and defendant 5 who was an old associate of his started propaganda against them, that they set afloat a rumour to the effect that the plain tiffs 1 to 4 1135 were not the legitimate children of Haji and that the plain tiff 5 was not his lawfully wedded wife, that the defendants 1 to 4 set up an oral gift of one third of the estate in their favour and defendant 5 set up an oral will bequeathing one third share of the estate to him and sought to interfere with the possession of the plaintiffs over the estate and nearly stopped all sources of income. It was alleged that under these circumstances a so called deed of family settle ment was executed by and between the parties on the 5th April, 1940, embodying an agreement in regard to the distri bution of the properties belonging to the estate, that plaintiff 3 was a minor of the age of about 9 years and he was represented by the plaintiff 1 who acted as his guardian and executed the deed of settlement for and on his behalf. On these allegations the plaintiffs filed on the 25th Novem ber, 1940, in the Court of Civil Judge of Azamgarh the suit out of which the present appeal arises against the defend ants 1 to 5 and defendants 6 and 7 for a declaration that the deed of settLement dated 5th April, 1940, be held to be invalid and to establish their claim to their legitimate shares in the estate of Haji under Mohammedan Law. The defendant 8 a daughter of the plaintiff 5 whose paternity was in dispute was added as a party defendant to the suit, the plaintiffs claiming that she was the daughter of the plaintiff 5 by Haji and the defendants 1 to 5 alleging that she was a daughter of the plaintiff 5 by her former husband Alimullah. The only defendants who contested the claim of the plaintiffs were the defendants 1 to 5. They denied that the plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 were the legitimate children of Hail. They also contended that the deed of settlement embodied the terms of a family settlement which had been bona fide arrived at between the parties in regard to the disputed claims to the estate of Haji and was binding on the plaintiffs. It is significant to observe that the defendants 6 and 7 who were the admitted heirs of Haji did not contest the plaintiffs ' claim at all. 1136 The two issues which were mainly contested before the trial Court were, (I) Whether the plaintiffs 1 to 4 are the legitimate issue of and the plaintiff 5 is the wedded wife of Abdul Rahman deceased; (2) Whether the agreement dated 5th April, 1940, was executed by the plaintiffs after understanding its contents fully or was obtained from them by fraud or undue influence ? Was the said deed insufficiently stamped? Was it benefi cial to the minor plaintiffs ? As regards the first issue there was no document evi dencing the marriage between the plaintiff 5 and Haji. The plaintiff 5 and Haji had however lived together as man and wife for 23 to 24 years and the plaintiffs 1 to 4 were born of that union. There was thus a strong presumption of the marriage of Haji with plaintiff 5 having taken place and of the legitimacy of plaintiffs 1 to 4. The trial Court did not attach any importance to the question of onus or pre sumption, examined the evidence which was led by both the parties with a view to come to a finding in regard to this issue, and found as follows: "So far as Musammat Rahima 's marriage with Alimullah or another Abdul Rahman is concerned the evidence of both the parties stands on the same level and is not worthy of much credit. I have however, not the least hesitation to observe that so far as the oral evidence and the circumstances of the case are concerned, they all favour the plaintiffs. I, however, find it difficult to ignore the testimony of the defendants ' witnesses Shah Allaul Haq and Molvi Iqbal Ahmad . . . . Owing to the voluminous oral evidence adduced by the plaintiffs and the circumstances that apparently favour them, I gave my best attention to this case, but upon a careful consideration of the whole evidence on the record, I am not prepared to hold that the plaintiffs 1 to 4 are the legitimate issues of the plaintiff No. 5, the lawfully wedded wife of the deceased, Haji Abdul Rahman. I frankly admit that the matter iS not free from difficulty and 1137 doubt but to my mind the scale leans away from the plain tiffs and I am not satisfied that their version is correct. " On the second issue the learned trial Judge came to the conclusion that the disputed compromise amounted to a family settlement; that it was beneficial to the interests of the minor plaintiff and that it was made by the parties willing ly and without any fraud or undue influence. On these find ings the suit was dismissed with costs. The plaintiffs filed an appeal to the High Court of Judicature at Allahabad. After considering the several authorities on the binding nature of family settlements cited before it came to the conclusion that it did not bind the plaintiffs. As regards defendants 1 to 5 it was held that there was no consideration whatsoever which could in any way support the arrangement. Plaintiffs 4 and 5 being Purdanashin ladies, it was found that they had no chance at any stage of the transaction of getting independent advice in regard to the contents or the effect of the document which they were executing and that even if the deed were valid otherwise it would not be binding on them. It was further held that the plaintiff 3 who would be about 9 years of age at the time of the execution of the deed was repre sented in the transaction by his brother who could not be the legal guardian of his property and that the deed in so far as it adversely affected the interest of plaintiff 3 would not be binding on him. On the question of marriage and legitimacy the High Court came to the conclusion that ii the trial Court had considered the question of onus in its proper light and given the plaintiffs the benefit of the initial presumption in favour of legitimacy and lawful wedlock under the Mahomedan law, he would have recorded a finding in their favour. The defendants to 5 had alleged that at the time of the commencement of sexual relations between the plaintiff 5 and Haji, plaintiff 5 was the wife of one Alimullah who was alive and that therefore the con nection between the 1138 plaintiff 5 and Haji was in its origin illicit and continued as such, with the result that the presumption in favour of a marriage between the plaintiff 5 and Haji and in favour of the legitimacy of plaintiffs 1 to 4 would not arise. The learned trial Judge disbelieved the evidence led by the defendants 1 to 5 in regard to this marriage between the plaintiff 5 and Alimullah. The High Court upheld the finding and said: "All these circumstances, to my mind, strongly militate against the theory of a first marriage of Musammat Rahima Bibi with the man called Alimullah. In this state of the evidence one cannot but hold that this story of the marriage with Alimullah was purely an after thought on the part of the defendants 1 to 5 and it was invented only to get rid of the strong presumption under the Mahomedan law in favour of the paternity of plaintiffs 1 to 4 and the lawful wedlock of the plaintiff 5. " Having thus discredited the theory of the first mar riage of the plaintiff 5 with Alimullah the High Court came to the conclusion that it was fully established that Musam mat Rahima Bibi was the lawfully wedded wife and that the plaintiffs 1 to 4 are the legitimate children of Haji. The defendants 1 to 5 obtained leave to appeal to His Majesty in Council and the appeal was admitted on the 10th January, 1947 Shri S.P. Sinha who appeared for the defendants 1 to 5 before us has urged the self same two questions, namely, (1) Whether the deed of settlement is binding on the plaintiffs and (2) Whether the plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 are the legitimate children of Haji. In regard to the first question, it is unnecessary to discuss the evidence in regard to fraud, undue influence, want of independent advice etc., as the question in our opinion is capable of being disposed of on a short point. It is admitted that the plaintiff 3 Ishtiaq Husan was a minor of the age of about 9 years at the date of the deed, and he was not represented as 1139 already stated by any legal guardian in this arrangement. The minor 's brother had no power to transfer any right or interest in the immovable property of the minor and such a transfer if made was void. (See Mulla 's Mahomedan Law, 13th Edition, page 303,section 364). Reference may be made to the decision of their Lord ships of the Privy Council in Imambandi vs Mut saddi(1). In that case the mother who was neither the legal guardian of her minor children nor had been appointed their guardian under the Guardian and Wards Act had purported to transfer the shares of her minor children in the property inherited by them from their deceased father. Mr. Ameer Ali who deliv ered the judgment of the Board observed at page 82 as follows : The question how far, or under what circumstances according to Mahomedan law,a mother 's dealings with her minor child 's property are binding on the infant has been frequently before the courts in India. The decisions, howev er, are by no means uniform, and betray two varying tenden cies: one set of decisions purports to give such dealings a qualified force; the other declares them wholly void and ineffective. In the former class of cases the main test for determining the validity of the particular transaction has been the benefit resulting from it to the minor; in the latter the admitted absence of authority or power on the part of the mother to alienate or incumber the minor 's property. " The test of benefit resulting from the transaction to the minor was negatived by the Privy Council and it was laid down that under the Mahomedan law a person who has charge of the person or property of a minor without being his legal guardian, and who may, there fore, be conveniently called a "defacto guardian," has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant. (1) (1918) 45 1. A. 73. 1140 Shri S.P. Sinha relied upon a decision of the Calcutta High Court reported in Mahomed Keramutullah Miah vs Keramutulla (1) where it was held that there was nothing in the doctrine of family arrangements opposed to the general principle that when it was sought to bind a minor by an agreement entered into on his behalf, it must be shown that the agreement was for the benefit of the minor;that if improper advantage had been taken of the minor 's position, a family arrangement could be set aside on the ground of undue influence or inequality of position or one or other of the grounds which would vitiate such arrangement in the case of adults; but where there was no defect of this nature, the settlement of a doubtful claim was of as much advantage to a minor as to an adult, and where a genuine dispute had been fairly settled the dispute could not be reopened solely on the ground that one of the parties to the family arrangement was a minor. This decision was reached on the 19th July, 1918, i.e., almost 5 months after the decision of their Lordships of the Privy Council, but it does not appear that the ruling was brought to the notice of the learned Judges of the Calcutta High Court. The test of the benefit resulting from the transaction to the minor which was negatived by their Lord ships of the Privy Council was applied by the learned Judges of the Calcutta High Court in order to determine whether the family arrangement which was the subject matter of the suit before them was binding on the minor. Shri S.P. Sinha next relied upon a decision of the Chief Court of Oudh, Ameer Hasan vs Md. Ejaz Husain(2). In that case an agreement to refer to arbitration was entered into by the mother for her minor children and an award was made by the arbitrators. The scheme of distribu tion of properties promulgated in the award was followed without any objection whatever for a long period extending over 14 years and proceedings were taken at the instance of the minors for recovery of possession by actual partition of their shares in the properties. The Court held (1) A.I.R. 1919 Cal. 218. (2) A.I.R. 1929 Oudh 134. 1141 that the reference to arbitration could not be held binding on the minors and the award could not be held to be an operative document, but if the scheme of distribution pro mulgated in the award was in no way perverse or unfair or influenced by any corruption or misconduct of the arbitra tors and had been followed without any objection whatever for a long period extending over 14 years, it would as well be recognised as a family settlement and the court would be extremely reluctant to disturb the arrangement arrived at so many years ago. This line of reasoning was deprecated by their Lordships of the Privy Council in Indian Law Reports 19 Lahore 313 at page 317 where their Lordships observed "it is, however, argued that the transaction should be upheld, because it was a family settlement. Their Lordships cannot assent to the proposition that a party can, by describing a contract as a family settlement, claim for it an exemption from the law governing the capacity of a person to make a valid contract. " We are therefore unable to accept this case as an authority for the proposition that a deed of settlement which is void by reason of the minor not having been properly represented in the transaction can be rehabil itated by the adoption of any such line of reasoning. If the deed of settlement was thus void it could not be void only qua the minor plaintiff 3 but would be void altogether qua all the parties including those who were sui juris. This position could not be and was not as a matter of fact contested before us. The contention of the defendants 1 to 5 in regard to the lawful wedlock between plaintiff 5 and Haji and the legitimacy of the plaintiffs 1 to 4 is equally untenable. The plaintiffs had no doubt to prove that the plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 were the legitimate children of Haji. Both the Courts found that the factum of the marriage was not proved and the plaintiffs had therefore of necessity to fall back upon the presump tion of marriage arising in Mahomedan law. If that presump tion of marriage arose, there would be no difficulty in 1142 establishing the status of the plaintiffs 1 to 4 as the legitimate children of Haji because they were admittedly born by the plaintiff 5 to Haji. The presumption of marriage arises in Mahomedan law in the absence of direct proof from a prolonged and continual cohabitation as husband and wife. It will be apposite in this connection to refer to a passage from the judgment of their Lordships of the Privy Council in Khajah Hidayut Oollah vs Rai Jan Khanurn(1). Their Lord ships there quoted a passage from Macnaghten 's Principles of Mahomedan Law: "The Mahomedan lawyers carry this disinclination (that is against bastardizing) much further; they consider it legitimate of reasoning to infer the existence of marriage from the proof of cohabitation . . None but children who are in the strictest sense of the word spurious are considered incapable of inheriting the estate of their putative father. The evidence of persons who would, in other cases, be considered incompetent witnesses is admitted to prove wedlock, and, in short, where by any possibility a marriage may be presumed, the law will rather do so than bastardize the issue, and whether a marriage be simply voidable or void ab initio the offspring of it will be deemed legitimate . . . . . This I apprehend, with all due deference, is carrying the doctrine to an extent unwarranted by law; for where children are not born of women proved to be married to their father, or of female slaves to their fathers, some kind of evidence (however slight) is requisite to form a presumption of matrimony. . . . . . . The mere fact of casual concubinage is not sufficient to establish legiti macy ;and if there be proved to have existed any insurmount able obstacle to the marriage of their putative father with their mother, the children, though not born of common women, will be considered bastards to all intents and purposes. " Their Lordships deduced from this passage the principle that where a child had been both to a father, of a mother where there had been not a mere casual (1) (1844) 3 Moore 's indian Appeals 295 at p. 317. 1143 concubinage, but a more permanent connection, and where there was no insurmountable obstacle to such a marriage, then according to the Mahomedan law, the presumption was in favour of such marriage having taken place. The presumption in favour of a lawful marriage would thus arise where there was prolonged and continued cohabita tion as husband and wife and where there was no insurmount able obstacle to such a marriage, eg., prohibited relation ship between the parties, the woman being an undivorced wife of a husband who was alive and the like. Further illustra tions are to be found in the decisions of their Lordships of the Privy Council in 21 Indian Appeals 56 and 37 Indian Appeals 105 where it was laid down that the presumption does not apply if the conduct of the parties was incompatible with the existence of the relation of husband and wife nor did it apply if the woman was admittedly a prostitute before she was brought to the man 's house (see Mulla 's Mahomedan Law, p. 238, section 268). If therefore there was no insur mountable obstacle to such a marriage and the man and woman had cohabited with each other continuously and for a pro longed period the presumption of lawful marriage would arise and it would be sufficient to establish that there was a lawful marriage between them. The plaintiff 5 and Haji had been living as man and wife for 23 to 24 years openly and to the knowledge of all their relations and friends. The plaintiffs 1 to 4 were the children born to them. The plaintiff 5, Haji, and the children were all staying in the family house and all the relations including the defendant I himself treated the plaintiff 5 as a wife of Haji and the plaintiffs 1 to 4 as his children. There was thus sufficient evidence of habit and repute. Haji moreover purchased a house and got the sale deed executed in the names of the plaintiffs 1 and 2 who were described therein as his sons. The evidence which was led by the defendants 1 to 5 to the contrary was dis carded by the High Court as of a negative character 1144 and of no value. Even when the deed of settlement was exe cuted between the parties the plaintiff 5 was described as the widow and plaintiffs 1 to 4 were described as the chil dren of Haji. All these circumstances raised the presumption that the plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 were the legitimate children of Haji. The result therefore is that both the contentions urged by the defendants 1 to 5 against the plaintiffs ' claim in suit fail and the decree passed in favour of the plaintiffs by the High Court must be affirmed. It was however pointed out by Shri S.P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression "awarding possession and occupation of the property aforesaid together with all the rights appertaining thereto. " We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will therefore have to be deleted from the decree. We dismiss the appeal of the defendants 1 to 5 and affirm the decree passed by the High Court in favour of the plain tiffs, deleting therefrom ' the provision in regard to mesne profits. The plaintiffs will of course be entitled to their costs throughout from the defendants 1 to 5. Appear dismissed. Agent for the appellants ': V.P.K. Nambiyar. [/INST]The Oudh Estates Act (Act I of 1869) does not interdict the creation of future estates and limitations provided they do not transgress the rule of perpetuities and where a disposition by a will made by a taluqdar does not make the legatee an absolute owner but gives him only an interest for life which is followed by subsequent interests created in favour of other persons the rule of succession laid down in section 14 of the Act will not apply on the death of the donee and the property bequeathed to him will pass according to the will to the next person entitled to it under the will, 233 The words malik kamil (absolute owner) and naslan bad naslan (generation after generation) are descriptive of a heritable and alienable estate in the donee and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to be conferred. In all such cases the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it is a material circumstance to be relied on for displacing the presumption of absolute ownership implied in the use of the word malik. Though under the rule laid down in Tagore vs Tagore no interest could be created in favour of unborn persons, yet when a gift is made to a class or series of persons, some of whom are in existence at the time of the testator 's death and some are not, it does not fail in its entirety ; it will be valid with regard to the persons who are in existence at the time of the testator 's death and invalid as to the rest. A will made by a taluqdar of Oudh recited that with a view that after his death his younger son D and his heirs and successors, generation after generation, may not feel any trouble or create any quarrel, D shall after the testator 's death remain in possession of certain villages as absolute owner, with the reservation that he will have no right to transfer, that if D may not be living at the time of his death D 's son or whoever may be his male heir or widow may remain in possession and that although D and his heirs are not given the power of transfer they will exercise all other rights of absolute ownership: Held, that the will did not confer an absolute estate on D and on D 's death the succession was not governed by section 14 of the Oudh Estates Act and D 's widow was entitled to succeed in preference to D 's elder brother. </s>

<s>[INST] Summarize the judgementvil Appeal No. 4336 (NL) of 1991, From the Judgment and Order dated 14.9.1989 of the Madras High Court in Writ Appeal No. 697 of 1989. M.K. Ramamurthy, Mrs. Chandan Ramamurthy and M.A.Krish namurthy for the Appellants. F.S.Nariman, R.F.Nariman, T.S.Gopalan, Raian Karanjiwa la, Mrs. Manik Karanjiwala, Mrs. V.S.Rekha and Sajai Singh for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted. The Reptakos Brett & Co. Ltd. (hereinafter called the 'Company ') is engaged in the manufacture of pharmaceutical and dietetic speciality products and is having three units, two at Bombay and one at Madras. The Madras factory. with which we are concerned, was set up in the year 1959. The Company on its own provided slab system of Dearness Allow ance (DA) which means the DA paid to the workmen was linked to cost of living index as well as the basic wage. The said double linked DA Scheme was included in various settlements between the Company and the workmen and remained operative for about thirty years. The question for our consideration is whether the Company is entitled to re structure the DA scheme by abolishing the slab system and substituting the same by the Scheme prejudicial to the workmen on the ground that the slab system 134 has resulted in over neutralisation thereby landing the workmen in the high wage island. The first settlement between the Company and the workmen was entered into on August 11, 1964. While accepting the double linked DA it further provided variable DA limited to the cost of living index up to 5.41 5.50. Further relief was given to the workmen in the settlement dated July 18, 1969 when the limit on the variable DA was removed. The Company revised the rates of DA on August 7, 1971. Thereafter, two more settlements were entered into on July 4, 1974, and January 4, 1979, respectively. Slab system with variable DA continued to be the basic constituent of the wage structure in the company from its inception. The position which emerges is that in the year 1959 the Company on its own introduced slab system of DA. In 1964 in addition, variable DA to the limited extent was introduced but the said limit was removed in the 1969 settlement. The said DA scheme was reiterated in the 1979 settlement. It is thus obvious that the slab system of DA introduced by the Company in the year 1959 and its progressive modifications by various settlements over a period of almost thirty years, has been consciously accepted by the parties and it has become a basic feature of the wage structure in the Company. The workmen raised several demands in the year 1983 which were referred for adjudication to the Industrial Tribunal, Madras. The Company in turn made counter demands which were also referred to the said Tribunal. One of the issues before the Tribunal was as under: "Whether the demand of the Management for re structuring of the dearness allowance scheme is justified, if so, to frame a scheme?" The Tribunal decided the above issue in favour of the Company and by its award dated October 14, 1987 abolished the existing slab system of DA and directed that in future dearness allowance in the Company, be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of living Index 1936 base. The Tribunal disposed of the two References by a common award. The Company as well as the workmen filed separate writ petitions before the Madras High Court challenging the award of the Tribunal. While the two writ petitions were pending the parties filed a joint memorandum dated June 13, 1988, before the High Court in the following terms: 135 "In view of the settlement dated 13.5.1988 entered into between the parties, a copy of which is enclosed, both the parties are not pressing theft respective writ petitions except with regard to the issue relating to re structuring of dearness allow The learned Single Judge of High Court upheld the find ings of the Tribunal on the sole surviving issue and dis missed the writ petition of the workmen. The writ appeal filed by the workmen was also dismissed by the High Court by its judgment dated September 14, 1989. The present appeal by special leave is against the award of the Tribunal as upheld by the High Court. Mr. M.K. Ramamurthy, learned counsel for the appel lants has raised following points for our cosideration: (i) The Tribunal and the High Court grossly erred in taking Rs. 26 as a per war wage of a worker in Madras region and, on that arith metic, reaching a conclusion that the rate of neutralisation on the basis of cost of living index in December 1984 was 192 per cent. (ii) Even if it is assumed that there was over neutralisation unless the pay structure of the workmen is within the concept of a 'living wage ' and in addition it is proved that financially the Company is unable to bear the burden the existing pay structure/DA scheme cannot be revised to the prejudice of the work men. (iii) In any case the DA scheme which was voluntarily introduced by the Company and reiterated in various settlements cannot be altered to the determent of the workmen. " Before the points are dealt with, we may have a fresh look into various concepts of wage structure in the industry. Broadly, the wage structure can be divided into three categories the basic "minimum wage" which provides bare subsistence and is at poverty line level, a little above is the "fair wage" and finally the "living wage" which comes at a comfort level. It is not possible to demarcate these levels of wage structure with any preci sion. There are, however, well accepted norms which broadly distinguish one category of pay structure from another. The Fair Wages Commit tee, in its report published by the Government of India, Ministry of Labour, in 1949, defined the "living wage" as under: "the living wage should enable the male earner to provide for himself and his family not merely the bare essentials of food, 136 clothing and shelter but a measure of frugal comfort including education for the the chil dren, protection against illhealth, require ments of essential social needs, and a measure of insurance against the more important mis fortunes including old age." "The Committee 's view regarding "minimum wage was as under: "the minimum wage must provide not merely for the bare sustenance of life but for the preservation of the efficien cy of the worker. For this purpose the minimum wage must also provide for some measure of education. medical require ments and amenities. " The Fair Wages Committee 's Report has been broadly approved by this Court in Express Newspapers (P) Ltd. vs Union of India, and Standard Vacuum Refining Co. of India vs Its Workmen and Anr., ; The Tripartite Committee of the Indian Labour Conference held in New Delhi in 1957 declared the wage policy which was to be followed during the Second Five Year Plan. The Committee accepted the following five norms for the fixation of 'minimum wage ': "(i) In calculating the minimum wage, the standard working class family should be taken to consist of 3 consumption units for one earner; the earnings of women, children and adolescents should be disregarded. (ii) Minimum food requirement should be calculated on the basis of a net intake of calories, as recommended by Dr. Aykroyd for an average Indian adult of moderate activity. (iii) Clothing requirements should be esti mated at per capita consumption of 18 yards per annum which would give for the average workers ' family of four, a total of 72 yards. (iv) In respect of housing, the rent corre sponding to the minimum area provided for under Government 's Industrial Housing Scheme should be taken into consideration in fixing the minimum wage. (v) Fuel, lighting and other 'miscellaneous ' items of expenditure should constitute 20% of the total minimum wage. " This Court in Standard Vacuum Refining Compa ny 's case (supra) has referred to the above norms with approval. The concept of 'minimum wage ' is no longer the same as it was in 137 1936. Even 1957 is way behind. A worker 's wage is no longer a contract between an employer and an employee. It has the force of collective bargaining under the labour laws. Each category of the wage structure has to be tested at the anvil of social justice which is the live fibre of our society today. Keeping in view the socio economic aspect of the wage structure, we are of the view that it is necessary to add the following additional component as a guide for fixing the minimum wage in the industry: "(vi) children education, medical require ment, minimum recreation including festivals/ceremonies and provision for old age, marriages etc. should further constitute 25% of the total minimum wage. The wage structure which approximately answers the above six components is nothing more than a minimum wage at subsist ence level. The employees are entitled to the minimum wage at all times and under all circumstances. An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry. A living wage has been promised to the workers under the constitution. A 'socialist ' framework to enable the working people a decent standard of life, has further been promised by the 42nd Amendment. The workers are hopefully looking forward to achieve the said ideal. The promises are pilling up but the day of fulfilment is nowhere in sight. Industrial wage looking as a whole has not yet risen higher than the level of minimum wage. Adverting to the first point raised by Mr. Ramamurthy it would be convenient to quote from the award the conten tions of the Company and the findings reached by the Tribu nal. The Company 's case as noticed by the tribunal is as under: "It is stated that the pre war wage of a worker in the Madras Region was Rs.26. It is evidenced by the decision of the Labour Appel late Tribunal reported in 1951 1I L.L.J. page 314 (Buckingham and Carnatic Mills vs Their workers) and 1951 II L.L.J. page 718 (Good Pastor Press vs Their workers). It is contend ed that taking the pre war minimum wage of worker at Madr,ks being R:,. 26 per month equivalent to 100 per cent neutralization the rate of Dearness Allowance at 26 paisa for every point above 100 points of cost of living index would work out to 100 per cent neutrali sation. On the above basis at 138 2780 points of cost of living index in Decem ber 1984, the 100 per cent neutralised wage should be Rs. 722.80 (basic wage of Rs. 26 plus dearness allowance of Rs. 696.80). As against the above wage a workman of lower grade in the Petitioner 'Company in December 1984 was getting a total wage of Rs. 1,`394/comprising of basic plus dearness allowance plus house rent allowance and the rate of neutralisation of dearness allowance correspondingly works out to 192 per cent. " The Tribunal accepted the above contentions of the Company. The evidence produced by the Company, regarding prevailing DA schemes in the comparable industries in the region, was also taken into consideration. The Tribunal finally decided as under: "Taking an overall view of the rate of dear ness allowance paid by these comparable con cerns in the region and the higher total emoluments received by the workmen in this establishment, the slab system of dearness allowance now in existence shall stand abol ished and in future, dearness allowance in the Petitioner Management would be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of Living Index 1936 base and it shall be effec tive from the month in which the award is published in the Tamil Nadu Gazette. " The learned Single Judge of the High Court upheld the above findings of the Tribunal. The Division Bench of the High Court, in writ appeal, approved the award and the judgment of the learned Single Judge in the following words "The learned judge has observed that the counsel for the Management had taken him through all the relevant materials which were filed in the form of Exhibits before the Tribunal in order to show that the matter of over neutralisation cannot be in dispute. Thus the learned Judge proceeded on the basis that there is over neutralisation which called for devising a scheme for restructuring the wage scale. This finding cannot be interfered with as no materials have been placed before us by the learned counsel for the appellant to show that the exhibits which were perused by the learned Judge do not support his conclusion. Hence, we hold that the contention that there are no compelling circumstances in this case to revise the pattern of dearness allowance is unsustainable. " 139 According to the Company the only purpose of DA is to enable a worker in the event of a rise in cost of living to purchase the same amount of goods of basic necessity as before. In other words the DA is to neutralise the rise in prices. the said purpose can be achieved by providing maxi mum of 100 per cent neutralisation. Accepting the calcula tions of the Company based on Rs. 26 being the pre war (1936) minimum wage in Madras region the Tribunal came to the finding that there was 192 per cent neutralisation. The Tribunal accepted Rs. 26 as the pre war minimum wage in Madras region on the basis of the decisions of Labour Appellate Tribunal of India in Buckingham and Carnatic Mills Ltd. vs Their workers, and Good Pastor Press vs Their workers, In Buckingham case the appellate tribunal came to the conclusion that the basic wage of the lowest category of operatives on the living cost of index of the year 1936 was Rs. 28. The said wage included Rs.16 1/2 as expenses on diet. The workers relied upon the Textile Enquiry Commit tee 's report to claim 25% addition to the diet expenses. The Appellate Tribunal rejected the report on the ground that the recommendations in the said report were for the purpose of attaining the standard of "living wage" and not of 'min imum wage '. The Appellate Tribunal stated as under: "The Union however, contends that Dr. Akroyd revised his opinion when submitting a specially prepared note to assist the Textile Enquiry Committee, Bombay of which Mr. Justice Divatia was the Chairman, where he is said to have stated that 25 per cent more will have to be added for obtaining a balanced diet for a minimum wage earner. The report of that Enquiry Committee, which was published in 1940, however, shows that Dr. Akroyd added 25 per cent as the costs of the extra items to his standard menu such as sugar etc., for the purpose of attaining the standard menu of 'living wages ' (final report of the Textile Labour Enquiry Committee 1940, Vol. II, pages 70 to 71). Therefore, for the purpose of fixing 'minimum wages ' that 25 per cent is not to be added. " The question as to whether the recommendations of Textile Enquiry Committee were in relation to 'living wage ' or 'minimum wage ' came for consideration before this Court in Standard Vacuum case (supra). This Court held as under: "It is obvious that the Committee was really thinking of what 140 is today described as the minimum need based wage, and it found that judged by the said standard the current wages were deficient. In its report the Committee has used the word 'minimum ' in regard to some of the constitu ents of the concept of living wage, and its calculations show that it did not proceed beyond the minimum level in respect of any of the said constituents. Therefore, though the expression 'living wage standard ' has been used by the Committee in its report we are satisfied that Rs. 50 to Rs. 55 cannot be regarded as anything higher than the need based minimum wage at that time. If that be the true position the whole basis adopted by the appellant in making its calculations turns out to be illusory." This Court, therefore, in Standard Vacuum case came to the conclusion that the Textile Labour Committee Report in the year 1940 in its calculations did not proceed beyond the minimum level of the wage structure. It was further held that Rs. 50 to Rs. 55 was the need based minimum wage in the year 1940. The Appellate Tribunal in Buckingham case, therefore misread the Textile Committee Report and was not justified in rejecting the same on the ground that it related to the category of 'living wage ' We are of the view that it would not be safe to accept the findings of the Appellate Tribunal in Buckingham case as the basis for fixing the wage structure to the prejudice of the workmen. This court in Standard Vacuum case (supra) has further held that in Bombay the minimum wage in the year 1940 was Rs.50 to Rs.55. On that finding it is not possible to accept that the minimum wage in the year 1936 in Madras region was Rs.26/28. So far as the Good Pastor Press case is concerned the question of determining the minimum wage in per war 1936 was not before the Appellate Tribunal. It only mentioned the fact that Rs.26 was held to be so by some of the subordinate tribunals. There was no discussion at all on this point. The Tribunal 's reliance on this case was wholly misplaced. In any cause we are of the opinion that purchasing power of today 's wage cannot be judged by making calculations which are solely based on 30/40 years old wage structure. The only reasonable way to determine the category of wage structure is to evaluate each component of the category concerned in the light of the prevailing prices. There has been sky rocking rise in the prices and the inflation chart is going up so fast that the only way to do justice to the labour is to determine the money value of various components of the minimum wage in the context of today. 141 We may now move on to the second and third point raised by Mr. Ramamurthy. We take up these points together. Mr. F.S. Nariman, learned counsel appearing for the Company, contended that the existing DA scheme can be revised even to the prejudice of the workmen and for that proposition he relied upon the judgment of this Court in M/s. Crown Alumin ium works vs Their Workmen; , Mr. Rama murthy has, however, argued that even if the contention of Mr. Nariman is accepted in principle, the Company has not been able to make out a case for such a revision. In M/s. Crown Aluminium Works case this Court speaking through Gajendragadkar, J.(as he then was) held as under: "The question posed before us by Mr. Sen is: Can the wage structure fixed in a given indus try be never revised to the prejudice of its workmen? Considered as a general question in the abstract it must be answered in favour of Mr. Sen. We do not think it would be correct to say that in no conceivable circumstances can the wage structure be revised to the prejudice of workmen. When we make this obser vation, we must add that even theoretically no wage structure can or should be revised to the prejudice of workmen if the structure in question falls in the category of the bare subsistence or the minimum wage. If the wage structure in question falls in a higher cate gory, then it would be open to the employer to claim its revision even to the prejudice of the workmen provided a case for such revision is made out on the merits to the satisfaction of the tribunal. In dealing with a claim for such revision, the tribunal may have to con sider, as in the present case whether the employer 's financial difficulties could not be adequately met by retrechment in personnel already effected by the employer and sanc tioned by the tribunal. The tribunal may also enquire whether the financial difficulties facing the employer are likely to be of a short duration or are going to face the em ployer for a fairly long time. It is not necessary, and would indeed be very difficult, to state exhaustively all considerations which may be relevant in a given case. It would, however, be enough to observe that, after considering all the relevant facts, if the tribunal is satisfied that a case for reduc tion in the wage structure has been estab lished then it would be open to the tribunal to accede to the request of the employer to make appropriate reduction in the wage struc ture, subject to such conditions as to time or otherwise that the tribunal may deem fit or expedient to impose. " 142 The above dicta was reiterated by this Court in Ahmeda bad Mills Owners, Association etc. vs The Textiles Labour Association, wherein this Court through Gajendragadkar, CJ, laid down as under: "The other aspect of the matter which cannot be ignored is that if a fair wage structure is constructed by industrial adjudication and in course of time, experience shows that the employer cannot bear the burden of such wage structure, industrial adjudication can, and in a proper case should revise the wage struc ture, though such revision may result in the reduction of the wages paid to the employees. . . . if it appears that the employer cannot really bear the burden of the increasing wages bill industrial adjudication, on principle, cannot refuse to examine the employer 's case and should not hesitate to give him relief if it is satisfied that if such relief is not given, the employer may have to close down his business. . . This principle, however, does not apply to cases where the wages paid to the employees are no better than the basic minimum wage. If, what the employer pays to his employees is just the basic sub sistence wage, then it would not be open to the employer to contend that even such a wage is beyond his paying capacity. " The ratio which emerges from the judgments of this Court is that the management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage. But in an industry or employment where the wage struc ture is at the level of minimum wage, no such revision at all, is permissible not even on the ground of financial stringency. It is, therefore, for the management, which is seeking restructuring of DA scheme to the disadvantage of the workmen to prove to the satisfaction of the tribunal that the wage structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wage struc ture. Mr. Ramamurthy further relied upon this Court 's judgment in MonthlyRated workmen at the Wadala factory of the Indian Hume Pipe Co. Ltd. vs Indian Hume Pipe Co. Ltd., Bombay, ; and contended that an employer cannot be permitted to abolish the DA scheme which has worked smoothly for almost thirty years on the plea that the said scheme is more beneficial than the DA schemes adopted by other indus tries in the region. In the Indian Hume Pipe Co. Ltd case the management pleaded that the dearness allowance enjoyed by the workmen was so high in certain cases that neutralisation was at rates much higher than 100%. It was further contended that the manage ment did not have the capacity to pay the slab system of DA and in the event of a claim for similar DA by other workmen the management might have to close down the factories. Khalid, J. spoke for the court as under: "We thought it necessary to refer to the various awards read by Mr.Pai only for the completeness of the judgment. It has to be borne in mind that in most of these cases, awards were passed at the instance of the employees when demands were made for raising the dearness allowance paid to them. Here, we have the case of the employer trying to get over a system of dearness allowance which had worked smoothly for 18 years, on the specious plea that at the time the slab system was introduced, it was not in the expectation of anyone that the cost of price index would spiral up so much as to make it impossible for the company to pay according to this scheme. From the materials available we do not find that this plea can be accepted. The records produced show that despite this system of dearness allowance the Company has been making profits and has been improving its position year by year. . . we do not think it necessary to deal at length about the evolu tion of the concept of dearness allowance. Suffice it to say that this Court has, often times, emphasised the need for a living wage to workmen instead of a subsisting wage. It is indeed a matter of concern and mortification that even today the aspirations of a living wage for workmen remain a mirage and a distant dream. Nothing short of a living wage can be a fair wage. It should be the combined effort of all concerned including the Courts to extend to workmen a helping hand so that they get a living wage which would keep them to some extent at least free from want. It is against this background that a claim by em ployers to change the conditions of service of workmen to their detriment has to be consid ered and it is against this background that we have considered the award review. We are not satisfied that a case has been made out on the facts available for a change. . . . The question is often asked as to whether it would be advisa ble for Tribunals and Courts to revise the wage structure of workmen to their prejudice when a dispute arises. Normally the answer would be in the negative. Tribunals and Courts can take judicial notice of one fact; and that is that the wages of workmen, except inexcep tionally rare cases, 144 fail within the category of mere "sub sisting wages". That being so, it would be inadvisable to tinker with the wage structure of workmen except under compelling circum stances. " We agree with Mr. Ramamurthy that the DA scheme which had stood the test of time for almost thirty years and had been approved by various settlements between the parties has been unjustificably abolished by the Courts below and as such the award of the Tribunal and the High Court Judgments are unsustainable. Mr. Nariman has also relied on the judgment of this Court in Killick Nixon Ltd. vs Killick & Allied Companies Employees ' Union, to support the findings of the Tribunal and the High Court. The said case does not lay down that in all cases the slab system of DA should be abolished to the prejudice of the workers. In the said case this Court on the facts of the case came to the conclusion that the employer had made out a case for putting a ceiling on the dearness allowance. The ratio of that case cannot be extended to interfere with the existing DA schemes in every case where such schemes are beneficial to the workmen. Mr. Nariman has invited our attention to para 20 of the Award wherein the tribunal has held as under: "These figures as detailed in exhibit M 13 would establish that the company is not in a finan cial position to bear the additional burden on account of increased wages. " From the above finding it was sought to be shown that the Company has proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of the existing DA scheme. We do not agree with the learned counsel. The Tribunal gave the above finding in the refer ence made on behalf of the workmen asking for bonus increase and various other monetary benefits. While rejecting the demands of the workmen the Tribunal gave the above finding which related to the additional burden accruing in the event of acceptance of the workers ' demands. The Tribunal nowhere considered the financial position of the company vis avis the existing DA scheme. The Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA. The Tribunal has not dealt with this aspect of the matter while considering the demand of the Company for re structuring the DA scheme. It has been pleaded by the company that its workmen are in a high wage island and as such the revision of DA scheme was justified. The 145 Company also produced evidence before the Tribunal to show that comparable concerns in the region were paying lesser DA to its workmen. On the basis of the material produced before the Tribunal all that the Company has been able to show is that the DA paid by the Company is somewhat higher than what is being paid by the other similar industries in the region. There is, however, no material on the record to show that what is being paid by the company is higher than what would be required by the concept of need based minimum wage. In any case there is a very long way between the need based wage and the living wage. Mr. Nariman reminded us of the limits on our jurisdic tion under Article 136 of the Constitution of India and relying upon Shaw Wallace & Co. Ltd. vs Workmen, and The Statesman Ltd. vs Workmen, ; contended that so long as there is "some basis, some materi al to validate the award" the "jurisdiction under Article 136 stands repelled". The Tribunal and the High Court, in this case, has acted in total oblivion of the legal position as propounded by this court in various judgments referred to by us. Manifest injustice has been caused to the workmen by the award under appeal. We see no force in the contention of the learned counsel. In view of the above discussion we are of the view that the Tribunal was not justified m abolishing the slab system of DA which was operating in the Company for almost thirty years. We allow the appeal and set aside the award of the Tribunal and the judgment of the learned Single Judge in the writ petition and of the Division Bench in the Writ Appeal. The reference of the Company on the issue of re structuring of the dearness allowance is declined and rejected. The Appellant workmen shall be entitled to their costs through out which we assess at Rs. 25,000. [/INST]Proceedings for acquisition of appellant 's land were initiated. and a Notification under section 4(1) of the Land Acquisition Act, 1894 was published in the Government Ga zette. The substance of the said Notification was published in the locality long after 40 days within which it was required to be published under Section 4(1) of 1894 Act 'as amended by the Andhra pradesh(Amendment) Act, 1983. During the course of enquiry regarding the fixation of compensa tion, the appellant consented to his land being acquired provided he was given compensation in a lump sum. However, before any award was made he withdrew his consent and filed a petition challenging the validity of the acquisition proceedings. A Single Judge of the High Court dismissed his petition by holding that since he gave his consent to the acquisition of land he could not challenge the acquisition proceedings. On appeal the decision of the Single Judge was confirmed by the Division Bench of the High Court. Against the decision of the Division Bench of the High Court, an appeal was filed in this Court. Allowing the appeal, this Court, HELD: 1. The Single Judge and the Division Bench of the. High Court were clearly in error in dismissing the respective writ petition and the appeal filed by the appel lant respectively. The appellant 's statement that he was willing to accept the acquisition provided a lump sum com pensation was awarded to him amounted 115 116 in law to no more than an offer in terms of the Contract ACt. The said offer was never accepted by the Land Acquisi tion Officer to whom it was made. Leave alone, making the award of lump sum compensation, no award at all was made by the said officer awarding compensation to the appellant till the aforesaid offer was withdrawn by the appellant or even till the writ petition was filed. Till the offer was accept ed there was no contract between the parties and the appel lant was entitled to withdraw his offer. There was nothing inequitable or improper in withdrawing the offer, as the appellant was in no way bound to keep the offer open indefi nitely. 1117 G H, 118 A] 2. The acquisition of the appellant 's land is bad in law because the substance of the Notification was not pub lished in the locality within forty days of the publication of the Notification in the Government Gazette. The time limit of forty days for such publication in the locality has been made mandatory by section 4(1) of the 1894 Act as amended by the Andhra Pradesh (Amendment) Act, 1983. Such non compliance renders acquisition bad in law. [118 C] </s>

<s>[INST] Summarize the judgementCivil Appeals No.1472 77 of 1987. From the Judgment and Order dated 4.12.1986 of the Delhi High Court in Civil Writ Petition Nos. 2148 of 1986, 2417, 2173, 2174, 2175 and 2166 of 1986. 1017 S.C. Mohanta, Ravinder Bana and Mahabir Singh for the Appellant. A.K. Sen, P.P. Rao, Rajinder Sachhar, K.B. Rohatgi, S.K. Dhingra, Praveen Jain, Shashank Shekhar, C.M. Nayar, P.N. Duda and Randhir Jain for the Respondents. The Judgment of the Court was delivered by SHARMA, J. The present appeals by the State of Haryana and the Haryana Minerals Limited are directed against the common judgment of the Delhi High Court disposing of 6 writ applications filed by different petitioners impleaded as respondent No. 1 herein. Separate mining leases were executed on behalf of the State of Haryana with respect to Silica sand and ordinary sand in favour of the writ petitioners for a period of 10 years, in accordance with the provisions of the Mines & Minerals (Regulation & Development) Act, 1957, hereinafter referred to as the Act. The State of Haryana, in purported exercise of powers under Section 4A of the Act prematurely terminated the leases by its order dated 1st October, 1986 which is quoted in the judgment of the High Court, stating that it was proper to do so as the Haryana Minerals Limited, respondent No. 4 (appellant No. 2 herein) a public sector undertaking had informed that it had fully equipped itself to undertake the mining operation and that necessary permission in terms of the Section had been obtained from the Central Government to prematurely terminate the leases. Admittedly no prior notice to the writ petitioners or any opportunity to them to place their case was given. The lessees contended before the High Court that essential conditions for exercises of the powers under Section 4A are not satisfied in the present cases and further, the impugned decision is violative of the principles of natural justice. It was also urged that so far as the lease in respect of ordinary sand which is a minor mineral under the Act, is concerned, Section 4A being excluded by the provisions of Section 14 is not applicable. It was also averred that forcible possession of the mining areas was taken even before communicating the impugned order. The High Court agreed with these contentions and allowed the writ petitions. The State of Haryana and the Haryana Minerals Limited, respondents No. 2 and 4, respectively, in the writ cases were allowed special leave to appeal under Article 136. Hence these appeals. 1018 4. Section 4A as it stood at the relevant time read as follows: "4A.(1) Where the Central Government, after consultation with the State Government, is of opinion that it is expedient in the interest of regulation of mines and mineral development so to do, it may request the State Government to make a premature termination of a mining lease in respect of any mineral, other than minor mineral, and, on receipt of such request, the State Government shall make an order making a premature termination of such mining lease and granting a fresh mining lease in favour of such Government company or corporation owned or controlled by Government as it may think fit. (2) Where the State Government, after consultation with the Central Government, is of opinion that it is expedient in the interest of regulation of mines and mineral development so to do, it may, by an order, make premature termination of a mining lease in respect of any minor mineral and grant a fresh lease in respect of such mineral in favour of such Government company or corporation owned or controlled by Government as it may think fit. Silica sand being a major mineral is governed by Sub section (1) of Section 4A and ordinary sand by Sub section (2). According to the appellant, full and necessary consultation between the two Governments i.e. the Central Government and the State Government was held and it was considered expedient in the interest of regulation of mines and mineral development to take the impugned decision. Reference in this regard was made by the learned counsel to the report of the Indian Bureau of Mines referred to in the letters of the Director, Department of Mines, Central Government to the Chief Secretary, Government of Haryana, dated 20th April, 1985, 8th July, 1985 and 10th July, 1985 and the State 's letters dated 14th July, 1986, 17th September, 1986 and 29th September, 1986. It has been contended that since a decision was jointly taken by the two Governments to grant mining lease of the entire area to the Haryana Minerals Limited, this by itself fulfilled the necessary conditions under Section 4A and as the writ petitioners lessees had no locus standi to place their point of view with respect to this aspect, it was not necessary to give them a notice. The argument is that in the circumstances there is no question of violation of principles of natural justice. It was also claimed that the State was the final authority to take a decision under Section 4A with respect to both major and minor minerals. 1019 6. Mr. B. Datta, Additional Solicitor General, stated on behalf of the Union of India, respondent No. 2 that the respondent is ready to reconsider the matter after hearing the parties concerned. He refuted the claim of the appellant that the State is the ultimate authority to take a decision under Section 4A with respect to major minerals and he appears to be right. Sub section (1) which deals with major minerals empowers the Central Government to consider the matter and, after having consultation with the State Government, to take a decision in this regard and once it does so and makes a request to the State Government for prematurely terminating a lease, the State Government shall be under an obligation to act. The use of "shall" in this context indicates the binding nature of the request. The language of Section 4A clearly indicates that the Section by itself does not prematurely terminate any mining lease. A decision in this regard has to be taken by the Central Government after considering the circumstances of each case separately. For exercise of power it is necessary that the essential condition mentioned therein is fulfilled, namely, that the proposed action would be in the interest of regulation of mines and mineral development. The question of the State Government granting a fresh mining lease in favour of a Government Company or a Corporation arises only after a decision to terminate the existing mining lease is arrived at and given effect to. The Section does not direct termination of all mining leases, merely for the reason that a Government Company or Corporation has equipped itself for the purpose. The Section was enacted with a view to improve the efficiency in this regard and with this view directs consulation between the Central Government and the State Government to be held. The two Governments have to consider whether premature termination of a particulare mining lease shall advance the object or not, and must, therefore, take into account all considerations relevant to the issue, with reference to the lease in question. It is not correct to say that an existing mining lease can be terminated merely for the reason that a Government Company or Corporation is ready to undertake the work. Considered in this light, the Section must be interpreted to imply that the person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development. Not to do so will be violative of the principles of natural justice. Since there is no suggestion in the Section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right. Reference may be made to the observations of this Court 1020 in Baldev Singh and others vs State of Himachal Pradesh and others, , that where exercise of a power results in civil consequences to citizens, unless the statute specifically out the application of natural justice, such rules would apply. The cases, Union of India and another vs Cynamide India Ltd. and another, AIR 1987 SC 1802; D.C. Saxena vs State of Haryana, AIR 1987 1463 and State of Tamil Nadu vs Hind Stone etc. ; , , relied upon by Mr. Mohanta do not help the appellant. The learned counsel placed reliance on the observations in paragraphs 5 to 7 of the judgment in Union of India vs Cynamide Ltd. which were made in connection with legislative activity which is not subject to the rule of audi alteram partem. The principles of natural justice have no application to legislative activities, but that is not the position here. It has already been pointed out earlier that the existing mining leases were not brought to their and directly by Section 4A itself. They had to be terminated by the exercise of the executive authority of the State Government. Somewhat similar was the situation with regard to Section 4A of Haryana Board of School Education Act, 1969 which was under Consideration in D. C. Saxena vs State of Haryana, AIR 1987 SC 1463. A matter of policy was adopted and included by the legislature in the impugned section. Besides, the validity of the Section was not under challenge there, as was expressly stated in paragraph 6 of the judgment. So far as the case, State of Tamil Nadu vs Hind Stone is concerned, the learned counsel for the appellant cited it only with a view to emphasise the importance of the mineral wealth of the nation which nobody denies. We, therefore, held that a final decision to prematurely terminate a lease can be taken only after notice to the leassee. Coming to the facts of the present case it will be observed that the question of terminating the mining leases in question before us was introduced for the first time under the letter dated 14.7.1986 (page 80) of the State of Haryana. The earlier letter dated 20.4.1985 and 8.7.1985, of the Department of Mines, Union of India sent to the State Government discussed the general question about the desired improvement in the mining field and referred to the report of the Indian Bureau of Mines on silica sand mining in Haryana. The report had highlighted various aspects of silica sand mining in the State and made several positive suggestions. It was stated in the letter dated 20th April, 1985 that if the lessees did not comply with the requirements mentioned therein, their leases "deserve to be terminated in accordance with the procedure established under law. " In the letter dated 8th July, 1985, further emphasis was laid on ensuring scientific mining of optimum utilisation of natural resources, ensuring safety in operation 1021 and ensuring payment of fair wages to the mine workers. In this letter the desirability of entrusting mining operations to the public sector was mentioned but it was also stated that the representatives of the Government of Haryana had in the earlier meetings expressed their inability to entrust the Haryana Minerals Ltd. (appellant No. 2 before us) with the mining operations in the entire State immediately. Additional terms and conditions were also suggested to be imposed in the future mining leases to be granted in favour of private parties. Later on, it appears that the Haryana Minerals Ltd. became ready to take over the mining operations and intimated its preparedness by letter dated 10.7.1986 and thereupon the State of Haryana wrote on 14.7.1986 to the Union of India that it was appropriate to prematurely terminate the 6 leases mentioned in the letter of the date. It will be significant to note that the State Government did not take a decision to terminate all the mining leases; on the countrary, fresh mining leases in favour of private individuals were in contemplation of the State authorities, as indicated by the aforementioned letters and by Annexure P 5 (page 273) to the Writ Petition of Ram Kishan in the High Court. The State 's letter dated the 14th July, 1986 was followed by another letter dated 5.9.1986 and in reply to it, the Central Government asked for a report on several specific points mentioned in their letter which is at page 85 of the paper book. In place of sending the required information, the State Government, in its letter dated 17.9.1986, took the erroneous stand that the information sought for was not relevant. Instead of pointing out that the information demanded was very pertinent in the context of the proposed termination of the mining lease, the Central Government by its letter dated 26th November, 1986 agreed to the proposal, but took care to advice that while taking any action for premature termination of the leases the authority should "ensure that the provisions of Section 4A of the Act are complied with". As has been mentioned earlier, the Union of India does not deny the right of hearing to the affected lessees and is ready, even now, to give an opportunity to them. Admittedly, the writ petitioners who are respondents before us were never given any such opportunity and according to their assertion if such an opportunity had been afforded, they would have shown that the standard of their mining operation was very high and favourably measured against the expected standard suggested in the report of the Indian Bureau of Mines and mentioned in the letter of the Mines Department of the Central Government and that it was definitely superior to that of Haryana Minerals Limited. On a consideration of the facts and circumstances of the 1022 present case, we are of the opinion that there was no effective consultation between the Union of India and the State Government, and the Central Government did not form any opinion as required under Section 4A of the Act. We are further of the view that the lessees, the respondents before us, were entitled to be heard before a decision to prematurely terminate their leases was taken but they were not given any opportunity to place their case. Mr. Sen, the learned counsel for the respondents, very fairly stated that he could not support the plea that leases in respect of minor minerals are saved from the application of Section 4A altogether by reason of Section 14. This Court in State of Tamil Nadu vs Hind Stone, ; (at pages 746H and 747A) pointed out that perhaps since Section 4A(1) is inapplicable to minor minerals because of the provisions of Section 14, Section 4A(2) has been specially enacted making somewhat similar provision. It must, therefore, be held that leases in respect of minor minerals also can be prematurely terminated in appropriate cases. However, in view of our earlier finding the respondents must succeed. We accordingly dismiss these appeals with costs. S.L. Appeals dismissed. [/INST]These appeals were directed against the common judgment of the High Court in Writ applications filed by different petitioners, challenging the termination of the mining leases granted to them. The State of Haryana which had executed the mining leases in favour of the writ petitioners for ten years under the provisions of the Mines & Minerals (Regulation & Development) Act (the Act), terminated the said leases prematurely in the purported exercise of powers under Section 4A of the Act without prior notice to the writ petitioners or any opportunity to them to defend their cases. The leases were so terminated on the ground that the Haryana Minerals limited a public sector undertaking had fully equipped itself to undertake the mining operations. The High Court allowed the writ petitions. The State of Haryana and Haryana Minerals Limited appealed to this Court by Special leave against the decision of the High Court. According to the appellant, the necessary consultation between the Central Government and the State Government was held, fulfilling the conditions under Section 4A of the Act and the decision impugned was taken. The appellant contended that the writ petitioners lessees had no locus standi to place their view point and it was not necessary to give them notice, and that there was no violation of the principles of natural justice. Dismissing the appeals, the Court, ^ HELD: The language of Section 4A indicates that the Section by itself does not permaturely terminate any mining lease. A decision in this regard has to be taken by the Central Government. The question of the State Government granting a fresh mining lease in favour of a 1016 Government Company or a Corporation arises only after the existing mining lease is terminated, the section does not direct termination of all mining leases merely for the reason that a Government Company or a Corporation has equipped itself for the purpose. It is not correct to say that an existing mining lease can be terminated for the reason that a Government Company or a Corporation is ready to undertake the work. Viewed thus, the section must be interpreted to imply that a person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development. Not to do so will be violative of the principles of natural justice. Since there is no suggestion in the section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right. A final decision to prematurely terminate a lease can be taken only after notice to the lessee.[1019C H;1020E] The Writ Petitioners respondents before the Court were never given an opportunity to be heard. If such an opportunity had been afforded, they would have shown that their standard of mining operations was very high and favourably measured against the expected standard and was superior to that of the Haryana Minerals Limited. [1021G] There was no effective consultation between the Union of India and the State Government, and the Central Government did not form any opinion as required under Section 4A of the Act. The respondents before the Court were entitled to be heard before a decision to prematurely terminate their leases was taken but they were not given any opportunity to place their cases. The respondents must succeed. [1022A B] Baldev Singh and others vs State of Himachal Pradesh and others, ; Union of India and another vs Cynamide India Ltd. and another, AIR 1987 SC 1802; D. C. Saxena vs State of Haryana, AIR 1987 SC 1463 and State of Tamil Nadu vs Hind Stone, etc. ; , , referred to. </s>

<s>[INST] Summarize the judgementAppeal No. 469 of 1966. Appeal by special leave from the judgment and decree dated November 25, 1965 of the Bombay High Court in Civil Revision Application No. 1579 of 1962. section G. Patwardhan and M. V. Goswami, for the appellant S.T. Desai and K. L. Hathi, for respondent No.1 The Judgment of the Court was delivered by Bachawat, J. The question arising in this appeal by special leave is whether in a case falling under sub s.(3)(a) of section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act No. 57 of 1947), a tenant can claim protection from eviction by showing his readiness and willingness to pay the arrears of rent before the date of the institution of the suit. The appellant 's husband was a tenant of a flat The rent was in arrears 136 for a period of more than six months. On December 22, 1956, the landlord served a notice on the tenant demanding the rent. The tenant neglected to pay the rent within one month of the notice. On January 11, 1957, he died. On February 4, 1957, the appellant sent the arrears of rent to the landlord by money order, but the landlord refused to accept the payment. On February 5, 1957, the landlord instituted the present suit for eviction of the appellant. The trial Court decreed the suit. The appellant filed a revision application before the Bombay High Court, but this application was dismissed by the High Court. It is to be noticed that the rent was in arrears for a period of more than six months. The tenant neglected to make payment of the arrears of rent within one month of the service of the notice by the landlord under sub section (2) of s.12. The rent was payable by the month, and there was no dispute regarding the amount of the rent. The case was, therefore, precisely covered by sub section (3)(a) of section 12. Nevertheless, the appellant submitted that as she was ready and willing to pay the rent before the institution of the suit, she could claim protection under sub section (1) of section 12. She submitted that the decided cases support this conten tion. In Mohanlal vs Maheshwari Mills Ltd.( '), P. N. Bhagwati, J. held that even in a case falling under sub section (3) (a), a tenant could, by paying or showing his readiness and willingness to pay the arrears of rent before the institution of the suit, claim protection from eviction under sub section A similar opinion was expressed by a Divisional Bench of the Gujarat High Court in Ambalal vs Babaidas(2). The judgment under appeal dissented from the view expressed by the Gujarat High Court. The Bombay High Court held, and, in our opinion, rightly, that in a case falling under sub section (3)(a), the tenant could not claim protection from eviction by showing his readiness and willingness to pay the rent before the institution of the suit. Sub section (1) of section 12 imposes a general restriction on the landlord 's right to recover possession of the premises so long as the tenant pays or is ready and willing to pay the rent and observes and performs the other conditions of the tenancy. Subsection (2) of section 12 imposes the further restriction that no suit for recovery of possession on the ground of non payment of rent shall be instituted by the landlord until the expiration of one month after a notice in writing demanding the rent. Sub section (3)(a) provides for the consequences which will follow where the rent is payable by the month, there is no dispute regarding the amount of rent, the rent is in arrears for a period of six months or more, and the tenant neglects to make payment within one month of the service of the notice under sub s (2). In such a case, the tenant (1) (1962) 3 Gujarat Law Reporter, 574 at pp. 618 to 62). (2) (1962) 3 Gujarat Law Reporter 625, 644. 137 cannot claim any protection under sub section (1), and the Court is bound to pass a decree for eviction. At the material time, sub section (3) (a) of section 12 read : "Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub s (2), the Court may pass a decree for eviction in any such suit for recovery of possession. " The word "may" in this sub section has the effect of "shall". In Bhatya Punjalal Bhagwanddin vs Dave Bhagwatprasad Prabhuprasad(l), this Court held that where the requirements of sub section (3)(a) were satisfied, the Court was bound to pass a decree for eviction. The section has now been suitably amended, and the word "shall" has been substituted for the word "may" by Maharashtra Act No. 14 of 1963. If the conditions of sub section (3)(a) are satisfied, the tenant cannot claim any protection from eviction under the Act. By terdering the arrears of rent after the expiry of one month from the service of the notice under sub section (2), he cannot claim the protection under sub section It is immaterial whether the tender was made before or after the institution of the suit. In a case falling within sub section (3)(a), the tenant must be dealt with under the special provisions of sub section (3)(a), and he cannot claim any protection from eviction under the general provisions of sub section The landlord is vested with the right to recover possession of the premises if the rent is in arrears for a period of six months or more, "the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2)", and the other conditions of sub section (3)(a) are satisfied. This right cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default, but before the institution of the suit. In effect, the appellant asks us to rewrite the section and to substitute in it the following condition : "the tenant neglects to make payment thereof until the date of the institution of the suit. " It is not possible to rewrite the section in the manner suggested by the appellant. The appellant 's case fell precisely within sub section (3)(a) and she could not obtain immunity from eviction by tendering the rent before the institution of the suit. The appeal is dismissed with costs. V.P.S. Appral dismissed. (1) ; ,330 331. [/INST]Two Hindu undivided families one of them being represented by the appellants and the other by the respondents were co owners of a house which was Purchased by them jointly. The appellants occupied a major portion of the house on an agreed compensation being payable by them to the respondents in respect of the latter 's share occupied by them. On the compensation not being paid as agreed, the respondents filed a suit for its recovery, as well as for partition. In the plaint one S was mentioned as having been adopted out of the plaintiff family and for that reason he was not impleaded. The appellants resisted the suit on the grounds that: (i) S had not been impleaded although a co owner, (ii) the suit was barred by the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947), and (iii) the contract for payment of compensation was not enforceable as there was no ouster of the plaintiffs by the respondents. The trial court decided in favour of the appellants but the High Court held against them. They came to this Court by special leave. HELD: (i) The suit was not incompetent because S was not made a party thereto. The fact of adoption was stated in the plaint and had not been specifically denied by the appellants in their written statements. No specific issue on the question of adoption was raised and it could not be therefore argued that S 's adoption had not been established. [284 A B, F] Oral evidence of the fact of adoption did not become inadmissible merely because the existence of a deed of adoption was admitted. A deed of adoption merely records the fact that an adoption had taken place and nothing more. Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence. [284 D E] (ii) The mere fact that the defendants agreed to pay compensation to the Plaintiffs for their occupation of the plaintiff 's share would not bring into existence a relationship of landlord and tenant. By this agreement the parties never intended to Constitute a relationship of landlord and tenant between the defendants and their co owners. Bihar Act 3 of 1947 was therefore inapplicable and the suit could not be said to be barred under its provisions, [285 C] 281 (iii) Co owners are legally competent to come to any kind of agreement for the enjoyment of their undivided property and are free to lay down any terms covering the enjoyment of the property. Ouster of a co owner is not a sine qua non for enabling him to claim compensation from the co owner who is in occupation and enjoyment of common property. [285 E F] </s>

<s>[INST] Summarize the judgementivil Appeal No. 1277 of 1979. From the Judgment and Decree dated 4.8.1977 of the Kerala High Court in A. section No. 640 of 1971. G. Viswanath lyer, F.S. Nariman, K. Parasaran, K.R. Nambiar, P. K. Pillai, section Balakrishnan, section Ganesh, Joy Joseph, Mrs. A.K. Verma, section Sukumaran for J.B.D. & Co., Baby Krishnan and V.J Francis for the appearing parties. The Judgment of the Court was delivered by KULDIP SINGH, J. The dispute before us is regarding the ownership rights over the timber clear felled from about 150 acres of jungle area in Kallar Valley and the right to transport the timber so felled from the said area. The Kallar Valley area forms part of the tract of land originally known as Kanan Devan Anchanatu Mala in the erstwhile Travancore territory of Kerala State. This area is generally called the Kanan Devan Hills concession (hereinafter called the 'Concession Area ') ' The Poonjar Rajs, held free hold proprietary rights in the Concession Area. Originally the Raja was exercising sovereign rights but later on he came under the suzerainty of Travancore State. The Poonjar Rajsa, by a deed dated July 11, 1877 (hereinafter called 'First Concession '), conveyed the concession area with all the hills and forests therein to one J.D. Munro for cash consideration of Rs.5,000 and a deferred perpetual annual payment of Rs 3,000 from 1884 onwards. Thereafter on July 26, 1879 a second document was executed between the same parties (hereinafter called 'Second Concession '). The terms of the first concession were reiterated enuring to Munro, his heirs, successors and assigns absolute right for ever to make all kinds of cultivations and improvements on the Concession Area. The grant of rights to Munro by the First Concession was ratified by the Travancore Government by a deed of ratification dated November 28, 1878. Munro assigned the Concession Area to The North Travancore Land Planting and Agricultural Society Limited by a deed dated December 8, 1879. Thereafter an agreement was executed between the Travancore Government and the Society on August 2, 1886. 264 By virtue of the agreement dated September 18, 1889 between the Poonjar Raja and the Travancore Government and the proclamation of the Maharaja of Travancore dated August 24, 1899 the territory comprising the Kanan Devan Hills including the Concession Area was declared part of the Travancore State. There were various transfers in respect of the Concession Area but finally by a deed dated July 16, 1900, the Concession Area came to be vested in the Kanan Devan Hills Produce Company Limited, (hereinafter called 'the company '). In and around May 1963 the company clear felled about 150 acres in the Concession Area for cultivation. The Company applied to the State Government for grant of free passes to transport the timber from the Concession Area. The State Government by an order dated November 25, 1966 informed the company that it could not take away timber outside the limits of the Concession Area except in accordance with the Rules of the forest department and on payment of levy in the shape of Kuttikanam. According to the Government in terms of the deeds of conveyance/ratification the company was liable to pay Kuttikanam in respect of the timber taken out of the Concession Area. The company filed a suit in the year 1968 in the Court of Subordinate Judge, Kottayam against the State of Kerala and its officers. In the suit, the company prayed for the following reliefs: (a) A declaration that the plaintiff company has full and unqualified ownership and title over, and right of removal of the said timber from the Concession Area; (b) Declaration that the State has no right to claim seigniorage, Kuttikanam or any other payment in respect of the said timber; (c) A mandatory injunction directing the defendants to grant the necessary free passes for the free transit of the timber outside the Concession Area; (d) Prohibitory injunction restraining the defendants from taking any steps under the order dated 25.11.1966. The State Government resisted the suit and controverted the interpretation placed by the company on the deeds of conveyance/ ratification. According to the State the company was only a lessee of the Concession Area and in terms of the deeds of conveyance/ratification the State Government had the absolute right over the trees and 265 timber in the Concession Area. The company only acquired the right to use and remove the timber subject to the restrictions imposed in the said documents. It was further contended by the State Government that the title and ownership in the trees and timber in the Concession area always remained with the State Government and the company could only take the timber outside the limits of the Concession Area in accordance with the rules framed by the State Government and on payment of Kuttikanam. The Trial Court in a detailed and well reasoned judgment dismissed the suit of the company. The Trial Court on the interpretation of First Concession (Exhibit P 1), Second Concession (Exhibit P 2), deed of ratification (Exhibit P 62) and the Government agreement with the Society dated August 2, 1866 (Exhibit P 64) came to the conclusion that the company did not acquire absolute proprietary rights over the Concession Area or the trees and timber in the said area. It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee. It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification. The Court further held that the relevant rules framed under the Travancore Forest Act, 1952 for levy of Kuttikanam were applicable to the timber transported from the Concession Area. The contention of the company that it was entitled to free passes for transportation of timber outside the Concession Area under the Transit Rules was rejected. The suit of the company was thus dismissed with costs. The company went up in appeal before the High Court. It was contended that the Trial Court misinterpreted the documents P 1, P 2, P 62 and P 64. It was contended that the Poonjar Raja had conveyed absolute possession to the grantee to be enjoyed perpetually with heritable and transferable right and it ought to have been held that the natural consequence of such a conveyance was to grant the company absolute title to the trees standing on the area so conveyed. It was argued before the High Court that the State Government had no right over the trees and the timber within the Concession Area. Before adverting to the various contentions raised by the parties before it the High Court indicated the approach it adopted to the questions involved in the case in the following words: 266 "For resolving the real controversy in the case we do not think there should be an enquiry into the question whether the plaintiff company is the absolute owner of the Concession Area as alleged by them or the company is only a lessee as contended by the defendants. Nor do we think any decision is necessary here as to whether at the time, the agreement and proclamation of 1899 came into existence, the Poonjar Chief had vested in him any proprietary rights over the Concession Area which he could pass to the government. We also do not think we should make a general enquiry as to the nature and extent of the rights conveyed and secured by the First Poonjar Concession of 11.7.1877 and second Poonjar Concession of 26.7.1879 (Exs. P 1 and P2). We can well proceed in the matter on the basis, as stated by the court below, that absolute rights over the Concession Area had not been conveyed under Exs. P 1 and P 2, that by virtue of the transactions the plaintiff had only absolute possession with heritable and transferable interest and the right to enjoy the land subject to the terms and conditions declared and defined in the Ratifica tion Deed and agreement of modification, namely Exs. P 62 and P 64. The question is what is the plaintiff 's right over the timber and tree growth in the area on the basis of the grant under Exs. P 1 and P 2, wherein it gets wide rights in regard to the jungles and forest in the Concession Area unqualified rights to clear the land and improve the source. It is no doubt true that the rights which the plaintiff has acquired as per the grant of the Poonjar Raja are subject to the terms and conditions imposed by the Sovereign power of the Maharaja under exhibit P 62 and P 64. In short the question for a decision in the appeal will revolve round the interpretation of the relevant clauses in these documents. " The High Court then considered the contents of the documents P 62 and P 64 and came to the conclusion that the company had full rights over the timber clear felled from the Concession Area and it had right of removal of the timber with the necessary free passes issued under the timber transit rules. It was further held that the State of Kerala had no right or claim for the seigniorage or Kuttikanam or any other payment in respect of the said timber. The High Court allowed the appeal of the company and set aside the judgment and decree of the Trial Court. This appeal via special leave petition is against the judgment of the High Court. 267 The High Court proceeded on the basis that absolute rights over the Concession Area had not been conveyed under the documents of conveyance/ratification and the right to enjoy the land was subject to the terms and conditions declared in the ratification deed P 62 and the agreement of modification P 64. We agree with the approach of the High Court. The question, therefore, is what are the company 's rights over the timber and the tree growth in the Concession Area. This takes us to clause 5 of P 62 and clause 7 of P 64 which are relevant. Clause fifth of the ratification dated November 28, 1878 Exhibit P 62 is as under: "Fifth: The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved, viz., Teak, Coal teak, Black wood, Aboney, Karinthali Sandalwood. Should he carry any timber without the limits of the grant it will be subject to the payment of Kuttikanam or customs duty or both as the case may be in the same way as timber ordinarily felled. In the case of the excepted timber the grantee is required to pay seigniorage according to the undermentioned scale. . The grantee is bound to deliver to the Poonjar Chief, to enable him to make over to the Sirkar, all ivory, cardamoms and other royalties produced in the land and all captured elephants and he will be paid by the said Chief according to agreement with him the regulated price for the articles of produce and the regulated reward for the elephants. Clause 7 of the agreement dated August 2, 1886 Exhibit P 64 is as under: "7. The society, its successors and assigns may use and appropriate to its own use within the limits of the said tract of land all timber except the following and such as may hereafter be reserved, viz., Teak, Coak teak, Black wood, Aboney, Karinthali and Sandalwood. But such society, its successors and assigns shall not fell any timber beyond what is necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant. No unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest and 268 customs department for the time being in force. In the case of the excepted timber the society for itself, its successors and assigns agrees to pay seigniorage according to the undermentioned scale. . . The society for itself, its successors and assigns agrees to deliver to the said Poonjar Raja or Chief to enable him to make over the same to the government of Travancore, all ivory and cardamoms and other royalties. . captured elephants. . Mr. Parasaran, learned counsel appearing for the respondent company contended that in P 62 it was provided that the grantee could not carry timber beyond the limits of the grant without payment of Kuttikanam but by the time the agreement P 64 was executed in the year 1886 Kuttikanam had been abolished and as such there was no provision for the payment of Kuttikanam in the document P 64. Clause 7 of P 64 reproduced above makes it clear that the respondent company may use and appropriate to its own use within the limits of the Concession Area all timber except to the extent mentioned therein. It was further provided that. . . society, its successors and assigns shall not fell any timber beyond what is necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant. No unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest and customs department for the time being in force". It is thus clear that the company has no right under the said clause to carry the unworked timber beyond the limits of the grant. The company could not fell timber beyond what was necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant. Clause 7 clearly indicates that the grantee has no absolute right of ownership over the tree growth and the timber within the Concession Area. The ownership remains with the Government and the grantee has been given the right to fell the trees for clearing the ground for cultivation and to use the timber for specified purposes within the limits of the grant. An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie vs State of Kerala, [ K. K. Mathew, J. (as the learned Judge then was) interpreted the clause as under: "We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been 269 quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession. We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein. The company acquired the right to fell the trees and use the timber subject to the restrictions imposed in clause 7 of P 64. Since the respondent company has no right to remove the timber beyond the limits of the Concession Area, the State Government was justified in refusing to permit free transportation of timber from the said area. We do not agree with Mr. Parasaran that Kuttikanam having been abolished in the year 1884 the respondent company was not liable to pay Kuttikanam while transporting the timber from within the Concession Area. In Leslie vs State of Kerala (supra) the term "Kuttikanam" was explained as under: "In the Malayalam and English Dictionary by Rev. H. Gundert D. Ph. page 278, 'Kuttikanam ' is defined as meaning 'the price of timber; fee cliambable by the owner for every tree cut down by the renter '. In 'The Manual of Malabar Law ' by Kadaloor Ramachandra lyer, Chapter, VII, page 44, it is stated: 'Kuttikanam is a mortgage of forests by which the landlord assigns on mortgage a tract of forest land receiving a stipulated fee for every trees felled by the mortgagee, the entire number of the trees, to be cut down and the period within which they are to be felled being expressly fixed in the karar entered into between the parties. . In the Glossary attached to the Land Revenue Manual (1916) Vol. IV, at page 883, the word 'Kutti kanam ' is said to mean 'a fee paid to the Sirkar for felling trees other than royal trees and tax paying trees '. In the 270 Glossary of Administrative Terms, English Malayalam, by the Official Language Committee, at page 302, 'seigniorage ' is defined as meaning. . We do not think that 'Kuttikanam ' is either a fee or tax. A tax or fee is levied in the exercise of sovereign power. We think that in the context 'Kuttikanam ' means the Government 's share of the value of the reserved trees. " It was further held by Mathew, J. that Kuttikanam being the Government 's share of the value of the trees owned by the Government it has the power to fix the value of the trees. We agree with the reasoning and conclusions reached by Mathew J. Since the ownership cover the tree growth and timber in Concession area vests with the Government it has a right to impose Kuttikanam on the removal of the trees from within the Concession area. We may examine the justification for levying Kuttikanam from another angle. Clause 7 of P 64 states that no unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest department for the time being in force. The Government of Kerala, in exercise of its rule making power under Section 93 of the Travancore Cochin Forest Act, 1951, framed rules regulating the levy of Kuttikanam on trees, standing on Government land by a notification dated July 9, 1958. The said rules are reproduced hereinafter. "TRAVANCORE COCHIN FOREST ACT, 1951 (111 OF 1952) RULES REGULATING THE LEVY OF KUTTIKANAM ON TREES IN GOVERNMENT LANDS. (Section 93(2)(d)(dd) and (e) Notification No. 14824/58 3/Agri./F.(B) 3 dated 9th July 1958 published in the Gazette dated 15th July 1958 Part In exercise of the powers conferred by sub section (2)(d)(dd) and (e) of Section 93 of the Travancore Cochin Forest Act, 1951 (Act Ill of 1952) the Government of Kerala hereby make the following rules, regulating the levy of Kuttikanam on trees, standing on Government lands, namely: 271 1. All trees standing on land temporarily or permanently assigned, the right of Government over which has been expressly reserved in the deed of grant or assignment of such land, shall be the absolute property of Government. It shall not be lawful to fell, lop, cut or maim or otherwise maltreat any tree which is the property of Government without proper sanction in writing granted by an officer of the Forest Department not below the rank of an Assistant Conservator: Provided that in cases where the holder of the land is allowed under the title deed to lop or fell any such tree, such lopping or felling may be done by such holder in the manner and subject to such conditions and payment as may be specified in the title deed in that behalf. Any lopping or felling of such trees otherwise than in accordance with the conditions and limitation specified in the deed of grant shall be unlawful. Government may, in the absence of any provision to the contrary in the title deed, sanction the sale of timber which is the property of Government to the holder of the land on which such timber is standing, on payment of Kuttikanam or Seigniorage or such other rates as may be specified by Government in each individual case. In cases where the title deed specified the rate at which the timber will be sold to the holder of the land, such rates only will be levied. Explanation: 'Kuttikanam ' means the seigniorage rate that may be in force in the Forest Department from time to time and notified by Government. The Collector of each District shall forward to the Chief Conservator of Forests a statement showing the full details of the trees standing on such lands at the disposal of Government as may hereafter be granted for permanent cultivation, under the Land Assignment Act and the rules framed thereunder. On receipt of such statement, the Chief Conservator of Forests will take appropriate action for the disposal of such tree growth within the period allowed under Section 99 of the Forest Act. 272 The Travancore Cochin Forest Act 1951 was repealed by the Kerala Forest Act, 1961 but Section 85(3) of the said Act saves the rules framed under the repealed Act. It is thus obvious that the rules reproduced above were holding the field at the relevant time. The trial Judge primarily relied on these rules for holding that the Government was justified in demanding Kuttikanam from the respondent company. The High Court, however, did not take into consideration these rules while interpreting clause 7 of Exhibit P 64. We agree with the findings of the trial court to the effect that the above quoted rules read with clause 7 of Exhibit P 64 empowers the State Government to levy and demand Kuttikanam from the respondent company in respect of timber taken out of the limits of the Concession area. Mr. Parasaran invited our attention to a letter dated May 21, 1932 (Exhibit P 4) from Chief Secretary to Government to the General Manager of the respondent company. The letter reads as under: "With reference to your letter dated the 25th January, 1928 regarding the payment of seigniorage on reserved trees felled from the K.D.H.P Company 's Concession Area, I have the honour to inform you that Government accept your view that no seigniorage is due from the Company on trees other than the Royal Trees specifically mentioned in Clause 7 of the Agreement and sanction accordingly." Mr. Parasan contended that the State Government interpreted clause 7 of P 64 to mean that no seigniorage (Kuttikanam) was due from the company on trees other than the Royal Trees specified in the said clause. He argued that in the face of the Government decision in the above letter the Government could not demand Kuttikanam from the respondent company in respect of the non Royal Trees removed from within the limits of the Concession Area. We do not agree with the contention of the learned counsel. The letter re produced above refers to the letter dated January 25, 1928 (exhibit P 3) written by the General Manager of the company to the Government. The letter P l states as under: "The question arose through the Forest Department claiming seigniorage on certain species of timber, used by this Company within the concession area for building purposes, and which have been reserved under the Forest Regulation. 273 The letter also states as under: A ". . I think it advisable that the whole question of Timber Rights in the Concession should be considered and settled if possible. " It is no doubt correct that while focusing the controversy in respect of the timber used by the company within the Concession Area the General Manager dealt with the larger question of timber rights in the Concession Area but reading the two letters P 3 and P 4 together the only conclusion which could be reached is that the letter P 4 was with respect to the use of timber by the company within the Concession Area. The letter P 4 cannot be read to mean that no Kuttikanam was leviable on the timber removed by the respondent company outside the Concession Area. In any case the wording of clause 7 of P 64 is clear and unambiguous. The Government letter P 4 is to be read in the light of clear phraseology of clause 7 and not the vice versa. We allow the appeal and set aside the judgment of the High Court. We uphold and approve the judgment and findings of the Trial Court. The suit of the respondent plaintiff is dismissed with costs which we quantify as Rs.5,000 R. N. J. Appeal allowed. [/INST]The appellants are manufacturers of Polyester fibre yarn. They obtained a contract from the Imperial Chemical Industries, Singapore for the supply of the said yarn and the said concern had agreed to supply to the appellants free of cost the di methyl terephthalate (DMT) D required for the manufacture of Polyester staple fibre yarn. The DMT was required to be converted into polyester fibre, blended with viscose indigenously and shipped to a customer of the ICI in Sri Lanka. The appellant assessees obtained customs clearance permits for import of 392 tons of DMT and also of 178 tons of viscose stable fibre. The appellants also obtained permission to convert the imported DMT into polyester fibre under customs bond. The appellants imported the DMT and paid the customs duty in respect thereof Section 75 of the empowers the Central Government to allow the drawback of the duties of customs chargeable under the Act on any imported materials of a class or description in the manufacture of such goods in accordance with and subject to the rules under sub section (2). There is an identical provision in section 37 of the Central Excises & Salt Act, 1944 enabling grant of draw back of the excise duty paid in relation to such manufacture. The Central Government framed the Customs and Central Excise Duties Drawback Rules 1971 enabling drawback being availed of in relation to customs as well as in relation to duties of central excise. Schedule II to the notification listed the items the export of which entities an assessee to avail of the drawback facility. DMT as such was not included in the notification in respect of which drawback could have been availed of by the assessees. The assessee therefore made an application to the Ministry of Finance on 23.3.1977 requesting that since it had paid customs duty on DMT, it was entitled to its drawback, more 289 particularly when its request for the manufacture of the polyester fibre under customs bond had been declined by the customs authorities. The application filed by the appellants was rejected bY the Central Government on 12.3.1978, though on a representation made by the Members of the Association of manufacturers of Polyester staple fabric a notification had been issued on 2.8.76 under Section 25 of the Customs Act B exempting DMT from Customs duty. The appellant thereupon filed writ petition in the Delhi High Court which was dismissed by the High Court. Hence these appeals. Dismissing the appeals, but recommending to the Central Government to consider the case of the appellants on equitable grounds whether the relief could be granted to it, this Court, HELD: Though Section 75 of the and Section 37 of the Central Excises & Salt Act 1944 empower the Government to provide for the repayment of the customs and excise duties paid by individual manufacturers also, the rules as framed (rule 3 in particular) provide only for a refund of the 'average amount of duty paid on materials, of any particular class or description of goods used for the manufacture of export goods of that class or description by manufacturers generally, except to the extent prescribed under rule 7. [30OA B]. The rules do not envisage a refund of an amount arithmeticaly equal to the customs duty or central excise duty which may have been actually paid by an individual importer cum manufacturer. If that had been the statutory intendment, it would have been simple to provide that in all cases where imported raw materials are fully used in the manufacturers of goods which are exported, the assessee would be entitled to a draw back of the customs or excise duties paid by him for the import or on the manufacture. [300C] There is no controversy that, in this case, the goods exported fall under item 25. R was sought to be contended that the goods fall under sub item 2501, but this is clearly untenable. Sub item 2501 represents a residuary category which will not be attracted to the goods which clearly fall under sub item 2502. The notification prescribes different amounts of drawback under this item depending on the composition of the yarn and the nature of its contents. It specifies an amount of Rs.43.15 per kg. as the relief by way of drawback available against the goods with which we are concerned which fall under clause (b) of item 2502. [30OH 301B] 290 The High Court was right in concluding that the rate of drawback in respect of the goods in question was fixed after taking into consideration the aspect of the customs duty payable in respect of DMT and that a conscious decision was taken that no relief in this respect should be granted as DMT was available in the country itself. It cannot therefore, be said that this is a case where the fixation is contrary to the terms of rule 3, and that the assessee 's application for determination of a rate in his case should be taken as an application under rule 6. [303B) Rule 6 is also inapplicable for the reason that an application under rule 6 should be made before the export of the manufacturer 's goods which does not seem to be the case here. [303C] </s>

<s>[INST] Summarize the judgementivil Misc. Petition No. 28356 of 1986. IN CIVIL APPEAL No. 5579 of 1983. From the Judgment and Order dated 22.4.1983 of the Andhra Pradesh High Court in Civil Rev. Petn. No. 2626 of 1982. Dr. Shanker Ghose and P.P. Singh for the Appellant. section Markandeya and C. Markandeya for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an application filed by the Hindustan Steelworks Construction Company Limited for filing the award of the Umpire appointed by this Court, Shri Justice Jaganmohan Reddy, retired Judge of this Court and for passing a decree in terms of the said award. It appears that there was an agreement between Shri Rajasekhar Rao, the contractor and the Hindustan Steelworks Construction Limit ed, petitioner, in respect of certain works. Differences and disputes arose, and there were proceedings before the arbi trator named in the Agreement and there were certain pro ceedings, the detail of which is not necessary to refer. As the arbitrators could not agree, there were differences. This Court by an order dated 16th of June, 1983 directed that arbitrators appointed by each of the parties be ap pointed arbitrator to adjudicate upon the dispute between the parties. It was stipulated therein that in the said order of this Court dated 16th of June, 1983, it would be no longer open to the party to question the validity of the appointment of the arbitrators. In the event of any disa greement between the two arbitrators, Shri Jaganmohan Reddy, a former Judge of this Court was directed to act as the Umpire. Further consequential directions were also given. Thereafter the parties appeared before the arbitrators and referred the matter to the umpire. The Umpire after consid eration has made the award dated 15th of July, 1985 which has been filed in this 656 Court and the petitioner seeks a decree in terms of the award. The respondent contractor, Shri Rajasekhar Rao ob jects to the award being made a rule of the Court. He states in his objections that the umpire had made a speaking award, therefore according to his counsel the validity or otherwise of the said award was justifiable in a court of law. He, however, firstly contends that the award was made beyond time. He further contends that the umpire had no jurisdiction to proceed with the arbitration on or about 18th of December, 1984 as the period of two months from the date of his entering upon the reference viz, October 20, 1984 had expired on December 18, 1984. According to the said objections, the umpire became functus officio. It was con tended that the power to extend the period of passing the award was vested in the court alone under section 28 of the and it was not permissible for the parties to extend the time. We are unable to accept this position. Mr. Markendeya drew our attention to certain observations of this Court in the case of State of Punjab vs Sri Hardyal, ; He relied on the observations of the Court at page 656 and emphasised that law precludes parties from extending time after the matter had been referred to the arbitrator, it would be contradiction in terms to hold that the same result could be brought about by the conduct of the parties. These observations, in our opinion, are out of the context. The policy of law is that the arbitration proceedings should not be unduly prolonged. The arbitrator therefore has to give the award within the time prescribed or such extended time as the court concerned may in its discretion extend and the court alone has been given the power to extend time for giving the award. The court has got the power to extend time even after the award has been given or after the expiry of the period prescribed for the award. But the court has to exercise its discretion in a judicial manner. In that case this Court found that the High Court was justified in taking the view that it did. This power, however, could be exercised even by the appellate court. In view of the policy of law that the arbitration proceedings should not be unduly prolonged and in view of the fact that the parties have been taking willing part in the proceedings before the arbitrator without a demur and had all along been willing to extend time, this will be a fit case, in our opinion, for the extension of time. We accordingly extend the time for giving the award and the award will be deemed to have been given in time. In this case, it appears that under section 28 and in the light of section 3 of the First Schedule the parties are allowed to extend the time. In this connection reference may be made to H.K. Wattal vs V.N. Pandya; , , where this Court 657 reiterated that sub section (2) of section 28 indicated one exception to the above rule that the arbitrator could not enlarge the time, and that was when the parties agreed to such an enlargement. It is clear this Court reiterated that the arbitrator gets the jurisdiction to enlarge the time for making the award only in a case where after entering on the arbitration the parties to the arbitration agreement consent to such enlargement of time. In this case precisely it happened. Furthermore the parties have proceeded before the umpire on that basis which is just and proper and further more the time should be extended as was done in the case of State of Punjab vs Sri Hardyal, (supra). In the aforesaid view of the matter we are unable to accept the submission on behalf of Shri Markendeya that the award of the umpire was beyond time. It was next contended that the award contained error of law on the face of the award and there were inconsistent findings. It has to be borne in mind that it was only in a speaking award that the court could look into the reasoning of the award. In the case of Jivarajbhai Ujamshi Sheth and others vs Chintamanrao Balaji and others, [1964] 5 S.C.R. 480, this Court observed that an award might be set aside by the court on the ground of error on the face of the award, but an award was not invalid merely because by a process of inference and argument it might be demonstrated that the arbitrator had committed some mistake in arriving at his conclusion. The law on this point is well settled. The Judicial Committee in Chempsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd. L.R. 50 I.A. 324 clarified that an error of law on the face of the award means, that one could find in the award or a document actu ally incorporated thereto, as for instance a note appended by the "arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which one could then say was erroneous. It did not mean that if in narrating a reference was made to a contention of one party, that opened the door to seeing first what that con tention was, and then going to the contract on which the parties ' rights depended to see if that contention was sound". It has been further reiterated by this Court in the aforesaid decision relying on Chempsey Bhara and Company 's case (supra) that in dealing with an application to set aside an award the court had not to consider whether the view of the arbitratorr on the evidence was justified. The arbitrator 's adjudication was generally considered binding between the parties, for he was the tribunal selected by the parties and the power of the Court to set aside the award was restricted to cases set out in section 30 of the Arbi tration Act. It is not open to the court to speculate, where no reasons are 658 given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. It is not open to the Court to attempt to probe the mental process by which the arbitrator had reached his conclusion where it is not disclosed by the terms of his award. In this case this is not a speaking award. The learned Umpire has not spoken his mind indicating why he has done, what he has done, he has narrated only how he came to make the award. Counsel drew our attention to page 26 of the award where different items have been set out and referred to page 30 of the award where the arbitrator noted as under: "The Respondent demurs to this and its officers have denied having received them in their affidavits and in their oral testimo ny. No officer of the Post Office from which the letter was sent by Registered Post or of the Post Office through which delivery of that Registered letter was effected to the address ee has been summoned to establish that these letters did not emanate from their Post Of fices or that the Post Office seals affixed on the "Certificates of Posting" and "Postal Acknowledgements" were not of those Post Offices which delivered them to HSCL or that they were forged or fraudulent, nor was any thing produced to show that these were not posted or registered from the Post Offices from which they emanated". Counsel further drew our attention to the statement at page 33 of the award about the losses. Mr. Markandeya con tended that these were the reasons given by the learned umpire. We are unable to accept. What the learned umpire did in the aforesaid paragraphs was to narrate the facts and state the history and state of pleadings. The umpire in the operative part of the award observed as under: "WHEREAS I perused and considered the entire record with great care including the record of affidavits, the oral evidence ten dered before me, the statement of claim dated 12.10.1983; the counter statements dated 27/31 101983 and the Rejoinder of the claimant and considered the documents filed in support of the case of the respective parties as also the written and oral submissions made before me by counsel for the parties in support of their respective cases of the parties for which they have 659 appeared; and having duly considered the dispute in its varied aspects placed before me by the parties and in the light of the entire material in the case as above narrated. I.P.JAGANMOHAN REDDY, the Umpire, nominated by the Supreme Court of India as aforesaid, and having jurisdiction to adjudi cate the dispute between the parties in the claims and counter claims relating to Work Orders Nos. 3, 4, 5, 6 and 8 concerning the Glass Factory and Works Orders Nos. 9 and 10 concerning Lamp Factory and the contention of the claimant and the respondent in respect of the said Claims and counter claims. (1) I DO HEREBY MAKE MY AWARD, order and direct that the Respondent do pay to the claimant a sum of Rs.31,740 30p. (Rupees thirty one thousand seven hundred and forty and thirty paise) only in full satisfaction of its liability for the claim made by the Claim ant Contractor against the Respondent with interest at the rate of six per cent per annum from the date of Award. (2) I further award and direct that the counter claims made by the respondent do stand dismissed. (3) I further award and direct that the parties do bear their respective costs incidental to these proceedings. (4) I further direct that the amounts paid by the parties towards the heating fees etc., from time to time in respect of the several heatings of these arbitration proceed ings and the amount in deposit be appropriated and has/ have accordingly been appropriated towards the remuneration of the Umpire". Therefore, in his award as a whole no reasons have been given for the purpose of making the award. In other words, it is not a speaking award at all. The Award did not speak as to why the umpire has awarded as he did. It does not speak the mind of the umpire. It mentions the events leading to the making of the award. In the award, there is no legal proposition which is unsustainable or improper. In that view of the matter the challenge to the award cannot be accepted. 660 In the premises, the objections are rejected. There will be decree in terms of the award of the Umpire, Shri P. Jaganmohan Reddy. There will be interest on the judgment at 9% until realisation. The applicant will have the costs of this application. N.P.V. Award Confirmed. [/INST]Under the relevant Recruitment Rules relating to Class I junior scale posts, there was a quota system two thirds of the vacancies had to be filled up by promotion by selection from Class II officers and the remaining one third by direct recruitment by competitive examination to be held by Public Service Commission. When direct recruitment was not made timely as envisaged by the scheme in the Rules, officiating promotions were given in respect of the posts covered by the direct recruit quota. Such temporary promotions remained effective for a number of years and later when the vacancies within the direct recruitment quota were filled up, the appointments made in the later years were deemed to carry weightage for seniority on the footing of deemed filling up when the vacancies had arisen. Thus, the dispute as to seniority inter se between those who had manned the promotional posts beyond 2/3rds limit and the direct recruits subsequently appointed, arose for judicial determination. This Court in V.P. Badami, etc. vs State of Mysore and Ors., had dealt with a similar situation with reference to the same set of rules, and with a view to implementing the rule of this Court in Badami 's case, the State government had issued an official memorandum on 5.7.75, laying down guide lines for determination of the seniority between the direct recruits and promotees, and accordingly, gradation list of the junior scale officers as on 30.6.73 was drawn up, and notified on 10.8.75. By a later notification dated 2.2.77, a further gradation list was published. Then, on a representa tion by the 1974 batch of direct recruits for refixation of inter se seniority in the gradation list taking into account the carried forward vacancies, the State Government made an order on 22.5.80 to the effect that the 1974 batch of direct recruits should be shown immediately below serial number 64 and above serial number 65 in the continuation gradation list published on 2.2.77. 886 Aggrieved by this government direction, some promotees moved the High Court under Article 226 of the Constitution for protection of their seniority, and aggrieved by the decision of the High Court, both, the direct recruits and promotees moved this Court for relief by appeals by special leave and writ petitions. The promotees challenged the propriety of the direction of the High Court to modify the gradation list by applying the quota rule, while the direct recruits sought to have full application of the quota rule instead of the limitation of three years, and the consequen tial benefits. Allowing the appeals and the writ petitions of the direct recruits and dismissing the appeals by the promotees, the Court, HELD: The rule of this court in V.P. Badami, etc. vs State of Mysore and others, has to be given full effect. The appeals and writ petitions of the direct recruits have to succeed and those by the promotees have to fail. The Court hopes the State of Karnataka will not demote anyone who has been in a promotional post for several years in the Class II service as a consequence of this decision, but the gradation list has got to be adjusted to fit into the principles indicated in the judgment. No justification was shown as to why the State of Karnataka failed to comply with its obligation of making recruitments in accordance with the quota system. Once the State frames rules, the rules are binding on the State, and like individuals, the State has got to resulate its conduct in accordance with the rules; in fact, the State has to observe them all the more. The Court hopes that the State of Karnataka in the years ahead will comply with the quota rule with regularity so that a litigation of this type may not arise again. [907D F] Upon a suggestion of the Court, counsel for the parties filed charts, containing recast gradation list on the basis of the claims advanced before the Court showing (1) how it would be when the full claim of the promotees was granted and (2) how different it would look when the total claim of the direct recruits was allowed, and the Court notices that the process of pushing up and down would be inevitable, but would be within reasonable limits and no irreparable preju dice was apparent. [907H; 908A B] OBSERVATION: The Court was struck by the innumerable rules framed within a period of about thirty years to cover the field relating to constitution, recruitment and provi sion for other conditions of service. It is proper that service rules should be simple, making 887 reasonable provision for necessary aspects. While framing such rules, the relevant provisions of the Constitution and the laws in force hove to be kept in view. There should be no frequent alteration of the service rules. Exigencies of circumstances and unforeseen situations will certainly justify alterations. Those would be indeed rare occations. [905H; 906A B] Experience shows that legal battles are fought in court between Government servants whether an individual pitched against an individual or a group against a group; this embitters relationship inter se and often results in a switch over of attention from public duty to personal cause. Frequent litigations against the State or the higher author ities in the hierarchies of administration wipe out rever ence, loyalty and the sense of discipline, and substitute these by anger, disrespect and ram:our. In the process, fellow feeling is lost and the sense of brotherhood vanish es. The net result of all this is the deprivation of the efficiency of the bureaucratic community to serve the socie ty. The undue growth of service litigation within the four decades of independence clearly calls for these observa tions. As and when the occasion has arisen, the Court has sought to draw the attention of the State as the ' employer as also the government servants to this aspect of the mat ter. This has been done not with a view to subjecting any litigant to undue criticism but with the fond hope that it would help the problem to receive adequate attention. The Court is surprised that the words spelt out in the different judgments have fallen on deaf ears. Thereby the most power ful wing in the administrative set up is gradually moving away from its designated path. There have been cases where officers have been in court, litigating over service dis putes for about twenty five to thirty years of their career, which would mean almost three fourth of their service peri od. What would be the contribution of such officers to the public service, can be well imagined. Very often a public officer is forced into litigation as he gets no justice from his superior. There are also several instances where an officer drags the employee into litigation without a cause of action. These are matters which must be taken into ac count without further loss of time and with fortitude so that the most effective wing of the administration does not further lose its service ability. [906B G] A public servant is in the position of a trustee. Social power vests in him for rendering service to the community. Every public servant has to be cognizant to that obligation. Once the level of that consciousness grows up, there is bound to be a corresponding fail in the attitude 888 to litigate over small issues. It is for the privileged public servant as also his employer to share this philoso phy. [906H; 907C] V.P. Badami, etc. vs State of Mysore & Ors. , ; M.G. Kadali vs State of Karnataka & Ors., [1982] 2 K.L.J. 453; N.C. Sharma vs Municipal Corporation of Delhi & Ors., ; ; S.G. Jaisinghani vs Union of India & Ors., ; ; Bishan Sarup 's case, ; Bachan Singh & Anr. vs Union of India & Ors. , ; Sabraman 's case, ; Col. A.S. Iyer & Ors. vs V. Balasubramanyam & Ors., ; ; P.S. Sahal & Ors. vs Union of India, ; ; A. Janardhana vs Union of India & Ors., ; ; S.S. Lamba and Ors. vs Union of India and Ors. , ; ; G.P. Doval and Ors. vs Chief Secretary, Government of UP and Ors., ; O.P. Singla and Anr., etc. vs Union of India and Ors. , ; ; D.S. Nakara and Ors. vs Union of India, ; ; N.K. Chandan & Ors. vs State of Gujarat, ; ; Karam Pal vs Union of India; , and Dr. T.C. Siddapparadhya </s>

<s>[INST] Summarize the judgementonstrued. One should not concentrate too much on one rule and pay too little atten tion on the other, for that would lead astray and result in hardship, such construction should be avoided. [955C D] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 30373038 of 1984 From the Judgment and Order dated 12.12. 1983 of the Bombay 950 High Court in W.P. No. 1189 of 1980. S.K. Dholakia, A.S. Bhasme and A.M. Khanwilkar for the Appellant. N.B. Shetya, S.B. Bhasme, section Ramachandran, R. Ramachan dran, Maknand Adkar and Mrs. M. Karanjawala for the Respond ents. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. These two appeals by special leave are by the State of Maharashtra. They are directed against the judgment of the High Court of Bombay dated 12th January, 1983 by which the High Court issued the following two directives to the State Government: "(1) To recast the Revised/Final Sen iority List dated 20.12. 1982 vis a vis the persons shown in the category of 'Late Pass ing ' and assign them seniority strictly in accordance with Rule 2 and the other Govern ment orders referred to in Paragraph 96 of the judgment; and (2) The seniority in the Superintend ent 's cadre so fixed should also be considered as seniority for further promotions. " The background to these directives is, in outline, this: Respondents 1 to 8 are Assistant Secretaries/Section Officers/ Superintendents in different departments of the Government of Maharashtra. The State Government prescribed departmental examinations as a condition precedent for promotion to the cadre of Superintendents. The examination was required to be conducted every year, and the officials have to pass within the stipulated period. Those who could not pass within the time frame would lose their seniority but they will be promoted as and when they qualify them selves. The Government for some reason or the other could not hold the examinations every year. Particularly in 1968, 1969 & 1970, the Government did not hold the examinations. The Government, however, did not pass any order extending the period prescribed for passing the examinations, nor promoted the seniors subject to their passing the examina tion. The juniors who qualified themselves were promoted overlooking the case of seniors and seniors were only pro moted upon their passing the examination. In the cadre of Superinten 951 dents, however, the Government revised the seniority list so as to reflect the rankings in the lower cadre irrespective of the date of promotion. The validity of the revision of seniority was challenged before the High Court. The High Court conceded the power to the Government to relax the rules relating to passing of the examination in case of hardship, but refused to recognise the power of the Govern ment to give seniority to those who could not pass the examination within the time schedule. The High Court was of opinion that without specific orders of the Government relaxing the conditions of the rules, the persons could not be given seniority for 'Late Passing '. There are also other reasons given by the High Court which we will presently consider. But before that, it is important that we should have a chronology of the relevant rules and resolutions of the Government. It is as follows: On 22nd August, 1951, the Government made a resolution prescribing departmental examination for the members of the Upper Division of the Subordinate Secretariat Service, and further directing that only those persons who pass the examination should be promoted as Superintendents. The accompanying rules (The 1951 Rules) thereunder provided the procedure for passing the examination as well as the conse quences of failure to pass the examination. On 24th August, 1955, the Government framed rules (The 1955 Rules) under the proviso to Article 309 of the Constitution specifically providing power to dispense with, or relax, the requirements of the operation of any rule regulating the conditions of service of Government servants; or of any class thereof if it causes undue hardships in any particular case. On 15th January, 1962, the Government issued a circular purporting to restrict the scope of the rule permitting relaxation only in respect of travelling allowance rules, leave rules, etc. The circular also clarified that the 1955 Rules could not be invoked for conferring benefit on an individual by relaxing the conditions relating to recruitment, promotion, grant of extension of service or re employment. On 28th December, 1961, the Government made the revised rules in supersession of the 1951 Rules. They were brought into force with effect from 1st January, 1962 (the 1962 Rules). They were made appl icable to all persons recruited to the Upper Division of the Subordinate Secretariate Service on or after that date and also to those who have been in service prior to 1st Jan uary, 1962 unless they had already passed the examination under the 1951 Rules. The rules 1 to 5 are as follows: "1. Every member of the Upper Divi sion of the Subordinate Secretariat Service will be required to pass within 952 nine years from the date of his entry in the Upper Division, a departmental examination for promotion to the posts of Superintendents according to the prescribed syllabus. For being eligible to appear for the examination a candidate must have passed the Post Recruit ment Training Examination for Junior Assistant and must have also completed not less than five years ' continuous service in the Upper Division. (2) Subject to Rule 1, a candidate will be allowed to appear for the examination in three chances which must be availed of within a period of four years. This period of 4 years will not be extended for any reasons irrespective of the fact whether a candidate has availed himself of 3 chances or not during the period. Similarly no candidate will be allowed to take during this period more than 3 chances. A candidate who does not pass the examination at the end of 9 years service in the Upper Division, will lose his seniority to all those candidates who pass the examination before he passes it. (3) No persons shall be appointed to the post of Superintendent unless he has passed the Superintendents ' Examination. Provided that this rule shall not apply to short term vacancies not exceeding two months. (4) Subject to the condition of loss of seniority laid down in rule 2, a candidate will be allowed to take the examina tion in any number of chances after the com pletion of 9 years ' service. (5) The examination will be held once a year. XXX XXX XXX XXX " On December 28, 1970, proviso to above rule 3 has been added. The said proviso reads: "Provided that if the Superintendent 's Examination is not held in any year, a person who has completed 9 years service and who has not exhausted all the permissible chances, may be promoted to the post of Superintendent, provided further that he is otherwise suitable for promo tion, subject to the clear condition that he will have to pass 953 the examination at the earliest opportunity whenever it is held." "It is further clarified that promo tions to the posts of Superintendents should, in view of the above amendments, be given only after ensuring that there are no persons who have passed the Superintendents Examination earlier for being promoted to the posts of Superintendents. " We may incidentally refer to the subsequent rules made by the Government, although it is not applicable to the present case. On June 6, 1977, the Government framed the rules called "The Maharashtra Government Subordinate Service Rules, 1977". Rule 7 of the rules provides that if, for any reason, the examination is not held in any particular year, that year shall be excluded in computing the period speci fied under the rules. This is, indeed, the true reflection of the underlying concept of purpose of the earlier rules. Against this backdrop, we may now consider whether the Government was justified in re arranging the seniority by giving benefit to persons in the category of "Late Passing". We are not concerned herein about the seniority of persons in whose favour the Government has made individual orders extending the period for passing the examination. We will consider such cases a little later. For the present, we may examine the rights of those "Late Passing" where the Government has not made any specific order relaxing the conditions for passing the examination. Under the 195 1 Rules, the candidate could appear for the examination after two years of his entering into the cadre. He has three chances and he must pass within 6 years of his joining service. Under the 1962 Rules the scheme provided was slightly different. Under that scheme, candidate was allowed to take the examination only after completing five years service in the cadre. He had three chances for taking the examination and that must be availed of within four years. That means he must pass the examination within the 9 years ' service. Under both the Rules, the Government was required to hold the examination every year, but no examination was held in 1968, 1969 & 1970. This is not in dispute. For a proper appreciation of the question raised, we must first try to understand the hardship resulted by not holding the examination in 1968, 1969 & 1970. It is as follows: The candidates recruited in 1960 have lost one chance in 1968. Those recruited in 1961 are deprived of two chances in 1968 and 1969. The candidates recruited in 1962 are 954 denied of three chances in 1968, 1969 & 1970 and those of the year 1963 have lost two chances in 1969 and 1970. The last batch to lose one chance in 1970 is of the year 1964. The aforesaid Rules expressly provided power to the Government to grant more chances for passing the examination in any individual case or in class of cases. Under the 1955 Rules, the Government preserved power to dispense with, or relax the requirements of any rule regulating "the condi tions of service of government servants; or of any class thereof". In the exercise of this power, the Government could dispense or relax the operation of any rule, if it causes undue hardships in any particular case. It is need less to state that this power includes the power to relax the conditions prescribed for promotion since promotion is a condition of service. There is no restriction as to the exercise of the power or discretion. The High Court, howev er, has observed that the scope of this power has been constrained by the circular dated 15th January, 1962. The circular states that the 1955 Rules permitting relaxation cannot be utilised to relax the rules which regulate condi tions of service. It further states that the scope of the Rules should be limited only to matters relating to travel ling allowance, leave, etc. But this appears to be an exer cise in vain. The circular is an executive instruction whereas the 1955 Rules are statutory since framed under the proviso to Article 309 of the Constitution. The Government could not have restricted the operation of the statutory rules by issuing the executive instruction. The executive instruction may supplement but not supplant the statutory rules. The High Court was in error in ignoring this well accepted principle. When we turn to the 1962 Rules with the amendments made in 1970, it becomes more clear about the power of the Gov ernment to relax the conditions for passing the examination. The proviso dated 28th December, 1970 to rule 3 specifically provides that if the examination is not held in any year, a person Could be promoted to the cadre of Superintendent if he has completed nine years ' service. The only condition is that he should not have exhausted all the permissible chances. The promotion, made should be subject to the condi tion that he will have to pass the examination at the earli est opportunity whenever it is held. The benefit of this proviso was evidently not extended to any of the persons falling into the category of "Late Passing". Counsel for the contesting respondents however, urged that the proviso does not entitle the candidate to get his legitimate seniority if 955 he does not pass the examination at the end of nine years ' service. He depended upon rule 2 of the 1962 Rules which states that the candidate who does not pass the examination within 9 years ' service will lose his seniority to all those candidates who pass the examination earlier. He also argued that the proviso is only to rule 3 and not to rule 2 and the Government has no power to restore the seniority of a person who has lost it by the operation of rule 2. This is a question of construction of the rules which form part of the scheme prescribing a condition for promo tion. We do not have to reflect upon the rules of interpre tation since they are well settled. They are now like the habits of driving which have become ingrained. They come to our assistance by instinct. We are to use the different rules meticulously to give effect to the scheme as we use the clutch, brake and accelerator for smooth driving. These rules are to be harmoniously construed. We should not con centrate too much on one rule and pay too little attention on the other. That would lead us astray and result in hard ship. We must avoid such construction. Rule 2 of the 1962 Rules no doubt states that a candidate who does not pass the examination at the end of nine years ' service will lose his seniority. But this rule cannot be read in isolation as the High Court did. It has to be read along with the other rules since it is a part of the scheme provided for promotion. Rule 5 requires the Government to hold the examination every year. This rule is the basis of the entire scheme and the effect of other rules depends upon holding the examination. If examination is not held in any year, the rule 2 cannot operate to the prejudice of a person who has not exhausted all his chances. The person who has not exhausted the avail able chances to appear in the examination cannot be denied of his seniority. It would be unjust, unreasonable and arbitrary to penalise a person for the default of the Gov ernment to hold the examination every year. That does not also appear to be the intent or purpose of the 1962 Rules. If the examination is not held in any year, the person who has not exhausted all the permissible chances has a right to have his case considered for promotion even if he has completed 9 years ' service. The Government instead of promoting such persons in their turn made them to wait till they passed the examination. They are the persons falling into the category of "Late Passing". To remove the hardship caused to them the Government wisely restored their legiti mate seniority in the promotional cadre. There is, in our opinion, nothing improper or illegal in this action and indeed, it is in harmony with the object of the 1962 Rules. 956 This takes us to the question whether the Government was justified in individual cases to relax the period for pass ing the examination. It is said that the number of persons failing into this category are not more than five. In the rejoinder filed on behalf of the Government, it is stated that the Government made some orders extending the period for individuals to pass the examination on administrative grounds or on some genuine hardships. It is also stated that such orders were made upon recommendations by the respective departments and those persons passed the examination within the period extended. There is no reason to doubt the cor rectness of these statements made in the rejoinder. The power to relax the conditions of the rules to avoid undue hardship in any case or class of cases cannot now be gain said. It would be, therefore, futile for the respondents to make any grievance. In the result and for the reasons stated, we allow these appeals and in reversal of the judgment of the High Court, we dismiss the writ petitions filed by the contesting re spondents. In the circumstances of the case, however, we make no order as to costs. Y.L. Appeals allowed. [/INST]The appellant company applied for a requisite central excise licence for manufacture of goods falling under Tariff Item 68 and for the purpose of such goods L 4 licence was also furnished and also the requisite ground plans of the factory in which the various goods were manufactured. The excise authorities granted L 4 licence. The appellant claimed benefit of exemption of Notification No. 89/79 CE dated March 1, 1979. The classification list submitted by the appellant was approved by the Assistant Collector by his letter dated May 25, 1979. For the period April 1, 1979 to June 30, 1979 the appellant filed his RT 12 for assessment which was also finally assessed without any protest or objection. As the appellant claimed that his goods were wholly exempted by virtue of notification No. 89/79 CE dated March 1, 1979, the appellant wrote to the Superintendent asking for dispensation from filing RT 12 every month. The Superintendent informed the appellant that it need not file RT 12, but should inform the excise authorities monthly by means of a simple letter the total clearance effected in the month in question. Thereafter, the appellant submitted classification list in 1980, 1981 and 1982 and claimed benefit of exemption under notification No. 105/80 CE dated June 19, 1980. The Assistant Collector approved the classification list. The Central Excise Officer attached to the preventive branch visited the factory in July 1982 and examined the products manufactured by the appellant. In January 1983, a show cause notice was issued to the appellant asking it to show cause as why excise duty should not be demanded under Tariff Item 52 in respect of the piece of nuts manu 871 factured and removed by the appellant during the period April 1, 1981 to July 19, 1982 without payment of appropri ate excise duty thereon, and also to show cause why penalty should not be imposed for failure to obtain the requisite L 4 licence under Tariff Item 52 and to show cause why the material seized on August 26, 1982 should not be confiscat ed. The appellant showed cause and drew the attention of the authorities to the fact that the goods in question were not nuts but end products or connectors for lubricating purposes and as such were integral parts of Diesel Engine Pipes failing under Tariff item 68. The Collector of Central Excise passed orders on July 16, 1984 holding that fittings were nuts classifiable under Tariff Item 52, and that appropriate duty on the clearance effected by the appellant during the period April 1, 1981 to July 19, 1982 should be paid and the seized goods were liable to confiscation but in lieu thereof a redemption fine of Rs.4,000 could be paid. The Collector also imposed a penalty of Rs. 1 lakh. The appellant went up in appeal before the Tribunal, which partly allowed the appeal and partly upheld the order of the Collector. With regard to classification of the different fittings was concerned, it was held that the classification should have been as nuts under Tariff Item 52 of the Central Excise Tariff. It further held that the appellant was guilty of suppression and therefore rejected the submission of the appellant that the show cause notice was barred by time. It, however, reduced the amount of Penalty imposed by the Collector from Rs. 1 lakh to Rs.50,000. The appellant appealed to this Court by special leave. In the appeal to this Court, on the question whether the goods manufactured by the appellant were end products or connectors for lubricating purposes and as such were inte gral parts of the Diesel Engine Pipes failing under Tariff Item 68 as claimed by the appellant or nuts classifiable under Tariff Item 52. Dismissing the appeal, HELD: 1. The Tribunal was right in classifying the goods under Tariff Item 52 of the Central Excise Tariff and in upholding the demand of the duty for a period beyond six months as contemplated by section 11 A of the Act. The Tribunal duly gave benefit of the exemption notification in respect of the goods which had been exported. [878F] 872 2(a) The Tribunal was right in upholding the demand of duty for a period beyond six months as contemplated by section 11 A of the Act. [878F] 2(b) Whether there was any fraud, collusion, wilful mis statement, or suppression of fact, for the department to be justified to claim duty beyond a period of six months under the proviso to section 11 A of the Act is a question of fact. [878B] 2(c) The appellant. was both buying and selling these nuts and as such there was no conceivable reason why these nuts were described as end fittings in the declaration to the Department. In the declaration it was so described. [878C D] 2(d) The fact that the officers of the Department visit ed the factory of the appellant and they should have been aware of the production of the goods in question, was no reason for the appellant not to truly and properly describe these goods. [878D E] 2(e) Not only did the appellant, as found by the Tribu nal, not described these goods properly, but also gave a misleading description. [878E] 3. The Tribunal on appraisement of all the materials, held that these were nuts manufactured by the appellant. Such finding cannot be said to be wrong or perverse. It was arrived at after giving opportunity to both the parties and considering all relevant materials. There is no cogent ground to sustain any challenge to the findings of the Tribunal. The Tribunal has considered all the relevant evidence, and not ignored any relevant piece of evidence. It had applied the correct principle of law applicable to the determination of the question. It has also applied the test of commercial identity of the goods and examined the matter from the angle of the conduct of the appellant. These find ings of the Tribunal cannot be assailed in appeal under section 35L of the Act. [875E; 877B C] 4. The Tribunal having come to the conclusion that there was deliberate suppression or wrong statement, it follows automatically that the Tribunal was justified in upholding the imposition of penalty. The quantum of penalty was a matter which the Tribunal was free to fix as it thought fit, as the justice of the case demanded. Nothing has been shown that the conclusion was bad. [878G H; 879A] 873 </s>

<s>[INST] Summarize the judgementivil Appeal No. 679 of 1978. From the Judgment and Order dated 30.9. 1976 of the Madhya Pradesh High Court in Misc. Petition No. 63 of 1976. S.K. Agnihotri for the Appellants. Nemo for the Respondent. The Judgment of the Court was delivered by 265 SABYASACHI MUKHARJI, CJ. This is an appeal by special leave from the judgment and order of the High Court of Madhya Pradesh, dated 30th September, 1976 in Miscellaneous Petition No. 63 of 1976. The respondent was the owner of a truck which was seized by the Police Sorwa on 10th December, 1974 for alleged con travention of the provisions of the (hereinafter called 'the Act ') in connection with Crime No. 42 of 1972. The respondent made applications under Articles 226 and 227 of the Constitution of India, to the High Court to quash the orders of the Judicial Magistrate First Class, Alirajpur and the Sessions Judge, Jhabua re spectively rejecting. his request for the return of the vehicle on furnishing security and to quash the order of the District Collector and restrain him from proceeding further in pursuance of the notice issued by him under Section 68 of the Act for confiscation of the vehicle and ask for return of the vehicle, or in the alternative to direct the District Judicial Magistrate to dispose of the application in accord ance with law The High Court after setting out the facts addressed itself to three questions, namely, (1) whether Section 6A of the as amended by the Amendment Act No. 30 of 1974 was prospective or retrospective? (2) whether in the facts and circumstances, the criminal Court had jurisdiction to entertain an application under section 523 read with section 516A of the Criminal Procedure Code for the return of the vehicle seized by the Police pending final decision of the criminal case? and (3) whether the respondent was entitled on the merits for the return of the vehicle as prayed for? On the first question, the High Court was of the view that it was a fundamental rule of law that no Statute should be construed to have a retrospective operation unless such a construction appeared very clearly in the terms of the Act, or arose by necessary implication, direct or indirect. The High Court referred to several decisions which it is not necessary for us to refer to. It is well settled that the normal rule of construction is that a provision in a statute is prospective but not retrospective, however, in the case of statutes which are merely declaratory or which relate to only matters of procedure or of evidence, it may have retro spective effect if there are indications to that effect or the manifest purpose compels one to construe the Act as such. On an examination of the statute and the provisions referred to herein, the High Court found that there was no retroactivity. We are 266 of the opinion that for the reasons given by the High Court, it is difficult to accept the position that there was no retroactivity. Indeed, Mr Deshpande appearing for the appel lant did not seriously challenge this finding of the High Court. There is no dispute in this case that the contraven tion of the provisions of the Act is alleged to have taken place in the instant case on the night of 15th March, 1972. The vehicle was seized on 10th December, 1974. The High Court examined Section 4 of the Amendment Act, along with Section 6A of the Principal Act and came to the conclusion that there was no retrospective effect. We are of the opin ion that the High Court was right in holding that Section 4 of the Amendment Act, 1974 was only prospective and not retrospective. Not only that there were no specific words to indicate the provisions of retrospective effect, but the positive provisions of sub section (2) of section 1 were to the effect that the amendment must be deemed to have come in effect on a particular date, is a pointer and that puts the matter beyond doubt. The provisions of section 6A as it stood on 15th March, 1972 only were applicable to the present case and section 4 of the Amendment Act, 1974 could not, therefore, be applied as the Act was not in force on the date of offence. The challenge to the High Court order on this aspect cannot, therefore, be entertained. It was next contended by the respondent before the High Court that the Criminal Court was empowered under section 7 of the Act to confiscate the vehicle after due and proper inquiry and therefore the proceedings by the District Col lector under section 6A and Section 6B of the Act should be quashed. Reliance was placed on several decisions and au thorities. Our attention was drawn to the decision of the Mysore High Court in the case of The State vs Abdul Rasheed, AIR ; Sri Bharat Mahey & Ors. vs The State of U. P. & Ors., as well as the decision of the learned Single Judge in State of M.P. vs Basant Kumar, [1972] JLJ Short Note No. 99. On a consideration of the relevant authorities, the High Court came to the conclu sion that the criminal Court had jurisdiction to deal with the matter. Mr. Deshpande sought to argue that in view of the enactment of the provisions of Section 6A as well as section 7 of the Act, it cannot be held that the criminal Court continued to retain jurisdiction. He submitted that in view of the enactment of these provisions, it would be useless to hold that the criminal Court continued to retain jurisdiction, otherwise the very purpose of enacting section 6A read with section 7 would be defeated. We are, however, unable to accept this contention because normally under the Criminal Procedure Code, the Criminal Courts of the country have the jurisdiction and the ouster of 267 the ordinary criminal Court in respect of a crime can only be inferred if that is the irresistible conclusion flowing from necessary implication of the new Act., In view of the language used and in the context in which this language has been used, we are of the opinion that the High Court was right in coming to the conclusion that the Criminal Court retained jurisdiction and was not completely ousted of the jurisdiction. In that view of the matter, the High Court was therefore right in passing the order under consideration and in the facts and circumstances of the case to return the vehicle to the respondent on furnishing the security In the premise the appeal must fail and is dismissed. There win, however, be no order as to costs. N.P.V. Appeal dismissed. [/INST]The petitioner filed a writ petition in the High Court challenging the detention of her husband, Syed Ali Raza Shafiq Mohammed, under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Sub stances Act, 1988. The detenu was then already in jail as he was involved in a case under the Act, and his bail applica tion in that case had been rejected. 3"he Division Bench of the High Court dismissed the writ petition. Before this Court in the Special Leave Petition it was inter alia contended on behalf of the detenu that: (i) the mere possibility of the detenu 's release on bail was not enough for preventive detention unless there was material to justify the apprehension that his detention would be neces sary in order to prevent him from engaging in illicit traf ficking in narcotic drugs and psychotropic substances, in case of his release on bail; (ii) the detention orders of Rai Chand Shah and Jai Lal Vora, who were arrested and detained in the same raid, having been struck down by the High Court on the ground that the medical report in respect of the injuries sustained by Rai Chand Shah was placed in a truncated form before the detaining authority, the detention order of the detenu should also be set aside as it suffered from the same vice; (iii) though the declaration was issued under Sec. 10(1) of the Act on 20.1.1989 but the same was served on the detenu on 10.2.1989 after an unexplained delay of 21 days; and (iv) there was in an inordinate and unex plained delay in considering the representations made by the detenu. On the other hand, it was contended on behalf of the respondents that: (i) it would depend on the facts and circumstances of each case whether a detention order was to be passed or not in case of a person who was already in custody; (ii) the detaining authority could take into ac count the nature of the antecedent activities of the detenu in order to 269 arrive at the conclusion that it was likely that after his release from custody he would indulge in criminal activities and it was necessary to detain him in order to prevent him from engaging in such activities; and (iii) in the present case there was complete awareness in the mind of the detain ing authority that if he was released on bail he was likely to indulge in the criminal activities. Dismissing the special leave petition, this Court, HELD: (1) The material placed before the detaining authority and the facts mentioned in the grounds of deten tion clearly go to show that the detaining authority was fully aware that the bail application filed by the detenu had been rejected. The detaining authority was also con scious of the fact that the two other detenus who were arrested and detained in the same raid had already been released on bail. [277B C] (2) The antecedents of the detenu which were clear from his own statement went to show that he was initiated in drug trafficking in 1984 and employed as a delivery hay on Rs.30 per day and within a short span of four years had himself started buying and selling Narcotic Drugs and amassed huge movable and immovable properties in Bombay. In the present raid itself hereoin and Mandrax tablets worth Rs. 1,13,42,000 were seized from the ownership and possession of the detenu. [277C D] (3) The detaining authority after taking into consider ation the material placed before him, arrived at the conclu sion that the detenu being in judicial custody may under the normal law of the land he granted bail and be in a position to continue to pursue his nefarious activities [277E] (4) The detaining authority in these circumstances considered it necessary to invoke the law of preventive detention under the Act to prevent the detenu from indulging in prejudicial activities in future. In these circumstances, it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody [277F] (5) The facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention in the case of a detenu who is already in jail. [273G] N. Meera Rani vs Government of Tamil Nadu, JT 478; Dharmendra Sugan Chand Chelwat vs Union of India, ; ; Sanjeev Kumar Aggarwal Union of India, JT ; Smt. Shashi Aggarwal vs State of U.P., JT and Ramesh Yadav vs District Magistrate, Etah, , referred to. (6) A perusal of the orders of the High Court quashing the detention orders of Rai Chand Shah and Jai Lal Vora shows that the basis for the detention orders were their confessional statements. The High Court in this regard had observed that the confessional statement of Rai Chand Shah which also formed integral and vital part of the grounds of detention of Jai Lal Vora being product of threats and injuries sustained by him and further his medi cal report having been placed in truncated form before the detaining authority, their detention became invalid. But, so far as the case of the present detenu is concerned, his detention was based on entirely distinct and separate mate rials including his own confessional statements. The basis of the grounds of detention of the present detenu is not rounded on the truncated form of medical report of injuries sustained by Rai Chand Shah. Thus the present detenu cannot take advantage of any orders passed by the High Court de claring detention orders of Rai Chand Shah and Jai Lal Vora as illegal. [278A E] (7) So far as the provision of Sub Sec. (3) of Sec. 3 of the Act is concerned, it clearly provides that for the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in pursuance of a deten tion order of the grounds on which the order has been made shah be made as soon as may he after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. This provision thus relates to the communication 01 ' the grounds of detention. [279B C] (8) The principle of five days and fifteen days as provided in Sub section (3) of Section 3 of the Act relating to communication of grounds of detention cannot be applied in respect of declaration issued under Sec. 10(1) of the Act. [280F] (9) There is no force in the contention that there was an inordinate delay in considering the representations submitted by the detenu. The High Court has given adequate and detailed reasons in holding that the delay has been explained by the counter affidavit filed by the respondents. [281A B] 271 </s>

<s>[INST] Summarize the judgementCivil Appeal No. 1416 of 1981. From the Judgment and Order dated 28.12.1975 of the Central Govt. Labour Court at Calcutta in Application No L.C. 28 of 1976. M.K Ramamurthi and Amlan Ghosh for the Appellants. G.B. Pai, V.S. Desai, D.N. Mukherjee, N.R. Chaudhary and R. Mukherjee for the Respondent. KHALID, J. This appeal, by special leave, by two employees of the United Bank of India at Calcutta, is directed against a decision given by the Central Government Industrial Tribunal 1059 cum Labour Court, Calcutta, on 28th December, 1979, in an application made under Section 31 C (2) of the . The claim made by them related to the bonus paid on the eve of Pooja every year which according to them was customary in nature, irrespective of profit or loss. The Labour Court after considering the evidence placed before it held that the bonus claimed could not be characterised as customary since it did not answer to the requirements of law to be customary bonus and that in the absence of an existing right to customary bonus or bonus founded on an implied agreement as a condition of service, the application made under section 33 C(2) was not maintainable and accordingly dismissed the same 3. The petitioners ' claim was attempted to be Supported by the fact that they were given one month 's pay as bonus for the years 1959 to 1963, one and half months ' for the year 1964 and two months ' pay for the years 1965 to 1974. Their further case was that this bonus was paid every year on the eve of Pooja at the rate of pay as on 1st September of the respective year and was unrelated to any profit made by the company. The payment of such bonus consecutively for 16 years without any break and unrelated to profit or loss, without its sanction either in law or any award or any written settlement, payable on the eve of the Pooja developed into a condition of service giving rise to a right and an expectancy which in law assumed the characteristics of customary bonus. This claim was resisted by the Bank on the ground that the application itself was not maintainable since the alleged right pleaded by the workmen was not a condition of service and that such a right did not exist in fact also. The conditions of service of the employees of the Bank are governed by various awards and settlements. Though there were agreements entered into between the bank and its employees on several matters there was no agreement at any time on the question of payment of bonus. Bonus was paid to its employees every year as a result of demand raised separately by them and in respect of every year there was a separate agreement with regard to bonus. It was further stated that the bonus paid was related to profit and not based on any custom 4. The Labour Court considered the correspondence that passed between the BANK and its employees and came to the con 1060 clusion that a right to customary bonus in favour of the employees of the Bank did not exist. The application was dismissed holding that on the basis of the material on record, there was no existing right to customary bonus and that the Labour Court could not either create or declare a right which was not in existence to stretch its jurisdiction under Section 33 C(2) of the . It is the correctness of this finding that we are called upon to decide in this appeal. The Counsel on both sides took us through the various letters that passed between the employees of the Bank and the Bank and brought to our notice the past history relating to the payment of bonus for a considerably long time. It is seen that the Bank had been paying bonus at the rate of one month 's salary from 1959 to 1963. This is period prior to the Bonus Act which came into force in 1965. The payment continued even after coming into force of the Bonus Act. We find from the materials on record that the above payments were not made by the bank unilaterally without any demand, unrelated to profit or loss as a customary bonus. It is true that payments were made on the eve of the Pooja. The bonus so paid was not called Pooja bonus except in 1972 when the words 'Pooja ' was mentioned at the time when the payment was made. The bonus in question was paid for the years 1958 and 1959 as a result of protracted negotiations. Bonus for the year 1962 was paid at the rate of one month 's pay on the basis of Desai award. This rate continued for the year 1.963 also. In 1964, it was at the rate of 45 days ' pay. This rate was further increased for the year 1965 to two months ' pay and this we find was as a result of the discussions held on the subject between the management and the union from time to time. The two months ' rate continued till the year 1969. In 1969, the Bank was nationalised and till 1971 bonus at the rate of two months ' basic salary was sanctioned by the Ministry of Finance and was accordingly paid to the employees. In 1972, the General Secretary of the Union claimed by a letter that the employees were getting bonus at the rate of two months ' pay at the time of Pooja, irrespective of profits and asked for an enhancement of rate of bonus. Discussions were initiated and ultimately the Bank agreed to pay an additional bonus for the year 1972 of an additional four days pay and for the year 1973 two months and 12 days and for 1974 two months and 271/2 days. We have ourselves gone through the letters which are on 1061 record that passed between the parties. The correspondence shows . that the bonus was paid from year to year pursuant to negotiations that took place between the Union of the employees and the Bank and that the rates of bonus were not uniform, but were fluctuating. The Bank had a definite case that bonus was paid out of the profits made or in anticipation of profits. The claim of the Union that it was customary and unrelated to the profits of the Bank was attempted to be made at a belated stage of the case. Before deciding the case on the above materials, it would be useful to refer to the decision of this Court in Vegetable Products Ltd. vs Their Workmen(l) where this Court has laid down the test to determine what exactly is customary or festival bonus. The tests laid down by this Court are: (I) that the payment has been made over an unbroken series of years; (2) that it has been for a sufficiently long period the period has to be longer than in the case of an implied term of employment; (3) that it has been paid even in years of loss and did not depend on the earning of profits; and (4) that the payment has been made at a uniform rate throughout. From the materials disclosed in the records, reference to which was made by us earlier, it will be evident that the bonus paid in this case does not satisfy the requirements laid down by this Court detailed above. It may be true that the payments were made in the month of September or thereabout every year, but that by itself will not make the bonus paid a customary Pooja bonus. The rate has not been uniform. The management has at all times taken the definite stand that the payment was related to profits and that it was in anticipation of making profit. The payments were made at all times pursuant to demands made by the employees. We would like to refer to only two or three letters to fortify our conclusion that the payment was pursuant to the demands of the employees. In the letter dated 20th September, 1958, addressed to the General Secretary, United Bank of India 's employees Association, the opening sentence reads as follows: "With reference to the several demands as stated in your letter dated we have agreed as follows: (1) 1062 (1) Annual bonus for the year 1958. In the letter dated September 3, 1968, written to the President of the Association and marked as confidential, it is stated that "the Bank tried to impress upon the President through a number of discussions to persuade him to revise the present system of paying bonus in September to a system after the year 's results are available and to pay the minimum as provided for in the Bonus Act then and the balance if any after the year 's profit figures are known and since the Bank did not propose to strain its relationship with the employees and as the request made was not acceptable to the employees, it was decided to pay the bonus at the rate of two months ' basic salary, as existing on 1.9.1968. " In the letter dated December 29, 1972, addressed to the General Secretary of the Association it is stated that in case of this Bank, bonus is paid on the basis of the agreement arrived at between your association and the management equivalent to two months ' basic pay. " Reference may also be made to a letter dated 17th April, 1973, by the Association to the Chairman and Managing Director of the Bank which reads as follows: ". As you know, bonus is being paid at the present rate of two months basic pay as on September 1st each year since 1964, when after a continuous struggle the original pre amalgamation rate. was restored gradually, beginning with 15 days basic pay in 1958. " In the letter addressed to the General Secretary (dated 26th August, 1973) reference is again made to the demands made by the association for additional bonus for 1972 and to the subsequent discussions and agreement for payment of bonus at the rate of two months and 12 days pay as on 1.9.1973. From the above letters it is evident that bonus was paid as a result of long discussion at every stage No bonus was paid for the years 1950 to 1958. From 1959 onwards, the rate has not been uniform. There is no evidence to show that this payment was unrelated to the profits. The letters sent by the management clearly indicated that bonus payment was related to the profits and the Bank always wanted its employees to wait for the financial position for computation of the bonus payable. The 1063 evidence in this case does not also justify inference of an implied agreement on the part of the Bank to pay bonus of a customary nature at the time of Pooja, without any relation to profits as a condition of service. The Labour Court has noted the fact that it was nobody 's case that bonus was ever paid in any year of loss or that there was any year of loss and that the bank had consistently taken the position that bonus was paid out of the year 's profit in anticipation. There is one other aspect of the claim now put forward which cannot be lost sight of, which affords an additional reason to reject the contention of the appellants. The respondent is a nationalised bank. Roughly in all there are 25 nationalised banks. The concept of any customary bonus is unknown to nationalised banks. All the nationalised banks are wholly owned undertakings of the Government of India in the matter of bonus, the employees of the nationalised banks must be dealt with on a common denominator. If therefore the contention of the appellant were to prevai the employees of the respondent, which is only one amongst many nationalised bank, would enjoy an undeserved advantage compared to their counterparts in other nationalised banks and even in the Other branches of the respondent bank and may become a cause of disharmony and inequality. Therefore in larger public interest also, the demand for customary bonus otherwise found to be untenable, must be negatived. On a careful consideration of the facts and circumstances of the case disclosed, we find that the appellants have not succeeded in persuading us to disagree with the findings of the Labour Court or to satisfy us that the bonus that they received had the characteristic of customary bonus as known to law and that therefore they were entitled to the quantification of that amount under Section 33 C (2) of the , on the basis of the existence of a legal right in them. The appeal has, therefore, to fail and is dismissed with out any order as to costs S.R. Appeal dismissed. [/INST]"Excise duty" as defined in section 2(10) of the A.P. Excise Act, 1968 is leviable on the manufacture of liquor and the manufacturer cannot remove the same from the distillery unless the duty imposed under the Excise Act has been paid. Buyers of Indian liquor from the appellant 's distillery obtain distillery passes for release of liquor after making payment of excise duty and present the same at the distillery there upon the bill of sale or invoice is prepared by the distillery showing the price of liquor but excluding excise duty. The appellant 's books of account also did not contain any reference to excise duty paid by the purchaser. The appellant, there ore, paid sales tax under the Andhra Pradesh General Sales Tax Act, 1957 on the basis of turnover which excluded excise duty. This position was not accepted by the Sale Tax Authorities and the matter was contested right upto the Supreme Court. The Supreme Court in Mc Dowell & Company Ltd. etc. vs Commercial Tax Officer VIIth Circle, Hyderabad, etc. reported in ; held that the Sales Tax Authorities were not competent to include in the "turnover" of the appellant, the excise duty which was not charged by it, but was paid directly to the Excise 792 Authorities the buyers of the liquor, inasmuch as the excise duty did not go into the common till of the appellant and did not become a part of the circulating capital. After the judgment of the Supreme Court Rules 76 and 79(1) of the A.P. Distillery Rules were suitably amended with effect from August 4, 1981. Amended Rule 76(a) provides that "No spirit of liquor" manufactured or stored shall be removed unless the Excise duty specified in rule 6 has been paid by a holder of D 2 licence before such removal and the amended rule 79(1) provides that on payment of the excise duty by the holder of D 2 licence a distillery pass for the removal of spirit fit for human compensation may be granted in favour of any of the named persons therein. The appellant, being a D 2 licence holder was served with a notice, on the basis of the amended provisions, by the respondent proposing to include a sum of Rs. 4,49,09,532.40 representing the excise duty paid directly by buyers of appellants ' liquor in the appellants, turnover for a part of the year 1982 83, Thereupon, the appellant again moved the High Court for quashing the said notice. The High Court considered the effect of the amended Rules and held that the primary liability to pay excise duty was indisputably of the holder of the D 2 licence. The High Court dismissed the writ petition on the findings (a) that the turnover related to liquor; and (b) that the excise duty which was payable by the appellant but had by amicable arrangement been paid by the buyer was actually a part of the turnover of the appellant and was, therefore, liable to be so included for determining liability for sales tax. When leave was granted by a Division Bench of the Supreme Court to appeal against the judgment of the High Court, the correctness of the decision in appellants ' case reported in ; , was doubted and the matter was referred to a larger Bench. Dismissing the appeal, the Court, ^ HELD: (Per Chinnappa Reddy, J. (concurring) 1.1 Much legal sophistry and Judicial exposition both in England and India have gone into the attempt to differentiate the concepts of tax evasion and tax avoidance and to discover the invisible line supposed to exist which distinguishes one from the other. Tax avoidance, it seems, is legal; tax evasion is illegal. Though initially the law was, and law still is, there is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothings to be implied", during the period between the two world wars the theory came to be propounded and developed that it was perfectly open for persons to evade (avoid) income tax if they could do so legally. In the wake of World War II huge profiteering and racketeering became the order of the day, something which persists till today but on a much larger scale. Therefore, the attitude of the entire English Courts towards avoidance of tax perceptibly changed and hardened, The march of the law against Tax avoidance schemes des 793 cribed as magic performance by lawyer turned magician continued and then came a significant departure from the West mininister and the Fisher Executors principle in 1982 and finally "the ghost of West minister" has been exercised in England. Thus, in the very country of its birth, the principle of West minister has been given a decent burial and in that very country where the phrase "tax avoidance" originated the judicial attitude towards tax avoidance has changed and the smile, cynical or even affectionate though it might have been at one time, has now frozen into a deep frown. The courts are concerning themselves not merely with the genuineness of a transaction, but with the intended effect of it for fiscal purposes. No man now can get away with a tax avoidance project with the mere statement that there is nothing illegal about it. [797 G H, C, 807 A D] Inland Revenue Commissioners vs Fishers Executors, ; ; Inland Revenue Commissioners vs Duke of West minister, [19361 AC 1; Lord Howard De Waldan vs Inland Revenue Commissioners, ; Latilla vs Inland Revenue Commissioners, Griffiths vs J.P. Harrizan Ltd. ; Morgan vs Inland Revenue Commissioners, [1963] Chancery 438; Public Trustee vs Inland Revenue Commissioners, [1965] Chancery 286; Campbell vs Inland Revenue Commissioners, [1967] Chancery 651; Greenberg vs Inland Revenue Commissioners, [1971] 3 All E.R. 136; W.T. Ramsay vs Inland Revenue Commissioners, 11982] AC 300: Inland Revenue Commissioners vs Burmah Oil Company Ltd, 1982 STC 30: Furniss vs Dawson, ; ; Commissioner of Income tax, Gujarat vs A. Raman & Co., [1968]1 SCR 10; Commissioner of Income tax. Gujarat vs Kharwar, referred to. 2. The evil consequence of tax avoidance are manifold: (i) there is substantial loss of much needed public revenue particularly in a welfare State like ours; (ii) there is the serious disturbance caused to the economy of the country by the piling up of mountains of blackmoney directly causing inflation; (iii) there is "the large hidden loss" to the community by some of the best brains in the country being involved in the perpetual war waged between the tax avoider and his expert team of advisers, lawyers and accountants on the side and the tax gathered and his perhaps not so skillful, advisers on the other side; (iv) there is the "sense of injustice and inequality which tax avoidance arouses in the breasts of those who are unwilling or unable to profit by it"; and (v) last but not least is the ethics (to be precise, the lack of it) of transferring the burden of tax liability to the shoulders of the guideless, good citizens from those of the "artful doggers". [808 H, 809 A C] 3. The proper way to construe a taxing statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally or liberally, nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax, and whether the transaction is such that the judicial process may accord its approval to it. [809 E F] Wood Polymer Ltd. vs Bengal Hotels Limited, referred to. 794 4. It is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is upto the Court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of 'emerging ' techniques of inter pretation, to expose the devices for what they really are and to refuse to give Judicial benediction. [809 G H 810 A] W.T. Ramsay vs Inland Revenue Commissioners, ; ; Inland Revenue Commissioners vs Burmah Oil Company Ltd. 1982 STC 30; Furniss vs Dawson, [1984] I All E.R. 530 quoted with approval. HELD: (Per Ranganath Misra, J.) 1. Tax planning may be legitimate provided lt is within the framework of law, Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges. [823 H, 824 A] Commissioner of Income tax vs A. Raman & Co. (1968) 67 ITR II SC J Commissioner of Income tax, Gujarat II vs B.M. Kharwar, SC; Bank of Chettinad Ltd. vs Commissioner of Income tax, ; Jiyajeerao Cotton Mills Ltd. vs Commission of Income Tax and Excess Profits Tax, Bombay, Commissioner of Income Tax vs Sakarlal Balabhai referred to. Latilla vs I.R. quoted with approval. 2.1 The incidence of excise duty is directly relatable to manufacture but its collection can be deferred to a later stage as a measure of convenience or expediency. [815 A B] The Province of Madras vs M/s. Boddu Paidanna & Sons R.C. Jall vs Union of India, [1962] Suppl. 3 SCR 436; Re. Sea Custom Act, [1964) 3 SCR 787; M/s Guruswamy & Co. etc. vs State of Mysore & Ors. , ; Jullundur Rubber Goods Manufacturers ' Association vs Union of India & Anr. ; ; A.B. Abdul Kadir & Anr. vs State of Kerala, referred to. 2.2 On an examination of the provisions of the A.P. Excise Act, the Rules were framed thereunder and the pronouncements of the Supreme Court, it is clear, that the conclusion of the Court in Mc Dowells & Company Ltd. etc. vs Commercial Tax Officer, Vllth Circle, Hyderabad etc.; , at page 921 of [1973] 1 SCR, that intending purchasers of the Indian liquors who seek to obtain distillery passes are also legally responsible for payment of the excise duty is too broadly stated. The "duty wag primarily a burden which the 795 manufacturer had to bear and even if the purchasers paid the same under the Distillery Rules, the provisions were merely enabling and did not give rise to any legal responsibility or obligation for meeting the burden. [815 B D] The change in Rule 76 of the AP Distillery Rules has clearly affirmed the position that liability for payment of excise duty is of the manufacturer and the provisions of rules 80 to 84 do not militate against it. These rules do not detract from the position that payment of excise duty is the primary and exclusive obligation of the manufacturer and if payment be made under a contract or arrangement by any other person it would amount to meeting of the obligation of the manufacturer and nothing more. [815 D F] 2.3 The definition of "turnover", in section 2(s) of the A.P. General Sales Tax Act, which is to the effect. namely 'the total amount set out in the bill of sale (or if there is no bill of sale, the total amount charged) as the consideration for the sale or purchase of goods (whether such consideration be cash, deferred payment or any other thing or value) Including any sums charged by the dealer for anything done in respect of goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description, name or object thereof" clearly indicates that the total amount charged as the consideration for the sale is to be taken into account for determining the turnover. Where a bin of sale is issued (and obviously the bill has to state the total amount charged as consideration), the total amount set out therein is to be taken into account. In every transaction of sale, there is bound to be a seller at one end and a buyer at the other and transfer of title in the goods takes place for a consideration. [815 H,816 A C] 2.4 Excise duty though paid by the purchaser to meet the liability of the appellant, is a part of the consideration for the sale and is includible in the turnover of the appellant. The purchaser has paid the tax because the law asks him to pay it on behalf of the manufacturer. Here, admittedly, the bills issued by the appellant did not include the excise duty; Payment of excise duty is a legal liability of the manufacture, its payment is a condition precedent to the removal of the liquor from the distillery and payment by the purchaser is on account of the manufacturer. According to normal commercial practice, excise duty should have been reflected in the bill either as merged in price or being shown separately. As a fact, in the hands of the buyer the cost of liquor is what is charged by the appellant under its bill together with excise duty which the buyer has directly paid on seller 's account. The consideration for the sale is thus the total amount not what is reflected in the bill. [818 C F] 2.5 True, the excise duty component of the price would not be an addition to the coffers of the dealer, as it would go to reimburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser, There is no other manner of liability, statutory or 796 otherwise, under which the purchaser would be liable to pay the amount of excise duty to the dealer. And on this reasoning, it would make no difference whether the amount of excise duty is included in the price changed by the dealer or is shown as a separate item in the bill, The position is not different when under a prior agreement, the legal liability of the manufacturer dealer for payment of excise duty is satisfied by the purchaser by direct payment to the excise authorities or to the State exchequer. [816 G H, 817 A D] 2.6 The conclusion reached in the appellants ' case in ; on the second aspect of the matter namely, when the excise duty does not go into the common till of the assessee and it does not become a part of the circulating capital, it does not constitute turnover, is not the decisive test for deter mining whether such duty would constitute "turnover". The relevant consideration is not whether the law permits the incidence of the duty to be passed on to the purchaser but whether there is a prohibition against passing of it. If there is no bar, the incidence would be passed on to the purchaser in accordance with normal commercial practice. [819 A C 821 B C] The Province of Madras vs M/s. Boddu Paidanna & Sons, ; RC Jall vs Union of India, [1962] Suppl. 3 SCR 436; Re. Sea Customs Act; , ; M/s, Guruswamy & Co. etc. vs State of Mysore & Ors, ; jullundur Rubber Goods Manufacturers ' Association vs Union of India & Anr. ; ; A.B. Abbul Kadir & Ors. vs State of Kerala, referred to. Hindustan Sugar Mills vs Rajasthan State, [1979] I SCR 276 applied. Paprika Ltd. & Anr. vs Board of Trade, []944] All. E.R. 372; Love v, Norman Wright (Builders) Ltd. [1944] I All E.R. 618 quoted with approval. M/s George Oakes(P) Ltd. vs The State of Madras, ; , Anand Swarup Mahesh Kumar vs The Commissioner of Sales Tax, ; discussed and distinguished. 3.A stand which has not been taken in the writ petition before the High Court cannot be allowed to be taken in the Supreme Court. Here the contention based on item 26 of the amended First Schedule to the Sales Tax Act that the appellant had already paid tax on the basis of 50 p. in the rupee on the fooling that the consideration for its liquor did not include duty of excise pay able under the Excise Act and the appellant cannot, therefore, be made liable for sales tax on a different footing cannot be sustained. Such a stand had not been taken in the writ petition before the High Court and there has been no 797 factual examination of the position as to whether the classification indicated is not intended to cover a totally different situation. Further for resolving the dispute as to whether excise duty is a part of the turnover, reference to the Schedule is indeed wholly irrelevant. [820 A D] George Oakes (P) Ltd. & Ors. vs The State Madras, 13 STC 98, distinguished. </s>

<s>[INST] Summarize the judgementN: Criminal Appeal Nos. 286 292 of 1981. Appeals by special leave from the Judgment and Order dated the 24th April, 1980 of the Punjab & Haryana High Court in Criminal Misc. Nos. 196, 198, 1565, 1567, 1569, 1571 and 1573 M/80. D.D.Sharma for the appellant K.C. Dua for the Respondents (Not present) The Judgment of Court was delivered by VENKATARAMIAH. The above Criminal Appeals by Special leave are filed against a common judgment delivered on April 24, 1980 by the High Court of Punjab and Haryana in Criminal Misc. Nos. 196, 198, 1565, 1567, 1569, 1571 and 1573 M of 1980. By its judgment under appeal the High Court has quashed certain criminal proceedings instituted in different Magistrates ' courts against different parties for violation of section 7 (i) of the (hereinafter referred to as 'the Act '). Since the facts in all these cases are more or less the same, we shall briefly state the facts in one of them i.e. Criminal Misc. No. 196 M of 1980 on the file of High Court filed by Daljit Vig. Works Manager, Kishan Chand & Co. Oil Industry Ltd., Manufacturers of Vanaspati at Ludhiana in which he had prayed for quashing the criminal proceedings which had been initiated by a complaint filed by the Government Food Inspector, District Faridkot. In that case the complainant alleged that when he visited the premises of Darshan Lal (Accused No. 1) on July 30, 1979 he found that Darshan Lal had in his possession for purposes of sale about twenty sealed tins each containing 16.5 K. G. of crown vanaspati and he demanded a sample of crown vanaspati by serving a notice on Darahan Lal in the form prescribed under the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as 'the Rules '). Thereafter he purchased 1.5 K.G. of crown vanaspati after opening a sealed tin for analysis by paying him Rs. 15/ . The sample was divided into three equal parts and put into three dry and cleaned bottles which were labelled and duly closed and sealed. One of the bottles containing the sample was sent to the Public Analyst, Punjab in a sealed container, through a special messenger alongwith a memorandum (Form No. VII) containing the specimen of the seal and the 717 remaining two bottles were deposited with the Local Health Authority, Faridkot in accordance with the Rules. He also seized the entire stock of vanaspati under section 10 (4) of the Act. After the receipt of the Report of the Public Analyst dated August 24, 1979 he filed the complaint annexing the Report as an enclosure to it. The said Report stated that on analysis he (the Public Analyst) found that the sample sent to him did not contain sesame oil at all whereas vanaspati was required to contain not less than 5% by weight of sesame oil. The three accused named in the complaint were Darshan Lal, the vendor, M/s. Hem Raj Pawan Kumar, the dealers and Kishan Chand & Co., Oil Industry Ltd., the manufacturers of the vanaspati contained in the aforementioned sealed tons. The complainant alleged that as the vanaspati in question did not satisfy the prescribed standard the accused were liable to be punished under section 16 (1) (a) (i) of the Act for having contravened the provisions of section 7 (i) of the Act. The names of witnesses including the name of the person in the presence of whom the sample had been taken were furnished in the complaint. When process was issued on the basis of the above complaint Daljit Vig, the Works Manager of the manufacturer of the vanaspati in question filed Criminal Misc. No. 196 M of 1980 on the file of the High Court. Criminal Misc. No. 198 M of 1980 was filed by Pawan Kumar of M/s. Hem Raj Pawan Kumar. In these two petitions they pleaded that the criminal proceedings initiated against them were liable to be quashed on various grounds. They contended, inter alia, that because the complainant had taken the sample of vanaspati after opening a sealed tin, he had violated Rule 22 A of the Rules and that because under section 20 A of the Act, the dealer or a manufacturer could be proceeded against only after the vendor had set up a successful defence as contemplated under section 19 (2) of the Act, their prosecution alongwith the vendor was illegal. In the connected cases which were disposed of by the common judgment under appeal, the grounds were more or less the same. The High Court allowed all the petitions quashing all the criminal proceedings filed against the petitioners before it on the ground that where the food sold or stocked for sale or for distribution was in sealed containers having identical label declaration, the entire contents of one or more of such containers as may be required to satisfy the quantity prescribed in Rule 22 should be taken as a part of the sample in a sealed form and since the sealed container had been opened in each of these cases to draw the sample the prosecution was not tenable. In the instant case it may by recalled that each of the sealed containers contained 16.5 K.G. of vanaspati and after opening one such sealed container the complainant had 718 taken 1.5 K.G. of vanaspati as sample. The method adopted by the complainant was found by the High Court to be contrary to the relevant Rules. These appeals by Special Leave are filed against the judgment and order of the High Court. It may be stated here that the High Court following its decision in these cases quashed the proceedings against Darshan Lal, the vendor of the vanaspati in question, in Criminal Misc. No. 2197 M of 1980 by its order dated June 17, 1980 against which a separate petition is filed before this Court in Special Leave Petition (Criminal) No. 2570 of 1980 which is also being disposed of today by a separate order. Adulteration and misbranding of food stuffs are rampant evils in our country. The Act is brought into force to check these social evils in the larger public interest for ensuring public welfare. In certain cases the Act provides for imposition of penalty without proof of a guilty mind. This shows the degree of concern exhibited by Parliament in so far as public health is concerned. While construing such food laws Courts should keep in view that the need for prevention of future injury is as important as punishing a wrongdoer after the injury is actually inflicted. Merely because a person who has actually suffered in his health after consuming adulterated food would not be before court in such cases, courts should not be too eager to quash on slender grounds the prosecutions for offences, alleged to have been committed under the Act. Section 11 of the Act prescribes the procedure to be followed by the Food Inspectors in taking samples of food for analysis. The quantity of sample to be sent to the Public Analyst for analysis is prescribed by Rule 22 of the Rules. In the case of vanaspati 500 grams (approximately) should be sent to the Public Analyst under that Rule. Rule 22 A states that where food is sold or stocked for sale or for distribution in sealed containers having identical lable declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated to be a part of the sample. This Rule is enacted apparently to get over the difficulty that may arise in taking sample and in dividing it into three parts as required by section 11 (1) (b) of the Act where each sealed container containing the food in question contains a quantity less than the required quantity to be taken as sample for the purposes of section 11 read with Rule 22. Rule 22 A of the Rules was promulgated for the purpose of overcoming an objection to the effect that the contents of two or more different sealed containers 719 could not form the parts of the same sample. Rule 22 A of the Rules does not state that where a sealed container contains a quantity larger than what is required for purposes of section 11 read with rule 22 the sealed container as such should be taken as sample and that no sample can be taken after opening the sealed container. It may be stated here that the inevitable consequence of the acceptance of this argument of the accused which has appealed to the High Court is that where a manufacturer or distributor sells food stuffs in large sealed containers containing quantities much larger than what is required to be taken as sample under the law and the contents of only one such container are exposed for sale by a vendor after opening the container, a Food Inspector would not be able to take a sample at all for proceeding under the Act against the manufacturer, distributor or even the vendor. We feel that any construction which would lead to such absurd result should be avoided while construing the provisions of the Act. The precautions prescribed in section 11 of the Act which have to be observed while taking samples are indeed adequate to prevent effectively any false sample being sent to the Public Analyst. If there is any prejudice caused to accused by any negligence on the part of the authorities concerned in taking or sending the true sample to the Public Analyst, the prosecution may have to fail. But there is, however, no legal requirement which compels the Food Inspector to send the sealed container as such to the Public Analyst even though it contains a quantity much larger than what is required to be taken as sample under Rule 22. Rule 22 A is only a corollary to Rule 22. Rule 22 B sets at rest many doubts which were being raised prior to its promulgation. It says : "22 B. Quantity of sample sent to be considered as sufficent. Notwithstanding anything contained in Rule 22 quantity of sample sent for analysis shall be considered as sufficient unless the public analyst or the Director reports to the contrary. " Even prior to the coming into force of Rule 22 B, the legal position was the same as what was attempted to be achieved by Rule 22 B of the Rules. In State of Kerala etc. etc vs Alaserry Mohammed etc. (1) this Court held Rule 22 which prescribed the quantity of food that should be sent to the Public Analyst was only directory and that a prosecution could not fail merely on the 720 ground that the quantity sent to the Public Analyst was less than what was prescribed, provided the quantity which was actually sent was sufficient for purposes of analysis. Untwalia, J. speaking on behalf of the five learned Judges who heard that case observed at page 828 thus : "It would thus be seen that the whole object of section 11 and Rule 22 is to find out by a correct analyis subject to further verification and tests by the Director of the Central Laboratory or otherwise, as to whether the sample of food is adulterated or not. If the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make correct analysis, then merely because the quantity sent was not in strict compliance with the Rule will not result in the nullification of the report and obliterate its evidentiary value. If the quantity sent is less, it is for the Public Analyst to see whether it is sufficient for his analysis or not. If he finds it insufficient, there is an end of the matter. If, however, he finds it sufficient but due to one reason or the other, either because of further tests or otherwise, it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trustworthy or beyond doubt, the case may fail. In other words, if the object is frustrated by the sending of the short quantity by the Food Inspector to the Public Analyst, it is obvious, that the case may end in acquittal. But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders on technical grounds which have no substance. To quote the words of Sir George Rankin, C.J. from the decision of the Calcutta High Court in Chandra Nath Bagchi vs Nabadwip Chandra Dutt and others A.I.R. 1931 Calcutta 476 at page 478, it would "be merely piling unreason upon technicality. ." In our considered judgment the Rule is directory and not mandatory. But we must hasten to reiterate what we have said above that, even so, Food Inspectors should take case to see that they comply with the Rule as far as possible. . . We may, in passing, note that the Rules have now been amended and Rule 22B has been added in 1977 . 721 In our opinion, the new Rule has been added for the purpose of clarifying the law and not by way of amending it. The law, as we have enunciated it, was so even without Rule 22B and it is stated here to place it beyond any debate or doubt. " It may be noted that in none of these cases has the Public Analyst expressed the opinion that the quantity of sample sent to him was inadequate for the purpose of analysing it and to make a report as required by the Act. It is unfortunate that the High Court in deciding the cases before it failed to appreciate and follow the approach adopted by this Court in Alaserry Mohammed 's case (supra). The decision of the High Court on the above point cannot, therefore, be sustained. The other ground namely that the dealer, manufacturer or distributor cannot be prosecuted alongwith the vendor by impleading all of them initially as the accused in a prosecution under the Act is unsustainable in view of the decision of this Court in Bhagwan Dass Jagdish Chander vs Delhi Administration (1). In that case after considering the effect of section 19 (2), section 20 and section 20 A of the Act, Court observed at pages 36 37 thus: "We are also unable to accept as correct a line of reasoning found in V. N. Chokra vs The State A. I. R. 1966 Punjab 421 and Food Inspector, Palghat Municipality vs Setharam Rice & Oil Mills (1974) F. A. C. P. 534 and P. B. Kurup vs Food Inspector, Malappuram Panchayat (1969) Kerala Law Times, P. 845 that in every case under the Act, there has to be initially a prosecution of a particular seller only, but those who may have passed on or sold the adulterated article of food the vendor, who is being prosecuted, could only be brought in subsequently after a warranty set up under section 19 (2) has been pleaded and shown to be substantiated. Support was sought for such a view by referring to the special provisions of Section 20A and Section 19 (2) and Section 20 of the Act. A reason for section 20A seems to be that the prosecution of a person impleaded as an accused under Section 20A in the course of a trial does not require a separate sanction. Section 20A itself lays down that, where the Court trying the offence is itself satisfied 722 that a "manufacturer, distributor or dealer is also concerned with an offence", for which an accused is being tried, the necessary sanction to prosecute will be deemed to have been given. Another reason seems to be that such a power enables speedy trial of the really guilty parties. We are in agreement with the view of the Delhi High Court that these special provisions do not take away or derogate from the effect of the ordinary provisions of the law which enable separate as well as joint trials of accused persons in accordance with the provisions of the old. Sections 233 to 239 of Criminal Procedure Code. On the other hand, there seems no logically sound reason why, if a distributor or a manufacturer can be subsequently impleaded under Section 20A of the Act, he cannot be joined as a co accused initially in a joint trial if the allegations made justify such a course." (emphasis added) Before concluding we should observe that the High Court committed a serious error in these cases in quashing the criminal proceedings in different magistrates ' courts at a premature stage in exercise of its extraordinary jurisdiction under section 482 Criminal Procedure Code. These are not cases where it can be said that there is no legal evidence at all in support of the prosecution. The prosecution has still to lead its evidence. It is neither expedient nor possible to arrive at a conclusion at this stage on the guilt or innocence of the accused on the material before the Court. While there is no doubt that the onus of proving the case is on the prosecution, it is equally clear that the prosecution should have sufficient opportunity to adduce all available evidence. We are of the view that on the facts and in the circumstances of these criminal proceedings, the High Court should not have interfered at this interlocutory stage. These were not cases of that exceptional character where continuance of prosecution would have resulted either in waste of public time and money or in grave prejudice to the accused concerned. On the other hand this undue interference by the High Court has been responsible for these prosecutions in respect of grave economic offences remaining pending for a long time. In a similar case in State of Punjab vs Sat Pal decided by us on March 25, 1983 we have set aside the order of the High Court and remanded the case for disposal to the trial court. 723 Accordingly, we set aside the judgment and order of the High Court in each of these appeals and remand the cases to the respective magistrates ' courts for disposal in accordance with law. All the other contentions are left open. The appeals are accordingly allowed. H.S.K. Appeals allowed. [/INST]The appellant, Earabhadrappa hailing from village Mattakur, under the false name of Krishnappa and with a false address obtained employment of service as a domestic servant under PW 3 Makrappa, the husband of the deceased Bachamma, who was found murdered by strangulation on the night between March 21 22, 1979 after having been robbed of her jewellery, clothes, etc. Based on circumstantial evidence, the appellant, who was found missing right from the early hours of the 22nd March, 1979 and who was apprehended a year later on March 29, 1980, was charged with and convicted for the offences under Sections 302, 392 IPC respectively. He was sentenced to undergo rigorous imprisonment for a term of 10 years under section 392 IPC and to death under Section 302. In appeal, the High Court confirmed both the conviction and sentences imposed upon him. Hence the appeal by special leave. Dismissing the appeal and modifying the sentence, the Court. ^ HELD: 1.1 To sustain a charge under section 302 of the Indian Penal Code,the mere fact that the accused made a statement leading to the discovery of the stolen articles under section 27 of the Evidence Act, by itself is not sufficient. There must be something more to connect the accused with the commission of the offence. The circumstances relied upon by the prosecution in the instant case led to no other inference than that of guilt of the accused as murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration (a) to section 114 of the Evidence Act is that not only the accused committed the murder of the deceased but also committed robbery of her gold ornaments which formed part of the same transaction. The prosecution had led sufficient evidence to connect the accused with the commission of the crime. [561 G H] 553 1.2 For the applicability of section 27 of the Evidence Act, two conditions are pre requisite, viz: (1) Information must be such as has caused discovery of the fact, and (2) The information must "relate distinctly" to the fact discovered. " Under section 27, only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word "fact" means some concrete or material fact to which the information directly relates. [549A, 550B C] Pulukuri Kottayya vs Emperor, LR [1947] IA 65; Jaffer Hussein Dastgir V. State of Maharashtra, [1970] 2 S.C.R.332, referred to. 2.1 The nature of presumption under illustration (a) to section 114 of the Evidence Act from recent and unexplained possession must depend upon the nature of the evidence adduced. As to the meaning of "recent possession", it was observed: No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. The fact that a period of one year had elapsed between the commission of the crime and the recovery of the ornaments on a statement made by the accused leading to their discovery under section 27 of the Evidence Act immediately upon his being apprehended by the police, cannot be said to be too long particularly when the accused had been absconding during that period and the stolen articles were such as were not likely to pass readily from hand to hand. There was no lapse of time between the date of his arrest and the recovery of the stolen property. The accused had no satisfactory explanation to offer for his possession thereof. On the contrary, he denied that the stolen property was recovered by him. The false denial by itself is an incriminating circumstance. [56 H, 562 A E] 3. In Bachan singh V. State of Punjab, , the Supreme Court, moved by compassionate sentiments of human feelings has ruled that sentence of death should not be passed except in the "rarest of rare" cases. The result now is that capital punishment is seldom employed even though it may be a crime against the society and the brutality of the crime shocks judicial conscience. The test laid down in Bachan Singh 's case is unfortunately not fulfilled in the instant case. That being so, the Court is constrained to commute the sentence of death passed on the appellant into one for imprisonment for life. [562 F H, 563 A] Observation of Dissent [A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Failure to impose death sentence in such grave cases where it is a crime against society particularly in cases of murders committed with extreme brutality will bring to naught the sentence of death provided under Section 302 of the Penal Code.] [563 A B] 554 </s>

<s>[INST] Summarize the judgementminal Appeal No. 152 of 1962. 710 Appeal by special leave from the judgment and order dated April 4, 1962 of the Rajasthan High Court in D. D. Criminal Appeal No. 505 of 1961. section K. Kapur, section Murthy, B. N. Kirpal and K. K. lain, for the appellant. H. R. Khanna and B. R. G. K. Achar for P. D. Menon, for the respondent. August 29, 1963. The judgment of the Court was delivered by DAS GUPTA J. This appeal by special leave is against a conviction and sentence under section 167(81) of the . The appellant was acquitted by the trial court, but on appeal by the State of Rajasthan, the Rajasthan High Court set aside the order of acquittal and convicted the appellant under section 167(81) of the , and sentenced him to rigorous unprisonment for one year. The prosecution case was that on receipt of some information that gold smuggled from Pakistan was being carried, Lal Singh, Sub Inspector of the Check post of Barmer, followed the appellant into a railway train at Luni railway station, and in the running train between the stations of Kerla and Pali, searched appellant 's person and found that he was carrying 286 tolas of gold in a pouli under his trousers. In the reasonable belief that these were smuggled goods, Lal Singh seized the gold. The gold that was seized consisted of six blocks bearing marks "999", N. M. Rothschild & Sons, 22 bars bearing marks '999 ', 3 small pieces of gold and one pair of murkies. Lal Singh seized the gold after preparing a seizure list in the presence of witnesses and later produced the appellant along with the gold before the Superintendent, Land Customs, Barmer. By an order of the Collector of Customs, New Delhi, dated July 19,1957, this gold was confiscated and a fine of Rs. 10,000 was imposed on the appellant. Criminal proceedings were afterwards instituted against the appellant on the allegation that he had committed an offence under section 167(81) of the . The prosecution claimed that under section 178 A of the , the burden of proving that gold was not smuggled lay on the accused. Even apart from that, the prosecution claimed, it was clear that the gold had been smuggled. It was alleged that the appellant had carried 711 the gold knowingly with intent to evade the regulations prohibiting the import of gold Into India. The main defence of the accused, who pleaded not guilty, was that no gold was recovered from him. The trial court held that the prosecution had failed to establish the recovery of gold from the accused. It further accepted the defence contention that Lai Singh had no authority to search the appellant and seize the gold at the place where the seizure was alleged to have been made. According to the learned Magistrate, the seizure, if any, had not been made under the and so had not been made under "the Act" within the meaning of section 178 A, and there was no question of the accused having to prove that the gold was not smuggled. On the evidence adduced by the prosecution, he was not convinced that it was smuggled gold. Accordingly, he acquitted the accused. The High Court came to contrary findings on all these points. It held that the evidence of Lal Singh as regards the seizure should be believed and that the seizure of the gold from the accused had been proved satisfactorily. It was also of the opinion that Lal Singh had authority to seize the gold at the place where the seizure was made, and that section 178 A of the applied. In the opinion of the High Court, the accused had failed to prove that the gold was not smuggled and that under the provisions of section 178 A as also on the evidence in the case, the gold had been established to be smuggled gold. All the ingredients of the offence, according to the High Court, had been proved, and therefore, the accused was convicted and sentenced as mentioned above. Three points were raised before us by Mr. section K. Kapur in support of the appeal. The first was that the High Court was not justified in disturbing the trial court 's finding that the seizure of the gold from the accused had not been proved. The second point urged was that the High Court had fallen into an error in thinking that Lal Singh had authority to seize the gold at the place where the seizure was made. The third contention was that in any case even if section 178 A applied and it was found that the gold was smuggled, the prosecution had failed to prove the necessary mens rea in the accused that was necessary to constitute the offence. 712 On the question of seizure of gold from the accused, the prosecution relied on the testimony of Lal Singh himself. Lal Singh gave a detailed account as to how he followed the accused into the train at Luni station and in the running train conducted the search of his person in the presence of witnesses and recovered from his possession from a pouli tied beneath his trousers the gold identified in court as exhibit P.M. 1 32. The seizure Memo. which he claimed to have prepared at the time of the seizure was marked Exh. This document mentions the names of three persons as search witnesses. None of these was examined by the prosecution. The third name mentioned in Exh. P. 3 is Pukh Raj son of Awasthi Mal, aged about 22 years, resident of Ajit. The defence examined a Pukh Raj who gave his father 's name as Basti Mal and who was resident of Ajit, and stated that he was the only Pukh Raj in that village. The High Court seems to have doubted the indentity of Pukh Raj examined as defence witness as the Pukh Raj mentioned in the seizure list. This finding has been attacked by Mr. Kapur as un justified. Whether or not the Pukh Raj examined as defence witness is the same as the person whose name is mentioned in the seizure list, is not, however, of much consequence; for the fact remains that the prosecution has not got the evidence of any of the witnesses in whose presence the search and seizure are said to have been made, to support Lal Singh 's evidence. The learned Magistrate gave this failure of the prosecution to examine the witnesses as the main reason for his inability to accept Lal Singh 's testimony. The High Court has accepted Lal Singh 's testimony, but unfortunately the judgment does not indicate that the learned judges of the High Court took into consideration this fact that the search witnesses had not been examined. We have, therefore, thought it necessary to examine the evidence for ourselves to see whether the seizure as alleged by the prosecution has been proved. Lal Singh 's evidence on the point has already been mentioned. It has to be noticed that the defence witness No. 2, Poonam Chand, has also spoken about the search. His evidence is that police conducted search in the compartment when the train was enroute from Luni to Pali, and that "the police took search of the 713 accused Hukma present before the court and of two or three more persons named Kesrimal and Tarachand". The witness added no gold was recovered from: the possession of the accused Hukma Ram, but admitted that in the same compartment a purse was recovered. It has to be noticed that when Lal Singh was examined, no suggestion was made to him in cross examination that any other person had been searched in the compartment. It is not unreasonable to think, therefore, that when Poonam Chand is speaking of search in the com partment of Hukma and the find of a purse there though stopping short of saying what was recovered from it, his evidence unwittingly supports the story given by Lal Singh about the search and the recovery of the gold. It does not stand to reason that if two other persons bad been searched and gold had been found within one of them, this appellant, a pointsman in the Railway, should be falsely implicated and the person from whom the recovery of gold was made, should have been allowed; to, escape. The accused suggested in his statement that Lal Singh was inimically disposed towards him because on one occasion Lai Singh had asked him to serve water and he had not done it at once. There was no suggestion about this incident to Lai Singh in his cross examination, and we are convinced that this is: entirely false. On a consideration of Lal Singh 's evidence along with the evidence of appellant 's own witness, Poonam Chand we are convinced that the story of recovery of gold from the accused is true. The reason why the three witnesses mentioned in the seizure list have not come forward to support the prosecution case is, in, our poinion, not that the story of search and seizure as given by Lal Singh is not true, but that these witnesses have been gained over. This brings us to Mr. Kapur 's main contention, namely, that Lal Singh was not a Customs Officer for the place where the seizure was made, and so the seizure was not under the , taken with the provisions of the . The answer to this contention depends on the construction of the notification appointing Customs Officers for the areas adjoning the frontier between West Pakistan and India. The notification as it stands after an amendment in 1956, runs 46 2 section C. India/64 714 as follows: "1. In exercise of the powers conferred by Sub section (1) of section 3 of the (19 of 1924) read with the notification of the Government of India in the late Finance Deptt. (Central Revenues) No. 5444, dated 1st December 1924, the Central Board of Revenue hereby appoints for the areas adjoining the Land Customs Frontiers separating West Pakistan from India, the officers of the Government of Rajasthan specified in the schedule hereto annexed, to be Land Customs Officers within the jurisdiction of the Collector of Land Customs Delhi." "The Schedule." "All officers of the Rajasthan Civil Police and the Rajasthan Armed Constabulary of and above the rank of Head Constable posted in the Districts of Barmer, Bikaner, Ganganagar, Jaisalmer and Jalore in the State of Rajasthan." Asking us to give a restricted meaning to the word "adjoining" in the notification, Mr. Kapur has suggested that this notification gave authority to the Customs Officers only for the areas within a few miles from the border, He contended next that even if this be not accepted, the notification on a reasonable interpretation gave authority only to the officers of the Districts mentioned in the Schedule to function as Customs Officers in those Districts and nowhere else. The trial court appears to have accepted this construction, and as admittedly the place of seizure was not in any of the District mentioned in the Schedule, it held that Lal Singh was not authorized to search the accused or to seize the gold. The High Court, on the contrary, has taken the view that each of the officers mentioned in the Schedule has been appointed a Customs Officer for the entire area which has "jurisdiction of the Collector of Land Customs, Delhi". In our opinion, this is the correct and only possible construction. Section 3 of the authorizes the Central Government to appoint by notification in the official gazette one person to be the Collector of Land Customs for any area adjoining a foreign frontier and specified in the notification. The section also authorizes 715 the Central Government to appoint by a similar notification such other persons as it thinks fit to be Customs Officers for the same area. "Foreign frontier" has been defined in section 2, cl. (e) of the Act as the frontier separating any foreign territory from any part of India. "Land Customs area" has been defined in cl. (g) of the same section as any area adjoining a foreign frontier for which a Collector of Land Customs has been appointed under section 3. From the definition of foreign frontier in cl. (e), it is clear that an area adjoining the frontiers separating any foreign territory from any part of India, is within these words. What, then is meant by the word 'adjoining '? According to Mr. Kapur, only a few miles near the frontier can be considered to be adjoining the frontier. We can see no justification for such a restricted construction of the word " adjoining". It is true that the village next to the frontier adjoins the frontier. It is equally correct, however, to describe the entire District nearest the frontier as adjoining the frontier ; and we can see nothing wrong in the entire State of Rajasthan adjoining the West Pakistan Frontier. It appears to us that the Central Government treated the whole compact block consisting of the State of Punjab, State of Jammu & Kashmir and State of Rajasthan and Himachal Pradesh and Delhi as one area ad joining the West Pakistan frontier, and for this one area it appointed a Collector of Land Customs. This appears clear from the order appointing the Collector of Central Excise, Delhi, to be the Collector of Land Customs (Notification No. 2L Customs, dated 25th January, 1958), taken with Rule 2(ii) A (i) of the Central Excise Rules, according to which Collector means "in the State of Punjab, Jammu and Kashmir and Rajasthan and in the Union Territories of Himachal Pradesh and Delhi, the Collector of Central Excise, Delhi". In other words, the jurisdiction of the Collector of Central Excise, Delhi, is not only over Delhi, but also it extends to the States of Punjab, Jammu & Kashmir and Rajasthan and the Union Territories of Himachal Pradesh and Delhi. It was for this entire area that the collector of Central Excise, Delhi was appointed Collector of Land Customs. The resultant position, therefore, is that for this entire area of Punjab, Jammu and Kashmir, Rajasthan, Himachal and Delhi, one person has been ap 716 pointed Collector of Customs. When, therefore, the Central Government proceeded next to appoint Land Customs Officers and stated that certain officers as specified in the schedule were appointed Land Customs Officers "for the areas adjoining the land customs frontiers separating West Pakistan from India", and added the words that they were to be Land Customs Officers "within the jurisdiction of the Collector of Land Customs, Delhi," it appears to us to be quite clear that every officer mentioned in the Schedule would be a Customs Officer not for any particular District mentioned in the Schedule but for the whole areas which forms the Jurisdiction of the Collector of Land Customs, Delhi and is the area adjoining the West Pakistan frontier for which a Collector of Land Customs has already been ap pointed under section 3. We find no justification for reading into the Schedule any indication of the area where the officers will operate. The Schedule purports to mention the different officers of different districts who arc appointed Land Customs Officers not for those particular Districts but for the entire area. Any other reading of the words used in the main body of the notification would be not only against the plain meaning of the words used but is likely to defeat the object for which Land Customs Officers are appointed. We have, therefore, come to the conclusion that the construction put by the High Court on the notification is right, and Lai Singh, being an officer in the District of Barmer which is mentioned in the Schedule, was an officer for the entire area which formed the jurisdiction of the Collector of Land Customs, Delhi, including the place where the seizure was made, and was therefore competent to make the seizure. There remains for consideration the last point raised by the learned counsel, namely, that even if Lal Singh had authority to seize at the place where the seizure was made and section 178 A of the applied, the prosecution had still to prove by further evidence that the accused had the mens rea necessary to constitute the offence. Learned counsel rightly pointed that while section 178 A has the result of placing the burden of proof that the gold was not smug gled on the accused, it is of no assistance to the prose cution to prove that the accused was carrying the gold 717 knowingly to evade the prohibition which was for the time being in force with respect to the import of gold into India. Once, however, it is found, as it must be found in this case, in consequence of the provisions of section 178 A (the accused has not tried to discharge the burden that lay on him that the gold was not smuggled) that he was carrying smuggled gold, the circumstances under which the gold was discovered, the manner in which he was carrying the gold, the considerable quantity of the gold that was being carried and the form in which gold was being carried, namely, blocks and bars in which the major portion of the gold was found, all these circumstances establish beyond a shadow of doubt that accused was carrying the gold knowingly and with the intention of evading the prohibition that was in force with respect to the import of gold into the country. Mr. Kapur tried to argue that when gold is carried by persons, they often carry it in this manner in a pouli concealed under trousers. That may well be so. Here, however, there is an additional circumstance that a pointsman of the Railway, not expected to have so much gold in his possession, was carrying the gold which was, as already mentioned in six bloks and 22 bars apart from some small pieces and one pair of murkees. The total quantity was as much as 286 tolas and 11 annas, that is, about three kilograms. When all these circumstances are taken together, it is not possible to accept learned counsel 's suggestion that he might be carrying the gold innocently having purchased it from somebody. In our opinion, the High Court has rightly held that all the ingredients of the offence under section 167(81) of the have been established. It may be mentioned that it has not been disputed before us that if we believe the story of the recovery of the gold from the appellant, the circumstances are sufficient to establish that Lal Singh seized the gold in the reasonable belief that these were smuggled goods. In the view we have taken in this matter, it is unnecesary to consider the further argument raised by Mr. H. R. Khanna, who apperaed for the State that even apart from section 178 A, the guilt of accused could be held to be proved by the confession made by him before the Deputy Superintendent, Land Customs, corroborated as it 718 is by the recovery of the gold from him. All the points raised in the appeal on behalf of the appellant fail, and the appeal is, accordingly, dismissed. Appeal dismissed. [/INST]Where an application is made under section 10(1)(a) of the , for a decree for judicial separation on the ground of desertion, the legal burden is upon the petitioning spouse to establish by convincing evidence beyond any reasonable doubt that the respondent intentionally forsook and abandoned him or her without reasonable cause. The petitioner must also prove that there was desertion throughout the statutory period and there was no bona fide attempt on the respondent 's part to return to the matrimonial home and that the petitioner did not by his or her action by word or conduct provide a just cause to the other spouse to desist from, making any attempt at reconciliation or resuming cohabitation; but where, however, on the facts it is clear that the conduct of the deserted spouse has had no such effect on the mind of the deserting spouse there is no rule of law that desertion ter minates by reason of the conduct of the deserted spouse. 332 An offer to return to the matrimonial home after sometime, though desertion had started, if genuine and sincere and represented his or her true feelings and intention, would bring to an end the desertion because thereafter the animus deserendi would be ' lacking, though the factum of separation might continue; but on the other hand, if the offer was not sincere and there was in reality no intention to return, the mere fact that letters were written expressing such an intention would not interrupt the desertion from continuing. Bipin Chander laisinghbhai Shah vs Prabhawati, ; , Dunn vs Dunn, and Brewer vs Brewer , relied on. The parties were married in 1946 at Hyderabad in Sind (now in Pakistan) and a child, a son, was born in 1947. The married life of the couple was not as harmonious as it should have been and it soon transpired that much of the trouble arose out of the fact that while the appellant and his parents appear to have been of an orthodox and conservative outlook and bent of mind the respondent and her parents apparently did not set much store by orthodoxy and were liberal and modern. As a result of the partition in 1947 the parties had to leave Sind. The appellant and his parents stayed in a house in Bombay, while the respondent 's parents went to Poona. The appellant 's complaint was that the respondent was frequently going away to her parent 's house. On February 26, 1954, the respondent left ' the appellant 's house and went to Poona. The evidence was conflicting as to whether she obtained the permission of the appellant 'before going to Poona, but the facts showed that after that date the respondent did not go back to the appellant 's house. The appellant along with a friend, Dr. Lulla, went to Poona with a view to bring back the respondent. The evidence as to what transpired at the interview with the respondent was somewhat conflicting, and the appellant 's case was that the respondent intimated to him her fixed determination not to go back to him. On July 7, 1954, the respondent along with her father went abroad to the Far Eastern countries, for the purpose of recouping her health, according to her. Before going abroad the respondent had to go Bombay for getting the passport and going through the formalities; and while there she was staying in a house very near the appellant 's but she did not visit him nor see their child. On learning that the respondent had gone abroad without intimation to him he cabled to her asking her to come back immediately but the respondent did not do so as required by the appellant. There was some correspondence ' about the matter and the respondent continued to say in her letters that she would soon come back to his place. By his letter dated April 1, 1955, the appellant used strong language passing severe strictures against her conduct &id in her continuing to be abroad without obeying his instructions. The respondent replied by letter dated April 12, 1955, saying: "As soon as my. 333 health has completely improved I shall, of course come back to you and to our son. " After this there was no further correspondence between the, parties. In April, 1956, the respondent returned to India but she did not go to the appellant 's home nor did meet him. On September 20, 1956, the appellant filed the present petition praying for judicial separation under section 10(1)(a) of the . The respondent 's defenses to the petition, inter alia, were that she never left the appellant 's matrimonial home with the intention of breaking it and that, in any case, the appellant charged her falsely with immorality in his letter dated April 1, 1955, and so she was justified in living separately. Held (Subba Rao, J. Dissenting), (1) that on the facts the respondent left the appellant 's matrimonial home On February 26,1954, with the intention of permanently, breaking it up, and thatsuch desertion continued during the requisite period of two years. (2) that the appellant 's letter of April 1, 1955, did not con stitute an interruption of the respondent 's desertion by its being a just cause for her to remain away from the matrimonial home; and (3) that, in consequence, the appellant was entitled to a decree for judicial separation under section 10(1)(a) of the . Per Subba Rao, I. (1) Where a spouse seeks judicial separation on the ground of desertion a heavy burden lies on him or her to prove four essential conditions, namely (1) the factum of separation, (2) animus deserendi, (3) absence of his or her consent, and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence the evidence of the petitioner shall be corroborated. (2) The expression "includes the wilful neglect" in the explanation to section 10(1) of the , does not enlarge the scope of the word desertion so as to take in by definition the conscious neglect on the part of that offending spouse without the requisite animus deserendi; it does not introduce a new concept in Indian law, but is only an affirmation of the doctrine of constructive desertion in English law. The ingredients of desertion as well as constructive desertion are the same, though in one case there is actual abandonment and in the other there is expulsive conduct. The said doctrine is not rigid but elastic and without doing violence to the principles governing it, it can be applied to the peculiar situations that arise in an Indian society and home. (3) Sections 9 and 10 of the Act deal with different subjects and section 9 does not throw any light on the construction of the expression "without reasonable cause" in the explanation to section 10. Whether there was a reasonable cause or not in a given case could 334 be decided only on the evidence and the peculiar circumstances of that case. (4) In the present case, the evidence was clear that the respondent left her matrimonial home with the permission of her husband and his parents and that it was not possible to infer from the evidence given by Dr. Lulla that the respondent decided to abandon the appellant. The letters demonstrated beyond any reasonable doubt that the wife did not demonstrated beyond band with the requisite animus, but on the other hand, showed her willingness to go over to Bombay as soon as she regained her health. In view of the false allegations made by the appellant in his letter dated April 1, 1954, in which he charged the respondent with unchastity and leading a fast and reckless life, from that date the desertion, if any, on the part of the respondent came to an end and from that date the appellant was guilty of desertion. </s>

<s>[INST] Summarize the judgementAppeal No. 1817 of 1967. From the judgment and Decree dated the 21st September 1965 of the Andhra Pradesh High Court in A.S. No. 508 of 1959. K. R. Choudhury and Veena Khanna, for the appellants. M. K. Ramamurthi and J. Ramamurthi, for the respondent. The Judgment of the Court was delivered by ALAGIRISWAMI, J. Venkanna, the father of the appellants, had a brother Ramamurti who died childless in the year 1908 leaving behind him his widow Narasimham. After Ramamurti 's death a series of litigations started between Venkanna and Narasimham and it is not over yet. Venkanna filed O.S. No. 14 of 1913 against the widow in respect of acts of waste committed by her of Ramamurti 's estate and was appointed a receiver in that suit. In that suit he got a decree against Narasimham for a sum of Rs.13,539/ as she failed to furnish security as originally decreed by the court. Venkanna as receiver filed three suits on the foot of three mortgages in favour of Ramamurti. One was O. section No. 34 of 1916. In execution of that decree item 1 of the 'A ' Schedule properties was purchased in court auction. O.S. No. 443 of 1918 was filed on the, foot of another mortgage in favour of Ramamurti executed in 1904 and items 2 and 5 of the plaint schedule properties were purchased in execution of decree in that suit. These three items of properties are the subject matter of this appeal. It is unnecessary for the purpose of this appeal to refer to the third suit. Venkanna died in 1947 and Narasimham in 1951 after executing a will bequeathing in favour of her brother Venkata Sattayya all her properties. Venkata Sattayya filed the suit, out of which this appeal arises, for possession of the properties bequeathed to him under the will and for mesne profits. The Subordinate Judge who tried the suit held that items 1, 2 and 5 become accretions to the main estate of Ramamurti and therefore the plaintiff was entitled only to an account of the income from those properties till the death of Venkanna. The appeal against the Subordinate Judge 's judgment came up for hearing before Justice Satyanarayana Raju and Justice Venkatesam of the Andhra Pradesh High Court. The learned Judges called for a finding with regard to the interest on the two mortgages in execution of the decrees in which items 1, 2 and 5 had been purchased, relating to *he period before Ramamurti 's death and the period after Ramamurti 's death. After that finding was received they allowed the appeal in part and held that the plaintiff would be entitled to a 19/34th share of item 1, and 12/23rd share of items 2 and 5. This appeal is filed in pursuance of a certificate granted by the High Court. Mr. Ramasesneya Chaudhri appearing on behalf of the appellants raised four points which we shall deal with seriatim. The learned Judges of the High Court committed an error in confining the appeal after receipt of the finding from the Subordinate Judge 's court only to the question of the share, which the appellants ,and the respondent were entitled to, based on the calculation of the 597 interest due on the mortgages before and after the death of Ramamurti. His contention was that as the High Court had merely framed issues and referred them for trial to the court of first instance under Order XLI Rule 25 of the Code of Civil Procedure and not remanded the whole case under Order XII Rule 23, they should have heard the whole appeal and not confined the hearing merely to the points on which the finding was called for. We think that he is right in this contention. Before the High Court the learned advocate for the appellants had contended that Narasimham owed to the estate of Ramamurti a sum of Rs.14,639/ and that when the decree was sought to be executed by Venkanna, Narasimham claimed that the account due to her by way of interest under the three mortgage bonds should be set off and that the execution could proceed only for the balance, that the set off claimed by Narasimham was actually allowed and that therefore she would not be entitled to any share in the properties purchased in execution of the decrees obtained on the foot of the mortgage bonds, in lieu of the interest claimed. The learned Judges disallowed him from raising that question on the ground that it was not raised or argued at the time when the finding was called for on the issues framed by them, and that if it had been raised and accepted there would have been no need to call for a finding or at any rate the finding called for would have been different, and that the argument of the learned counsel impugned the correctness of the conclusions reached by the Court on the basis of which the findings were called for. We consider that when a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopi Nath Shukul vs Sat Narain Shukul (AIR 1923 Allahabad 384) where it was held that: "Where an appellate Court at the first hearing does not decide the case but merely remits certain specific issues, it is open to the Court before which the case ultimately comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order. " It was also held that: "An order remanding issues under Rule 25 is not a final order. No appeal lies against it. The responsibility for the decree ultimately passed is entirely that of the Court before which the case comes after remand. It is quite otherwise with an order of remand passed under order 41, Rule 23, for this is an order which does finally determine, subject to any right of appeal, the issues which it decides. A similar view was taken by the Nagpur High Court in Sultan 598 Beg Al. chunilal (AIR 1918 Nagpur 193). In Abinash Chandra Bidyanidhi Bhattacharjee vs Dasarath Malo (XXXII (1927 28) Calcutta 'Weekly Notes 1233) it was sail: An order of remand made under Or. 41, r. 25 decides nothing. The Court, either the same or as differently constituted, has jurisdiction, while finally hearing the appeal, to go back on the reasons given or views expressed in the order of remand and must do so when those appear erroneous. " We are, therefore, of opinion that the High Court should have gone into this question and decided the matter, for if it turns out that the interest due on the two mortgages subsequent to the death of Ramamurti had been set off against the amount due to Venkanna in the decree obtained by him against Narasimham in O.S. 14 of 1913 there can be no question of Narasimham being entitled to any share in the properties purchased in court auction in execution of the decree in the two mortgages and her brother getting those properties by virtue of the will executed by her in his favour. In the Trial Court the plaintiff 's contention was that these properties were purchased out of the accumulated interest on the mortgages and the defendants asserted that they were purchased out of the principal. That Court dismissed the plaintiff 's claim on the ground that there was no proof of his allegations. It was before the High Court apparently that the attempt to split the interest due on the mortgages into two portions, one before Ramamurti 's death and the other after, was made and accepted by the High Court. It was on that basis that the High Court called for findings. After the findings were received the appellants raised the question about the set off. They raised the ,question before the Trial Court when it was considering the appor tionment of the interest but that Court felt it had no power to go into that question in view of the terms of the High Court 's order calling for the finding. And the High Court refused to allow the appellants to raise that question, which as we have just held was not correct. The decree in Venkanna 's suit appears to have directed payment of interest to Narasimham [Para III (c) of the plaint and judgment of the High Court, page 102 of the paper book]. We find that Venkanna had submitted accounts to the court in his capacity as receiver till 1940. We have also evidence in this case that even When Venkanna died a sum of Rs.4,486/ was due.to him on the foot of the decree he obtained against Narasimham. It is, therefore, highly unlikely that any amount due to Narasimham was not given credit to. We find from the finding submitted by the Trial Court (Page 86 of the paper book) Narasimham claimed that the amounts due to her should be set off and execution should proceed only for the balance and from exhibit A 7 it would appear that the claim was allowed. It seems therefore unlikely, taking the direction in the decree and the order evidenced by exhibit A 7 into account, that the interest due to Narasimham, was not 599 one of the items set off. We do not want to express any final opinion on the point but are of opinion that in the circumstances the High Court should consider this aspect of the matter and dispose of the appeal afresh. Out of about 16 acres comprised in item 1, 5 acres had been lost in revenue sale because of Narasimham 's failure to pay the land revenue on those lands. It was urged before the High Court and it has been urged again before us that in allotting to the appellants a share of items 1, 2 and 5 these 5 acre , which were lost to the estate as a result of Narasimham 's negligence should be debited against her share in them. We find ourselves unable to accept this contention just as the High Court, though they gave no reason for their conclusion. Neither on principle nor on authority could the contention on behalf of the appellants be supported. A Hindu widow is entitled to the full beneficial enjoyment of the estate. So long as she is not guilty of willful waste, she ' is answerable to no one. Her estate is not a life estate, because in certain circumstances she can give an absolute and complete title. Nor is it in any sense an estate held in trust for reversions. Within the limits imposed upon her, the female holder has the most absolute power of enjoyment and is accountable to no one. She fully represents the estate, and, so long as she is alive, no one has any vested interests in the succession. The limitations upon her estate are the very substance of its nature and not merely imposed upon her for the benefit of reversioners. She is in no sense a trustee for those who may come after her. She is not bound to save the income, nor to invest the principal. If she makes savings, she can give them away as she likes. During her lifetime she represents the whole in heritance and a decision in a suit by or against the widow as representing the estate is binding on the reversionary heirs. It is the death of the female owner that opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility or sues successions. It cannot be predicted who would be the nearest reversioner at the time of her death. It is, therefore, impossible for a reversioner to contend that for any loss which the estate might have sustained clue to the negligence on the part of the widow he should be compensated from out of the widow 's separate properties. He is entitled to get only the property left on the date of the death of the widow. The widow could have, during her lifetime, for necessity, including her maintenance alienated the whole estate. The reversioner 's right to institute a suit to prevent waste is a different matter. If it could have been established that in having allowed some part of the properties to be sold in revenue sale she was guilty of willful waste if would have been a different matter. It would still have been necessary for the nevermore to have instituted a suit on that basis. It is doubtful whether such a suit can be instituted after her death. In any case the necessary averments are not available in this suit. We are, therefore, unable to accept this contention 3. Another point urged before the High Court as well as before us was that the cost incurred by Venkanna in the suit and in the execution proceedings should have been taken into account in allocating 600 items 1, 2 and 5 between the appellants and the respondent. The High Court took the view that as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs. 4,486/ as the amount due on settlement of account, and it was peon to Venkanna to realise the amount against the estate of Ramamurti in execution of the decree, it is not now open to the appellants to claim that these should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti. We agree with this view. Incidentally it should be noticed that the conclusion of the High Court on this point would seem to point to the same conclusion in respect of the first point. Lastly, it was argued that Narasimham, the widow, had treated this property as accretion to the husband 's estate and therefore the appellants are entitled to the whole of the property. The facts on the basis of which this contention is urged are : (a) When Narasimham 's life interest in the estate was sold in E.P. No. 93 of 1927 filed by Venkanna she did not question the legality of the sale on the ground that her interest in the property was not a life interest but was a full interest. (b) In the order in E.A. 624 of 1935 passed by the Subordinate Judge, Visakhapatnam the widow treated items 1, 2 and 5 as part of the estate of her husband and she had also asserted therein that she had a right to enjoy the same as representative of his estate. (c) Life interest in the A Schedule properties was &old in E.P. 28 of 1940 in execution of the decree in O.S. 14 of 1913 and the widow did not object to the sale on the ground that what was being sought to be sold was a life interest but that she was entitled to full interest. We do not think anyone or all of these grounds are sufficient to establish that the widow had treated this property as accretion to the husband 's estate. As observed by the Madras High Court in Akkanna vs Venkayya (I.L.R. "the acquirer of property presumably intends to retain dominion over it and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husband 's property, was at her absolute disposal. In the case of property inherited from the husband, it is not by reason of her intention but by reason of the limited nature of a widow 's estate under the Hindu Law, that she has only a limited power of disposition. But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income. The mere fact that properties thus acquired by her are managed and en 601 joyed by her without any distinction, along with properties inherited from her husband, can in no way effect this presumption. She is the sole and separate owner of the two sets of properties so long as she enjoys the same, and is absolutely entitled to the income derived from both sets of properties. " The fact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did not object to it and assert that she had full interest does not affect this question. It was to her advantage to keep quiet. She was not there by estopped from contending that she had an ' absolute interest in the properties. It should, more over, be remembered that the question that the items 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husband 's estate and the widow in that property was really a later development. Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier. The widow was all along doing everything to prevent her husband 's reversioners getting anything from the estate. She had transferred quite a good part of it to her brother, which was what enabled the reversioner to file the suit against her for acts of waste. She exhibited a very clear intention that whatever she possessed should go to her brother. There is absolutely no room on the facts of this case to hold that she exhibited the least intention to treat the income from the husband 's estate as an accretion to that estate. In the result the appeal is allowed and the judgment of the High Court set aside. The High Court will dispose of the appeal afresh. The costs of this appeal will abide and be provided in the fresh decree to be passed by the High Court. C.M.P. No. 2016 of 1969 is dismissed. S.C. Appeal allowed. [/INST]The appellant was appointed head cashier in one of the branches of the respondent Bank by the Treasurers who were in charge of the Cash Department of the Bank by virtue of an agreement between them. The question arose as to whether the appellant was an employee of the Bank. (i) that the terms of the agreement clearly showed that the Treasurers were servants of the Bank and not independent contractors; and that (ii)as the direction and control of the appellant and of the ministerial staff in charge of the Cash Department of the Bank was entirely vested in the Bank, the appellant was an employee of the Bank. If a master employs a servant and authorizes him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be, equally with the employer, servants of the master. The question as to whose employee a particular person is has to be determined with reference to the facts and circumstances of each individual case, and among the many tests by which to ascertain who is the employer, the most satisfactory one is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. (1) (1924] I.L.R. (2) Cal. 297, 1428 Donovan vs Laing, Wharton & Down Construction Syndicate ([1893] and Mersey Docks & Harbour Board vs Coggins & Griffith (Liverpool) Ltd. ([1947] A.C.1), referred to. </s>

<s>[INST] Summarize the judgementN: Criminal Appeal No. 255 of 1973. Appeal by Special Leave from the Judgment and Order dated 16 7 73 of the Rajasthan High Court in S.B. Crl. No. 309/73. A. N. Mulla and B. P. Singh for the Appellant. Sobhag Mal Jain and section K. Jain for the Respsondent. The Judgment of the Court was delivered by FAZAL ALI, J. This appeal by special leave is directed against a judgment of the Rajasthan High Court by which the conviction of the appellant under Section 494 I.P.C. and sentence of two years rigorous imprisonment and fine of Rs. 2,000/ have been upheld. The facts of this case have been detailed in the judgments of the courts below and it is not necessary to repeat them. Suffice it to say that the accused Gopal Lal married the complainant Kanchan sometime in the year, 1963 and a child was born out of this wedlock. Soon thereafter the parties appeared to have fallen out and parted company. While the first marriage was subsisting Gopal Lal contracted a second marriage which according to the custom prevalent amongst Tellis is a valid marriage commonly known as nata marriage. This marriage was contracted on 20th of March, 1969. The complainant Kanchan, the first wife having come to know about this marriage filed a complaint on the 22nd March, 1969, on the basis of 1173 which appellant was prosecuted and ultimately convicted as mentioned above. Mr. A. N. Mulla, learned counsel for the appellant, had submitted two points before us. In the first place it was contended that in view of the provisions of Section 17 of the , the second marriage being a void marriage, the provisions of Section 494 I.P.C. are not attracted at all. We have given our anxious consideration to this argument but we are of the opinion that the argument is wholly untenable. Section 494 runs thus: "Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge". The essential ingredients of this offence are: (1) that the accused spouse must have contracted the first marriage. (2) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage and (3) that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed. It may also be noticed that Section 494 I.P.C. would come into play only if the second marriage becomes void by virtue of the fact 1174 that it had taken place in the life time of one of the spouses. Thus, it is not possible to accede to the contention of Mr. Mulla that merely because the second marriage was void under Section 17 of the hence Section 494 I.P.C. would not be attracted. Section 17 of the runs thus: "Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly". What Section 17 contemplates is that the second marriage must be according to the ceremonies required by law. If the marriage is void its voidness would only lead to civil consequences arising from such marriage. Section 17 makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions of Section 494 of the Penal Code which has been extracted above. Section 17 clearly provides that provisions of Sections 494 and 495 of the Penal Code shall apply accordingly. In other words though the marriage may be void under Section 17, by reason of the fact that it was contracted while the first marriage was subsisting the case squarely falls within the four corners of Section 494 and by contracting the second marriage the accused incurs the penalty imposed by the said statute. Thus the combined effect of Section 17 of and Section 494 I.P.C. is that when a person contracts a second marriage after the coming into force of the said Act, while the first marriage is subsisting he commits the offence of bigamy. (Emphasis ours). This matter no longer res integra as it concluded by a decision of this Court in Bhaurao Shankar Lokhande and Anr. vs State of Maharashtra & Anr.(1) This Court while considering the question of bigamy qua the provisions of Section 17 observed as follows: "Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of sections 494 and 495 I.P.C. shall apply accordingly. The marriage between two Hindus is void in view of section 17 if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act; 1175 (ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the appellant and Kamlabai in February 1962 cannot be said to be 'solemnized ', that marriage will not be void by virtue of section 17 of the Act and section 494 I.P.C. will not apply to such parties to the marriage as had a spouse living". The word 'solemnize ' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form ', according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and in due form ' it cannot be said to be 'solemnized '. It is therefore essential, for the purpose of section 17 of the Act that the marriage to which section 494 I.P.C. applies on account of the provisions of the Act should have been celebrated with proper ceremonies and in due form". It was thus pointed out by this Court that Section 17 of the requires that the marriage must be properly solemnized in the sense that the necessary ceremonies required by law or by custom must be duly performed. Once these ceremonies are proved to have been performed the marriage become properly solemnized and if contracted while the first marriage is still subsisting the provisions of Section 494 will apply automatically. In a decision of this Court in Kanwal Ram & Ors. vs The Himachal Pradesh Administration the earlier case was noticed by the Court and relied upon. The matter has also been fully discussed in Priya Bala Ghosh vs Suresh Chandra Ghosh. In view of the authorities of this Court, therefore, the following position emerges: where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494 if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed. The voidness of the marriage under Section 17 of the is in fact one of the essential ingredients of Section 494 because the second marriage will become void only because of the provisions of Section 17 of the . In these circumstances, therefore, we are unable to accept the contention of Mr. Mulla that the second marriage being void Section 494 will have no application. It was next contended by Mr. Mulla that there is no legal evidence to show that the second marriage which is said to 1176 be a nata marriage was actually performed. We are afraid, we are unable to go into this question because three courts have concurrently found as a fact that the parties were governed by custom of nata marriage and the two essential ceremonies of this marriage are: (1) that the husband should take a pitcher full of water from the head of the prospective wife; (2) that the wife should wear chura by the husband. There is evidence of P.Ws. 2, 3, 4 and 5 who have proved fact that these ceremonies had been duly performed in their presence. That there was such a custom which requires these ceremonies was admitted by D.Ws. 3 and 5 who were examined by the appellant. The evidence led by the prosecution has been accepted by the High Court and the courts below and after perusing the evidence we are not in a position to hold that the finding of facts arrived by the courts below are wrong in law or perverse. From the evidence led by the prosecution, therefore, it has been clearly established that the second marriage which was performed by the appellant Gopal Lal with Gopi was a valid marriage according to the custom of the nata marriage prevalent in the Telli community to which the appellant belonged. This being so and the validity of the first marriage not having been disputed, Section 494 I.P.C. applies in terms and the appellant must be held to have committed the offence of bigamy as contemplated by Section 494 I.P.C. Lastly, Mr. Mulla pressed this appeal on the question of sentence. Bigamy is a serious offence and the maximum punishment under Section 494 is seven years. Therefore, where the offence of bigamy is proved the Court cannot take a very lenient view. In the instant case the appellant was sentenced to two years and a fine of Rs. 2,000/ . It appears that the appellant has already paid a fine of Rs. 2,000/ . In these circumstances, therefore, we feel that the ends of justice will be met by reducing the sentence of imprisonment from two years to one year but maintaining the sentence of fine. With this modification the appeal is dismissed. The appellant will now surrender and serve out the remaining portion of the sentence. S.R. Appeal dismissed. [/INST]The respondents were charged with an offence under section 302, I.P.C. The prosecution case was that on the night of occurrence (which was a moonlight night) the deceased and the prosecution witnesses attended a drama in the Ramlila Grounds of the village and when the deceased, after taking two samosas and tea, was returning home some time past midnight, the respondents shot him dead and that this was seen by them from a distance of 150 yards from the scene of occurrence. The trial court, believing the prosecution version, convicted the respondents. On appeal the High Court rejected the prosecution story and acquitted both the respondents. The State came in appeal to this Court by special leave. Dismissing the appeal, ^ HELD: It is well settled that this Court, in special leave, would not normally interfere with an order of acquittal unless there are cogent reasons for doing so or unless there is a gross violation of any procedure of law which results in serious miscarriage of justice. [2H] Having regard to the glaring defects in the prosecution story this is not a case in which this Court should interefere with the order of acquittal. [3B] In the present case, though it was a moon lit night according to the almanac the moon would have covered three fourths distance on the night of occurrence. Even in the moonlight it would have been difficult for the witnesses to identify the assailants; even if they did, the possibility of mistake in identification could not be completely excluded. According to an authority, when the moon is at the quarter, it is possible to recognise persons at a distance of from 21 ft; in bright moonlight at from a distance of 23 to 33 ft. and at the very brightest period of the full moon at a distance of from 33 to 36 ft. In tropical countries the distance for moonlight may be increased. Therefore, it would not have been possible for the eye witnesses to identify the assailants from a distance of 150 yards. [3E G] After the assailants had given a call and fired at the deceased the witnesses would not have flashed the torch light, as suggested by the prosecution, and exposed themselves to the risk of being shot at. Even if the torches were lighted, in view of the distance, it would not have been possible for the witnesses to identify the assailants with certainty. [4B] Secondly, the medical evidence had shown that the stomach of the deceased was empty and the large intestines too were empty. Therefore, the evidence 2 of the witnesses that the deceased took two samosas after the drama at midnight and before the attack is completely falsified by medical evidence. Another prosecution witness stated that the deceased having had stomach ulcers never took any food at night. Apparently until the deposition of the first witness was complete the prosecution did not realise the gravity of the statement made by him and deliberately introduced a change on a vital issue which by itself is an important circumstance throwing doubt on the prosecution case. While witnesses may lie, circumstances would never. Tho evidence of the doctor, based on conclusive evidence cannot be belied. [4F H] </s>

<s>[INST] Summarize the judgementition (Crl.) No. 648 of 1987 etc. (Under Article 32 of the Constitution of India) D.S. Tewatia, Mukul Mudgal, Rakesh Khanna, P.K. Jain, R.P. Singh, C.V.S. Rao, Prem Malhotra, S.K. Sabharwal, Mahabir Singh, Mrs. Urmila Kapoor and N. Sudhakaran for the appearing parties. The Judgment of the Court was delivered by RANGANATH MISRA, J. These are a batch of writ petitions under Article 32 of the Constitution raising the common claim of entitlement to the benefit of Section 5 of the Punjab Borstal Act, 1926. In each of these writ petitions, the petitioner has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to life imprisonment. The State of Haryana has challenged the claim of the petitioner in each of these writ petitions. Learned counsel for the petitioners has relied upon the decision of this Court in Hava Singh vs State of Haryana & Anr., [1987] 4 SCC 207 in support of the claim advanced in the writ petitions. A two Judge Bench of this Court in that case referred to Section 5 of the Act and E held: "On a conspectus of the aforesaid decision as well as on a consideration of the facts and circumstances the only conclusion follows that the petitioner who has already undergone actual imprisonment for seven years is entitled to be released from detention and from imprisonment. Paragraph 516 B of the Punjab Jail Manual is not applicable in this case as the petitioner who was an adolescent convict below twenty one years of age was sent to the Borstal Institute at Hissar for detention in accordance with the provisions of Section 5 of the Punjab Borstal Act, 1926. He being convicted by the Sessions Judge the maximum period of detention as prescribed by the Act is seven years. We have already said hereinbefore that such an inmate of the Borstal Institute cannot be transferred to jail on the ground that he has attained the age of twenty one years as the said Act does not provide for the same. The only provision for transfer to jail is in the case of incorrigible inmate or inmates convicted of major Borstal Institution offence. " PG NO 143 Reliance was also placed by learned counsel for the petitioners on another two Judge Bench decision of this Court in the case of State of Andhra Pradesh vs Vallabhapuram Ravi; , That was a case under the Andhra Pradesh Borstal Schools Act, 1925 (5 of 1926) and the question for consideration was the same as here with reference to the provision of Section 8 of that Act. The two Judge Bench held that the provisions of the Borstal Schools Act applied to the offence punishable under Section 302 of the Indian Penal Code. Both these cases were referred to in Subhash Chand vs State of Haryana & Ors., ; by a three Judge Bench. It referred to Hava Singh 's case (supra) at length. The three Judge Bench in its judgment referred to the definition of 'offence ' under Section 2(4) of the Punjab Borstal Act which defined 'offence ' to mean "an offence punishable with transportation or rigorous imprisonment under the Indian Penal Code other than (a) an offence punishable with death;" The Court found that Section 302 of the Indian Penal Code provides: "whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine" and proceeded to say again "one of the punishments for the offence of murder to death and, therefore, the offence of murder would be covered within Section 2(4)(i)(a) of the Punjab Act and to such a conviction the Punjab Borstal Act would have no application. Support for such a view is available from several decisions of different High Courts". The Court ultimately held: "In Hava Singh 's case the definition was not placed for consideration before the Court and, therefore, the conclusion which has been reached is not correct. The Punjab Borstal Act does not have application to an offence punishable under Section 302 of IPC". This being a decision of a larger Bench we are bound by it. PG NO 144 In the Webster '6 Third New International Dictionary the follow ing meaning has been given to the word 'punishable ' "Deserving of, or liable to, punishment: capable of being punished by law or right". Aiyar 's the Law Lexicon (Reprint Edition 1987) gives the meaning of 'punishable ' thus: "The word 'punishable ' as used in statutes which declare that certain offences are punishable in a certain way, means liable to be punished in the way designated. " In Bouvier 's Law Dictionary, the meaning of the word 'punishable ' has been given as 'liable to punishment '. In 'Words and Phrases Permanent Edition ', the following meaning has been given: "The word 'punishable ' in a statute stating that a crime is punishable by a designated penalty or term of years in the state prison limits the penalty or term of years to the amount or term of years stated in the statute. " The word 'punishable ' is ordinarily defined as deserving of or capable or liable to Punishment, punishable within statute providing that defendant may have ten peremptory challenges if offence charged is 'punishable ' with death or by life imprisonment; means deserving of or liable to punishment; capable of being punished by law or right, may be punished, or liable to be punished, and not must be punished. 'Corpus Juris Secundum gives the meaning as: 'Deserving of, or liable to, punishment; capable of being punished by law or right; said of persons of offences. The meaning of the term is not 'must be punished ', but 'may be punished ', or 'liable to be punished '. In the absence of a definition of 'punishable ' we have referred to these for gathering the exact meaning of the word. In the sense given to the word, as above, there can be no doubt that the offence of murder is punishable with death even though the punishment awarded is not death but imprisonment for life. PG NO 145 An earlier decision of this Court in Kunwar Bahadur & Ors. vs State of Uttar Pradesh, [1980] Supp. SCC 339, where a two Judge Bench dealt with the provisions of the United Provinces Borstal Act 7 of 1938 was also relied upon. The judgment is a short one. Detailed reference to the provisions of the United Provinces Act has not been made but Section 7 of the Act was referred to and it was observed: "Under this Section where a prisoner is sentenced for transportation i.e. life imprisonment and is below the age of 21 years he should be sent to Borstal School where he cannot be detained for more than five years, The law thus contemplates that for such an offender the sentence of five years will be equivalent even to a higher sentence of life prisonment". Obviously in the United Provinces Act, there is no definition of 'offence ' as available in the Punjab Act. Therefore, the decision in Kunwar Bahadur 's case (supra) is not really material for our purpose. 'Punishable ' carries a meaning 'liable to be punished ' as indicated by the three Judge Bench. Since the offence under Section 302 is punishable with death, the provisions of the Punjab Borstal Act would not cover an offence under Section 302 of IPC and the benefit would not therefore, be available to an accused convicted for the offence under Section 302 IPC. During the hearing of the matters learned counsel for the petitioners had maintained that the provisions of the Punjab Act should be suitably amended to bring about uniformity in the law on the subject. This is a matter for the State and the Legislature and it is for them to consider whether the provision should be suitably amended keeping the modern concept of punishment and treatment of adolescents in view. Each of the writ petitions is dismissed. There would be no order for costs P.S.S. Petitions dismissed . [/INST]The husband of respondent No. l sought eviction of the appellants tenants. The suit was decreed in his favour along with money decree for arrears of rent and damages. During the pendency of the appeal the plaintiff died and his legal representatives were substituted as respondents. Some of his children who were minor were placed under the guardianship of respondent No. 1. Consequent to a petition by the parties a compromise decree was passed setting aside the entire decree. The respondents thereafter challenged the compromise decree. The trial court dismissed the suit. On appeal the first appellate court reversed the decision. The High Court dismissed the appeal, preferred by the appellants. In this appeal by special leave it was contended for the appellants that as a consideration for the compromise they were giving up their right to claim costs which might have been decreed by the appellate court in case of their success on merits. The respondents ' case was that the guardian of the minors was guilty of gross negligence in entering into the compromise by failing to take into consideration the interest of the minors. Dismissing the appeal, HELD: The decision of the courts below does not call for any interference. The compromise decree is fit to be set aside on the ground of gross negligence. [199F; 199Cl The compromise was one sided whereby the minors were giving up their right under the trial court 's decree both in respect of eviction as well as arrears of rent and damages. In view of the provisions of Order XXXII, Rule 7 of the Code of Civil Procedure it was essential for the Court to have PG NO 196 PG NO 197 granted permission to the guardian to enter into the compromise only after considering all the relevant circumstances. [198F; 198C D] The earlier civil appeal is restored to its file before the Additional District Judge for disposal in accordance with law. [l99G] </s>

<s>[INST] Summarize the judgementAppeal No. 686 of 1976. (Appeal by Special leave from the Judgment and Order dated 13 2 1976 of,the Punjab and Haryana High Court in R.S.A. No. 249 of 1976). P.P. Juneja, for the appellants. S.K. Mehta, K.R. Nagaraja and P.N. Puri, for respondent No. 1 The Judgment of the Court was delivered by CHANDRACHUD, J. (1) One Mula executed a registered gift deed in favour of appellant No. 13, Bhagwati Devi, on December 3, 1964. On April 29, 1965, appellants 1 to '12 claiming to be potential reversioners filed Suit No. 143 of 1965 against the donor and the donee for a declaration that under the Punjab Custom (Power to Contest) Act, 1920, the gift deed was not binding on them. The suit was decreed by the trial court on May 31, 1966 and that decree was con firmed in appeal on October 16, 1967. (2) In between, on July 10, 1966 Mula adopted the re spondent. On March 11, 1970, appellant No. 13 executed in favour of appellants 1 to 12 a lease in respect of the property which was the subject matter of the. gift. Mula died on August 28, 1971. (3) On December 13, 1971 respondent filed the present suit against the appellants for possession of certain properties including the property which Mula had gifted to appellant No. 13. The suit was decreed by the trial court on January 29, 1971 and the decree was confirmed in appeal by the District Court and the High Court. (4) On June 3, 1976 appellants filed a special leave petition in this Court challenging the High Court judgment. They raised, inter alia, a new contention (ground No. B) that in decreeing the suit, the courts below had overlooked the relevant provisions of the Punjab Customs (Power to Contest). Amendment Act of 1973, by virtue of which the legality of the gift made by Mula in favour of Bhagwati Devi could not be contested. On June 11, 1976 this Court granted special leave to the appellants limited to the aforesaid Ground (B) of the special leave petition. (5) We have heard an interesting argument from Mr. Juneja, who appears on behalf of the appellants, as regards the true construction and effect of the Punjab Customs (Power to Contest) Act, 1920, as amended in 1973, but we are of the opinion that the argument lacks basis and cannot, therefore, be accepted. The contention, sought to be raised for the first time by the learned counsel, is founded on the assumption that by reason of the Amendment Act of 1973, the gift deed executed by Mula cannot be challenged by the respondent. The assumption on which the argument is founded is fallacious, because the respondent does not seek by his plaint, as indeed he need not have sought, to chal lenge the gift deed executed by Mula in favour of Bhagwati Devi. That gift was challenged by appellants 1 367 to 12 in Suit No. 143 of 1965, and they succeeded in obtain ing a declaration in that suit that the gift was not binding on the reversioners. That decree became final, with the result that as on August 28, 1971, when Mula died, the property which he had sought to gift away to Bhagwati Devi, was free from the encumbrance of the purported gift. By the present suit, the respondent merely asks for possession of the property in respect of which Mula had executed the deed of gift. The basis on which he has asked for that relief is that upon the death of Mula in 1971, the gift ceased to be operative by reason of the decree passed in Suit No. 143 of 1965. It seems to us plain that he has not and he need not have contested the validity of the gift deed since that question was decided finally in the aforesaid suit. (6) Section 7 of the Punjab Custom .(Power to Con test) Act, 1920 provided initially that no person shall contest any alienation of non ancestral immovable property on the ground that such alienation is contrary to custom. This section was amended by section 3 of the Punjab Custom (Power to Contest) Amendment Act, 12 of 1973, as a result of which no challenge could be made to the alienation of any immovable property, whether ancestral or non ancestral, on the ground that it is contrary to custom. It is, therefore, true that if it became necessary after the Amending Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, section 7 of the Act of 1920 would operate as a bar to such a contest. However, as we have stated earlier, it was not necessary for the respondent, in view of the decree passed in suit No. 143 of 1965, to contest the valid ity of the gift. (7) The decision of this Court in Giani Ram vs Ramji Lal(1) may, with advantage be referred to on this point. Under the customary law of the Punjab, the wife and daugh ters of a holder of ancestral property could not sue to obtain a declaration that the allegation of ancestral property will not bind the reversioners after the death of the alienor. But the reversioner who was entitled to chal lenge that alienation could obtain a declaratory decree that the alienation will not bind the reversioners after the alienor 's death. It was held by this Court that such a declaratory decree had the effect of restoring the property alienated to the estate of the alienor and therefore all persons, including the wife and the daughters of the de ceased, were entitled to the benefit of that restoration. Since the property alienated had reverted to the estate of the alienor at the point of his death, the widow and daugh ters, who also became heirs along with the sons under the were held entitled to obtain possession of the ancestral property. Mr. Juneja attempted to get over the effect of this decision by invoking the provisions of section 8 of the Punjab Limitation (Custom) Act, 1 of 1920, which provides that when a person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him, according to. custom, the decree shall enure for the benefit of all persons entitled to impeach the alienation. Counsel argues that since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot ensure for his benefit. The short answer (1) ; 9 436 SCI/77 368 to this contention is that the decree would ensure for the benefit of all persons who are enitled to a share in the property of the deceased as it existed at the moment of his death. Since Mula 's property stood freed from the encum brance of the gift at the moment of his death, respondent as the adopted son would be entitled to the possession of the gifted property. (8) Another facet of the same question can be seen in Chand Singh vs Ind Kaur.(1) A learned Single JUdge of the Punjab and Haryana High Court held therein that though a suit to contest, under the customary law, an alienation of immovable property may not lie after the coming into force of the Amending Act of 1973, a declaratory decree already obtained by a reversioner would continue to be operative as the Amending Act does not render such a decree a nullity. (9) There is thus no substance in the contention raised by the appellants and their appeal must fail. Appellants 1 to 12 shall pay the respondent 's 'costs of the appeal. S.R. Appeal dismissed. [/INST]section 7 of the Punjab Customs (Power to Contest) Act, 1920 provided that no person shall contest any alienation of non ancestral immovable property on the ground that such alienation is contrary to custom. section 3 of the Amendment Act 12 of 1973 amended section 7 with the .result that no challenge could be made to the alienation of any immovable property, whether ancestral or non ancestral, on the ground that it is contrary to custom. A gift deed was executed by one Mula, in favour of appellant No. 13 Bhagwati Deyi, on December 3, 1964. Appel lants 1 to 12 claiming to be potential reversioners obtained a decree on May 31, 1966 in a suit flied against the donor and the donee for a declaration that under the Punjab Cus toms (Power to Contest) Act Z of 1920 the gift deed was not binding on them and that decree was confirmed in appeal on October 16, 1967. On July 10, 1966, Mula adopted the re spondent. On March 11, 1970 appellant No. 13 executed in favour of appellants 1 to 12,, a lease in respect of the property which was the subject matter of the gift. Mula died on August 23, 1971. On December 13, 1971, respondent filed a suit for possession of certain properties including the property which Mula had gifted to appellant No. 13. The suit was decreed on January 20, 1971 and that decree was confirmed in appeal by the District Court and the High Court. In appeal by special leave. , the appellants contended (i) In decreeing the suit the Courts below had over looked the relevant provisions of the Punjab Customs (Power to Contest) Amendment Act, 1973 by virtue of which the legali ty of the gift made by Mula to appellant No. 13 could not be contested and (ii) since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot enure for his benefit, under section 8 of the Punjab Limitation (Custom) Act, of 1920. Dismissing the appeal, the Court HELD: (1 ) That a declaratory decree obtained under the Punjab Customs (Power to Contest) Act by a reversioner to the effect that an alienation would not bind them after the. alienor 's death, had the effect of restoring the property alienated to the estate of the alienor and therefore, all persons who are heirs to the deceased were entitled to obtain possession of the alienated property. [367 E F] (ii) The decree obtained by appellants 1 to 12 on May 31, 1966 would enure for the benefit of all persons who are entitled to a share in the property of the. deceased as it existed at the moment of his death. Since Mula 's property stood freed from the encumbrance of the, gift at the moment of his death, respondent as the adopted son would be en tiled to the possession of the gifted property. [367 H, 368 A] Giani Ram vs Ramji Lal ; , relied on to; Chand Singh vs bid Kaur approved. (iii) It is true that, if it became necessary after the amending Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, section 7 of the Act of 1920 would operate as a bar to such a contest. But in the instant case, the basis on which the respondent has asked for the relief is that upon the death of Mula in 1971, the gift ceased to be operative by reason of the decree passed in suit No. 143/1965. He has not and indeed he need not have contested the validity of the gift deed since the question was decided finally in the aforesaid suit. [367 B D] 366 </s>

<s>[INST] Summarize the judgementivil Misc. Petition (C) No. 13066 of 1989. IN Civil Appeal No. 2628 of 1980. 563 A.K. Sen and V.B. Joshi for the Petitioner. G.L. Sanghi, C.M. Lodha, Shankar Ghosh, H.M. Singh and C.P. Mittal for the Respondents. The Judgment of the Court was delivered by V. RAMASWAMI, J. In this petition the petitioner has prayed for convicting Respondents 1 and 2 for committing the contempt of this Court by violating the terms and conditions of the undertaking filed in Civil Appeal No. 2628 of 1980 and for a direction that whosoever is in possession of the suit premises be handed over to the petitioner. The peti tioner as the owner and landlord of the property, Tika No. 3, City Survey House, bearing No. 344/345, Jambli Naka, Thane, consisting of ground floor, first floor and second floor in which the business of restaurant known as Ramakr ishna Hindu Hotel or Ramakrishna Hotel is carried on, filed Civil Suit No. 2 13 of 1970 in the Court of Civil Judge, Senior Division, Thane, against the first respondent and four others, by name, P.A. Dange, V.A. Dange, Haribhan Shivale and Giri Anna Shetty for eviction from the above said premises. The suit was decreed by the Trial Court. The first respondent who was the first defendant in the suit alone filed an appeal against this decree before the Dis trict Court. The appeal was dismissed confirming the order of eviction. Thereafter, the first respondent filed writ petition No. 354 of 1975 in the High Court of Bombay and that writ petition was also dismissed. Though defendants 2, 3, 4 and 5 did not file the appeal or take the matter fur ther to the High Court they were implead as respondents in the appeal and the writ petition filed by the first respond ent herein. The first respondent thereafter filed Civil Appeal No. 2628 of 1980. The said appeal was dismissed by this Court on 18th of August, 1987. However, at the request of the appellant this Court allowed the appellant to contin ue to be in possession and carry on the business till 31.3.1989 subject to the "appellant and all those persons who are now occupying the premises as employees or staff and are staying in the premises file an usual undertaking in this Court within eight weeks from today stating inter alia that they will hand over and deliver over vacant possession of the premises on the expiry of the period mentioned above and also indicate that they will go on depositing the mesne profits until the possession is delivered. In default of furnishing or filing the undertaking in the manner indicat ing within the 564 time aforesaid the decree of execution shall become executa ble forthwith." In pursuance of this order the first respondent K.M.M. Shetty filed an undertaking on 5.10.1987. The first respond ent through his advocate had produced the muster roll show ing the names of persons employed by him for running the hotel business in the suit premises as well as a list of persons staying in the said hotel. This list showed 17 persons as being the employees and persons staying in the hotel, and as directed by this Court the 17 persons also filed an undertaking. Some time in the beginning of 1989 one Raghuram A. Shetty second respondent in the contempt application filed Civil Suit No. 306 of 1989 in the Thane Civil Court before the IIIrd Joint Civil Judge, Senior Division, Thane, for a declaration that the decree for eviction obtained in respect of the suit premises in Civil Suit No. 2 13 of 1970 cannot be executed against him and for a permanent injunction, against the petitioner herein. Pending the suit he had also filed an application under Order 39 Rule 1 and 2 read with section 151 of CPC for a temporary injunction from executing the decree for eviction. By an order dated 5.4.1989, the IIIrd Joint Civil Judge, Thane, granted a temporary injunc tion against the petitioner herein restraining him upto the disposal of Civil Suit No. 306 of 1989 from executing the decree for eviction given in Civil Suit No. 213 of 1970. Thereafter, the petitioner has filed this contempt petition both against his original tenant K.M.M. Shetty and also against the second respondent who was the plaintiff in Civil Suit No. 306 of 1989. The second respondent has filed a reply statement in which he has contended that P.A. Dange had taken over the hotel business which was being carried on by the tenant K.M.M. Shetty in the name and style of "Ramkrishna Hindu Hotel" at the ground floor of the suit premises on 29.11.1986 and under an agreement dated 2nd January, 1967 the said P.A. Dange with the consent of the tenant trans ferred the said business and the exclusive possession of the hotel to the second respondent herein. Subsequently there was another agreement executed between the tenant and the second respondent on 1.8.1972 under which the second re spondent was paying royalty to the tenant and that to the knowledge of the petitioner he was in the occupation of the premises and carrying on the business and that in spite of it he had not been impleaded in the eviction suit or the subsequent proceeding and that therefore he was not bound by the decree for eviction. A 565 rejoinder has been filed by the landlord petitioner to this reply. As stated earlier the Suit No. 213 of 1970 was filed by the petitioner for eviction not only against the original tenant K.M.M. Shetty but also against P.A. Dange, V.A. Dange and two others. The case of the petitioner landlord was that the tenant had sub let the premises to the said P.A. Dange defendant No. 2 and V.A. Dange defendant No. 3. The tenant filed written statement contending that he had allowed the second defendant to manage and conduct the said hotel busi ness under the terms and conditions set out under an agree ment made and entered into between them and that Municipal licence for the business had always been and still in the name of the tenant first defendant. Neither P.A. Dange nor V.A. Dange ever stated that they had parted with the posses sion to the second respondent either as a licensee or in any other capacity. Again in the Writ Petition No. 354 of 1975 filed in the High Court the first respondent had stated that P.A. Dange was permitted to conduct the said business under an agreement dated 29th February, 1970 on his paying the tenant a sum of Rs.500 per month by way of royalty, that this agreement was subsequently renewed on 29th January, 1970 increasing the royalty amount from Rs.500 to Rs.600 per month but, however, during the pendency of the appeal before the learned District Judge, Thane, defendants 2 and 3 had returned the business together with the premises, stock in trade, furniture, fittings and all paraphernalia which were given to them for conducting the said business to the first respondent herein and that the first respondent had been in sole possession and occupation of the said premises and of the business conducted therein and he himself had been carrying on the business from that time. Again in this Court when he filed the special leave petition the first respond ent prayed for stay of dispossession. This Court by an order dated 5th November, 1980 granted stay of dispossession on condition that the respondent will continue to pay compensa tion equivalent to rent every month regularly to the peti tioner herein and that he shall not induct anybody else in the premises in question. When the petitioner received notice in Civil Suit No. 306 of 1989 he sent the lawyer 's notice dated 14th March, 1987 to the first respondent inviting his attention to the undertaking given by him to vacate the premises before the 31st of March, 1989 and the consequences that may follow, if in breach of the said undertaking, he does not hand over possession. In this notice he also brought to the notice of the first respondent that the suit was filed at the instiga tion of the first respon 566 dent and charged collusion between first and second respond ent and stated that the suit is based on false and ficti tious allegations intentionally made to postpone the date of delivery of the premises. The first respondent sent a reply to this notice on 23.8.1989 stating that he is not at all concerned in any manner whatsoever with the suit filed by the second respondent, and that he would be filing necessary affidavit in the Suit No. 306 of 1989. The first respondent filed an affidavit in the suit in which also he stated that he had nothing to do with the suit filed by the plaintiff and denied the claim of the plaintiff and further stated that the suit premises had to be handed over to the peti tioner by 31.3.1989 as per his undertaking given in this Court. He had also prayed the Court to pass "such suitable orders to facilitate compliance of the orders" of this Court in respect of the suit premises. he had enclosed copy of his reply to the lawyer 's notice sent by him to the petitioner along with this affidavit. However, for the first time in the reply filed to the contempt application the first re spondent had stated that "the petitioner has with ulterior motives deliberately withheld from this Hon 'ble Court mate rial facts i.e. the respondent No. 1 has not been (in land lord 's knowledge) in the suit premises since 1967 i.e. even before the suit for eviction was filed in the trial court" and that "at that time of final hearing of the appeal, it was landlord 's duty to bring to the notice of this Hon 'ble Court that the answering respondent is not in possession of the dispute premises. " He had further stated that when the undertaking was filed by him he was not in possession of the suit premises and that it was well within the knowledge of the landlord. He had also stated that the second respondent had been in possession of the suit property. We cannot now accept this statement of the first respondent that he was not in possession at the time when he gave the undertaking on the facts and circumstances stated above. If the second respondent is in possession as he claims now, it would mean that the first respondent had been playing a fraud on the Court, and sweating false affidavits and making false state ments and obtaining orders on the basis of such false state ments. It may be noted, however, that there was absolutely no need for making such false allegations and obtain orders which are of no use to him if he had not been in possession, as stated now. If it is said that he might have been moti vated by a desire to spite the landlord and to deprive him of the possession it would clearly be an abuse of the proc ess of the Court. Throughout P.A. Dange and the first respondent who were stated to have given a licence to the second respondent for carrying on the business were parties to the proceedings but they never informed 567 the Court about the possession being with the second re spondent. As already stated the learned counsel for the first respondent produced in this Court at the time of hearing of the Civil Appeal the muster roll for running the hotel as well as a list of persons who are stated to be staying in the hotel. In that list the second respondent 's name did not find a place. Now if the first respondent states that the second respondent had been in the possession of the suit premises and carrying on the hotel business ever since 2nd January, 1967 the first respondent is guilty of deliberately suppressing the facts and giving a false under taking to this Court that he is in possession of the suit premises. In the Civil Suit No. 306 of 1989, the second respondent had prayed for the injuction on the basis that he was a licensee originally from P.A. Dange and later under the tenant himself and that though there was no privity between the petitioner and the second respondent, by reason of certain amendments to the Bombay Rents, Hotel and Lodging House Rates Control Act he had become the tenant directly under the petitioner herein and entitled to protection. An interim injuction has been granted by the IIIrd Joint Civil Judge, Thane, on the ground that it is necessary, till the plaintiff establishes his right, to allow him to be in possession. The learned Judge was not well founded in this view. In the light of the earlier statements made by the first respondent K.M.M. Shetty, P.A. Dange and V.A. Dange in the eviction proceedings and in this Court and in the light of the undertakings given by the first respondent and 17 others the learned Judge should have directed the plaintiff to prove his claim in the suit first before any relief is given against the defendants pending the suit. It may be mentioned that the argument of the learned counsel of the petitioner was that the first respondent had falsely insti gated the second respondent to file the suit and obtain an injunction. If this contention is true then the first re spondent is guilty of contempt in not handing over vacant possession as per the undertaking and in fact the second respondent would equally be guilty as abetor of the breach. However, we are not going into the question of the second respondent 's right in Civil Suit No. 306 of 1989 and that may have to be decided after trial. Suffice it to say that we are of the view that the order of injunction against the petitioner from executing the decree against the second respondent is not justified in this case. We would like to add that as the facts of the undertaking given and the various statements made by the tenant in the eviction pro ceedings were before him, we would have expected the learned Civil Judge, Thane, to have directed the parties to obtain a clarification from this Court, if there 568 was any doubt as to the executability of the decree passed by this Court. Be that as it may, we now direct that that portion of the order granting injunction against the petitioner from executing the eviction decree against the second respondent, on the facts and circumstances of this case, shall not be operative and that petitioner is entitled to execute the decree for eviction against all persons who are in posses sion of the property. Now coming to the question of relief that is to be granted to the petitioner and the punishment to be imposed on the first respondent, the learned counsel for the first respondent contended that his client is an old man of more than 84 years and that in fact though he was willing to hand over vacant possession, on the facts and circumstances he could not comply with undertaking bona fide. When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an under taking given to the Court by or on behalf of a party to a civil proceedingS. is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the per sons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt. The remedy in such circum stances may be in the form of a direction to the contemnor to purge the contempt or a sentence imprisonment or fine or all of them. On the facts and circumstances of this case in the light of our finding that there was a breach of the undertaking we think that mere imposition of imprisonment or fine will not meet the ends of justice. There will have to be an order to purge the contempt by directing the first respondent contemnor to deliver vacant possession immediate ly and issuing necessary further and consequential direc tions for enforcing the same. In the foregoing circumstances, we find the first re spondent guilty of committing contempt by wilful disobedi ence of the undertaking given by him in this Court and accordingly we convict him and 569 sentence him to pay a fine of Rs.500 within the period of four weeks, failing which he shall suffer simple imprison ment for one month, and also direct him to deliver vacant possession of the premises forthwith to the petitioner to the extent possible by him. We further direct the District Magistrate, Thane, to evict all those who are in physical possession of the property including the 2nd respondent and his men and if necessary with police help and give vacant possession of the premises to the petitioner forthwith. However, we discharge the rule issued against the second respondent. [/INST]The Respondent landlord filed a petition under section 14(1)(b) of the Delhi Rent Control Act 1958 for an order of eviction of the appellant tenant from a shop situate at G.T. Road, Delhi on the ground that the tenant Duli Chand had sub let or parted with the possession of the said shop after the 9th of June 1952 to M/s Hira Lal Sri Bhagwan illegally and without the written consent of respondent landlord. The contention of the appellant tenant was that he had not sub let or parted with the possession of the shop in ques tion. According to him Hiralal was his relative who died sometime prior to 1958 and that Sri Bhagwan was his son and the name of the business as M/s Hiralal Sri Bhagwan & Compa ny was given in memory of the deceased Hira Lal. In reply, the Landlord respondent had contended that it was true that Sri Bhagwan was the natural son of Duli Chand but since he had given him in adoption to Hiralal, he had gone out of the family of the appellant and as such it was a clear case of sub letting and parting with the possession of the rented premises. The Rent Controller, held that the land lord had failed to prove parting with possession of the tenanted shop. On appeal by the landlord, the Rent Control Tribunal held that the tenant had parted with the legal possession of the premises and in that view ordered the eviction of the appel lant tenant under section 14( 1 )(b) of the Act. Thereupon the appellant tenant preferred second appeal before the High Court. The High Court having affirmed the finding of the Tribunal that the appellant tenant had parted with the possession of the premises in dispute, dismissed the appeal. Hence this appeal by the tenant. Dismissing the appeal, this Court, HELD: Section 14(1)(b) requires a "Consent in Writing" of the landlord in order to avoid an eviction on the ground of sub letting, 466 assigning or otherwise parting with the possession of the whole or any part of the premises. [472B] Mere permission or acquiescence will not do. The consent shah also be to the specific sub letting or parting with possession. The requirement of consent to be in writing was to serve a public purpose i.e., to avoid dispute as to whether there was consent or not. [473C] If the words were "without consent of the landlord" it might mean without consent, express or implied and in that sense question of waiver may arise. The question of implied consent will not arise, if the consent is to be in writing. [473E] In the instant case, though there is some evidence to show that the sign board M/s Hira Lal Sri Bhagwan was seen in the premises since 1972 and the landlord had seen Shri Bhagwan sitting in the shop since the year 1968, there is no positive evidence to show when the landlord had come to know of Sri Bhagwan getting the exclusive possession and doing business in the premises. [471G] Jagan Nath (deceased) through L. Rs. vs Chander Bhan & Ors., ; ; Lakshman Singh Kothari vs Smt. Rup Kanwar, ; ; Bai Hira Devi & Ors. vs The Official Assign ee of Bombay; , ; Associated Hotels of India Ltd., Delhi vs S.B. Sardar Ranjit Singh, ; and M/s Shalimar Tar Products L,d. vs H.C. Sharma & Ors. , ; , referred to. </s>

<s>[INST] Summarize the judgementN: Criminal Appeal No. 483 of 1980. From the Judgment and Order dated 6.11.79 of the Andhra Pradesh High Court in Crl. A. No. 789 of 1979. T.V.S.R. Krishna Sastry, Vishnu Mathur and V.B. Saharya, Amicus curiee (NP) for the Appellants. G. Prabhakar for the Respondent. The Judgment of the Court was delivered by KASLIWAL, J. Twelve persons were challaned for the murder of Nethala Veeraswamy, a resident and Sarpanch of village Ramaraogudem in Eluru Taluq, West Godavari District (A.P.) in the night of 31.12.1977. Learned Sessions Judge, West Godavari Division, Eluru tried the case and relying on the evidence of P.Ws. 1,2 and 7 in toto and the evidence of P.W.3 to some extent convicted all the accused persons for the offences charged under Section 302 read with Section 149 I.P.C. and awarded each one of them sentence of imprisonment for life and other minor terms of imprisonment for other offences. On appeal the High Court set aside the conviction and sentence of seven accused persons, namely, Dasari Bhaskara Rao (A 4), Kali China Krishna (A 5), Namburi Lakshmana (A 8), Namburi Ramulu (A 9), Namburi Prasada Rao (A 10), Mada Govardhana Rao (A 11) and Kali Kamaka Rao (A 12). The High Court confirmed the conviction of the remaining five accused persons Mullagiri Vajram (A 1), Mada Lakshmandas (A 6) and Gandi Abraham (A 7) under Section 302 read with Section 149 I.P.C. and sentenced them to imprisonment for life. The High Court further held that as these accused had been sentenced for the main offence under Section 302 read with Section 149 I.P.C. there was no need of separate sentence under Sections 148 and 147 I.P.C. The five accused A 1, A 2, A 3, A 6 & A 7 have come before this Court in appeal against the order of the High Court by grant of Special Leave. Mada Lakshmandas (A 6) expired during the pendency of appeal before this Court as such the appeal filed by him was dismissed as having abated by order dated 8.4.1992. We are now concerned in this appeal with the four accused appellants A 1, A 2, A 3 and A 7. We have gone through the Judgment of the lower courts and have perused the record and have considered the arguments advanced by learned counsel for the parties. The High Court has considered the prosecution evidence in detail and has placed reliance on the statements of P.Ws. 1,2,3 and 4 as eye witnesses of the incident. The High Court has placed implicit reliance on the testimony of P.W.2 and who was a clerk working in the panchayat office of Ramaraogudem and had accompanied the deceased in an autorickshaw and had seen the incident. We find no infirmity in the statement of P.W.2 and the High Court has rightly placed reliance on his evidence. Learned counsel for the accused persons submitted that even if the statement of P.W.2 is taken to be correct, no offence is made out so far as accused (A 3) is concerned. Learned counsel in this regard submitted that P.W.2 in the cross examination has admitted that he did not state the name of A 3 in his statement recorded under Section 164 Cr. It was also submitted that though P.W. 2 stated that he had given the name of A 3 in his statement recorded at the inquest but the name of A 3 does not find mention in exhibit D 7, the statement of P.W.2 recorded at the inquest. We see force in the aforesaid contention. A perusal of the statement of P.W.2 shows that he did not make a mention of the name of A 3 in his statement recorded under Section 164 Cr. P.C. and also in his statement exhibit D 7 recorded at the inquest. In view of these circumstances the accused A 3 is also entitled to the benefit of doubt. It was next contended by learned counsel on behalf of the accused A 2 and A 7 that P.W.2 in the cross examination admitted that after the incident he had gone to police station seven or eight times. He had gone to the police station as he was asked by the police. He also admitted that at that time accused persons were in police lock up. On the basis of the aforesaid statement of P.W.2 it was contended that when P.W.2 had gone to the police station scene or eight times after the incident the possibility of his seeing the accused (A 2) and (A 7) in the police station cannot be ruled out. It was thus contended that any identification parade held on 25.1.1978 and 26.1.1978 has no value as P.W.2 had already seen the accused persons in the police station. We find no force in this contention. Exhibits P 16 and P 17 are the proceedings of identification parade held on 25.1.1978 and 26.1.1978 respectively. A perusal of these documents shows that P.W.2 Garapati Krishnavatharam had himself stated that he had prior acquaintance with Mullagiri Yesupadam (A 2) and Gandi Abraham (A 7). The High Court has examined this aspect of the matter and has rightly arrived to the conclusion that P.W.2 in his evidence has stated that he came to know the names of the accused from the children of the deceased and it was not unnatural for a person, who resides in a village for a period of two months and especially when they reside opposite to the residence of the president(deceased) in whose office he was working as a clerk to know the names of the persons residing nearby. P.W.2 himself admitted at the time of holding the identification parade that he had prior acquaintance with A 2 and A 7. P.W.2 is a witness of sterling worth and both the trial court and the High Court have placed reliance on his testimony. He had identified A 1, A 2 and A 7 in the Court. Their conviction is not based on the identification parade but on the statement of P.W.1 AND P.W.2 made during the trial as eye witness. It is established beyond any manner of doubt that there were two factions and long standing rivalry in between the two groups in the Village. The accused persons belonged to the group headed by A 6, A 7 and the deceased was the leader of the other group. Nethalaveeraswamy the deceased was given merciless beatings and was done to death in the midnight of 31.12.1977. He was found to have 26 external injuries as recorded in the autopsy of his dead body conducted by the Doctor. It has also been found established by the learned trial court as well as by the High Court that A 1 inflicted injuries by and axe and A 2 by a spear and A 7 was Court that A 1 inflicted injuries by an axe and A 2 by a spear and A 7 was among the other persons who inflicted injuries by a stick. It has also come in the evidence of P.W. 19, Inspector of Police that the accused persons had absconded and on 9.1.1978 on information by 5.00 A.M., he along with mediators visited Ramaraogudem and the absconded accused were hiding in the house of A 7. He surrounded the house with his staff, guarded the house and in that house he found the twelve persons against whom the case was challaned. It has also been proved by the prosecution that A 7 was the leader of the rival faction against the deceased. Thus we find that there is no infirmity at all in the reasoning and conclusion arrived at by the High Court so far as accused A 1, A 2 and A 7 are concerned. In the result we allow the appeal so far as Dasari Bhima Rao (A 3) is concerned and he is acquitted of all the charged levelled against him his bail bonds shall stand discharged. The appeal filed by Mullagiri Vajram (A 1), Mullagiri Yesupadam (A 2) and Gandi Abraham(A 7) is dismissed. They shall surrender to their bail bonds and serve out the sentence awarded to them by the High Court. N.P.V. Appeal disposed of . [/INST]The appellant 's father let out the disputed building wherein the tenant respondent carried out the hotel business. The appellant landlord filed an eviction petition on 15.1.81 before the Rent Controller stating that after his retirement from service on 30.9.1981, he wanted to settle down in that town and as he had no other house to reside, the disputed building was required by him bona fide for his occupation; that the respondent tenant was using the property in such a manner as to materially and permanently reduce its value, utility and purpose. The respondent contended that the building was not suitable for residential purposes; that the appellant had a house and plot in his wife 's name within the town; that there was a lot of vacant land on the back side of the tenanted building, which was suitable for house construction and that the property was not being used in such a way as to reduce its utility. The trial court dismissed the eviction petition of the landlord, holding that as he failed in proving his bona fide need of the building, the landlord was not entitled to an order of eviction under Section 11(3) of the 71 Kerala Buildings (Lease & Rent Control) Act, 1965 and as the landlord failed to prove that the tenant was using the building in such a way to destroy its value and utility, he was not entitled to an order under section 11(4)(ii) of the Act. On appeal, the Appellate Authority reversed the order of the Rent Controller. The High Court in revision set aside the order of the Appellate Authority, against which the present appeal by special leave was filed before this Court by the landlord. On the question, whether the respondent was liable to be evicted on the ground of bona fide need of the appellant for his personal occupation under section 11(3) of the Act, this Court allowing the landlord 's appeal, HELD:1.1. The scope of the revisional jurisdiction conferred under section 20 is wider than that conferred under section 115 CPC. But at the same time, a revision under section 20 cannot be equated with an appeal. [75 C] 1.2. The revisional power conferred on the High Court is essentially a power of superintendence and despite the wide language employed, the High Court should not interfere with the findings of fact of the subordinate authority merely because it does not agree with the said findings. [75 E] Dattonpant Gopalverao Devakate vs Vithabrao Maruthirao Janagaval, [1975] Supp. SCR 67; M/s. Sri Raja Lakshmi Dyeing Works & Ors. vs Rangaswamy Chettiar, AIR 1980 SC 1253, followed. The revisional court must be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own,so long as the evidence on record admitted on and supported the one reached by the court below. [75 F] Rajbir vs section Chokesiri & Co., at p.37, followed. The question whether the building is required bona fide by the appellant for his own residence is primarily one of fact and the finding recorded by the Appellate Authority after considering the evidence on 72 record could not be interfered with by the High Court in exercise of the revisional jurisdiction under Section 20 of the Act because it could not be said that the said finding recorded by the Appellate authority was not supported by the evidence on record. [77 E] 2.2. The fact that the appellant has been living with his son in the house belonging to him (son) cannot head to the inference that the claim of the appellant that he want to live in a house of his own is false and not bona fide. The same is true about the building in question not having the requisite facilities and being not in a fit condition for residence because the appellant can make suitable repairs and alterations in the same to make it fit for residential purposes. [78 B C] 2.3. The claim of the landlord that he needs the building bona fide for his personal occupation cannot be negatived on the ground the the building requires repairs and alterations before the landlord can occupy the same. [78 D] 2.4. There is no prohibition that a landlord must occupy the house for residence without making any alterations in it. [78 H 79A] Devaky vs Krishnankutty, , approved. Ramniklal Pitambardas Mehta vs Indradaman Amratlal Sheth, ; , followed. Before passing a decree for eviction on the ground of bona fide need of the landlord under section 11(3) of the Act, it was necessary for the Appellate Authority to consider whether the tenant was entitled to the benefit of the second proviso to sub section (3) of section 11 of the Act which precludes the passing of an order for eviction of a tenant who is depending for his livelihood mainly from the trade or business carried on in such building and there is no other suitable building available in the locality for him to carry on such trade or business. [79 C] 3.2. Since the Appellate Authority has omitted to consider the matter from this angle the matter should be remanded to the Appellate Authority for considering the question whether the respondent can invoke the protection of the second proviso to section 11(3) of the Act. [79 G 80A] 73 </s>

<s>[INST] Summarize the judgementAppeals Nos. 196 to 201 of 1953. Appeals from the judgment and decrees of the Punjab High Court dated December 30, 1949, in Civil Regular Appeals Nos. 1567, 1568, 1569, 1570, 1573 an& 1574 of 1942 arising out of the decrees dated July 31, 1942, of the Court of the District Judge, Hoshiarpur in Appeals Nos. 104/35 of 1941 42,101/32 of 1941, 103/34 of 1941/42) 15/73 of 1941, 102/33 of 1941/42 and 120 of 1941 arising 'out of the decrees dated July 24, 1941, of the Court of Subordinate Judge, 4th Class, Kangra in Suits Nos. 544, 548, 545, 547, 546 and 549 of 1940. Bang Beharilal and K. R. Chaudhury, for the appellant. 891 Ganpat Rai, for the respondent. S.M. Sikri, Advocate General for Punjab, Jindra Lal and R. H. Dhebar, for the Intervener (State of Punjab). October 23. The Judgment of the Court was delivered by section K. DAS J. These are six appeals by the plaintiff Raja Rajinder Chand, the superior landlord (alamalik) of Nadaun Jagir in the district of Kangra. He brought six suits in the Court of the Subordinate Judge of Kangra for a declaration that he was the owner of all pine (chil pinus longifolia) trees standing on the lands of the defendants within the said Jagir and for a permanent injunction restraining the latter from interfering with his rights of ownership and extraction of resin from the said trees. He also claimed specified sums as damages for the loss caused to him from the tapping of pine trees by different defendants from March 24, 1940, up to the date when the suits were brought. The defendants, who are the adnamaliks (inferior landlords), pleaded that they were the owners in possession of the lands on which the trees stood, that the trees were their property, and that the plaintiff had no right to the trees nor had he ever exercised any right of possession over them. Three questions arose for decision on the pleadings of the parties. The first question was whether all pine trees standing on the lands in suit were the property of the plaintiff, i.e., the present appellant. The second question was one of limitation, and the third question related to the quantum of damages claimed by the appellant. The learned Subordinate Judge, who dealt with the suits in the first instance, held that the present appellant had failed to prove his ownership of the trees. He further held that the suits were barred by time. On the question of damages, he held that if the appellant 's claim to ownership of the trees were established, some of the defendants in four of the suits would be liable for small amounts of damages. In view, how 892 ever, of his findings on the questions of ownership and limitation, lie dismissed the suits. Raja Rajinder Chand then preferred appeals from the judgment and decrees of the learned Subordinate Judge, and the appeals were heard by the learned District Judge of Hoshiarpur. The latter reversed the finding of the ,learned Subordinate Judge on the question of ownership and held that the present appellant had established his right to the trees in question. He also reversed the finding of the learned Subordinate Judge on the question of limitation, but accepted his finding as to damages. Accordingly, he allowed the appeals, set aside the judgment and decrees of the learned Subordinate Judge, and gave the appellant the declaration and order of injunction he had asked for, as also damages in four of the suits as assessed by the learned Subordinate Judge. The defendants then preferred second appeals to the Punjab High Court. On the main question as to whether the present appellant had been able to establish his right to the trees, the learned Judges of the High Court differed from the learned District Judge and, agreeing with the learned Subordinate Judge, held that the present appellant bad not been able to establish his right to the trees. On the question of limitation, however, they agreed with the learned District Judge. In view of their finding that the appellant bad failed to establish his right to the trees, the appeals were allowed and the suits brought by the appellant were dismissed. The High Court gave a certificate that the cases fulfilled the requirements of sections 109(c) and 110 of the Code of Civil Procedure. These six appeals have come to this Court on that certificate. We have heard these appeals together, as the questions which arise are the same. The present judgment will govern all the six appeals. The short but important question which arises in these appeals is whether the present appellant has been able to establish his right to all pine (chil) trees standing on the suit lands of the defendants. The question is of some importance, as it affects the rights of ala and adna maliks in Nadaun Jagir. The res 893 pondents have not contested before us the correctness of the finding of two of the Courts below that the suits were not barred by time; therefore, the question of limitation is no longer a live question and need not be further referred to in this judgment. Though the main question which arises in these six appeals is a short one, a satisfactory answer thereto requires an examination of the history of the creation of Nadaun Jagir, of the land revenue and revisional settlements made of the said Jagir from time to time, and of the various entries made in the record of rights prepared in the course of those settlements. Before we advert to that history, it is necessary to indicate here the nature of the claim made by the present appellant. The plaints of the six suits were very brief and did not give sufficient particulars of the claim made by the appellant. We may take the plaint in Suit No. 544 of 1940 by way of an example; in para 1 it was stated that the land in question in that suit was in tappa Badhog and the appellant was the superior landlord thereof; then came para 2 which. said "The land is situate in Nadaun Jagir. All the pine trees standing on the aforesaid land belong to the plaintiff. He alone enjoys benefit of those trees. This has always been the practice throughout". In a later statement of replication. dated October 26, 1940, the plaintiff appellant gave some more particulars of his claim. The learned Subordinate Judge, who tried the suits in the first instance, observed that the present appellant based his claim to ownership of the trees on three main grounds: first, on the ground that the land itself on which the trees stood belonged formerly to the ancestors of the present appellant (namely, the independent rulers of Kangra) and they gave the land to the ancestors of the adna maliks but retained their right of ownership in all pine trees; secondly, after the conquest of Kangra by the British, the rights of ownership in the pine trees belonged to the British Government and the rights were assigned to Raja Jodhbir Chand, the first grantee of Nadaun Jagir; and thirdly, the right of the appellant in the 894 trees had been "vouchsafed" by the entries made in the Wajib ul arz and recognised in several judicial decisions. The Courts below considered the claim of the appellant on the aforesaid three grounds, and we propose to consider these grounds in the order in which we have stated them. It is now necessary to advert to the history of the creation of Nadaun Jagir so far as it is relevant for considering the claim of the appellant on the first two grounds. Admittedly, the suit lands lie in Badhog and Jasai tappas comprised within the Jagir of Nadaun in the district of Kangra. The last independent ruler of Kangra was Raja Sansar Chand who died in the year 1824. Raja Sansar Chand was a Katoch Rajput and had children from two women; one of them, who was a Katoch lady, was his properly married wife and Raja Sansar Chand bad a son by her, named Raja Anirudh Chand. The other woman was of the Gaddi tribe and by her Raja Sansar Chand had a son, named Raja Jodhbir Chand. The great antiquity of the Katoch royal line is undoubted, and the history of the Kangra State from the earliest times right up to its conquest by the Sikhs under Maharaja Ranjit Singh has been traced in the Kangra District Gazetteer (1924 25) at pp. 52 to 76. We are not concerned with that history prior to the time of Raja Sansar Chand. The Gazetteer states (p. 75) that Raja Sansar Chand was for 20 years the "lord paramount of the hills and even a formidable rival to Ranjit Singh himself; but his aggressive nature led him on in his bold designs and be fell at last a victim to his own violence". With him the glory of the Katoch line passed away and what remained to his son Anirudh Chand was little more than a name. Anirudh Chand was summoned several times to the Sikh camp and on the third occasion of his visit to that camp, be was met by a very unacceptable dein and Raja Sansar Chand had left two daughters, and Raja Dhian Singh of Jamun, one of the principal officers of Maharaja Ranjit Singh, asked one of the daughters to be given in marriage to his son, Hira Singh. Anirudh Chand was afraid to refuse, though 895 in reality he regarded the alliance as an insult to his family honour; because by immemorial custom a Katoch Raja 's daughter may not marry any one of lower rank than her father, i.e., a Raja or an heirapparent. Anirudh Chand was a Raja in his own right and the descendant of a long line of kings, while Dhian Singh was a Raja only by favour of his master. Anirudh Chand prevaricated for some time; but he was determined to sacrifice everything rather than compromise the honour of his ancient line. He secretly sent away his family and property across the Sutlej and on hearing that Maharaja Ranjit Singh had started from Lahore for Nadaun, he fled into British territory. Maharaja Ranjit Singh came to Nadaun, and Jodhbir Chand gave his two sisters to the Maharaja. Jodhbir Chand was then created a Raja, with Nadaun and the surrounding country as his Jagir. Mian Fateh Chand, younger brother of Raja Sansar Chand, offered his granddaughter to Raja Hira Singh. He was also rewarded with the gift of a Jagir known as the Rajgiri Jagir and received the rest of the State on lease on favourable terms. His son, however, failed to pay the amount agreed upon. The State was then annexed to the Sikh kingdom, and only the Rajgiri Jagir was reserved for the royal family. Thus by 1827 28 Kangra had ceased to be an independent principality and was to all intents and purposes annexed to the Sikh kingdom, the son of Mian Fateh Chand and Raja Jodhbir Chand occupying merely the position of Jagirdars tinder the Sikhs, The present appellant, Raja Rajinder Chand, is a direct lineal descendant of Raja Jodhbir Chand, being fourth in the line of descent. Then followed the Sikh wars and the establishment of British rule in Kangra. The first Sikh war ended in March 1846, in the occupation of Lahore and the cession to the British Government of the Jullunder Doaba and the hills between the Sutlej and the Ravi. In 1848, the second Sikh war began and Raja Parmudh Chand, one of the sons of Raja Anirudh Chand, raised the standard of rebellion in Kangra. The rebellion however failed. Meanwhile, Jodhbir Chand 896 remained conspicuous for his fidelity to the British Government; both in the Sikh war and in the Katoch insurrection he did good service to the British. He obtained a Sanad from the British Government in 1846. A copy of that Sanad was not available, but a copy of a Sanad granted on October 11, 1848, which renewed and clarified the earlier Sanad, was produced and exhibited on behalf of the present appellant. We shall have occasion to refer to this Sanad in detail at a later stage. Having thus indicated in brief the earlier history with regard to the creation of Nadaun Jagir in favour of Raja Jodhbir Chand, we now proceed to consider the first two grounds of the claim of the appellant. The learned Judges of the High Court held, in agreement with the learned Subordinate Judge, that the present appellant could not claim the sovereign rights of Raja Sansar Chand who was an independent ruler of Kangra. For this finding they gave two reasons; firstly, Raja Jodhbir Chand was an illegitimate son of Raja Sansar Chand and could not succeed to the rights of the Raja; secondly, whatever rights Raja Sansar Chand had as an independent ruler of Kangra came to an end (so far as his descendants were concerned) with the annexation of his territory by the Sikhs, and Raja Jodhbir Chand merely got an assignment of land revenue to the tune of Rs. 30,000 by the grant. of Nadaun Jagir by Maharaja Ranjit Singh. We accept these as good and convincing reasons for discountenancing the claim of the appellant that the sovereign rights of the independent rulers of Kangra in respect of all royal trees (including pine trees) within Nadaun Jagir had come down to him. For the purposes of these cases we may accept the position, in support of which there is some historical material, that Raja Sansar Chand had a right to all royal trees including pine trees within his territory; but it is clear to us that neither Raja Jodhbir Chand nor the present appellant succeeded to the rights of the independent rulers of Kangra. Raja Jodhbir Chand was a grantee under a grant first made by Maharaja Ranjit Singh and then by the British Gov 897 ernment. The precise terms of the grant made by Maharaja Ranjit Singh are not known. The terms of the grant made by the Governor General on October 11, 1848, are to be found in the Sanad of that date. Therefore,, the position of the appellant cannot be any higher in law than that of Raja Jodhbir Chand and the claim of the appellant that he bad succeeded, to the rights of the independent rulers of Kangra is clearly unfounded. Dealing with this part of the appellant 's claim, the learned District Judge, who found in favour of the appellant, relied on certain observations quoted at p. 365, and again at p. 378, of the Kangra District Gazetteer (1924 25), observations on which learned counsel for the appellant has also relied. The observations are taken from Mr. Lyall 's Settlement Report. Mr. Lyall said: "Under the Rajas (meaning the old Katoch rulers) the theory of property in land was that each Raja was the landlord of the whole of his raj or principality, not merely in the degree in which everywhere in India the State is, in one sense, the landlord, but in a clearer and stronger degree. . . . . . . . . . . . Each principality was a single estate, divided for management into a certain number of circuits. . . . . . . . . . . The waste lands, great or small, were the Raja 's waste, the arable lands were made up of the separate holdings of his tenants. The rent due from the holder of each field was payable direct to the Raja, unless he remitted it as an act of favour to the holder, or assigned it in Jagir to a third party in lieu of pay, or as a subsistence allowance. . . . . . . . . . . Every several interest in land, whether 'the right to cultivate certain fields, to graze exclusively certain plots of waste, work a water mill, set a net to catch game or hawks on a mountain, or put a fish weir in a stream, was held direct of the Raja as a separate holding or tenancy. The incumbent or tenant at the 117 898 most called his interest a 'warisi ' or inheritance not 'maliki ' or lordship". Mr. Lyall further observed that "all rights were supposed to come from the Raja; several rights, such as holdings of land, etc., from his grant; others, such as rights of common, from his sufferance". At p. 377 of the Gazetteer a summary is given of the conditions of land tenure under the rule of the Katoch Rajas. It is stated that there were two rights in the soil recognised under the Raja 's rule the paramount right of property which was vested in the Raja and the right of cultivation derived by grant from the Raja, which was vested in the cultivators. The first right extended to the whole of the principality; the second primarily extended only to the plot specified in the grant, but carried with it further rights of common in adjacent waste. It is then observed that this system of land tenure came down practically unchanged until the introduction of British rule, and though the period of Sikh dominion intervened, the Sikhs did not appear to have altered the system. The learned District Judge relied on the aforesaid observations for his finding that the appellant had the ownership of all royal trees in accordance with the system of land tenure which prevailed during the time of the old Rajas. In our view, the learned District Judge was in error with regard to this part of the claim of the appellant. Mr. Lyall began his settlement work in 1865 and his report was dated July 30, 1872. He continued and revised the earlier settlement work of Mr. Barnes. It is worthy of note that neither Mr. Barnes nor Mr. Lyall undertook any actual settlement operations in Nadaun, though Mr. Lyall gathered very valuable historical data regarding the conditions of land tenure which prevailed in the district of Kangra under the old Katoch Rajas. It is one thing to say that the system of land tenure prevailing under the old Katoch rulers continued in spite of the Sikh interregnums, but it is quite a different thing to say that Raja Jodhbir Chand, the grantee of a Jagir, succeeded to the rights of the in dependent Katoch rulers. The rights of the last independent Katoch ruler, under the system of land 899 tenure which prevailed at the time, passed first to the Sikhs who became the rulers of Kangra and then to the British after the Sikh wars. The learned District Judge failed to appreciate the distinction between the sovereign rights of an independent ruler and the rights of a grantee under a grant made by the sovereign ruler. It is pertinent to quote here the following observations of Lord Dunedin in Vajesingji Joravarsingji vs Secretary of State for India(1): "When a territory is acquired by a sovereign State for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing". Mr. Douie in his Punjab Settlement Manual (1899) said (P. 69): "The Sikhs drove the hill Rajas of Kangra into exile or degraded them into mere Jagirdars, and the British Government when it took over the country did not restore them to their old position". The question as to whether the sovereign ruler having a right in all royal trees made a grant of that right to Raja Jodhbir Chand or surrendered that right in favour of Raja Jodhbir Chand or any of his successors in interest is a different question which will depend on the terms of the grant or on other evidence showing that the right had been surrendered in favour of the appellant or his predecessors in interest. That is a question which we shall presently discuss. The learned District Judge was however wrong in thinking that, according to the system of land tenure which prevailed under the old Rajas or, under the Sikhs, Raja Jodhbir Chand got any right to all pine trees within Nadaun Jagir. (1) [1924] L.R. 51. I.A. 357, 360. 900 That brings us to the second ground and to a consideration of the terms of the Sanad dated October 11, 1848, on which also the appellant based his claim. The Sanad was in these terms: "Fresh Sanad re: Settlement upon Raja Jodhbir Chand Katoch of the villages named hereinafter, situate in Taalluqa Nadaun, possessed by him. Whereas the mountainous country together with the Doaba tract had come under the occupation of the British Company in pursuance of the treaty which took place between the British Government and the Sirkar of Lahore on March 9, 1846: The Jagir of Choru, Bara, etc., situate in the Ilaqa of Nadaun the name of each Tappa whereof together with the number of its villages and its Jama is given herein below and the total Jama whereof was Rs. 26,270/10/3 per annum approximately, i.e., as much of the Ilaqa of Nadaun as was in the possession of the said Raja at the time of the commencement of tumult of battle whether less or more than the present one, has been granted in perpetuity, generation after generation, to Raja Jodhbir Chand and his male legitimate, descendants who are not from the womb of a slave girl under the orders of the Most Generous Gracious, Exalted and Excellent Nawab Sir Henry Hardinge G.C.B. Governor General, ruler of the territory of India, communicated in writing in English bearing the signature of Mr. 'Edward, Deputy Chief Secretary to His Excellency, in reply to the Commissioner 's report No. 147, dated July 24, 1847, and also as contemplated in the previous order of the Nawab Governor General, dated August 7, 1846, subject to the following conditions: 1. In no way shall criminal jurisdiction in respect of the said Ilaqa vest in the Raja Sahib. The entire administration and power of hearing every sort of complaint between the Riaya (subjects) and the said Raja shall remain in the hands of the British Government 's officers. The Raja Sahib shall not be at liberty to receive on any pretext Mahsul for any commodity from any I Mahajan and trader or from the Riaya 901 (subjects) by way of Zakat (octroi), or anything on account of excise and intoxicants. He shall receive only revenue from the Riaya living in the villages of his Jagir according to the British Government 's rules of practice. In case of contravention of the said rules of practice cash shall be fixed by the Government for the said Raja Sahib or his descendants. After the death of the said Raja Sahib this Jagir shall be divided among his real sons according to the practice followed by Hindus. It shall not devolve on his descendants from a slave girl. It shall be essential for the Raja Sahib to construct at his own expense public roads, eleven cubits in width, in his Ilaqa. It is proper for the Raja Sahib to be always ready to serve the Government wholeheartedly and to bear good moral character. Hence it is obligatory on the said Raja Sahib not to set his foot on the borders of others beyond his own. He should treat this Sanad as a Sanad absolute. Previously on September 22, 1846, a Sanad was issued ' by the Exalted Henry Montgomery Colonel Lawrence from Simla without thorough enquiry and without the name of each village being entered therein. In that Sanad the entire Jama is shown to be Rs. 32,000 approximately. According to the statements of officials of the Raja Sahib the said Jama includes amounts on account of excise, Bhum Chari (cattle grazing) etc. That was found to be wrong. Now the present Sanad with the name of each Tappa and the number of villages and Jama thereof being entered in it is issued by this Court subject to the above mentioned conditions after an enquiry having been made and a report having been submitted to the Nawab Governor General". Appended to the Sanad was a list of tappas and villages comprised within the Jagir of Nadaun. The list also mentioned in the third column the amount of Jama for each tappa. The question now is whether the aforesaid Sanad was a grant primarily of land revenue; or it made a grant of other royal rights including the right to all 902 pine trees which is the particular right under consideration in the six suits brought by the appellant. It is, we think, well settled that the ordinary rule applicable to grants made by a subject does not apply to grants made by the sovereign authority; and grants made by the Sovereign are to be construed most favourably for the Sovereign. This general rule, however, is capable of important relaxations in favour of the subject. It is necessary to refer here to such only of those relaxations as have a bearing on the con struction of the document before us; thus, if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect; and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the recitals. In cases where the grant is for valuable consideration, it is construed in favour of the grantee, for the honour of the Sovereign; and where two constructions are possible, one valid and the other void that which is valid ought to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereign 's profit (see para 670 at p. 315 of Halsbury 's Laws of England, Vol. VII, section 12, Simonds Ed.). It is worthy of note that so far as the lands in possession of tenants or subjects were concerned, the Sanad did not grant any right other than the right to receive revenue; condition No., 2 of the Sanad made it quite clear that the grantee would receive only revenue from the subjects living in the villages of his Jagir according to the British Government 's rules of practice, and that the grantee was not at liberty to receive on any pretext "mahsul" for any commodity from any Mahajan or trader or any octroi, etc. from any of the subjects. If the 'intention was to grant the right to pine tree standing on the lands of the subjects, one would expect it to be mentioned in condition No. 2. The mention of the Jama in the Sanad is also significant. In the earlier Sanad the entire Jama was shown to be Rs. 32,000, because according to the statements of the officials of the Raja Sahib, the said Jama included amounts received on account of cattle grazing, etc. ; that was found to be wrong and 903 the correct Jama was found to be Rs. 26,270 10 3. The Sanad concluded with these words: "Now the present Sanad with the name of each tappa and the number of villages and Jama thereof being entered in it is issued subject to the above mentioned. conditions, etc. " In the recital portion of the Sanad also it was stated that the Jagir of certain tappas, together with the number of villages comprised within the tappas and the Jama mentioned in the list, the total Jama being Rs. 26,270 10 3, was granted to Raja Jodhbir Chand. The other conditions subject to which the grant was made showed that no sovereign rights were granted to the Jagirdar. In para 69 at p. 96 of his report MrLyall gave a list of the principal Jagirs of Kangra and stated that Raja Jodhbir Chand had a Jama or revenue demand of Rs. 36,079 in perpetuity; he said"Out of the total jama, Rs. 6,079 are the assessment of assigned Khalsa lands which the Raja pays to Government as nazarana; Rs. 33,000 is the value of the grant, but the Raja puts his collection at Rs. 30,000 only, exclusive of Khalsa tikas". The 'aforesaid remarks, made not very long after the grant, also support the view that the grant was primarily an assignment of land revenue and whatever other rights might have been included, the right to all pine trees on cultivated lands of the subjects was not within the grant. We agree therefore with the High Court that on a true and proper construction of the Sanad, it is impossible to spell out of its terms a grant in favour of Raja Jodhbir Chand of the right to all pine trees on cultivated and proprietary lands. We proceed now to examine the third ground of the claim of the appellant, viz., that part of his claim which is based on the entries in the Wajib ul arz of 1892 93 (exhibit P 5), 1899 1900 (exhibit P 6) and 1910 1915 (exhibit P 4) and other connected documents. This part of the claim of the appellant has been the most controversial and difficult to determine. The learned Subordinate Judge expressed the view that the aforesaid entries did not help the appellant, because they related to pine trees standing either on 904 uncultivated waste lands or nautor (recently reclaimed) lands and not to such trees on proprietary and cultivated lands. The learned District Judge held on appeal that in the Wajib ul arz of 1892 93 (exhibit P 5) all pine (chil) trees were held to be the property of Government; this led to a dispute between the Raja and Government, and in the Wajib ul arz of 1899 1900 (exhibit P 6) and subsequent documents, an entry was made in favour of the Raja showing that Government had relinquished or surrendered their right to the Raja. He did not agree with the learned Subordinate Judge that the entries related to pine trees standing on waste or reclaimed lands only. The learned Judge who delivered the leading judgment of the High Court gave and considered a long string Of quotations from many documents and then came to the conclusion that the authority of the Wajib ul arz entries was open to doubt and the Raja had failed to make out his claim; the learned Judge did not clearly find however if the entries related to waste and re claimed lands only. Learned counsel for the appellant has very strongly submitted before its that the view of the learned District Judge was correct and should have been accepted by the High Court; learned counsel for the respondents has argued, on the contrary, that the trial Judge and the learned Judges of the High Court came to a definite finding, which he has characterised as a finding of fact, with regard. to the Wajib ul arz entries and this Court should not go behind that finding. We do not think that these appeals can be disposed of on the short ground that this Court does not normally go behind a concurrent finding of fact. Indeed, in respect of the Wajib ul arze entries, there is no concurrent finding in these cases; the trial Judge thought that the entries related to waste and recently reclaimed lands, whereas the High Court doubted the very authority of the entries. Moreover, the question whether from the Wajib ul arz entries an inference of surrender or relinquishment of a sovereign right by Government can be properly drawn is not a pure question of fact, depending as it does on the 905 true scope and legal effect of those entries. We cannot, by resorting to a short cut as it were, relieve ourselves of the task of examining the Wajib ul arz entries and considering their true scope and legal effect. We have already referred to Mr. Barnes ' Settlement (1850 52) and pointed out that he did not undertake any actual settlement operations in Nadaun. The next person who dealt with the settlement of Kangra was Mr. Lyall, afterwards Sir James Lyall, Lt. Governor of the Punjab. He began his work in 1865 and wrote his report in 1872. He also did not undertake any settlement of Nadaun. Anderson was the next person who dealt with the settlement of Kangra. By Notification No. 25 dated January 26 1888 a general re assessment of the land revenue of Kangra district was ordered and by Notification No. 26 of the same date a preparation of the record of rights in the Jagirs of Guler, Siba and Nadaun was undertaken. Mr. O 'Brien undertook the settlement, but died on November 28, 1893 and it was left to Mr. Anderson to write the report. It may be stated here that Mr. Anderson wrote two reports: one was the Forest Settlement Report of 1887 and the other was the Revised Settlement Report of Kangra of 1897. On April 27, 1910 two other notifications were published, directing a revision of the existing record of rights in Dera and Hamirpur Tehsils (Nadaun being within Hamirpur Tehsil). As a result, Messrs Middleton and Shuttleworth undertook a revisional settlement, which was the Settlement of 1910 15. We have in these cases to deal with the entries made in O 'Brien 's Settlement (1892 93), Anderson 's Settlement (18991900), and the Settlement of Messrs Middleton and Shuttleworth (1910 15). Before dealing with the actual entries made, it is necessary to refer to a few more matters arising out of the settlement operations of Messrs Barnes and Lyall. The expressions 'ala malik ' and 'adna malik ' have been used often in the course of this litigation. What do those expressions mean? In Mr. Douie 's Punjab Settlement Manual (1930 edition) it is stated 118 906 in para 143: "Where the proprietary right is divided the superior owner is known in settlement literature as ala malik or talukdar, and the inferior owner as adna malik. . . . . . In cases of divided ownership the proprietary profits are shared between the two classes who have an interest in the soil". How this distinction arose, so far as the record of rights in the Jagirs are concerned, appears from para 105 at p. 60 of Mr. Anderson 's report. Mr. Anderson said: "The first great question for decision was the status of the Raja and of the people with respect to the land, which was actually in the occupancy of the people, and next with respect to the land not in their actual occupancy, but over which they were accustomed to graze and to do certain other acts. Mr. O 'Brien decided that the Raja was superior proprietor or Talukdar of all lands in his Jagir, and the occupants were constituted inferior proprietors of their own holdings and of the waste land comprised within their holdings as will be shown hereafter; be never fully considered the rights in waste outside holdings. The general grounds fir the decision may be gathered from Mr. Lyall 's Settlement Report and from the orders on the Siba Summary Settlement Report, but I quote at length the principles on which Mr. O 'Brien determined the status of occupants of land, not merely because it is necessary to explain here the action that he took, but also in order that the Civil Courts which have to decide questions as to proprietary rights may know on what grounds the present record was based". Mr. Anderson then quoted the following extract from Mr. O 'Brien 's assessment report to explain the position: "In places where the possession of the original occupants of land was undisturbed, they were classed as inferior proprietors; but where they had acquired their first possession on land already cultivated at a recent date, or where the cultivators had admitted the Raja 's title to proprietorship during the preparation and attestation of the Jamabandis, they were 907 recorded as tenants with or without right of occupancy as the circumstances of the case suggested. . . . . . . . . . . . . . In deciding the question old possession was respected. Where the ryots had been proved to be in undisturbed pos session of the soil they have been recorded as inferior proprietors". The same principles were followed in Nadaun: long possession with or without a patta or lease from the Raja was the test for recording the ryot as an inferior proprietor (adna malik). Bearing in mind the aforesaid distinction between ala malik and adna malik, we proceed now to examine the actual entries made in the Wajib ul arz of 1892 93 (exhibit P 5), of 1899 1900 (exhibit P 6) and of 1910 15 (exhibit P 4). In exhibit P 5 the relevant entry in para 11 was: "The owners shall, however, have no right to pine trees. They can neither cut them nor get the same without permission, for it has been laid down in the Forest Settlement Reports that the Raja Sahib gave leases to reclaim such lands whereon the Government jungles, i.e., the ' Government pine trees exist. For this reason, the Government maintained their right to the pine trees. (see para. 78 of the English report regarding jungles,.)". In exhibit P 6 the relevant entry was "Except the chil (pine) trees all the trees situated in the Khata of any person in the Tikas of the Jagir are the property of the owner of the Khata. The chil trees growing in such Khatas in the Tikas of the Jagir are the property of Raja Sahib". In exhibit P 4 the entry was "Excepting the pine trees all the trees standing in the Khata of any person in the Tikas of the Jagir save those proprietary lands the trees whereof have been held belonging to the Government during the recent Settlement and which have been mentioned above are the property of the owner of the Khata. In the Tika 's of Jagir. all the pine trees of such Khatas excepting those standing on such proprietary lands, and which have been held to be the property 908 of the Government during the recent settlement and mention whereof has been made above are the property of Raja Sahib. " The question before us is as ' to the true scope and legal effect of these entries. Do they establish a grant of the right to chil trees or, what is the same thing, a surrender of that right, in favour of the Raja by Government? In these cases we are not concerned with trees on public waste lands, nor with forest trees; and as the High Court has pointed out, we do not know if the lands in suit were initially private waste or recently reclaimed lands. The Jamabandis show that they are proprietary and cultivated lands of adna maliks. Therefore, the question before us is the right to chil trees on proprietary and cultivated lands in possession of adna maliks. It is not disputed that under section 31 of the Punjab Land Revenue Act, 1887, Wajib ul arz is a part of the record of rights, and entries made therein in accordance with law and the provisions of Ch. IV of the Act and the rules thereunder, shall be presumed to be true (vide section 44). The Wajib ul arz or village administration paper is a record of existing customs regarding rights and liabilities in the estate; it is not to be used for the creation of new rights or liabilities. (see para 295 of the Punjab Settlement Manual, pp. 146 147,1930 ed.). In appendix VIII of the Settlement Manual, Section E, are contained instructions with regard to the Wajib ul arz and instruction No. 2 states: "The statement shall not contain entries relating to matters regulated by law, nor shall customs contrary to justice, equity or good conscience, or which have been declared to be void by any competent authority, be entered in it. Subject to these restrictions, the statement should contain information on so many of the following matters as are pertinent to the estate: . . . . . . . . . . (h)The rights of cultivators of all classes not expressly provided for by law (for instance, rights to 909 trees or manure, and the right to plant trees) and their customary liabilities other than rent. . . . . . . . . (j)The rights of Government to any nazul property,, forests, unclaimed, unoccupied, deserted, or waste lands, quarries, ruins or objects of antiquarian interest, spontaneous products, and other accessory interest in land included within the boundaries of the estate. . . . . . . . . . . (1) Any other important usage affecting the rights of landowners, cultivators or other persons interested in the estate, not being a usage relating to succession and transfer of landed property". In the cases before us, the appellant did not base his claim on custom, though referring to his right be said in his plaint "this has been the practice throughout". What he really meant by "practice" was the land system prevailing under the old independent Katoch rulers. We have already held that the appellant did not get the sovereign right of the independent Katoch rulers; nor did the grant made in 1848 give him any right to the royal trees. The entry in the Wajib ul arz of 1892 93 (exhibit P 5) is not really in his favour; it states that trees of every kind shall be considered to be the property of the owners (adna maliks), but the owners shall have no right to pine trees; for this last part of the entry which is somewhat contradictory of the earlier part, a reference is made to para 78 of Anderson 's Forest Settlement Report as authority for it. That paragraph, however, stated in clear terms "No orders have been passed by main regard to trees on fields, as the present enquiry extended only to the waste land". It is obvious that the entry in the Wajib ul arz of 1892 93 went much beyond what was stated in para 78 of Mr. Anderson 's report, and so far as the right to pine trees on proprietary and cultivated lands was concerned, the statement made a confusion between Government jungles, recently reclaimed land and proprietary land, On its own showing, the entry was 910 not the statement of an existing custom, because it referred to para 78 of the Forest Settlement Report; far less did it show any surrender or relinquishment of a sovereign right by Government in favour of the Raja. Indeed, it is difficult to understand how the surrender or relinquishment of such a right can be the subject of a village custom or can be within the scope of an entry in the Wajib ul arz. The original grant in favour of Raja Jodhbir Chand was by means of a Sanad, and one would expect any additional grant or surrender to be embodied in a similar document. At any rate, if the intention of Government was to surrender a sovereign right in favour of the Raja, one would expect such intention to be expressed in unambiguous language. In Khalsa villages, Government did surrender their right to trees on Shamilat lands of adna maliks on the authority of letter No. 347 of January 6, 1867. Taking the most favourable view for the appellant, the entries in the Wajib ul arz in these cases can be said to express the views of certain revenue authorities as to the rights of the Raja or the intention of Government; but the views of the revenue authorities as to the effect or construction of a grant or the intention of Government in respect of a grant, do not conclude the matter or bind the civil Courts. (See Rajah Venkata Narasimha Appa Row Bahadur vs Rajah Narayya Appa Row Bahadur(1)). The same comments apply to the Wajib ul arz of 1899 1900 (exhibit P 6) and of 1910 15 (exhibit P 4). They no doubt say that the pine trees on the lands comprised within the Khatas of adna maliks are the property of the Raja Sahib. None of them indicate, however, on what basis the right to chil trees on proprietary and cultivated lands of the adna maliks is to be held the property of the Raja Sahib. If the revenue authorities made the entries on the basis of the land system of the old Katoch rulers or on the basis of the Sanad of 1848, they were clearly wrong. If, however, there was a surrender by Government of the right in favour of the Raja, one would expect it to be mentioned unambiguously in the entries; one (1) [1879] L.R. 7 I.A. 38, 48. 911 would further expect the same to be mentioned in the Jamabandis (Exs. D 7 and D 8) of the adna maliks. The Jamabandis do not, however, show any restriction on the rights of adna maliks with regard to the trees on their lands. A reference may be made here to another document (exhibit D 2) which is an extract of the Wajib ul arz (para 12) of '1892 93, dealing with the rights of ala maliks and adna maliks. The entry shows that the Raja Sahib was to get 15 per cent. on the net revenue in respect of the entire land owned by the adna maliks as talukdari dues which had been fixed: the talukdari dues were fixed to compensate the Raja Sahib for all sorts of dues, such as banwaziri, domiana, etc. It is improbable that after the fixation of such talukdari dues, a grant of a further right in respect of chil trees on the lands of adna maliks will be made but will not be specifically mentioned in para 12 of the Wajib ul arz, which dealt particularly with the rights of ala and adna maliks. Learned counsel for the appellant drew our attention to exhibit D 6, an extract of para 11 of the Wajib ul arz, of 1914 15, at the bottom of which there is a note that the Zamindars (adna maliks) were present and every paragraph had been read out to them and the same were correct. The argument before us is that the adna maliks ad mitted the Wajib ul arz of 1914 15 to be correct. We cannot accept that argument; firstly, we do not think that the endorsement at the bottom of exhibit D 6 is an admission by adna maliks of the correctness of the entries made in other paragraphs of the Wajib ul arz, as for example, para 10 (exhibit P 4) which related to the rights of Government in respect of the nazul lands, etc. Secondly, even if the endorsement amounts to such an admission as is contended for by learned counsel for the appellant, we do not think that it is conclusive or decisive of the right which the appellant is claiming. exhibit P 2 dated May 27,1886, showed that even so far back as at that date, sonic of the adnamaliks had complained that the Raja 's men had cut and taken away some chil trees on their lands. It is quite improbable that after such a complaint the adna maliks would admit the right of the ala malik 912 to chil trees on their lands. In para. 296 of the Punjab Settlement Manual, Mr. Douie observed that the Wajib ul arz in the first regular settlements was sometimes a formidable document, but its real value as evidence of village custom was not always proportionate to its length. He 'A quoted with approval the observations of Sir Arthur Brandreth to the following effect: "Some few points have been ascertained in each case, but in general the villagers did not know their customs very well, and when they put their seals to the paper, no doubt they thought it very grand, though they did not know what it was about, as they could little understand the language. The rules are of two sorts; one, the rules laid down by Government, or points on which the whole pargana have the same custom, and, secondly, the special customs of the particular manor; these together take up a great number of pages, and the villagers are confused by the long code of rules, and merely say 'yes, yes ' and put their seals to. the paper, hoping it is nothing very dreadful. " A large number of decisions in which entries of the Wajib ul arz or the Riwaji i am and the value to be given to them were considered, have been cited before us. In some of them, entries in the Wajib ul arz were accepted as correct and in others they were not so accepted, notwithstanding the statutory presumption attaching to the entries under section 44 of the Punjab Land Revenue Act, 1887. We do not think that any useful purpose will be served by examining those decisions in detail. The legal position is clear enough. As was observed by the Privy Council in Dakas Khan vs Ghulam Kasim Khan(1), the Wajib ul arz, though it does not create a title, gives rise to a presumption in its support which prevails unless the presumption is property displaced It is also true that the Wajib ul arz being part of a revenue record is of greater authority than a Riwaji i am which is of general application and which is not drawn up in respect of individual villages (Gurbakhsh Singh vs Mst. Partapo(1)). Whether the statutory presumption (1) A.I.R. 1918 P.C. 4. (2) Lah. 913 attaching to an entry in the Wajib ul arz has been properly displaced or not must depend on the facts of each case. In the cases under our consideration, we hold, for the reasons already given by us, that the entries in the Wajib ul arz with regard to the right of the Raja in respect of chil trees standing on cultivated and proprietary lands of the adna maliks, do not and cannot show any existing custom of the village, the right being a sovereign right; nor do they show in unambiguous terms that the sovereign right was surrendered or relinquished in favour of the Raja. In our view, it would be an unwarranted stretching of the presumption to hold that the entries in the Wajib ul arz make out a grant of a sovereign right in favour of the Raja; to do so would be to hold that the Wajib ul arz creates a title in favour of the Raja which it obviously cannot. It is necessary to state here that in the Wajib ul arz of 1899 1900 (exhibit P 6) there was a reference to certain orders contained in letter No. 1353 dated March 11, 1897, from the Senior Secretary of the Financial Commissioner. This Wajib ul arz also showed that certain amendments were made on May 26, 1914, by an order of Mr. Shuttleworth, the then Settlement Officer. There is a further note that the amendment was cancelled on January 23, 1917. In the High Court judgment there is a reference to the notes mentioned above and the learned Judge who gave the leading judgment observed that the aforesaid notes showed that the state of affairs prevailing at that time was some what confused and fluid. It is probable that each revenue officer was expressing his own opinion about the matter. An attempt was made in the High Court to get some of the unpublished original documents of Government to clarify the entries in the Wajib ul arz. The Government of the Punjab, however, claimed privilege in respect of those documents, which claim was upheld in the High Court. We have re examined that claim, and though the State was not a party to this litigation, we heard the learned Advocate General for the State. 914 We found the claim to be valid under the law as it stands at present. We have assumed that the entries in the Wajib ul arz of 1899 1900 and of 1910 15 related to cultivated and proprietary lands of adna maliks, though they were entered in a paragraph which dealt with the rights of Government in respect of ownership of the nazul lands, jungles, unclaimed property, etc. Even on that assumption, we have come to the conclusion that the entries in the Wajib ul arz do not establish the claim of the appellant that there was a surrender or relinquishment of a sovereign right in favour of his predecessor. It remains now to notice ' some other evidence on the record. Learned counsel for the appellant has referred us to several judgments, Exs. P 9, P 7, P 8 and P 4 (wrongly marked as exhibit P 6). Referring to these judgments, the learned trial Judge said that it was not clear whether those judgments related to lands which were private waste or nautor (reclaimed) lands. Apart, however, from that difficulty, we are of the view that, the judgments do not advance the case of the appellant any further. They proceeded primarily on the entries in the Wajib ul arz, the effect of which entries we have already considered at great length. Admittedly, no plea of res judicata arose on these judgments, and they were merely evidence of an assertion and determination of a similar claim made by the Raja in respect of other lands within the Jagir. As to the oral evidence in the case, none of the Courts below placed any great reliance on it. The learned Subordinate Judge did not accept the oral evidence given on behalf of the appellant; the learned District Judge, referring to the oral evidence of the respondents, said that he could not accept that evidence in preference to the overwhelming historical and documentary evidence led by the appellant. With regard to the appellant 's witnesses he seemed to think that some of them at least were reliable. The learned Judges of the High Court did not refer to the oral evidence except for a slight reference to the state 915 ment of Salig Ram, the Raja 's attorney, who appears to have stated that the Raja got his rights in 1893 94; how the Raja got his rights then was not explained. Learned counsel for the appellant has referred us to the evidence of one Babu Kailash Chander (witness No. 2 for the appellant), who was a Forest Range Officer. This gentleman said that the trees standing on the land belonging to the landlords were exclu sively owned by the Raja Sahib. In cross examination he admitted that he had no knowledge of the trees in suit nor did he know on which lands the trees were standing. He admitted that he knew nothing about the rights of the Jagirdar and the landlords inter se with regard to the lands in dispute. It is obvious that such evidence does not prove the case of the appellant. Had the Raja been in possession of the pine trees for such a long time as he now claims, one would expect him to produce some documents showing his income, etc. from the trees. No such documents were produced. For these reasons, we hold that the appellant has failed to establish his claim to the pine trees, and the decision of the High Court is correct. The appeals fail and are dismissed. In the circumstances of these cases, where much of the doubt as respects the right claimed arose out of the entries made in the Wajibul arz, the High Court properly directed that there would be no order for costs either in the High Court or in the Courts below. We think that that order was correct, and we also pass no order as to costs of the hearing in this Court. Appeals dismissed. [/INST]Sub section (2) Of section 30 of the Ajmer Merwara Municipalities Regulation, 925, as amended, provided that " every person who would be entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been co extensive with the Municipality, and whose name is registered in the electoral roll for the Parliamentary Constituency comprising the Municipality, shall be entitled to be enrolled as an elector of the Municipality"; and section 43 enabled the Chief Commissioner to make rules consistent with the Regulation for the preparation and revision of electoral rolls and the adjudication of claims to be enrolled and objections to enrolment. In exercise of this power the appellant framed Rules which, inter alia, provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality. He notified an election programme and also authenticated and published an electoral roll on August 8, 1955. The respondent whose father 's name was recited wrongly in the electoral roll applied for rectification of the mistake in the Parlia mentary Electoral Roll, on August 10, 1955, but it was rejected on the ground that the roll of the Municipal elections had been finally published on August 8, 1955, and therefore no correction could be made. The respondent challenged the validity of the notification and the electoral roll. Held, that under section 30 (2) Of the Ajmer Merwara Municipalities Regulation, 1925, the electoral roll for the Parliamentary constituency was only treated as the basis for the electoral roll of the Municipality and that the rules in so far as they made no provision for the revision of the electoral roll, for the adjudication of claims to be included therein or for entertaining objections to such inclusion, were defective and, therefore, the electoral roll of the Ajmer Municipality which was authenticated and published by the appellant on August 8, 1955, was not in conformity with the provisions of section 30 (2) and the relevant,provisions of the Regulation 69 and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee. </s>

<s>[INST] Summarize the judgementCivil Appeal No. 571 of 1969. Appeal by Special Leave from the Order dated the 6th September, 1968/26th October 1968 of the Government of India, Ministry of Finance (Department of Revenue and Insurance) bearing No. 5262 of 1968. J. L. Nain, Mrs. A. K. Verma for J. D. Dadachanji & Co., for the Appellant. R. B. Datar and Miss A. Subhashini, for the Respondent. The Judgment of the Court was delivered by SARKARIA, J. This is an appeal by special leave against an order of the Government of India, Ministry of Finance (Department of Revenue and Insurance). The order was passed by Shri B. Sen, Commissioner (Revision applications), Government of India. Indian Hard Metal (P) Ltd., the appellant, had imported 15 metric tonnes of wolfram ore from London. The Customs authorities classified the said ore under item 87 of the Indian Customs Tariff and charged duty at the rate of 60 per cent ad valorem amounting to Rs. 62,871.03P., instead of classifying the imported ore either under item 26 of item 70(7) which are free from duty. These relevant items, as entered in the Imported Tariff, may be set out as under: Item Name of Article Nature of Standard No. duty rate of 26 Metallic ores all X Free X sorts except ores and pigments ores and antimony ore. 70(7) Cobalt chromium tungsten X Free magnesium and all other nonferrous virgin metals not otherwise specified. SECTION XXII (ARTICLES NOT OTHERWISE SPECIFIED) 87 All other articles not otherwis specified. Revenue 60 per cent ad valorem. The classification made under the residuary item 87 at the time of the import was upheld by the Assistant Collector of Customs; and the Commissioner of Customs dismissed the appeal of the assessee by an order dated July 31, 1965, holding that the 381 bags of wolfram ore was correctly assessable at the rate of 60 per cent duty under item 87 of the Indian Customs Tariff, and not being covered either 471 by entry 26 or 70(7) of the Indian Customs Tariff, was not duty free. The appellant preferred a revision petition under section 131 of the Customs Act to the Government of India who declined to interfere and dismissed the revision. Hence this appeal. Mr. Nain, appearing for the appellant, submits that the ore in question contained a concentrate of 74% of tungsten from wolfram and the rest were impurities. This concentration is the result of 'selective mining ' process which involves crushing, washing and magnetic separation. It does not bring about any chemical change in the metal. At the minepit in its natural form, the ore is not of marketable quality because the tungsten content in ' it, then is hardly 0.5 to 2 per cent. By the aforesaid concentrating process, the ore is converted into ore of commercial quality. It is maintained that in commercial parlance wolfram ore of marketable quality must contain a minimum of 655 'o to 70% of the metal, and in one of better quality, the content may be as high as 79%. Even after being subjected to such process, the ore concentrate does not cease to be tungsten 'ore ' within the contemplation of item 70(7) of the Indian Import Tariff. In sup port of his contentions, learned counsel has relied upon the judgment of this Court in Minerals & Metals Trading Corporation of India Ltd. vs Union of India & Ors.(1) and certain Certificates of experts, as also an extract from the treatise on 'Tungsten ', by C.J. Smithells Chapman Hall. As against this, Mr. Datar has drawn our attention to the order, dated July 31, 1965, wherein the Appellate Collector of Customs has observed that no evidence was adduced by the importer to substantiate the contentions that the ore in question had undergone no chemical process before being imported, and that the inference is that such high purification of the concentrate could have been possible only by applying process other than by water, crushing and magnetic separation. It is stressed that the decision of this Court in Minerals & Metals Trading Corporation of India Ltd. (supra), is not applicable because in that case the percentage of tungsten in the ore was 65% only and that much concentration could be reached by physical process only, such as, crushing washing etc.; while in the instant case, the percentage of the wolfram contained in the goods concerned is little over 75%. In our opinion, the mere fact that the percentage of tungsten in the ore concentrate in the instant case is about 75 per cent, does not take the case out of the ratio of this Court 's decision cited by Mr. Nain. (1) [l973] I S.C.R. 997. 472 In Minerals & Metals Trading Corporation of India Ltd. (supra), the appellant had imported 200 metric tons of wolfram concentrate from Russia, under a contract which prescribed minimum contents of 65 % of W03 in the concentrate. The Customs authorities levied duty at the rate of 60% ad valorem under item 87 of the First Schedule The appellant claimed refund on the ground that no duty was leviable as the goods imported was an "ore" and fell, under item 27 or 70(7) of the Import Tariff. The Assistant Collector of Customs held that the appellant was not entitled to refund because the term "ore" mentioned in the text of item 26 is confined to articles which are in form and condition in which they are mined and not as wolfram ore concentrate in powder form as in that case. On appeal by the importer, the Appellate Collector head that the goods in question were in the manufactured form made by special specifications by dressing and were thus not "ores". The Central Government rejected the revision application filed by the appellant, holding that the examination by the Chemists showed that the uniform granules of the material were not only separated from rock but also from various impurities and had been subjected to such processing as would take them out of the category of metallic ore mentioned in Intern 26. This Court, speaking through Grover J., allowed the importer 's appeal, with these apposite observations: "There is a good deal of force in the argument of Mr. Setalvad for the appellant that the normally acceptable merchantable quality of wolfram or tungsten contains a minimum 65 % WO33. This is the usable ore and it is in that sense that it is commercially understood. Wolfram ore when , mined contains only 0.5 to 2 per cent W03 and in order to make it usable and merchantable ore with minimum 65% W03, concentration is necessary. If item 26 of the Import Tariff is to be restricted to wolfram being material containing 0.5 to 2 per cent W03, it would be mainly rock which can neither be imported in large quantity and which will have no market. The separating of wolfram ore from the rock to make it usable ore is a process of selective mining. It is not a manufacturing process. The important test is that the chemical structure of the ore should remain the same. Whether the ore imported is in powder or granule form is wholly immaterial. What has to be seen is what is meant in international trade and in the market by wolfram ore containing 60% or more W03. On that there is a 473 preponderant weight of authority bath of experts and books and of writings on the subject which show that wolfram ore when detached and taken out from the rock in which it is embedded, either by crushing the rock and sorting out pieces of wolfram ore by washing or magnetic separation and other similar and necessary process, it becomes a concentrate but does not cease to be ore." (emphasis added) There is ample authority for the view that the tungsten content in the wolfram ore of marketable quality may vary from 60 to 79 per cent, and a concentration within these limits, of the metal in the ore can be attained simply by a process of a "selective mining", that is, by physical process not involving any chemical change in the metal. The following passage (vide Annexure "I ' in the record) culled out from the Introduction to the treatise on "Tungsten" by C.J. Smithells Chapman Hall, fully bears out this conclusion: "Mining. Tungsten ores, although so widely distributed rarely occur in massive form. The ores are usually found in narrow veins, but in some of the rich deposits the veins may in places be several metres wide. Castrate is the commonest metallic mineral associated with tungsten, but minerals containing bismuth, molybdenum, lead and copper are frequently found; pyrite and arsenopyrite are objection able minerals, which may be present in appreciable amounts, and other common minerals are quartz and fluorite. There are several kinds of ore deposits classified as segregates, pegmatites replacement deposits, veins and placers. The tungsten content of the ore as it is mined is usually from 0.5 to 2 per cent, although it amounts to 6 per cent in rare instances. The concentration of tungsten ores depends chiefly on gravity methods, taking advantage of the high density of the metal, ,although flotation methods are also used. the concentrates, which contain 60 70 per cent W03, to or the better qualities 75 79 per cent should be virtually free from S.P, As, sb, Bi, Cu, Sn, Ti, and Mo. Magnetic are employed to separate the tin and tungsten in the concentrates. Scheelite, however, is non magnetic, but when it occurs with garnet, as it does in Tasmania, the garnet may be removed magnetically. The concentration of Wolframite ores is difficult on account of their mica like formation. Excessive crushing leads to high losses in tabling and as far as 12 978 SCI178 12 978SCI/78 474 possible the ore should be separated when coarsely crushed " (Emphasis supplied ) There is on the record another Certificate in the form of a letter, dated February 3, 1965, from the Director, National Metallurgical Laboratory, Jamshedpur, addressed to the Controller of Customs, Calcutta, in which it is opined: "The wolfram ore is always selectively mined in the techllical terminology. such "selective mining" does not constitute a manufacturing process. Unless selective mining is done, the tungsten ore cannot be exported or even sold in the country of its origin. In view of the above, the import of selectively mined tungsten ore containing 65 % W03 or more should not be regarded as the import of a product which has been manufactured overseas and has passed through the manufacturing process. By the expression 'selectively mined ', we mean that the wolfram ore is detached and taken out from the rock in which it is embedded and this is done by crushing the rock and sorting out piece of wolfram ore therefrom either by hand or by washing or magnetic separation. " Then, there is another Certificate from R. V. Briggs & Co. Pvt. Ltd., who claim to have been analysing various ores and minerals including wolframite for over 60 years. According to these experts, wolframite is always concentrated as part of the mining operation. The normal method is by washing the crushed ore, thereby freeing the mineral from the gangue. These experts have further certified that the wolfram ore, which they have analysed for M/s. India Hard Metals, is processed except for physical concentration by washing. It may be observed that in the Minerals & Metal Trading Corporation (ibid), also, this Court had relied upon a similar Certificate from R. V. Briggs & Co. Still, another Certificate, dated January 13, 1965, which is more or less to the same effect as the Certificate of the National Metallurgical Laboratory, was brought in evidence. A similar Certificate from this Laboratory was relied upon as authentic expert opinion in the earlier case, also, decided by this Court. No authority or expert opinion has been cited before us that a concentration of 75 per cent tungsten in wolframite ore of commercial quality, cannot be achieved merely by 'selective mining ', i.e. the physical process of crushing, washing, gravitation, magnetic separation or the like. Nor is there any evidence on the record to show 475 that the mined ore was subjected to any chemical process which caused a change in the chemical structure of the ore. The finding of the Appellate Collector of Customs that such a high degree (75%) of tungsten metal virtually free from impurities in the material, could be attained only by some chemical manufacturing process and not merely by crushing, washing or magnetic separation, is not based on any evidence whatever. It is contrary to the opinions of expects and authorities on the subject, which were brought on the record. It is evident from the passage extracted from Smithells ' treatise, and the other Certificates of experts, mentioned above, that in order to bring mined wolframite ore to a marketable quality, it has to be concentrated by physical methods, such as, crushing, washing, gravitation, magnetic separation etc. And by such physical process only, a concentration of WO3 varying from 60 per cent to 79 per cent in the ore can be achieved. Wolframite (WO3) of ordinary merchantable quality contains 60 to 70 per cent of tungsten, while wolframite ore of better commercial quality contains 75 to 79 per cent of the metal In the light of the above discussion, there is no manner of doubt that the goods imported by the appellants had to be classified as imported ore, falling either under item 26 or item 70(7) of the Import Tariff, and as such, no duty was leviable on them. The appellants are, therefore, entitled to the refund of the duty paid by them on the goods in question. In the result, the appeal is allowed with costs, and the impugned orders including the Order dated October, 26, 1968, of the Central Government, are set aside. The respondents are directed to make appropriate orders for refunding the amounts collected from the appellants by way of import duty on the goods in question. N.V.K. Appeal allowed . [/INST]The six employees in the Tin Plate Co. of India Ltd. were adjudged insolvents. They were members in a Provident Fund of the said company, having certain amounts standing to their credit in the Fund. The appellants creditor of the said employees filed applica tions under section 4 of the Insolvency Act against the company and Trustees of the Fund for orders that amounts standing to the credit of the insolvents in the Provident Fund account were their properties and had vested in the court and were available for distribution amongst the creditors and therefore should be brought into court. The respondent pleaded in answer that the amount standing to the credit of each insolvent in the Provident Fund represented the contributions of the company and of the employees and that the corpus was a trust fund in the hands of the trustees of the fund; so they were not properties of the insolvents over which they had a disposing power and that they were not debts due to the insolvents. It was said that according to the rules governing the Provident Fund the monies become payable to the employee or any other member of his family only on the happening of certain contingencies such as retirement, discharge, dismissal or death and that till then no right accrued to the insolvent. It was further urged that the trustees could not be removed from the custody and control of the fund by the Official Receiver. On a construction of the Rules of the Provident Fund, the Insolvency Court held in favour of the creditor. On appeal, the High Court held that under the rules of the Fund, the insolvents had no present disposing power over the monies standing to their credit and that the Fund had vested in the Trustee. On appeal to the Supreme Court: Held that it is reasonably clear from these rules that a subscriber has a present interest in the Fund though the moneys may become payable to him, or his nominee or heirs only in the future. Even where there is a declaration about the nominee who is to receive payment after the subscriber 's death, the fund would still be the property of the subscriber in the hands of the nominee for the satisfaction of his debts, as there is no present gift to take effect immediately. It could not be maintained that the subscribers had no right, title or interest in the fund or that such interest as they may possess was dependent upon a possible contingency which may or may not occur. The amount standing to the credit of a subscriber even if payable in future would be a debt due by the company to him within the meaning of section 60 of the Code and hence liable to attachment and sale. A person cannot enter into any arrangement or agreement by which his own title will cease in the event of bankruptcy for it would then be a fraud perpetrated on the Insolvency Law. The liability of the estate to be attached by creditors on a bankruptcy or judgment is an incident of the estate, and no attempt to deprive it of that incident by direct prohibition would be valid. Notwithstanding the rules of the Fund in the present case, the subscribers have an interest in the moneys which can vest in the Official Receiver on their adjudication. The word "property" in the Insolvency Act is used in the widest possible sense which includes even property which may belong to or is vested in another but over which the insolvent has a disposing power which he may exercise for his own benefit; and this part of the definition has reference obviously to powers of appointment and the power of a Hindu father who is the managing ember of a joint family. The fact that on the date of the adjudication the insolvent could not transfer the property does not militate against the view that he has a vested interest in the same. Banchharam Mojumdar vs Adyanath Bhattacharjee, ([1909] I.L.R. , Dugdale vs Dugdale ([1888] 38 Ch. D. 176), Ex parte Dever. In re Suse and Sibeth ([1887] , Hudson vs Gribble ([1903] 1 K.B. 517), D. Palaiya vs T. P. Sen and another (A.I.R. 1935 Pat. 211), Secretary, Burma Oil Subsidiary Provident Fund (India) Ltd. vs Dadibhar Singh (A.I.R. 1941 Rang. 256), Gajraj Sheokarandas vs Sir Hukamchand Sarupchand and another (A.I.R. 1939 Bom. Anandrao alias Adkoba s/o Risaram ji vs Vishwanath Watuji Kalar and others, (A.I.R. 1944 Nag. 144), Ismail Jokaria & Co. vs Burmah Shell Provident Trust Ltd. (A.I.R. 1942 Sind 47), Bishwa Nath Sao vs The Official Receiver ([1936] I.L.R. 16 Pat. 60), and Sat Narain vs Behari Lal and Others ([1924] 52 I.A. 22), referred to. </s>

<s>[INST] Summarize the judgementiminal Appeal No. 6 of 1962. Appeal by special leave from the judgment and order dated June 1, 1961 of the Judicial Commissioner 's Court for Manipur in Criminal Appeal Case No. 7 of 1961. O. P. Rana and R. N. Sachthey, for the appellant. section C. Agarwal, for the respondent. March 11, 1964. The judgment of the Court was delivered by AYYANGAR, J. This appeal which comes before us by special leave is directed against the judgment and order of the Judicial Commissioner of Manipur acquitting the respondent and setting aside the conviction and sentence passed against him by the learned Sessions Judge. This appeal was originally heard before a Bench of two Judges but has been directed to be placed before this Bench by reason of the learned Counsel for the appellant seeking 125 to question the correctness of the judgment of this Court in the case of Pritam Singh vs The State of Punjab(1) in view of the decision of the English Court of Criminal Appeal in R. vs Connelly(2) and the subsequent decision of this Court in Gurcharan Singh vs State of Punjab(3). The facts giving rise to the appeal are in brief as follows:There was an agitation by certain political parties and groups in Manipur in April, 1960 for establishing res ponsible Government in the Manipur area. The agitation took the form of picketing of Government offices and the residences of Government servants and blocking roads in order to paralyse the administration. After this form of agitation continued for some time, the District Magistrate of Manipur promulgated orders under section 144, Criminal Proce dure Code on the morning of April 25, 1960 banning public meetings and processions and these orders were proclaimed and communicated to the public through loudspeakers. Not withstanding this order, crowds continued to collect and move on the streets shouting slogans. Bira Singh the res pondent was said to have been leading this mob. A lathi charge by the police took place but it is stated that because of this the crowd moved a little away and began to pelt stones. The crowd was thereupon directed to disperse, its attention being drawn to the promulgation of the order under section 144, Criminal Procedure Code and to the fact that the gathering in a public place in violation of the order made it an unlawful assembly; but this command was not heeded and the stone throwing continued. There was firing by the police which resulted in injuries to certain persons including some of the police personnel. The first information report in regard to the incident and the offences committed during its course was lodged at the Imphal Police station at about 7 p.m. that day in which the informant specified the name of the respondent Bira Singh as the leader of this mob. On this a case was registered under sections 114/149/332/342 and 307 of the Indian Penal Code and section 7 of the Criminal Law Amendment Act, and a few days later the respondent was arrested. Charges were framed against the respondent who was placed before the Magistrate and the charge sheet stated that the respondent was in the crowd between 3 and 5 p.m. on that day, that the crowd was an unlawful assembly, that he was among those who pelted stones which caused grievous hurt to one person and simple hurt to others and also caused damage to the Inter State Police Wireless Station. Along with (1) A.I.R. 1956 S.C. 415. ( 2) (3) ; 126 the respondent certain others were included as accused but we are now concerned only with the respondent. The learned Sessions Judge convicted all of them of the offences with which they were charged and sentenced them to varying terms of imprisonment but into the details of these it is not necessary to enter. The question of law that arises in this case is by reason of a prior prosecution of the respondent in which he was acquitted. That prosecution was founded on a complaint against him filed on May 12, 1960 under section 188, Indian Penal Code in connection with his participation is a member of the same crowd in regard to which the charge which is the sub ject matter of the present proceedings is concerned. In that complaint the District Magistrate alleged that the respondent had disobeyed the order passed under section 144 by forming himself along with 2,000 other persons into an unlawful assembly between the hours of 3 and 5 p.m. on April 25, 1960 by shouting slogans and pelting stones at police officers and this was stated to be oil the road in front of the Police Wireless station. This complaint by the District Magistrate was registered and taken cognizance of by the Magistrate. The respondent pleaded in his defence that he was not present at the scene of the occurrence at all and that he had been falsely implicated by the police. The Magistrate rejected the defence and accepting the prosecution case that the respondent was present as the head of the mob on that occasion convicted him of the offence charged and sentenced him by his order dated July 8, 1960 to rigorous imprisonment for six months. Ten days thereafter on July 18, 1960 the charge sheet in the present case was filed. During the pendency of the prosecution from which the present appeal arises the respondent appealed to the learned Sessions judge against his conviction by the Magistrate on the charge under section 188, Indian Penal Code. The learned Sessions Judge allowed the appeal holding that the prosecu tion had not established that the respondent was present at the place and at the time where the occurrence took place at which he was said by the prosecution to have been present or that he disobeyed the order under section 144, Criminal Procedure Code. In the course of his judgment delivered on July 30, 1960 the learned Sessions Judge observed after referring to the delay in the filing of the complaint after the occur rence: "This delay: in the filing of the complaint and in the naming of the appellant. . . throws con siderable doubt on the presence of the appellant among the agitators on 25 4 60. . . if the P. Ws. did not know the appellant from before no 127 reliance can be placed on their identification of the appellant during the trial because that identification was not tested in a test identification parade. This also confirms my suspicion that the appellant might not have been present in the incident of 25 4 60. . The important position which the appellant had in organising the agitation in my opinion, afforded sufficient motive for the P.Ws. to come to a conclusion that the appellant might have been present in the agitation. But that erroneous impression on conclusion would not prove the presence of the appellant among the agitators on 25 4 60. . For reasons given above the appeal is allowed and the conviction and sentence of the appellant under section 188 I.P.C. are set aside and he is acquitted. " This acquittal was confirmed by the Judicial Commissioner on April 29, 1961. Meanwhile, to proceed with the narrative of the proceedings which has given rise to the present appeal, the learned Magistrate committed the respondent and 5 others to take their trial before the Sessions Judge, Manipur on a charge in respect of the offences we have set out earlier. Before the learned Sessions Judge an objection was raised on behalf of the respondent that the trial was barred by section 403, Criminal Procedure Code by reason of the acquittal of the accused under section 188, Indian Penal Code on July 30, 1960. The learned Sessions Judge, however, held, that the terms of the section were not satisfied, in that the ingredients of the two offences with which the accused was charged in the two prosecutions were different and rejected that submission. On the evidence adduced before him be found that it had been established to his satisfaction that the respondent as well as the others were present at the scene of the occurrence and held the accused guilty of the offences under sections 333, 323 and 440 all read with section 149, Indian Penal Code and sentenced him to 4 years R.I. All the six accused filed appeals against their conviction and sentences before the Judicial Commissioner, Manipur and the learned Judicial Commissioner after making some variations in the sentences as regards certain of the accused directed the acquittal of the respondent on the ground that the finding of fact recorded by the learned Sessions Judge in his trial for the offence under section 188, Indian Penal Code that he was not present at the scene of the occurrence on April 25, 1960 between the hours of 3 and 5 p.m. was final and conclusive and binding upon the prosecution and that no evidence could be led to 128 establish a contrary state of affairs in the present proceedings. In so holding the learned the Judicial Commissioner followed the decision of this Court in Pritam Singh vs State of Punjab(1) and certain other decisions and held that the principle of res judicata applicable to criminal proceedings was not confined to cases falling within the bar of section 403, Criminal Procedure Code but was of wider application. It is the correctness of this view of the law that calls for consideration in this appeal. Before referring to the decision of this Court in Pritam Singh vs State of Punjab(1) it would be convenient to refer to and put aside one point for clearing the ground. Section 403, Criminal Procedure Code embodies in statutory form the accepted English rule of autre fois acquit. This section runs: "403 (1) A person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub section (1). (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (1) A.T.R. (5) Nothing in this section shall affect the provisions of section 26 of the , or section 188 of this Code. 129 Explanation The dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section. " Section 26 of the which is referred to in section 403 enacts: "26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. " We might also, in this connection, refer to article 20(2) of the Constitution since it makes provision for a bar against a second prosecution in an analogous case. That provision reads: "20(2). No person shall be prosecuted and punished for the same offence more than once. " As has been pointed out by this Court in State of Bombay vs section L. Apte(1), both in the case of article 20(2) of the Consti tution as well as section 26 of the to operate as a bar the second prosecution and the consequential punishment thereunder, must be for "same offence" i.e., an offence whose ingredients are the same. It has been pointed out in the same decision that the V Amendment of the American Constitution which provides that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb, proceeds on the same principle. It is common ground that the respondent cannot bring his case within the provisions of sub section (1) of section 403 and it was also common ground that the trial of the respondent would be permitted by sub section It should, however, be noticed that sub sections (1) to (3) of this section deal with the trial of an accused for an offence and his conviction therefor. The question raised for decision in Pritam Singh 's(2) case however was different and was whether where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as (1) ; (2) A.I.R. 1956 S.C. 415. L/P(D)1SCI 5 130 precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of section 403(2). As Pritam Singh 's(1) case was based wholly on the decision of the Privy Council in Sambasivam vs Public Prosecutor, Federation of Malaya(2) it would be necessary to examine the basis of the latter decision. The appellant an Indian Tamil was travelling on foot in the company of two Chinese. They met a party of three Malays. A fight ensued between the two groups in the course of which one of the Chinese was killed. The Malays alleged that they had been fired on by the Chinese and that the appellant had with him a revolver which he had held out and pointed at one of them. In connection with this incident the appellant was charged with carrying a fire arm and being in possession of ten rounds of ammunition. Two charges were framed against the appellant: (1) of carrying a fire arm, and (2) of being in possession of ammunition. He was acquitted of the second charge of being in possession of ammunition and that acquittal became final. He was, later convicted of the offence of carrying a fire arm and the appeal before the Privy Council related to the legality of this conviction. Diverse objections branching into several fields of law were raised before the Privy Council in support of the appeal but what is, however, of relevance now, is the one which related to the admissibility of the evidence of the prosecution witnesses who spoke of the revolver carried by the appellant being loaded with bullets and of the appellant carrying four more bullets in a bag. Their Lordships rejected all the other contentions raised on behalf of the appellant but allowed the appeal on the ground that this evidence regarding the revolver being loaded and of the appellant carrying a bag containing some bullets was inadmissible in law. In dealing with this Lord MacDermott speaking for the Board said: "The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication." After pointing out that the prosecution witnesses were permitted to depose regarding the possession of ammunition by the appellant and that it was not possible to exclude the (1) A.I.R. 1956 S.C. 415. (2) 131 effect of this evidence on the prosecution case, their Lord ships held that the appellant was seriously prejudiced by the reception of this evidence and therefore allowed the appeal and directed his acquittal. The point in regard to which the observations in Sambasivam 's(1) case was applied by this Court related to the use of the recovery of a revolver from the accused to sustain his conviction of the offence of murder. Previous to the prosecution for an offence under section 302, Indian Penal Code the appellant before this Court had been tried before the Additional Sessions Judge, Faridpur under section 19(f) of the Indian Arms Act `of an offence for possession of that revolver and had been acquitted. This Court speaking through Bhagwati, J. extracted the observations we have quoted from the judgment of Lord MacDermott and pointed out that on the basis of this decision the evidence relating to the recovery of the revolver from the accused should have been excluded. It was not contended by learned Counsel for the appellant that if the principle laid down by this decision was correct, the acquittal of the respondent by the learned Judicial Commissioner by the order now under appeal was erroneous. The argument, however, was that the observations in Pritam Singh 's(2) case required reconsideration. This submission was rested on two separate lines of reasoning: (1) That the rule in Sambasivam 's(1) case on which Pritam Singh IS (2) case was based had been dissented from by the English Court of Criminal Appeal in R. vs Connelly(3) and that, similarly that principle had been departed from by this Court in Grcharan Singh vs State of Punjab(4). (2) That the principle of Common law which was applied by the Privy Council in Sambasivam 's(1) case could have no application in a jurisdiction like ours where the principle of autre fois acquit is covered by a statutory provision framed on the lines of section 403 occurring in a Code which is exhaustive. As regards the first ground, it must be pointed out that learned Counsel for the State admitted that there was noth ing a Gurcharan Singh 's(4) case which militated against the acceptance of the rule laid down in Pritam Singh 's (2) case. Coming next to the point made regarding the decision of the English Court of Criminal Appeal in R. vs Connelly(3), we should make it clear that the decisions of the English Courts being merely of persuasive authority, decisions of such a (1) (2) (3) A.I.R. 1956 S.C. 415. (4) ; L/P(D)1 SCI 5(a) 132 court even if at variance with one of this Court do not by themselves justify an application to reconsider an earlier decision of this Court. Besides, a close examination of the judgment in R. vs Connelly(1) through which learned Counsel for the State has taken us, does not disclose any dissent from the principle stated by Lord MacDermott. The entire case before the Court turned upon whether there had been a specific finding on an issue of fact an issue directly raised regarding an ingredient of the offence charged at the later trial, when the accused was acquitted by the Court of Criminal Appeal in the former proceeding. Except that the Court did not expressly rule that the principle of issue estoppel applied in England, no exception was taken to its soundness and the decision proceeded on the basis of the facts not justifying the application of the principle, the conditions not being fulfilled. Learned Counsel is, therefore, not well founded in his submission that the principle underlying Sambasivam 's(2) case was dissented from in R. vs Connelly(1). Besides, it should be pointed out that the principle underlying the decision in Pritam Singh 's(3) case did come up for consideration before this Court on several occasions, but it was never dissented from though in some of them it was distinguished on facts. (See Banwari Godara vs The State of Rajasthan(4), Mohinder Singh vs State of Punjab(5) and Kharkan vs The State of Uttar Pradesh(6). These two decisions in R. vs Connelly(1) and Gurcharan Singh vs State of Punjab(7) being out of the way, we shall address ourselves to the question as to whether what is termed "issue estoppel" which has been held by this Court in Pritam Singh 's(3) case to be applicable to criminal proceedings is excluded by reason of the provisions of the Criminal Procedure Code. For this purpose learned Counsel invited our attention to section 5(1) which enacts: "All offences under the Indian Penal Code shall be investigated, inquired into, tried, otherwise dealt with according to the provisions hereinafter contained. " This, however, in our opinion, does not afford any assistance to the argument because Pritam Singh 's(3) case did not introduce any variation in the Code as regards either (3) A.I.R. 1956 S.C. 415. (4) G.A. No. 141 of 1960, d/February 7, 1961. (5) A.I.R. 1965 S.C. 79. (6) A.I.R. 1965 S.C. 83. (7) ; 133 investigation, enquiry or trial. As we have pointed out earlier, issue estoppel does not prevent the trial of any offence as does autre fois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction. Learned Counsel next drew our attention to the observations of the Privy Council in Yusofalli Mulla vs The King(1) at page 169 where the following observations occur: "The last point urged by Mr. Page was that even if the case did not fall within the terms of section 403 of the Code of Criminal Procedure the appellant could nonetheless rely on the common law rule that no man should be placed twice in jeopardy." After stating that even for the application of the Common Law rule of double jeopardy the earlier order had to be by a court competent to pass a valid order of acquittal or conviction the judgment proceeded: "This argument therefore fails on the facts, and it is not necessary for their Lordships to consider whether section 403 of the Code of Criminal Procedure constitutes a complete code in India on the subject of autre fois acquit and autre fois convict, or whether in a proper case the common law can be called in aid to supplement the provisions of the section." As we have pointed out, we are not now concerned with any extension of the principle of autre fois acquit but as to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court at a previous trial. The reasoning of Lord MacDermott in Sambasivam 's(2) case was not the first occasion when this rule as to issue estoppel in a criminal trial was formulated or given effect to. That it is not the same as the plea of double jeopardy or autre fois acquit is also clear from the statement of the law by Lord MacDermott himself. The distinction between autre fois acquit and the objection to the reception of evidence to prove an identical fact which has been the subject of an earlier finding between the parties is brought out in the following passage from the judgment of Wright, J. in The Queen vs Ollis(3): "The real question is whether this relevant evidence of the false pretence on July 5 or 6 ought to have been excluded on the ground that it was part of (1) 176 I.A. 158. ( 2 ) (3) , 768 769. 134 the evidence given for the prosecution at the former trial, at which the prisoner was charged with having obtained money from Ramsey on that false pretence, and was acquitted of that charge. " The learned Judge then went on to point out that if the acquittal at the first trial was based on the negativing of this fact the evidence would be inadmissible but if that acquittal was based on other circumstances the evidence would be admissible. That is why he said: "An objection in the nature of a plea of "autre fois acquit" cannot of course be maintained, because on either indictment the prisoner could not have been convicted of the offences, or any of them, which were alleged in the other indictment. Nor can there be an estoppel of record or quasi of record, unless it appears by record of itself, or as explained by proper evidence, that the same point was determined on the first trial which was in issue on the second trial. " Speaking of this type of estoppel Dixon, J. said in The King vs Wilkes(1): "Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright, J. in R. vs Ollis which in effect I have adopted in the foregoing statement. . . There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue estoppel should not apply. Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict. They are pleas which are (1) C.L.R. 511 at pp. 518 519. 135 concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well known doctrines which control the relitigation of issues which are settled by prior litigation. " This decision was rendered in 1948. The matter was the subject of consideration by the High Court of Australia after the decision in Sambasivam 's(1) case in Marz vs The Queen (2) . The question concerned the validity of a convic tion for rape after the accused had been acquitted on the charge of murdering the woman during the commission of the act. In an unanimous judgment by which the appeal of the accused was allowed, the court said: "The Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings. . The law which gives effect to issue estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel, still less with the process of reasoning by which the finding was reached in fact. . It is enough that an issue or issues have been distinctly raised or found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other. " It is, therefore, clear that section 403 of the Criminal Proce dure Code does not preclude the applicability of this rule of issue estoppel. The rule being one which is in accord with sound principle and supported by high authority and there being a decision of this Court which has accepted it as a proper one to be adopted, we do not see any reason for discarding it. We might also point out that even before the decision of this Court this rule was applied by some of the High Courts and by way of illustration we might refer to the decision of Harries, C. J. in Manickchand Agarwala vs The State(3). Before parting, we think it proper to make one observation. The question has sometimes been mooted as to whether the same principle of issue estoppel could be raised (1) (2) ; , 68 69. (3) A.I.R. 1952 Cal. 136 against an accused, the argument against its application being that the prosecution cannot succeed unless it proves to the, satisfaction of the Court trying the accused by evidence led before it that he is guilty of the offence charged. We prefer to express no opinion on this question since it does not arise for examination. As stated earlier, if Pritam Singh 's(1) case was rightly decided, it was conceded that the decision of the Judicial Commissioner was right. The appeal, therefore, fails and is dismissed. Appeal dismissed (1) A.I.R. 1956 S.C. 415. [/INST]In the present case. the trial court held the respondent guilty of the offences under sections 333, 323 and 440 all read with section 149, Indian Penal Code. It was alleged by the prosecution that 'the respondent Bira Singh was a member of the unlawful assembly which was formed between 3 and 5 p.m. on 25th April 1960, in contravention of the promulgation of the order under section 144 of the Code of Criminal Procedure. As a member of the mob he was alleged to have pelted Stones at police officers. The respondent pleaded, in his defence that the present trial was barred by section 403, Criminal Procedure Code by reason of the acquittal of the accused under section 188, Indian Penal Code on July 30, 1960. The Trial court did not accept his defence and convicted him. On appeal, the Judicial Commissioner accepted the defence of the respondent and acquitted him on the bases of the decision of this court in Pritam Singh vs State of Punjab. Before the trial of the present case, a complaint was filed against the respondent on May 12, 1960 under section 188 I.P.C. In that complaint the District Magistrate alleged that the respondent had disobeyed the order passed under section 144 by forming himself alongwith other persons into an unlawful assembly between the hours of 3 and 5 p.m. on April 25, 1960. In that case the trial court convicted him of the offence charged and sentenced him to rigorous imprisonment for 6 months. On appeal the Sessions Judge by his judgment dated July 30, 1960 acquitted the respondent, on the ground that the prosecution had failed to establish that the respondent was present at the place and at the time where the occurrence took place. This acquittal was confirmed by the Judicial Commissioner. Held Sub sections (1) to (3) of section 403 of the Code of Criminal Procedure deal with the trial of an accused for an offence and his conviction therefor. The question raised for decision in Pritam Singh 's case however was different and was whether where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of section 403 (2). It would not be correct to say that the principle underlying in Sambasivan 's case was dissented from in R. vs Connelly. Besides, it should be pointed out that the principle 124 underlying the decision in Pritam Singh 's case did come up for consideration before this Court on several occasions, but it was never dissented from though in some of them it was distinguished on facts. Pritam Singh vs State of Punjab, A.I.R. 1956, S.C. 415, R. vs Connelly, and Sambasivam vs Public Prosecutor, Federation of Malaya, , relied on. Gurcharan Singh vs State of Punjab, A.I.R., , referred to. State of Bombay vs section L. Apte, ; , Banwari Godara vs The State of Rajasthan, Cr. A. No. 141 of 1960 dated February 7, 1961, Mohinder Singh vs State of Punjab, A.I.R. 1965 S.C. 79, Kharkan vs The State of Uttar Pradesh, A.I.R. 1965 S.C. 83, Yusofalli mulla vs The King. 76 I.A. 158, referred to. (ii) The rule of issue estoppel does not prevent the trial of an offence as does author fois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence had already been led and a specific finding recorded at an earlier criminal trial before a court of competent jurisdiction. The rule of issue estoppel is not the same as the plea of double jeopardy or autre fois acquit is also clear from the statement of the law by Lord Mac Dermott in Sambasivam 's case. (iii) It is clear that section 403 of the Criminal Procedure Code does not preclude the applicability of this rule of issue estoppel. The rule being one which is in accord with sound principle and supported by high authority and there being a decision of this court in Pritam Singh 's case which has accepted it as a proper one to be adopted, there is no reason for discarding it. The Queen vs Ollis, The King vs Wilkes, ; , Marz vs The Queen, ; and Manick chand Agarwall vs The State, A.I.R. 1952 Cal. 730 relied on. </s>