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<s>[INST] Summarize the judgementAppeal No. 107 of 1960. Appeal by special leave from the judgment and order dated September 21, 1959, of the Mysore High Court, Bangalore, in Misc. Appeal No. 68 of 1959. Purshottam Prikamdas, section N. Andley, J. B. DadaChanji, Rameshwar Nath and P. L. Vohra, for the appellant. 715 K. R. Karanth and Naunit Lal, for the respondent. April 27. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. The respondent, Pothan Joseph, who was working as the Editor of the Deccan Herald owned and published by the appellant, The ' Printers (Mysore) Private Ltd., in Bangalore has filed a suit against the appellant on two contracts executed between the parties on April 1, 1948, and February 20, 1953, respectively, and has claimed accounts of the working of the Deccan Herald newspaper from April 1, 1948, to March 31, 1958, as well as payment of the amount that may be found due to him from the appellant tinder the provisions of cls. 2(d) and 1(d) of the said contracts. The services of the respondent were terminated by the appellant by its letter dated September 28, 1957, in which the respondent was told that the termination would take effect from March 31, 1958. However, by a subsequent letter written by the appellant to the respondent on March 17, 1958, the respondent was told that his services had been terminated with immediate effect and he was asked to hand over charge to his successor, Mr. T. section Ramachandra Rao. Thereafter on July 14, 1958, the respondent, filed the present suit against the appellant. The appellant contended that the two contracts on which the respondent 's claim was based were subject to an arbitration agreement, and so it was not open to the respondent to file the present suit against the appellant. The appellant, therefore, requested the Court under section 34 of the Indian , (hereinafter called the Act), to stay the proceedings initiated by the respondent and refer the dispute to arbitration in accordance with the arbitration agreement between the parties. The learned trial judge who heard the appellant 's application, however, exercised his discretion against it and refused to stay the proceedings in the respondent 's suit. Thereupon the appellant preferred an appeal in the Mysore High Court but his appeal failed and the High Court confirmed the order passed by the trial court though for different reasons. The High 716 Court, however, thought that the learned trial judge, in dealing with the appellant 's application " bad gone much further than he should have done, and hence it was desirable that the case should be tried by some other judge ". The respondent did not object, and so the High Court directed that the suit may be transferred to the file of the Additional Civil Judge, Bangalore. The appellant then applied to the High Court for a certificate. His application was, however, rejected on the ground that the decision under appeal could not be considered as a judgment, decree or final order under article 133(1) of the Constitution ; on that view it was thought unnecessary to decide whether on the merits the case was fit to be taken in appeal to this Court. Then the appellant applied for and obtained special leave from this Court. That is how this appeal has come before us; and the substantial point which arises for our decision is whether the courts below were in error in refusing to stay the suit filed by the respondent against the appellant in view of the arbitration agreement between them. Before we deal with the merits of the contentions raised by the parties in this appeal it is necessary to set out briefly the relevant facts leading to the present litigation. The appellant is a printing company and it owns and publishes the Deccan Herald in English and Prajavani in Kannada at Bangalore. By a contract dated April 1, 1948, the appellant engaged the respondent as Editor of the Deccan Herald for a period of five years on terms and conditions specified in the said contract. As provided by el. (5) of the said contract the period of the respondent 's employment was extended by another five years by a subsequent contract entered into between the parties on February 20, 1953. As we have already mentioned the services of the respondent came to be terminated abruptly on March 17, 1958. It appears that by his letter dated October 16, 1957, the respondent made certain claims against the appellant under the provisions of the Working Journalists Act. Besides, he demanded 1/10th of the profits made by the Deccan Herald from 1948 up to the date of the termination of his service under the two respective contracts. This claim was 717 denied by the appellant. Correspondence then ensued between the parties but since no common ground was discovered between them the respondent filed the present suit. His case is that the two contracts entitled him to claim 1/10th of the profits made by the Deccan Herald during the period of his employment,, and so he claims an account of the said profits and his due share in them. The learned trial judge found that the respective contentions raised by the parties before him showed that there was no dispute as such between them which could attract the arbitration agreement. He also held that an attempt was made by the parties to settle their differences amicably through the mediation of Mr. Behram Doctor but the said attempt failed because the appellant was not serious about it and was just trying " to protract, defeat and delay the plaintiff 's moves". According to the learned trial judge a plea of limitation would fall to be considered in the present suit and it was desirable that the said plea should be tried by a competent court rather than by arbitrators. He was, however, not impressed by the respondent 's contention that his character had been impeached by the appellant and so he should be allowed to vindicate his character in a trial before a court rather than before the arbitrators. In dismissing the appellant 's claim for stay of the suit the learned judge observed that if the accounts of the Deccan Herald had not been separately maintained it would be competent for a qualified accountant to allocate expenses and capital expenses among the different activities of the appellant and then very little would be left for arbitrators to decide. He had no doubt that the contract by which the respondent was entitled to claim 1/10th share in the profits of the Deccan Herald necessarily postulated that the accounts of the Deccan Herald would be separately maintained. On these considerations the trial judge refused to stay the suit. When the matter went in appeal the High Court held that the dispute between the parties did not fall within the arbitration agreement. The High Court also considered the other points decided by the trial court; it held that Mr, Behram Doctor had not been 93 718 appointed as an arbitrator between the parties and that the proceedings before him merely showed that the parties were exploring the possibility of having an arbitration. It observed that the appellant company was a big concern and referred to the respondent 's apprehension that it was in a position to dodge the respondent 's claim. However, the High Court was not impressed by these apprehensions, and it was not inclined to find fault with the conduct of the appellant in the trial court. It was also not satisfied that the question of limitation which would arise in the suit as well as the question of interpreting the contracts could not be properly tried by arbitration. It recognised that there had been a complete change of front on the part of the appellant in regard to the pleas raised by the appellant under the arbitration agreement when the matter was discussed before Mr. Behram Doctor, and when it reached the court in the form of the present suit. The High Court then considered other facts which it thought were relevant. It stated that there was great deal of bad blood between the parties and there was no meeting ground between them. The appellant 's plea that recourse to arbitration may help an early disposal of the dispute did not appeal to the High Court as sound, and so, on the whole, the High Court thought that the order passed by the trial court refusing to stay the proceedings in suit should be confirmed. The appellant contends that the reasons given by the High Court in refusing to stay the suit are not convincing and that the discretion vesting in the High Court in that behalf has not been properly or judiciously exercised. Section 34 of the Act confers power on the court to stay legal proceedings where there is an arbitration agreement subject to the conditions specified in the section. The conditions thus specified are satisfied in the present case, but the section clearly contemplates that, even though there is an arbitration agreement and the requisite conditions specified by it are satisfied, the court may nevertheless refuse to grant stay if it is satisfied that there are sufficient reasons why the matter should not be referred in accordance with the arbitration agreement. In other words, the power to 719 stay legal proceedings is discretionary, and so a party to an arbitration agreement against whom legal proceedings have been commenced cannot by relying on the arbitration agreement claim the stay of legal proceedings instituted in a court as a matter of right. It is, however, clear that the discretion vested in the court, must be properly and judicially exercised. Ordinarily where a dispute between the parties has by agreement between them to be referred to the decision of a domestic tribunal the court would direct the parties to go before the tribunal of their choice and stay the legal proceedings instituted before it by one of them. As in other matters of judicial discretion, so in the case of the discretion conferred on the court by section 34 it would be difficult, and it is indeed inexpedient, to lay down any inflexible rules which should govern the exercise of the said discretion. No test can indeed be laid down the automatic application of which will help the solution of the problem of the exercise of judicial discretion. As was observed by Bowen, L. J., in Gardner vs Jay (1) " that discretion, like other judicial discretion, must be exercised according to common sense and according to justice. " In exercising its discretion under section 34 the court should not refuse to stay the legal proceedings merely because one of the parties to the arbitration agreement is unwilling to go before an arbitrator and in effect wants to resile from the said agreement, nor can stay be refused merely on the ground that the relations between the parties to the dispute have been embittered or that the proceedings before the arbitrator may cause unnecessary delay as a result of the said relations. It may not always be reasonable or proper to refuse to stay legal proceedings merely because some questions of law would arise in resolving the dispute between the parties. On the other hand, if fraud or dishonesty is alleged against a party it may be open to the party whose character is impeached to claim that it should be given an opportunity to vindicate its character in an open trial before the court rather than. before the domestic tribunal, and in a proper case the. court may consider that fact as relevant for deciding (1) 58, 720 whether stay should be granted or not. If there has been a long delay in making an application for stay and the said delay may reasonably be attributed to the fact that the parties may have abandoned the arbitration agreement the court may consider the delay as a relevant fact in deciding whether stay should be granted or not. Similarly, if complicated questions of law or constitutional issues arise in the decision of the dispute and the court is satisfied that it would be inexpedient to leave the decision of such complex issues to the arbitrator, it may, in a proper case, refuse to grant stay on that ground; indeed, in such cases the arbitrator can and may state a special case for the opinion of the court under section 13(b) of the Act. Thus, the question as to whether legal proceedings should be stayed under section 34 must always be decided by the court in a judicial manner having regard to the relevant facts and circumstances of each case. Where the discretion vested in the court under section 34 has been exercised by the trial court the appellate court should be slow to interfere with the exercise of the said discretion. In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court 's exercise of discretion. As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge; but if it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts and has adopted an unjudicial approach then it would certainly be open to the appellate court and in many cases it may be its duty to interfere with the trial court 's exercise of discretion. In cases falling under this class the exercise of discretion by the trial 721 court is in law wrongful and improper and that would certainly justify and call for interference from the appellate court. These principles are well established; but, as has been observed by Viscount Simon, L. C., in Charles Osenton & Co. vs Johnston (1) " the law as to the reversal by a court of appeal of an order made by a, judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case". In the present case there is one more fact which has to be borne in mind in dealing with the merits of the controversy before us. The appellant has come to this Court by special leave under article 136; in other words, the appellant is not entitled to challenge the correctness of the decision of the High Court as a matter of right. It is only in the discretion of this Court that it can be permitted to dispute the correctness or the propriety of the decision of the High Court, and so in deciding whether or not this Court should interfere with the order under appeal it would be relevant for us to take into account the fact that the remedy sought for by the appellant is by an appeal which is a discretionary matter so far as this Court is concerned. It is in the light of these principles that we must consider whether or not the appellant 's complaint against the High Court 's order can be upheld. The first point which calls for a decision relates to the construction of the contracts between the parties. As we have already stated two contracts were executed between them but their terms are substantially the same and so we may deal with the subsequent contract which was executed on February 20, 1953 (P. 2). Under this contract the respondent was engaged as the Editor of the Deccan Herald and his salary was fixed at Rs. 1,500 permensem under paragraph 1 (a). Paragraph 1(b) and (c) deal with the other amenities to which the respondent was entitled. Clause (d) of paragraph 1 provides that when the newspaper shows a profit in the annual accounts the Editor shall be entitled to 1/10th share of it is on this clause that the respondent 's claim in the present proceedings is (1) , 138. 722 based. The terms on which the respondent had to remain in the service of the appellant are specified in paragraph 2(a) and (b). Paragraph 3 provides for the renewal of the contract for a further period of five years if it is found that such renewal is for the mutual advantage of the parties. This paragraph also provides that during the continuance of his employment the respondent shall not directly or indirectly be interested in any other newspaper business than that of the appellant or any other journalistic activities in competition with that of the appellant. It also stipulates that if the contract is determined the respondent shall not for a period of three years thereafter be directly or indirectly interested in any newspaper business of the same kind as is carried on by the appellant within the Mysore State. It would thus be seen that this paragraph shows the liability imposed on the respondent as a consideration for the benefit conferred on him by paragraph 1 in general and cl. (d) of the said paragraph in particular. Paragraph 4 contains an arbitration agreement. It provides that if in the interpretation or application of the contract any difference of opinion arises between the parties the same shall be referred to arbitration. The arbitrator can be named by both the parties but if they failed to choose the same person each side will choose an arbitrator and the two will elect another person to complete the panel. Their award shall be final and binding on both the parties. The High Court has held that the present suit is outside the arbitration agreement because neither party disputes the applicability of the terms of the contract in the decision of the dispute. The High Court thought that in the context the words 'application of the contract ' meant a dispute as to the applicability of the contract, and since the applicability of the contract was not in question and no dispute as to the interpretation of the contract arose, the High Court held that paragraph 4 was inapplicable to the present suit. Mr. Purshottam, for the appellant, con. tends that the construction placed by the High Court on the word " application " is erroneous. According to him, any difference of opinion in regard to the application of the contract must in the context mean 723 the, working out of the contract or giving effect to its terms. In our opinion, this contention is well founded. The words 'interpretation or application of the contract ' are frequently used in arbitration agreements and they generally cover disputes between the parties in regard to the construction of the relevant terms of the contract as well as their effect, and unless the con ' text compels a contrary construction, a dispute in regard to the working of the contract would generally fall within the clause in question. It is not easy to appreciate what kind of dispute according to the High Court would have attracted paragraph 4 when it refers to a difference of opinion in the application of the contract. Since both the parties have signed the contract the question about its applicability in that form can hardly arise. Differences may, however, arise and in fact have arisen as to the manner in which the contract has to be worked out and given effect to, and it is precisely such differences that are covered by the arbitration agreement. We would accordingly hold that the High Court was in error in coming to the conclusion that the present dispute between the parties was outside the scope of paragraph 4 of the contract. If the High Court had refused to stay the present proceedings only on this ground the appellant would no doubt have succeeded; but the High Court has based its decision not only, nor even mainly, on the construction of the contract. The tenor of the judgment suggests that the High Court considered the other relevant facts to which its attention was invited and the material findings recorded by the trial judge, and though it differed from some of the findings of the trial judge, on the whole it felt no difficulty in coming to the conclusion that there was no reason to interfere with the trial court 's exercise of discretion under section 34. That is why, even though the appellant has succeeded before us on the question of the construction of the arbitration agreement, having regard to the limits which we generally impose on the exercise of the jurisdiction under article 136, he must still satisfy us that we would be justified in interfering with the concurrent exercise of discretion by the two courts below, and that would inevitably depend upon the other 724 relevant facts to which both the courts have referred, and on which both of them have relied though in different ways. What then are the broad features of the case on which the trial judge and the High Court have respectively relied ? It is clear that the present dispute is not the result of an ordinary commercial transaction containing an arbitration clause. The contract in question is between a journalist and his employer by which the remuneration of the journalist has been fixed in a somewhat unusual manner by giving him a specified percentage in the profit which the Deccan Herald would make from year to year. According to the respondent he was surprised when the General Manager of the paper informed him that 75% of the overall expenditure incurred in the several activities of the appellant was being charged to the Deccan Herald, and that the capital liabilities were charged in the same proportion; he thought that this system of accounting adopted by the appellant was repugnant to the material provisions in his contract. Indeed his case is that after he came to know about this system he protested to the Director, Mr. Venkataswamy, who has been taking active part in the affairs of the appellant, and Mr. Venkataswamy assured him that as from the beginning of 1955 the accounts were being separately maintained. It would appear that the information received by the respondent from the General Manager disillusioned him and that appears to be the beginning of the present dispute, according to the respondent 's letter of May 24, 1955, (D. 1). On February 18, 1956, the respondent invoked the arbitration agreement and told Mr. Venkataswamy that Mr. Behram Doctor had agreed to work as arbitrator and give his award (D. 2). Mr. Venkataswamy who was addressed by the respondent as the Managing Director told him by his reply of March 5, 1956, that he was not the Managing Director and added that in his ' view it was not open to the respondent to invoke cl. 4 of the contract because he was aware that no monies were payable to the respondent under el. 1(d). It would thus be seen that Mr. Venkataswamy 's immediate response to the res pondent 's request for arbitration was that the respon 725 dent could not invoke the arbitration clause (D. 3). It is true that on April 23, 1956, Mr. Venkataswamy attempted to explain this statement by saying that all that he intended to suggest was that no occasion for invoking the arbitration agreement had arisen. That, however, appears to be an unsatisfactory explanation (D. 10). Even so, Mr. Venkataswamy agreed to meet Mr. Behram Doctor and so on March 9, 1956, the respondent gave to Mr. Venkataswamy the address of Mr. Behram Doctor and asked him to see him (D. 5). He informed Mr. Behram Doctor accordingly (D. 6). It appears that subsequently Mr. Behrain Doctor met both the respondent and Mr. Venkataswamy on May 9, 1956. The proceedings of this meeting which have been kept by Mr. Behram Doctor and copies of which have been supplied by him to both the parties indicate that Mr. Behram Doctor attempted to mediate between the parties and presumably the parties were agreeable to secure the mediation of Mr. Behram Doctor to resolve the dispute. We ought to add that the copy of the said proceedings produced by the appellant contains a statement that Mr. Venkataswamy at the outset told Mr. Behram Doctor that he had; come on an unofficial visit and was speaking without the consent of the other directors. This statement is, however, not to be found in the copy supplied by Mr. Behram Doctor to the respondent. Prima facie it is not easy to understand why Mr. Behram Doctor should have omitted this material statement in the copy supplied by him to the respondent. That, however, is a matter which we do not propose to pursue in the present appeal. It is thus clear that though Mr. Behram Doctor was not appointed an arbitrator and no reference in writing was made to him an attempt was made by the parties to settle the dispute with the assistance of Mr. Behram Doctor, and that attempt failed. Having regard to the facts which have come on the record it may not be unreasonable to infer that the appellant was not too keen to pursue the matter on the lines originally adopted by both the parties before Mr. Behram Doctor. It also appears that for some years the, accounts of the Deccan Herald had not been separately kept as 94 726 they should have been according to the respondent 's case. The respondent alleges that they have not been kept separately throughout the ten years ; but that is a matter which is yet to be investigated. If the accounts are not separately kept the question of allocating expenditure would inevitably arise and that can be decided after adopting some ad hoc principle in that behalf. A plea of limitation has also been indicated by the appellant and it has been suggested that the first contract having merged in the second it is only under the latter contract that the respondent may have a cause of action. "Thus the effect of the two contracts considered together may have to be adjudged in dealing with the question of limitation. It has also been suggested that the respondent knew how the accounts were kept from year to year and in substance he may be deemed to have agreed with the method adopted in keeping the accounts. If this point is raised by the appellant it may involve the decision of the question about the effect of the respondent 's conduct on his present claim. The appel lant has also suggested that the respondent has adopted an attitude of blackmailing the appellant and the respondent treats that as an aspersion on his character. The relations between the parties have been very much embittered and the respondent apprehends that the appellant, being a powerful company, may delay and seek to defeat the respondent 's claim by protracting the proceedings before the arbitrators. It now looks impossible that the parties would agree to appoint one arbitrator, and so if the matter goes before the domestic tribunal the two arbitrators appointed by the two parties respectively may have to nominate a third one to complete the constitution of the domestic tribunal, and that it is said may easily lead to a deadlock. In the trial court attempts were made to settle this unfortunate dispute but they failed and the respondent 's grievance is that the appellant adopted an unhelpful and noncooperative attitude. It appears fairly clear that when the parties entered into the present contract and agreed that differences between them in regard to the interpretation and application of the contract should be referred to 727 arbitration they did not anticipate the complications which have subsequently arisen. That is why an arbitration agreement may have been introduced in the contract in question. All these facts have been considered by both the courts, and though it is true that in their approach and final decisions in respect of these facts the two courts have differed in material particulars, they have in the result agreed with the conclusion that the discretion vested in them should be exercised in not granting stay as claimed by the appellant. Under these circumstances we do not think we would be justified in substituting our discretion for that of the courts below. It may be that if we were trying the appellant 's application under section 34 we might have come to a different conclusion; and also that we may have hesitated to confirm the order of the trial court if we had been dealing with the matter as a court of first appeal; but the matter has now come to us under article 136, and so we can justly interfere with the concurrent exercise of the discretion by the courts below only if we feel that the said exercise of discretion is patently and manifestly unreasonable, capricious or perverse and that it may defeat the ends of justice. Having regard to all the circumstances and facts of this case we are not disposed to hold that a case for our interference has been made out by the appellant. That is why we dismiss this appeal but make no order as to costs throughout. Appeal dismissed. [/INST]The respondent was the Editor of the Deccan Herald, owned and published by the appellant, and the two contracts executed by the parties contained an arbitration clause that if in the interpretation or application of the contract any difference arose between the parties the same shall be referred to arbitration and the award shall be binding between the parties and also provided for, apart from his monthly salary, the payment of 10% of the profits to the respondent. Upon the termination of his services by the appellant, the respondent brought a suit for accounts and payment of the profits found due to him. The appellant by an 714 application pleaded that the suit ought to be stayed under section 34 of the , and the dispute referred to arbitration in accordance with the agreement between the parties. The trial judge refused to exercise his discretion in favour of the appellant and refused to stay the suit. On appeal the High Court confirmed the decision of the trial court. The appellant came up to this Court by special leave under article 136 of the Constitution: Held, that the power conferred on the court by section 34 Of the , is discretionary and even though the conditions specified therein were fulfilled no party could claim there under a stay of legal proceedings instituted in a court as a matter of right. But the discretion vested in the court is a judicial discretion and must be exercised as such in the facts and circumstances of each case. No inflexible rules can, therefore, be laid down f or its exercise and the court has to act according to common sense and justice. Gardner vs Jay, , referred to Where the discretion under the section has been properly and judiciously exercised by the trial court the appellate court would not be justified in interfering with such exercise of discretion merely on the ground that it would have taken a contrary decision if it had considered the matter at the trial stage. But if it appears to the appellate court that the trial court has exercised its discretion unreasonably or capriciously or has ignored relevant facts or has approached the matter unjudiciously, it would be its duty to interfere. Charles Osenton & Co. vs jhanaton, , referred to. The words " interpretation and application of the contract frequently used in arbitration clauses, as they have been in the contracts in question, cover not only disputes relating to the construction of the relevant terms of the contract but also their effect, and unless the context compels a contrary construction, a dispute relating to the working of the contract falls within such a clause. But the Supreme Court would not lightly interfere under article 136 of the Constitution with the concurrent exercise of dis cretion of the courts below under section 34 Of the Act. Before it can justly do so, the appellant must satisfy the Court, on the relevant facts referred to by the courts below, that they exercised their discretion in a manifestly unreasonable or perverse way which was likely to defeat the ends of justice. </s>

<s>[INST] Summarize the judgementCivil Appeal No.1396 of 1974 From the Judgment and order dated 28.2.1973 of the Kerala High Court in I.T. Reference No. 84 of 1971. T.S. Krishnamurthy Iyer, V.J. Francis and N.M. Popli for the Appellant. S.Balakrishnan for the Respondent. The Judgment of the Court was delivered by PATHAK J. This appeal by special leave is directed against the judgment of the High Court of Kerala disposing of an Agricultural 163 Income tax Reference and answering the following question in favour of the assessee and against the Revenue: "Whether on the facts and circumstances of the case the Tribunal was justified in holding that the amount of Rs.33,747.09 is not agricultural income for the assessment year 1964 65." The assessees Kerala Estate Mooriad Chalapuram, is a broad description of seven persons possessing the status of tenants in common under the Kerala Agricultural Income tax Act, 1950. They owned an estate from which they derived agricultural income liable to be assessed in the year 1963 64. The assessees followed the mercantile system of accounting. In assessment proceedings for the year 1963 64, the assessees claimed a deduction of Rs.33,747.09 from their agricultural income on the ground that it was payable towards interest on a loan of Rs.4,00,000 taken by them from M/s. Associated Planters Ltd., Calicut. The deduction was allowed. During the accounting period relating to the assessment year 1964 65 M/s. Associated Planters Ltd.waived payment of the interest of Rs.33,747.09, and accordingly the amount was credited to the revenue accounts of the assessees. The assessing authority brought the amount to tax. The case was ultimately carried in second appeal to the Tribunal on the question whether the sum of Rs.33,747.09 credited in the relevant previous year could be assessed to tax for the year 1964 65. The Tribunal, by majority, held that it was not agricultural income. As the instance of the Commissioner of Agricultural Income tax, Kerala, a reference was made to the High Court of Kerala under sub section (2) of section 60 of the Kerala Agricultural Income tax Act on the question of law set forth earlier, and the High Court has answered the question in the affirmative. The High Court has taken the view that it was immaterial that the assessees followed the mercantile system of accounting, because the case was not one of an actual or constructive receipt or any receipt at all but only one of remission. According to the High Court a remission could not give rise to a credit item in the accounts of the assessees, and that what had been given up by the creditor in favour of the assessees or returned to them could not constitute the income of the assessees. The High Court observed that what was returned to the assessees had nothing to do with the activities of the assessees, and that it did not arise from the agricultural operations carried on by the assessees. The Kerala Agricultural Income tax Act, 1950 provides for the 164 levy of tax on agricultural income in the State of Kerala. Section 3 of the Act provides that agricultural income shall be charged for each financial year on the total agricultural income of the previous year of every person at the rates specified in the Schedule. Section 4 defines what 'total agricultural income ' is, and s.5 details the deductions to be made in computing the agricultural income. Clauses (e), (g), (h), and (i) of section 5 refer to interest paid by an assessee in different kinds of cases. The interest in all these cases has to be deducted from the agricultural income of a person before the levy is imposed. It is not disputed that the interest allowed to be deducted in the assessment of the present assessees falls under one of those clauses and was, therefore, rightly deducted in computing their agricultural income. The question is whether the interest waived by M/s. Associated Planters Ltd. and credited to the revenue accounts of the assessees can be regarded as their agricultural income. There has been serious controversy through the years on the question whether an amount refunded or remitted constitutes the income of an assessee. In Commissioner of Income tax, Mysore vs Lakshmama, the Mysore High Court took the view that a refund received by the assessee in respect of excise fees payable by him amounted to a revenue receipt liable to tax. In that case, however, the High Court specifically made a distinction between cases of refund and cases of remission, and it appears to have taken the position that an amount received as remission of duty could not be treated as a revenue receipt, while an amount received by way of refund could be. In the judgment under appeal, the High Court of Kerala noticed that decision and after exhaustively surveying several decisions came to the conclusion that the remission in the present case could not amount to agricultural income. We think that the view taken by the High Court in the case before us is right. The remission cannot, in our opinion, be considered as amounting to the receipt of agricultural income. What was allowed to be deducted from the total agricultural income of the assessees was interest pursuant to s.5 of the Act. It was a deduction made permissible by the Act. To be regarded as taxable in the hands of the assessees the amount which was the subject of remission must be capable of being described as agricultural income. As the High Court has observed in the present case "what was returned to the assessee has nothing to do with the activities of the assessee, it does not arise from business nor does it arise from agricultural operations when the assessee is an agriculturist. " 165 In order to eliminate such a controversy in cases falling under the Indian Income tax Act, 1922 sub section (2A) was added in section 10 of that Act, whereby a receipt such as this was expressly made liable to tax by legal fiction as profits and gains of business, profession or vocation. Sub section (2A) was inserted in s.10 in 1955. Before that Chagla, C.J., speaking for the Court in Mohsin Rehan Penkar vs Commissioner of Income tax, Bombay City, had observed: "It is impossible to see how a mere remission which leads to the discharge of the liability of the debtor can ever become income for the purposes of taxation". This observation was noted by the Mysore High Court in C.I.T. vs Lakshmamma (supra), and appears from what was said by them to have received that tacit approval of the learned Judges. It was made the basis of distinguishing the case before them from that decided by the Bombay High Court. We may point out in regard to sub section (2A) of section 10 of the Indian Income Tax Act, 1922 that it has been replaced by an even wider provision as sub section (1) of section 41 of the Income Tax Act, 1961. No provision of that nature finds place in the Kerala Agricultural Income Tax Act. The appeal fails and is dismissed with costs. M.L.A. Appeal dismissed. [/INST]The Kerala Agricultural Income Tax Act, 1950 provides for the levy of tax on agricultural income in the State of Kerala. Section 5 details the deductions to be made in computing the agricultural income. Clauses (e), (g), (h) and (i) refer to interest paid by the assessee in different kinds of cases. The interest in all these cases, has to be deducted from the agricultural income of a person before the levy is imposed. The respondents assessees claimed a deduction of Rs.33,747.09 from their agricultural income under section 5 of the Kerala Agricultural Income Tax Act 1950 towards interest on a loan of Rs.4 lakhs taken from a creditor. The deduction was allowed. However, in the next accounting period relating to the assessment year 1964 65, the said creditor waived payment of the interest of Rs.33,747,09 and accordingly the amount was credited to the revenue accounts of the respondents assessees. The Assessing Authority brought the amount to tax. But, the Tribunal as well as the High Court took the view that the case was not one of an actual or constructive receipt or any receipt at all but only one of remission and a remission could not give rise to a credit item in the accounts of the assessees and that what had been given by the creditor in favour of the assessees or returned to them could not constitute the income of the assessees. Dismissing the appeal of the Revenue, ^ HELD: (1) The view taken by the High Court is right. The remis 162 sion cannot be considered as amounting to the receipt of agricultural income. What was allowed to be deducted from the total agricultural income of the assesses was interest pursuant to section 5 of the Act. It was a deduction made permissible by the Act. To be regarded as taxable in the hands of the assessee, the amount which was the subject of remission must be capable of being described as agricultural income. [164F G] In the instant case, what was returned to the assessees has nothing to do with the activities of the assessees; it does not arise from business nor does it arise from agricultural operations when the assessee is an agriculturist. [164G H] Commissioner of Income tax, Mysore vs Lakshmamma,[1964] , approved. Mohsin Rehman Penkar vs Commissioner of Income tax, Bombay City,[1948] , referred to. (2) In order to eliminate such a controversy in cases falling under the Indian Income tax Act, 1922, sub s.(2A) was added in section 10 of that Act, whereby a receipt such as this was expressly made liable to tax by legal fiction as profits and gains of business, profession or vocation. Sub.s.(2A) of s.10 of the Indian Income Tax Act, 1922 has been replaced by an even wider provision as sub section (1) of section 41 of the Income Tax Act, 1961. No provision of that nature finds place in the Kerala Agricultural Income Tax Act. [165A B;D] </s>

<s>[INST] Summarize the judgementCivil Appeal No. 2183 of 1984. From the Judgment and Order dated 28.3.1984 of the Kerala High Court in W. P. No. 131 of 1982. M. K. Ramamurthi, V. J. Francis and N. M. Popli for the Appellants. G. D. Gupta, Ms. Halida Khatun, Subba Rao, R. N. From the Judgment and Order dated 28.3.1984 of the Kerala High Court in W. P. No. 131 of 1982. Poddar, Ms. Subhadra, Ms. Alka, B. B. Tawaklcy and Mrs. Urmila Kapur for the Respondents. The Judgment of the Court Was delivered by DESAI, J. Chagrined by the failure of the attempt to pressurise junior engineers to boycott the examination and further irritated by the holding of the examination the appellants have knocked at the 883 doors of this Court, putting forth utterly unsustainable contentions. Appellants are junior engineers in the Telegraph Wing of the Post & Telegraph Department. The next avenue of promotion for a Junior Engineer is the post of Assistant Engineer. Promotions were governed by Telegraphic Engineering Service (Class Il) Recruitment Rules, 1966 ( '1966 Rules ' for short ). By these rules Telegraphic Engineering Service ( Class Il ) was formed. The Rules were to apply to posts as specified in Clause (I) of the Schedule which specified the post of Assistant Engineer and other equivalent posts having allied designations. Clause (I) in Appendix I to the 1966 Rules provides that recruitment to the service shall be entirely by promotion on the basis of selection of Junior Engineers through a qualifying departmental examination. An approved list shall he ' prepared by a duly constituted Departmental Promotion Committee, by selection from amongst the officials who qualifying the departmental examination. Sub Clause (4) provided that the departmental qualifying examination shall be open to Junior Engineers who fulfill, amongst others, the condition specified therein. It reads as under: "Those recruited and absorbed in that grade against the vacancies of a year, ordinarily, not less than five years prior to the year of announcement of the said examination. These rules were in force till superseded by Telegraphic Engineering Service (Group Posts) Recruitment Rules, 1981 ( '1981 Rules ' for short) enacted in exercise of the power conferred by the proviso to Article 309 of the Constitution with effect from May 7, 1981. The controversy centers round the Note appended to sub clause (4 of Appendix I of 1981 Rules which reads as under: "40 There shall be normally one examination, consisting of two parts called Qualifying cum Competitive Examination for promotion to the Service and shall be held at least once in a calendar year in the manner and in accordance with the syllabus prescribed in Appendix Ill to these rules. Note: After the commencement of these rules, the first two examinations shall only be competitive for which the eligibility shall be restricted to only those officers who have 884 already qualified in the Departmental Qualifying Examination held before the commencement of these rules. " Appellants were recruited as Junior Engineers in the year 1973. ln other words, they belong to 1973 batch. Their grievance is that they have completed five years of service which conferred on them eligibility to appear at an examination which was to be held under 1966 Rules. 1966 Rules contemplated only one examination styled as Qualifying Departmental Examination. 1981 Rules which superseded 1966 Rules provide for one examination to be held in two parts namely Qualifying Examination and Competitive Examination. Before one is permitted to take a Competitive Examination he has to clear Qualifying Examination. In short, if one has not qualified at the Qualifying Examination he can not take the Competitive Examination. The appellants ' grievance is that from 1973 to 1982 or to be specific after 1978 when they became eligible to take Qualifying Examination no Qualifying Examination was held till May 7, 1981 when 1966 Rules were superseded by 1981 Rules which introduced the concept of Competitive Examination which could alone be taken after in qualifying the Qualifying Examination and for a period of two years as per the Note appended to clause (4) Qualifying Examination was not to be held. The contention is that this is an invidious manner of denying them the opportunity to take the examination and thereby deny them equality of opportunity in the matter of promotion. Appellants accordingly filed O.P. No. 5714/81 under article 226 of the Constitution in the High Court of Kerala impugning the constitutionality of the Note appended to clause (4) of Appendix I to 1981 Rule. A learned Single Judge of the High Court, before whom the petition came up for hearing, held that the policy reflected in the Note appended to clause (4) of Appendix I to 1981 Rules is irrational as it has no reasonable connection with the needs of the office or the object sought to be attained. A direction was given that the Note shall be applied to the appellants. By the judgment rendered on March 9, 1982, the learned Judge gave a further direction that the department can either hold the over due qualifying examination of 1980 or it can hold the qualifying cum competitive examination but it must be done forthwith so that the appellant who were petitioners before the High Court may not be altogether 885 excluded from the examination or examinations to be held. The respondents to the writ petition, the Union of India and others filed Writ Appeal No. 131 of 1982 which came up before a Division Bench of the High Court. The Division Bench disagreed with the learned Single Judge observing that the Note to Rule 4 is not ultra vires but this was subjects to the further directions given by the Division Bench. Taking note of the fact that in the meantime, a competitive examination was conducted, a direction was given that the result be published and the candidates who are declared successful in the examination should be appointed to 33 1/3% of the vacancies which arose between May 7, 1981 and May 7, 19 82.A further direction was given that the second competitive examination contemplated in note to clause (4) must be conducted after a qualifying examination as envisaged in 1966 and/or 1981 Rules is conducted within a period of six months from the date of the judgment and all those examinees found declared successful at the qualifying examination be permitted to take the competitive examination which must be held within six months from the date of the result of the earlier examination. A direction was given that the candidates declared successful at the competitive examination be appointed to 33 1/3% quota of posts in the vacancies that arose between May 7, 1982 and May 7, 1983. There was some further directions which are hardly material for the present purpose. The writ appeal was disposed of in these terms. Original petitioners aggrieved by the decision of Division Bench have filed this appeal by special leave. By sheer passage of time, this appeal and even the main petition have become infructuous. Even in service jurisprudence the clock of history, sometimes, cannot be put back and even if it is found that the respondents have committed an error in implementing the statutory rules no relief can be granted. This is one such case. Appellants are Junior Engineers of the 1973 batch belonging to the service styled as Telegraphic Engineering Service (Class II) re designated as Telegraphic Engineering Service (Group Posts). Appellants as Junior Engineers can look forward to become Assistant Engineers by promotion. Indisputably, the recruitment to the post of Assistant Engineer in the service is by promotion from 886 the cadre of Junior Engineers. Under the 1966 Rules, Junior Engineers would become eligible for promotion on qualifying at a qualifying examination. The eligibility criterion for taking the examination was service of five years. Appellants who are Junior Engineers of 1973 batch became eligible for taking the examination that may be held in 1978 and onwards. Once in November, 1980 and another in January, 1981, programme of holding qualifying examination, where 1973 recruits could have appeared, was announced but subsequently cancelled and on May 7, 1981, 1966 Rules were superseded by 1981 Rules. 1981 Rules envisaged a qualifying cum competitive examination. Eligibility criterion for taking competitive examination was successful clearance of qualifying examination. Therefore, unless a qualifying examination is held one would have no chance to take competitive examination. For 1973 recruits no qualifying examination is held. In 1981 Rules by a note appended to clause (4) of Appendix 1, it was provided that the next two examinations under 1981 Rules would only be competitive examination. The sum total of these developments would certainly come in the way of appeallants who are of 1973 batch from taking competitive examination and unless they qualify at that examination they would not be eligible for promotion to the post of Assistant Engineer. In 1982 a competitive examination was held. Junior Engineers who were recruited prior to 1973 and who had qualified at the qualifying examination held in August 1980 could appear at this competitive examination. As Junior Engineers of 1973 and sub" sequent batches were not admitted to qualifying examination held in 1982 and as no qualifying examination was held in November 1980 and January 1981 and as two examinations under the 1981 Rules were only to be competitive examination, certainly they have been denied an opportunity to take the examination. Appellants who similarly situated persons tried extra constitutional methods to pressurise the powers that be, from holding the qualifying examination and subsequently from declaring its results. This Court had to interpose to put down such pressure tactics by a mandatory direction given at an interim stage that the results of the examination already held must be declared. We are informed that the results have been declared. 887 Mrs. Urmila Kapoor, learned counsel represented one such successful candidate. Even though the results are declared, the follow up action of promotion and appointment has not been taken. We propose to give appropriate directions in this matter. In the backdrop of these facts, can it be said that the appelIants have been victimised or subjected to discriminatory treatment or have been denied equality of opportunity in the matter of pro motion. Appellants do not question the legality of rules which prescribe a qualifying cum competitive examination for becoming eligible for promotion to the post of Assistant Engineer. Their grievance is that note 4 appended to clause I introduces discrimination In that Junior Engineers of 1972 and prior batches will alone be able, if they had cleared the qualifying examination, to take the competitive examination which would be held under 1981 Rules and as only the competitive examination was to be held, Junior Engineers of 1973 and subsequent batches, even if they have put in five years of qualifying service, would be denied an opportunity to i take the examination. The learned Single Judge of the High Court held the note to be ultra vires. We find it difficult to agree with the view of the learned Single Judge in this behalf. However the Division Bench has clearly opined that the note is not ultra vires. Mr. Ramamurthy, learned counsel for the appellants contended that the note inheres the pernicious tendency of denying equality of opportunity in the matter of taking examination because it permits the department to provide a bottleneck coming in the way of Junior Engineers of the 1973 batch from taking the competitive examination by not holding the qualifying examination. We see nothing wrong in the policy disclosed by the note. lt was pointed out that by 1982 nearly 7, 000 Junior Engineers had become eligible for taking competitive examination. There was some dispute about the figure but we are prepared to accept the figure as given by Mr. Ramamurthy, learned counsel that 4, 000 Junior Engineers of pre ` 1973 batch were qualified for taking competitive examination. Mr. Ramamurthy contended that if the eligibility criterion is five years of service DO artificial road block could be created so as to come in the way of such qualified Junior Engineers from taking the examination. As an additional string to the bow, it was submitted that if the purpose of holding a competitive examination is to select best all eligible persons must be permitted to take the examination and ll 888 no artificial barrier need to be created. It was submitted that not holding of the qualifying examination creates such an impermissible road block in the way of Junior Engineers of 1973 and subsequent batches from taking competitive examination. If by 1982, more than 4, 000 Junior Engineers of pre 1973 batch had become eligible to take the examination and if the accumulated number of vacancies was around 300, it is difficult to accept the submission of Mr. Ramamurthy that everyone who has just put in five years of service must be permitted to take the examination. It is a known principle of service jurisprudence that even though mini mum eligibility criterion is fixed enabling one to take the examination yet the examination can be confined on a rational basis to recruits upto a certain number of years. That constitutes recognition of long experience and not permitting some irate junior to score a march. If by 1982, nearly 4, 000 Junior Engineers of pre 1973 batches had become eligible for taking competitive examination, the department would be perfectly justified in keeping the examination open only to persons who have put in such long service and leaving others to wait for the next examination. If for taking examination this aspect introduces classification, it is based on rational and intelligible differentia which has a nexus to the object sought to be achieved. By the note, for a period of two years only pre 1973 Junior Engineers who had cleared qualifying examination were given a chance to take competitive examination. If this introduces a classification, it is valid. It caters to a well known situation in service jurisprudence that there must be some ratio of candidates to vacancies. And it is based on long experience as a rational basis for classification. Viewed from this angle, we find nothing in the policy underlying the note to rule (4) as being either discriminatory or arbitrary or denying equality of opportunity in the matter of promotion. It had the desired effect of not having a glutt of Junior Engineers taking examination compared to fewer number of vacancies. Length and experience were given recognition by the note The promotion can be thus by stages exposing the promotional avenue gradually to persons having longer experience. This seems to be the policy underlying the note and we see nothing improper or unconstitutional in it. However the situation has materially changed. More than 4 years elapsed sine the note has appeared One examination is 889 a ready taken. Even Junior Engineers of 1973 batch have by now put in more than 12 years of service. Therefore while upholding the note and consequently rejection the appeal we propose to give the following directions to remove the irritants: (i) Successful candidates of 1982 competitive examination, results of which have been declared pursuant to the directions of this Court, must be given promotion as Assistant Engineer within a period of two months from today. (ii) The next qualifying examination permitting all those who are eligible under the rules to appear at it must be held latest by July 31, 1985 and the results be declared by September 30, 1985. (iii) The next competitive examination must be held by December 31, 1985 and the results by declared by February 28, 1986. (iv) Consequent promotions keeping in view the vacancies available must be given within a period of three months after the result is declared. This appeal is disposed of in these terms with no order as to costs M. L. A. Appeal dismissed. [/INST]Clause (1) in Appendix I to the Telegraphic Engineering Service (Class II) Recruitment Rules, 1966 (1966 Rules, for short), provided that promotion of a Junior Engineer to the post of Assistant Engineer shall be entirely by promotion on the basis of selection of Junior Engineers through a qualifying departmental examination. Sub clause (1) provided that the departmental qualifying examination shall be open to Junior Engineers who were recruited and absorbed in that grade against the vacancies of a year, ordinarily not less than five years prior to the year of announcement of the said examination. Sub clause (4) of Appendix I to the Telegraphic Engineering Service (Group Posts) Recruitment Rules, 1981 (1981 Rules, for short) which superseded the 1966 Rules envisaged a qualifying cum competitive examination for promotion to the post of Assistant Engineers. and the Note appended to sub cl. (4) provides that for a period of 2 years after the commencement of the 1981 Rules, the first two examinations shall only be competitive for which the eligibility shall be restricted to only those officers who have already qualified in the Departmental Qualifying Examination held before the commencement of these Rules. " The appellants/Junior Engineers, who were recruited in the year 1973, challenged in the High Court the constitutionality of the Note appended lo clause (4) of Appendix I to 1981 Rule 5 on the ground that note 4 appended to clause I introduces discrimination in that Junior Engineers Or 1972 and prior batches will alone be able, if they had cleared the qualifying examination, to take the competitive examination which would be held under 1981 Rules and as only the competitive examination was to be held, Junior Engineers of 1973 and subsequent batches, even if they have put in five years of qualifying service, would be denied an opportunity to take the examination, and that this is an invidious manner of denying them the opportunity to take the examination and thereby deny them equality of opportunity in the matter of promotion. The learned Single Judge held that the Note to clause (4) of Appendix I to the 1981 Rules was ultra vires. On appeal by the respondent Union of India, the Division Bench of the High Court held that the Note was not ultra Vires. 882 Dismissing the appeal by the appellants, the Court, ^ HELD: (I) By sheer passage of time, this appeal and even the main petition have become infractions. Even in service jurisprudence the clock of history, sometimes, cannot be put back and even if it is found that the respondents have committed an error in implementing the statutory rules no relief can be granted. This is one such case. [885F G] (2) If by 1982, nearly 4,000 Junior Engineers of pre 1973 batches had become eligible for taking competitive examination, the department would be perfectly justified in keeping the examination open only to persons who have put in such long service and leaving others to wait for the next examination. If for taking examination this aspect introduces classification, it is based on rational and intelligible differentia which has a nexus to the object sought to be achieved. By the note, for a period of two years only pre 1973 Junior Engineers who had cleared qualifying examination were given a chance to take competitive examination. If this introduces a classification, it is valid. It caters to a well known situation in service jurisprudence that there must be some ratio of candidates to vacancies. And it is based on long experience as a rational basis for classification. Viewed from this angle, there is nothing in the policy underlying the note to rule (43 as being either discriminatory or arbitrary or denying equality of opportunity in the matter of promotion. lt had the desired effect of not having glutt of Junior Engineers taking examination compared to fewer number of vacancies. Length and experience were given recognition by the note. The promotion can be thus by stages exposing the promotion; l avenue gradually to persons having longer experience. This seems to be the policy underlying the note and therefore there is nothing improper or unconstitutional in it. [888D G] </s>

<s>[INST] Summarize the judgementtion (Civil) No. 2135 of 1982. (Under Article 32 of the Constitution of India): S.K. Bhattacharya for the Petitioner. Mahabir Singh, K.B. Rohtagi, S.K. Dhingra, L.K. Gupta, S.K. Verma, B.D. Sharma, Mrs. section Dikshit and Ms. A. Subha shini (N.P.) for the Respondents. The following Order of the Court was delivered A letter addressed to this Court complaining about prevalence of bonded labour system in Cutton, Anangpur and Lakkarpur areas of Faridabad District in Haryana State wherein the stone quarries workers are living in most inhu man conditions, was treated as a writ petition under Article 32 of the Constitution. This Court appointed two Advocates as Commissioners to inquire into the working conditions of the stone quarry workers with particular reference to the cases mentioned in the writ petition. This Court finding the necessity of an in depth investigation into social and legal aspects of the problem also appointed Dr. S.B. Patvardhan and Mr. Krishan Mahajan to study the working conditions prevail ing in the, various quarries within the Faridabad district with particular reference to violation of provisions of the Bonded Labour System (Abolition) Act of 1976 and Inter State Migrant workmen (Regulation of Employment & Conditions of Service) Act. The Commissioners furnished their report to the Court on 28th of June,1982. Several questions were raised before the Court apart from merit of the dispute; the important ones being (i) whether an application under article 32 of the Constitution was maintainable, particularly when to allegation: of infringe ment of petitioner 's fundamental right was 529 made; (ii) whether a letter addressed to the Court could be treated as a writ petition and be proceeded with in the absence of support by affidavit or verification;. and (iii).whether the Court had power to appoint Commissioners or an investigative body to inquire into allegations made in the petition and by affidavits and require reports to be made to the. Court for facilitating exercise of its juris diction under article 32 of the Constitution. The concept of public interest litigation had not then adequately 'developed and its contours sufficiently deline ated; the practice of accepting letters as a foundation for a writ petition had not also been clearly established; in writ petitions the practice of appointing Commissioners or investigating agencies had not been precedented; the tradi tional concept of defence of locus standi has not been wiped away notwithstanding the decision in S.P. Gupta vs Union of India, [1982] 2 SCR 365. A 3 Judge Bench heard the matter at considerable length and each of them delivered a separate judgment. Though the main judgment was delivered by Bhagwati, J. (as he then was) and Justice A.N. Sen concurred with it by a separate judg ment and Pathak, J. (as he then was) while concurring with Bhagwati, J. on some issues gave his own views. The Court also took note of the position that the Presidential Ordi nance of 1975 for abolition of bonded labour and the subse quent Parliamentary legislation in 1975 were seeking to implement the mandate of article 23 of the Constitution but while statutory provision had been made, taking into account the fact that the pernicious practice of bonded labour had prevailed in this country for centuries; the then current social atmosphere had been tolerating this practice without any serious objection; the concentration of wealth in the hands of a few and the majority being poor it became conven ient for he owners of property and wealth to exploit the poor and in India asocial_ change opposed to traditional methods was difficult to implement, the Court did not treat the writ petition as disposed. of by its judgment and the application survived for further monitoring. In paragraph 39 of the judgment of Bhagwati, J. with whom on that aspect the other two learned Judges agreed, it was said: 530 "We accordingly allow this writ petition and issue the above directions to the Central Government and the State of Haryana and the various authorities mentioned in the preceding paragraphs of this judgment so that ' these poor unfortunate workmen who lead a miserable existence in small novels, exposed to the vagaries of weather, drinking foul water, breathing heavily dust laden polluted air and breaking and blasting stone all their life, may one day be able to realise that freedom is not only the monopoly of a few out belongs to them all and that they are also equally enti tled along with others to participate in the fruits of free, freedom and development. These directions may be summarised as follows: .lm20 (1) The Government of Haryana will, without any delay and at any rate within six weeks from today, constitute Vigi lance Committee in each sub division of a district in compliance with the require ments ' of SeCtion 13 of the keeping in view the guidelines given by us in this judgment. (2) The Government of Haryana will in struct the district magistrates to take up the work of identification of bonded labour as one of their top priority tasks and to map out areas of concentration of bonded labour which are mostly to be found in stone quarries and brick kilns and assign task forces for identification and release of bonded labour and periodi cally hold labour camps in these areas with a view to educating the labourers inter alia with the assistance of the National Labour Institute. (3) The State Government as also the Vigilance Committees and the district magistrates will take the assistance of non political social action groups and voluntary agencies. for the purpose of ensuring implementation of the provisions of the . (4) The Government of Haryana will draw up within a period of three months from today a scheme or programe for rehabili tation of the freed bonded 531 labourers in the light of the guidelines set out by the Secretary to the Govern ment of India, Ministry of Labour in his letter dated September 2, 1982 and imple ment such scheme or programme to the extent found necessary. (5) The Central Government and the Gov ernment of Haryana will take all neces sary_ steps for the purpose of ensuring that minimum wages are paid to the work men employed in the stone quarries and stone crushers in accordance with the principles laid down in this judgment and this direction shall be carried out within the shortest possible time so that within six weeks from today, the workmen start actually receiving in their hands a wage not less than the minimum wage. (6) If payment of wages is made on truck basis, the Central Government will direct the appropriate officer of the Central Enforcement Machinery or any other appro priate authority or officer to determine the measurement of each truck as to how many cubic ft. of stone it can contain and print or inscribe such measurement on the truck so that appropriate and ade quate wage is received by the workmen for the work done by. them and they are not cheated out of their legitimate wage. (7) The Central Government will direct the Inspecting Officers of the Central Enforcement Machinery or any other appropriate Inspecting Officers to carry out surprise checks at least once in a week for the purpose of ensuring that the trucks are not loaded beyond their true measurement capacity and if it is found that the trucks are loaded in excess of the true measurement capacity, the In specting Officers carry ing out such checks will immediately bring this fact to the notice of the appropriate authori ties and necesSary action shall be initi ated against the defaulting mine owners and/or thekedars or jamadars. (8) The Central Government and the Gov ernment of Haryana will ensure that payment of wages is made 532 directly to the workmen by the mine lessees and stone crusher owners or at any rate in the presence of a representa tive of the mine lessees or stone crusher owners and the Inspecting Officers of the Central Government as also of the Govern ment of Haryana shall carry out periodic checks in order to ensure that the pay ment of the stipulated wage is made to the workmen. (9) The Central Board of Workers Educa tion will organise periodic camps near the sites of stone quarries and 'stone crushers in Faridabad District for the purpose of educating the workmen in the rights and benefits Conferred upon them by social welfare and labour laws and the progress made shall be reported to this Court by the Central Board of Workers ' Education at least once in three months. (10) The Central Government and the Government of Haryana will immediately take steps for the purpose of ensuring that the stone crusher owners do not continue to foul the air and they. adopt either of two devices, namely, keeping a drum of water above the stone crushing machine with arrangement for continuous spraying of water upon it or installation of dust sucking machine and a compliance report in regard to this direction shall be made to this Court on or before Febru ary 28, 1984. (11) The Central Government and the Government of Haryana will immediately ensure that the mine lessees and stone crusher owners start supplying pure drinking water to the workmen on a scale of at least 2 litres for every workman by keeping suitable vessels in a shaded place at conveniently accessible points 'and such vessels shall be kept in clean and hygienic condition and shall be emptied, cleaned and refilled every day and the appropriate. authorities of the Central Government and the Government of Haryana will supervise strictly the enforcement of this direction and initi ate necessary action if there is any default. 533 (12) The Central Government and the Government of Haryana will ensure that minimum wage is paid to the women and/or children who look after the vessels in which pure drinking water is kept for the workmen. (13) The Central Government and the Government of Haryana will immediate ly direct the mine lessees and stone crusher owners to start obtaining drink ing water from any unpolluted source or sources of supply and to 'transport it by tankers to the work site with sufficient frequency so as to be able to keep the vessels filled up for supply of clean drinking water to the workmen and the Chief Administrator, Faridabad Complex will set up the points from where the mine lessees. and stone crusher owners can, if necessary, obtain supply of potable water for being carried by tankers. (14) The Central Government and the State GoVernment will ensure that conservancy facilities in ,the shape of latrines and urinals in accordance with the provisions contained in Section 20 of the Mines Act, 1950 and Rules 33 to 36 of the Mines Rules, 1955 are provided at the latest by February 15, 1984. (15) The Central Government and the State Government will take steps to immediately ensure that appropriate and adequate medical and first aid facilities as required by section 21 of the and Rules 40 to 45 A of the Mines Rub s, 1955 are provided to the workmen not later than January 31, 1984. (16) The Central Government and the Government of Haryana will ensure that every workman who is required to carry out blasting with explosives is not only trained under the Mines Vocational Train ing Rules, 1966 but also holds first aid qualification and carries a first aid outfit while on duty as required by Rule45 of the Mines Rules, 1955. (17) The Central Government and the State Government will immediately take steps to ensure that 534 proper and adequate medical treatment is provided by the mine lessees and owners .of stone crushers to the workmen employed by them as also to the members of their families free of cost and such medical assistance shall be made avail able to them without any cost of trans portation or otherwise and the doctor 's fees as also the cost of medicines pre scribed by the doctors including hospi talisation charges, if any, shall also be reimbursed to them. (18) The Central Government and the State Government will ensure that the provi sions of the , the Maternity Benefit (Mines and Circus) Rules, 1963 and the Mines Creche Rules, 1966 where applicable in any particular stone quarry or stone crusher are given effect to by 'the mine lessees and stone crusher owners. As soon as any workman employed in a stone quarry or stone crusher receives injury or contracts disease in the course of his employment, the concerned mine lessee or stone crusher owner shall immediately report this fact to the Chief Inspector or Inspecting Officers of the Central Government and/or the State Government and such Inspecting Officers shall immediately provide legal assist ance to the workmen with a view to ena bling him to file a claim for compensa tion before the appropriate court or authority and they shall also ensure that such claim is pursued vigorously and the amount of compensation awarded to the workman is secured to him. (20) The Inspecting Officers of the Central Government as also of the State Government will visit each stone quarry or stone crusher at least once in a fortnight and ascertain whether there is any workman who is injured or who is suf fering from any disease or illness, and if so, they will immediately take the necessary steps for the purpose of pro viding medical and legal assistance. (21) If the Central Government and the Government of Haryana fail to ensure performance of any of the 535 obligations set out in clauses 11, 13, 14 and 15 by the mine lessees and stone crusher owners within the period speci fied in those respective clauses, such obligation or obligations to the extent to which they are not performed shall be carried out by the Central Government and the Government of Haryana. The Court went on to further say: "We also appoint Shri Laxmi Dhar Misra, Joint Secretary in the Ministry of Labour, Govern ment of India as a Commissioner for the pur pose of carrying out the following assign ment: .lm20 (a) He will visit the stone quar ries and stone crushers in Faridabad District and ascertain by enquiring from the labourers in each stone quarry or stone crusher in the manner set out by us whether any of them are being forced to provide labour and are bonded labourers and he will prepare in respect of each stone quarry or stone crusher a state ment showing the names and particulars of those who, according to the enquiry made by him, are bonded labourers and he will also ascertain from them whether they want to continue to work in the stone quarry or stone crusher or they want to go away and if he finds that they want to go away, he will furnish particulars in regard to them to the District Magis trate, Faridabad and the District Magis trate will, on receipt of the particulars from Shri Laxmi Dhar Misra, make neces sary arrangements for releasing them and provide for their transportation back to their homes and for this purpose the State Government will make the requisite funds available to the District Magis trate. (b) He will also enquire from the mine lessees and owners of stone crushers as also from the thekedars and jamadars whether there are any advances made by them to the labourers working in the stone quarries or stone crushers and if so, whether there is any documentary evidence in support of the same and he. will also ascertain what, according to the mine lessees and owners of stone crushers or the jamadar or the 536 kedar, are the amounts of loans still remaining out. standing against such labourers. (c) He will also ascertain by carrying out sample check whether 'the workmen employed in any particular stone quarry or stone crusher are actually in receipt of wage not less than the minimum wage and whether the directions given in this order in regard to computation and pay ment of minimum wage arc being implement ed by the authorities. (d) He will conduct an enquiry in each of the stone quarries and stone crushers in Faridabad District for the purpose of ascertaining whether there are any con tract labourers or inter State migrant workmen in any of these stone quarries or stone crushers and if he finds as a result of his enquiry that the Contract Labour Act, and/or the Inter State Mi grant Workmen Act is applicable, he will make a report to that effect to the Court. (e) He will ascertain whether the direc tions given by us in this judgment re garding effective arrangement for supply of pure drinking water have been carried out by the mine lessees and stone crusher owners and pure drinking water has been made available to the workmen in accord ance with those directions. (f) He will also ascertain whether the mine lessees and owners of stone crushers in each of the stone quarries and stone/crushers visited by him have complied with the directions given by us in this judgment regarding provision of conservancy facilities. (g) He will also ascertain whether the directions given by us in this judgment in regard to provision of first aid facilities and proper and adequate medi cal treatment including hospitalisation to the workmen and the members of their families are being carried out by, the mine lessees and stone crusher owners and the necessary first aid facilities and proper and adequate medical services including hospitalisation are provided to the workmen and the members of their families. 537 (h) He will also enquire whether the various other directions given by us in this judgment have been and are being carried out by the mine lessees and stone crusher owners. " This Court indicated its expectation in paragraph 40 of the judgment thus: "We have no doubt that if these direc tions given by us are honestly and sin cerely carried out, it will be possible to improve the life conditions of these workmen and ensure social justice to them so that they may be able to breathe the fresh air of social and economic freedom. " The proceedings thereafter continued with a view to fulfilling the fond hope and expectation of the Court. Mr. Laxmidhar Misra, In due course, submitted his report in two parts one dealing with the identification ' of the bonded labour and the second covering the inquiry into the implementation of the 21 directives. The petitioner Morcha came before the Court with a petition for contempt action alleging that the directions were not being implemented. That led to the appointment of Mr. Mahabir Jain of the Faculty of National Labour Institute to inquire into the measures and report on the degrees to which the 21 direc tives issued by the Court had implemented and to present to the Court a clear picture of the issues involved f.or ena bling it to make its own assessment and come to a conclusion as to whether the directions had been or were being imple mented and also as to whether action for contempt was appro priate or in the matter of monitoring the social problem, some other course was necessary to be adopted. In February, 1989, Mr. Jain gave a very detailed report to the Court which is on record and to 'which reference has to be made in a later part of our order. The Union Territory of Delhi housing the capital of the country is surrounded on three sides by the Haryana State and on the other lies the State of Uttar Pradesh. The stone quarries of Faridabad have thrived for almost half a century now on account of building activity in the industrial belt of Haryana particularly Ballabgarh and Faridabad and in the Union Territory of Delhi. The quarrying process involves substantial manual labour and the need of Continuous avail ability of labour at cheap rate has led to the growth of the system of bonded labour in that trade. For a loan taken at an exorbitant rate of interest 538 the debtor virtually sells himself to the creditor and gets bonded usually for a period of life and renders service for the purpose of satisfying ' the debt. The creditor anxious to exploit the situation ensures that the debt is never satis fied and often on the traditional basis of pious obligation the liability is inherited by the children of the original debtor. The system thus provides a built in mechanism for continuation of exploitation of the under privileged section of the society by the privileged few living therein. The bonded labourers are, paid nominal wages and often their family members are not permitted to take remunerative jobs elsewhere without permission of the master, Normally, such permission is not granted and the impoverished condi tion is allowed to continue to the advantage of the credi tor. The Constitution fathers were aware of this prevailing inhuman practice and in article 23(1) provided: .lm`5 "Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. " So powerful was the rich men 's lobby that it took 25 years after the enforcement of the Constitution to provide a definite law for the purpose and the Presidential Ordinance was the first positive measure in this direction. That got replaced Act entitled . We may point out that the directives in articles 39(c), 41 and 42 are also relevant in this regard. It is perhaps not necessary to delve into the philosophy involved in the matter as the 3 Judge Bench has gone into it in the judgment of December 1983, and what remains for consideration at this stage is more or less a clear review of the enforcement of the directives and assessment of the outcome for achieving the statutory purpose and the constitutional goal and for the fulfilment of the hopes and expectations of this Court in that regard and if it is necessary to take further action and if so, what such action, should be. This will require an analytical study of, the reports furnished by Mr. Laxmidhar Misra and Mr. Mahabir Jain. Mr. Laxmidhar Misra in his letter to the Registry of this Court in January, 1984, ' indicated that the inquiry entrusted to him had two phaSes the first relating to the inquiry into the implementation of the Bonded Labour System. (Abolition) Act, Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act and the Contract Labour (Regulation and Abolition) Act etc. and the 539 Second related to ascertaining the extent of compli ance of the directions of this Court by the concerned au thorities. On 4th February, 1984, this Court directed: "So far as ,the consideration of the report of Mr. Laxmidhar Misra is concerned, the same does not brook any delay involving as it does the release and rehabilitation of the bonded labourers and amelioration of the lives and working conditions of the large number of stone quarry workers, we would direct that the matter be expeditiously taken up." Mr. Laxmidhar Misra submitted his report on. the second aspect too. His report gave the ultimate indication that the enforcement of ' the Acts covered by the first part of his report had not been adequate. In regard to the second part, namely, steps for implementation of the Court 's direc tives, he also came to hold that nothing very substantial had been done though some steps had been taken. On 3.5.1988, this Court required Shri A.K. Srivasta va, Director General of Labour Welfare in the Ministry of Labour to inquire into the matter again and furnish a report on the degree to which the directions issued by the Court had received compliance. Shri Srivastava was not in a posi tion to undertake this inquiry and ultimately it led to the appointment Of Mr. Mahabir Jain, as already indicated. On 6th of March, 1989, Mr. Jain furnished his report. He took into account the 21 directives of the Court. As the report indicates,he adopted the method of interviews, observations, representations, holding of formal and informal meetings, reference to documents and other available literature as the basis for collection of information. He spent considerable time in the jhuggi colonies where the bonded labourers dwell in different parts of the quarry area. He noticed absence of sufficient drinking water facility, no provision for school ing of the children of the bonded labourers and want of appropriate medical facility. Apart from these, he also found that the jhuggis were very small, unhygienic and did not constitute reasonable accommodation for human use. He noticed that there was lack of organisation among the jhuggi dwellers which facilitated their exploitation by the stone quarry owners. Even though camps were being organised at regular intervals. for workers employed in the stone quar ries and stone crushers by the Regional Directorate of Workers Education Centre, Faridabad, there was no discerni ble ' impact whiCh would catch the eye of the visitor. He recorded the statements of several people he met 540 including workers, their widows, dependants, relations, outsiders and public officials. He noticed that adequate safety measures were not available in the mines and several accidents had taken place on that account. With reference to the Workers ' Education Centre at Faridabad, Mr. Jain observed: "A critical analysis of the camp reports shows mat a few Acts like the , Minimum Wages Act, BOnded Labour System Act, . Payment of Wages Act and Trade Union Act had been given much emphasis in almost all the camps. In only one or two camps, topics like eradication of social evils, economic problems, a sense of coopera tion and the need for organisation of the workers had been discussed. If one goes back to the camp reports of the Centre for Workers Education, Faridabad. one finds that the basic objectives of the camps were to desensitise the workers about their legal rights and the need for workers organisation. Compared to those objectives, the discussion of the topics relevant to organisation building had been given less emphasis. Besides, less emphasis was also on audio/visual method of teaching. However, topics discussed in different camps were more or less the same. Therefore, topics which would create awareness among stone quarry workers need to be discussed in the camps. In regard to the specific direction of the Court, Mr. Jain noticed that Vigilance Committees as required under Section 13 of the Act had been constituted in all districts and sub divisional headquarters of the State of Haryana and a good number of meetings of the Vigilance Committees had been held. He, however, came to the conclusion on verifying the proceedings of the Vigilance Committee at Faridabad that he did not find any useful information regarding the work of the Vigilance Committee '. Mr. Jain then referred to the report submitted by Shri Laxmidhar Misra to this Court where he had said that 26 per cent of the bonded labourers had been released and rehabili tated by the State Government; nearly 30.per cent of the identified bonded labourers were not willing to go back to their native places. At the same time, 41 per cent of. the bonded labourers had left the work site. According to 541 Mr. Jain, these facts showed that only one bonded labourer out of every three identified was willing to go back to his or her native place. Mr. Jain, however, found that most of the bonded labourers who had been released or rehabilitated came back to the mines a feature which clearly indicates that the rehabilitation process was defective and not use ful. If the rehabilitated bonded labourer had a sense of confidence in the arrangement of rehabilitation, there would indeed be no occasion for him to run away from the rehabili tative process back to bondage. Mr. Jain found that the task of identifying the bonded labourers had not been sincerely carried out. It is true that in 1982 the Haryana Government had instructed all the District Magistrates to make rehabil itation schemes for released bonded labourers in accordance with the Government of India 's scheme and contemporaneously or near about that point of time some rehabilitation had been undertaken. In the absence of constant goading, the exercise had become sporadic and even fell into disuse. Mr. Jain found that there had been an increase in the number of bonded labourers and stone quarries were again thriving. The minimum wage programme had not been effectively introduced. A few prosecutions had been lodged but that was not adequate and had not generated the requisite consciousness. Payment of wages had not been properly recorded and in the absence of documents cross verification became indeed difficult. The Commissioner found that even though Mr. Laxmidhar Misra had indicated about deficiency of drinking water, schooling facility, medical treatment and the, like, no attention had been bestowed on improving these aspects and he noticed dearth of these wherever he went. Portions from the conclu sions of the Jain report may now be extracted. His report said: "It is a technologically backward industry thriving on continuous plentiful supply of cheap replaceable labour. The impoverished rural hinterland sends forth an unending stream of uprooted, assetless, illiterate e people from the 'traditionally oppressed communities, mainly the Scheduled Castes and Tribes. As workers in stone quarries and crushers, they must remain uprooted, asset less, illiterate and oppressed so that they may be easily replaced; so that the industry may continue to get its labour cheap. " He further found: "It is an industry which in the mineral extraction part allows unchecked operation of self appointed, unregistered 542 middlemen, nicknamed 'contractors ' who perform a variety of functions." His yet further findings were that there was no account ability, the trade was ecologically hazardous, there was lack of planning and the working involved 'an in built system of criminality. He, therefore, recommended that there should be central registration of all workers, conferment of the status of small producers by allocating permits directly to them, determining the minimum remuneration, facilitating modernisation, total exclusion ' of contractors and middlemen from the trade and protection and restoration of the natural environment. This matter was heard for ' some time on the basis of these reports of Mr. Jain and we reserved judgment on 1oth of July, 1990. , Swami Agnivesh at Whose instance this Court had registered the proceeding had undertaken to supply a list of unrehabilitated bonded labourers. He took quite Some 'time to submit the statements and these reports indicated their number to be 3993. When we were proceeding to dispose of the matter a communication was received by the Court dated 24.1.1991 from the 'Director General of Labour Welfare in the Ministry of Labour that the total number was 523 upto 30.11.1990. The gap was so huge that we found it difficult to proceed tO Conclude the matter on the basis of the state ments given by Swami Agnivesh by ignoring the situation. These aspects were brought to the notice of the parties and after hearing them, by an order of 2 1st FebrUary, 1991 this, Court directed: "With a view to meeting the situation, we direct that a Committee shall immediately be set up ' with Director General, Labour Welfare of the Union Government or a very senior officer from his establishment, the 'Chief Judicial Magistrate, Faridabad, Mrs. Raju Ramachandran, an advocate of the Supreme Court with social service background, an officer from the Haryana Government nor below the rank of Additional District Commissioner and Swami Agnivesh representing the petitioner. Mr. Rohtagi or his nominee advocate 'appearing for the brick kiln owners would be permitted 'to associate in the activities of the Committee. This Committee shall within six weeks from now check up the particulars pro vided in the list by the petitioner, identify the persons claimed to have been bonded 543 labour and collect all relevant material in respect of them; so as to assist this Court to make further directions in terms of the re quirement of the scheme to rehabilitate them. In course of their movement, for the purpose of complying. 'with this order if fresh cases of bonded labour are noticed by them they would collect the particulars separately and report to the Court. " The Committee obtained extension of time from this Court and ultimately has furnished its report on July 1, 1991. This Committee adopted the questionnaire form to elicit information on all relevant aspects Which were 18 in number and have collated the material. In a part of the report it has said: "The Committee members have personally identi fied every person whose name appears in the list prepared by the Committee. They were approximately 1983 persons so identified but from each dera there were about 20% per sons who were not available for identification either out of fear of the contractor or be cause they had gone out that day for buying provisions or to the doctor. Some persons could not be identified because the Committee missed finding them in their homes 'and also missed finding them in their places of work. Some workers from the list given by the peti tioner had left and gone elsewhere and in their place some others had come. There were some persons whose names had been missed in the list prepared by the Bandhua Mukti Mor cha. The list of persons prepared by the Committee is all inclusive of the above iden tified categories. " In this setting it would perhaps be appropriate to proceed on the footing that the total number of identified bonded labour is around 2000 and hot 3993 as stated by the petitioner. It may be that some of the people whose name appear in the list furnished by Swami Agniyesh are no more in the area. It may also be that people who had left their work even by then had been included in that list. The picture placed by the Committee in regard to wages does not give one different from what had been recorded by this Court when the original case was disposed of in 1982. It may be that the labourers have ' become more ' informed and educated about their rights. They have, 544 however, no organised base. are the weaker party and once they are in the trap of bondage the capacity to negoti ate is gone. That is how, exploitation thrives notwithstand ing the intervention of this Court. The facility of school ing and medical treatment, availability of water, provisions and scope for recreation are aspects which still require attention. The Committee has reported: "Inspite of order dated 17th October, 1990 of the Chief Labour Commissioner under section 25(2)(v)(b) of ' the Contract Labour (Regula tion and Abolition) 'Central Rules, 1971 in respect of stone breaker who is a piece rated worker working in the stone mines in the Faridabad area, fixing the piece rated wage at the rate of Rs. 133 per 200 cft. stone, there is no implementation thereof. " At another place the Committee has said that though this Court in the main judgment had indicated that untrained workers should not be engaged in the blasting operation with explosives the practice seems to ' be 'still 'continuing and the law as also the direction of this Court were being violated by the contractors. The 'Committee, therefore, has recommended that the principal employer should be made liable for implementation of the directions both of law and the court. The contractors working under the Haryana Miner als Ltd. were mostly unregistered and unlicensed. The Committee has noted that the entire area of opera tion has a dust cover in the atmosphere which is hazardous to the workmen 's health. No attention has been bestowed by the inspecting authority or the labour law enforcers to secure improved conditions of working. There has been divi sion of opinion as to whether it is the responsibility of the State Government Or the employer in regard to providing educational facility to the children of the quarry WorkerS/We have not been able to see any reason for the difference. Quahies are located. in a particular area away from habitation. On account of necessity for ' workmen in the area people from different parts Of ,the country are made to live therein along with their families under very insanitary and inconvenient conditions. Health care of. workmen and members of their families and education of the children as also the adults in such exclusive locality should be of the employer. To require a school to be built in such an area where there may not be adequate number of children for the purpose of schooling at the expense of the State exche 545 quer may not be appropriate. That apart these institutions should be a part of the trade. In the manner the employer has.to make provision for water and medical care, it should also have the responsibility of providing schooling for the children of the workmen. Today emphasis is also being given on adult ' education. If appropriate facility is provided the workmen beyond their working hours can also have scope for learning the three Rs and this could be through a process of adult education with State support under the relevant scheme. The State of Haryana must come forward to play its role in a better way As already pointed out.these are quarries located nearabout the industrial belt of Haryana and not far away from Delhi. Ecology. is not only a focal problem but must be taken to be a problem of Delhi also. Dust emanating from the working area in Haryana is bound to affect adverse ly the Delhi atmosphere. In fact, if adequate importance is given to the angle of pollution the industry itself has to be regulated or may have to be stopped. , The State of Haryana, we must say, has not taken our intervention in the proper spirit and has failed to exercise appropriate control though some eight years back ' this Court had in clear terms laid down the guidelines and had called. upon the ' public authority to take charge of the situation and provide adequate safeguards. The operation of stone quarries is more or less concen trated in particular areas. That is a. feature which facili tates control. If a local officer of appropriate status had been placed around the corner it would have helped in im proving the lot of the workmen. If the pollution authority, had been made to visit the area at repeated intervals pollu tion. control Could have been imposed. If some authority entrusted with welfare had been made to inspect this area at regular intervals he could have ensured availability of facilities for schooling and hospital as also supply of drinking water to the workmen. It, is a hot belt and for over 4 to 5 months water scarcity is there in this area. The Workmen 's job is such that they are exposed to the summer heat. It is the obligation of the employer, therefore, to provide a definite source of water:" The workmen are engaged almost on full time basis. As report indicates bulk ,of the workmen are not prepared to return to their States. What is,necessary; therefore, is provision of a permanent base for residence at or near the work site. This would necessitate reason ' able housing; supply of water, a reasonable provision store at hand, 546 schooling facility, facility of a hospital, :recreational facilities and attention to the law and order problem. Perhaps near the area a police station or an outpost could be located. If the workers were insufficient in number, a doctor could be taken as a visitor.to the. area at frequent intervals and instead of a regular. school one single teach er could be provided to look after the health of the people. Court 's judgment to regulate such matters has inherent limitation. These are not schemes which could be convenient ly monitored by a court far less can the apex court keep track of the matter. Its Registry has congestion. To get attention for a matter of this type from the Court is bound to take some time. Human problems in their normal Way do not. wait for a time schedule for attention. In such circum stances, it should be the obligation of the State which on account of running stone quarries within its area must in various ways be getting benefits to look after these as pects. As a welfare. ' State it is now the obligation of the State of Haryana to cater to these requirements of the area. Haryana as we find has made substantial. advances compared to many other States of the country and there is some amount of welcome consciousness in the administration of the State. We hope and trust that if a direction is issued to the Chief Secretary of the State to regulate these aspects the repos ing of trust by this Court would not turn out to be mis placed. In these circumstances we call upon the State of Har yana to attend to the needs referred to above of the workmen in a wellconsidered ' and systematic way. Since those workmen who will be working there have to be protected from the vagaries of employment and the anxiety of the employer to draw work without adequate payments, the authorities of the State of Haryana must take care to protect the workmen from.the hands of the employer by ensuring compliance with the laws and if there be any vacuum. in the laws, the State of Haryana should rise to play.the role of a welfare State and play it well. In fact there could be a special cess raised against the quarry activities to be specifically utilised by way of return to the industry and there could be a special fund out of which all the amenities referred to above could be provided. What is wanting is not power but the mind and alertness regarding one 's duty. If our directions are worked out there would really be no bonded condition and the workmen would be paid their due share against employment and with the facilities ensured they can live well in the area. 547 At the point of enforcement of the directions as indi cated above if any one turns out to be bonded and is freed and is also prepared to return to his State, the scheme. framed by the Government of India would be applicable to such person. We are thankful to Mr. Laxmidhar Misra, Mr. Mahabir Jain and the members of the new Committee for their cooperation. The society to maintain its own elevation requires willing and voluntary contribution from all those who inhabit it. In a welfare State it is the society. which has to develop its welfare means. No society can have the welfare outlook unless geared up on the basis of amity, friendship, coopera tion, consideration and compassion. If everyone living in India is willing to believe in the 'live and let live ' principle he would be prepared to devote the same attention to the people around him as he is willing to devote for himself. This factor, if practised, would immediately bring about sufficient rejuvenation of the ailing society. It., is this elevated society that everyone must look forward to. We, therefore, dispose of this petition by directing that the State of Haryana shall now ensure that the people who have been identified numbering about 2000 are continued in work with the improved conditions of service and facili ties as referred to above and such of them who want to go back to their native areas be treated as released from bondage and appropriate action must be taken in accordance with Government of India 's scheme forthwith. There shall be no order as to costs. We had called upon the State of Haryana:to deposit Rs.20,000 to meet the expenses of the Committee appointed by us. The Registry will look into that matter and on the basis of the statement furnished by the Committee put up a note within two weeks for giving direction regarding honorarium to be paid to the members of the Committee. V.P.R. Petition allowed. [/INST]A letter addressed to this Court complaining about prevalence of bonded labour system in the quarries of Fari dabad District in Haryana_ State was treated as a writ petition under Article 32 of the Constitution. Two Advocates were appointed as Commissioners to inquire into the working conditions of the stone quarry workers. Later, this Court, finding the necessity of an in depth investigation into social and legal aspects of the problem, also appointed two Commissioners Dr. 'S.B. Patvardhan and Mr. Krishan Mahajan to study the working conditions provail ing in the various quarries within the Faridabad district with particular reference to violation of provisions of the Bonded Labour System (Abolition) Act of 1976 and Inter State Migrant Workmen (Regulation of Employment & Conditions of Service) Act. The Commissioner furnished their report on 28th of June, 1982. The 3 Judge Bench heard the matter and In its Judgment (reported in ; , dealt with various aspects of the problem and taking into account the information collected by Advocate Commissioners and the report made by Dr. Patvardhan. The Court did not treat the writ petition as disposed of by its judgment and the application survived for further monitoring. This Court also appoInted Shri Laxmi Dhar Misra, JoInt Secretary 525 in the Ministry of Labour, Government of India as a Commis sioner to carry out the assignments stated in the judgment. Mr. Laxmidhar Misra, in due course, submitted his report in two parts one dealing with the identification of the bonded labour and the second covering the inquiry into the implementation of the 21 directives. The petitioner Morcha, filed a petition for contempt alleging that the directions were not being implemented. Mr. Mahabir Jain of the Faculty of National Labour Institute was appointed to inquire into the measures and report on the degrees to which the 21 directives issued by the Court had been implemented and to present to the Court a clear picture of the issues involved for enabling it to make its own assessment and come to a conclusion as to whether the directions had been or were being implemented and also as to whether action for contempt was appropriate or in the matter of monitoring the social problem, some other course was necessary to he adopted, and in February, 1989, the report was submitted to the Court. As the 3 Judge Bench had gone into the philosophy in volved in the matter in the Judgment, what remains for consideration at this stage was more or less a clear review of the enforcement of the directives and assessment of the outcome for achieving the statutory purpose and the consti tutional goal and for the fulfilment of the hopes and expec tations. of this Court in that regard. The matter was heard for some time on the basis of these reports of Mr. Jain and this Court reserved Judgment on 10th of July, 1990. When the totter was about to he disposed a communication was received by the Court dated 24.L1991 from the Director General of Labour Welfare in the Ministry of Labour that the total number of unrehabilitated bonded laboures was 523 upto 30.11.1990, whereas the number to he 3993 according to the petitioner and on 21st February, 1991, this court directed a Committee to check up the particulars and to furnish a report, which was furnished on July 1, 1991, from which it was understood that the total number of identified bonded labour is around 2000 and not 3993. The report indicated that the wages, the facility of schooling and medical treatment, availability of water, provisions and scope for recreation are aspects which still require attention. No attention has been 526 bestowed by the inspecting authority. of the labour law enforcers to secure improved conditions of working. Allowing the petition this Court, HELD: 1. For a loan taken at an exorbitant rate of interest the debtor virtually sells himself to the creditor and gets bonded usually for a period of life and renders service for the purpose of satisfying the debt. The creditor anxious to exploit the situation ensures that the debt is never satisfied and often on the traditional basis of pious obligation the liability is inherited by the children of the original debtor. The system thus provides a built in mecha nism for continuation of the under privileged section of the society by the privileged few living therein. [537H 538B] 2. The bonded labourers are paid nominal wages and often their family members are not permitted to take remunerative jobs elsewhere without permission of the master. Normally, such permission is not granted and the impoverished condi tion is allowed to continue to the advantage of the credi tor, [538B C] 3. Quarries ace located in a particular area away from habitation. On account of*necessity for workmen in the area people from different parts of the country are made to live therein along with their families under very insanitary and inconvenient conditions. Health care of workmen and members of their families and education of the children as also the adults in such exclusive locality should be of the employer. To require a school to he built in such an area where there may not be adequate number of children for the purpose of schooling at the expense of the State exchequer may not he appropriate. That apart these institutions should he a part of the trade. In the manner the employer has to make provi sion for water and medical care, it should also have the responsibility of providing schooling for the children of the workmen. Today emphasis is also being given on adult education. If appropriate facility is provided the workmen beyond their. working hours can also have scope for learning the three Rs and this could he through a process of adult education with State support under the relevant scheme. [544G 545B] 4. The State of Haryana must come, forward to play its role in a better way. These are quarries located near about the industrial belt of Haryana and not far away from Delhi. Dust emanating from the, working area in Haryana is bound to affect adversely ,the Delhi atmosp 527 here. If adequate importance is given to the angle of pollu tion the industry itself has to he regula`ed or may have to be stopped. [545B C] 5. The State of Haryana has not taken Court 's interven tion in the proper spirit and has failed to exercise appro priate control though some eight years back this Court had in clear terms laid down the guidelines and had called upon the public authority to take charge of the situation and provide adequate safeguards. [545D E] 6. The workmen engaged on fur time basis, who are not prepared to return to, their States, are to he provided with a permanent base for residence at or near the work site. 'This would necessitate, reasonable housing, supply of water, a reasonable provision store at Land, schooling facility, of a hospital, recreational facilities and atten tion tO the law and order problem. Perhaps near the area a police statiOn or an outpost could be located. If the work ers were insufficient in number, a doctor could be taken as a visitor to the area at frequent intervals and instead of a regular school one single teacher could he provided to look after the health of the people. [545G 546B] 7. Court 's judgment to regulate such matters has inher ent limitation. These are not schemes which could be conven iently monitored by a Court far less can the apex court keep track of the matter. its Registry has congestion. To get attention for a matter of this type from the Court is. bound to take some time. Human problems in their normal way do not wait for a time schedule for attention. in such circumstances, it should be the obligation of the State which on account of running stone quarries within its area must in various ways be getting benefits to look after these. aspects. As a welfare State it is now the obligation of the State of Haryana to cater to these requirements of the area. [546B D] 8. In these circumstances the State of Haryana was called upon to attend to the needs of the workmen in a well considered and systematic way. Since those workmen who will be working there have to be protected from the vagaries of employment and the anxiety of the employer to draw work without adequate payments, the authorities of the State of Haryana must take care to protect the workmen from the hands of the: employer by ensuring compliance with the laws if there he any vacuum in the laws, the State of Haryana should rise to play the role of a welfare State and. play it Well. In fact there could be a special cess raised against the quarry activities to*be specifically utilised by way of return to the industry and there could he a Special fund.out of which all the amenities could be provided. What is want ing is 'not power but the mind and alertness regarding one 's duty. [546E G] 528 9. The State of Haryana shall now ensure that the people who have been identified numbering about. 2000 are continued in work with the improved conditions of service and facili ties and such of them who want to go back to their native areas be treated as released from bondage and appropriate action must be taken in accordance with Government of In dia 's scheme forthwith. [547D E] Gupta vs Union of India, [1982] 2 SCR 365, referred to. </s>

<s>[INST] Summarize the judgementSpecial Leave Petition (Civil) No. 7213 of 1987. From the Judgment and Order dated 19.5. 1987 of the Andhra Pradesh High Court in W.A. No. 672 of 1987. P.P. Rao and P.P. Singh for the Appellant. 567 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This petition arises out of the judgment and order of the High Court of Andhra Pradesh. Sree P.P. Rao, learned counsel for the petitioner submits that the order of release was bad because the authorised officer had no power to review the previous order nor he had the power to release the property of the landlady without even giving an opportunity to the petitioner. In the facts of this case as noted by the High Court, we are unable to entertain these contentions. We are unable to accept the contention that the Government cannot review its own order. 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 on the question of release or possession of the premises in question. On a previous occasion the Government had declined to release the premises, later on .the representation made by the landlady the Government changed its decision. The landlady had filed an application for releasing the premises in her favour, but the same was initially rejected on 25.9.1978. Again the landlady made a further representation stating certain additional and fresh circumstances, that is to say, that her son was not allowing her to live with him in another house belonging to her. The Government took into account the subsequent events and passed the order on 19.3. 1980 releasing the premises in favour of the landlady. We do not see how to take cognizance of such subsequent events releasing the premises can be described an order in nullity in the facts of this case. The next contention was that the petitioner was an allottee of the premises by virtue of his being in service but the petitioner was really a tenant of the premises in question. The Government informed the petitioner to make alterna tive arrangements or seek accommodation. The Government issued several notices on 24.11.1978, 22.5.1979, 12.7.1979, 27.9.1970 and 17.1.1980 to the petitioner and these facts have been stated and have also been taken note of by the High Court in the judgment under challenge. In spite of the said notices given to the petitioner who was an allottee and who was informed about the requirement of the landlady, the petitioner did not choose to move out from the premises. In the meantime, the petitioner has retired from service in 1986 and a long time has passed now. In this case we do not think it can be said that the order was bad because the petitioner was initially not given an opportunity to show cause. Actually the petitioner had enough opportunity. In the premises, the special leave petition fails and we do 568 not find any ground to interfere with the order of the High Court. Having regard to the facts that the petitioner had acquired government accommodation and he has stayed in the premises in question for sometime, we allow him to make alternative arrangement by 31.12.1987. The order for evic tion will not be executed until 31.12.1987 provided the petitioner files an undertaking in this Court within four weeks from today to vacate and hand over the premises in question. H.L.C. Petition dismissed. [/INST]The appellant was placed under detention on September 8, 1986, consequent upon an order of detention passed by the District Magistrate, Beed under section 3(2) of the on his being satisfied that it was neces sary to do so 'with a view to preventing him from acting in any manner prejudicial to the maintenance of public order '. He was served with the grounds of detention alongwith copies of the relevant documents on September 14, 1986. He ad dressed a representation to the Chief Minister, State of Maharashtra on September 22, 1986 through the Superintend ent, Central Jail, Aurangabad, who forwarded the same to the State Government, Home Department which received it on September 26, 1986, and on the same day forwarded it to the District Magistrate for his comments. On October 3, 1986, the District Magistrate returned the representation along with his comments and the same were received in the Home Department on October 6, 1986. The State Government had, in the meanwhile, accorded its approval to the impugned order of detention under section 3(4) of the Act on September 18, 1986. On October 6, the appellant made another representation to the Advisory Board against the order of detention. 669 The Advisory Board met on October 8, 1986, considered the representation and forwarded its report to the State Govern ment on October 13 recommending confirmation of the order of detention. Thereafter, the representation made by the appel lant was processed in the Home Department along with the report of the Advisory Board and forwarded to the Chief Minister 's Secretariat where the same was received on Octo ber 23, 1986. The representation remained undisposed in the Chief Minister 's Secretariat and was put up before him on November 17, 1986 and he rejected the same. Upon these facts, the appellant moved the High Court by a petition under article 226 of the Constitution for the grant of a writ of habeas corpus on the next day i.e. on November 18, 1986 contending that his continued detention was uncon stitutional and void inasmuch as there was inordinate, unexplained delay on the part of the detaining authority to consider and dispose of his representation which was in violation of the constitutional safeguards enshrined in article 22(5) read with section 8 of the . The writ petition was dismissed by the High Court inter alia on the ground of defective pleadings regarding the delay in Chief Minister 's Secretariat in dealing with the representation. In the appeal by special leave, the District Magistrate in his counter affidavit denied that there was any unreason able delay in the disposal of the representation and submit ted that no such ground regarding unreasonable delay was taken in the High Court in the writ petition, and was raised for the first time before this Court, presumably on the reasoning of the High Court. In the other counter affidavit the Desk Officer, Home Department (Special) explained the reasons for the delay in the Chief Minister 's Secretariat asserting that the Chief Minister remained preoccupied with very important matters of the State during the period from October 23, 1986 to November 17, 1986 and therefore it was not possible for him to have dealt with the representation earlier. Allowing the appeal, HELD: 1.The continued detention of the appellant was illegal and he must be set at liberty forthwith. [679G] 2.1 It is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safe guards embodied in article 22(5). [674F] 670 2.2 The constitutional right of the detenu to make a representation guaranteed by article 22(5) is a valuable right and is not a mere formality. It includes by necessary impli cation the constitutional right to a proper consideration of the representation by the authority to whom it is made. [677E] In the instant case, there were two representations made by the appellant, one to the Chief Minister dated September 22, 1986 and the other to the Advisory Board dated October 6, 1986. While the Advisory Board acted with commendable despatch in considering the same at its meeting held on October 8, 1986 and forwarded its report on October 13, 1986, it was not till November 17, 1986 that the Chief Minister look at it. There was no reason why he could not deal with it with all reasonable promptitude and diligence. The explanation that he remained preoccupied with very important matters of the State, which involved tours as well as Cabinet meetings, was no explanation at all. There was therefore, failure on the part of the Government to dis charge its obligations under article 22(5). [676H 677B; 679F, 679E, 676G] 2.3 The constitution of an Advisory Board under section 9 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. The two obligations of the Government to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand, and to give an earliest opportunity to him to make a representation and consider the representation on the other, are two distinct obligations independent of each other. There is thus a duty cast on the Government to consider the representation made by the detenu without waiting for the opinion of the Adviso ry Board. [677E, G, D] Narendra Purshotam Umrao vs B.B. Gujral & Ors. ; , referred to. The failure of the Government in the instant case to consider the representation without waiting for the opinion of the Advisory Board renders the continued detention of the appellant invalid and constitutionally impermissible. [678F] 3. In return to the rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention, and he must explain his subjective satisfaction and the grounds therefore and if for some good reason the District Magistrate is not avail able, the 671 affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other officer duly authorised under the Rules of Business framed by the Governor under article 166 of the Constitution to pass orders on behalf of the Government in such matters. [674F 675A] Niranjan Singh vs State of Madhya Pradesh ; ; Habibullah Khan vs State of West Bengal, ; Jagdish Prasad vs State of Bihar & Anr., ; and Mohd. Alam vs State of West Bengal, ; , referred to. In the instant case, no one has filed any affidavit to explain the delay in the Chief Minister 's Secretariat. The counter affidavit filed by the District Magistrate contains a bare denial that there was any unreasonable delay in the disposal of the representation. As regards the delay in the Secretariat he adverts to the affidavit filed by the Desk Officer, Home Department and asserts that it reveals the different steps that were taken. There is in fact no expla nation offered as regards the delay in the disposal of the representation in the Secretariat. [678G 679C] 4. It was an improper exercise of power on the part of the High Court in disallowing the writ petition on the ground of imperfect pleadings. The rule that a petitioner cannot be permitted to raise grounds not taken in the peti tion at the hearing cannot be applied to a petition for grant of a writ of habeas corpus. It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. [674DE] In the appeal the appellant having raised the ground of delay in disposal of his representation in Chief Minister 's Secretariat it was the duty of the State Government to have placed all the material along with the counter affidavit. [679B] </s>

<s>[INST] Summarize the judgementXXXVII of 1950. Application under article 32 of the Constitution of India for a writ of certiorari and prohibition. The facts are set out in the judgment. B. Banerji for the petitioner. M.C. Setalvad, Attorney General for India (Gyan Chand, with him) for the opposite party. 522 1950. May 26. The following judgments were delivered: KANIA C.J. This is an application for a writ of 'certiorari and prohibition under article 32 of the Constitution of India. The petitioner who is the President of the All India Hindu Mahasabha since December, 1949, was served with an order of externment dated the gist of March, 1950, that night. By that order he is directed by the District Magis trate, Delhi, not to remain in the Delhi District, and immediately to remove himself from the Delhi District and not to return to the District. The order was to continue in force for three months. By another order of the Madhya Bharat Government he was directed to reside in Nagpur. That order has been recently cancelled. The petitioner disputes the validity of the first order on the ground that the East Punjab Public Safety Act, 1949, under which the order was made, is an infringement of his fundamental right given under article 19 (1) (d) of the Constitution of India. He further contends that the grounds of the order served on him are vague, insufficient and incomplete. According to him the object of the externment order passed by the District Magistrate, Delhi, was to suppress political opposition to the policy of the Government in respect of Pakistan and the Muslim League. It is alleged that because the petitioner and the Hindu Mahasabha are against the Government policy of appeasement this order is served on him. It is therefore mala fide and illegal. In support of his contention about the invalidity of the East Punjab Public Safety Act and its provisions as regards externment, counsel for the petitioner relied on the recent unreported judgments of the Patna High Court in Miscellaneous Judicial Case No. 29 of 1950, Brij nandan vs The State of Bihar, and of the High Court of Bombay in Criminal Application No. 114 of 1950, re Jai singhbhai Ishwarlal Modi. It is necessary first to ascertain the true meaning of article 19 (1) (d) read with clause (5) of the same article. There is no doubt that by the order of extern 523 ment the right of the petitioner to freedom of movement throughout the territory of India is abridged. The only question is whether the limits of permissible legislation under clause (5) are exceeded. That clause provides as follows: "19. (5) Nothing in subclauses (d), (e) and (f) of the said clause shall affect the operation of any exist ing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. " It is clear that the clause permits imposition of reasonable restrictions on the exercise of the right conferred by sub clause (d)in the interests of the general public. The rest of the provision of clause (5) is not material and neither side relies on it. Two interpretations of the clause are put before the Court. It is argued that grammatically understood the only question before the Court is whether the impugned legislation imposes reasonable restrictions on the exercise of the right. To put it in other words, the only justiciable issue to be decided by the Court is whether the restrictions imposed by the legislation on the exercise of the right are reasonable. If those restrictions on the exercise of the right are reasonable, the Court has not to consider whether the law imposing the restrictions is rea sonable. The other interpretation is that while the Consti tution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in sub clause 19 (1) (d), the reasonableness has to be of the law also. It is submitted that in deciding whether the restrictions, on the exercise of the right are reasonable, the Court has to decide not only on the extent and nature of the restric tions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable. The majority judgments of the Patna and the Bombay High Courts, although the impugned Acts of the State Legislatures before them were materially different on cer tain important points, have given clause (5) of article 19 the latter meaning. 524 In my opinion, clause (5) must be given its full mean ing. The question which the Court has to consider is wheth er the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safe guards against the abuse of the power given to the executive authority tO administer the law is not relevant for the true interpretation of the 'clause. The Court, on either inter pretation, will be entitled to consider whether the re strictions on the right to move throughout India, i.e,, both as regards the territory and the duration, are reasonable or not. The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substan tive part, is necessarily for the consideration of the Court under clause (5). Similarly, if the law provides the proce dure under which the exercise of the right may be restrict ed, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted. I do not think by this interpretation the scope and ambit of the word "reasonable" as applied to restrictions on the exercise of the right, is in any way unjustifiably enlarged. it seems that the narrow construc tion sought to be put on the expression, to restrict the Court 's power to consider only the substantive law on the point, is not correct. In my opinion this aspect of the construction of article 19 (5) has escaped the minority judgment in the two matters mentioned above. I am not con cerned with the conclusions of the two Courts about the invalidity of the provisions of the Acts they were asked to consider. To the extent they help in the interpretation of article 19 (5) only they are helpful. 525 The next question is whether the impugned Act contains reasonable restrictions on the exercise of the right given under article 19 (1)(d)or (e). It was argued on behalf of the petitioner that under section 4 the power to make the order of externment was given to the Provincial Government or the District Magistrate, whose satisfaction was final. That decision was not open to review by the Court. On that ground it was contended that there was an unreasonable restriction on the exercise of the citizen 's right. In my opinion, this argument is unsound. This is not legislative delegation. The desirability of passing an individual order of externment against a citizen has to be left to an offi cer. In the Act such a provision cannot be made. The satisfaction of the officer thus does not impose an unrea sonable restriction on the exercise of the citizen 's right. So far as the Bombay High Court is concerned Chagla C.J. appears to have decided this point against the contention of the petitioner. It was next urged that under section 4 (3) the order made by the District Magistrate shall not, unless the Pro vincial Government by special order otherwise direct, remain in force for more than three months. It was argued that the period of three months itself was unreasonable as the ex ternee had no remedy during that time. It was contended that when the Provincial Government directed the renewal of the order no limit of time was prescribed by the legislature for the duration of the order. The order therefore can be in operation for an indefinite period. This was argued to be an unreasonable restriction on the exercise of a citi zen 's right. In this connection it may be pointed out that in respect of preventive detention, which is a more severe restriction on the right of the citizen, the Constitution itself under article 22 (4) to (7) permits preventive deten tion for three months without any remedy. The period of three months therefore prima facie does not appear unreason able. Under the proviso to section 4 (5) the Provincial Government is not permitted to direct the exclusion or removal from the Province of a person ordinarily residing in the Province, and similarly 526 the District Magistrate is not permitted to order the exclu sion or removal of a person ordinarily resident in his district from that district. This is a great safeguard provided under the East Punjab Public Safety Act. The further extension of the externment order beyond three months may be for an indefinite period, but in that connec tion the fact that the whole Act is to remain in force only up to the 14th August, 1951, cannot be overlooked. More over, this whole argument is based on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the sec tion. In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension. In my opinion, therefore, this contention of the petitioner cannot be accepted. was next argued that there is no provision in the Act for furnishing grounds of externment to the citizen. Section 4 (6) provides that when an externment order has been made its grounds may be communicated to the externee by the authority making the order and in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the advisory tribunal constituted under section 3 (4). While the word "may" ordinarily conveys the idea of a discretion and not compulsion, reading it with the last part of the clause it seems that when an externment order has to be enforced for more than three months an absolute right is given to the cxternee to make a representation. He cannot make a representation unless he has been furnished grounds for the order. In no other part of the Act a right to obtain the grouuds for the order in such a case is given to him. Therefore, that right has to be read as given under the first part of section 4 (6). That can be done only by reading the word "may" for that purpose as having the mean ing of "shall" If the word "may" has to be so read for that purpose, it appears to be against the well recognised canons of construction to 527 read the same "may" as having a different meaning when the order is to be in force for less than three months. I do not think in putting the meaning of "shall" on "may" in the clause, I am unduly straining the language used in the clause. So read this argument must fail. It was next argued that there is no provision in the Act showing what the advisory board has to do when it receives a representation. A reference to the advisory board neces sarily implies a consideration of the case by such board. The absence of an express statement to that effect in the impugned Act does not invalidate the Act. It was finally contended on behalf of the petitioner that the grounds for the externment order supplied to him are vague, insufficient and incomplete. The grounds are stated as follows : "Your activities generally and particularly since the recent trouble in East and West Bengal have been of a communal nature tending to excite hatred between communities and whereas in the present composition of the population of Delhi and the recent communal disturbances of Delhi feelings are roused between the majority and minority communities, your presence and activities in Delhi are likely to prove prejudicial to the maintenance of law and order, it is considered necessary to order you to leave Delhi. " These grounds cannot be described as vague, insufficient or incomplete. It is expressly stated that the activities of the petitioner, who is the President of the Hindu Maha sabha, since the recent disturbances between two communities in the East and West Bengal have particularly been of a communal nature which excites hatred between the communi ties. It is further stated that having regard to the recent disturbance in Delhi, the population of which is composed of both these communities, the excitement of such,hatred is likely to be dangerous to the peace and maintenance of law and order. Apart from being vague, I think that these grounds are specific and if honestly be lieved can support the order. The argument that the order 528 was served to stifle opposition to the Government policy of appeasement has little bearing because the District Magis trate of Delhi is not concerned with the policy of the Government of appeasement or otherwise. The order is made because the activities of the petitioner are likely to prove prejudicial to the maintenance of law and order and the grounds specified have a direct bearing on that conclusion of the District Magistrate. I therefore think that this contention of the petitioner must be rejected. The result is that the petition fails and is dismissed. FAZL ALI J. I agree. PATANJALI SASTRI J. I agree that this application must fail. As I share the views expressed by my Lord in.the judgment just delivered by him on the reasonableness of the restrictions imposed by the impugned legislation whichever construction of article 19 (5) of the Constitution is adopt ed, I consider it unnecessary to express any opinion on the true scope of the judicial review permitted under that article, and I hold myself free to deal with that point when it becomes necessary to do so. MAHAJAN J. I concur in the judgment which my brother Mukh erjea is delivering and for the reasons given by him I allow the petition and quash the order of externment. MUKHERJEA J. This is an application under article 32 of the Constitution, praying for quashing of an externment order made by the District Magistrate of Delhi, against the petitioner Dr. N.B. Khare, on 31st March, 1950, by which the latter was directed to remove himself immediately from the Delhi District and not to return to that District so long as the order remained in force. The order is for three months at present. Complaint was also made in the petition in respect of another and a subsequent order passed by the Government of Madhya Bharat which was served on the peti tioner on his way to Nagpur and which 529 directed him to reside within the limits of the Nagpur Municipality and not to leave that area without the permis sion of the District Magistrate of that place. This order of the Government of Madhya Bharat, we are told, has since been withdrawn and we are not concerned with that order or the Act under which it was passed in the present proceeding. The substantial contention raised on behalf of the petitioner is that the particular provision of the East Punjab Public Safety Act, 1949, under which the District Magistrate of Delhi purported to make the externment order, became void and ceased to be operative after the new Consti tution came into force, by reason of these provisions being inconsistent with the fundamental rights guaranteed under article 19 (1) (d) of the Constitution read with clause (5) of the same article. The argument is that any order passed under such void legislative provisions must necessarily be void and of no effect in law. In order to appreciate the merits of this contention, it may be convenient to advert to the material provisions of the East Punjab Public Safety Act which are alleged to have become void as well as to the articles of the Constitution, upon which reliance has been placed by the learned counsel for the petitioner. The East Punjab Public Safety Act came into force on 29th March, 1949, and its object, as stated in the preamble, is to provide for special measures to ensure public safety and maintenance of public order. Section 4 (1) of the Act provides: "The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudi cial to the public safety or the maintenance of public order it is necessary so to do, may, by order in writing, give anyone or more of the following directions, namely that such person . . . . . . . . . (c) shall remove himself from, and shall not return to, any area that may be specified in the order." , 530 Sub section (3) of the section lays down that "An order under sub section (1) made by the District Magistrate shall not, unless the Provincial Government by special order otherwise directs, remain in force for more than three months from the making thereof." The contention of the petitioner is that the restrictive provisions mentioned above, under which a person could be removed from a particular area or prohibited from returning to it are inconsistent with the fundamental right guaranteed by article 19 (1) (d) of the Constitution under which all citizens shall have the right "to move freely throughout the territory of India. " This right indeed is not absolute and the extent to which it could be curtailed by legislation is laid down in clause.(5)of article 19 which runs as follows: "Nothing in sub clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe." Thus the primary question which requires consideration is, whether the impugned legislation which apparently seems to be in conflict with the fundamental right enunciated in article 19 (1) (d) of the Consitution is protected by clause (5) of the article, under which a law would be valid if it imposes reasonable restrictions on the exercise of the right in the interests of the general public. It is not disputed that the question of reasonableness is a justiciable matter which has to be determined by the Court. If the Courts 'hold the restrictions imposed by the law to be reasonable, the petitioner would certainly have no remedy. If, on the other hand, they are held to be unreasonable, article 13 (1)of the Constitution imposes a duty upon the Court to pronounce the law to be invalid to the extent that it is inconsistent with the fundamental rights guaranteed under Part III of the Constitution. 531 It has been urged, though somewhat faintly, by the learned Attorney General that the right of free movement throughout the Indian territory as enunciated in article 19 (1) (d) of the Constitution contemplates nothing else but absence of inter State restrictions, which might prevent citizens of the Indian Union from moving from one State to another. A law which does not impose barriers of this kind, it is said, cannot be inconsistent with the fundamental right secured by this clause. Such a restricted interpreta tion is, in my opinion, not at all warranted by the language of the sub clause. What article 19 (1) (d) of the Constitu tion guarantees is the free right of all citizens to go wherever they like in the Indian territory without any kind of restriction whatsoever. They can move not merely from one State to another but from one place to another within the same State and what the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned. Clause (c) of section 4 (1) of the East Punjab Public Safety Act, 1949, authorises the Provin cial Government or the District Magistrate to direct any person to remove himself from any area and prohibit him from entering the same. On the face of it such provision repre sents an interference with the. fundamental right guaran teed by article 19 (1) (d) of the Constitution. The contro versy, therefore, narrows down to this, whether the impugned legislation is saved by reason of its being within the permissible limits prescribed by clause (5) of article 19. With regard to clause (5), the learned AttorneyGeneral points out at the outset that the word "reasonable" occur ring in the clause qualifies "restrictions" and not "law '". It is argued that in applying the clause, all that we have to see is whether the restrictions that are imposed upon the exercise of the right by law are reasonable or not and we have not to enquire into the reasonableness or otherwise of the law itself. The reasonableness of the restrictions can be judged, ' according to the learned Attorney General, from the nature of the restrictions themselves and not from the manner in which or the authorities by which they are 532 imposed. The question whether the operation of the law produces hardship in individual cases is also a matter which is quite irrelevant to our enquiry. I do agree that in clause (5) the adjective 'reasonable ' is predicated of the restrictions that are imposed by law and not of the law itself; but that does not mean that in deciding the reasonableness or otherwise of the restric tions, we have to confine ourselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent, and that it is beyond our province to look up to the circumstances under which or the manner in which the restrictions have been imposed. It is not possible to formulate an effective test which would enable us to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant cir cumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. The question of reasonableness of the restric tions imposed by a law may arise as much from the substan tive part of the law as from its procedural portion. Thus, although I agree with the learned Attorney General that the word "reasonable" in clause (5) of article 19 goes with "restrictions" and not with "law," I cannot accept his suggestion as regards the proper way of determining the reasonableness of the restrictions which a legislation might impose upon the exercise of the right of free movement. Coming now to the provisions of the impugned Act, Mr. Baner jee 's main contention is that section 4 (1) (c)of the East Punjab Public Safety Act, which provides for passing of orders removing a person from a particular area, on the satisfaction of the Provincial Government or the District Magistrate, cannot be a reasonable piece of legislation inasmuch as the only pre requisite for imposition of the restrictions is the personal satisfaction of certain indi viduals or authorities, the propriety or reasonableness of which cannot be tested by the application of any external rule or standard. It is said that any law which places the liberty 533 of a subject at the mercy of an executive officer, however high placed he might be and whose action cannot be reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise of legislative powers. The contention requires careful examination. It is not disputed that under clause (5) of article 19, the reasonableness of a challenged legislation has to be determined by a Court and the Court decides such matters by applying some objective standard which is said to be the standard of an average prudent man. Judged by such standard which is sometimes described as an external yard stick, the vesting of authority in particular officers to take prompt action under emergent circumstances, entirely on their own responsibility or personal satisfaction, is not necessarily unreasonable. One has to take into account the whole scheme of the legislation and the circumstances under which the restrictive orders could be made. The object of the East Punjab Public Safety Act is to pro vide for special measures to ensure public safety and maintenance of public order. Under section 4 (1) (c) of the Act, the Provincial Govern ment or the District Magistrate may make an order directing the removal of a certain person from a particular area, if they are satisfied that such order is necessary to prevent such person from acting in any way prejudicial to public safety or maintenance of public order. Preventive orders by their very nature cannot be made after any judicial enquiry or trial. If emergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise the inter ests or safety of the public, somebody must be given the power of taking the initial steps on his own responsibility; and no reasonable objection could be taken if the authority, who is given the power, is also entrusted with the responsi bility of maintaining order and public peace in any particu lar district or province. The preventive provisions of the Criminal Procedure Code are based on similar principle. In my opinion, therefore, the provision of section 4 (1) (c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable, simply because the order could be passed by the Provincial Government 534 or the District Magistrate on their own personal satisfac tion and not on materials which satisfy certain objective tests. But though certain authorities can be invested with powers to make the initial orders on their own satisfaction in cases of this description, the position would certainly be different if the order thus made is allowed to continue for any indefinite period of time without giving the ag grieved person an opportunity to say what he has got to say against the order. I have already set out the provisions of sub section (3) of section 4 which deals with duration of the orders made under the various clauses of sub section (1). It will be seen from this sub section that there is absolutely no limit as to the period of time during which an externment order would remain in force if the order is made by the Provincial Government. The Provincial Government has been given unlimited authority in this respect and they can keep the order in force as long as they chose to do so. As regards orders made by a District Magistrate, the period indeed has been fixed at three months, but even here the Provincial Government is competent to extend it to any length of time by means of a special order. The law does not fix any maximum period beyond which the order cannot continue; and the fact that the Act itself would expire in August, 1951, is, in my opinion, not a relevant matter for consideration in this connection at all. I have no hesi tation in holding that the provision of sub section (3) of section 4 is manifestly unreasonable and cannot be supported on any just ground. One could understand that the exigen cies of circumstances might justify the vesting of plenary powers on certain authorities which could pass orders on their ' own personal satisfaction temporarily and for a short period of time; but if these orders are to continue indefi nitely, it is only fair that an opportunity should be given to the person against whom such order is made to say what he has to say in answer to the allegations made against him. There may not be an investigation by a regular Court but it is necessary that the aggrieved person should be given a fair hearing and that by an 535 impartial tribunal. The provision of the impugned Act which has bearing on this point is contained in sub section (6) of section 4 and it runs as follows: "When an order has been made in respect of any person under any of the clauses under section 4, sub section (1), or sub section (2) the grounds of it may be communicated to him by the authority making the order and in any case, when the order is to be in force for more than three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal, constituted under section 3, sub section (4). " It will be noted that the first part of the subsection makes it entirely optional with the authorities to communi cate the grounds, upon which the order is made, to the person affected by it. The grounds need not be communicated at all if the authorities so desire. As regards the right of representation the latter part of the sub section seems to imply that when the order is to remain in force for more than three months, the right of representation should be given to the aggrieved person and the representation shall be referred for consideration to the advisory tribunal constituted under section 3, sub section (4), of the Act. The right, however, is purely illusory as would appear from the fact that even in cases where the order is to be opera tive for more than three months, there is no obligation on the part of the authorities to communicate to the person the grounds upon which the order was made. The aggrieved person consequently may not at all be apprised of the allegations made against him and it will be impossible for him to make any adequate or proper representation, if he is not told on what grounds the order was passed. In my opinion, this is an equally unreasonable provision and neither sub section (3) nor sub section (6) of section 4 of the Act can be said to have imposed restrictions which are reasonable in the inter ests of the general public. My conclusion, therefore, is that under article 13 (1) of the Indian Constitution, these provisions of the Act became void and inoperative after the Constitution came into 536 force, and consequently the order made by the District Magistrate in the present case cannot stand. I would, therefore, allow the application and quash the externment order that has been passed against the petition er. Petition dismissed. Agent for the petitioner: Ganpat Rai. Agent for the opposite party: P.A. Mehta. [/INST]The assessee was a public limited company. , Under article 37 of its. Articles of Association the Directors could at any time in their discretion and without assigning any reason decline to register any proposed transfer of shares. The question in income tax proceedings relating to the assess ment years 1952 53 and 1954 55 was whether on a true interpretation of article 37 the assessee company could be regarded as one in which the public were substantially interested within the meaning of the third proviso to section 23A(1) of the Income tax Act, 1922. In reference the High Court answered the question in favour of the revenue on the view that the shares of the company were not freely transferable and therefore it was not a company in which the public were substantially interested. In the assessee 's appeal by special leave, HELD : Article 37 could not by any stretch of reasoning be regarded by itself to be a restriction on the transfer of shares by one shareholder to another. Free transferability of shares is a normal and common feature ,of limited companies. Indeed there would hardly be any public company in the memorandum of articles of which an article similar to article 37. will not be found. This article appears even in the standard Articles of Association prescribed under the Companies Act itself. The purpose is ,only to give power to the Directors for declining to register the transfer of a share when the paramount interest of the company so require. There may be cases where it can be shown that the Directors have been exercising the power very freely and have virtually eliminated the element of free transferability. In such cases it may be possible to hold that in fact the shares were not freely transferable. But in the present case there was no evidence of the Directors having acted in the aforesaid manner nor was there any restriction in the other Articles of Association interfering with the free transfer of shares by one shareholder to another. , The High Court was therefore in error in holding that the mere existence of an article like article 37 would affect the free transferability of the shares within the meaning of the Explanation (1) to section 23A(9) of the Act. [372 C F] East India Corporation Ltd. vs Commissioner of income tax, Mad? as, and Raghuvanshi Mills Ltd. vs Commissioner of Income tax, Bombay, , approved. Commissioner of Income tax, West Bengal vs Tona litte Co. Ltd. 48 I.T.R. 902, disapproved. </s>

<s>[INST] Summarize the judgementition No. 1938 of 1981 (Under Article 32 of the Constitution of India) M. K. Ramamurthy and P. P. Singh for the Petitioners. M. C. Bhandare, Raju Ramalchandran, R. R. Garg, V. J. Francis and N.M. Popli for the Respondents. Normally a resolution of such a dispute these two well known groups of service employees would necessitate considereation of various decisions relating to the quota and rota rule and such other allied matters. We have been relieved of this exercise because We feel that the dispute in this case can be resolved on facts, unaided by precedents on such matters. The counsel on both sides advisedly, therefore, restrained themselves from citing the relevant authorities before us. Now the facts: All the 39 petitioners are promotees to the post of Assistant in the Indian Council of Agricultural Research (for short 'the society ') the 1st respondent herein. The second respondent is the Union of India and respondent Nos. 3 to 31 are direct recruits to the same post. Respondent Nos. 32 to 88 are also promotees and have been impleaded as proforma respondents. 3 The petitioner originally belonged to the service of the Central Secretariat, Government of India, Ministry of Agriculture. The Society was a part of that department till 1. 4. 1965 on which date the Government of India decided to re organise the 1067 Society into a fully autonomous organisation with its own secretariat. The petitioners opted to join the service in the Society on such re organisation. Respondent Nos. 3 to 31 were directly recruited after an open competitive test, held by the Society in 1967 and 1911.A seniority list was prepared by the Society in 1976 showing the relative positions of the promotees and the direct recruits. The provocation for filing the writ petition was the publishing of a second seniority list, by the Society by its Memorandum No. 27 (5)/81 Estt. II dated 7.4.1981. This list brought changes in the earlier list and pushed down the promotees from the positions they occupied in that list. The prayer in the writ petition is to quash this seniority list on the ground that it violates Article 1 and 16 of the Constitution of India and to stay its implementation. The Petitioners ' case is that they came into the Society by virtue of the option exercised by them and that they are entitled to seniority on the basis of the length of their service from the date of option. According to them, recruitment rules, laying down the terms of service in the Society, were not avilable then and as such seniority had to be fixed on length of service. The case of the contesting respondents is that seniority has to be fixed not with reference to the date of the reorganisation of Society and the date of option exercised by the petitioners but from the date of their appointment on a regular basis. They seriously disputed the case of the petitioners that they were entitled to seniority from the date they exercised their option. According to them the petitioners have to establish that they were duly appointed in the service on a regular basis, when they exercised their option, to claim seniority on the strength of length of service from the date of their option. We must confess that there was considerable confusion both on the side of the petitioners and on the side of the Society and the Government regarding the existence of rules, regulating the conditions of service in the Society. Things proceeded in the Society on the basis that there were no recruitment rules in existence till 1974, while the factual position is that rules were in existence from 1964. It was on this wrong aasumption the that seniority list was prepared on 2nd February, 1979. In that list, seniority was reckoned with reference to length of service. It was after realising that a mistake had been committed and that rules, in fact, existed that the impugned list was drawn up on 7th April, 1981. 1068 6. The petitioners have given a comparative statement as Annexure 9, showing the manner in which the new list has worked to their detriment. This Annexure show. the relative potions of the promotees and the direct recruits in the 1976 list and in the 1981 list. To cite two or three examples; direct recruits who were placed at serial Nos. 4, 20 & 83 in the 1976 list, have gone up as seria Nos. 2, 10 and 22, respectively, in the 1981 list. While preparing the 1976 list, a deemed date of appointment in the grade was adopted to calculate the length of service. The petitioners, case is that the direct recurits never questioned their placement in this list and therefore cannot oppose with any justification the petitioners ' request for quashing the impugned list. Though this submission ' is wholly not unfounded, the petitioners cannot succeed merely on the inaction on the part of the direct recruits but have to satisfy the Court of a right in them to entitle them to seniority from the date they opted and came into the Society 's service. It is this aspect of the case that needs examination by us in this writ petition. In this case we do not have the usual picture of great injustice glaring in the face, of promotees being eased out of their places by direct recruits after a long lapse of time. Here we are dealing with a small Society with a limited number of employees and the dispute relates to a short period from 1965 to 1973. The petitioners cannot, in this case, put forward either the case of a wholesale reduction of their places, legitimately due to them or the collapse of the quota and rota system as was the case in some of the decided cases. The short point here is as to when the petitioners were regular appointed in the grade of Assistants and as to whether the petitioners ' rightful places have been robbed by the Society and the direct recruits by the impugned seniority list. The petitioners were originally Upper Division Clerks with the Agricultural Department of Government of India. They came to Court with the definite plea that their seniority was fixed on the basis of the principles applicable to Government service in the absence of any rules framed by the society, regulating their service conditions. It is stated in the petition that they made representations to the authorities for laying down of clear principles to determine the inter se seniority between them and the direct recruits and as a consequence, the Government of India issued a Memorandum dated 20th April, 1970, asking the Govern ment employees to give their option by 30th April. 1970 and 1069 reiterating at the same time that the inter se seniority of the ministerial staff under the reorganised Council would be fixed on the basis of the date of appointment made on a regular basis. It is significant to note that the petitioners have not produced a single of their appointment orders for this Court to be satisfied as to then they were appointed as Assistants on a regular basis while a specimen appointment order of direct recruits has been produced. Still the petitioners insist that the crucial date for determining the inter se seniority is 1 4 1965, the date on which the Society was reorganised. We find it difficult to accept the contention that the length of service has to be reckoned from 1.4.1965 or from the respective dates when they entered the service of the Society on exercise of their option when the Memorandum, produced by them, has clearly stated that the inter se seniority will be fixed on the basis of the date of appointment in the grade on the regular basis. We have looked into the Memorandum Annexure 4, dated 20th April, 1970. It clearly states that the date for exercise of option has been extended to 30th April ' 1970 and that the principles determining the inter se seniority of the ministerial staff in the reorganised Council was considered by the Society in consultation with the Ministries of Law and Home Affairs and Finance and that it was decided that the seniority of the ministerial staff in the reorganised Council would be fixed on the basis of " date of appointment to the grade on a regular basis . " This statement in the Memorandum which finds a place in paragraph 8 of the Writ Petition also shows, according to us, the hollowness of the contention of the petitioners that seniority has to be fixed with reference to the date on which option was exercised by them. Direct recruitment to the post of Assistants in the Society was made by holding competitive examination in 1967 and 1971. Upper Division Clerks, like the petitioners who were working with the Agricultural Dept., Govt. Of India, could very well have appeared for this competitive examination and got themselves directly recruited as Assistants on successfully passing the competitive examination. We are told that some of the petitioners in fact, appeared for the competitive test without success. Though this statement made by the counsel for the respondents at the bar was not disputed by the petitioners ' counsel, we do not propose to rely on it since it is not a matter on record. Those who were successful at the competitive examination and the interview were offered the posts of Assistant by regular appointment as per appointment order produced as 1070 Annexure 5, issued by the Society, containing the terms of appointment. As already indicated, the petitioners have either by design or by oversight failed to make available to us their orders of appointment on a regular basis in the grade when they exercised option. It is against this background that the challenge to the 1981 list has to be considered. If the petitioners can satisfy us that they had greater length of service in equivalent grade than the direct recruits, they are entitled to succeed. If they fail, the list has to stand despite the fact that the earlier list was not challenged by the direct recruits. We do not have on record anything to show when the petitioners were regularly appointed in the grade of Assistants. In the absence of this evidence, can the petitioners succeed ? As already stated the Society and the Union Government were originally under a misapprehension that no rules existed governing the service conditions in the Society. The petitioners have produced a Memorandum Annexure 3 dated 21st August, 1967 which throws considerable light on the dispute involved in the case. lt is stated therein that the Government of India have approved of the reorganisation of the Indian Council of Agricultural Research into an office wholly controlled and financed by the Indian Council of Agricultural Research, with effect from a date to be appointed shortly. As a consequence of the above decision the various posts existing as Government posts in the said Secretariat, will be abolished with effect from the aforesaid date and corresponding number of posts in various cadres will be created as nongovernment posts under the Society. Paragraph 2 of this Memorandum reads: "The Indian Council of Agricultural Research has, however, agreed to take over such officers as belong to the C.S.S. (holding posts of Section Officer 's grade and Grade IV only), C.S.S.S. and C.S.C.S., employed on date in the Department of Agriculture and its attached offices (including the Indian Council of Agricultural Research) as are willing to serve the Council. The Indian Council of Agricultural Research will, of course, select from amongst the persons opting for its service only the number of persons required by them, keeping in view the total number of existing posts in the various cadres borne on the Govern _ 1071 ment side of the Indian Council of Agricultural Research. " Clause VI of Para 2 reads as follows: "The inter se seniority of the staff in Indian Council of Agricultural Research shall be determined in accordance with the rules to be framed for the purpose taking into account, among others, the principles governing the seniority under the Central Government. " From the passages extracted above, it becomes clear that appointments are to be regularly made to various grades only with effect from a date to be appointed after 21st August, 1967, the date of the Memorandum, which means that the deemed date of appointment mentioned in the 1976 list cannot be relied upon by the petitioners to project a case of their length of service from that date. The petitioners placed strong reliance on the Memorandum,` Annexure 4 dated 20th April, 1970, and in particular to the following: It has also been decided that 1st April, 1965 shall constitute the crucial date for determining the inter se seniority of the staff finally merging into the reorganised Council. Accordingly, a combined inter se seniority list will be prepared for each grade of the persons on the basis of the above principle in accordance with the position obtaining in respect of each individual as on 1st April, 1965 and all regular vacancies arising in the Council with effect from 1st April, 1965 upto date, meant to be filled by promotion (including those which have been filled up on ad hoc basis) will be filled up on a regular basis from the 1? inter se seniority list drawn up in the manner indicated above. Relying on this, the petitioners attempt to contend that their seniority should start from the date they exercised option and that this is correctly reflected in 1976 list. This submission overlooks the fact that even at that time, there were rules in existence prescribing a ratio of 1: 1 between promotees and direct recruits. In addition to this, it has to be noted that here also, filling up of vacancies on a regular basis is emphasised. 1072 13. The Petitioners cannot therefore seek support from this to press a case of seniority from the date of exercise their options or from the deemed date of appointment. Rights can accrue to them as members of the new service only from the date they are regularly appointed in the grade. The impugned list instead of continuing the mistake committed in the 1976 list, has only corrected the mistake. We find from the records that the Union Government and the Society were originally in error in their assumption that no rules existed for regulating the service conditions in the Society. We have at page 91 as Annexure 6, rules relating to the Indian Council of Agricultural Research before its reorganisation. The said rules show that the posts of Assistants can be fill d up 50% by direct recruitment and 50% by promotions. In other words, for every promotee there should be a direct recruit also. As is seen in the Handbook for personnel officer, the relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules. New recruitment rules for verious posts in the Society including Assistants with which we are concerned, came into force with effect from 1.9.1974. Under these rules, in the number of posts available for Assistants 50% was to be by way of promotion from amongst the U.D.Cs. having rendered at least 5 years approved service in the grade on the basis of seniority cum fitness subject to rejection of the unfit on the recommendations of the D.P.C. and 50% by direct recruitment on the basis of the results of competitive examination held by the ICAR. This method of recruitment was to be with effect from 1.1.1976. The method of recruitment before this date is also indicated in these rules. It is provided in these rules that vacancies, arising between 29.8.1973 and 31.12.1975, will be filled wholly (100%) by promotion. This means that vacancies prior to 2.9.1973 will be filled up in accordance with the 1964 rules and vacancies between 29.8.1973 and 31.12.1975, will be filled by the promotees alone and thereafter in the ratio I :1. From these rules it is evident 1073 that the Society was conscious of the claims of the promotees and hence safeguarded their interests by providing 100% posts for them between 29.8.1973 and 31.12.1975. By doing so, justice was done to them in a great measure. The petitioners have no grievance that in preparing the 1981 list, which is impugned in this writ petition, a departure has been made to their detriment, without adhering to the quota provided in the rules. Their only grievance is that the earlier list was changed without taking into account the deemed dates of appointment. We have already indicated that in the absence of satisfactory proof of the date of appointment of the petitioners in the Grade as assistants in the Society, the petitioners cannot successfully urge before us a violation of Article 14 and 16 of the Constitution of India. A look at the list prepared in accordance with the above rules, fortifies our conclusion that no great injustice was done to the promotees in the preparation of the list. As one goes through the list, one finds that the gap between the promotees and the direct recruits is of a very short duration and not wide as in other cases. It is true that direct recruitment was made first only in 1967. However, to world out the quota system an earlier date of appointment had to be given to the direct recruits. This could not be avoided. This according to us, has not done any great injustice to pursuade us to give relief to the petitioners. The dislocation was limited only to a period between 1965 to 1967 and 1967 to 1971 aod not to a fairly long period of time. E In our Judgment, therefore, the petitioners are not entitled to succeed. The writ petition fails and is dismissed. The parties are directed to bear their costs, N.V.K. Petition dismissed. [/INST]Raja Ram Jaiswal along with the members of his family purchased land bearing plot No. 26 with a building thereon admeasuring 2978 sq. situated at K.P. Kakkar Road in March 1971. The plan for a sound proof air condition ed cinema theatre on the said plot submitted by him was sanctioned both by the District Magistrate and the local municipality in December, 1970 and thereafter he applied for a certificate of approval under Rule 3 read with Rule 7 (2) of the U.P. Cinematograph Rules. 1951 for construction of a Cinema theatre. The Hindi Sahitya Sammelan which was initially formed as a voluntary organisation in 1910 and registered as a society under the Societies Registration Act on January 8, 1914 retaining the same name had earlier acquired and taken possession from the Allahabad Municipal Board land admeasuring 7315 sq. and in which a municipal school was located for purpose of building "Sangrahalaya" or a museum cum library cum reading room. However no museum has come up and the land lies vacant. This Sammelan raised objections to the grant of a permit for the constructions of the cinema theatre as in its view a theatre and a research cum study center can go ill together. Overruling the objections, the District Magistrate, the Licensing Authority under the U.P. Cinema (Regulation) Act, 1955 granted the requisite certificate of approval, on March 24, 1972, under Rule 3 which would in law imply that having regard to the provisions of the 1955 Act, and 1951 Rules, there was no legal impediment to the construction of a cinema theatre on plot No. 26. Having failed to thwart the grant of certificate of approval, the Sammelan wrote a letter on October 13, 996 1971 for acquiring land bearing plot No. 26 admeasuring approximately 2865 sq. On the ground that it was needed for a public purpose namely for extension of Hindi Sangrahalaya of Hindi Sahitya Sammelan Prayag. This Notification was published in the U.P. Government Gazette on February 9, 1974.A notice under section 4 (1) bearing the same date was served upon the petitioner as also the same was published in the locality. The petitioner challenged the validity of the notification on diverse grounds in Writ Petition No. 1932/74 and obtained interim stay of taking over possession. In the meantime, by Notification dated February 6, 1975, the earlier Notification dated January 31, 1974 was cancelled and a fresh Notification was issued to acquire "land bearing No. 62 admeasuring 8265 sq yds." and published in the U.P. Gazette on February lc. 1975. Consequently Writ Petition No. 1932174 was got dismissed as infructuous. A notice dated March 6. 1975 under section 5 of the Land Acquisition Act was served upon the petitioner inviting him to file his objections, if any. The petitioner filed detailed objections on March 8, 1975 inter alia contending that the acquisition is for a company and the pre requisite for acquisition for a company having not been carried out, the acquisition is had in law. It was also contended that the petitioner is not the Owner of plot No. '2 admeasuring 8265 sq. yds Promptly on March 13, 1975, a corringendum was issued and published in the Gazette on March 22, 1975 correcting the notification dated February 6, 1975 to read that instead of plot No. 62 Plot No. 26 be read and instead of area 8265 sq. yds., 2865 sq. be read. The substance of Gazette the notifications dated 15.2.1975 March 22, 1975 were not published in the locality as required under section 4 (1). Tn between the issue of the notification and the corrigendum, the petitioner filed Writ Petition 3174175 questioning the validity Or the notification dated February 6, 1975 and duly amending the grounds after issue of the corrigendum. The High Court negatived the challenges namely, (a) that the Notification was bad for non compliance first with the provisions or the Land Acquisition ((Companies)) Rules, 1953; and (b) that the acquisition proceedings are malafide but quashed the impugned notification on the ground of failure to cause public notice of the substance of Notification under section 4 (1) to be published is the locality. Hence the State appeal (CA No. 2458/80) by special leave and the Special Leave Petition No. 9019/80 by Raja Ram. Dismissing the State appeal and allowing in part the Special Leave Petition. the Court. ^ HELD: 1. When the validity of a Notification is questioned on the ground of malafides, proper parties affected by such an allegation must be impleaded in the petition. In this case, Sammelan 's application for intervention under Order XX Rule 3 of the Supreme Court Rules 1966 must be granted though the Sammelan has not moved this Court against the High Court 's order rejecting the application for impleading. [1004D E] 2.1 It is true that ordinarily courts do not interfere at the stage of Sec. 4 notification because it merely constitutes a proposal which will be meticulously examined after the objections arc filed under Section SA by tho person interested 997 in the land wherein all aspects of the matter can be threadbare gone into and examined. However, as a notification under section 4 (I) initiates the proceedings for acquisition of land and uses the expression 'shall ' the mandate of the legislature bcomes clear and therefore, the infirmities therein cannot be wholly overlooked on the specious plea that the courts do not interdict at the stage of a more proposal. 11006 G] 2.2 A bare perusal of section 4 (1) clearly shows that in order to comply with the statutory requirements therein set out, a notification stating 'therein the land which is needed or is likely to be needed for a public purpose has to be published in the official Gazette. The second part of the sub section provides that 'the Collector has to cause public notice of the substance of 'such notification to be given at convenient places in the locality in which the land proposed to be acquired is situated. Both the conditions are mandatory. Unless both these conditions are satisfied, section 4 of the Land Acquisition Act cannot be said to have been complied with. Nor can Court whittle down a mandate of legislation recognised by a long line of decisions solely depending upon the facts of a given case; as is herer Further after the 1974 (U.P. Amendment and Validation Act VIII of 1974), Section 4 (1) on its true interpretation may unmistakably indicate that where the enquiry under Section 5 A is not dispensed with by resorting to Sec. 17 (4), compliance with the second part of Section 4 would be mandatory. [1006H, 1007A D, 1009D E] Khub Chand and Ors. vs State of Rajasthan and Ors. , [1967] I SCR 120 at 125; Babu Barkya Thakur vs The State of Bombay, [1961] I SCR 128: Smt. Somavanti and Ors. vs The Sf are of Punjab & Ors., ; State of Mysore vs Abdul Razak Sahib, [1973] I SCR 856 referred to. Gangadharaih vs State of Mysore &: Ors., (1961) Mys. L.J. 883 approved. 2.3 It is not correct assume that the sole purpose behind publication of substance of Notification in locality, as required secondly in section 4 (1) of the Land Acquisition Act is to make requirement of section 5 A 'functionally effective. [1009G] Where a decision of the Government to be effective and valid has to be notified in the Government Gazette, the decision itself does not become effective unless a notification in the Official Gazette follows. Therefore, assuming that a notification is a formal expression of a decision of the Government to acquire land, unless the decision is notified in the Government Gazette by an appropriate notification, the proceedings for acquisition cannot be said to have been initiated and the decision would remain a paper decision, Section 4 (1) further requires that 'the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality ' The expression 'such notification ' in the latter part of Section 4(1) and sequence of events therein enumerated would clearly spell out that first the Government should reach a decision to acquire land, then publish a notification under section 4 (1) and simultaneously or within a reasonable time from the date of the publication of the notification cause a notice to be published containing substance of such notification meaning thereby that notification which is pub 998 lished. Obviously, therefore, there cannot he a publication in the locality prior to the issuance of the notification. [1010B G] Babu Barkya Thakur vs The State of Bombay, [1961] I SCR 128; Narendra Bahadur Singh and Anr. vs State of U.P. & Ors, ; ; State of Madhya Pradesh & Ors. vs Vishnu Prasad Sharma & Ors, ; held in applicable. Mahendra Lal Jaini vs The State of Uttar Pradesh & Ors, [1963] Supp. I SCR 912 relied on. 3.1 Where power is conferred to achieve a purpose the power must be exercise reasonably and in good faith to effectuate the purpose. And in this context 'in good faith ' means for legitimate reasons. Where it is exercised for extraneous or irrelevant consideration or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non germane consideration, the acquiring authority can be charged with legal malafides. In such a situation there is no question of any personal ill will or motive [1018C E] Municipal Council of Sydney vs Compbell, [1925] A.C. 338 at 375 quoted with approval. State of Punjab vs Gurdial Singh & Ors, [1980] I SCR 1071 explained and followed. 3.2 Where power is conferred to achieve a certain purpose, the power can be exercised only for achieving that purpose. Section 4(1) confers power on the Government and . the Collector to acquire land Deeded for a public purpose. The power to acquire land is (o be exercised for carrying out a public purpose. If the authorities of the Sammelan cannot tolerate the existence of a cinema theatre in its vicinity it cannot he said that such a purpose would be a public purpose. The authority of the Sammelan may honestly believe that the existence of a cinema theatre may have the pernicious tendency to vitiate the educational and cultural environment of the institution and therefore. it would like to wish away a cinema theatre in its vicinity. That hardly constitutes public purpose. The proclaimed need of land for putting up Sangrahalya is an easy escape route whenever Sammelan wants to take over some piece of land. Need of the land for Sangrahalya is a figment of imagination consured up to provide an ostensible purpose for acquisition. There is enough land roughly admeasuring 7315 sq. Lying vacant and unutilised with the Sammelan for over a quarter of a century. The Sangrahalya has not come up though this was the land which was taken from the Municipal Board for the avowed object of putting up a Sangrahalya. The Sammelan moved on to Rangamanch and Natyashala and then ultimately adopted a position that when the land is made available, scheme will be devised for its proper use. The Sammelan was ever interested in acquiring the land for effectuating any of its objects. It was neither the plans nor the wherewithal nor any specific object 999 for which it needs land and it is unable to use over years the land already available at its disposal. Therefore, the Sammelan was actuated by extraneous and irrelevant considerations in seeking acquisition of the land and the statutory authority having, 'known this fact yet proceeded to exercise statutory pwoer and initiated the process of acquisition. [1017F H, 1018A B] 3.3 The power to acquire land was a exercised for an extraneous and irrelevant purpose and it was colourable exercise of power, namely, to satisfy the chagrin and anguish of the Sammelan at the coming up of a cinema theatre in the vicinity of its campus, which vowed to destroy. There fore, the consideration dated 6 2.1975 is illegal and invalid. [1019E F] </s>

<s>[INST] Summarize the judgementAppeal No. 791 of 1962. Appeal by special leave from the judgment and order dated March 22, 1960, of the Bombay High Court in Award No. 18 of 1959. section T. Desai and I. N. Shroff, for the appellant. B. C. Misra, for the respondent. April 29, 1964. The Judgment of the Court was delivered by HIDAYATULLAH J. This appeal by special leave is directed against an order of the High Court of Bombay dated March 22, 1960 in its ordinary original civil jurisdiction. The facts are simple. By a letter dated July 30, 1955, Messrs. Kajaria rraders (India) Ltd., who is the respondent here and Messrs. Foreign Import and Export Association (sole proprietory firm owned by the appellant Jagdish C. Gupta) entered into a partnership to export between January and June 1956, 10,000 tons of manganese ore to Phillips Brothers (India) Ltd., New York. Each partner was to supply a certain quantity of manganese ore. We are not concerned with the terms of the agreement but with one of its clauses which provided: "That in case of dispute the matter will be referred for arbitration in accordance with the Indian . " The company alleged that Jagdish Chander Gupta failed to carry out his part of the partnership agreement. After some correspondence, the company wrote to Jagdish Chander Gupta on February 28, 1959 that they had appointed Mr. R. J. Kolah (Advocate O.S.) as their arbitrator and asked Jagdish Chander Gupta either to agree to Mr. Kolah 's appointment as sole arbitrator or to appoint his own arbitrator. Jagdish Chander Gupta put off consideration and on March 17, 1959 the company informed Jagdish Chander Gupta that as he had failed to appoint an arbitrator within 15 clear days they were appointing Mr. Kolah as sole arbitrator. Jagdish Chander Gupta disputed this and the corn 53 pany filed on March 28, 1959 an application under section 8 (2) of the Indian for the appointment of Mr. Kolah or any other person as arbitrator. Jagdish Chander Gupta appeared and objected inter alia to the institution of the petition. Two grounds were urged (i) that section 8(2) of the Indian was not appli cable as it was not expressly provided in the arbitration clause quoted above that the arbitrators were to be by consent of the parties and (ii) that section 69(3) of the afforded a bar to the petition because the partnership was not registered. The petition was refer red by the Chief Justice to a Divisional Bench consisting of Mr. Justice Mudholkar (as he then was) and Mr. Justice Naik. The two learned Judges agreed that in the circumstances of the case an application under section 8 of the Indian was competent and that the court had power to appoint an arbitrator. They disagreed on the second point: Mr. Justice Mudholkar was of the opinion that section 69(3) of the barred the application while Mr. Justice Naik held otherwise, The case was then referred to Mr. Justice K. T. Desai (as he then was) and he agreed with Mr. Justice Naik with the result that the application was held to be competent. In this appeal it was not contended that the conclusions of the learned Judges in regard to section 8(2) were erroneous. The decision was challenged only on the ground that section 69(3) was wrongly interpreted and the bar afforded by it was wrongly disallowed. Section 69 of the may be reproduced here : "69.(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. 54 (2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the (3) The provisions of sub sections(1) and (2) shall apply also to a claim ofset off or other proceeding to enforce a rightarising from a contract, but shall not affect (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or (b) the powers of an official assignee, receiver or Court under the , or the , to realise the property of an insolvent partner. (4) This section shall not apply (a) to firms or to partners in firms which have no place of business in the territories to which this Act extends, or whose places of business in the said territories are situated in areas to which, by notification under section 56, this Chapter does not apply, or (b) to any suit or claim of set off not exceeding one hundred rupees in value which, in the Presidency towns, is not of a kind specified in section 19 of the , or outside the Presidency towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim 'Me section, speaking generally, bars certain suits and pro ceedings as a consequence of non registration of firms. Sub 55 section (1) prohibits the institution of a suit between partners inter se or between partners and the firm for the purpose of .enforcing a right arising from a contract or conferred by the Partnership Act unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. Sub section (2) similarly prohibits a suit by or on behalf of the firm against a third party for the purpose of enforcing rights arising from a contract unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. In the third sub section a claim of set off which is in the nature of a counter claim is also similarly barred. Then that subsection bars "other proceedings". The only doubt that has arisen in this case is regarding the meaning to be given to the expression "other proceeding". One way to look at the matter is to give these words their full and natural meaning and the other way is to cut down that meaning in the light of the words that precede them. The next question is whether the application under section 8 (2) of the can be regarded as a proceeding "to enforce a right arising from a contract", and therefore, within the bar of section 69 of the . Mr. Justice Mudholkar in reaching his conclusion did not interpret the expression "other proceeding" ejusdem generis with the words "a claim of set off". He held further that the application was to enforce a right arising from the contract of the parties. Mr. Justice Naik pointed out that the words used were not "any proceeding" nor "any other proceedings" but "other proceeding" and that as these words were juxtaposed with 'a claim of set off ' they indicated a, proceeding of the nature of a claim in defence. On the second point Mr. Justice Naik held that this was not a proceeding to enforce a right arising from a contract but was a claim for damages and such a claim, could be enter tained because it was based on something which was inde pendent of the contract to supply ore. He held that the, right which was being enforced was a right arising from the and not from the contract of the parties. Mr. Justice K. T. Desai agreed with most of these conclu sions and suggeted that the words preceding "other proceed 56 ing", namely, "a claim of set off" had 'demonstrative and limiting effect '. He seems to have ascertained the meaning of the expression "other proceeding" by reference to the meaning of the words "a claim of set off", which he considered were associated with it. Ile first question to decide is whether the present pro ceeding is one to enforce a right arising from the contract of the parties. The proceeding under the eighth section of the has its genesis in the arbitration clause, because without an agreement to refer the matter to arbitration that section cannot possibly be invoked. Since the arbitration clause is a part of the agreement constituting the partnership it is obvious that the proceeding which is before the court is to enforce a right which arises from a contract. Whether we view the contract between the parties as ;a whole or view only the clause about arbitration, it is impossible to think that the right to proceed to arbitration is not one of the rights which are founded on the . agreement of the parties. The words of section 69(3) "a right arising from a contract" are in either sense sufficient to cover the present matter. It remains, however, to consider whether by reason of the fact that the words "other proceeding" stand opposed to the words "a claim of set off" any limitation in their eaning was contemplated. It is on this aspect of the case that the learned Judges have seriously differed. When in a statute particular classes are mentioned by name and then are followed by general words, the general words are sometimes construed ejusdem generis, i.e. limited to the same category or genus comprehended by the particular wordsbut it is not necessary that this rule must alwavs apply. The nature of the special words and the general words must e considered before the rule is applied. In Allen vs Emerson (1), Asquith J. gave interesting examples of particular words followed by general words where the Principle of ejusdem generis might or might not apply. We ink that the following illustration will clear any difflculty. In the expression "books, pamphlets, newspapers and other (1) [i944] 1 K.B. 362. 57 documents" private letters may not be held included it 'other documents ' be intepreted ejusdem generis with what goes before. But in a provision which reads "newspapers or other document likely to convey secrets to the enemy", the, words 'other document ' would include document of any kind and would not take their colour from 'newspapers '. It follows, therefore, that interpretation ejusdem generis or noscitur a sociis need not always be made when words showiig particular classes are followed by general words. Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted. Here the expression "claim of set off" does not disclose a category or a genus. Set offs are of two kinds legal and equitable and both are already comprehended and it is difficult to think of any right "arising from a contract" which is of the same nature as a claim of set off and can be raised by a defendant in a suit. Mr. B. C. Misra, whom we invited to give us examples, admitted frankly that it was impossible for him to think of any proceeding of the nature of a claim of set off other than a claim of set off which could be raised in a suit such as is described in the second sub section. In respect of the first sub secton he could give only two examples. They are (i) a claim by a pledger of goods with an unregistered firm whose goods are attached and who has to make an objection under 0. 21 r. 58 of the Code of Civil Procedure and (ii) proving a debt before a liquidator. The latter is not raised as a defence and cannot belong to the same genus as a "claim of set off". The former can be made to fit but by a stretch of some considerable imagination. It is difficult for Lis to accept that the Legislature was thinking of such far fetched things when it spoke of "other proceeding" ejusdem generis with a claim of set off. Mr. Justice Naik asked the question that if all proceedings were to be excluded why was it not considered suffi cient to speak of proceedings along with suits in sub sections (1) and (2) instead of framing a separate subsection about proceedings and coupling 'other proceeding, ' with 'a 58 the search for the answer in the ' scheme of the section itself gives the clue. The section thinks in terms of (a) suits and (b) claims of set off which are in a sense of the nature of suits and (c) of other proceedings. The section first provides for exclusion of suits in sub sections (1) and (2). Then it says that the same ban applies to a claim of set off and other proceeding to enforce a right arising from a contract. Next it excludes the ban in respect of the right to sue (a) for the dissolution of a firm, (b) for accounts of. a dissolved firm and (c) for the realisation of the property of a dissolved firm. The emphasis in each case is on dissolution of the firm. Then follows a general exclusion of the section. The fourth sub section says that the section as a whole, is not to apply to firms or to partners and firms which have no place of business in the territories of India or whose places of business are situated in the territories of India but in areas to which Chapter VII is not to apply and to suits or claims of set off not exceeding Rs. 100 in value. Here there is no insistence on the dissolution of the firm. It is significant that in the latter part of clause (b) of that section the words are "or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim" and this clearly shows that the word "proceeding" is not limited to a proceeding in the nature of a suit or a claim of set off. Subsection (4) combines suits and a claim of set off and then speaks of "any proceeding in execution" and "other proceeding incidental to or arising from any such suit or clainm" as being outside the ban of the main section. It would hardly have been necessary to be so explicit if the words other proceeding in the main section had a meaning as restricted as is suggested by the respondent. It is possible that the draftsman wishing to make exceptions of different kinds in respect of suits, claims of set off and other proceedings grouped suits in sub sections (1) and (2), set off and other proceedings in sub section (3) made some special exceptions in respect of them in sub section (3) in respect of dissolved firms and then viewed them all together in sub section (4) providing for a complete exclusion ' of the section in respect of suits of particular classes. For convenience of drafting this 59 scheme was probably followed and nothing can be spelled out from the manner in which the section is sub divided. Some cases noticed by the High Court were cited to us but none of them appears to be really in point. In Hafiz Qamar Din vs Nur Din( ') and Babutal Dhandhania vs Messrs. Gauttam and Co.( ') proceedings were started on an award, in one to make it a rule of the Court and in the other to get it set aside. These cases are distinguishable because they deal with awards and it is not necessary to decide whether after an award the proceeding is one to enforce a right arising from a contract. We do not refer to them. In Kottamasu Sreemannarayanamuthy and another vs Chakka Arjanadu() a petition for adjudication of a partner as insolvent was held to be a right arising not from, a contract but from statute. Here the right that is being enforced through the medium of the arises from the contract between the parties and is a part of it. In Jamal vs Firm Umar Haji Karim (4 ) the bar of section 69(3) was claimed during the execution of a consent decree and was disallowed. Grille C. J. observed that the expression 'other proceeding ' indicated something which was 'sui generis of a claim of set off '. If the partners of an unregistered firm. go to court without either asking for a dissolution of the firm or dissolving it themselves and enter into an agreement and compose their differences it is possible to say that the enforcement of the consent decree is no more than the enforcement of a right arising from a contract and is within the ban. It is, however, not necessary to decide this point here. in Ram Lal Harnam Das vs Pal Krishan and others() it was expressly pointed out that the expression 'other proceeding ' in the third sub section applied to proceedings of the nature of a claim of set off and nothing else. This case cannot be said to interpret the sub section correctly. Similarly, Mahendra vs Gurdeyal( '), which lays down that section 69 does not bar a partner of an unregistered partnership firm from applying to the court under section 8 of the for referring the dispute (1) A.T.R (3) A.I.R. 1939 Mad. (5) A.I.R. 1917 Punjab 159. (2) A.r. R. (4) I.L.R. (6) I.L.R. 30 Pat. 109. 60 between partners to arbitrator as provided in the condition of their agreement, cannot be accepted as sound. The ,reason given by the Divisional Bench that as section 69 allows dissolution and accounts of unregistered partnership it cannot bar such an application appears to us to be not quite in Point. In our judgment, the words 'other proceeding ' in sub section (3) must receive their full meaning untramelled by the words 'a claim of set off '. The latter words neither intend nor can be construed to cut down the generality of the words 'other proceeding '. The sub section provides for the application of the provisions of sub sections (1) and (2) to claims of set off and also to other proceedings of any Kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in sub section (3) and sub section The appeal is, therefore, allowed. The decision of the High Court will be set aside and the application under section 8(2) of the shall stand dismissed with costs throughout on the applicant in the High Court. [/INST]The plaintiff respondent brought a suit against the appel lant for recovery of possession of certain property and for mesne profits. The plaintiff claimed recovery of possession and mesne profits on the ground that he was the absolute owner of the property described in the plaint and the defendant was in, wrongful possession of the same. In the plaint the plaintiff made reference to a previous suit that had been filed by him and his mother (C.S. 28 of 1950) wherein a claim had been made against the defendant for the recovery of the mesne profits in regard to the same property for the period ending February 1.0, 1950. In the previous suit the mense profits had been decreed. In his written statement in the present suit the defendant appellant raised a technical plea under Order 2 rule 2 of the Civil Procedure Code to the maintainability of the suit. Before evidence was led by the parties the trial court de cided this preliminary issue raised by the defendant. The trial court held that the suit was barred under 0. 2 r. 2 of the Code. On appeal, the Appellate Court held that the plea of a bar under Order 2 rule 2, Civil Procedum Code should not have teen entertained at all because the pleadings in the earlier suit C.S. 28 of 1950 had not been filed in the present case. Therefore, the Appellate Court set aside the order of the trial Court. Against this order the defendant preferred an appeal which was dismissed by the High Court. The appellant obtained special leave against the judgment of the High Court. Hence the appeal Held:(i) A plea under Order 2 rule 2 of the Code based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. It is for this reason that a plea of a bar under 0. 2 r. 2 of the Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the cause of action in the two suits. In other words a plea under 0. 2 r. 2 of the Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. Without placing before the court the plaint in which those facts were alleged, the defendant cannot invite the court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. On the facts of this case it has to be held that the plea of a bar under 0, 2 r. 2 of the Code should not have been entertained at all by 832 the trial Court because the pleadings in civil suit No. 28 of 1950 were not filed by the appellant in support of this plea. (ii)in order that a plea of a bar under 0. 2 r. 2 (3) of the Code should succeed the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more that one relief (iii) that being thus entitled to more than one relief plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. </s>

<s>[INST] Summarize the judgementN: Criminal Appeal No. 118 of 1972. Appeal by Special Leave from the Judgment and Order dated 24 4 1972 of the Punjab and Haryana High Court in Criminal Appeal No.303 of 1969. A. N. Mulla, Harbans Singh and Faqir Chand for the Appellant. Hardev Singh for the Respondent. The Judgment of Court was delivered by UNTWALIA, J. The appellant in this appeal by special leave was convicted by the Additional Sessions Judge, Jullundur under section 304 Part I, Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 10,000/ in default to two years ' further rigorous imprisonment. The fine, if recovered, was directed to be paid to the dependants of the deceased in equal shares. The appellant filed a criminal appeal in the High Court of Punjab and Haryana against his conviction and sentence. The State 808 also filed an appeal and the widow of the deceased filed a revision in the High Court for convicting the appellant under section 302 of the Penal Code instead of section 304 Part I. The High Court dismissed both the appeals as also the revision. The appellant only has preferred this appeal in this Court. The appellant was running a factory at Jullundur and on account of non availability of raw materials the factory remained closed for a fortnight from the 14th to 28th September, 1967 resulting in lay off of the workmen. A dispute arose between the management and the workmen in regard to the payment of wages for the period aforesaid. Ultimately a settlement was arrived at through the intervention of the Labour cum Conciliation Officer, Jullundur and the terms of the settlement were reduced to writing which was marked Ext. D.A. in the case. Rightly or wrongly the workers, according to the prosecution case, got the impression that they were to be paid their wages for the period of lay off. They accordingly went to the appellant on 7th October, 1967 for demanding the wages. The appellant is said to have told them that the same would be paid on the 11th October. On this date again they went to the factory and sent P.W. Mota Singh to demand wages from the appellant. He asked him to go away. Mota Singh came out and passed on the information to the workers present outside the factory premises, who, amongst others, included Sant Ram, the deceased, Darshan Singh, P.W. 4 and Gurcharan Singh, P.W. 5. According to the prosecution case the workers then started raising innocuous slogans demanding their wages and did nothing else. It is said that thereupon the appellant opened the door of his office and fired a shot from his revolver towards the workers who were raising slogans. The shot hit on the forehead of Sant Ram who fell down and died instantaneously at the spot. The occurrence took place at 2.00 p.m. on the 11th October, 1967. A First Information Report was lodged at the Thana at 2.15 p.m., on the written report of Mota Singh, P.W. 2, Shadi Lal, P.W. 13, Sub Inspector of Police reached the place of occurrence at about 2.30 p.m. and started investigation. After submission of Charge Sheet and commitment the appellant was tried for having committed the offence of murder of Sant Ram punishable under section 302 of the Penal Code. The defence set up by the appellant was that the Labour Officer had given the decision contained in Ext. D.A. on the 28th September, 1967 that no wages would be paid for the lay off period but that the workmen would be treated on leave and would be paid as per leave due to each one of them. He along with his son and driver Bansi 809 Lal was in the office at about 1.50 p.m. on the 11th October when eight or nine labourers of his factory and fifteen or twenty labourers who are outsiders came to his factory. Some of them entered his office while others stood outside. They demanded wages not only for the period of lay off but also for the period from 7th October onwards when they had decided not to join the work until their wages were paid. The factory gates were closed and a big crowd of labourers collected outside. They became violent. They shouted very abusive and obnoxious slogans and were saying that they would not leave the owner of the factory alive that day. They showered brick bats at the factory premises. His office air conditioner was broken so was the electric globe outside the office. The brick bats hit the office wall and damaged it and also damaged the table glass on the table inside the office. Numerous brick bats fell both inside and outside the office. Apprehending imminent danger to his life and in exercise of the right of private defence of property and person, Bansi Lal, the appellant 's driver fired the shot from the revolver and not he. The labourers had started breaking the barbed wire fixed on the boundary wall of the factory on the other side of which they were standing. Some of them including Sant Ram tried to scale the boundary wall. It was in such a situation that the bullet hit Sant Ram causing his death. Largely, almost wholly, agreeing with the conclusions arrived at by the Trial Court, the High Court has arrived at the following findings of fact: (1) The version of the labourers that they were entitled to their wages for the lay off period was not countenanced by Ext. D.A., rather, that of the appellant was borne out by it. "The demand of the workers made on 7th October, 1967 and 11th October, 1967 for payment of full wages was not in accordance with this agreement and therefore was not legal." (2) "That after the refusal by the accused to pay wages to the workers for the lay off period they raised some slogans and might have hurled some brick bats into the factory premises of the accused and caused damages as observed by Shadi Lal (P.W. 13) Sub Inspector, who arrived at the spot within about half an hour of the occurrence." (3) "The workers did not break the barbed wire affixed on the boundary wall of the factory nor they tried to 810 scale the boundary wall and there is no reliable evidence on the file to show that they were armed with any DANDAS or sticks. Their purpose was to hold a demonstration against the accused when he refused to consider their demand of wages for the lay off period which was obviously not justified in view of the agreement arrived on 28th September, 1968, copy of which is Exhibit D.A." (4) "Provocative slogans might have also been raised by them at that time, when the accused was sitting in the office." (5) "Admittedly the workers were, at that time, standing outside the factory wall which was 5 1/2 feet high and on which barbed wire is fixed. The distance between that outer wall and the office of the accused was about 13 feet. No brick bats hurled by the workers could, therefore, enter the office room of the accused. The defence version that some brick bats fell inside the office of the accused and broke the glass of his table is false and incorrect." (6) The mob hurled bricks bats on the building and the globe outside his office was broken and some damage was done to the air conditioner and as such the mob was guilty of mischief." (7) "The accused on hearing slogans of the workers came out of his office and stood on the THARI in front of the office and fired the shot towards the workers, who were raising slogans outside the factory and as a result of that shot Sant Ram died instantaneously. " On the basis of the findings aforesaid the High Court, in agreement with the Trial Court, came to the conclusion that the appellant had the right of private defence of property extending to the voluntary causing of any harm other than death to the workers but not to the causing of death and obviously he exceeded his right of private defence and thus this offence falls under Exception 2 of section 300 of the Indian Penal Code. The High Court found the appellant in the first instance guilty of culpable homicide amounting to murder within the meaning of clause '4thly ' of section 300. And since the appellant 's case was found to have been covered by Exception 2 he was convicted under section 304, Part I. 811 Mr. A. N. Mulla appearing for the appellant submitted that he was not challenging the concurrent findings of the courts below that it was the appellant who had fired the shot from his revolver and not his driver. But then, according to his submission, he was forced to do so apprehending imminent danger to his life or of grievous hurt to him and the shot was fired not only to defend his property. He was, therefore, in exercise of that right, entitled to and justified in law in using force even to the extent of causing the death of Sant Ram, although he never intended to kill any one. It was further submitted that the workmen were the aggressors. They had thrown brick bats even inside the office damaging the office table glass; had collected in large numbers outside the boundary wall; had broken the barbed wire on it and some of them were trying to scale down the wall. In such a situation the appellant was not expected to act like a coward and run from the place, but he had a right to defend his property and person. In any view of the matter, counsel submitted, that the case did not come under clause '4thly ' of section 300 or even if it falls within that provision, on the application of Exception 2 he could only be convicted under Part II of section 304 and not Part I. On the facts and in the circumstances of this case, counsel submitted, that the sentence imposed upon him is highly excessive and even if his conviction is maintained justice demands only an imposition of fine on him under section 304 Part II. Mr. Hardev Singh appearing for the State endeavoured to show that the labourers were justified in demanding their wages for the layoff period; they were very few in number and even if their demand was not warranted on the terms of the settlement embodied in Ext. D.A. they had a right to peacefully demonstrate and ventilate their grievance. They did nothing which could give any right of private defence to the appellant either of his property or person. He could escape from his office for his safety or would have taken recourse to the protection of the public authorities. Counsel further submitted that the appellant was not at all justified in causing the death of Sant Ram by his revolver and his conviction recorded under section 304 Part I is correct and the sentence is not at all excessive. After having appreciated all that was placed before us by learned counsel for the parties and on perusal of the relevant pieces of evidence in the case we have come to the conclusion that none of the findings recorded by the Courts below is such or so erroneous that we can justifiably interfere with it either this way or that way. And this, apart from the fact, that since the State had not come to this Court 812 in appeal it was not open to it to argue that the appellant had no right of private defence at all. The argument that the appellant had time to escape like a coward for protecting his person leaving his property to any amount of danger of being damaged, to say the least, was an obviously wrong argument and has been stated merely to be rejected. D.A. clearly shows that the workmen were not entitled to claim down right cash wages for the period of lay off. Their absence was to be adjusted against their leave. To start with, therefore, the High Court was right in saying that their demand was not legal. Yet that, by itself, could not give any right of private defence either of property or of person to the appellant. We have carefully gone through the evidence of P. Ws. 2, 4 and 5 and also the evidence of Vidya Sagar, D.W. 2 on which great reliance was placed by Mr. Mulla. We see no ample Justification for us to say that any brick bats thrown by the labourers had entered the office room of the appellant breaking the glass of his office table. But then, brick bats were thrown; they did hit and damage the office wall, the air conditioner and the globe of the electric light. It may not be possible to determine with exactitude the number of labourers present outside the boundary wall at the time of the occurrence. But it does appear to us that they were neither present in very large number of hundred or more nor the number was as meagre as about ten as deposed to by the P.Ws. The factory of the appellant is situated in an industrial area. It is reasonable to think that some other workers also must have joined their agitational move. Be that as it may, the number of the workers present outside the boundary wall is not of any great significant although it has some significance. They did throw brick bats damaging the appellant 's property and endangering it to further damage. Hurling of brick bats by the labourers towards the office of the appellant must have caused apprehension of some hurt or injury to him but not necessarily the causing of the grievous hurt as on the facts and in the circumstances of this case it was not possible to draw an inference to that extent. The High Court would have been well advised to try to record a definite finding on the question of hurling of brick bats instead of saying that the workers "might have hurled some brick bats into the factory premises of the accused. " Similarly the High Court ought to have come to a definite conclusion as to whether the slogans raised by the workers were merely innocuous as they claimed to be or they were raising provocative slogans also which were not only obnoxious but went to the length of saying that the appellant should be killed and the factory should be burnt. We are inclined to think that the 813 slogans raised by the workers were more offensive and provocative than claimed by them. But we are not prepared to accept the contention of the appellant in disagreement with the findings of the courts below that they had broken barbed wire or that some of them tried to scale down the boundary wall. It may well be that some of them tried to raise their heads to mark the reaction of the appellant on the hearing of their slogans. The boundary wall was only 51/2 high. The appellant came out of his office room and stood on the THARI which was about 1 1/2 high from the ground level of the factory and fired the shot. It is not possible to accept his contention that he did so merely to scare away the crowd of the workers. He could and did fire the shot so that it could pass over the boundary wall almost grazing it. Sant Ram was standing at a distance of about 5 ' or 6 ' from the boundary wall. The bullet which must have passed just over the boundary wall could and did hit Sant Ram. In such a situation the High Court was right in the first instance in not finding the appellant guilty of having committed culpable homicide amounting to murder within clauses '1stly, 2ndly or 3rdly ' and finding him guilty with the aid of clause '4thly ', where the intention to cause murder is absent but "the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death". The clause further says that the person "commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. " The appellant must have committed the act with the knowledge that it was imminently dangerous and in all probability must cause death or such bodily injuries as was likely to cause death. Dehors Exception 2 which we shall presently refer he had no excuse for committing the said act. The law regarding the right of private defence of property or person is well settled and may be briefly recapitulated here. The onus is on the accused to establish this right not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly or might or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both. But the exercise of this right is subject to the limitations and exceptions provided in section 99 of the Penal Code the last one being "The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for 814 the purpose of defence." As to when the right of private defence of the body extends to causing death is provided for in section 100. The appellant 's case is not covered by it. In the view which we have expressed above we think that the appellant had not only the right of private defence of his properly but also his body to a limited extent with in the meaning of section 101 subject to the restrictions mentioned in section 99. This did not extend to the inflicting of so much harm to Sant Ram and causing his death, nor the right of private defence of property available to the appellant extended to causing his death as it was not covered by any of the clauses of section 103. Mr. Mulla tried to bring it under '4thly ' which says: "Theft, mischief, or house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. Mischief was caused to his property but it was not caused under such circumstances as may reasonably cause apprehension in his mind that death or grievous hurt would be the consequence if such right of private defence was not exercised. A mere claim of such apprehension is not enough. The Court on objective test and on the facts and circumstances of each case must arrive at the conclusion that the situation was such as was likely to reasonably cause such apprehension. The right of private defence of property also, therefore, in the appellant 's case extended to causing of any harm other than the death. Undoubtedly the appellant did exceed this right of private defence and apparently the murder which he committed within the meaning of clause '4thly ' of section 300 squarely fell within Exception 2 thereof. He exceeded the power given to him by law and caused the death of Sant Ram against whom he was exercising such right of defence. He did so without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence. He thought that by indulging in this imminently dangerous act he would be able to scare away the labourers and stop them from continuing their unjustified agitation, the raising of the slogans and the throwing of the brick bats. But then, although the intention was not to kill or cause such bodily injury as was sufficient in the ordinary course of nature to cause death, yet he must have committed the act knowing that it was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death of the worker or workers standing on the other side of the boundary wall. 815 A question now arises whether the appellant was guilty under Part I of section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of section 300 it is found that he was guilty of murder within the meaning of clause '4thly ', then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of section 304 and not Part I. Even so on the facts and in the circumstances of this case we do not feel persuaded to let off the appellant with an imposition of fine only. We, however, thought that sentence of three years ' rigorous imprisonment would meet the ends of justice in this case. We were informed at the Bar and an affidavit sworn by the appellant 's wife was also filed before us to the effect that the appellant was in jail for about nine months as an under trial prisoner and for about four months after conviction. Thus he has already undergone imprisonment for a period of about a year and a month. The occurrence took place more than a decade ago. The appellant had to pass this long ordeal all these years both mentally and financially. Considering, therefore, the totality of the circumstances while maintaining the imposition of fine of Rs. 10,000/ and in default two years ' further imprisonment, we reduce his substantive term of imprisonment to the period already undergone and maintain the conviction of the appellant not under Part I of section 304 of the Penal Code but under Part II. In the result the appeal is dismissed but subject to the modification made above in regard to the appellant 's conviction and sentence. N.V.K. Appeal dismissed. [/INST]There was a dispute between the appellant, a factory owner and his employees in regard to wages, during the period of their lay off. The prosecution alleged that on the day of the occurrence when the workers gathered outside the factory and raised innocuous slogans demanding their wages, the appellant came out and fired a shot from his revolver, which hit a worker resulting in his death. The appellant on the other hand alleged that a large number of labourers who collected outside the factory, shouted very abusive slogans, threatening that they would not leave him alive and showered brickbats at the factory premises causing damage to the appellant 's property. Apprehending imminent danger to his life and property, his driver fired a shot from the revolver which resulted in the death of the deceased. The trial court, with whose findings the High Court agreed, found that the workers might have hurled brickbats into the factory premises; but they did not break the barbed wire on the boundary wall nor did they try to scale the boundary wall. that they did not carry any sticks, that no brickbats hurled by the workers could enter the appellant 's office and therefore his version that some brickbats damaged the glass on his office table was incorrect and that it was the appellant and not his driver that fired his revolver which resulted in the death of the deceased. The High Court, agreeing with the trial court, held that though the appellant had the right of private defence of property it did not go to the extent of causing death and, therefore, he exceeded his right of private defence. Holding that the offence fell under Exception 2 to section 300 IPC the High Court convicted him under section 304, Part I. In appeal to this Court it was contended on behalf of the appellant that in the exercise of his right of private defence the appellant was entitled to and justified in law in using force even to the extent of causing death although he never intended to kill the deceased or anyone. On the facts and circumstances of the case, it did not come within clause 4thly of section 300; or even if it fell within that provision, on the application of exception 2, he could only be convicted under Part II of section 304 and not under Part I. Even if his conviction were maintained, imposition of fine would meet the ends of justice. Dismissing the appeal in part, ^ HELD: The appellant could be convicted only under Part II of section 304 and not Part I. [813 C]. 806 (1) The High Court was right in not finding the appellant guilty of having committed culpable homicide amounting to murder within clauses Firstly, Secondly or Thirdly and finding him guilty with the aid of clause 4thly where the intention to cause murder is absent but "the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death". The clause further says that the person "commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. " The appellant must have committed the act with the knowledge that it was imminently dangerous and in all probability must cause death or such bodily injury as was likely to cause death. Dehors Exception 2, he had no excuse for committing the said act. [813 D E] In the present case the workers ' demand for wages was not legal. The workers raised provocative slogans and did throw brickbats damaging the appellant 's property and endangering it to further damage. But that by itself could not give any right of private defence of person to the appellant. There is no evidence to show that the workers had broken the barbed wire or that some of them tried to scale the boundary wall. It may well be that some of them tried to raise their heads above the boundary wall. The appellant came out of his office and fired the shot, which could not be merely to scare away the crowd of workers. He could and did fire the shot so that it could pass over the boundary wall almost grazing it. The bullet which must have passed just over the boundary wall could and did hit the deceased killing him instantaneously. [812C 813C] 2. (a) In the matter of exercise of the right or private defence of property or person the onus is on the accused to establish this right not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly or might or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials on the record on the basis of evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of person or property or both. But the exercise of this right is subject to the limitation and exceptions provided in section 99 of the Code. As to when the right of private defence of the body extends to causing death is provided for in section 100. [813 F 814 A] (b) The appellant had not only the right of private defence of his property but also his body to a limited extent within the meaning of section 101 subject to the restrictions mentioned in section 99. This did not extend to the inflicting of so much harm to the deceased and causing his death, nor does the right of private defence of property available to an accused extend to causing death, unless it is covered by any of the clause of section 103. [814 B] (c) When mischief is caused to property it must be shown that it was caused under such circumstances as may reasonably cause apprehension that death or grievous hurt would be the consequence if such right of private defence was not exercised. A mere claim of such apprehension is not enough. The court on objective tests and on the facts and circumstances of each case must arrive at the conclusion that the situation was such as was likely to reasonably cause such apprehension. [814 D E] 807 (d) The right of private defence of property in the appellant 's case extended to causing of any harm other than death. The appellant did exceed this right of private defence and the murder which he committed was within the meaning of clause '4thly ' of section 300 squarely and fell within Exception 2 thereof. [814 F] (e) The appellant exceeded the right given to him by law and caused the death of the deceased against whom he was exercising such right of defence. He did so without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence. He thought that by indulging in this imminently dangerous act he would be able to scare away the labourers and stop them from continuing their unjustified agitation, the raising of the slogans and the throwing of brickbats. But then, although the intention was not to kill or cause such bodily injury as was sufficient in the ordinary course of nature to cause death, yet he must have committed the act knowing that it was so imminently dangerous that it must in all probability cause death of the worker or workers standing on the other side of the boundary wall. [814 G H] 3. If the accused commits an act while exercising the right of private defence by which death is caused either with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exception of section 300 it is found that he was guilty of murder within the meaning of clause "4thly" then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injury as was likely to cause death. In the instant case the appellant could be convicted only under Part II of section 304 and not Part I. [815A C] </s>

<s>[INST] Summarize the judgementNos. 232,233, 286, 309, 320, 351, 319, 350, 354 and 490 of 1951. Applications under article 32 of the Constitution for writs to enforce the fundamental rights of the petitioners. C. K. Daphtar (R. M. Hajarnavis, with him) for the petitioner in Petition No. 232. M. C. Setalvad (G. N. Joshi and B. M. Hajarnavis, with him) for the petitioner: in Petition No. 233. B. M. Hajarnavis for the petitioners in Petitions Nos. 286, 309 and 320. V. N. Swami for the petitioners in Petitions Nos., 350 and 351. N. section Bindra (B. section Narula with him) for the petitioners in Petitions Nos. '319, 354 and 490. T. L. Shivde, Advocate General of Madhya Pradesh, for the respondent in all the petitions, the State of Madhya Pradesh. December 22. The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J. These are petitions under article 32 of the Constitution of India for directions or orders or writs to enforce the fundaments rights, of the petitioners to property by prohibiting, the respondent, the State of Madhya Pradesh, from enforcing their alleged rights under the Madhya Pradesh Abolition of Proprietary Rights Act, 1950. The several petitioners entered into contracts and agreements with the previous proprietors of certain estates and mahals in the State under which it is said they acquired the rights to pluck, collect and carry away tendu leaves, to cultivate, culture and acquire lac and to cut and carry away teak and timber and miscellaneous special of trees called hardwood and 478 bamboos. The contracts and agreements are in 'writing some of them are registered. There is no dispute about their genuineness, and it has not been alleged that they are 'collusive or fraudulent transactions. Their dates and the several sums of money paid as consideration are set out in the petitions. The petitioners allege that they have spent large sums of money in the exercise of their rights, and his fact too is not controverted. Petitions Nos. 232, 233, 286, 309 and 320 of 1951 relate to tendu leaves which grow in shrub jungles and which are used in the manufacture of beedis or country made cigarettes, a very extensive and competitive business carried on by some of the petitioners involving an outlay of one to two lakhs of rupees in some cases. For instance, 406 contracts are involved in Petition No. 232 of 1951 ; the consideration paid comes to Rs. 1,65,385 and the expenses are alleged to be in the region of Rs. 1,90,000. In Petition No. 233 of 1951 there are 785 contracts; the purchase money is Rs. 1,10,605 and the outlay byway of 'expenses is said to be Rs. 50,000. Petition No. 319 of 1951 relates to the culture and cultivation of lac, and there are several lease deeds of different dates enuring for different periods; two of them go up to the years 1966 and 1967. Teak,, timber and hardwood form the subject matter of the rights involved in Petition No. 350 of 1951 and the registered lease deed is dated 8th October, 1949, and it is for a term of ten years. Petition No. 351 of 1952 involves tendu leaves and miscellaneous forest produce and timber. Petition No. 354 of 1951 relates to bamboo forests, and Petition No. 490 of 1951 to hardwood and bamboo. The contentions of the petitioners are mainly three in number. They say that the rights acquired by them under these contracts and agreements were got before the passing of the Madhya Pradesh Abolition 479 of Proprietary Rights Act, 1950, and that the legislation therefore does not affect them. It is urged next that they are not proprietors within the meaning of the Act and consequently the Act does not apply to them. Lastly, the question is raised that the Act itself is ultra vires, as many of its material provisions offend their fundamental rights guaranteed under the Constitution. The full title of the Act is the " Madhya Pradesh, Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 ", and it is Madhya Pradesh Act I of 1951. It came into force on 26th January, 1951. On the very next day, there was a notification under section 3 of the Act putting an end to all proprietary rights in estates, mahals and alienated villages and vesting the same in the State for the purposes of the State free of all encumbrances with effect from 31st March, 1952. The validity of the Act was questioned by the affected proprietors in Visheshwar Rao vs The State of Madhya Pradesh (1) before this Court, and the Act was held to be valid. The petitioners are concluded. We have to consider only the other two points raised on behalf of the petitioners. It is clear from the provisions in the impugned Act that only those rights of the proprietor vest in the State which the proprietor had on the specified date. Section 3 provides that on and from a date to be specified by a notification by the State Government, all proprietary rights in an estate or mahal vesting in a proprietor shall pass from him to and vest in the State. The consequences of vesting are given in section 4 of the Act, and it is provided that the vesting will take place, notwithstanding anything. contained in any contract, grant or document or in any other law for the time being in force and save as otherwise provided in this Act. But this again deals only with the rights existing on the date of the notification the section is not retrospective. (1) 480 Clause (a) speaks of all rights,title and interest vesting in the proprietor or any person having interest in such propreitory right through the proprietor. Clause (b) is to this effect "all grants and confirmation Of title of or to land in the property so vesting Or Of or, to any right or privilege in respect of such property orland revenue in respect thereof shall, whether liable to resumption or not, determine;" The right or privilege referred to is the right or privilege of the proprietor or any person having interest in the proprietary right through the proprietor. Clause (c) is quite clear on the subject; it runs thus: "all rents and cossesi in respect of any holding in the property so vesting for any period after the date of vesting and which. but for the vesting, would be payable to the proprietor shall vest in and be payable to the State Government. ." The words " after the date of vesting " are important. Sub section (3) of section 4 says Nothing contained in subsection (1) shall operate as a bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting by virtue of his proprietary rights and any such sum shall be recoverable by him by any process of law which but for this Act would be available to him. " If the outgoing proprietor is entitled to, recover any sums as quid pro quo for what he has parted with under the transfer, it can only be on the basis that the transfer is a good and valid transaction unaffected by the Act. Section 6 is very material, and it is in these terms ' (1) Except as provided in sub section (2), the transfer of any right in the property 'Which is liable 481 to vest in the state under this Act made by the proprietor at any time after the 16th March, 1950, shall,. as from the date of vesting, be void. (2) Where on the. application of the transferor or the transferee, the Deputy Commissioner is satisfied that any transfer of property referred to in subsection (1) was made by a proprietor in good faith and in the ordinary course of village management, he may declare that the transfer shall, not be void* after the date of vesting. " The date, 16th March, 1950, is probably the date when legislation on these lines was actively thought of, and sub section (1) hits at transfers made after this date. This means that transfers before that date are not to be regarded as void. Even in the case of transfers after the said date, sub section (2). provides that the Deputy Commissioner may declare that they .are not void after the date of vesting, provided they were made in good faith and in the ordinary course of management. , The scheme of the Act as can be gathered from the provisions referred to above makes it reasonably clear that whatever was done before 16th March, 1950, by the proprietors by way of transfer of rights is not to, be disturbed or affected, and that what vests in the State is what the proprietors had oil the vesting date. If the proprietor had any rights after the date of vesting which he could enforce against the transferee such as a lessee or a licensee, those rights would no doubt vest in the State. In all these petitions, the several contracts and, agreements were before the date of vesting, and many of them were prior even to the 16th March, 1950. The petitioners had taken possession of the subject matter of the contracts, namely, tendu leaves, lac palsadies, teak, timber and hardwood, bamboos and miscellaneous forest produce. Under the Indian Sale of Goods Act, "goods" include growing crops, grass and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale 482 notwithstanding the definition of "immovable property " in section 3 (25) of the General Clauses Act of 1897. In Petition No. 232 of 1951 two sample agreements relating to tendu leaves are given as annexures A and B to the petitions. They may be quoted in extenso for a clear understanding of the nature of the right created. Exhibit A dated 16th November, 1950, is in these terms: " Receipt written in favour of Seth Chhotabhai Jethbai Patel Company shop Gondia, and written by Shri Madhavrao Gangadhar Rao Chitnavis shop Itan receipt is written that we are owners of forests of Tendu leaves of Monza Sawarla 0 12 0 Mauza Khatkheda 0 5 0 Mouza Nati Kheda 0 16 0 and Monza Welwa 0 16 0. We have given contract (Theka) of cutting Tendu leaves from these four villages for one year that is till the end of June for Rs. 2,500 out of this we had received Rs. 300 on 21st September, 1950, at Bhandara and the balance Rs. 2,200 was received from your Bhandara shop through Balubhai. Nothing remains to be paid to us. You have a right to coppice the trees. " The terms of Exhibit B dated 12th July, 1948, Emitting unnecessary portions are as follows: In the year 1948 A.D. theka patra is executed that in consideration of the amount received as detailed above I had given the full tendu leaves jungle for taking out tendu leaves for five years from 1949 A.D. to 1053 A.D. I have immediately given possession. Now you can take tendu leaves of the tendu leaves forests described above every year for five years till the end of June, 1953. You may coppice the plants and take leaves. At the end of June, 1953, you should return my jungle without damage or loss to me. After the end of the period it depends upon my will whether or not I give you the forests on theka (again). If any one obstructs you in coppicing or taking away leaves, I will be responsible for the damages. Hence I have executed 483 this theka pathi for five years for consideration after reading and understanding. I agree with it. Dated 12th July, 1948, by pen of Waman Sadeshic Amte Petition Writer Bhandara. " The contracts and agreements appear to be in essence and effect licenses granted to the transferees to cut, gather and carry away the produce in the shape of tendu leaves, or lac, or timber, or wood. A similar agreement came up for consideration by the Judicial Committee of the Privy Council in Mohanlal Hargovind of Jubbulpore vs Commissioner of Income tax, Central Provinces and Berar, Nagpur (1) in connection with a question arising out of the Income tax Act. Some of the observations contained in the judgment dealing with the nature of such an agreement are useful and may be quoted here : " The contracts grant no interest in land and no interest in the trees or plants themselves. They are simply and solely contracts giving to the grantees the right to pick and carry away leaves, which, of course, implies the right to appropriate them as their own property. The small right of cultivation given in the first of the two contracts is merely ancillary and is of no more significance than would be e.g., a right to spray a fruit tree en to the person who has bought the crop of apples. The contracts are short term contracts. The picking of the leaves under them has to start at once or practically at once and to proceed continuously. " There is nothing in the Act to affect the validity of the several contracts and agreements. The petitioner are neither proprietors within the meaning of the Act nor persons having any interest in the proprietary right through the proprietors. There is no provision in the Act which extinguishes their rights in favour of the State. 'What exactly is meant by a ,proprietary right " under the revenue laws has been (1).I.L.R. , 63 484 pointed out at page 217 of Volume I of Baden Powell 's Land Systems of British India, where he says: The first thing that will strike the student is the .use of the term ' proprietary right ' in these pages and in Indian Revenue Books generally. It does not occur in text books on English law or jurisprudence. I presume that the use of such a phrase is due to the ad feeling that we rarely acknowledge anything like a complete unfettered right vested in any one person. The interest in the soil has come to be virtually shared between two or even more grades, the cause of which we just now discussed. It is true that, in many cases, only one person is called ' landlord ' or ' actual proprietor ' but his right is limited; the rest of the right, so to speak, is in the hands of the other grades, even though they are called 'tenants ' or by some vague title such as ' tenure holders. ' In many cases, as we have seen, this division of right is accentuated by the use of terms like sub proprietor ' or proprietor. of his holding '. The 'proprietary right seems then a natural expression for the interest held by a landlord, when that interest is not the entire 'bundle of rights ' (which in the aggregate make up an absolute or complete estate) but only some of them, the re mainder being enjoyed by other persons. " The definitions given in the Act do not abrogate or vary this meaning. The respondent State cannot invoke in its aid section 3, sub clause (1) of the Act which speaks of the vestina of proprietary rights free of all encumbrances, because the rights of the petitioners either as buyers or lessees or licensees are not encumbrances as ordinarily understood. The last part of clause (a) of section 4 (1) indicates that mortgage debts and charges on the proprietary right are meant by encumbrances. In this view, it becomes unnecessary to consider the question as to when title in the property passes to the transferee. Section 4, sub section (3) of the Indian Sale of Goods Act which lays down that in the case of sale of future goods the contract amounts 485 only to an agreement to sell does not seem to be applicable to the contracts and agreements here, as the goods are not " future goods " as defined in subclause (6) of the Act which states that they mean goods to be manufactured or produced or acquired by the seller after the making of the contract of sale. Benjamin says in his treatise on Sale (8th Edition) at page 136: " Things not yet existing which may be sold (that is to say, a right to which may be immediately granted) are those which are said to have a potential existence, that is, things which are the natural produce, or expected increase of some thing already owned or possessed by the seller. A man may sell the crop of hay to be grown in his field, the wool to be clipped from his sheep at a future time, the milk that his cows will yield in the coming month, and similar things. Of such things there could be, according to the authorities, an immediate grant or assignment, whereas there could only be an agreement to sell where the subject of the contract is something to be afterwards acquired; as the wool of any sheep, or the milk of any cows, which the seller might buy within the year, or any goods to which he might obtain title within the next six months. " The goods covered by the present petitions are goods which have a potential existence, and according to the decisions discussed by the learned author, there can be a sale of a present right to the goods as soon as they come into existence. Whether title passes on the date of the contract itself or later is really dependent on the intention of the parties, and as already stated, in these petitions the stipulated consideration has passed from the transferees to the proprietors, and possession also has been taken. We hold that the respondent has no right to interfere with the rights of the several petitioners under the contracts and agreements in their favour set out in their petitions, and we hereby issue a writ prohibiting the State from interfering in any manner whatsoever with the enjoyment of those rights by the 486 petitioners. In cases where the periods under the contracts have expired, or where the proprietors have ill to recover anything from the transferees after he date of vesting, the State will be at perfect liberty to assert and enforce its rights standing in the shoes of the proprietors. The respondent will pay the petitioners their respective costs. Petition allowed. Agent for the petitioners in Petitions Nos. 232, 233, 286, 309 and 320 : Bajinder Narain. Agent for the petitioners in Petitions Nos. 360 and 351: M. section H. Sastri. Agent for the petitioners in Petitions Nos. 319, 354 and 490: Harbans Singh. Agent for the respondents in all petitions: G. H. Rajadhyaksha. [/INST]Certain persons were prosecuted but acquitted of a charge of having damaged a canal. Thereafter the canal officers levied special canal charges on the appellants on the basis of the conclusion that the villagers were responsible for a cut in the canal. The High Court is missed the appellants petition under articles 226 and 227 of the Constitution on the ground that the case was covered by the case of Mukundi Ram vs The Executive Engineer, decided by the High Court (LPA/FAO NO. 58 of 1954), On appeal by special leave the appellants contended that sections 3, and 4 Of the Pepsu Sirhind Canal and Western jamuna Canal Rules (Enforcement and validation) Act (No. IV of 1954) are unconstitutional being in contravention of article 20(1) of the Constitution inasmuch as they have been subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Held, that the use of water by the appellants was not an "offence" and the levy of special rates under Rules 32 and 33 of the Sirhind Canal Rules read with section 31 of the Northern India Canal and Drainage Act, i873, for such use was not the imposition of a "penalty" for an offence as contemplated under article 20(1) of the Constitution. Maqbool Hussain 's case; , , referred to. </s>

<s>[INST] Summarize the judgementN: Criminal Appeal No. 362 of 1979. Appeal by Special Leave from the Judgment and Order dated 28.2.79 of the Allahabad High Court at Allahabad in Crl. Appeal No. 3500/78 and murder reference No. 33/78. section K. Bisaria for the Appellant. H. R. Bhardwaj and R. K. Bhatt for the Respondent. The Judgment of the Court was delivered by CHANDRACHUD, C. J. The appellant 's land was auctioned on December 26, 1976 in a revenue sale held to recover arrears of land revenue. On the same day, the land of one Mool Chand was also sold for a similar reason. The deceased Bhagwan Singh, who was 269 an Amin, acted as an officer of the Court in effecting the aforesaid sales. After the sale proceedings were over, Bhagwan Singh was returning home on a bicycle, with his peon Shripat, who is examined in the case as P.W.4 The appellant, Mool Chand and the latter 's son Daya Ram lay in wait for the deceased and while he was passing along on his bicycle, Daya Ram fired three shots at him; two out of these hit Bhagwan Singh, as a result of which he fell down. A split second thereafter, the appellant emerged with a sword and chopped off the neck of Bhagwan Singh. Daya Ram is still absconding but the appellant was convicted by the Sessions Court under section 302 read with section 34 of the Penal Code and was sentenced to death. He was also convicted under section 307 of the Penal Code. The sentence of death having been confirmed by the High Court, the appellant has filed this appeal by special leave. The leave is limited to the question of sentence. We see no reason for commuting the sentence of death imposed upon the appellant to the lesser sentence of imprisonment for life. The fact that Daya Ram is absconding does not reduce the gravity of the offence committed by the appellant. Bhagwan Singh had but performed his ministerial duty as an Amin in putting the appellant 's land to sale. He bore no personal grudge against the appellant nor had he anything to gain for himself by selling the lands of the appellant and of Daya Ram. Such crimes committed against public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand. We, therefore, confirm the sentence of death passed on the appellant and dismiss the appeal. P.B.R. Appeal dismissed. [/INST]The appellants who were displaced persons were allotted land which was entered as sailab land in the revenue records and they became the owners of these lands. After the coming into force of the Punjab Security of Land Tenures Act, 1953, the Revenue Authorities proceeded to determine the permissible area of the land of the appellants under section 2(3). They allowed 50 standard acres of land to each of the appellants and declared the balance as surplus land. The appellants claimed that the lands allotted to them as displaced persons fell in a portion of District Karnal which was sailab and adna sailab and according to the classification made under the Punjab Security of Land Tenures Rules, 1953 they did not carry any valuation. The Collector dismissed their application. The Commissioner dismissed their appeals holding that the Collector was right in treating the surplus area as an unirrigated areas and valuing the same at nine annas per standard acre. A single Judge accepting the contention of the appellant in his writ petition set aside the orders of the Revenue Court. The Financial Commissioner filed an appeal which was allowed by the Division Bench and the writ petition was dismissed. In the appeals to this Court it was contended on behalf of the appellants that (1) whereas sub section (5) of section 2 of the Act directed the Government to frame Rules after considering the quantity of the yield and quality of soil, in the Rules framed by the Government the main guide lines laid down by sub section(5) were not followed, and the classification made by the Rules under Annexure 'A ' was arbitrary without determining the quantity of the yield and quality of the soil, and (2) that even if the classification made in Annexure 'A ' was valid, the Revenue Courts as also the High Courts committed an error of law in misconstruing the classification and in arbitrarily placing the surplus area in the category of unirrigated land. 331 Dismissing the appeals, ^ HELD: 1(i) The view of the single Judge is not in consonance with the scheme and spirit of the Rules framed under the Act and is based on a wrong interpretation of the nature, extent and ambit of the classification made in Annexure 'A '. The classification is in accordance with provisions of sub section (5) of section 2 of the Act and is, therefore, constitutionally valid. [337 E F, G] (ii) The Land Resettlement Manual prepared in 1952 by Tarlok Singh shows that the classification has been made in a very scientific manner after taking into consideration all the relevant factors. The Punjab Settlement Manual (4th Edition) prepared by Sir James M. Douie though possessing unimpeachable authenticity was made long ago and since then there have been great changes resulting from various steps taken by the Government for improving the nature and character of the land and the irrigation facilities. Even so, the classification made by Sir James Douie has been adhered to broadly and basically by Tarlok Singh in his Manual which forms the pivotal foundation for the schedule containing Annexure 'A ' framed under the Rules. [335H 336 C] (iii) The classifications of land like barani, sailab, abi, nehri, chahi etc. are clearly mentioned in the Punjab Settlement Manual. The Rule Making Authority has not in any way either departed from the principles mentioned in sub section(5) of section 2 of the Act or violated the guidelines contained therein, nor could it be said that the classification made under the Rules has not been made according to the quantity of yield or the quality of the soil. [336 C, D E] (iv) If the dominant object of the act was to take over the surplus area according to the formula contained in various provisions of the Act particularly sub sections (3) and (5) of section 2, there is no material on the record to show that the Rules do not fulfil or carry out the object contained in the Act. [336 G] Jagir Singh and Ors. vs The State of Punjab and Ors., 44 (1965) Lahore Law Times 143, approved. 2.(i) There was no error in the classification made by the revenue authorities. So far as Karnal District was concerned, there was no sailab land at the time when the Rules were framed and the classification was made. Even if the land in question could be treated as sailab and equated with the land in Sonepat then the valuation would have been at 12 annas which could be more deterimental to the interest of the appellants. The Collector and the Commissioner have rightly treated the land as unirrigated which is the lowest category and whose valuation is given as nine annas per acre. [338C, B] (ii) The three categories given in clauses (a), (b) and (c) of Rule 2 do not cover the land of the appellants which is sailab or adna sailab and therefore, they cannot be given the benefit of any of these three sub clauses of the proviso. [339 A] </s>

<s>[INST] Summarize the judgementition Nos. 656 660, 512 533 and 503 511 of 1977. (Under Article 32 of the Constitution) AND Review Petitions Nos. 34, 62 65, 66 72, 73 74, 75 77, 78 81, 82, 83 84, 85, 86 87, 88, 89 90, 91 92, 93 94, 95, 95A, 96, 103 107, 110, 120, 121, 122 130 of 1977. AND Writ Petition No. 63 of 1977. (Under Article 32 of the Constitution). M. N. Phadke, N. M. Ghatate (Dr.), section N. Bapat and section V. Deshpande for the Petitioners in RPs. 34, 62 95, 95A, 96, 103 107, 120 123 & WPs. 656 660, 503 511/77. M. section Gupta for the Petitioners in RPs. 110, 122 130/77. section N. Kherdikar, M. N. Ingle, A. G. Ratnaparkhi and C. K. Ratnaparkhi for the Petitioners in WPs. 512 533/77. section V. Gupte, Att. K. H. Bhatt, R. N. Sachthey and Miss A. Subhashini for R 1 in WPs. 503 511, 512 533, 656 660 & RPs. 34, 62 65/77. section V. Gupte, Att. C. J. Sawant, M. C. Bhandare, M. B. Bor & M. N. Shroff for R. 2 in WPs. 503 533 and for RR. 2 & 3 in WPs. 656 660/77. 9 section V. Gupte, Att. Gen. and Miss A. Subhashini for the Att. R. K. Rastogi, J. section Rastogi and Bardridas Sharma for the State of Rajasthan in WP No. 656/77. G. N. Dikshit and M. V. Goswami for the State of U.P. Altaf Ahmed for the State of Jammu & Kashmir in WPs. 533 & 656/77. FOR THE ADVOCATES GENERAL: U. P. Singh and Shambhunath Jha (State of Bihar). M. M. Abdul Khader and K. R. Nambiar (State of Kerala). B. M. Patnaik and R. K. Mehta (State of Orissa). K. M. K. Nair and N. Nettar (State of Karnataka). K. M. K. Nair and N. Nettar (State of Tamil Nadu). FOR THE INTERVENERS: V. N Ganpule for Pratap Rao in W.P. 503. R. K. Garg for Shyam Narain Tiwari in RP 34/77 & WP 512/77 R. N. Bannerjee, J. section Sinha and J.B.D. & Co. for Panch Valley Coal Co. and Shri Bimal Poddar in WP. 512/77. G. L. Sanghi, Miss Bhubnesh Kumari, K. J. John and J. B. D. & Co. for the Appellant Intervener Lt. Col. Himmat Singh & Ors. section B. Wad for the Applicant/Intervener in WPs. 342 & 343 of 77 and RP. 63/77. The following Order was delivered on 9th May, 1980. (1) The Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution with retrospective effect, and section 3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a new clause (1), sub clauses (a) to (e), for the original clause (1) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional, being within the constituent power of the Parliament. (2) Section 5 of the Constitution (First Amendment) Act 1951 introduced Article 31B into the Constitution which reads thus: "31B. Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provi 10 sions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force. " In Kesavananda Bharati decided on April 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure. We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional. Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure. We do not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act or Regulation included in the 9th Schedule by a constitutional amendment made after April 24, 1973 is saved by Article 31A, or by Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the 9th Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitution or its basic structure as reflected in Articles 14, 19 or 31, will become otiose. (3) Article 31C of the Constitution, as it stood prior to its amendment by section 4 of the Constitution (42nd Amendment) Act, 1976, is valid to the extent to which its constitutionality was upheld in Kesavananda Bharati. Article 31C, as it stood prior to the Constitution (42 Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure. (4) All the Writ Petitions and Review Petitions relating to the validity of the Maharashtra Agricultural Lands Ceiling Acts are dismissed with costs. The stay orders granted in these matters will stand vacated. We quantify the costs at Rs. five thousand which will be borne equally by the petitioners in Writ Petitions Nos. 656 660 of 11 1977; 512 533 of 1977; and 503 to 511 of 1977. The costs will be payable to the Union of India and the State of Maharashtra in equal measure. (5) Writ Petition No. 63 of 1977 (Baburao Samant vs Union of India) will be set down for hearing. (6) Reasons for this Order will follow later. The following Judgments were delivered: CHANDRACHUD, C.J. A ceiling on agricultural holdings was imposed in Maharashtra by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961, which was brought into operation on January 26, 1962. The ceiling fixed by that Act (the Principal Act), was lowered and certain other amendments were made to that Act by Acts 21 of 1975, 47 of 1975 and 2 of 1976. The validity of these Acts was challenged in the Bombay High Court in a large group of over 2660 petitions. A Division Bench of the High Court sitting at Nagpur repelled that challenge by a judgment dated August 13, 1976, in Vithalrao Udhaorao Uttarwar vs State of Maharashtra The High Court held that the provisions of the aforesaid Acts were not open to challenge on the ground that they were inconsistent with or took away or abridged any of the rights conferred by Part III of the Constitution, since those Acts were placed in the Ninth Schedule by the Constitution 17th Amendment Act, 1964, and the Constitution 40th Amendment Act, 1976, and also because of the promulgation of Emergency as a result of which, the rights under Articles 14 and 19 of the Constitution could not be enforced. The High Court also repelled the challenge to the validity of Article 31B itself by holding that far from damaging the basic structure of the Constitution, the Constitution (First Amendment) Act, 1951, which introduced Article 31B into the Constitution, fortified that structure by subserving a fundamental constitutional purpose. Certain provisions of the Principal Act and of the Amending Acts. particularly the concept of 'family unit ' were challenged before the High Court on the ground, inter alia, that they were outside the purview of Article 31A. On an overall consideration of the movement of agrarian reforms, with particular reference to the relevant statistics in regard to Maharashtra, the High Court rejected that challenge too on the ground that those provisions formed a part of an integral scheme of agrarian reforms under which large agricultu 12 ral holdings had to be reduced and the surplus land distributed amongst the landless and others. The appeals filed against the decision of the Bombay High Court were dismissed by this Court by a judgment dated January 27, 1977 in Dattatraya Govind Mahajan vs State of Maharashtra. The only point urged in those appeals was that the Principal Act, as amended, was void being violative of the second proviso to Article 31A(1), in so far as it created an artificial 'family unit ' and fixed the ceiling on the agricultural holdings of such family units. The argument was that the violation of the particular proviso deprived the impugned laws of the protection conferred by Article 31A. That argument was rejected by the Court on the view that even if the impugned provisions were violative of the second proviso, they would receive the protection of Article 31B by reason of the inclusion of the Principal Act and the Amending Acts in the Ninth Schedule. The Court considered whether, in fact, the provisions of the impugned Acts were violative of the second proviso and held that it was entirely for the legislature to decide what policy to adopt for the purpose of restructuring the agrarian system and the Court could not assume the role of an economic adviser for pronouncing upon the wisdom of such policy. The second proviso to Article 31A(1) was therefore held not to have been contravened. The judgment of this Court in the appeals aforesaid was delivered on January 27, 1977 while the proclamation of emergency was in operation. On the revocation of that proclamation, petitions were filed in this Court by the appellants praying for the review of the judgment in Dattatraya Govind Mahajan (Supra) on the ground that Several contentions, which were otherwise open to them for assailing the constitutional validity of the impugned Acts, could not be made by reason of the emergency and that they should be permitted to make those contentions since the emergency was lifted. Fresh Writ Petitions were also filed in the Court in which those contentions were put forward. The Court having accepted the request for the review of the judgment in Dattatraya Govind Mahajan, (supra) these matters have come before us for consideration of the other points involved in the appeals. In these proceedings, the main challenge now is to the constitutionality of Articles 31A, 31B and the unamended Article 31C of the Constitution. The various grounds of challenge to the Principal Act and the Amending Acts were met on behalf of the respondents by rely 13 ing on the provisions of these Articles which throw a protective cloak around laws of a certain description and variety, by excluding challenge thereto on the ground that they are violative of certain articles of the Constitution. The reply of the appellants and the petitioners to the defence of the respondents is, as it could only be, that the very provisions of the Constitution on which the respondents rely for saving the impugned laws are invalid, since these particular provisions of the Constitution, which were introduced by later amendments, damage or destroy the basic structure of the Constitution within the meaning of the ratio of the majority judgment in Keshavananda Bharati. Articles 14, 19, 31A. 31B, 31C (as unamended) and 368, which are relevant for our purpose, are familiar to lawyers and laymen alike, so great is their impact on law and life. Article 14, the saviour of the rule of law, injuncts that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 19 confers upon the citizens rights like the freedom of speech and expression, the right to assemble peaceably, the right to form associations, the right to move freely throughout the territory of India, the right to reside and settle in any part of India, and the right to practise any profession or to carry on any trade, business or calling. These rights make life meaningful and, without the freedoms conferred by Article 19, the goal of the Preamble will remain a dream unfulfilled. The right to property conferred by Articles 19(1)(f) and 31 was deleted by the 44th Amendment with effect from June 20, 1979. Article 31A(1) (a) provides that: Notwithstanding anything contained in article 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19. Article 31B provides that: Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is 14 inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force. Article 31C, as it existed prior to its amendment by the 42nd Amendment Act, which came into force on January 3, 1977, provided that: Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy. Articles 31A and 31B were introduced into the constitution by the Constitution (First Amendment) Act, 1951, the former with retrospective effect from the date of the enactment of the Constitution. Article 31C (unamended) was introduced by the Constitution (Twenty fifth Amendment) Act, with effect from April 20, 1972. The last clause of that article, which gave conclusiveness to the declaration regarding the policy of the particular Act, was struck down as invalid in Kesavananda Bharati (supra). That part now lives an italicized existence in official publications of the Indian Constitution. The words "the principles specified in clause (b) or clause (c) of article 39 ' were substituted by the words "all or any of the principles laid down in Part IV", by the 44th Amendment, with effect from June 20, 1979. We are concerned with Article 31C as it stood originally but, of course, without the concluding part struck down in Kesavananda Bharati (supra). Article 368 of the Constitution reads thus: "368. (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. (2) x x x x x 15 (3) Nothing in article 13 shall apply to any amendment made under this article. (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article (whether before or after the commencement of section 55 of the Constitution (Forty second Amendment Act 1976) shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article. " Clauses (4) and (5) above were inserted by section 55 of the 42nd Amendment Act 1976 with effect from January 3, 1977. Those clauses were declared unconstitutional, as being beyond the amending power of the Parliament, by a very recent decision of this Court in Minerva Mills which was pronounced on July 31, 1980. The judgment of the Court on the invalidity of clauses (4) and (5) was unanimous. The question as to whether Articles 31A(1)(a), 31B and the unamended Article 31C are valid shall have to be decided on the basis that clause (5) of Article 368 is ineffective to enlarge the Parliament 's amending power so as to empower it to make amendments which will damage or destroy any of the basic features of the Constitution and Clause (4) is ineffective to take away the power of the courts to pronounce a constitutional amendment invalid, if it damages or destroys any of the basic features of the Constitution. Thus, the main question arising before us has to be decided by applying the ratio of Kesavananda Bharati (supra), in its pristine form. It is quite another matter that learned counsel led by Shri M. N. Phadke question whether any ratio at all is discernible from the majority judgments in Kesavananda (supra). The first question to which we have to address ourselves is whether in enacting Article 31A (1) (a) by way of amendment of the Constitution, the Parliament transgressed its power of amending the Constitution. As stated earlier, Article 31A was inserted in the Constitution by section 4 of the Constitution (First Amendment) Act, 1951 with retrospective effect from the commencement of the Constitution. 16 Article 31A(1), as introduced by the 1st Amendment on June 18, 1951, read thus: 31A. (1) Notwithstanding anything in the foregoing provisions of this part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part. Article 31A was amended, with the same degree of retrospective effect again, by the Constitution (Fourth Amendment) Act, 1955. Two alterations, not substance wise material, were made by the 4th Amendment. The opening non obstante clause which originally extended to "anything in the foregoing provisions of this Part", that is to say Part III, was substituted by a clause restricted to "anything contained in Article 13". Secondly, whereas under the Article as conceived originally, the challenge to laws of agrarian reform was excluded on the broader ground of their inconsistency, abrogation, or abridgement of any of the rights conferred by "any provisions of" Part III, under the amended article the challenge is excluded in relation to the violation of the three specific articles, namely, Articles 14, 19 and 31. The 4th Amendment introduced clauses (a) to (e) in Article 31A, the content of clause (a) being the same as that of old clause (1). Clauses (b) to (e) were added newly by the 4th Amendment, comprehending laws of four other categories like laws providing for the taking over of the management of any property by the State for a limited period, laws providing for amalgamation of two or more corporations, laws providing for extinguishment or modification of rights of persons interested in corporations; and laws providing for extinguishment or modification of rights accruing under any agreement, lease or licence relating to minerals. We are not concerned in these matters with the provisions of clauses (b) to (e), though we would like to state expressly and specifically that whatever is relevant on the question of the validity of clause (a) will apply with equal force to the validity or otherwise of clauses (b) to (e). By section 7 of the Constitution (Forty fourth Amendment) Act, 1978 the reference to Article 31 was deleted from the concluding portion of Article 31A(1) with effect from June 20, 1979, as a consequence of the deletion, by section 2 of the 44th Amendment, of clause (f) of Article 19(1) which gave to the citizens the right to acquire, hold and dispose of property. The deletion of the right to property from the array of fundamental rights will not deprive the petitioners of the arguments which were available to them prior to the coming into 17 force of the 44th Amendment, since the impugned Acts were passed before June 20, 1979 on which date Article 19(1)(f) was deleted. There is no doubt, nor indeed is it disputed, that the Agricultural Lands Ceiling Acts, which are impugned in these proceedings, fall squarely within the terms of clause (a) of Article 31A(1). Those Acts provide for the extinguishment and modification of rights in an 'estate ', the expression 'estate ' being defined by clause (2) (a) (iii) to mean "any land held or let for purposes of agriculture or for purposes ancillary thereto. ". It must follow, as a necessary corollary, that the impugned Acts are entitled to the protection of Article 31A(1) (a) when the result that their provisions cannot be deemed, and therefore cannot be declared, to be void on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Articles 14, 19 or 31. This is the reason why and the contest in which the validity of Article 31A(1)(a) is itself assailed by the petitioners. If a constitutional provision, which deprives the petitioners of the benefit and protection of Articles 14, 19 and 31, is invalid, the petitioners will be entitled to challenge the impugned laws on the ground that they are inconsistent with or that they take away or abridge the rights conferred by Part III of the Constitution. Article 13(2), has a sensitive touchstone. Not only does it mandate that the State shall not make any law which takes away or abridges the rights conferred by Part III but, it provides that any law made in contravention of the clause shall, to the extent of the contravention, be void. Mere abridgement, that is to say curtailment, and not necessarily abrogation, that is to say total deprivation, is enough to produce the consequence provided for by Article 13(2). The validity of the constitutional amendment by which Article 31A(1)(a) was introduced is challenged by the petitioners on the ground that it damages the basic structure of the Constitution by destroying one of its basic features, namely, that no law can be made by the legislature so as to abrogate the guarantees afforded by Articles 14, 19 and 31. It is tautologous to say so but, if we may so put it, the obliteration of the rights conferred by these Articles, which Article 31A (1) (a) brings about, is total and complete because, as the clear and unequivocal language of that Article shows, the application of these three articles stands totally withdrawn in so far as laws falling within the ambit of clause (a) are concerned. It is no argument to say that the withdrawal of the application of certain articles in Part III in respect of laws of a defined category is not total abrogation of the articles because they will continue to apply to other situations and other laws. In any given case, what is decisive 18 is whether, in so far as the impugned law is concerned, the rights available to persons affected by that law under any of the articles in Part III is totally or substantially withdrawn and not whether the articles, the application of which stands withdrawn in regard to a defined category of laws, continue to be on the Statute Book so as to be available in respect of laws of other categories. We must there fore conclude that the withdrawal of the application of Articles 14, 19 and 31 in respect of laws which fall under clause (a) is total and complete, that is to say, the application of those articles stands abrogated, not merely abridged, in respect of the impugned enactments which indubitably fall within the ambit of clause (a). We would like to add that every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging or destroying the basic structure of the Constitution. The question as to whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of Part III is in issue and whether what is withdrawn is quint essential to the basic structure of the Constitution. The judgment of this Court in Kesavananda Bharati (supra) provoked in its wake a multi storied controversy, which is quite understandable. The judgment of the majority to which seven out of the thirteen Judges were parties, struck a bridle path by holding that in the exercise of the power conferred by Article 368, the Parliament cannot amend the Constitution so as to damage or destroy the basic structure of the Constitution. The seven learned Judges chose their words and phrases to express their conclusion as effectively and eloquently as language can do. But, at this distance of time any controversy over what was meant by what they said is plainly sterile. At 'this distance of time ', because though not more than a little less than eight years have gone by since the decision in Kesavananda Bharati (supra) was rendered, those few years are packed with constitutional events of great magnitude. Applying the ratio of the majority judgments in that epoch making decision, this Court has since struck down constitutional amendments which would otherwise have passed muster. For example, in Smt. Indira Gandhi vs Raj Narain article 329A(4) was held by the Court to be beyond the amending competence of the Parliament since, by making separate and special provisions as to elections to Parliament of the Prime Minister and the Speaker, it destroyed the basic structure of the Constitution. Ray C.J. based his decision on the ground that the 39th Amendment by which article 329A was introduced violated the Rule of Law 19 (p. 418); Khanna J. based his decision on the ground that democracy was a basic feature of the Constitution, that democracy contemplates that elections should be free and fair and that the clause in question struck at the basis of free and fair elections (pp. 467 and 471); Mathew J. struck down the clause on the ground that it was in the nature of legislation ad hominem (p. 513) and that it damaged the democratic structure of the Constitution (p. 515); while one of us, Chandrachud J., held that the clause was bad because it violated the Rule of Law and was an outright negation of the principle of equality which is a basic feature of the Constitution (pp. 663 665). More recently, in Minerva Mills, (supra) clauses (4) and (5) of Article 368 itself were held unconstitutional by a unanimous Court, on the ground that they destroyed certain basic features of the Constitution like judicial review and a limited amending power, and thereby damaged its basic structure. The majority also struck down the amendment introduced to Article 31C by section 4 of the 42nd Amendment Act, 1976. The period between April 24, 1973, when the judgment in Kesavananda Bharati (supra) was delivered and now is of course a short span in our constitutional history but the occasional challenges which evoked equal responses have helped settle the controversy over the limitations on the Parliament 's power to amend the Constitution. Khanna J. was misunderstood to mean that fundamental rights are not a part of the basic structure of the Constitution when he said in Kesavananda Bharati (supra): I have no doubt that the power of amendment is plenary and would include within itself the power to add, alter or repeal the various articles including those relating to fundamental rights. (p. 688) But he clarified the true position in his judgment in the Election Case (supra) (pages 497 499), by drawing the attention of doubters to a significant qualification 'which he had engrafted on the above statement, at pages 688 and 758 of his judgment in Kesavananda Bharati (supra). The qualification was that subject to the retention of the basic structure or framework of the Constitution, the power of amendment was plenary. The law on the subject of the Parliament 's power to amend the Constitution must now be taken as well settled, the true position being that though the Parliament has the power to amend each and every article of the Constitution including the provisions of Part III, the amending power cannot be exercised so as to damage or destroy the basic structure of the Constitution. It is by the application of this principle that we shall have to decide upon the 20 validity of the Amendment by which Article 31A was introduced. The precise question then for consideration is whether section 4 of the Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution damages or destroys the basic structure of the Constitution. In the work a day civil law, it is said that the measure of the permissibility of an amendment of a pleading is how far it is consistent with the original: you cannot by an amendment transform the original into the opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law. What were the basic postulates of the Indian Constitution when it was enacted ? And does the 1st Amendment do violence to those postulates ? Can the Constitution as originally conceived and the amendment introduced by the 1st Amendment Act not endure in harmony or are they so incongruous that to seek to harmonize them will be like trying to fit a square peg into a round aperture ? Is the concept underlying section 4 of the 1st Amendment an alien in the house of democracy? its invader and destroyer ? Does it damage or destroy the republican framework of the Constitution as originally devised and designed? These questions have a historical slant and content: and history can furnish a safe and certain clue to their answer. The relevant part of the statement of Objects and Reasons of the 1st amendment says: During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen 's right to freedom of speech and expression guaranteed by article 19(1) (a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom. The citizen 's right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to reasonable restrictions which the laws of the State may impose "in the interests of the general public." While the words cited are comprehensive enough to cover any scheme of nationalisation which the State may undertake, it is desirable to place 21 the matter beyond doubt by a clarificatory addition to article 19(6). Another article in regard to which unanticipated difficulties have arisen is article 31. The validity of agrarian reform measures passed by the State Legislatures in the last three years has, in spite of the provisions of clauses (4) and (6) of article 31, formed the subject matter of dilatory litigation, as a result of which the implementation of these important measures, affecting large numbers of people has been held up. The main objects of this Bill are, accordingly, to amend article 19 for the purposes indicated above and to insert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified State Acts in particular. The opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that may arise. In Shankari Prasad vs Union of India, Patanjali Sastri, C.J. explained the reasons that led to the insertion of Articles 31A and 31B by the 1st Amendment thus: What led to that enactment is a matter of common knowledge. The political party now in power, commanding as it does a majority of votes in the several State Legislatures as well as in Parliament, carried out certain measures of agrarian reform in Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation which may compendiously be referred to as Zamindari Abolition Acts. Certain Zamindars, feeling themselves aggrieved, attacked the validity of those Acts in Courts of law on the ground that they contravened the fundamental rights conferred on them by Part III of the Constitution. The High Court at Patna held that the Act passed in Bihar was unconstitutional while the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively. Appeals from those decisions are pending in this Court. Petitions filed in this Court by some other zamindars seeking the determinations of the same question are also pending. At this stage, the Union Government, with a view to put an end to all this litigation and to remedy what they considered to be certain defects brought to light in the working of the Constitution, brought forward a Bill to amend the Constitution, which after undergoing amendments in various particulars, 22 was passed by the requisite majority as the Constitution (First Amendment) Act, 1951. Article 31A was further amended with retrospective effect by the Constitution (Fourth Amendment) Act 1955, the object of which was explained as follows in the Statement of Objects and Reasons of that Amendment: It will be recalled that the zamindari abolition laws which came first in our programme of social welfare legislation were attacked by the interests affected mainly with reference to article 14, 19 and 31, and that in order to put an end to the dilatory and wasteful litigation and place these laws above challenge in the courts, articles 31A and 31B and the Ninth Schedule were enacted by the Constitution (First Amendment) Act. Subsequent judicial decisions interpreting articles 14, 19 and 31 have raised serious difficulties in the way of the Union and the States putting through other and equally important social welfare legislation on the desired lines, e.g., the following: (i) While the abolition of zamindaries and the numerous intermediaries between the State and the tiller of the soil has been achieved for the most part, our next objectives in land reform are the fixing of limits to the extent of agricultural land that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings. (ii) x x x x x x (iii) x x x x x x (iv) x x x x x x It is accordingly proposed in clause 3 of the Bill to extend the scope of article 31A so as to cover these categories of essential welfare legislation. The Constitution (First Amendment) Act was moved in the Provisional Parliament on May 12, 1951 as Bill No. 48 of 1951. It was referred to a Select Committee and after the receipt of its report, it was debated in the Parliament on various dates in May and June. It received the Presidential assent on June 18, 1951. The speeches made in the Provisional Parliament by Jawaharlal Nehru and other national leaders who had participated in the freedom 23 movement show, in a significant measure, the genesis of the 1st Amendment and its avowed purpose. While moving that the Bill be referred to a Select Committee, Jawaharlal Nehru said: This Bill is not a very complicated one: nor is it a big one. Nevertheless, I need hardly point out that it is of intrinsic and great importance. Anything dealing with the Constitution and change of it is of importance. Anything dealing with Fundamental Rights incorporated in the Constitution is of even greater importance. Therefore, in bringing this Bill forward I do so and the Government does so in no spirit of lightheartedness, in no haste, but after the most careful thought and scrutiny given to this problem. I might inform the House that we have been thinking about this matter for several months, consulting people, State Governments, Ministers of Provincial Governments, consulting when occasion offered itself, a number of Members of this House, referring it to various Committees and the like and taking such advice from competent legal quarters as we could obtain, so that we have proceeded with as great care as we could possibly give to it. We have brought it forward now after that care, in the best form that we could give it, because we thought that the amendments mentioned in this Bill are not only necessary, but desirable, and because we thought that if these changes are not made, perhaps not only would great difficulties arise, as they have arisen in the past few months, but perhaps some of the main purposes of the very Constitution may be defeated or delayed. The Parliamentary Debates, Part II, Volumes XII and XIII (May 15 June 9, 1951) contain the record of the speeches made while the 1st Amendment was on the anvil. We reproduce below the relevant extracts from the speeches of the then Prime Minister, Jawaharlal Nehru: The real difficulty which has come up before us is this. The Constitution lays down certain Directive Principles of State Policy and after long discussion we agreed to them and they point out the way we have got to travel. The Constitution also lays down certain Fundamental Rights. Both are important. The Directive Principles of State Policy represent a dynamic move towards a certain objective. The Fundamental Rights represent something static, to preserve certain 24 rights which exist. Both again are right. But somehow and sometime it might so happen that dynamic movement and that static standstill do not quite fit into each other. A dynamic movement towards a certain objective necessarily means certain changes taking place that is the essence of movement. (p. 8820) Now I shall proceed with the other article, the important one, namely article 31. When I think of this article the whole gamut of pictures comes up before my mind, because this article deals with the abolition of the zamindari system, with land laws and agrarian reform. I am not a zamindar, nor I am a tenant. I am an outsider. But the whole length of my public life has been intimately connected, or was intimately connected, with agrarian agitation in my Province. And so these matters came up before me repeatedly and I became intimately associated with them. Therefore I have a certain emotional reaction to them and awareness of them which is much more than merely an intellectual appreciation. If there is one thing to which we as a party have been committed in the past generation or so it is the agrarian reform and the abolition of the zamindari system. (p. 8830) Now apart from our commitment, a survey of the world today, a survey of Asia today will lead any intelligent person to see that the basic and the primary problem is the land problem today in Asia, as in India. And every day of delay adds to the difficulties and dangers, apart from being an in justice in itself. (pp 8830 8831) . it is patent that when you are out to remedy inequalities, you do not remedy inequalities by producing further inequalities. We do not want anyone to suffer. But, inevitably, in big social changes some people have to suffer. (p. 8831) How are we to meet this challenge of the times ? How are we to answer the question: For the last ten or 20 years you have said, we will do it. Why have you not done it ? It is not good for us to say: We are helpless before fate and the situation which we are to face at present. Therefore, we have to think in terms of these big changes, and changes and the like and therefore we thought of amending article 31. Ultimately we thought it best to propose additional articles 31A and 31B and in addition to that there is a Schedule 25 attached of a number of Acts passed by State Legislatures, some of which have been challenged or might be challenged and we thought it best to save them from long delays and these difficulties, so that this process of change which has been initiated by the State should go ahead. (pp. 8831 8832) The other day I was reading an article about India by a very eminent American and in that article which contained many correct statements and some incorrect statements, the author finished up by saying that India has very difficult problems to face but the most acute of them he said can be put in five words and those five words were: land, water, babies, cows and capital. I think that there is a great deal of truth in this concise analysis of the Indian situation. 8832 8833) Now I come to articles 31, 31A and 31B. May I remind the House or such Members of the House as were also Members of the Constituent Assembly of the long debates that we had on this issue. Now the whole object of these articles in the Constitution was to take away and I say so deliberately to take away the question of zamindari and land reform from the purview of the courts. That is the whole object of the Constitution and we put in some proviso etc. in regard to article 31. (p. 9082) What are we to do about it? What is the Government to do ? If a Government has not even the power to legislate to bring about gradually that equality, the Government fails to do what it has been commanded to do by this Constitution. That is why I said that the amendments I have placed before the House are meant to give effect to this Constitution. I am not changing the Constitution by an iota; I am merely making it stronger. I am merely giving effect to the real intentions of the framers of the Constitution, and to the wording of the Constitution, unless it is interpreted in a very narrow and legalistic way. Here is a definite intention in the Constitution. This question of land reform is under article 31(2) and this clause tries to take it away from the purview of the courts and somehow article 14 is brought in That kind of thing is not surely the intention of the framers of the Constitution. Here again I may say that the Bihar High Court held that view but the Allahabad and Nagpur High Courts held a contrary view. That is true. There is confusion and doubt. Are we to wait for this confusion and 26 doubt gradually to resolve itself, while powerful agrarian movements grow up ? May I remind the House that this question of land reform is most intimately connected with food production. We talk about food production and grow more food and if there is agrarian trouble and insecurity of land tenure nobody knows what is to happen. Neither the zamindar nor the tenant can devote his energies to food production because there is instability. Therefore these loud arguments and these repeated appeals in courts are dangerous to the State, from the security point of view, from the food production point of view and from the individual point of view, whether it is that of the zamindar or the tenant or any intermediary. (pp 9082 9084) (Emphasis is supplied in the passages above) These statements were made by the Prime Minister on the floor of the house after what is correctly described as the most careful deliberation and a broad based consultation with diverse interests. They were made in order to resolve doubts and difficulties and not with the intention of creating confrontation with any other arm of the Government or with the people. They stand in a class apart and convey in a language characterized by logic and directness, how the Constitution was failing of its purpose and how essential it was, in order to remove glaring disparities, to pour meaning and content into the framework of the Constitution for the purpose of strengthening its structure. Looking back over the past thirty years ' constitutional history of our country, we, as lawyers and Judges, must endorse the claim made in the speeches above that if Article 31A were not enacted, some of the main purposes of the Constitution would have been delayed and eventually defeated and that by the 1st Amendment, the constitutional edifice was not impaired but strengthened. Conscious as we are that though extraneous aids to constitutional interpretation are permissible the views of the mover of a Bill are not conclusive on the question of its objects and purposes, we will consider for ourselves the question, independently, whether the 1st and the 4th Amendments damage or destroy the basic structure of the Constitution in any manner. But before doing that, we desire only to state that these amendments, especially the 1st were made so closely on the heels of the Constitution that they ought indeed to be considered as a part and parcel of the Constitution itself. These Amendments are not born of second thoughts and they do not reflect a fresh look at the Constitution in order to deprive the people of the gains of the Consti 27 tution. They are, in the truest sense of the phrase, a contemporary practical exposition of the Constitution. Article 39 of the Constitution directs by clauses (b) and (c) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good, that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. These twin principles of State policy were a part of the Constitution as originally enacted and it is in order to effectuate the purpose of these Directive Principles that the 1st and the 4th Amendments were passed. In his address to the Allahabad Session of the Agri Economics Conference, Dr. D. R. Gadgil put a home truth succinctly by saying: "Among all resources, the supply of land is the most limited and the claimants for its possession are extremely numerous. It is, therefore, obviously unjust to allow the exploitation of any large surface of land by a single individual unless other over whelming reasons make this highly desirable. Further, in the light of the available supplies of land, labour and capital, it would be undesirable to encourage capital intensive method of production. Moreover, whatever the economics of large scale management, they should, in the congested state of our countryside, accrue to collective or co operative bodies of cultivators rather than an individual family. Lastly, in the context of the current socio political climate, re distribution of land would rather appear to be imperative. " As stated in the Report of the Committee of the Panel on Land Reforms (Government of India, Planning Commission, 1959), the policy of imposition of ceiling on agricultural lands fulfils the following objectives: "(i) meeting the wide spread desire to possess land; (ii) reducing glaring inequalities in ownership and use of land; (iii) reducing inequalities in agricultural incomes, and (iv) enlarging the sphere of self employment. " The Report of the Working Group on Land Reforms, 1978 (Ministry of Agriculture and Irrigation, Department of Agriculture) says that it was widely recognised that the imposition of ceiling on agricultural holdings and tenancy reforms constituted the substance of the agrarian reform movement and that, concentration of land in the hands of a 28 small group inhibits production, encourages concealed or irregular tenancies and results in unequal accesses to facilities of production in the rural sector. In any economy with a preponderant agricultural sector, overall growth of the economy is largely determined by growth in agricultural production and elimination of constraints on production has to be a major national priority. Studies in certain developing countries have established that the productivity of smaller holdings can conceivably be higher than that of larger holdings, primarily because the intensity of farming operations varies inversely with the size of the holding. The Report of the Working Group says in paragraph 2.1 that whether or not this is true in all situations, the production system that denies opportunities of gainful employment to large numbers of workers and leads to pronounced distortions in the distribution of economic disadvantages, needs imperative over hauling. In paragraph 2.2, the Report proceeds to say that in a predominantly agricultural society, there is a strong linkage between ownership of land and the person 's status in the social system. Those without land suffer not only from an economic disadvantage, but a concomitant social disadvantage has also to be suffered by them. In the very nature of things, it is not possible to provide land to all landless persons but that cannot furnish an alibi for not undertaking at all a programme for the redistribution of agricultural land. Agrarian reform therefore requires, inter alia, the reduction of the larger holdings and distribution of the excess land according to social and economic considerations. These then are the objectives of the Constitution and these the reasons that formed the motive force of the 1st Amendment. Article 31A (1) could easily have appeared in the original Constitution itself as an illustration of its basic philosophy. What remained to be done in the hope that vested interests will not distort the base of the Constitution, had to be undertaken with a sense of urgency and expediency. It is that sense and sensitivity which gave birth to the impugned amendment. The progress in the degeneracy of any nation can be rapid, especially in societies riven by economic disparities and caste barriers. We embarked upon a constitutional era holding forth the promise that we will secure to all citizens justice, social, economic and political, equality of status and of opportunity; and, last but not the least, dignity of the individual. Between these promises and the 1st Amendment there is discernible a nexus, direct and immediate. Indeed, if there is one place in an agriculture dominated society like ours where citizens can hope to have equal justice, it is on the strip of land which they till and love, the land which assures to them and dignity of their person by providing to them a near decent means of livelihood. 29 The First Amendment has thus made the constitutional ideal of equal justice a living truth. It is like a mirror that reflects the ideals of the Constitution; it is not the destroyer of its basic structure. The provisions introduced by it and the 4th Amendment for the extinguishment or modification of rights in lands held or let for purposes of agriculture or for purposes ancillary thereto, strengthen rather than weaken the basic structure of the Constitution. The First Amendment is aimed at removing social and economic disparities in the agricultural sector. It may happen that while existing inequalities are being removed, new inequalities may arise marginally and incidentally. Such marginal and incidental inequalities cannot damage or destroy the basic structure of the Constitution. It is impossible for any Government, howsoever expertly advised, socially oriented and prudently managed, to remove every economic disparity without causing some hardship or injustice to a class of persons who also are entitled to equal treatment under the law. Thus, the adoption of 'family unit ' as the unit of application for the revised ceilings may cause incidental hardship to minor children and to unmarried daughters. That cannot, in our opinion, furnish an argument for assailing the impugned laws on the ground that they violate the guarantee of equality. It seems to us ironical indeed that the laws providing for agricultural ceilings should be stigmatised as destroying the guarantee of equality when their true object and intendment is to remove inequalities in the matter of agricultural holding. The Note of the Panel set up by the Planning Commission in May 1959 on the adoption of 'family unit ' as the unit of application for the revised ceilings and the counter affidavit of Shri J. G. Karandikar, Deputy Secretary to the Government of Maharashtra show the relevance and efficacy of the family being treated as the real operative unit in the movement for agrarian reform. Considering the Indian social milieu, the Panel came to the conclusion that agricultural ceiling can be most equitably applied if the base of application is taken as the family unit consisting of husband, wife and three minor children. In view of this expert data, we are unable to appreciate how any law passed truly for implementing the objective of Article 31A(1) (a) can be open to challenge on the ground that it infringes Articles 14, 19 or 31. For these reasons, we are of the view that the Amendment introduced by section 4 of the Constitution (First Amendment) Act, 1951 does not damage or destroy the basic structure of the Constitution. That Amendment must, therefore, be upheld on its own merits. 30 This makes it unnecessary to consider whether Article 31A can be upheld by applying the rule of stare decisis. We have, however, heard long and studied arguments on that question also, in deference to which we must consider the alternate submission as to whether the doctrine of stare decisis can save Article 31A, if it is otherwise violative of the basic structure of the Constitution. In Shankari Prasad vs Union of India (supra) the validity of the 1st Amendment which introduced Articles 31A & 31B was assailed on six grounds, the fifth being that Article 13(2) takes in not only ordinary laws but constitutional amendments also. This argument was rejected and the 1st Amendment was upheld. In Sajjansingh vs State of Rajasthan the Court refused to reconsider the decision in Shankari Prasad (supra), with the result that the validity of the 1st Amendment remained unshaken. In Golaknath it was held by a majority of 6: 5 that the power to amend the Constitution was not located in Article 368. The inevitable result of this holding should have been the striking down of all constitutional amendments since, according to the view of the majority, Parliament had no power to amend the Constitution in pursuance of Article 368. But the Court resorted to the doctrine of prospective overruling and held that the constitutional amendments which were already made would be left undisturbed and that its decision will govern the future amendments only. As a result, the 1st Amendment by which Articles 31A and 31B were introduced remained inviolate. It is trite knowledge that Golaknath was overruled in Kesavananda Bharati (supra) in which it was held unanimously that the power to amend the Constitution was to be found in Article 368 of the Constitution. The petitioners produced before us a copy of the Civil Misc. Petition which was filed in Kesavananda Bharati, (supra) by which the reliefs originally asked for were modified. It appears thereform that what was challenged in that case was the 24th, 25th and the 29th Amendments to the Constitution. The validity of the 1st Amendment was not questioned Khanna J., however, held while dealing with the validity of the unamended Article 31C that the validity of Article 31A was upheld in shukari Prasad,(supra) that its validity could not be any longer questioned because of the principle of stare decisis and that the ground on which the validity of Article 31A was sustained will be available equally for sustaining the validity of the first part of Article 31C (page 744). Thus, the constitutional validity of Article 31A has been recognised in these four decisions, sometimes directly, sometimes indirectly and sometimes incidentally. We may mention in passing, though it has 31 no relevance on the applicability of the rule of stare decisis, that in none of the three earlier decisions was the validity of Article 31A tested on the ground that it damaged or destroyed the basic structure of the Constitution. That theory was elaborated for the first time in Kesavananda Bharati (supra) and it was in the majority judgment delivered in that case that the doctrine found its first acceptance. Though Article 31A has thus continued to be recognised as valid ever since it was introduced into the Constitution, we find it somewhat difficult to apply the doctrine of stare decisis for upholding that Article. In Ambika Prasad Mishra vs State of U.P. this very Bench delivered its judgment on May 9, 1980 rejecting the challenge to the validity of the 'Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 '. But, the question as to whether Article 31A can be upheld by applying the doctrine of stare decisis was not decided in that case. In fact, the broad consensus among the members of the Court that the question of vires of Articles 31A, 31B & 31C (unamended) will be decided in the other cases, is reflected in the following observation specifically made by one of us, Brother Krishna Iyer, J., who spoke for a unanimous Court: "In this judgment, we side step the bigger issue of the vires of the Constitutional amendments in Articles 31A, 31B and 31C as they are dealt with in other cases disposed of recently". (p. 721). Since the question of vires of these three articles was not dealt with by Brother Krishna Iyer in his judgment on behalf of the Court, we are, as previously arranged amongst us, dealing with that question in this judgment. At page 722 of the report (paragraph 5), Brother Krishna Iyer has reaffirmed this position in these words: "Thus we get the statutory perspective of agrarian reform and so, the constitutionality of the Act has to be tested on the touchstone of Article 31 A which is the relevant protective armour for land reform laws. Even here, we must state that while we do refer to the range of constitutional immunity Article 31A confers on agrarian reform measures we do not rest our decision on that provision. Independently of Article 31 A, the impugned legislation can withstand constitutional invasion and so the further challenge to Article 31 A itself is of no consequence". 32 Krishna Iyer J. has observed in the same paragraph that "The extreme argument that Article 31 A itself is void as violative of the basic structure of the Constitution has been negatived by my learned Brother, Bhagwati J., in a kindred group of cases of Andhra Pradesh". the citation of that group of cases being Thumati Venkaiah vs State of A.P. But, in that judgment too, one of us, Brother Bhagwati, who spoke for the unanimous Court, did not refer to the vires of Articles 31A, 31B and 31C. It will thus be clear that neither the one or the other of us, that is to say neither Brother Bhagwati nor Brother Krishna Iyer, dealt with the question of vires of Articles 31A, 31B and 31C which we are doing by this judgment. It has become necessary to make this clarification in view of an observation by Brother Krishna Iyer in the very same paragraph 5 of the aforesaid judgment in Ambika Prasad Mishra that the decision in Kesavananda Bharati (Supra) on the validity of Article 31A, "binds, on the simple score of stare decisis. " Brother Krishna Iyer clarified the position once again by a further caveat in the same paragraph to this effect: ". .as stated earlier, we do not base the conclusion on Article 31A". The doctrine of stare decisis is the basis of common law. It originated in England and was used in the colonies as the basis of their judicial decisions. According to Dias, the genesis of the rule may be sought in factors peculiar to English legal history, amongst which may be singled out the absence of a Code. The Normans forbore to impose an alien code on a half conquered realm, but sought instead to win as much wide spread confidence as possible in their administration of law, by the application of near uniform rules. The older the decision, the greater its authority and the more truly was it accepted as stating the correct law. As the gulf of time widened, says Dias, Judges became increasingly reluctant to challenge old decisions. The learned author cites the example of Bracton and Coke who always preferred older authorities. In fact, Bracton had compiled a Notebook of some two thousand cases as material for his treatise and employed some five hundred of them. The principle of stare decisis is also firmly rooted in American Jurisprudence. It is regarded as a rule of policy which promotes predictability, certainty, uniformity and stability. The legal system, it is 33 said, should furnish a clear guide for conduct so that people may plan their affairs with assurance against surprise. It is important to further fair and expeditious adjudication by eliminating the need to relitigate every proposition in every case. When the weight of the volume of the decisions on a point of general public importance is heavy enough, courts are inclined to abide by the rule of stare decisis, leaving it to the legislature to change long standing precedents if it so thinks it expedient or necessary. In Burnet vs Coronado Oil & Gas Co., Justice Brandeis stated that 'stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right '. While dealing with the subject of stare decisis, Shri H. M. Seervai in his book on 'Constitutional Law of India, has pointed out how important it is for judges to conform to a certain measure of discipline so that decisions of old standing are not overruled for the reason merely that another view of the matter could also be taken. The learned author has cited an Australian case in which it was said that though the court has the power to reconsider its own decisions, that should not be done upon a mere suggestion that some or all of the members of the later court may arrive at a different conclusion if the matter were res integra. The learned author then refers to two cases of our Supreme Court in which the importance of adherence to precedents was stressed. Jagannadhadas J. said in the Bengal Immunity Case that the finality of the decisions of the Supreme Court, which is the Court of last resort, will be greatly weakened and much mischief done if we treat our own judgments, even though recent, as open to reconsideration. B. P. Sinha J. said in the same case that if the Supreme Court were to review its own previous decisions simply on the ground that another view was possible, the litigant public may be encouraged to think that it is always worthwhile taking a chance with the highest Court of the land. In I.T.O. Tuticorin vs T.S.D. Nadar, Hegde J. said in his dissenting Judgment that the Supreme Court should not overrule its decisions except under compelling circumstances. It is only when the Court is fully convinced that public interest of a substantial character would be jeopardised by a previous 34 decision, that the Court should overrule that decision. Reconsideration of the earlier decisions, according to the learned Judge, should be confined to questions of great public importance. Legal problems should not be treated as mere subjects for mental exercise. An earlier decision may therefore be overruled only if the Court comes to the conclusion that it is manifestly wrong, not upon a mere suggestion that if the matter were res integra, the members of the later court may arrive at a different conclusion. These decisions and texts are of high authority and cannot be overlooked. In fact, these decisions are themselves precedents on the binding nature of precedents. It is also true to say that for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of long standing should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis. Therefore, the reason why Article 31A was upheld in the earlier decisions, if indeed it was, are not germane for the purpose of deciding whether this is a fit and proper case in which to apply that rule. But, there are four principal reasons why we are not disposed to invoke the rule of stare decisis for deciding upon the constitutionality of Article 31A. In the first place, Article 31A breathes its own vitality, drawing its sustenance from the basic tenets of our Constitution. Its unstated premise is an integral part of the very making of the Constitution and it holds, as it were, a mirror to the ideals which inspired the framing of the Constitution. The second reason why we do not want to resort to the principle of stare decisis while determining the validity of Article 31A is that neither in Shankari Prasad(Supra) nor in Sajjan Singh(Supra), nor in Golak Nath(Supra) and evidently not in Kesavananda Bharati(Supra) was the question as regards the validity as such of Article 31A raised or decided. As stated earlier, Shankari Prasad(Supra) involved the larger question as to whether constitutional amendments fall within 35 the purview of Article 13(2) of the Constitution. It was held that they did not. In Sajjan Singh (Supra), the demand for reconsideration of the decision in Shankari Prasad(Supra) was rejected, that is to say, the Court was not inclined to consider once again whether constitutional amendments are also comprehended within the terms of Article 13(2). Golak Nath (Supra) raised the question as to where the amending power was located and not whether this or that particular amendment was valid. In none of these decisions was the validity of Article 31A put in issue. Nor indeed was that question considered and decided in any of those cases. A deliberate judicial decision made after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, and the precedent by long recognition may mature into stare decisis. But these cases cannot be considered as having decided, reasons apart, that the 1st Amendment which introduced Article 31A into the Constitution is valid. Thirdly, the history of the World 's constitutional law shows that the principle of stare decisis is treated as having a limited application only. Justice William Douglas said in New York vs United States that it is a wise policy to restrict the principle of stare decisis to those areas of the law where correction can be had by legislation. Otherwise, the constitution loses the flexibility which is necessary if it is to serve the needs of successive generations. It is for that reason again that Justice Frankfurter said in U.S. vs International Boxing Club that the doctrine of stare decisis is not 'an imprisonment of reason '. Older the standing of a decision, greater the provocation to apply the rule of stare decisis. A possible mischief arising out of this position was pointed out by Justice Benjamin Cardozo in MacPherson vs Buick Motor Co. by saying that precedents drawn from the days of travel by stage coach do not fit the conditions of travel today. And alive to that possibility, Justice Brandeis said in State of Washington vs W. C. Dawson & Co. that stare decisis is merely a wise rule of action and is not a universal, inexorable command. "The instances in which the court has disregarded its admonition are many". In fact, the full form of the principle, "stare decisis et non quieta movere" which means "to stand by decisions and not to disturb what is settled", was put by Coke in its classic English version as: "Those things which have been so often adjudged ought to rest in peace". Such being the justification of the rule, it was said in James Monroe vs Frank Pape that the rele 36 vant demands of stare decisis do not preclude consideration of an interpretation which started as an unexamined assumption. We have already pointed out how the constitutional validity of Article 31A has to be deemed to have been upheld in Shakari Prasad (supra) by a process of inferential reasoning, the real question therein being whether the expression 'law ' in Article 13(2) includes law made in the exercise of constituent power. The fourth reason is the one cited by Shri Tarkunde that on principle, rules like stare decisis should not be invoked for upholding constitutional devices like Articles 31A, 31B and 31C which are designed to protect not only past laws but future laws also. Supposing Article 31A were invalid on the ground that it violates the Constitution 's basic structure, the fact that its validity has been recognised for a long time cannot justify its protection being extended to future laws or to laws which have been recently passed by the legislature. The principle of stare decisis can apply, if at all, to laws protected by these articles, if those laws have enjoyed the protection of these articles for a long time, but the principle cannot apply to the articles themselves. The principle of stare decisis permits the saving of laws the validity of which has been accepted or recognised over the years. It does not require or sanction that, in future too, laws may be passed even though they are invalid or unconstitutional. Future perpetration of illegality is no part of the doctrine of stare decisis. Our disinclination to invoke the rule of stare decisis for saving Article 31A does not really matter because we have upheld the constitutional validity of that Article independently on its own merits. Coming to the validity of Article 31B, that article also contains a device for saving laws from challenge on the ground of violation of fundamental rights. Putting it briefly, Article 31B provides that the Acts and Regulations specified in the Ninth Schedule shall not be deemed to be void or ever to have become void on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution. The provisions of the article are expressed to be without prejudice to the generality of the provisions in Article 31A and the concluding portion of the article supersedes any judgment, decree or order of any court or tribunal to the contrary. This article was introduced into the Constitution by section 5 of the Constitution (First Amendment) Act 1951, Article 31A having been introduced by section 4 of the same Amendment. 37 Article 31B has to be read along with the Ninth Schedule because it is only those Acts and Regulations which are put in that Schedule that can receive the protection of that article. The Ninth Schedule was added to the Constitution by section 14 of the 1st Amendment Act, 1951. The device or mechanism which sections 5 and 14 of the 1st Amendment have adopted is that as and when Acts and Regulations are put into the Ninth Schedule by Constitutional amendments made from time to time, they will automatically, by reason of the provisions of Article 31B, received the protection of that article. Items 1 to 13 of the Ninth Schedule were put into that Schedule when the 1st Amendment was enacted on June 18, 1951. These items are typical instances of agrarian reform legislations. They relate mostly to the abolition of various tenures like Maleki, Taluqdari, Mehwassi, Khoti, Paragana and Kulkarni Watans and of Zamindaris and Jagirs. The place of pride in the Schedule is occupied by the Bihar Land Reforms Act, 1950, which is item No. 1 and which led to the enactment of Article 31A and to some extent of Article 31B. The Bombay Tenancy and Agricultural Lands Act, 1948 appears as item 2 in the Ninth Schedule. Items 14 to 20 were added by the 4th Amendment Act of 1955, items 21 to 64 by the 17th Amendment Act 1964, items 65 and 66 by the 29th Amendment Act of 1972, items 67 to 86 by the 34th Amendment Act 1974, items 88 to 124 by the 39th Amendment Act 1975 and items 125 to 188 by the 40th Amendment Act 1976. The Ninth Schedule is gradually becoming densely populated and it would appear that some planning is imperative. But that is another matter. We may only remind that Jawaharlal Nehru had assured the Parliament while speaking on the 1st Amendment that there was no desire to add to the 13 items which were being incorporated in the Ninth Schedule simultaneously with the 1st Amendment and that it was intended that the Schedule should not incorporate laws of any other description than those which fell within items 1 to 13. Even the small list of 13 items was described by the Prime Minister as a 'long schedule '. While dealing with the validity of Article 31A we have expressed the view that it would not be proper to invoke the doctrine of stare decisis for upholding the validity of that article. Though the same considerations must govern the question of the validity of Article 31B, we would like to point out that just as there are significant similarities between Articles 31A and 31B, there is a significant dissimilarity too. Article 31A enables the passing of laws of the description mentioned in clauses (a) to (e), in violation of the guarantees afforded by Article 14 and 19. The Parliament is not required, in the exercise of its constituent power or otherwise, to undertake an examination of the laws 38 which are to receive the protection of Article 31A. In other words, when a competent legislature passes a law within the purview of clauses (a) to (e), it automatically receives the protection of Article 31A, with the result that the law cannot be challenged on the ground of its violation of Articles 14 and 19. In so far as Article 31B is concerned, it does not define the category of laws which are to receive its protection, and secondly, going a little further than Article 31A, it affords protection to Schedule laws against all the provisions of Part III of the Constitution. No act can be placed in the Ninth Schedule except by the Parliament and since the Ninth Schedule is a part of the Constitution, no additions or alterations can be made therein without complying with the restrictive provisions governing amendments to the Constitution. Thus, Article 31B read with the Ninth Schedule provides what is generally described as, a protective umbrella to all Acts which are included in the schedule, no matter of what character, kind or category they may be. Putting it briefly, whereas Article 31A protects laws of a defined category, Article 31B empowers the Parliament to include in the Ninth Schedule such laws as it considers fit and proper to include therein. The 39th Amendment which was passed on August 10, 1975 undertook an incredibly massive programme to include items 87 to 124 while the 40th Amendment, 1976 added items 125 to 188 to the Ninth Schedule in one stroke. The necessity for pointing out this distinction between Articles 31A and 31B is the difficulty which may apparently arise in the application of the principle of stare decisis in regard to Article 31B read with the Ninth schedule, since that doctrine has been held by us not to apply to Article 31A. The fourth reason given by us for not applying the rule of stare decisis to Article 31A is that any particular law passed under clauses (a) to (e) can be accepted as good if it has been treated as valid for a long number of years but the device in the form of the Article cannot be upheld by the application of that rule. We propose to apply to Article 31B read with the Ninth Schedule the selfsame test. We propose to draw a line, treating the decision in Kesavanda Bharati (supra) as the landmark. Several Acts were put in the Ninth schedule prior to that decision on the supposition that the power of the Parliament to amend the Constitution, was wide and untrammeled. The theory that the parliament cannot exercise its amending power so as to damage or destroy the basic structure of the Constitution, was propounded and accepted for the first time in Kesavananda Bharati (supra). This is one reason for upholding the laws incorporated into the Ninth schedule before April 24, 1973, on which date the judgment in 39 Kesavananda Bharti (Supra) was rendered. A large number of properties must have changed hands and several new titles must have come into existence on the faith and belief that the laws included in the Ninth schedule were not open to challenge on the ground that they were violative of Articles 14, 19 and 31. We will not be justified in upsetting settled claims and titles and in introducing chaos and confusion into the lawful affairs of a fairly orderly society. The second reason for drawing a line at a convenient and relevant point of time is that the first 66 items in the Ninth Schedule, which were inserted prior to the decision in Kesavananda Bharati, (Supra) mostly pertain to laws of agrarian reforms. There are a few exceptions amongst those 66 items, like items 17, 18, 19 which relate to Insurance, Railways and Industries. But almost all other items would fall within the purview of Article 31A (1)(a). In fact, items 65 and 66, which were inserted by the 29th Amendment, are the Kerala Land Reforms (Amendment) Acts of 1969 and 1971 respectively, which were specifically challenged in Kesavananda Bharati (supra). That challenge was repelled. Thus, in so far as the validity of Article 31B read with the Ninth schedule is concerned, we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 31B. Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution. Acts and Regulations, which are or will be included in the Ninth Schedule on or after April 24, 1973 will not receive the protection of Article 31B for the plain reason that in the face of the judgment in Kesavananda Bharati (supra) there was no justification for making additions to the Ninth schedule with a view to conferring a blanket protection on the laws included therein. The various constitutional amendments, by which additions were made to the Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the Constitution. That leaves for consideration the challenge to the constitutional validity of the unamended Article 31C. As we have stated at the beginning of this judgment, Article 31C was introduced by the Constitution (Twenty fifth Amendment) Act, 1971. Initially, it sought to give protection to those laws only which gave effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution. No such law could be deemed 40 to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Articles 14, 19 and 31. The concluding portion of the unamended article which gave conclusiveness to certain declarations was struck down in Kesavananda Bharati, (supra) Shri M. N. Phadke, who led the argument on behalf of the petitioners, built a formidable attack against the vires of Article 31C. But, with respect to the learned counsel, the effort is fruitless because the question as regards the validity of Article 31C is no longer res integra. The opening clause of Article 31C was upheld by the majority in Kesavananda Bharati (Supra) and we do not quite see how the petitioners can be permitted to go behind that decision. The learned counsel addressed to us an interesting argument on the principles governing the theory of precedent, and he argued that, in the welter of judgments delivered in Kesavananda Bharati, (Supra) it is impossible to discern a ratio because different learned Judges gave different reasons in support of the conclusions to which they came. It is well known that six learned Judges who were in minority in Kesavananda Bharti (Supra) upheld the first part of Article 31C, which was a logical and inevitable consequence of their view that there were no inherent or implied limitations on the Parliament 's power to amend the Constitution. Khanna, J. did not subscribe to that view but, all the same, he upheld the first part of Article 31C for different reasons. The question of validity of the Twenty fifth Amendment by which the unamended Article 31C was introduced into the Constitution was specifically raised before the Court and the arguments in that behalf were specifically considered by all the six minority Judges and by Khanna, J. It seems to us difficult, in these circumstances, to hold that no common ratio can be culled out from the decision of the majority of the seven Judges who upheld the validity of Article 31C. Putting it simply, and there is no reason why simple matters should be made complicated, the ratio of the majority judgments in Kesavananda Bharati (Supra) is that the first part of Article 31C is valid. Apart from this, if we are right in upholding the validity of Article 31A on its own merits, it must follow logically that the unamended Article 31C is also valid. The unamended portion of Article 31C is not like an unchartered ship. It gives protection to a defined and limited category of laws which are passed for giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39. These clauses of Article 39 contain directive principles which are vital to the well being of the country and the welfare of its people. Whatever we have said in respect of the 41 defined category of laws envisaged by Article 31A must hold good, perhaps with greater force, in respect of laws passed for the purpose of giving effect to clauses (b) and (c) of Article 39. It is impossible to conceive that any law passed for such a purpose can at all violate Article 14 or Article 19. Article 31 is now out of harm 's way. In fact, far from damaging the basic structure of the Constitution, laws passed truly and bona fide for giving effect to directive principles contained in clauses (b) and (c) of Article 39 will fortify that structure. We do hope that the Parliament will utilise to the maximum its potential to pass laws, genuinely and truly related to the principles contained in clauses (b) and (c) of Article 39. The challenge made to the validity of the first part of the unamended Article 31C therefore fails. A small, though practically important, clarification seems called for at the end of this discussion of the validity of Article 31A, 31B and 31C. We have held that laws included in the Ninth Schedule on or after April 24, 1973, will not receive the protection of Article 31B ipso facto. Those laws shall have to be examined individually for determining whether the constitutional amendments by which they were put in the Ninth Schedule, damage or destroy the basic structure of the Constitution in any manner. The clarification which we desire to make is that such an exercise will become otiose if the laws included in the Ninth Schedule on or after April 24, 1973 fall within the scope and purview of Article 31A or the unamended Article 31C. If those laws are saved by these Articles, it would be unnecessary to determine whether they also receive the protection of Article 31B read with the Ninth Schedule. The fact that Article 31B confers protection on the schedule laws against "any provisions" of Part III and the other two Articles confer protection as against Articles 14 and 19 only, will make no real difference to this position since, after the deletion of Article 31, the two provisions of Part III, which would generally come into play on the question of validity of the relevant, laws, are Articles 14 and 19. Apart from these challenges to the various constitutional amendments, the petitioners have also challenged the validity of the Constitution (fortieth Amendment) Act, 1976, by which the Amending Acts 21 of 1975, 41 of 1975 and 2 of 1976 were placed in the Ninth Schedule. It may be recalled that the Principal Act was amended by these Amending Acts. The normal term of five years of the Lok Sabha was due to expire on March 18, 1976 but, its life was extended for one year by the House of the People (Extension of Duration) Act, 1976. Yet another Act was passed by the Parliament, The House of the People (Extension of Duration) Amendment Act, 1976, by which the 42 term of the Lok Sabha was further extended by another year. The 40th Amendment was passed by the Lok Sabha on April 2, 1976 during its extended term. Since by the aforesaid two Acts, the life of the Lok Sabha was extended while both the proclamations of emergency were in operation, the petitioners challenge the proclamations of the state of Emergency, dated December 3, 1971 and June 25, 1975 as also the two Acts by which the term of the Lok Sabha was extended. The 42nd Amendment inserted clauses 4 and 5 in Article 368 with effect from January 3, 1975. Which was also during the extended term of the Lok Sabha. That Amendment too is challenged for that reason. We have struck down that amendment unanimously by our judgment in Minerva Mills (supra) for the reason that it damages the basic structure of the Constitution. Thus, we are now left to consider the validity of: (1) The Promulgation of the state of Emergency by the proclamations dated December 3, 1971 and June 25, 1975; (2) The House of the People (Extension of Duration) Act, 1976; (3) The House of People (Extension of Duration) Amendment Act, 1976, and (4) The Constitution (Fortieth Amendment) Act, 1976. The validity of all these is inter connected and the focus of the challenge is the aforesaid proclamations of Emergency. The validity of the proclamations of Emergency is challenged mainly by Shri A. K. Sen, Shri M. N. Phadke, Dr. N. M. Ghatate and by Shri P. B. Sawant who appeared in person in Writ Petition No. 63 of 1977. It is contended by the learned counsel and Shri P. B. Sawant that the Courts have jurisdiction to enquire whether the power conferred on the President by Article 352 to proclaim an emergency is properly exercised as also the power to determine whether there are any circumstances justifying the continuance of the emergency. There may sometimes be justification for declaring an emergency but if an emergency, properly declared, is allowed to continue without justification, the party in power, according to counsel, can perpetuate its rule and cling to power by extending the life of the Parliament from time to time. The provisions of Article 352 should, therefore, be interpreted in a liberal and progressive manner so that the democratic ideal of the Constitution will be furthered and not frustrated. It is urged that the threat to the security of India having completely disap 43 peared soon after the Pakistani aggression in December 1971, the continuance of the emergency proclaimed on December 3, 1971, must be held to be unjustified and illegal. A list of dates has been furnished to us by counsel in support of their argument that the emergency declared on December 3,1971, could not legitimately be continued in operation for a period of more than six years. On December 3,1971 the president issued the proclamation of emergency in face of the aggression by Pakistan, stating that a grave emergency existed whereby the security of the country was threatened by external aggression. Both the Houses of Parliament approved the proclamation on the 4th, on which date the Defence of India Act, 1971, came into force. The Defence of India Rules, 1971, framed under section 22 of the Defence of India Act, came into force on the 5th. On December 16, 1971; the Pakistani forces made an unconditional surrender in Bangladesh and on the 17th the hostilities between India and Pakistan came to an end. In February 1972, General Elections were held to the State Assemblies. On August 28, 1972 the two countries entered into an agreement for the exchange of prisoners of war, and by April 30, 1974 the repatriation of the prisoners of war was completed. On August 16, 1974 the Presidential Election was held in India. On June 25, 1975 came the second proclamation of emergency; in the wake of which a notification was issued under Article 359 on June 27 suspending the enforcement of the fundamental rights under Articles 14, 21 and 22. On February 16, 1976 the House of People (Extension of Duration) Act was passed. The normal term of the Lok Sabha expired on March 18, 1976. On April 2, 1976, the Lok Sabha passed the 40th Amendment Act by which the Maharashtra Land Ceiling Amendment Acts were put in the Ninth Schedule as Items 157, 159 and 160. On November 24, 1976 the House of People (Extension of Duration) Amendment Act was passed extending the term of the Parliament for a further period of one year. The 42nd Amendment Act was passed on November 12, 1976. The Lok Sabha was dissolved on January 18, 1977 and both the emergencies were revoked on March 21, 1977. The question as to whether a proclamation of emergency issued by the President under Article 352(1) of the Constitution raises a justiciable issue has been argued in this Court from time to time but, for some reason or the other, though the question has been discussed briefly and occasionally, there is no authoritative pronouncement upon it. We do not propose to enter into that question in this case also partly because, there is good reason to hope that in future, there will be no occasion to bring before the Court the kind of grievance 44 which is now made in regard to the circumstances in which the proclamation of emergency was issued on June 25, 1975. Section 48 of the Constitution (Forty second Amendment) Act, 1976, which came into force on January 3, 1977, has inserted clauses (2) to (8) in Article 352 which afford adequate insurance against the misuse of power to issue a proclamation of emergency. By the newly added clause (3), the President cannot issue a proclamation under clause (1) unless the decision of the Union Cabinet of Ministers that such a proclamation may be issued has been communicated to him in writing. Under clause (4), every proclamation issued under Article 352 has to be laid before each House of Parliament, and it ceases to operate at the expiration of one month, unless before the expiration of that period, it has been approved by a resolution of both the Houses of Parliament. Clause (4) provides that the proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation. The question as to whether the issuance of a proclamation of emergency is justiciable raises issues which are not easy to answer. In any event, that question can more appropriately and squarely be dealt with when it arises directly and not incidentally as here. In so far as the proclamation of December 3, 1971 is concerned, it is not disputed, and indeed it cannot be disputed, that there was manifest justification for that course of action. The danger to the security of the country was clear and present. Therefore, the attempt of the petitioners has been to assail the continuance of the state of emergency under that proclamation. From the various dates and events mentioned and furnished to us, it may be possible for a layman to conclude that there was no reason to continue the state of emergency at least after the formality of exchanging the prisoners of war was completed. But we are doubtful whether, on the material furnished to us, it is safe to conclude by way of a judicial verdict that the continuance of the emergency after a certain date became unjustified and unlawful. That inference is somewhat non judicious to draw. Newspapers and public men are entitled to prepare public opinion on the need to revoke a proclamation of emergency. They have diverse sources for gathering information which they may not disclose and they are neither bound by rules of evidence nor to observe the elementary rule of judicial business that facts on which a conclusion is to be based have to be established by a preponderance of probabilities. But Courts have severe constraints which deter them from undertaking a task which cannot judicially be performed. It was suggested that the proclamation of June 25, 1975 was actuated by mala fides. But there 45 too, evidence placed before us of mala fides is neither clear nor cogent. Thus, in the first place, we are not disposed to decide the question as to whether the issuance of a proclamation of emergency raises a justiciable issue. Secondly, assuming it does, it is not possible in the present state of record to answer that issue one way or the other. And, lastly, whether there was justification for continuing the state of emergency after the cessation of hostilities with Pakistan is a matter on which we find ourselves ill equipped to pronounce. Coming to the two Acts of 1976 by which the life of the Lok Sabha was extended, section 2 of the first of these Acts, 30 of 1976, which was passed on February 16, 1976, provided that the period of five years in relation to the then House of the People shall be extended for a period of one year "while the Proclamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in operation". The second Act of Extension continues to contain the same provision. It is contended by the petitioners that the proclamation of December 3, 1971 should have been revoked long before February 16, 1976 and that the proclamation of June 25, 1975 wholly uncalled for and was mala fide. Since the precondition on which the life of the Parliament was extended is not satisfied, the Act, it is contended, is ineffective to extend the life of the Parliament. We find it difficult to accept this contention. Both the proclamations of emergency were in fact in operation on February 16, 1976 when the first Act was passed as also on November 24, 1976 when the second Act, 109 of 1976, was passed. It is not possible for us to accept the submission of the petitioners that for the various reasons assigned by them, the first proclamation must be deemed not be in existence and that the second proclamation must be held to have been issued mala fide and therefore non est. The evidence produced before us is insufficient for recording a decision on either of these matters. It must follow that the two Acts by which the duration of the Lok Sabha was extended are valid and lawful. The 40th and the 42nd Constitutional Amendments cannot, therefore, be struck down on the ground that they were passed by a Lok Sabha which was not lawfully in existence. These then are our reasons for the order which we passed on May 9, 1980 to the following effect: "(1) The Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution with retrospective effect, and section 3 of the Constitution (Fourth Amendment) Act, 1955 46 which substituted a new clause (1), sub clause (a) to (e), for the original clause (1) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional, being within the constituent power of the Parliament. (2) Section 5 of the Constitution (First Amendment) Act 1951 introduced Article 31B into the Constitution which reads thus: "31B x x x x x x In keshvananda Bharati decided on April 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure. We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional. Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure. We do not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act Regulation included in the 9th Schedule by a Constitutional amendment made on or after April 24, 1973 is saved by Article 31A, or by Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the 9th Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitutional or its basic structure as reflected in Articles 14, 19 or 31, will become otiose. (3) Article 31C of the Constitution, as it stood prior to its amendment by section 4 of the Constitution (42nd Amendment), Act, 1976, is valid to the extent to which its constitutionality was upheld in Keshvananda Bharati. Article 31C, as it stood prior to the Constitution (42nd Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure. (4) All the Writ Petitions and Review Petitions relating to the validity of the Maharashtra Agricultural Lands Ceiling Acts are dismissed with costs. The stay orders granted in these matters will 47 stand vacated. We quantify the costs at Rs. five thousand which will be borne equally by the petitioners in Writ Petitions Nos. 656 660 of 1977; 512 533 of 1977; and 505 to 511 of 1977. The costs will be payable to the Union of India and the State of Maharashtra in equal measure. (5) Writ Petition No. 63 of 1977 (Baburao Samant vs Union of India) will be set down for hearing". This Court made an Order on 9th May, 1980 disposing of the writ petitions challenging the constitutional validity of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961 as amended from time to time by various subsequent acts. This Order was in the following terms: "(1) The Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution with retrospective effect, and section 3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a new clause (1), sub clause (a) to (e), for the original clause(1) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional, being within the constituent power of the Parliament. (2) Section 5 of the Constitution (First Amendment) Act 1951 introduced Article 31B into the Constitution which reads thus: "31B: x x x x x In Keshvananda Bharati decided on April 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure. We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional. Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the 48 Parliament since they damage the basic or essential features of the Constitution or its basic structure. We do not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act or Regulation included in the 9th Schedule by a constitutional amendment made on or after April 24, 1973 is saved by Article 31A, or by Article 31C as it stood prior to its amendment by the 42nd Amendment, the challenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the 9th Schedule, on the ground that the Amendment damages or destroys a basic or essential feature of the Constitution or its basic structure as reflected in Articles 14, 19 or 31, will become otiose. (3) Article 31C of the Constitution, as it stood prior to its amendment by section 4 of the Constitution (42nd Amendment) Act, 1976, is valid to the extent to which its constitutionality was upheld in Keshvananda Bharati. Article 31C, as it stood prior to the Constitution (42nd Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure. (4) All the writ petitions and Review Petitions relating to the validity of the Maharashtra Agricultural Lands Ceiling Acts are dismissed with costs. The stay orders granted in these matters will stand vacated. We quantify the costs at Rs. five thousand which will be borne equally by the petitioners in Writ Petitions Nos. 656 660 of 1977; 512 533 of 1977; and 505 to 511 of 1977. The costs will be payable to the Union of India and the State of Maharashtra in equal measure. (5) Writ Petition No. 63 of 1977 (Baburao Sawant vs Union of India) will be set down for hearing". No reasons were given in support of this Order but it was stated that reasons would be given later. While delivering my dissenting judgment in Minerva Mills Ltd. vs Union of India (1980)3 SCC 625 on 31st July 1980, I gave my reasons for subscribing to this Order. It is therefore not necessary to reiterate those reasons over again but they may be treated as forming part of this judgment and a copy of my judgment in Minerva Mills case may be attached as an annexure to this judgment. I may point out that pages 1 to 6 and pages 17 to 96 of the judgment in Minerva Mills case set out the reasons for the making of the order dated 9th May 1980 and I re affirm those reasons. I have had the advantage of reading the judgment just delivered by the learned Chief Justice, but I find myself unable to agree with him that "it is somewhat difficult to apply the doctrine of stare decisis 49 for upholding "Article 31A and that it would not be proper to invoke the doctrine of stare decisis for upholding the validity of that Article. " I have given reasons in my judgment for applying the doctrine of stare decisis for sustaining the constitutional validity of Article 31A, but apart from the reasons given by me in support of my view, I find that in Ambika Prasad Mishra vs State of U.P.(1) the same Bench which is deciding the present writ petitions has upheld the constitutional validity of Article 31A by applying the doctrine of stare decisis. Krishna Iyer, J. speaking on behalf of a unanimous court said in that case: "It is significant that even apart from the many decisions upholding Article 31A, Golak Nath case decided by a Bench of 11 Judges, while holding that the Constitution (First Amendment) Act exceeded the constituent power still categorically declared that the said amendment and a few other like amendments would be held good based on the doctrine of prospective over ruling. The result, for our purpose, is that even Golak Nath case has held Article 31A valid. The note struck by later cases reversing Golak Nath does not militate against the vires of Article 31A. Suffice it to say that in the Kesavananda Bharati case Article 31A was challenged as beyond the amendatory power of Parliament and, therefore, invalid. But after listening to the Marathon erudition from eminent counsel, a 13 Judge Bench of this Court upheld the vires of Article 31 A in unequivocal terms. That decision binds, on the simple score of stare decisis and the constitutional ground of Article 141. Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. In this view, other submissions sparkling with creative ingenuity and presented with high pressure advocacy, cannot persuade us to reopen what was laid down for the guidance of the nation as a solemn proposition by the epic Fundamental Rights case." (Emphasis supplied.) These observations show beyond doubt that this very Bench held Article 31 A to be constitutionally valid "on the simple score of stare decisis". It is true that Krishna Iyer, J. stated in the beginning of his judgment in Ambika Prasad Mishra 's case: "In this judgment, we side step the bigger issue of the vires of the constitutional amendments in Articles 31 A, 50 31B and 31 C as they are dealt with in other cases disposed of recently." This statement was made presumably because the learned Judge must have thought at the time when he prepared his judgment in this case that the judgment in the present writ petitions would be given before his judgment came to be delivered and on this assumption, the learned Judge did not consider it necessary to discuss the entire range of arguments relating to the constitutional validity of Articles 31 A, 31 B and 31 C. But so far as Article 31A was concerned, the learned Judge did proceed to hold that Article 31A was constitutionally valid "on the simple score or stare decisis" and the other four learned Judges subscribed to this view. It is also true that Krishna Iyer, J. did not rest his judgment entirely on the protective armour of Article 31A and pointed out that "independently of Article 31 A, the impugned legislation can withstand constitutional invasion" and sustained the validity of the impugned legislation on merits, but even so he did hold that Article 31 A was constitutionally valid on the principle of stare decisis and observed that "the comprehensive vocabulary of that purposeful provision obviously catches within its protective net the present Act, and broadly speaking, the undisputed effect of that Article is sufficient to immunise the Act against invalidation to the extent stated therein". I cannot, therefore, despite the high regard and great respect which I have for the learned Chief Justice, agree with him that the doctrine of stare decisis cannot be invoked for upholding the validity of Article 31 A, since that would be in direct contradiction of what has been held by this very Bench in Ambika Prasad Mishra vs State of U.P. (supra). KRISHNA IYER, J. While I agree with the learned Chief Justice, I must state that certain observations regarding articles 31A, 31B and 31C are wider than necessary and I do not go that far despite the decision in Minerva Mills case. I also wish to add a rider regarding the broader observations with the application of stare decisis in sustaining article 31A. I have expressly upheld article 31A by reliance on stare decisis and cannot practise a volte face without convincing juristic basis to convert me to a contrary position. I know that Justice Holmes has said: "Don 't be" consistent, "but be simply true". I also remind myself of the profound reflection of Ralph Waldo Emerson: 51 A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall. Speak what you think now in hard words and tomorrow speak what tomorrow thinks in hard words again, though it contradict every thing you said today. "Ah, so you shall be sure to be misunderstood. " Is it so bad then to be misunderstood? Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh. To be great is to be misunderstood. And yet, I hold to what I have earlier stated in Ambika Prasad Misra. (1) What the learned Chief Justice has in mind, if, with respect, I may venture to speak is that in constitutional issues over stress on precedents is inept because we cannot be governed by voices from the grave and it is proper that we are ultimately right rather than be consistently wrong. Even so, great respect and binding value are the normal claim of rulings until reversed by larger benches. That is the minimum price we pay for adoption of the jurisprudence of binding precedents. I leave it at that because the learned Chief Justice has held the impugned Act good in its own right. Enough unto the day is the evil thereof. V.D.K. Petitions dismissed. [/INST]The prosecution alleged that the petitioner, an Assistant Sub Inspector of Police, subjected one of the suspects in a theft case to severe flagellation which resulted in the death of the suspect. Medical examination of the deceased revealed that death was due to asphyxiation. On a study of the circumstances and the incontrovertible facts of flagellation and asphyxiation within police premises and the testimony of eye witnesses, the trial court found the petitioner guilty of the offence with which he was charged and sentenced him to imprisonment for life. His explanation that death was due to suicidal hanging was rejected by the trial court as well as by the High Court. Dismissing the petition, ^ HELD: There was no error either in the appreciation of evidence or the conclusion reached by the courts below. [278 D] [It is disturbing to find diabolical recurrence of police tortures resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death. Police lock ups are becoming more and more awesome cells. This development is disastrous to the human rights awareness and the humanist constitutional order.] [278 E] </s>

<s>[INST] Summarize the judgementAppeal No. 480 of 1958. Appeal by special leave from the judgment and order dated April 15, 1958, of the Orissa High Court in Misc. Appeal No. 194 of 1957, arising out of the judgment and order dated October 26, 1957, of the Election Tribunal, Puri, in Election Case No. 1/67 of 1957. Veda Vyasa and A. V. Viswanatha Sastri, R. Patnaik and Ratnaparkhi, A. G., for the appellant. H.Mahapatra and P. K. Chatterjee for G. C. Mathur, for respondent No. 1. 1958. December 18. The Judgment of the Court was delivered by IMAM, J. The appellant and the respondent No. 1 were, amongst others, candidates for election to the Orissa Legislative Assembly from the Daspalla doublemember constituency in which a seat was reserved for a scheduled caste candidate. We are not concerned with the election of the scheduled caste candidate. 120 954 For the general seat the election was contested by the appellant, respondent No. 1 and respondent No. 3. The appellant obtained 17,700 votes, respondent No. 1 15,568 votes and respondent No. 3 3,589 votes. The election was held on February 27, 1957, and the appellant was declared elected on March 5, 1957. Respondent No. 1 filed an election petition questioning, on various grounds, the election of the aPpellant. The Election Tribunal dismissed the petition holding that no grounds had been established to invalidate the election. Respondent No. 1 appealed to the High Court of Orissa against the order of the Election Tribunal. One of the grounds, amongst the many grounds, taken by Respondent No. 1 to invalidate the election of the appellant was that the nomination of respondent No. 3 was improperly accepted as he was disqualified from contesting the election being a Sarbarakar of the 10 villages in the, district of Nayagarh mentioned in the schedule to the petition. The High Court held that the office of Sarbarakar was an office of profit under the State Government of Orissa. Respondent No. 3 was accordingly disqualified from being a member of the Assembly. It, however, held that the acceptance of the nomination of respondent No. 3 had not materially affected the election of the returned candidate under el. (d) of sub section (1) of section 100 of the Representation of the People Act, 1951, hereinafter referred to as the Act. Three grounds were urged before the High Court in support of the contention that the appellant had been guilty of corrupt practice. One was that of bribery; the second was that the appellant and his agents had published a pamphlet, Exbt. 8, containing statements which were false and which he knew or believed to be false in relation to the personal character and conduct of respondent No. 1 and in relation to his candidature; and the third was, the obtaining and procuring by respondent No. 1 of assistance for the furtherance of the prospects of his election from Sarpanches of certain Grama Panchayats. With regard to the first two grounds the High Court held that the same 955 had not been established. With reference to the third ground the High Court was of the opinion that a Sarpanch of the Grama Panchayat, though not a Government servant appointed by the Government, was none the less a person in the service of the Government as he performed many of the governmental duties and was also removable by the Government and such a person came within the provisions of section 123(7)(f) of the Act. A Sarpanch exercised under the Orissa Grama Panchayats Act, 1948, hereinafter referred to as the Orissa Act, mostly governmental functions like collection of taxes, maintenance of public accounts, etc. It thought that if such a person was not brought under section 123(7)(f) there would be " a lot of undue influence exercised on the voters by these persons who in the village exercised a lot of influence considering the nature of their powers and the ideas of the village people ". The High Court accordingly allowed the appeal and set aside the appellant 's election but was of the opinion that although its finding resulted in the appellant being disqualified for membership of Parliament and the Legislature of every State for six years under section 140 of the Act, this was a fit case for the removal of the disqualification by the Election Commission under section 144 of the Act. The appellant applied to the High Court for a certificate that this was a fit case for appeal to this Court. The certificate was granted, but one of the learned Judges was in some doubt whether this was a case in which the provisions of article 133(1)(c) of the Constitution applied. On behalf of respondent No. 1 an objection had been taken that article 133(1)(c) of the Constitution did not apply and the High Court could not have certified that this was a fit case for appeal to this Court. It seems to us unnecessary to decide whether in a case of this kind the provisions of article 133(1)(c) applied because, in our opinion, even if they did not apply and the High Court could not have issued a certificate, this was just the kind of case where we would have granted special leave to appeal under article 136 of the Constitution because the appeal raised a point of law of considerable public importance. 956 In order to remove all doubts in the matter, we grant the appellant special leave to appeal against the decision of the High Court of Orissa and proceed to deal with the appeal on that basis. The Act was amended in 1956. Before the amendment the relevant portion of section 123 for the purpose of this appeal was contained in sub section (8) which % as as follows : " (8) 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 connivance of a candidate or his agent, any assistance for the furtherance of the prospects of the candidate 's election from any person serving under the Government of India or the Government of any State other than the giving of vote by such person. Explanation For the purposes of this clause (a) a person serving under the Government of India shall not include any person who has been declared. By the Central Government to be a person to whom the provisions of this clause shall not apply ; (b) a person serving under the Government of any State shall include a patwari, chaukidar, dafedar, zaildar, shanbagh, karnam, talati, talari, patil, village munsif, village headman or any other village officer, by whatever name lie is called, employed in that State, whether the office be holds is a whole time office or not, but shall not include any person (other than any such village officer as aforesaid) who has been declared by the State Government to be a person to whom the provisions of this clause shall not apply." After the amendment the relevant portion of section 123 is in sub section (7) which reads as follows: " (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person, any assistance (other than 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) stipendiary judges and magistrates; 957 (c) members of the armed forces of the Union; (d) members of the police forces; (e) excise officers; (f) revenue officers including village accountants, such as, patwaris, lekhpals, talatis, karnams and the like but excluding other village officers; and (g) such other class of persons in the service of the Government as may be prescribed. Explanation (I) 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 candidate 's election if he acts as an election agent, or polling agent or a counting agent of that candidate. " There is a material difference between the phraseology of section 123(8) before it was amended and section 123(7) as now contained in the Act. Under the former provision there was a prohibition against obtaining any assistance for the furtherance of the prospect of a candidate 's election from any person serving under the Government of India or the Government of a State other than the giving of a vote by such person. The Explanation, however, gave authority to the Central Government to declare any person serving under it to be a person to whom these provisions would not apply. In other words, unless there was such a declaration these provisions covered every person serving tinder the Government of India. Clause (b) of the Explanation further widened the meaning of any person serving under the Government of a State by including the persons specified therein and any other village officer, by whatever name he may be called, employed in that State, but the State Government was authorized to declare that any such person, other than any such village officer, to be a person to whom these provisions did not apply. The language of the provisions of section 123(8) covered a wide field and referred to every person serving under the Government of India or a 958 State unless such 'Person was declared to be one to whom the provisions would not apply. After the amendment, however, the provisions of section 123(7) are narrower in scope. These provisions apply to any person in the service of the Government belonging to the classes specified in cls. (a) to (g) and none else. For the purpose of this appeal it is el. (f) which will have to be considered, as the other clauses cannot in any case apply. The principal question for consideration is whether a Sarpanch of a Grama Panchayat constituted under the Orissa Act is a person in the service of the Government of the State of Orissa and belongs to the class specified in cl. (f) of section 123(7). Obviously, two things will have to be established before the provisions of section 123(7)(f) can apply to a Sarpanch of a Grama Panchayat constituted under the Orissa Act: (1) That such a person is in the service of the Government and (2) that he comes within the class specified in cl. It would not be enough to establish only one of these conditions. It is necessary, therefore, to decide, in the first instance, whether a Sarpanch of a Grama Panchayat under the Orissa Act is a person in the service of the Government of the State of Orissa. For this purpose, it will be necessary to consider whether any of the provisions of the Orissa Act relating to the Grama Panchayat and the duties to be discharged by the Sarpanch indicate that the Sarpanch is in the service of the Government, because independent of those provisions there is no material upon which any such conclusion can be arrived at. It was urged on behalf of the appellant that under the Orissa Act a Grama Sasan can be constituted by notification by the State Government. The Grama Sasan is to be a body corporate having perpetual succession and a common seal with power to acquire and hold property, to transfer any property held by it and to enter into contracts and to do all other things necessary for the purpose of carrying out the provi sions of the Orissa Act and to sue and be sued in its corporate name. For every Grama Sasan there shall be a Grama Panchayat and the functions of the 959 Grama Sasan shall be exercised, performed and discharged by the Grama Panchayat. The Executive power of the Grama Panchayat shall be exercised by the Sarpanch elected under section 10, who shall act under the authority of the said Grama Panchayat. The Grama Sasan shall elect, in the prescribed manner, from amongst its members an Executive Committee which will be known as the Grama Panchayat and the Grama Panchayat shall elect, in the prescribed manner, a Sarpanch. The appointment of a Sarpanch, therefore, was not by the Government. The Sarpanch was elected by the Grama Panchayat which in turn was elected by the Grama Sasan and the Grama Sasan consisted of a village or a group of contiguous villages and its members were the population residing in the Grama. As the appointment of the Sarpanch is Dot by Government, this would be one of the factors in holding that the Sarpanch was not in the service of the Government. Under section 8, the Sarpanch has to act under the authority of the Grama Panchayat. Prima facie, this would also be a factor to discountenance the theory that a Sarpanch was in the service of the Government. Another factor which would militate against the theory that a Sarpanch was in the service of the Government was that he received no remunera tion from the Government. The power to remove a Sarpanch by the State Government is stated in section 16 but the removal can only be for negligence, inefficiency or misbehaviour. This restricted power of removal was not a conclusive factor on the question whether a Sarpanch was in the service of the Government. It was accordingly urged that three important factors to be taken into consideration in deciding whether a person was in the service of the Government, namely, appointment of the person, such a person to act under the authority of the Government and one who received remuneration from Government were lacking in the case of a Sarpanch. The restricted power of removal by the Government was not a conclusive factor ' Instances were not lacking in the Municipal Acts of various States where the State Government had vested in it the power of removal of 960 a Chairman of the Municipality, but it could not be said that the members of the Municipality or their Chairman were in the service of the Government. On behalf of respondent No. 1 it was urged that the expression in service of Government" had a wider concept than the expression serving under the Government ". Exercise of governmental functions would amount to being in Government 's service. A Sarpanch could be equated with a patwari, Lekhpal, talati, karnam, etc., and it was not necessary to consider whether he was in service of Government because the word " and " before the words " belonging to any of the following classes " should be read as " or He referred to the various provisions of the Orissa Act in support of his submission that a Sarpanch must be regarded as one in service of Government. Under section 10(2) the District Magistrate was to decide the manner in which the local area of any Grama Sasan shall be divided into electoral wards and the number of members to be returned for each of such wards. Under sub section (4) of this section the number of members of a Grama Panchayat shall be fixed by the District Magistrate. Under sub section (6) if in an election the requisite number of members of a Grama Panchayat is not elected, the State Government shall appoint persons to fill up the vacancies and the Grama Panchayat so constituted, consisting of elected and appointed members, shall elect a Sarpanch from amongst its members. Under sub section (8) the State Government was empowered by notification for sufficient cause to extend the term of office of any Grama Panchayat for a period of one year. Under a. 11 the State Government may by notification direct that general election of members of a Grama Panchayat be held at any time before the expiration of the term of office of such members includ ing its Sarpanch. Under section 14 the State Government is authorized to decide any dispute or difficulty arising out of the interpretation of any of the provisions of the Orissa Act or any rule made thereunder or any difficulty which arises in the working of the Act. Under section 16 the State Government is empowered 961 to remove a Sarpanch on the ground of negligence, inefficiency, or misbehaviour. Under section 17 a Sarpanch shall give effect to the decision of the Grama Panchayat; provided that if in his opinion any such decision is subversive of peace and order in the locality or results in manifest injustice or unfairness to an individual or body of individuals or a particular community or is generally against public interest, he shall refer the matter to the Sub divisional Magistrate and thereafter act according to such directions as be may receive from such Magistrate. Under sub section (2) of this section, the Sub divisional Magistrate may, on his own motion or on the representation by the Sarpanch, set aside a decision of the Grama Panchayat, if he finds that the decision is of the nature as stated above. Under sub section (3) of section 18 the Sub divisional Magistrate may nominate any member of the Grama Panchayat to carry on the duties of the Sarpanch till a new Sarpanch is elected on the resignation of the former. Under section 22 a Grama Panchayat may, if a majority of its members so decide, with the previous approval of the Government and if the Provincial Government so direct undertake within its area the control and administration of and be responsible in the matters mentioned in cls. (a) to (y). Clause (x) refers to the doing of anything the expenditure on which is declared by the Provincial Government or by a District Board with the sanction of the Provincial Government to be an appropriate charge on the Grama Sasan 's funds. Even in the matter of appointing staff to a Grama Panchayat, under section 32 the Grama Panchayat has to prepare a scheme containing its proposals for the employment of whole time or part time staff, for their salaries and allowances and shall submit the same to the prescribed authority who shall have the power to approve or modify or reject the scheme. Section 35 refers to the liability of the members of the Grama Panchayat or of any Joint Committee or any other Committee constituted under the Orissa Act and provides for the institution of suits against them for loss, waste or misapplication of any property belonging to the 121 962 Grama Panchayat as the result of direct consequence of his neglect or misconduct while a member of the Grama Panchayat, Joint Committee or other Committee. Under sub section (3) the Provincial Government has the power to institute such a suit on its own initiative. Under section 36 all members of the Grama. Panchayat shall be deemed to be public servants and in the definition of " legal remuneration " in section 161 of the Indian Penal Code" the word " Government" for the purpose of this section shall be deemed to include a Grama Sasan or a Grama Panchayat. Under section 44(2) a Grama Panchayat with the previous sanction of the State Government may impose a tax, toll, fee or rate on matters referred to in cls. (a) to (n). Under sub section (4) the District Magistrate is authorized to review or revise the tax, toll, fee or rate imposed by Grama Panchayat. Under sub section (5) the District Magistrate may by an order in writing require the Grama Panchayat to levy or increase any tax, toll, fee or rate specified in sub section (2) subject to the conditions 'and restrictions contained therein, if in his opinion the income of the Grama Panchayat is or is likely to be inadequate for the proper discharge of the duties imposed under section 21 or undertaken under section 22. Under section 97 the District Magistrate is authorized to exercise general powers of inspection, supervision and control over the performance of the administrative duties of the Grama Panchayat. Section 98 contains the general powers of the District Magistrate and section 99 contains the emergency powers of the District Magis trate in relation to a Grama Panchayat whereby he may by an order in writing prohibit the execution or further execution of a resolution or ail order passed or made by it. Under section 117 A the State Government may delegate any of its powers. except the power to make rules, to be exercised or discharged by any officer subordinate to State Government, It was urged on behalf of respondent No. 1 that the above provisions of the Orissa Act clearly made the Grama Panchayat come under the control and supervision of the State Government and that the duties and functions of the Grama Panchayat to be performed by its 963 Sarpanch were governmental duties. It was further urged that in considering whether a Sarpanch was a person in the service of Government the essential elements to be borne in mind were the control and supervision over him by the State Government and its power to remove him from his office. Neither the absence of appointment by the State Government nor the non payment of remuneration by it would be factors indicating that he was not in the service of the Government. In our opinion, there is a distinction between I serving under the Government ' and I in the service of the Government ', because while one may serve under a Government, one may not necessarily be in the service of the Government; under the latter expression one not only serves under the Government but is in the service of the Government and it imports the relationship of master and servant. There are, according to Batt (On the Law of Master and Servant), two essentials to this relationship: (1) The servant must be under the duty of rendering personal services to the master or to others in his behalf and (2) the master must have the right to control the servant 's work either personally or by another servant or agent and, according to him, " It is this right of control or interference, of being entitled to tell the servant when to work (within the hours of service) or when not to work, and what work to do and how to do it (within the terms of such service), which is the dominant characteristic in this relation and marks off the servant from an independent contractor, or from one employed merely to give to his employer the fruits or results of his labour. In the latter case, the contractor or performer is not under his employer 's control in doing the work or effecting the service; he has to shape and manage his work so as to give the result he has contracted to effect. Consequently, a jobbing gardener is no more the servant of the person employing him than the doctor employed by a local authority to act as visiting physician to its fever hospital". None of the provisions of the Orissa Act suggest that as between the State Government and the Grama 964 Panchayat and its Sarpanch any such relationship exists. It is true that the State Government, the District Magistrate and the Sub divisional Magistrate have been given certain powers of control and supervision over the Grama Panchayat but those powers of control and supervision are in relation to the administrative functions of the Grama Panchayat and the Sarpanch. The Grama Panchayat is an autonomous body exercising functions conferred under the statute. It can hardly be said that the Grama Panchayat in so functioning is in the service of the Government. Its administrative functions are akin to the functions generally performed by Municipalities and District Boards. It would be a conception hitherto unknown to suppose that any Municipality or District Board was in the service of the Government merely because it exercised administrative functions and to some extent was under the control of the Government. Co operative societies generally are very much under the control and supervision by the State Government or one of its officers authorized in that behalf. It would be difficult to accept the suggestion that because of that a Cooperative society and its members must be regarded as in the service of the Government. Even with respect to companies, progressively, legislation has been giving power to the Government to control and supervise them. Under section 259 of the Indian , in certain circumstances, any increase in the number of its directors must be approved by the Central Government and shall become void if it is disapproved. Under section 269, in the case of a public company or a private company which is a subsidiary of a public company, the appointment of a managing or whole time director for the first time after the commencement of this Act in the case of an existing company, and after the expiry of three months from the date of its incorporation in the case of any other company, shall not have any effect unless approved by the Central Government; and shall become void if, and in so far as, it is disapproved by the Central Government. Under section 408 the Government has the power to prevent mismanagement in the affairs of the 965 Company and under the proviso in lieu of passing any order under sub section (1) the Central Government may, if the company has not availed itself of the option given to it under section 265, direct the company to amend its Articles in the manner provided in that section and make fresh appointments of directors in pursuance of the Articles as so amended, within such time as may be specified in that behalf by the Central Government. Section 409 empowers the Central Government to prevent change in the number of directors likely to affect the company prejudicially. It could not be said, because of these provisions, that a company was in the service of the Government. It seems to us, therefore, that the mere power of control and supervision of a Grama Panchayat exercising administrative functions would not make the Grama Panchayat or any, of its members a person in the service of the Government. Even if it could be said that the Grama Panchayat in the exercise of its administrative functions exercised duties in the nature of Governmental duties it could not thereby be said that its Sarpanch was in the service of the Government. So far as the Sarpanch is concerned, he is merely the executive head of the Grama Panchayat which carries out its functions through him. He is not appointed by the Government. He is not paid by the Government. He does not exercise his functions as one in the service of the Government and he can only be removed on the ground of negligence, inefficiency or misbehaviour. We have been unable to find a single provision of the Orissa Act from which we could say that a Sarpanch is a person in the service of the Government. Reference had been made on behalf of the respondent No. 1 to section 31 of the Orissa Act which authorizes the Grama Panchayat to enter into a contract with the State Government to collect all or any class of taxes or dues payable to the Government at a prescribed percentage as collection charges. As the Grama Sasan is a body corporate and the Grama Panchayat is its executive authority, the statute enabled the Grama Panchayat by provisions of section 31 to enter into a contract with the State Government to collect its taxes and its dues. It 966 cast no obligatory duty upon the Grama Panchayat to collect such taxes or dues of the Government. No provision of the Orissa Act has been placed before us by which the State Government could order a Grama Panchayat to collect its taxes or its dues. Furthermore, under el. (b) to section 31, a Grama Panchayat is authorized to enter into similar contracts with proprietors or land holders to collect their rents. The provisions of section 31 militate against the theory that the Grama Panchayat is in the service of the Government. There would be no occasion for such a provision if the Grama Panchayat was in the service of the Government in which case it would have to carry out the orders of the Government to collect its taxes or its dues. Even if on a reasonable construction of the provisions of the Orissa Act it could be held that a Sarpanch of the Grama Panchayat was a person in the service of the Government, it would have to be further held that he was of the class of officers mentioned in section 123(7)(f). Clause (f), in the first instance, speaks of a person in the service of the Government who is a revenue officer and then further extends the class to village accountants. The words " such as patwaris, lekhpals, talatis, karnams and the like " are merely descriptive of the words " Revenue officers including village accountants". Under cl. (f) it is essential that a person in the service of the Government must be a revenue officer or a village accountant, by whatever name such officer or village accountant may be described. The exclusion of every other village officer from the provisions of cl. (f) compels the conclusion that before this clause can apply to a Sarpanch of the Grama Panchayat under the Orissa Act it must be proved that he is either a revenue officer or a village accountant. The mere fact that under section 31 of the Orissa Act a Grama Panchayat is enabled to enter into a contract with the State Government to collect its taxes or its dues cannot convert a Sarpanch into a revenue officer. No doubt a Grama Panchayat would have to supervise and maintain village and field boundary marks and village records if required to do 967 so by the State Government under section 21(r) of the Orissa Act. In the present case there is no proof that the Grama Panchayats in question were required to do any such thing by the Government. It is significant that under section 54(1)(xiv) of the Orissa Act it is a choukidar appointed under that Act by the District Magistrate on whom a statutory duty is cast to keep watch over boundary marks and report to the Grama Panchayat any loss or damage caused to the boundary marks defining villages. The Grama Panchayat, however, has not been assigned positively any functions under the Orissa Act which are discharged by a revenue officer. The provisions of section 21(r) would not by itself convert a Sarpanch of a Grama Panchayat into a revenue officer. Similarly, there is no provision of the Orissa Act which shows that a Sarpanch is a village accountant. It had been suggested on behalf of respondent No. 1 that if it could be established that a Sarpanch was a revenue officer or a village accountant, then the very fact that he was such a person made him a person in the service of the Government. It is doubtful whether any such necessary conclusion arises, but there is no need to make further reference to this submission as, in our opinion, a Sarpanch of the Grama Panchayat under the Orissa Act is neither a revenue officer nor a village accountant. It follows, therefore, that in the present case the two essential elements that a Sarpanch must be a person in the service of the Government and that he belongs to the class mentioned in cl. (f) of sub section (7) of section 123 have not been established. Even if one of them had been established and not the other the provisions of section 123(7) would not apply to such a person. In our opinion, the High Court erred in supposing that because a. Sarpanch of a Grama Panchayat under the Orissa Act exercised governmental duties he must be regarded as a person in the service of the Government. The High Court did not give any clear finding that a Sarpanch, even if a person in the service of the Government, was either a revenue officer or a village accountant. In our opinion, the provisions of section 123(7) do not apply to him. Therefore, it cannot. be said that 968 any corrupt practice under section 123 had been established in the case and the election of the appellant could not be set aside on the only ground on which his election had been set aside by the High Court. The appeal is accordingly allowed with costs and the election petition of 'respondent No. 1 is dismissed. Appeal allowed. [/INST]In exercise of the powers under section 3 Of the Essential Com modities Act, 1955, and under cl. 5 of the Sugar (Control) Order, 1955, the Government of India issued a notification dated July 30, 1958, fixing the ex factory price per maund of sugar produced in Punjab, Uttar Pradesh and North Bihar. The petitioners challenged the legality of the notification on the grounds (1) that it was beyond the ambit of authority conferred on the Central Government under section 3 of the Essential Commodities Act, 955, and clause 5 Of the Sugar (Control) Order, 1955, and that, in any case, it was bad as it could not subserve the purposes of the Act ensuring equitable distribution of the commodity to the consumer at a fair price, (2) that the Act and the Order did not authorise the Central Government to fix ex factory prices, and,, in any case, the notification failed to fix prices for the ultimate consumer, (3) that it imposed an unreasonable restriction on the right to trade under article 10(1)(g), inasmuch as it fixed the price arbitrarily, and there was no reasonable safeguard against the abuse of power, and (4) that it was discriminatory because it fixed ex factory prices only for factories in Punjab, Uttar Pradesh and North Bihar and not for factories in other parts of India and there was no reasonable classification discernible on any intelligible differentia on the basis of which prices had been controlled in certain regions only. Held, (1) The notification dated July 30, 1958, is within the authority conferred on the Central Government by section 3 Of the , and cl. 5 of the Sugar (Control) Order,1955. (2) Section 3 of the Act which provides for control of price is very general in terms and authorises the Central Government to fix the ex factory price of sugar without fixing the wholesale or retail prices; and, since fair prices for the consumer are ensured by fixing the ex factory price, the notification in question subserves the purposes of the Act, and is valid. (3) Clause 5 of the Sugar (Control) Order, 1955, lays down the factors which have to be taken into consideration in fixing prices, and as the prices were fixed in accordance therewith, the 124 action taken by the Government in the interests of the general public could not be challenged on the ground that it was an unreasonable restriction on the right to carry on trade under article 19(1)(g) of the Constitution. (4) Though under the notification prices are fixed for fac tories only in Punjab, Uttar Pradesh and North Bihar, in effect, they are fixed for the whole of India, as the other States are deficit ; consequently, the notification brought about no discrimination between different regions. </s>

<s>[INST] Summarize the judgementNo. 254 of 1968. Petition under article 32 of the Constitution of India for the enforcement of fundamental rights. V. M. Tarkunde, V. M. Limaye and section section Shukla for the petitioners. V. section Desai, M. C. Bhandare and section P. Nayar, for the res pondent. The Judgment of the Court was delivered by P. Jagamohan Reddy, J. The petitioner challenges the vires of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1964 (Maharashtra Act XXXI of 1965) (hereinafter referred to as the 'impugned Act '). The parent Act is the Bombay Tenancy and Agricultural Lands Act 1948 (Bombay Act XLVII of 1948) (hereinafter referred to as 'the parent Act '). In 1956 the State Legislature amended the parent Act by Bombay Tenancy and Agricultural Lands (Amendment) Act 1956 (Bombay Act XIII of 1956) (hereinafter referred to as 'the Amendment Act ') which came into force on 1st August 1956. The State of Bombay undertook legislation in furtherance of its policy of social welfare and to give effect to agrarian reform. The parent Act was passed by the Bombay State Legislature in order to amend the law which governed the relationship between the landlord and tenants of agricultural lands, the object sought to be achieved being as indicated in its preamble that "on account of the neglect of a landholder or disputes between the landlord and his tenants, the cultivation of his estate has as a result suffered or for the purposes of improving the economic and social conditions of peasant or ensuring the full and efficient use of land for agriculture, it is expedient to assume management of estates held by the landholders and to regulate and impose restrictions on transfer of agricultural lands, dwelling houses, sites and lands 663 appurtenant thereto belonging to or occupied by agriculturists, agricultural labourers and artisans in the province of Bombay and to make provisions for certain other purposes". By the Constitution first Amendment Act 1951 the parent Act was included in the Ninth Schedule and came within the pur view of article 31B of the Constitution. In 1956 the State Legislature in order to implement the directive principles of the State Policy set out in Aft. 38 and 39 of the Constitution of India by seeking to promote the welfare of the tenants, the landless peasants and labourers and to enable them to acquire land and with a view to bring about equitable distribution of ownership of land, passed the amendment Act which received the assent of the President on March 16, 1956. This Act made further changes in the relationship of landlord and tenants which were more drastic. The main effect of the amendments of Section 32 to 32 B was that on the 1st April 57 (hereinafter referred to as the tiller 's day) every tenant was, subject to the other provisions deemed to have purchased from his landlord free of all encumbrances subsisting thereon, on the said day, the land held by him as a tenant subject to certain conditions (vide Section 32). The tenant under Section 32 A was deemed to have purchased the land up to the ceiling area. It was further provided by Section 32 B that if a tenant held the land partly as owner and partly as tenant, but the area of the land held by him as owner is equal to or exceeds the ceiling area he shall not be deemed to have purchased the land held by him as a tenant under Section 32. Section 32 E provided that the balance of any land after the purchase by the tenant under Section 32 shall be disposed of in the manner laid down in Section 15 as if it were land surrendered by the tenant. Section 32 F further provided that in the case of disabled landholders namely minors, widows or persons subject to any mental or physical disability or where the tenants are equally disabled as aforesaid or where they are members of the Armed Forces, the tiller 's day was postponed by one year after the cessation of disability. As a result of the Amendment Act, on the 1st of April, 1957 the relationship of landlord and tenant came to an end, the landholder ceased to be a tenure holder and the title thereto was vested in the tenants defeasible only on certain specified contingencies. The relationship of landholder and tenant was thus transformed into a relationship of a creditor and debtor, the erstwhile landlord being entitled only to recover the price fixed under the provisions of the Amendment Act in the manner provided therein under Section 32G read with 32H, the price which. was to be paid by the tenant Was to be determined by the tribunal as soon 664 as may be after the tiller 's day and in the manner provided thereunder subject however to the amount so determined not being less than 20 times and not more than 200 times of the assessment. An appeal against the decision of the Tribunal was provided to the State Govt. under Section 32 J. The mode of payment by the tenant of the price fixed by the Tribunal is prescribed under Section 32 K which shall be payable in annual instalments not exceeding 12, with simple interest at 4 1/2% per annum, on or before the said dates as may be prescribed by the Tribunal and 'the tribunal shall direct that the amount deposited in lumpsum or the amount of instalments deposited shall be paid to the former landlord. The landlord however did not have the right to recover the amount by recourse to a Court of law. The only way in which he could recover it if the instalments were not duly paid by the tenant voluntarily was by an application to the concerned authorities under the Revenue recovery Act to recover it as arrears of land revenue (Section 32 L) which provision it may be stated was subsequently deleted by the impugned Act under Section 32 M. On the payment of the price either in lumpsum or of the last instalment of such price the tribunal was required to issue a certificate in the prescribed form to the tenant purchaser in respect of the land, which certificate shall be the conclusive evidence of purchase. If the tenant fails to pay the lumpsum within the period prescribed for, or is at any time in arrears of four instalments the purchase was to be ineffective and the land was to be put at the disposal of the Collector and any amount deposited by such tenant towards the price of the land was to be refunded to him. It 'is important to note that Section 32 P provides that if the tenant fails to exercise his right to purchase or the sale becomes ineffective on account of default of payment of purchase price the tenant shall be evicted and the land shall be surrendered to the former landlord. Sections 32 Q and 32 R provide that the amount of purchase price was to be applied towards the satisfaction of debts and the purchaser was to be evicted from the land purchased by him as aforesaid if he fails to cultivate the land personally. The Amendment Act was challenged by a petition under article 32 but this Court held that it is protected by article 31A of the Constitution and is therefore valid. We shall presently refer to that decision but the petitioner 's grievance is against the changes that have been affected by the impugned Act in the law as it stood after Amendment Act. It is the contention of the learned Advocate for the Petitioner that he changes that transgress the fundamental rights of the petitioner are (1) that if the tenant does not pay the instalments by the end of twelve years but before the end of the period he makes an application that he is at the time incapable of paying the arrears within the time and 665 pays one instalment together with the interest on the total amount of one year 's instalment, the period of payment is extended by another 12 years. (2) where he fails to pay the price in lumpsum or is in arrears of four instalments where the number of instalments fixed is four or more and the purchase has thereby become ineffective even then if he was in possession of the land on the 1st of May '65 and files an application within six months therefrom or from the date of default of the payment of price in lumpsum or of the last instalment whichever is later and applies to the tribunal to condone the default on the ground that there being sufficient reason as he was incapable of paying the price in lumpsum or the instalment within the time, the tribunal can if it is satisfied condone the default and allow further time, in the case of payment of lumpsum one year and for payment of arrears in the case where payment is by instalments by increasing the total number of instalments to sixteen. (3) Even when the arrears are not paid as required under the law during the extended period and sale becomes ineffective and the tenant purchaser has nevertheless continued in possession, the landlord has no right to have the tenant purchaser evicted, till the tribunal admits that it has failed to recover the amount of the purchase price. Shri Tarkunde contends that these changes have effected the petitioner 's right to property in that he has neither the right to recover the amount through a Court of law nor has he any hope of recovering it through the procedure prescribed by the impugned Act within any reasonable time; that in spite of the fact that under the previous law the sale had become ineffective under 32 H or 32 G by the default of the tenant purchaser to pay the price the Collector under 32 P was required to give possession to the landlord but under the impugned Act that right has become illusory because the landholder has no effective remedy either to recover the amount or to recover the land and that all that the tenant has to do is to sit tight, he need not apply for extension nor need he pay the instalment nor is there any time fixed for the tribunal to determine that it has failed in the efforts to recover the amount under the revenue recovery Act. No distinction in fact, it is said, has been made between a person who is unable to pay and one who will not pay. In view of these contentions 'it is necessary to point out that this very petitioner had challenged the constitutionality of the Amendment Act in Sri Ram Ram Narain Medhi vs State of Bombay (1) on the ground that it was beyond the competence of the legislature; that legislation not being protected by article 31(A) had infringed articles 14, 19 and 31 of the Constitution; and that it was a piece of colourable legislation vitiated in part by excessive (1) ; 666 delegation of legislative power to the State. On behalf of the Respondent, it was urged that the impugned legislationfall within entry 18 in List II of the Seventh Schedule to the Constitution, that it provided for the extinguishment or modification of rights to estates and was as such protected by article 31 A of the Constitution and that there was no excessive delegation of legislative power. This Court held (1) that the legislation fell within entry 18 of List II and therefore the legislature was competent to enact the Amendment Act; (2) that the word estate applied to landholders as defined by Section 2(5) of the Bombay Land Revenue Code which is equally applicable to tenure holders and occupants of unalienated lands; (3) that the word 'landholder ' as defined in Section 2(9) of the parent Act made no distinction between alienated and unalienated lands and showed that the interest of the landholder fell within the definition of 'estate ' contained in Section 2(5) of the Bombay Land Revenue Code ; (4) that there was no warrant for the proposition that extinguishment or modification of any rights in estates as contemplated by article 3 1 A(.1) (a) of the Constitution must mean only what happened in the process of acquisition of any estate or of any rights therein by the State. The language of the Article was clear and unambiguous and showed that it treated the two concepts as distinct and different from each other, and (5) that Sections 32 to 32 R of the Amendment Act contemplated the vesting of title in the tenure on the tiller 's day defeasible only on certain specified contingencies and intended to bring about an extinguishment or modification of rights in the estate within the meaning of article 31A(1)(a) of the Constitution. For the aforesaid reasons it was held that the Amendment Act was not vulnerable as being violative of articles 14, 19 and 31 of the Constitution. This decision concludes the most important question whether the petitioner 's fundamental rights are infringed under articles 14, 19 and 31 as the parent Act as well as the amending Act is now protected by article 31A of the Constitution. Neither the question of discrimination nor of compensation or its adequacy can be gone into nor can the unreasonableness of the provisions under which the landlords title has been extinguished nor the manner in which the price is to be paid can be challenged. Once it has been held that article 31A applies the petitioner cannot complain that his rights under articles 14, 19 and 31 of the Constitution have been infringed. This protection is available not only to Acts which come within its terms but also to Acts amending such Acts to include new items of property or which change some detail of the scheme of the Act provided firstly that the change 667 is not such as would take it put of article 31A or by itself is, not such as would not be protected by it and secondly that the assent of the President has been given to the amending statute. To put it differently as long as the amendment also relates to a scheme of agrarian reforms providing for the acquisition of any estate or of any right thereunder or for extinguishment or modification of such right the mere transfer of the tenure from one person to another or the payment of the price in instalment or even the postponement of payment by a further period cannot be challenged under articles 14, 19 and 31. In this case we have noticed that the impugned legislation has merely amended that provision which related to the recovery of the amounts from the tenant who has become purchaser and the postponement of the time, of ineffectiveness of sale till the tribunal has tried and failed to recover the amount from the tenant purchaser. The only way under which the petitioner could have recovered the amounts under the Amendment Act was by an application to the Collector under the Revenue Recovery Act for collecting it as arrears of land revenue but that provision under Section 32 L has now been deleted. While the vesting of the title of the tenure in the erstwhile tenant is still defeasible only on certain specified contingencies as was before the impugned Act it only modified the previous provisions to the extent that the erstwhile tenant has been given the benefit of having the payment postponed or instalments increased by requiring the tribunal to make an enquiry as to whether there were sufficient reasons for the tenant purchaser making a default and if it is satisfied to condone the delay and extend the period of payment. It also vested in the tribunal instead of the Collector the power to make the recovery on behalf of the landholder. It may also be noticed that under the impugned Act the sale still becomes ineffective as was under the amendment Act when the amount is not recovered with this difference that under the former it has to be shown that the tenant purchaser was not in a position to pay. No doubt before the impugned Act, if the tenant purchaser did not pay, the Collector could take action under the revenue recovery Act to recover the amount and if he did not recover it the sale became ineffective and the landlord could be put in possession by evicting the tenant purchaser provided he was entitled to get possession of it under the Act, as when his holdings do not come within the ceiling. The basic position still remains the same after the impugned Act and there is nothing in the Amendment Act which is destructive of the scheme of agrarian reform which the legislation seeks to implement and which is protected under article 31A of the Constitution. This view of ours is amply borne out also by the statement of objects and reasons which impelled the legislature to state the difficulty that was being felt in the implementation of the agrarian 668 land reforms and indicate how it sought to find a remedy and got over it. This is what was stated "According to provisions of Section 32 K, 32 L and 32 M of the Bombay Tenancy Agricultural Land Act 1942; it is left to the tenant to deposit with the tribunal the purchase of the land which is deemed to have been purchased by him under Section 32 of that Act. If he fails to deposit the price in lumpsum or instalments the purchase becomes ineffective and under Section 32 P the tenant can be summarily evicted from the land. It has been brought to the notice of the Government that in the case of an Act a large number of tenants specially belonging to the Scheduled Caste and Scheduled Tribe, the purchase is in danger of being ineffective for failure to deposit the sale price on due dates. It is noticed that these tenants being illiterate and socially backward have failed to deposit the amount more out of ignorance than willful default. Unless therefore immediate steps are taken to provide for recovery of purchase price through Government agency a large number of tenants are likely to be evicted from their lands due to purchase becoming ineffective. This will result in defeating the object of the tenancy legislation. To avoid this result, it is therefore considered that the agricultural lands tribunal showed be empowered to recover the, purchase price from tenants as arrears of land revenue and until the tribunal has failed to recover the purchase price, the purchase should not become ineffective. It is also considered that the benefit of these provisions should be given to tenants whose purchase has already become ineffective but who have not yet been evicted from their lands under Section 32 P. This bill is intended to achieve these objects". We do not therefore think that the impugned Act has in any way affected the main purpose of the Act or the object which it seeks to achieve nor do the amendments effected thereby take the provisions out of the protection given to it under article 31A of the Constitution. Shri Tarkunde has referred us to the case of Maharana Shri Jayvantsinghji Ranmalsinghji etc. vs The State of Gujarat (1) in support of his contention that the impugned Act infringes article 19(1)(f) of the Constitution and is not saved by clause 5 thereof as the provisions of the said Act are unreasonable in that the indefinite postponement of the recovery of the price makes the payment thereof illusory, and even after the sale has become ineffective the landholder is not entitled to recover the land. What fell for determination in the case referred to was whe ther as a result of the provisions of the Bombay Land Tenure (1) [1966] Supp. S.C.R. 411. 669 Abolition Laws (Amendment) Act 1958, particularly under Sec tions 3 and 4 read with Section 6 thereof certain non permanent tenants were deemed to have become permanent tenants as from the commencement of the Bombay Taluqdari Tenure Abolition Act 1949 and thereby became entitled to acquire the tenure on payment of 6 times the assessment or 6 times the rent instead of atleast the minimum of 20 times to 200 times the assessment which right infringed the fundamental right of the landlord to acquire hold and dispose of property. This result it was contended had substantially deprived the petitioners of the right which they acquired on the tiller 's day by reason of the provisions contained in Section 32 and other provisions in the parent Act as amended from time to time. The majority held that the provisions of Sections 3, 4 and 6 of the Bombay Land Tenure Abolition Laws (Amendment) Act, 1958 insofar as they deemed some tenants as permanent tenants in possession of Taluqdari land were unconstitutional and void in that under the guise of changing the definition of a permanent tenant and changing a rule of evidence, it really reduced the purchase price that the petitioners were entitled to receive from some of their tenants on the 'tiller 's day ' under Section 32 H of the parent Act. It would appear from the Judgment of section K. Das, J. speaking for himself and Sinha C.J., that the constitutional validity of the relevant provisions of the Taluqdari Abolition Act 1949 and the parent Act read with the Amendment Act had not been challenged before them. The decision of Dhirubha Devisingh Gohil vs The State of Bombay (1) and Shri Ram Ram Narain Medhi vs The State of Bombay (1) were cited as upholding the constitutionality of the relevant provisions of those 2 Acts. After pointing out that what has been challenged before them was the constitutional validity of the Bombay Act LVII of 1958 particularly the provisions 3, 4 and 6 of that Act, and referring to the earlier decision that this Court had held that Sections 32 to 32 R of parent Act read with the Amendment Act were designed to bring about an extinguishment or in any event a modification of the landlords rights in the estate within the meaning of article 31A(1)(a) of the Constitution, it was observed that the right which the petitioners got of receiving the purchase price was undoubtedly a right to property guaranteed under article 19(1)(f) of the Constitution and was not saved by clause 5 thereof nor are the cases before them protected by article 31A. section K. Das, J. gave the following reasoning for the aforesaid conclusion at page 438 439 : "The petitioners have three kinds of tenants permanent tenant protected tenants, and ordinary tenants. On (1) ; (2) [1959] Suppl. 1 S.C.R. 489. 670 April 1, 1957, the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price under ' section 32H. If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with section 83 of the Revenue Code. Such a claim could be contested by the tenure holder whenever made by the tenant. But by the impugned Act 1958, all this was changed, and unless the tenure holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant. We are unable to hold that the six months ' limit imposed by section 5 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of article 19(5) of the Constitution. " The decision in the above case is clearly inapplicable to the facts and circumstances of the case before us and consequently in the view we have taken this petition is dismissed with costs. G.C. Petition dismissed. [/INST]In March 1969, the respondent State issued a notification under section 4 of the Land Acquisition Act, 1894, as amended by the Punjab Legislature, for acquisition of the appellants ' land. The notification stated that the land was likely to be required to be taken by Government, at public expense, for a public purpose, namely,. the setting up of a factory for the starting of an industry and, further that action under section 17(2)(c) would be taken on the, ground of urgency and provisions of section 5A will not apply in regard to the said acquisition. The appellants filed a writ petition in the High Court questioning the validity of the acquisition on the ground, inter alia, that there was no urgency in the mattelr, of requiring the land ', therefore recourse to section 17 was not justified. The state government pleaded that since the Government of India had extended the time for completion of the project till April 30, 1969, it, had become necessary to take immediate steps to acquire the land. The High Court dismissed the petition. In the appeal to this Court it was contended that (i) the acquisition in question being one for the benefit of a Company, proceedings should have been taken under sections 38 to 44B of the Act,, and that there was no public purpose involved in the case; (ii) there was no urgency and hence recourse could not be had to section 17 of the Act; and (iii) section 17(2) (c) was inapplicable to the facts of the case, because, though section 17(2)(c) read by itself covered a very large field, applying the ejusdem generis Rule that provision had to be given a narrower meaning because of the provisions of section 17(2)(a) and (b). Dismissing the appeal, HELD : (i) On the facts of the case the purpose for which land was acquired was a public purpose. The question whether the starting of an industry is in public interest or not is essentially a question that has to be decided by the Government. So long as it is not established that the acquisition is sought to be made for some collateral purpose or that there is a colourable exercise of power the declaration of the government that it is made for a public purpose is not open to challenge. [874 E G] Smt; Somavanti and Ors vs State of Punjab, [1963] 2 S.C.R. 774 and Raja Anand Brahma Shah vs State of U.P., ; , referred to. In view of the fact that the State Government had contributed towards the cost of acquisition it was not necessary to proceed with the acquisition under Part VII of the Act. [875 A] 8 7 2 (ii) On the facts of the case there was urgency. The conclusion of the Government in a given case that there was urgency is entitled to weight, if not conclusive. (iii) In interpreting cl. (c) of section 17(2) the rule of ejusdem generis, ,cannot be applied. If a given provision is plain and unambiguous and the legislative intent is clear there is no occasion to call into aid that rule. Under cls. (a), (b) and (c) of sub section (2) of section 17 the decision to acquire, land has not to be made by the same authority but by different authorities. Further, the conditions under which the acquisition has to be made differ from clause to clause. Therefore, there is no basis to say that the general words in cl. (c) follow the particular and specific words in cls. (b) and (c). [877 E; 879 H] State of Bomby vs Ali Gulshan, , Lilavati Bai vs Stat of Bombay, ; , K, K. Kochuni vs State of Madras, A.I.R. 1960 S.C. 1050, referred to. </s>

<s>[INST] Summarize the judgementCivil Appeal No. 364 of 1981. Appeal by special leave from the Award dated the 31st May, 1980 of the Additional Labour Court, Delhi in Industrial I.D. No. 62 of 1976. V. M. Tarkunde, Hemant Sharma and P. H. Parekh for the Appellant. section Markendaya for the Respondent. The Judgment of the Court was delivered by DESAI, J. The appellant Mohan Lal was employed with the respondent M/s Bharat Electronics Limited as Salesman at its Delhi 521 Sales Depot on a salary of Rs. 520 per month from 8th December, 1973. His service was abruptly terminated by letter dated 12th October 1974 with effect from 19th October, 1974. Consequent upon this termination, an industrial dispute was raised and the Delhi Administration, by its order dated 24th April, 1976 referred the following dispute to the Labour Court, Delhi for adjudication: "Whether the termination of services of Shri Mohan Lal is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?" As the respondent management at one stage failed to participate in the proceedings, the reference was heard ex parte and the Labour Court made an award on 2nd May, 1977 directing reinstatement of the appellant with continuity of service and full back wages at the rate of Rs. 520 per month from the date of termination till reinstatement. Subsequently, respondent moved for setting aside the ex parte award and seeking permission to participate in the proceedings, which motion was granted. The respondent inter alia contended that the appellant was a salesman appointed on probation for six months and subsequently on the expiry of the initial period, the period of probation was extended upto 8th Sept., 1974 and on the expiry of this extended period of probation, his service was terminated by letter dated 12th October, 1974, as he was not found suitable for the post to which he was appointed. The Labour Court, on evaluation of evidence both oral and documentary, held that the termination of the service was in accordance with the standing orders justifying the removal of the employee on unsuccessful probation during the initial or extended period of probation; and therefore the termination in this case, according to the Labour Court, would not constitute retrenchment within the meaning of section 2(oo) read with section 25F of the Industrial Dispute Act. Accordingly it was held that the termination was neither illegal nor improper nor unjustified and the claim of the appellant was negatived. Hence, this appeal by special leave. The only point for determination is whether even in the circumstances, as pleaded by the respondent termination of service of the appellant would amount to retrenchment within the meaning of the expression as defined in section 2(oo) of the Industrial Dispute Act, 1947 (`Act ' for short)? If the answer is in affirmative, the consequential question will have to be answered whether in view of 522 the admitted position that the mandatory pre condition prescribed by section 25F for a valid retrenchment having not been satisfied, the appellant would be entitled to reinstatement with back wages or as contended by Mr. Markandey in the special facts of this case, the Court should not direct reinstatement but award compensation in lieu of reinstatement. An apparent contradiction which stares in the eye on the stand taken by the respondent is overlooked by the Labour Court which has resulted in the miscarriage of justice. In this context the facts as alleged by the respondent may be taken as true. Says the respondent, that the appellant was appointed by order dated July 21, 1973. The relevant portion of the order of which notice may be taken is paragraph 2. It reads as under: "This appointment will be temporary in the first instance but is likely to be made permanent. " Paragraph 4 refers to the consequences of a temporary appointment, namely, that the service would be terminable without notice and without any compensation in lieu of notice on either side. Paragraph 6 provides that the employment of the appellant shall be governed by rules, regulations and standing orders of the company then in force and which may be amended, altered or extended from time to time and the acceptance of the offer carries with it the necessary agreement to obey all such rules, regulations and standing orders. There is not even a whisper of any period of probation prescribed for the appointment nor any suggestion that there are some rules which govern appointment of the appellant which would initially be on probation. Thus, the appointment was temporary in the first instance and there was an inner indication that it was likely to be made permanent. Even if this promise of likely to be made permanent is ignored, indubitably the appointment was temporary. The respondent, however, says that note 3 at the foot of the appointment order intimates to the appellant that in the event of his permanent appointment the temporary service put in by him will be counted as part of probationary period of service as required under the rules. This consequence would follow in the event of permanent appointment being offered and this is clear from the language employed in note 3. In this case no permanent appointment having been offered, the consequence set out in note 3 could not have emerged. Assuming, however, that this note incorporates all the necessary rules and regulations in the contract of employment, it was incumbent upon 523 the respondent to show that even when appointment is not shown to be on probation in the order of appointment, in view of the rules governing the contract of employment there shall always be a period of probation for every appointee. Witness Bawdekar who appeared on behalf of the respondent stated in his evidence that the appellant was appointed as a probationary salesman. Even according to him prescribed period of probation was six months. He then stated that by the letter dated July 10, 1974, respondent informed the appellant that his service should have been terminated on the expiry of initial period of probation, i.e. on June 8, 1974. However, as a special case the probation period was extended upto September 8, 1974. No rule was pointed out to us enabling the respondent to extend the initial period of probation. Assuming even then that such was the power of the respondent, on September 9, 1974, the period of probation having not been further extended nor termination of service having been ordered during or at the end of the probationary period on the ground of unsuitability, the consequence in law is that either he would be a temporary employee or a permanent employee as per the rules governing the contract of employment between the appellant and the respondent. Admittedly his service was terminated by letter dated October 12, 1974, with effect from October 19, 1974. It is not the case of the respondent that there was any further extension of the probationary period. Thus, if the initial appointment which was described as temporary is treated on probation, even according to the respondent the period of probation was six months, it expired on June 8, 1974. Even if by the letter dated July 10, 1974, the period of probation was said to have been extended, on its own terms it expired on September 8, 1974. The service of the appellant was terminated with effect from October 19, 1974. What was the nature and character of service of the appellant from September 8, 1974 when the extended period of probation expired and termination of his service on October 19, 1974? He was unquestionably not on probation. He was either temporary or permanent but not a probationer. How is it open then to the Labour Court to record a finding that the service of the appellant was terminated during the period of probation on account of his unsatisfactory work which did not improve in spite of repeated warnings? The Labour Court concluded that notwithstanding the fact that the appellant was not shown to have been placed on probation in the initial appointment letter but in view of the subsequent orders there was a period of probation prescribed for the appellant and that his service was terminated during the extended period of 524 probation. This is gross error apparent on the face of the record which, if not interfered with, would result in miscarriage of justice. If on October 19,1974, the appellant was not on probation and assuming maximum in favour of the respondent that he was a temporary employee, could termination of his service. even according to the respondent, not as and by way of punishment but a discharge of a temporary servant, constitute retrenchment within the meaning of section 2(oo), is the core question. Section 2(oo) reads as under: "2(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workman on the ground of continued ill health. " Niceties and semantics apart, termination by the employer of the service of a workman for any reason whatsoever would constitute retrenchment except in cases excepted in the section itself. The excepted or excluded cases are where termination is by way of punishment inflicted by way of disciplinary action, voluntary retirement of the workman, retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf, and termination of the service of a workman on the ground of continued ill health. It is not the case of the respondent that termination in the instant case was a punishment inflicted by way of disciplinary action. If such a position were adopted, the termination would be ab initio void for violation of principle of natural justice or for not following the procedure prescribed for imposing punishment. It is not even suggested that this was a case of voluntary retirement or retirement on reaching the age of superannuation or absence on account of continued ill health. The case does not fall under any of the excepted categories. There is thus termination of 525 service for a reason other than the excepted category. It would indisputably be retrenchment within the meaning of the word as defined in the Act. It is not necessary to dilate on the point nor to refer to the earlier decisions of this Court in view of the later two pronouncements of this Court to both of which one of us was a party. A passing reference to the earliest judgment which was the sheet anchor till the later pronouncements may not be out of place. In Hariprasad Shivshankar Shukla vs A.D. Divikar, after referring to Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union, a Constitution Bench of this Court quoted with approval the following passage from the aforementioned case: "But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment. " This observation was made in the context of the closure of an undertaking and being conscious of this position, the question of the correct interpretation of the definition of the expression `retrenchment ' in section 2(oo) of the Act was left open. Reverting to that question, the view was reaffirmed but let it be remembered that the two appeals which were heard together in Shukla 's case were cases of closure, one Barsi Light Railway Company Ltd., and another Shri Dinesh Mills Ltd. Baroda With specific reference to those cases, in State Bank of India vs N. Sundara Money, Krishna Iyer J. speaking for a three judges bench, interpreted the expression `termination. for any reason whatsoever ' as under: "A break down of section 2(oo) unmistakably expands the semantics of retrenchment. `Termination. for any reason whatsoever ' are the key words. Whatever the reason, every termination spells retrenchment. So, the sole question is has the employee 's service been terminated ? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master of the running out of the stipulated term. To pro 526 tect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of section 25F and section 2(oo). Without speculating on possibilities, we may agree that `retrenchment ' is no longer terra incognita but area covered by an expansive definition. It means `to end, conclude, cease '. In the present case the employment ceased, concluded, ended on the expiration of nine days automatically may be, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from section 25F(b) is inferable from the proviso to section 25F(1). True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract section 25F and automatic extinguishment of service by effluxion of time cannot be sufficient. " It would be advantageous to refer to the facts of that case to appreciate the interpretation placed by this Court on the relevant section. State Bank of India appointed the respondent by an order of appointment which incorporated the two relevant terms relied upon by the Bank at the hearing of the case. They were: (i) the appointment is purely a temporary one for a period of 9 days but may be terminated earlier, without assigning any reason therefor at the Bank 's discretion; (ii) the employment, unless terminated earlier, will automatically cease at the expiry of the period i.e. 18.11.1972. It is in the context of these facts that the Court held that where the termination was to be automatically effective by a certain date as set out in the order of appointment it would nonetheless be a retrenchment within the meaning section 2(oo) and in the absence of strict compliance with the requirements of section 25F, termination was held to be invalid. Continuing this line of approach, in Hindustan Steel Ltd. vs The Presiding Officer, Labour Court, Orissa and Ors., a bench of three judges examined the specific contention that the decision in Sundara Money 's case runs counter to the construction placed on that section by a Constitution Bench and, therefore, the decision is 527 per incuriam. This Court analysed in detail Shukla 's case and Sundara Money 's case and ultimately held that the Court did not find anything in Shukla 's case which is inconsistent with what has been held in Sundara Money 's case. In reaching this conclusion it was observed that in Shukla 's case the question arose in the context of closure of the whole of the undertaking while in Hindustan Steel 's case and Sundara Money 's case the question was not examined in the context of closure of whole undertaking but individual termination of service of some employees and it was held to constitute retrenchment within the meaning of the expression. This question again cropped up in Santosh Gupta vs State Bank of Patiala. Rejecting the contention for reconsideration of Sundara Money 's case on the ground that it conflicted with a Constitution Bench decision in Shukla 's case and adopting the ratio in Hindustan Steel 's case that there was nothing in the two aforementioned decisions which is inconsistent with each other and taking note of the decision in Delhi Cloth and General Mills Ltd. vs Shambu Nath Mukerjee wherein this Court had held that striking off the name of a workman from the rolls by the management was termination of service which was retrenchment within the meaning of section 2(oo), the Court held that discharge of the workman on the ground that she had not passed the test which would enable her to obtain confirmation was retrenchment within the meaning of section 2(oo) and, therefore, the requirements of section 25F had to be complied with. It was pointed out that since the decision in Shukla 's case, the Parliament stepped in and introduced section 25FF and section 25FFF by providing that compensation shall be payable to workman in case of transfer or closure of the undertaking, as if the workmen had been retrenched. The effect of the amendment was noticed as that every case of termination of service by act of employer even if such termination was as a consequence of transfer or closure of the undertaking was to be treated as `retrenchment ' for the purposes of notice, compensation, etc. The Court concluded as under: "Whatever doubts might have existed before Parliament enacted sections 25FF and 25FFF about the width of section 25F there cannot be any doubt that the expression `termination of service for any reason whatsoever ' now covers every kind of termination of service except those not 528 expressly provided for by other provisions of the Act such as sections 25FF and 25FFF." Reverting to the facts of this case, termination of service of the appellant does not fall within any of the excepted, or to be precise, excluded categories. Undoubtedly therefore the termination would constitute retrenchment and by a catena of decisions it is well settled that where pre requisite for valid retrenchment as laid down in section 25F has not been complied with, retrenchment bringing about termination of service is ab initio void. In State of Bombay and Ors. vs The Hospital Mazdoor Sabha and Ors. , this Court held that failure to comply with the requirement of section 25F which prescribes a condition precedent for a valid retrenchment renders the order of retrenchment invalid and inoperative. In other words, it does not bring about a cessation of service of the workman and the workman continues to be in service. This was not even seriously controverted before us. It was, however, urged that section 25F is not attracted in this case for an entirely different reason. Mr. Markendaya contended that before section 25F is invoked, the condition of eligibility for a workman to complain of invalid retrenchment must be satisfied. According to him unless the workman has put in continuous service for not less than one year his case would not be governed by section 25F. That is substantially correct because the relevant provision of section 25F provides as under: "25F. "No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until: (a) the workman has been given one month 's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service; 529 (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent of fifteen days ' average pay (for every completed year of continuous service) or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate government by notification in the Official Gazette). " Before a workman can complain of retrenchment being not in consonance with section 25F, he has to show that he has been in continuous service for not less than one year under that employer who has retrenched him from service. Section 25B is the dictionary clause for the expression `continuous '. It reads as under; "25B (1) a workman shall be paid to be in continuous service for a period if he is, for that period in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case; 530 (b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made has actually worked under the employer for not less than (i) ninety five days, in the case of a workman employed below ground in a mine; and (ii) one hundred and twenty days, in any other case. Explanation For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which (i) he has been laid off under an agreement or as permitted by standing orders made under the , or under this Act or under any other law applicable to the industrial establishment; (ii) he has been on leave with full wages, earned in the previous years; (iii)he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and (iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks. Mr. Markendaya contended that clauses (I) and (2) of section 25B provide for two different contingencies and that none of the clauses is satisfied by the appellant. He contended that sub section (I) provides for uninterrupted service and sub section (2) comprehends a case where the workman is not in continuous service. The language employed in sub sections (1) and (2) does not admit of this dichotomy. Sub sections (1) and (2) introduce a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter VA. Sub section (1) provides a deeming fiction in that where a workman is in service 531 for a certain period he shall be deemed to be in continuous service for that period even if service is interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on the part of the workman. Situations such as sickness, authorised leave, an accident, a strike not illegal, a lockout or a cessation of work would ipso facto interrupt a service. These interruptions have to be ignored to treat the workman in uninterrupted service and such service interrupted on account of the aforementioned causes which would be deemed to be uninterrupted would be continuous service for the period for which the workman has been in service. In industrial employment or for that matter in any service, sickness, authorised leave, an accident, a strike which is not illegal, a lockout and a cessation of work not due to any fault on the part of the workman, are known hazards and there are bound to be interruptions on that account. Sub section (I) mandates that interruptions therein indicated are to be ignored meaning thereby that on account of such cessation an interrupted service shall be deemed to be uninterrupted and such uninterrupted service shall for the purposes of Chapter VA be deemed to be continuous service. That is only one part of the fiction. Sub section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicating in sub section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in clause (a) of sub section (2). The conditions are that commencing the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter VA. It is not necessary for the purposes of sub section (2) (a) that the workman should be in service 532 for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of sub section (1) his case would be governed by sub section (1) and his case need not be covered by sub section (2). Sub section (2) envisages a situation not governed by sub section (1). And sub section (2) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in sub section 2(a) it is necessary to determine first the relevant date, i.e., the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in sub section 2(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in section 25F. On a pure grammatical construction the contention that even for invoking sub section (2) of section 25B the workman must be shown to be in continuous service for a period of one year would render sub section (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumption. The contention must first be negatived on a pure grammatical construction of sub section (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render sub section (2) otiose. The language of sub section (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it. But as Mr. Markandaya referred to some authorities, we will briefly notice them. In Sur Enamel and Stamping Works (P) Ltd. vs Their Workmen, referring to section 25B as it then stood read with section 2(eee) which defined continuous service, this Court held as under: "The position therefore is that during a period of employment for less than 11 calendar months these two 533 persons worked for more than 240 days. In our opinion that would not satisfy the requirement of section 25B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more. For, in any case, the requirements of section 25B would not be satisfied by the mere fact of the number of working days being not less than 240 days. " If section 25B had not been amended, the interpretation which it received in the aforementioned case would be binding on us. However, section 25B and section 2(eee) have been the subject matter of amendment by the Industrial Disputes (Amendment) Act, 1964. Section 2(eee) was deleted and section 25B was amended. Prior to its amendment by the 1964 amendment Act, section 25B read as under: "For the purposes of sections 25C and 25F a workman who during the period of 12 calendar months has actually worked in an industry for not less than 240 days, shall be deemed to have completed one year of continuous service in the industry. " We have already extracted section 25B since its amendment and the change in language is the legislative exposition of which note must be taken. In fact, we need not further dilate upon this aspect because in Surendra Kumar Verma and Ors. vs Central Government Industrial cum Labour Court, New Delhi and Anr., Chinnappa Reddy. J., after noticing the amendment and referring to the decision in Sur Enamel and Stamping Works (P) Ltd case, held as under: "These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less 534 than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months, it is not necessary that he should have been in the service of the employer for one whole year. " In a concurring judgment Pathak J. agreed with this interpretation of section 25B(2). Therefore, both on principle and on precedent it must be held that section 25B(2) comprehends a situation where a workman is not in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date, i.e. the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of section 25B and Chapter VA. Reverting to the facts of this case, admittedly the appellant was employed and was on duty from December 8, 1973 to October 19, 1974 when his service was terminated. The relevant date will be the date of termination of service, i.e. October 19, 1974 Commencing from that date and counting backwards, admittedly he had rendered service for a period of 240 days within a period of 12 months and, indisputably, therefore, his case falls within section 25B(2) (a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapter VA. Appellant has thus satisfied both the eligibility qualifications prescribed in section 25F for claiming retrenchment compensation. He has satisfactorily established that his case is not covered by any of the excepted or excluded categories and he has rendered continuous service for one year. Therefore, termination of his service would constitute retrenchment. As pre condition for a valid retrenchment has not been satisfied the termination of service is ab initio void, invalid and inoperative. He must, therefore, be deemed to be in continuous service. The last submission was that looking to the record of the appellant this Court should not grant reinstatement but award compensation. If the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that 535 he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance Co. Ltd vs Chopra (P.P.), and Hindustan Steel Ltd. Rourkela vs A. K. Roy and Others it was held that the Court before granting reinstatement must weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the Courts in the field of social justice and we do not propose to depart in the case. Accordingly, this appeal is allowed and the Award of the Labour Court dated May 31, 1980, is set aside. We hold that the termination of service of the appellant was ab initio void and inoperative and a declaration is made that he continues to be in service with all consequential benefits, namely, back wages in full and other benefits, if any. However, as the Award is to be made by the Labour Court, we remit the case to the Labour Court to make an appropriate Award in the light of the findings of this Court. The respondent shall pay the costs of the appellant in this Court quantified at Rs. 2000 within four weeks from the date of this judgment and the costs in the Labour Court have to be quantified by the Labour Court. S.R. Appeal allowed. [/INST]As part of a measure to mop up unaccounted money on which no income tax had been paid, an incentive scheme was prepared by the Government under which a person disclosing such income was required to pay a specified rate of tax without attracting the penal provisions of the Income Tax Act. Section 68 of the Finance Act, 1965 provided that a person making voluntary disclosure of his income in accordance with the provisions of the section would be charged income tax at a specified rate notwithstanding anything contained in the Income Tax Act. The assessee had a large sum of such unaccounted money in his possession. Without allocating the total sum amongst the different assessment years, he declared that he had a sum of Rs. 7 lakhs in his possession which was earned by him during the assessment years 1957 58 to 1964 65. Income Tax in respect of this income computed in accordance with section 68 of the Finance Act was paid by him. In the wealth tax returns filed by him in response to the notice issued by the Wealth Tax officer for re assessment consequent on the disclosure of his wealth the assessee claimed deductions of income tax paid under section 68 of the Finance Act. But the Wealth Tax officer disallowed the claim holding that since the assessee had not shown the liability to pay income tax in his balance sheets for the respective years the deductions claimed by him could not be allowed in any of the assessment years. The Appellate Assistant Commissioner dismissed the assessee 's appeal. The Tribunal, on the other hand, held that the liability constituted a "debt owed" because in truth and substance, it was a liability under the Income Tax Act, 1922 or 1961 and not a new liability created by the Finance Act, 1965. On reference the High Court held in favour of the Revenue on the ground that section 68 of the Finance Act enacted a new charge of tax on an ad hoc 403 basis on disclosed income and, therefore, it was not a "debt owed" which could be allowed as a deduction under the Wealth Tax Act. On behalf of the Revenue it was contended that since the tax paid by the assessee under the voluntary disclosure scheme was in discharge of a liability created for the first time by the Finance Act, 1965 it was not an allowable deduction under the Wealth Tax Act. Allowing the appeal, ^ HELD: The assessee was entitled to claim deduction of income tax paid on the amounts added to his total wealth under section 2 (m) of the Wealth Tax Act in the course of the assessment proceedings. [418 B] C 1. Merely because the amounts were disclosed in a declaration under section 68 of the Finance Act, they did not cease to be incomes not already charged to income tax. Although the Finance Act merely levied a fixed rate of tax in respect of all the income disclosed without allowing deductions, exemptions and such other allowances which are allowable under the Income Tax Acts, its function was no more than that of an annual Finance Act despite the fact that it made certain alterations in regard to the filing of declaration and computation of taxable income. [414 G H] 2. The nature of the declaration which was dependent on the volition of the declaring and the fact that the liability to tax the amount was contingent upon the willingness of the declaring to disclose the amount would not make a difference because such voluntary disclosure, even in the absence of section 68, would have exposed the assesseee to assessment or reassessment. The voluntary character of the declaration cannot alter the character of the tax. [415 A B] 3. The true position is that the amount declared has the liability to pay income tax embedded in it on the valuation date but only the ascertainment of that liability is postponed to a future date. [417 C] In the instant case its determination was allowed to be done in accordance with the provisions of section 68. Even though this section was a complete code in itself it was only a scheme which provided a method for the liquidation of an already existing income tax liability which was present on the relevant valuation date. [417 D] 4. Nor did the absence of allocation of the amount disclosed amongst different assessment years detract the tax from being called a tax on income because such allocation would not achieve any additional purpose in the scheme of section 68 This section is in the nature of a package deal. The net result achieved was that the declarant was treated as having discharged all his liability in respect of such income under the income tax law. [415E] 404 5. The finding of the High Court that section 68 created a fresh charge is incompatible with the foundation of the very reassessment proceedings under section 17 of the Wealth Tax Act. [415 H] 6. Moreover section 68, at more than one place stated that what was pay able was income tax which clearly showed that what was payable under the section was income tax. [412 B C] C.I.T. vs Khalau Makanji Spinning and Weaving Co. Ltd., Madurai District Central Cooperative Bank Ltd. vs Third I.T.O. , distinguished. C. K. Bahu Naidu vs Wealth Tax Officer, ; C. Ii T vs GirdhariLal, ; C.W.T. vs B.K Sharma, ; C.W.T. vs Bansidhar Poddar. ; D.C. Shah vs C.W.T., ; Bhagwandas Jain vs Addl. C.W.T. and Bhagwanidas Binani vs C.W.T., , approved. </s>

<s>[INST] Summarize the judgementCivil Appeal No. 1172 of 1973. From the Judgment and Order dated the 10th April, 1973 of the Punjab & Haryana High Court at Chandigarh in Election Petition No. 1 of 1971. Hardayal Hardy, Bishamber Lal and Mrs. Indira Sahni, for the appellant. H. L. Sibal, Kapil Sibal, P. H. Parekh, Mrs. section Bhandare, Miss Manju Jaitley and section section Kang, for respondent No. 1. The Judgment of the Court was delivered by ALAGIRISWAMI, J. This appeal relates to the election to the Parliament from the Fazilka constituency in Punjab held on 5th March 1971. The Parliamentary constituency consisted of eight assembly constituencies of Malout, Muktsar, Gidderbha, Fazilka, Jalalabad, Abohar, Lambi and Faridkot. The votes were counted on 10th and 11th of March at five different places. The counting of the votes of the Malout Assembly constituency was held on 10th March by Mr. Aggarwal, Assistant Returning Officer, of Muktsar and Gidderbha on 10th and 11th by Mr. Sayal, of Fazilka and Jalalabad on the 10th and 11th by Mr. Mahajan, of Lambi and Abohar on the 10th and 11th 886 by Mr. Ram Lal and of Faridkot on the 11th by Mr. Garg. 6,409 votes were declared invalid and the 1st respondent was declared elected having secured 1,52,677 votes. The appellant obtained 1,47,354 votes. There were six other candidates about whom it is not necessary to refer. A number of allegations were made in the election petition about many irregularities that took place on the date of the polling. It is not necessary to refer to them as the issues concerned with them were not pressed even before the High Court. Only two issues, issue 1 and 4 were considered by the High Court and those are the issues urged before us also. They are: "1. Whether the respondent No. 1 is guilty of corrupt practices specified in paras 19, 20, 22 and 23 and 26 to 29 of the election petition as amended ? If so, what is the effect ? 4. Whether 15000 ballot papers were invalid and were wrongly polled and counted ? If so, with what effect ?" It is also necessary to refer to issues 3 and 6 for they have some relevance in discussing issues 1 and 4: "3. Whether the petitioner is entitled to the scrutiny of the ballot papers alleged to have been illegally rejected and those of the respondent alleged to have been illegally accepted and on that account is entitled to a recount? 6. Whether the allegations made in para 7 of the petition are correct, and if so, what is the effect ?" As issue 6 was not pressed the various allegations of irregularities at the time of polling including collusion by Polling Officers and consequent false voting and stuffing of ballot boxes could not be considered. As issue 3 was not pressed recount cannot be asked for on the allegation of wrong counting of votes that is that the appellant 's votes were wrongly rejected and the 1st respondent 's votes were wrongly accepted. With regard to issue 1 the allegation was that corrupt practice of bribery was committed in the interest of the 1st respondent by his brother Shri Parkash Singh Badal, who was at that time the Chief Minister of Punjab. One of the items of bribery alleged was that large sums of money were distributed to Harijans in the form of contributions towards construction of Dharamshalas for the purpose of inducing them to vote in favour of the 1st respondent. The second allegation was that Shri Parkash Singh Badal directed Mr. Sayal, one of the Assistant Returning Officers, to issue 3,304 gun licences for furthering the prospects of the 1st respondent 's election and that this was a gratification for inducing the electors to vote for the 1st respondent. Similarly, Mr. O. P. Garg, another Assistant Returning Officer was alleged to have issued 485 gun licences in the months of February and March, 1971. Shri Parkash Singh Badal was alleged to have arranged and addressed a number of meetings in various 887 villages promising to help the voters in many ways if they would vote for his brother. There were certain other allegations of corrupt practices but the only ones canvassed before us were those relating to gun licences and grants in respect of construction of Dharamshalas to Harijans. The allegations which relate to issue 4, as found in the petition, were that at least 15,000 invalid and void votes had been included and counted in favour of the returned candidate, which should have been rejected and not counted at all and that in addition at least 3,000 invalid ballot papers which should have been rejected under rule 56 had been wrongly counted as valid votes in favour of the returned candidate. The distinction between 15,000 and 3,000 votes was this: The 15,000 ballot papers were said to consist of (i) spurious ballot papers (ii) ballot papers not bearing serial number or design authorised for use at the particular polling stations, and (iii) ballot papers not bearing booth marks and the full signatures of the Presiding Officer. The 3,000 ballot papers were said to have been so marked as to render it doubtful to which candidate the vote is given, or the ballot papers bore marks with instrument other than the one supplied for the purpose, or ballot papers marked in favour of more than one candidate had been wrongly counted in favour of the returned candidate. No evidence in fact was let in respect of the 3,000 votes. The attack was concentrated on the 15,000 invalid and void votes. In view of issues 3 and 6 having been given up, the effect of which we have earlier referred to, the only question that arises is whether these 15,000 votes should not have been counted at all, whether for the appellant or for the 1st respondent on the basis that they bore neither the stamp nor the signature of the Polling Officer. The whole of the evidence let in was of a uniform type that a number of ballot papers did not bear the signature of the Polling Officer or the stamp of the booth. Indeed the allegation in the petition on this point is "ballot papers not bearing booth marks and full signatures of the Presiding Officer were wrongly counted as valid votes". It is not said that the ballot papers bore neither the mark nor the signature of the Presiding Officer. The rule in question, rule No. 56, was amended in 1971 providing that only a ballot paper which did not contain both the mark and signature would be deemed invalid but even then it is not as though it automatically became invalid. The Returning Officer had to scrutinise it in order to see whether the ballot paper was a genuine ballot paper. This provision was apparently put in because under pressure of work the Polling Officer might have failed either to affix the stamp or his signatur. If the Returning Officer was satisfied that the failure to affix the stamp or the signature was due to the fault of the Polling Officer but the ballot paper was itself genuine he could include it among the valid ballot papers. Therefore, merely by giving evidence that the ballot papers did not contain both the signature and the stamp it would not be established that the ballot paper concerned was not a valid ballot paper. But that is the only type of evidence which has been let in. Apart from this the number 15,000 seems to be a case of wild guess. The appellant 's voting agents were alleged to have kept a note 888 of the number of invalid ballot papers that they had noticed but none was produced. Some of the counting agents gave evidence that they brought it to the notice of the chief counting agent who sat on the dais along with the Assistant Returning Officer at the time of the counting. Neither the counting agents nor the chief counting agent had complained in writing to the Assistant Returning Officer. It is impossible to believe that if there were as many as 15,000 invalid ballot papers, which amount to about two thousand from every assembly constituency they would have kept quiet without raising hell. On both the days of counting an observer deputed by the Election Commissioner had gone round all the places where the votes were counted. No serious infirmities were pointed out to him. One or two ballot papers which did not bear either the signature of the Polling Officer or the stamp were shown to him only in the Lambi constituency and he scrutinised them and found that the serial numbers tallied and he was satisfied about their genuineness. He as well as the various Assistant Returning Officers had offered that if there were any complaints the candidates could ask for a recheck. No such recheck was asked for. It was argued on behalf of the appellant that the recheck offer meant only a check on whether the number of votes had been correctly added. We find it impossible to accept this suggestion. The reference to the checking in the observer 's report shows that the checking meant also scrutiny as to whether the ballot paper was signed by the Presiding Officer. The Returning Officer has also mentioned in his order on the application made by the appellant for a recount that he was asked to specify as to whether in any assembly segment he or any of his agents had asked for the recheck or pointed out any discrepancy in the figures and that the appellant had failed to cite any such specific instance, and that he was also asked as to whether he wanted the recounting of any specific assembly segment but he reiterated that he wanted a total recount. Four of the Assistant Returning Officers, Mr. Sayal, Mr. Ram Lal, Mr. Garg and Mr. Aggarwal have been examined and they did not support the appellant 's case that there were such a large number of invalid ballot papers or that it was brought to their notice even orally. Mr. Ram Lal said that at the most there might be 200 such votes which were objected to; that is in respect of the two constituencies in which he was the Assistant Returning Officer. This would mean that there might have been about one thousand invalid ballot papers at the most and we have already mentioned that 6,409 votes had been declared invalid. We do not know how many of them were ballot papers which did not contain either the signature or the stamp. The way the appellant 's case has been developed is also very interesting. We have pointed out that votes of four constituencies were counted on the 10th and of four other constituencies on the 11th. The first move of the appellant was to send a telegram on the 11th. By that time half the number of votes had been counted and probably more than half because we do not know at what time on the 11th the telegram, exhibit B 2 was sent. Even assuming that nearly half the number of votes had been counted the appellant probably had an inkling of the possibility of his being defeated. In this telegram he re 889 ferred to about fifteen thousand ballot papers which did not contain either the signature of the Presiding Officer or the Polling Officer of the polling station and booth numbers. He also mentioned that about six thousand three hundred votes had been wrongly rejected. Apparently he wanted to imply that they would otherwise have gone in his favour. But his case of six thousand votes which ought to have gone to him, but had been wrongly rejected, had been completely given up later. Another telegram sent on the 13th March 1971 was similar to the telegram sent on the 11th. A similar telegram was sent by the appellant to the General Secretary of the Congress Party as also the Prime Minister. But in the petition given to the Returning Officer asking for a recount on the same day the complaint was that some of the ballot papers did not bear the official stamp on their back as provided by rules and they seem to have been smuggled illegally and the number given in "thousands". Another complaint was that some of the ballot papers did not bear the signatures of the Presiding Officer on the back, which were also "in thousands" and even more than five thousand. So here we do not find the allegation that the ballot papers contained neither the signature nor the stamp. In his petition before the Election Commission asking for recount he mentioned fifteen thousand ballot papers as having been found which bore no distinction mark or signature of the Presiding Officer. He also mentioned the rejection of more than 6,000 votes. As we have already pointed out, there is absolutely nothing on record to show how the figure 15,000 was arrived at. We are, therefore, satisfied that the mention about 15,000 votes, 3,000 votes and 6,000 votes are only steps in the attempt to secure a recount at any cost and to fish for evidence. As we have already pointed out, the allegation in the petition was that 15,000 invalid votes were counted in favour of the returned candidate but in the evidence as well as the arguments it was only claimed that there were 15,000 invalid ballot papers which were counted. There is nothing to show how many of those 15,000 went to the appellant and how many to the 1st respondent. Indeed as we have earlier explained what was asked for was elimination of the 15,000 votes altogether from the counting. The whole thing is mere kite flying. We are therefore, in agreement with the learned Judge of the High Court that the appellant has not succeeded in establishing the allegations covered by issue No. 4. There are a large number of decisions of this Court on the question regarding the circumstances under which a recount can be ordered. It has been recognised in all those decisions that there can never be any hard and fast rule as to the circumstances when an order of recount would be permissible and should always be dependent upon the circumstances of the case. We do not therefore consider it necessary to refer to any of those decisions. Suffice it to say that the facts of this case do not leave even the slighest justification for ordering a recount. Now we come to the question corrupt practice. We shall first of all deal with the grant for construction of Dharamshalas for Harijans. The Punjab Government appears to have set apart a sum of Rs. 50,00,000 for this very purpose. All that is established is that a sum of Rs. 3,00,000 was spent towards the end of the official 890 financial year 1970 71 in the district in which this Fazilka Parliamentary Consituency is situate. Punjab has 11 districts and it cannot therefore be said that this sum is disproportionately large. The anxiety to spend the money towards the end of the financial year is also natural. If the end of the financial year also happens to be the period when an election is going on parties in power naturally bestir themselves to show that they are active in helping the people to get what they want. The election time is the time when people in power as well as ordinary politicians are active in trying to show that they are out to help the people. They address meetings and hold out all sorts of promises. Where a large section of the people are concerned, who only get an amenity which they ought in any case to get and which they get probably a little more easily because it happens to be election time, it cannot be said that the person in authority making that promise and holding out that he would carry out many remedial measures to benefit the people was resorting to bribery or bargaining for votes. It may not amount to setting up a very high standard and it may be very desirable that whatever is done for the people should be done by persons in authority throughout the period of their office. But they naturally are more active at election time than other times. That cannot be said to amount to corruption. We then come to the question of gun licences. It has been pointed out that during the months of January, February and March 1971 Mr. Sayal had issued 3,304 gun licences and Mr. Garg 485 gun licences, the usual number in an ordinary year being about 300. When every explanation offered on behalf of the officials is taken into consideration, the fact remains that an unusually large number of gun licences had been issued during that period. We are satisfied that to some extent at least this amounts to improper use of power. We do not say that this is an abuse or misuse. In fact there is evidence that the proper procedure has been followed in these cases. In one case, for instance, a man who had applied for a gun licence long time back approached the Chief Minister when he had come to the village and he at once told the District Magistrate and the man got his licence. We can see nothing improper in that instance. But the gun licences themselves are issued by the officials and not by the Chief Minister. It also appears that a large number of relatives of the Chief Minister as well as his Mukhtiar e Aam, his maternal uncle, and even the returned candidate had taken interest in the issue of gun licences. It was sought to be proved that the Chief Minister had addressed a number of meetings promising to issue gun licences if they would vote for his brother. But there was no allegation in the election petition relating to the meetings he addressed or his having held out the promise in those meetings that he would issue gun licences if the people voted for his brother. The 1st respondent himself not having had notice of the specific allegation of meetings at which such promises were held out we have left out of consideration the evidence regarding the meetings and the promises held out by the Chief Minister in those meetings as inadmissible. Assuming that it was the returned candidate or his agent that had held out an inducement to get gun licences issued for people who vote 891 for the returned candidate, does it amount to bribery under section 123(1) of the Representation of the People Act ? Bribery is defined thus: "123(1) 'Bribery ', that is to say, (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of in ducing (a) . . . . (b) an elector to vote or refrain from voting at an election, or as a reward to (i). . . . . (ii) an elector for having voted or refrained from voting; (B) the receipt of or agreement to receive, any gratification, whether as a motive or a reward (a). . . . . (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature. Explanation. For the purposes of this clause the term gratification ' is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of any election and duly entered in the account of election expenses referred to in section 78. " In order to understand the exact implication of the word 'gratification ' it may be useful to refer to another statute which has been in force for over a century, that is, the Indian Penal Code as most legislations tend to folow established precedents. In section 161 of the Code, which deals with bribery, one of the explanations is as follows: "Gratification. " The word "gratification" is not restricted to pecuniary gratification, or to gratification estimaable in money. " Illustration (a) to the section is as follows: "(a) A, a munsif, obtains from Z, a banker, a situation in Z 's bank for A 's brother, as a reward to A for deciding a cause in favour of Z. A has committed the offence defined in this section. " We may also quote section 171 B of the Code and section 171 E which find a place in the Chapter of Offences Relating to Elections, which was inserted in the Code in the year 1920: 892 "171 B. (1) whoever (i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or (ii) accepts either for himself or for any other person any gratification as a reward to exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery: Provided that a declaration of public policy or a promise of public action shall not be an offence under this section. (2) A person who offers, or agrees to give, or offers, or attempts to procure, a gratification shall be deemed to give a gratification. (3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward." "171 E. Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both. Provided that bribery by treating shall be punished with fine only. Explanation. "Treating" means that form of bribery where the gratification consists in food, drink, entertainment, or provision. " It would be noticed that the Explanation to section 123(1) of the Representation of the People Act and the Explanation to section 161 of the Indian Penal Code relating to gratification are similar. In addition, the Representation of the People Act refers to all forms of entertainment and all forms of employment for reward. The employment for reward is covered by illustration (a) to section 161 of the Indian Penal Code. The words "all forms of entertainment" in the Explanation to section 123(1) of the Representation of the People Act apparently refer to offence of treating found in section 171 E of the Indian Penal Code. When Parliament enacted the provision regarding bribery in the Representation of the People Act it should have had before it the comparable provisions in the Penal Code. It is to be noticed that the giving of any gratification with the object of inducing the receiver or any other person to vote is an offence while acceptance of gratification by a person either for himself or for any other person or for inducing any other person to vote is an offence. In other words giving is an offence if paid to the voter or such giving induces another person to vote. It is not giving a gratification in order that he may induce another person to vote that is an offence whereas 893 receipt of a gratification in order to induce another person to vote is an offence. The reason for the distinction between the provision in section 123(1) (A) and 123(1) (B) seems to be this: In the former case a person standing for election has necessarily to have a number of people to work for him and he may have to bear their expenses. That by itself should not be deemed to be bribery. In the latter case when a person takes money offering to induce other people, of course, induce by wrong means, to vote for the person who pays him the money he is really poking his nose into something which is no business of his and that practice should be discouraged. See Kalya Singh 's case(1) and our judgment in Harisingh Pratapsingh Chawda vs Popatlal Mulshanker Joshi & Ors.(2) So far as we are aware it has never been held that the issue of a gun licence amounts to bribery under section 171 B. We are of opinion that the word 'gratification ' should be deemed to refer only to cases where a gift is made of something which gives a material advantage to the recipient. There is hardly any need to say that giving of anything whose value is estimable in money is bribery. A gun licence gives no material advantage to its recipient. It might gratify his sense of importance if he has a gun licence in a village where nobody else has a gun licence. So might the conferment of an honour like Padma Bhushan. A praise from a high quarter might gratify the sence of vanity of a person. But the word 'gratification ' as used in section 123(1) does not refer to such gratifications any more than in section 171 B of the Indian Penal Code. Taking the case of licences: Possibly the grant of a licence which enables a man to do some business and thus make money may confer a material advantage to him. We are not here speaking of licences which are insisted upon merely for regulatory purposes like municipal licences. But a licence given to a person to deal in fertilizers might confer a financial advantage to that person; so might an import licence or an export licence. Such licences differ from licences for regulatory purposes. Arms licence is a licence for regulatory purposes. Its possession gives no material advantage to its possessor. A licence in a prohibition area to deal in liqueur might confer a material advantage to the licensee. But a licence enabling a person to imbibe liqueur in such area gives the licensee no material advantage. Such a licence is only regulatory. We must therefore distinguish between various kinds of licences and hold that where a licence gives a material advantage to the licensee the grant of such licences amounts to a gratification. In that sense the grant of gun licences to voters in the Fazilka Constituency would not amount to bribery. We have discussed this question on the basis that the authority to grant a licence is the returned candidate or his brother the Chief Minister. We have already pointed out that there is no evidence regarding bargaining for votes by promise of gun licences. A bargain for the purposes of this section does not mean that the candidate or his agent makes an offer and the voter accepts it in the sense that he promises to vote. It is enough if the candidate or his agent makes the gift or promise on that condition. If a candidate or his agent pays money to a voter saying that he wants him to vote it is a bargain for the pur 894 poses of this section. It is not necessary that the voter should say that he would vote and thereafter the candidate or his agent should pay the money. Even in such a case the voter after receiving the money might or might not vote. The law regarding bribery in elections in our country has been discussed in various decisions of this Court. In Maganlal Bagdi vs Hari Vishnu Kamath(1) the candidate offered to construct a well in a village if the voters voted for him and not for the rival candidate and money was actually deposited for this purpose and was to await the result of the election. It was held that there was a clear bargain for votes. In Khader Sheriff vs Munnuswami Gounder & Ors.(2)it was observed by this Court that it may be meritorious to make a donation for a charitable purpose but on the eve of an election such a gift may be open to construction that it was made with the intention of buying votes. In Ghasi Ram vs Dal Singh(3) it was held that the gift must be proved to have a direct or indirect connection with votes and this must admit of no other reasonable excuse. In Radha Krishna Shukla vs Tara Chand Maheshwar(4) general promises by Ministers to redress certain public grievances or to erect certain public amenities like hospitals, if elected, were held not to amount to corrupt practice. They were treated as promises of general public action. In Amirchand vs Surendra Lal Jha(5) it was laid down that if a Minister redresses the grievances of a class of the public or people of a locality or renders them any help, on the eve of an election, it was not corrupt practice unless he had obtained promises from the voters in return, as a condition for their help. The promise to grant gun licences would really amount to a redressal of the grievances of a class of the public or rendering them any help. There is no evidence here of obtaining a promise from the voters in return. The observations made in Ghasi Ram 's case (supra) regarding the action taken by a Minister which helps a class of the public may be noticed in this connection: "The position of a Minister is difficult. It is obvious that he cannot cease to function when his election is due. He must of necessity attend to the grievances, otherwise he must fail. He must improve the image of his administration before the public. If everyone of his official acts done bona fide is to be construed against him and an ulterior motive is spelled out of them, the administration must necessarily come to a standstill. The State of Haryana came into existence on November 1, 1966. With an election in the near future, the political party had to do acts of a public nature. The grant of discretionary grants were parts of the general scheme to better community development projects and to remove the immediate grievances of the public. The money was required to be spent in about 3 months ' time. The action of the Minister had often the concurrence and recommendation of his subordinate staff. It is for this reason 895 that the orders about the improvement of the supply of waters were not pressed. They were incapable of being construed against the first respondent. Therefore, emphasis was placed upon the distribution of money. The money was not distributed among the voters directly but was given to Panchayats and the public at large. It was to be used for the good of those for and those against the candidate. No doubt they had the effect of pushinf forward his claims but that was inevitable even if no money was spent, but good administration changed the people 's condition. We cannot, therefore, hold that there was any corrupt practice. If there was good evidence that the Minister bargained directly or indirectly for votes the result might have been different but there was no such evidence. " The issue for decision in Om Prabha Jain vs Abnash Chand & Anr.(1) was similar to the case here in respect of the grants for Dharamshalas for Harijans. It was held that the action of the Minister could not be construed against her and that it was done in the ordinary course of her duties as Minister and there was no evidence that it was, directly or indirectly, part of a bargain with the voters. In Bhanu Kumar vs Mohan Lal(2) it was alleged that the Chief Minister by ordering the covering of a nallah, the construction of a road, the installation of water taps and the grant of pattas to the inhabitants of a colony for construction of houses had made a bargain with the people for votes and thus committed corrupt practice as defined in section 123(1) of the Representation of the People Act. This Court pointed out that ordinarily amelioration of grievances of the public is innocuous and cannot be construed against a candidate who is a Minister but that if there is evidence to indicate that any candidate at the election abused his power and position as a Minister in the Government by utilising public revenues for conferring advantage or benefit on a particular group of people for the purpose of obtaining their votes, different considerations will arise and it may be held to be a corrupt practice within the meaning of section 123(1). In that case it was held that in all the instances relied upon by the appellant the evidence showed that there were long standing public grievances and the Government had from time to time made suggestions and recommendations for redress of the grievances and amelioration of the condition of the people and that it could not be said that on the eve of election there was any sudden or spontaneous outburst of public activity in the shape of 896 diverting money to win electors to the side of the Chief Minister by throwing baits or giving them any particular and specially favoured treatment. These observations apply to the case of grants for Harijan dharamshalas. We are therefore saisfied that the case of both the allegations of corrupt practice there was no gratification offered, that there was no bargaining for votes in the sense we have explained earlier and these issues must also be found against the appellant. The appeal is, therefore, dismissed with costs. V.P.S Appeal dismissed. [/INST]In the election to Parliament from a constituency in Punjab the respondent was declared elected. The appellant filed an election petition alleging, inter alia, (i) that at least 15,000 invalid and void votes had been included and counted in favour of the respondent, and (ii) that the Chief Minister of Punjab, who was the brother of the respondent, directed, (a) the distribution to Harijans of large sums of money for construction of Dharamshalas, and (b) the issue of a large number of gun licences, as gratification for inducing voters to vote for the respondent and that thereby, the corrupt practice of bribery under section 123(1), Representation of the People Act, 1951, was committed. The High Court dismissed the election petition Dismissing the appeal to this Court, ^ HELD: (1) On the evidence, the High Court was right in holding that the appellant had not succeeded in establishing the allegation regarding the 15,000 votes. [889F] (a) Rule 56 of the Conduct of Elections Rules as amended in 1971, provides that only a ballot paper which did not contain both the mark and the signature of the polling officer would be invalid. Even then it does not automatically become invalid. If the Returning Officer was satisifed that the failure to affix the stamp or signature was due to the fault of the polling officer but the ballot paper was itself genuine he could include it among the valid ballot papers, because, under pressure of work, the polling officer might have failed either to affix the stamp or his signature. [887F H] (b) The evidence adduced on behalf of the appellant is not consistent as to the ground of invalidity of the ballot papers; as to how the number of 15,000 was arrived at; and as to whether they were counted in favour of the respondent or both the appellant and the respondent. [889E F] (c) There cannot be any hard and fast rule as to the circumstances when an order of recount would be permissible and it always depends upon the circumstances of the case. On the facts of the present case, there is not the slightest justification for ordering a recount. [889G H] (2) In the case of both the allegations regarding Dharamshalas and gun licences, there was no gratification offered and there was no bargaining for votes, and hence there was no corrupt practice. [896B] (a) The word 'gratification ' in section 123(1) should be deemed to refer only to cases where a gift is made of something which gives a material advantage to the recipient. There is a distinction between licences which give a material advantage and those which do not. For example, a licence in a prohibition area to deal in liqueur confers a material advantage on the licensee, whereas a licence enabling a person to imbibe liqueur in such an area gives him no material advantage. It is only the grant of the former that might amount to gratification. Arms licence is a licence for regulatory purposes. Its possession give no material advantage to its possessor. [893C G] (b) To constitute the corrupt practice of bribery under section 123(1) there must be a bargain for votes. But a bargain for the purposes of the section does not mean that the candidate or his agent makes an offer and the voter accepts it in the sense that he promises to vote. It is not necessary that the 885 voter should say that he would vote and that thereafter only the candidate or his agent should pay the money. It is enough if the candidate or his agent makes the gift or promise on that condition. [889G 890A] (c) In the present case, the State Government had set apart a sum of Rs. 50 lacs for the purpose of construction of Dharamshalas for Harijans. A sum of Rs. 3 lacs was spent towards the end of the financial year, in the district in which this particular parliamentary constituency was situate. Punjab has 11 districts and it cannot, therefore, be said that, the amount is disproportionately large. [889H 890A] (d) The anxiety to spend the money towards the end of financial year is also natural. [890A B] (e) It may not be setting up a high standard and it may be very desirable that whatever is done for the people should be done by persons in authority throughout the period of their office and not when election time is approaching. But where a large section of the people get an amentiy which they ought, in any case to get, and which they got probably a little more easily because it was election time, it cannot be said that the person in authority making a promise and holding out that he would carry out many remedial measures to benefit the people was resorting to bribery or bargaining for votes. [890B D] (f) The issue of the unusually large number of gun licences may be an improper use of power. But, there is no evidence regarding bargaining for votes by the promise of gun licences. [890D G, 893G] (g) Maganlal Bagdi vs Hari Vishnu Kamath, Khadar Sheriff vs Munnuswami Gounder & Ors. A.I.R. 1955 S.C. 775, Ghasi Ram vs Dal Singh ; , Radha Krsihna Shukla vs Tara Chand Maheshwar , amirchand vs Surendra Lal Dha E.L.R. 57, Om Prabha Jain vs Abnash Chand & Anr. ; ,Bhanu Kumar vs Mohan Lal ; , referred to. </s>

<s>[INST] Summarize the judgementiminal Appeal No. 30 of 1961. Appeal from the judgment and order dated September 6, 1960 of the Calcutta High Court in Cr. Revision No. 647 of 1960. B. Sen, P. K. Chatterjee and P. K. Bose, for the appellant. D. C. Roy and P. K. Mukherjee, 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 Calcutta quashing the investigation started against the respondent in regard to offences under section 420, Indian Penal Code, and section 120B read with section 420 of the Indian Penal Code. On March 26, 1960, Sub Inspector. B. L. Gbose of Police Inforcement Branch filed a written report before the Officer in charge Chakdha P. section, alleging that the respondent in conspiracy with three others 54 had cheated the Government of West Bengal of a sum of Rs. 20,000. The respondent at the time was an Assistant cum Executive Engineer, Kancbrapara Development Area, Kalyani Division. On the basis of this report a First Information Report was drawn up and the police started investigation. On April 4, 1960, the respondent surrendered in the court of the Judicial Magistrate at Ranaghat and was released on bail for a sum of Rs. 1,000/ . The respondent then on May 9, 1960, filed a petition under sections 439 and 561A of the Criminal Procedure Code and prayed for a rule against the District Magistrate, Nadia, to show cause why the judicial case pending in the court of the Senior Magistrate Ranagaghat arising out of the Chakdah Police Station Case No. 33 dated March 26, 1960, be not quashed. The High Court held : "In our view, the statutory power of investigation given to the police under Chapter XIV is not available in respect of an offence triable under the West Bengal Criminal Law Amendment (Special Courts) Act 1949, and that being so, the investigation concerned is without jurisdiction. In so saying, we are consicious of the observations of their Lord ships of the Privy Council in Nazir Ahmad 's case, 71 Indian Appeals, 203". and therefore quashed the police investigation of the case holding it to be without jurisdiction. It is against this judgment and order that the state has come in appeal to this Court on a certificate granted by the High Court under article 134 (1) (c) At the time the respondent filed the petition in the High Court only a written report was made to the police by the Sub Inspector of police Enforcement Branch and on the basis of that report a :First Information Report was recorded by the 55 Officer in charge of the Police Station and investigation had started. There was no case pending at the time excepting that the respondent had appeared before the Court, had surrendered and had ' been admitted to bail. The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and section 156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magi strate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under section 439 or under the inherent power of the court under section 561A of Criminal Procedure Code. As to the powers of the Judiciary in regard to statutory right of the police to investigate, the Privy Council in King Emperor vs Khwaja Nazir Ahmad (1) observed as follows: "The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, a course, subject to the right of the court to intervene in an appropriate case when moved under section 491 of the Criminal Procedure Code to give directions in the nature of habeas, corpus. In such a case as the present, however, the court 's functions begin when a charge is preferred before it, and not until then. It has sometimes been thought that a. 561A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so, the section gives no now powers, it (1)(1944),L. R. 71. 1. A. 203, 212. 56 only provides that those which the court already inherently possesses shall be preserved and is inserted as their Lordships think, lest it should be considered that the only powers possessed by the court are those expressly conferred by the Criminal Procedure Code and that no inherent powers had survived the passing of that Act". With this interpretation, which has been put on the statutory duties and. powers of the police and of the powers of the Court, we are in accord. The High Court was in error therefore in interfering with the powers of the police in investigating into the offence which was alleged in the information sent to the Officer in charge of the police station. We therefore allow this appeal and set aside the order of the High Court. The investigation will now proceed in accordance with law. Appeal allowed. [/INST]The Mysore Tenancy Act, 1952, was enacted, inter alia, for the purpose of regulating the law which governed the relations of landlords and tenants of agricultural lands. Subsection (1) of section 6 of the Act provided : "Notwithstanding any agreement, usage, decree or order of a court or any law, the maximum rent payable in respect of any period. by a tenant for the lease of any land shall not exceed one half of the crop or crops raised on such land or its value as determined in the prescribed manner". "The Government may, by notification in the Mysore Gazette, fix a lower rate of the maximum rent payable by the tenants of lands situate in any particular area or may fix such rate on any other suitable basis as they think fit". In exercise of the powers conferred by s.6(2), the Government of Mysore issued a notification purporting to fix the standard rent for land 227 specified in Sch. I which dealt with Maidan areas i.e., lands on the plains at one third of the produce, and for those specified in Sch. II which dealt with Malnad areas i.e., lands on hilly tracts at one fourth. The appellant who owned garden land in the district of Shimoga in Mysore State and who had leased out the land to a tenant, challenged the validity or s 6(2) of the Act as well as the notification on the rounds that they contravened articles 14, 19(1) (f), 26, 31 and 31 A of the Constitution of India, and that, in any case, the notification was inconsistent with section 6(1) inasmuch as it was based on section 6(2) which being an exception to section 6(1) could not be allowed to swallow up the general rule and that was precisely what the notification purported to do. The Mysore Tenancy Act was modelled on the pattern of the Bombay Tenancy and Agricultural Lands Act, 1948, and the provisions of s.6 of the Mysore Act were. similar to s.6 of the Bombay Act. In Vasantlal Maganbhai Sanjanwala vs The State of Bombay, ; ; it was held that section 6 of the Bombay Act was vaild. The appellant contended that the aforesaid decision was not applicable because there were difference,; between the two Acts inasmuch as (1) in the preamble to the Bombay Act it was stated that it was passed inter alia for the purpose of improving the economic and social conditions of peasants and this was not mentioned in the Mysore Act, (2) unlike the Mysore Act, the Bombay Act, made a distinction between the irrigated and non irrigated land (3) the Bombay Act while prescribing a maximum took the precaution of also prescribing a minimum and the absence of the latter provision in the Mysore Act made a I material difference. Held, that : (1) the Mysore Tenancy Act, 1952, was substantially similar to Bombay Tenancy and Agricultural Lands Act, 1948, and that the question as to be whether section 6 (2) of the Mysore Act was valid must be held to be covered by the decision the Vasantlal Maganbhai Sanjanwala vs The State of Bombay ; Accordingly, s.6(2) of the Mysore Tenancy Act, 1952, was valid. (2) on its true construction, section 6(1) of the Mysore Tenancy Act, 1952, wag intended to apply to all agricultural leases until a notification was issued under s.6(2) in respect of the areas where the leased lands might be situated ; s 6(2) could not, therefore, be considered as an exception to s.6(1) Consequently, the notification in question was valid, 228 Macbeth vs Ashley, (1874) L.R. 2 Sc. App. 352, considered and held inapplicable. </s>

<s>[INST] Summarize the judgementivil Appeal No. 2368 of 1986 Etc. 656 From the Judgment and Order dated 30.5.1986 of the Delhi High Court in CW No. 1295 of 1986. K.K. Venugopal, A.K. Ganguli, Yogeshwar Prasad, P.R. Seetharaman, S.K. Gupta and A.K. Srivastava for the Appel lants. Soli J. Sorabjee, Attorney General, Kapil Sibbal, Addi tional Solicitor General. G.L. Sanghi, section Ganesh, Mrs. Sushma Suri, EMS Anam, Atul Namda. Aman Vachher, S.K. Mehta, Kailash Vasdev and S.R. Srivastava for the Respondents. The Judgment of the Court was delivered by S.C. AGRAWAL, J. The common question which arises for consideration in these appeals, by special leave, and the writ petition filed under Article 32 of the Constitution is, whether a person who was inducted as a tenant in premises, which are public premises for the purpose of the (hereinafter referred to as the 'Public Premises Act '), and whose tenancy has expired or has been terminated, can be evicted from the said premises as being a person in unautho rised occupation of the premises under the provisions of the Public Premises Act and whether such a person can invoke the protection of the Delhi Rent Control Act, 1958 (hereinafter referred to as the 'Rent Control Act '). In short, the ques tion is, whether the provisions of the Public Premises Act would override the provisions of the Rent Control Act in relation to premises which fall within the ambit of both the enactments. Civil Appeals Nos. 2368 and 2369 of 1986 relate to the premises which are part of a building situated at 5 Parlia ment Street, New Delhi. The said building originally be longed to Punjab National Bank Ltd., a banking company. Ashoka Marketing Ltd. (Appellate No. 1 in Civil Appeal No. 2368 of 1986) and M/s Sahu Jain Services Ltd. (Appellant No. 1 in Civil Appeal No. 2369 of 1986) were tenants of premises located in the said building since July 1st, 1958. As a result of the enactment of the Banking Companies (Acquisi tion and Transfer of Undertakings) Act. 1970 (hereinafter referred to as the 'Banks Nationalisation Act '), the under taking of the Punjab National Bank Ltd., was transferred and vested in Punjab National Bank a body corporate constituted under the provisions of the said Act and the aforesaid appellants became the tenants of Punjab National Bank. By notices dated May 18, 1971 issued under Section 106 of the Transfer of Property Act, the tenancies of both the appel lants were terminated by 657 Punjab National Bank, with effect from, November, 30, 1971. Thereafter, the said Bank initiated proceedings under the Rent Control Act against both the appellants. In those proceedings an objection was raised by the said appellants that proceedings for eviction under the Rent Control Act were not maintainable in view of the provisions contained in the Public Premises Act. During the pendency of the said proceedings under the Rent Control Act, proceedings were initiated by the Estate Officer against the appellants under the provisions of the Public Premises Act and while the said proceedings under Public Premises Act were pending the earlier proceedings initiated under the Rent Control Act were dismissed by the Additional Rent Controller, Delhi, by orders dated August 6, 1979. In the proceedings, under the Public Premises Act, the Estate Officer passed orders for eviction against the appellants and the appeals filed by the appellants against the said orders of the Estate Officer were dismissed by the Additional District Judge. Delhi. The appellants filed writ petitions under Article 226 of the Constitution, in the Delhi High Court. The said writ peti tions were dismissed by the High Court by orders dated May 30, 1986. Aggrieved by the said orders of the High Court, the appellants have filed these appeals after obtaining special leave to appeal. Civil Appeal No. 3725 of 1986 relates to an office room in the Allahabad Bank Building situated at 17, Parliament Street, New Delhi. The said building belongs to Allahabad Bank, a body corporate constituted under the provisions of the Banks Nationalisation Act. The said premises were let out to Pt. K.B. Parsai, the appellant in this appeal, for a period of three years with effect from, February 1, 1982. After the expiry of the said period eviction proceedings under the provisions of the Public Premises Act were initi ated to evict the appellant and in those proceedings the Estate Officer passed an order dated March 29, 1986. The appellant filed a writ petition under Article 226 of the Constitution, wherein he challenged the validity of the order passed by the Estate Officer. The said writ petition was dismissed by the Delhi High Court by order dated August 7, 1986. The appellant has filed this appeal against the said decision of the Delhi High Court after obtaining Spe cial Leave to Appeal. Writ Petition No. 864 of 1985, relates to premises in the building located at 10, Darya Ganj, New Delhi. The said building originally belonged to Bharat Insurance Company Limited, as Insurance Company which was carrying on life insurance business. M/s Bennett Coleman & Co. Ltd., (peti tioner No. 1 in the writ petition) was in occupation of a part of the said property as a tenant under M/s Bharat 658 Insurance Co. Ltd. since 1948. The life insurance business was nationalised under the whereby the Life Insurance Corporation was established and the life insurance business carried on by the various insurance companies, including M/s Bharat Insurance Company Ltd., was nationalised and vested in the Life Insurance Corporation. As a result petitioner No. 1 became a tenant of the Life Insurance Corporation. The Life Insurance Corpora tion gave a notice under Section 106 of the Transfer of Property Act terminating a tenancy of petitioner No. 1 with effect from, August 31, 1953 and thereafter proceedings for eviction were initiated against petitioner No. 1 under the provisions of the Public Premises Act and notices dated December 15, 1984 were issued by the Estate Officer under Section 4(1) and Section 7(3) of the Public Premises Act. Feeling aggrieved by these notices the petitioners have filed the writ petition. Before we proceed to deal with the submissions of the learned counsel for the appellants in the appeals and for the petitioners in the writ petition (hereinafter referred to as 'the petitioners ') it would be relevant to advert to the legislative history of Public Premises Act. The Public Premises Act was preceded by two such enact ments. The first enactments was the Government Premises (Eviction) Act, 1950 (hereinafter referred to as 'the 1950 Act ') which was enacted by Parliament to provide for the eviction of certain persons from Government premises and for certain matters connected therewith. It was confined, in its application, to premises (a building or a part of a build ing) belonging to or taken on lease or requisitioned by the Central Government and it empowered the competent authority tO evict a person in unauthorised occupation of such prem ises after issuing a notice to such person. The 1950 Act did not define the expression "unauthorised occupation" and it also did not prescribe the procedure to be followed by the competent authority before passing the order of eviction. There was a provision for appeal to the Central Government against the order of the competent authority. The 1950 Act was declared as unconstitutional by the Calcutta High Court (in Jagu Singh vs M. Shaukat Ali, and by the Punjab High Court (in Satish Chander & Anr. vs Delhi Im provement Trust, Etc., AIR 1958 Punjab 1) on the ground that it imposed unreasonable restriction on the fight of the citizens to acquire, hold and dispose of property guaranteed under Article 19(1)(f) of the Constitution, and by the Allahabad High Court (in Brigade Commander, Meerut Sub Area vs Ganga Prasad, on the ground that it was violative 659 of the rights to equality guaranteed under Article 14 of the Constitution. Thereupon Parliament enacted the Public Premises (Evic tion of Unauthorised Occupants) Act, 1958 (hereinafter referred to as 'the 1958 Act '). In the 1958 Act, the defini tion of Public Premises was enlarged to include, in relation to the Union Territory of Delhi, premises belonging to Municipal Corporation of Delhi, or any municipal committee or notified area committee and premises belonging to Delhi Development Authority. In the 1958 Act, the expression "unauthorised occupation" was defined. It also laid down the procedure to be followed by the Estate Officer for evicting a person in unauthorised occupation of public premises and it made provision for filing an appeal against every order of the Estate Officer before the District Judge or such other Judicial Officer in that district of not less than ten years standing as the District Judge may designate in that behalf. In Northern India Caterers Private Limited vs The State of Punjab & Anr., ; Section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 was held to be void by this Court on the ground that the said provision conferred an additional remedy over and above the remedy by way of suit and that by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupa tion of public properties and premises for the application of the more drastic procedure under Section 5, the said provision was violative of Article 14 of the Constitution. The provisions contained in the Punjab Act were similar to those contained in the 1958 Act. Keeping in view the deci sion of this Court in Northern India Caterers Private Limit ed 's case (supra), Parliament enacted Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1968 whereby the 1958 Act was amended and Section 10E was intro duced and a bar was created to the jurisdiction of civil court to entertain any suit or proceeding in respect of eviction of any person in unauthorised occupation of any public premises or the recovery of the arrears of the rent or damages payable under the provisions of the 1958 Act. The Delhi High Court (in P.L. Mehra etc. vs D.R. Khanna, etc., AIR 1971 Delhi 1)held that whole of the 1958 Act was void under Article 15(2) being violative of the provisions of Article 14 of the Constitution and the amendment of 1968 was ineffective This led to the enactment of the Public Premises Act by Parliament in 1971. It was brought into effect from 16th September, 1958, 660 the date on which the 1958 Act came into force. The provi sions of the Public Premises Act are similar to those con tained in the 1958 Act. The definition of 'public premises ' contained in Section 2(e) of the Public Premises Act has been widened so as to include premises belonging to or taken on lease by or on behalf of a company, as defined in Section 3 of the , in which not less than fifty one per cent of the paid up capital is held by the Central Government as well as premises belonging to or taken on lease by or on behalf of any corporation (not being a compa ny, as defined in Section 3 of the in 1956, or a local authority) established by or under a Central Act and owned and controlled by the Central Government. It contains certain additional provisions, providing for offences and penalties (Section 11), liability of heirs and representa tives (Section 13) recovery of rent etc. as an arrear of land revenue (Section 14) and bar of jurisdiction of Courts (Section 15). The validity of the Public Premises Act was upheld by this Court in Hari Singh & Ors. vs The Military Estate Officer & Anr., 15. The Public Premises Act was amended in 1980 by the Public Premises (Eviction of Unauthorised Occupants) Amend ment Act, 1980, whereby the definition of 'public premises ' in Section 2(e) was amended to include premises belonging to or taken on lease by or on behalf of certain autonomous and statutory organisations, viz., any University established or incorporated by any Central Act, any Institute incorporated by the , any Board of Trustees constituted under the major Port Trusts Act, 1963, and the Bhakra Management Board and as well as premises belonging to or taken on lease by any Company which is subsidiary of a Company as defined in Section 3 of the in which not less than fifty one per cent of the paid up capital is held by the Central Govern ment. By the said Amending Act of 1980, the total period taken in eviction proceedings was also sought to be cur tailed by reducing the period for showing cause against notice of eviction, the period within which an unauthorised occupant should vacate the premises after eviction order has been passed and the period for filing an appeal against the order of an Estate Officer. By the said Amending Act of 1980 provisions were also made, by inserting Sections 5A, 5B and 5C, to deal with the squatting or spreading of goods on or against or in front of any public premises and removal of unauthorised constructions or encroachments on public prem ises. The Public Premises Act was further amended in 1984 by the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1984 whereby certain further amendments were made to provide for increased penalties and 661 making the offences under the Act cognisable and to enable the Estate Officers to exercise their powers under the Act effectively. As stated in the preamble, the Public Premises Act has been enacted to provide for the eviction of unauthorised occupants from public premises and, for certain incidental matters. In Section 2, various expressions have been de fined. The definitions of the following expressions which are of relevance are reproduced as under: "(c) "Premises" means any land or any building or part of a building and includes (i) the garden, grounds and out houses. if any, appertaining to such building or part of a building, and (ii) any fitting affixed to such building or part of a building for the more beneficial enjoyment thereof;" "(e) "Public Premises" means (1) any premises belonging to, or taken on lease or requisi tioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amend ment act, 1980 under the control of Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat; (2) any premises belonging to, or taken on lease by, or on behalf of, (i) any company as defined in Section 3 of the (1 of 1956) in which not less than fifty one per cent of the paid up share capital is held by the Central Government or any Company which is a subsidiary (within the meaning of the Act) of the first mentioned company, (ii) any corporation (not being a company as defined in Section 3 of the ( 1 of 1956), or a local authority) established by or under a Central Act and owned or controlled by the Central Government, 662 (iii) any University established or incorporated by any Central Act, (iv) any Institute incorporated by the Institutes of Tech nology Act, 1961 (59 of 1961); (v) any Board of Trustees constituted under the (38 of 1963); (vi) the Bhakra Management Board constituted under Section 79 of the Punjab Recoganisation Act, 1966 (31 of 1966) and that Board as and when renamed as the Bhakra Beas Management Board under Sub section (6) of Section 80 of the Act; and (3) in relation to the Union Territory of Delhi (i) any premises belonging to the Municipal Corporation of Delhi, or any municipal committee or notified area committee and (ii) any premises belonging to the Delhi Development Author ity, whether such premises are in the possession of, or leased out by the said Authority." "(g) "Unauthorised Occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been expired for any reason whatsoever." Section 3 makes provision for appointment by Central Govern ment of gazetted officer of Government or officers of equal rank of the statutory authority as Estate Officers. Section 4 relates to issue of show cause against order of eviction and provides as under: "(1) If the Estate Officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the Estate Officer shall issue in the manner hereinafter provided a notice in writing calling 663 upon all persons concerned to show cause why an order of eviction should not be made. (2) The notice shall (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises , (i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof; and (ii) to appear before the Estate Officer on the date speci fied in the notice alongwith the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired. (3) The Estate Officer shall cause the notice to be served by having it affixed on the outer door or some other con spicuous part of the public premises and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned. (4) Where the Estate Officer knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of subsection (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed. " Section 5 relates to eviction of unauthorised occupants and provides as under ' "(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub 664 section (2) of Section 4, the estate officer is satisfied that occupation of public premises is unauthorised, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be af fixed on the outer door or some other conspicuous part of the public premises. (2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of the date of its publication under sub section (1) whichever is later, the estate officer of any other officer duly authorised by the estate officer in this behalf may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of the public premises and may, for that purpose, use such force as may be neces sary." Section 5A provides for removal of unauthorised construc tions/structures or fixtures, cattle or other animal from public premises. Section 5B deals with demolition of unau thorised constructions. Section 5C empowers the Estate Officer to seal unauthorised constructions. Section 6 pro vides for disposal of property left on public premises by unauthorised occupants. Section 7 empowers the Estate Offi cer to require payment of rent or damages on account of use and occupation of public premises alongwith interest by the person found in unauthorised occupation. Section 8 lays down that an Estate Officer shall, for the purpose of holding any inquiry under the Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, when trying to suit in respect of certain matters, viz. summoning and enforcing the attendance of any person and examining him on oath, requiring discovery and production of documents; and any other matter which may be prescribed. Section 9 provides for an appeal from every order of the Estate Offi cer in respect of any public premises passed under Sections 5, 5B, 5C and 7 to an appellate officer who shall be a district judge of the district in which the public premises are situated or such other judicial officer in the district of not less than ten years ' standing as the district judge may designate in this behalf. It also prescribes the period of limitation for filing such appeals and also lays down that the appeal shall be disposed of by the appellate offi cer as expeditiously as possible. Sections 10 attaches finality to the orders 665 made by an Estate Officer or appellate officer and provides that the said orders shall not be called in questions in any original suit application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. Section 11 provides for offences and penalties and Section 11A lays down mat the offences under Section 11 would be treated as cognizable offences under the Code of Criminal Procedure, 1973. Section 15 relates to bar of jurisdiction and it provides as under: "No court shall have jurisdiction to entertain any suit or proceeding in respect of (a) the eviction of any person who is in unauthorised occu pation of any such public premises, or (b) the removal of any building, structure of fixture or goods, cattle or other animal from any public premises under Section 5 A, or (C) the demolition of any building or other structure made, or ordered to be made, under Section 5B, or (cc) the sealing of any erection or work or of any public premises under Section 5 C, (d) the arrears of rent payable under sub section (1) of Section 7 or damages payable under sub section (2), or interest payable under sub section (2 A) of that section, (e) the recovery of (i) costs of removal of any building, structure or fixture or g.gods. cattle or other animal under Section 5 A, or (ii) expenses of demolition under Section 5 B, or (iii) costs awarded to the Central Government or statutory authority under sub section (5) of Section 9, or (iv) any portion of such rent, damages, cost of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority. " 666 In exercise of the powers conferred by Section 18 of the Public Premises Act, the Central Government has made the Public Premises (Eviction of Unauthorised Occupants) Rule, 1971 (hereinafter referred to as the 'Public Premises Rules '). Rule 5 of said Rules relates to holding of in quiries and Rule 9 relates to procedure in appeals. We will first deal with the contentions urged by the learned counsel for the petitioners with regard to the scope of the definition of the expression 'Public Premises ' con tained in Section 2(e) and 'unauthorised occupation ', con tained in Section 2(g) of the Public Premises Act. As mentioned earlier, the appeals relate to premises belonging to nationalised Banks, viz. Punjab National Bank and Allahabad Bank, constituted under the provisions of the Banks Nationalisation Act. It has been urged by Shri Yogesh wer Prasad, that the premises belonging to a nationalised bank do not fall within the ambit of the definition of 'Public Premises ' contained in Section 2(e) of the Public Premises Act, for the reason that nationalised bank is not a company as defined in Section 3 of the and it is also not a corporation established by or under a Central Act. The submission of the learned counsel for the respondent banks is that the nationalised bank is a corpora tion established by a Central Act, viz. the Banks Nationali sation Act, and the premises belonging to a nationalised bank are 'public premises ' under Section 2(e)(2)(ii) of the Public Premises Act. The question which, therefore, requires to be considered is whether a nationalised bank is a corpo ration established by or under a Central Act and is owned or controlled by the Central Government. The nationalised banks have been established under the Banks Nationalisation Act, wherein the nationalised banks have been described as 'corresponding new bank '. In sub section (i) of Section 3 of the Banks Nationalisation Act, it has been provided that on the commencement of the said Act, there shall be constituted such corresponding new banks as are specified in the First Schedule. In subsection (2) of Section 3, it is laid down that the paid up capital of every corresponding new bank constituted under sub section (1) shall, until any provision is made in this behalf in any scheme made under Section 9, be equal to the paid up capital of the existing bank in relation to which it is the corre sponding new bank. Sub section(3) of Section 3 provides that the entire capital of the new bank shall stand vested in, and allotted to the Central Government. Sub section (4) of Section 3 lays down that every corresponding new bank shall be a body corpo 667 rate with perpetual succession and a common seal with power, subject to the provisions of the said Act, to acquire, hold and dispose of property, and to contract, and may sue and be sued in its name. From the aforesaid provisions contained in Section 3 of the Banks Nationalisation act it is evident that the nationalised banks have been established under the provisions of the said Act and the same are distinct juris tic persons with perpetual succession and the power to acquire, hold and dispose of property and to contract and having the right to sue and be sued in their own name and further that the entire capital of the said banks is vested in the Central Government, meaning thereby, that the said banks are owned by the Central Government. Shri Yogeshwer Prasad has pointed out that, in view of Section 3(4) of the Banks Nationalisation Act, the nationa lised bank is a body corporate and not a corporation and that there is a distinction between a body corporate and a corporation inasmuch as a body corporate includes bodies, such as companies, co operative societies, etc., which are not corporations. Reliance has been placed in this regard on the decision of Delhi High Court in Oriental Bank of Com merce and Another vs Delhi Development Authority and Anoth er, We find no substance in this contention. In English law a corporation has been defined as "a body of persons or an office which is recognised by the law has having a personality which is distinct from the separate personalities of the members of the body or the personality of the individual holder for the time being of the office in question." (See Halsbury 's Laws of England, Fourth Edition, Volume 9, Para 1201). Generally speaking, corporations are of two kinds; corporation aggregate and corporation sole. A corporation aggregate has been described as an incorporated group of co existing persons and a corporation sole as an incorporated series of successive persons, (Salmond on Jurisprudence, 12th Edition P 308. The distinctive feature of a corporation are that it has the capacity of continuous existence and succession, notwithstanding changes in its membership and it possesses the capacity of taking, holding and conveying property, entering into contracts. suing and being sued, and exercising such other powers and priviledges conferred on it by law of its creation just as a natural person may (See S.S. Dhanoa vs Municipal Corporation, Delhi & Ors. , ; Corporations aggregate may be public or private. A public corporation is a corporation formed for a public purpose e.g. local government authori ties, and it is usually incorporated by a public general Act of Parliament. A private corporation is a corporation formed for profit 668 e.g. a limited company, and it is usually incorporated under a statutory enactment. After the second world war there has been development of a new pattern of public corporations in England as an instrument of planning in the mixed economy. The general characteristics of such a public corporation is that it is normally created by a special statute; it has no shares and no shareholders either private or public, and its shareholder, in the symbolic sense, is the nation represent ed through Government and Parliament; the responsibility of the public corporation is to the Government, represented by the competent Minister and through the Minister to Parlia ment; the administration of the public corporation is en tirely in the hands of a board which is appointed by the competent Minister; and it has the legal status of a corpo rate body with independent legal personality. (See W. Fried man: The New Public Corporations and the Law [1947] 12 Mod. LR 234 236.) There is a similar growth of this type of public corporation in other countries. This trend is also evident in our country since independence and a number of such public corporations have been constituted by Acts of Parliament. The distinction between such a public corporation and a corporation generally known in law has been explained in the following observations of Denning L.J., as he then was: "The Transport Act, 1947, brings into being the British Transport Commission, which is a statutory corporation of a kind comparatively new to English law. It has many of the qualities which belong to corporations of other kinds to which we have been accustomed. It has, for instance, defined powers which it cannot exceed; and it is directed by a group of men whose duty it is to see that those powers are proper ly used. It may own property, carry on business, borrow and lend money, just as any other corporation may do, so long as it keeps within the bounds which Parliament has set. But the significant difference in this corporation is that there are no shareholders to subscribe the capital or to have any voice in its affairs. The money which the Corporation needs is not raised by the issue of shares but by borrowings and its borrowing is not served by debentures; but is guaranteed by the Treasury. If it cannot repay, the loss falls on the Consolidated Fund of the United Kingdom; that is to say, on the taxpayer. There are no shareholders to elect the direc tors or to fix their remuneration. There are no profits to be made or distributed." (Tamfin vs Hannaford, 669 Reference has already been made to the provisions of the Banks Nationalisation Act which show that the nationalised bank has been constituted as a distinct juristic person by the Act and it is owned by the Central Government. There are other provisions in the Banks Nationalisation Act which show that the general superintendence, direction and management of the affairs of the business of the bank is vested in a Board of Directors constituted by the Central Government and the Central Government has the power to remove a person from the membership of the Board of Directors (Section 7(2) & 7(3) and in the discharge of its functions the Bank is to be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after consultation with the Governor of the Reserve Bank, give (Section 8). This indicates that the nationalised bank has all the attributes of the new pattern of public corpora tion. Merely because the expression 'body corporate ' has been used in relation to the nationalised banks in Section 3(4) of the Banks Nationalisation Act and the expression 'corpo ration ' has not been used, does not mean that the nationa lised bank is not a corporation. The expression 'body corpo rate ' is used in legal parlance to mean a 'public or private corporation ' (Black 's Law Dictionary p. 159). Shri Yogeshwer Prasad has urged that in order to consti tute a corporation there must exist persons, i.e. members, composing it, and that this element is missing in the natio nalised banks inasmuch as the Banks Natiolisation Act does not provide for any membership to these banks. This conten tion is without any merit because, as noticed earlier, in the new pattern of public corporations which have developed, there are no shares and no shareholders, either public or private, and its shareholder, in the symbolic sense, is the nation represented through Government and Parliament. A similar contention was raised before the High Court of Australia in the Bank of New South Wales & Ors. vs The Commonwealth, in relation to the Common wealth Bank established as a body corporate by the Common wealth Bank Act, 1945. While rejecting this contention, Latham C.J. has observed: "The Commonwealth Parliament has declared that the bank is a corporation and the Court must on this, as on many previous occasions, accept that the bank (though it has no corpora tors) exists as a new kind of juristic person." (p. 227) 670 Similarly Dixon J. has observed: "Although the Commonwealth Bank is declared to be a body corporate there are no corporators. I see no reason to doubt the constitutional power of the Federal Parliament, for a purpose within its competence, to create a juristic person without identifying an individual or a group of natural persons with it, as the living constituent or constituents of the corporation. In other legal systems an abstraction or even an inanimate physical thing has been made an artificial person as the object of rights and duties." (p. 36 1) It may also be mentioned that in R.C. Cooper vs Union of India, ; this Court, while referring to nationalised banks constituted under the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969, has treated the nationalised banks as corporations. While construing the expression 'corporation ' in Section 2(e) (2)(ii) of the Public Premises Act it cannot be ignored that the object of the legislation in enlarging the defini tion of 'public premises ' in Section 2(e) is to make avail able the machinery of the Act for evicting unauthorised occupants not only from the premises belonging to the Cen tral Government but also from premises belonging to Compa nies, Corporations and statutory bodies in which the Central Government has a substantial interest. Under Section 2(e)(2)(i) premises belonging to a company incorporated under the , in which not less than fifty one per cent of the paid up capital is held by the Central Government, are to be treated as public premises. It could not be the intention of Parliament that premises belonging to public corporations whose entire paid up capital vests in the Central Government and who are the instrumentalities of State would be excluded from the ambit of the definition of 'public premises '. In our opinion,. therefore, the expres sion 'corporation ' in Section 2(e)(2)(ii) of the Public Premises Act would include public corporations of the new pattern constituted under the Central Acts wherein the entire paid up capital vests in the Central Government. Shri Yogeshwere Prasad has placed reliance on the deci sion of this Court in S.S. Dhanoa 's case (supra) wherein this Court has considered the question whether the Co opera tive Store Ltd., a cooperative society registered under the Bombay Co operative Societies is a corporation established by or under a Cen tral, Provincial or State Act, for the purposes of clause Twelfth of Section 21 of the Indian Penal Code. This Court has observed that a corporation established by or under an Act of legislature could only mean a body corporate which owes its existence and not merely its corporate status to the Act and a distinction has been drawn between a corpora tion established by or under an Act and a body incorporated under an Act. It has been held that the Co operative Store Ltd., which is a society registered under the Bombay Co operative Societies Act, 1925, is not a statutory body because it is not created by a statute and that it is a body created by an act of a group of individuals in accordance with the provisions of a Statute. This decision does not lend any assistance to the contention of Shri Yogeshwer Prasad. In Oriental Bank of Commerce 's case (Supra) the over ruled question for consideration was, whether the Chairman of a nationalised bank is a public servant and sanction under Section 197 of Code of Criminal Procedure was neces sary to prosecute him. M.L. Jain, J. has held that the nationalised bank is a body corporate and not a corporation within the meaning of clause Twelfth of Section 21 I.P.C. and, therefore, the Chairman of the nationalised bank is not a public servant under Section 21 I.P.C. The learned Judge has further held that even if the nationalised bank is a corporation, the Chairman of the said bank is not in the service or pay of the bank and further (in the facts of the case) it could not be said that the Chairman was acting or purporting to act in the discharge of official duty. Sachar, J. did not consider it necessary to deal with the question, as to whether the nationalised bank is a corporation because he was of the view that Section 197 Cr. P.C. was not at tracted. For the reasons mentioned earlier, the judgment of Jian, J. insofar as it draws a distinction between a 'body corporate ' and a 'corporation ' and laws down that the natio nalised bank, though a 'body corporate ' is not a corpora tion, cannot be upheld. The other reason given by Jain, J. is that the nationalised bank is merely a personified insti tution having no members and is, therefore, not a corpora tion. This view also cannot be sustained. We have already pointed out that in order to constitute a corporation it is not necessary that there should be shareholders or members and that in the new pattern of public corporation that has developed there are no shareholders or members. Keeping in view the provisions of the Banks Nationalisa tion Act we are of the opinion that the nationalised bank is a corporation established by a Central Act and it is owned and controlled by the 672 Central Government. The premises belonging to a nationalised bank are public premises under Section 2(e)(2)(ii) of the Public Premises Act. We are, therefore, unable to accept the contention of Shri Yogeshwar Prasad that premises belonging to a nationalised bank do not fall within the ambit of the definition of 'public premises ' contained in Section 2(e) of the Public Premises Act. Shri Yogeshwer Prasad has also urged that 'public prem ises ' as defined in Section 2(e) of the Public Premises Act, must be confined to premises let out for residential pur poses only and should not cover premises let out for commer cial purposes and that if premises let out for commercial purposes are included, Section 2(e) would be rendered uncon stitutional as being violative of the provisions of Articles 14, 19(1)(g) and 21 read with Articles 39 and 41 of the Constitution. The submission of Shri Yogeshwer Prasad is that a construction which would sustain the constitutionali ty of the provisions of Section 2(e) should be preferred over a construction which would render them constitutional. We find no force in this contention. There is no warrant for confining the scope of the definition of 'public premises ' contained in Section 2(e) to premises used for residential purposes only and to excluded premises used for commercial purposes from its ambit. In Hari Singh vs Military Estate Officer, (Supra) a similar contention was advanced and it was argued that the expres sion 'premises ' in Public Premises Act would not apply to agricultural land. This Court rejected that contention with the observation: "The word 'premises ' is defined to mean any land. Any land will include agricultural land. There is nothing in the Act to exclude the applicability of the Act to agricultural land. " We are also unable to hold that the inclusion of prem ises used for commercial purposes within the ambit of the definition of 'public premises ', would render the Public Premises Act as violative.of the right to equality guaran teed under Article 14 of the Constitution or right to free dom to carry on any occupation, trade or business guaranteed under Article 19(1)(g) of the Constitution or the right to liberty guaranteed under Article 21 of the Constitution. It is difficult to appreciate how a person in unauthorised occupation of public premises used for commercial purposes, can invoke the Directive Principles under Article 39 and 41 of the Constitution. As indicated in the 673 statement of Objects and Reasons the Public Premises Act has been enacted to provide for a speedy machinery for the eviction of unauthorised occupants of public premises. It serves a public purpose, viz. making available, for use, public premises after eviction of persons in authorised occupation. The need to provide speedy machinery for evic tion of persons in unauthorised occupation cannot be con fined to premises used for residential purposes. There is no reason to assume that such a need will not be there in respect of premises used for commercial purposes. No dis tinction can, therefore, be made between premises used for residential purposes and premises used for commercial pur poses in the matter of eviction of unauthorised occupants of public premises and the considerations which necessitate providing a speedy machinery for eviction of persons in unauthorised occupation of public premises apply equally to both the types of public premises. We are, therefore, unable to accept the contention of Shri Yogeshwer Prasad that the definition of public premises contained in Section 2(e) of the Public Premises Act should be so construed as to exclude premises used for commercial purposes from its ambit. Shri A.K. Ganguli, has urged that a person who was put in occupation of the premises as a tenant and who was con tinued in such occupation after the expiry or the termina tion of his tenancy cannot be regarded as a person in unau thorised occupation under Section 2(g) of the Public Prem ises Act. The submission of Shri Ganguli is that, the occu pation of a person who was put in possession as a tenant is juridical possession and such an occupation cannot be re garded as unauthorised occupation. In support of this sub mission, Shri Ganguli has placed reliance on the decision of the Bombay High Court in Brigadier K.K. Verma & Anr. vs Union of India & Anr., A.I.R. 1954 Bombay 358 which has been approved by this Court in Lallu Yeshwant Singh vs Rao Jag dish Singh & Ors., ; The definition of the expression 'unauthorised occupa tion ' contained in Section 2(g) of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the Public premises without authority for such occupation. It implies occupation by a person who has entered into occupa tion of any public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclu sive in nature and it expressly covers continuance in occu pation by any person of the public premises after the au thority (whether by way of grant or any other mode of trans fer) under which he was allowed to occupy the premises has 674 expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words "whether by way of grant or any other mode of transfer" in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover a case where a person has en tered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law. Brigadier K.K. Verma & Anr. vs Union of India & Anr. (Supra) was decided under the provisions of the Government Premises (Eviction) Act, 1950, which did not contain the definition of the expression 'unauthorised occupation '. In that case it has been held that under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law and although he may not have the right to continue in possession, after the termination of the tenan cy, his possession is juridical and that possession is protected by statute, and therefore, an erstwhile tenant can never become a trespasser and his possession cannot be regarded as unauthorised occupation. The learned Judges have also observed that unless the legislature had given indica tion of a clear intention that by the expression 'unautho rised occupation ' it meant not only person who had no title at all but also persons who are titled at the inception and whose title came to an end, it would not be proper to give an interpretation to the expression 'unauthorised occupa tion ' which would run counter to the principles of law which have been accepted in this country. After this decision the legislature intervened and introduced the definition of the expression 'unauthorised occupation ' in the , which defi nition has been reproduced in Section 2(e) of the Public Premises Act and in the said definition the legislature has taken care to make an express provision indicating that the expression 'unauthorised occupation ' includes the continu ance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. In the circumstances the petitioners cannot derive any assistance from the decision of the Bombay High Court in Brigadier K.K. Verma 's case (supra). 675 Shri Ganguli has placed reliance on the decision of A.P. Sen, J. in Express Newspapers Pvt. Ltd. & Ors. vs Union of India & Others, [1985] Suppt. 3 S.C.R. 382 and has submitted that in that case the learned Judge has held that cases involving relationship between the lessor and lessee fall outside the purview of the Public Premises Act. We have carefully perused the said decision and we are unable to agree with Shri Ganguli. In that case A.P. Sen, J. has observed that the new building had been constructed by the Express Newspapers Pvt. Ltd. after the grant of permission by the lessor, and, therefore, the Express Newspapers Pvt. Ltd. was not in unauthorised occupation of the same within the meaning of Section 2(g) of the Public Premises Act. It was also held by the learned Judge that the Express Building constructed by the Express Newspapers Ltd. with the sanction of lessor on plots Nos. 9 and 10 demised on perpetual lease can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e) of the Public Premises Act, and therefore, there was no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under the provisions of the Public Premises Act. The aforesaid observations indicate that the learned Judge did not proceed on the basis that cases in volving relationship of lessor and lessee fall outside the purview of the Public Premises Act. On the other hand the said observations show that the learned Judge has held that the provisions of the Public Premises Act could not be invoked in the facts of that case. Another submission that has been urged by Shri Ganguli is that the question whether a tease has been determined or not involves complicated questions of law and the estate officer, who is not required to be an officer well versed in law, cannot be expected to decide such question and, there fore, it must be held that the provisions of the Public Premises Act have no application to a case when the person sought to be evicted had obtained possession of the premises as a lessee. It is true that there is no requirement in the Public Premises Act that the estate officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease. Section 4 of the Public Premises Act requires issuing of a notice to the person in unauthorised occupation of any Public Premises requiring him to show cause why an order of eviction should not be made. Section 5 makes provisions for production of evidence in support of the cause shown by the person who has been served with a notice under Section 4 and giving of a personal hearing by the estate officer. Section 8 provides that an estate 676 officer, shall, for the purpose of holding any enquiry under the said Act have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters specified therein namely: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring discovery and production of documents; and (c) any other matters which may be prescribed. Rule 5(2) of the Public Premises (Eviction of Unautho rised Occupants) Rules, 1971, requires the estate officer to record the summary of evidence tendered before him. Moreover Section 9 confers a right of appeal against an order of the estate officer and the said appeal has to be heard either by the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years ' standing as the dis trict judge may designate in that behalf. In shows that the final order that is passed is by a judicial officer in the rank of a district judge. A similar contention was raised before this Court in Maganlal Chhagganlal (P) Ltd. vs Municipal Corporation of Greater Bombay & Others, ; wherein the validity of the provisions of Chapter VA of the Bombay Municipal Corporation Act, ' 1888 and the Bombay Government Premises (Eviction) Act, 1955 were challenged before this Court and the said contention was negatived. Aligiriswami, J. speaking for the majority, has observed as under: "Even though the officers deciding these questions would be administrative officers there is provision in these Acts for giving notice to the party affected, to inform him of the grounds on which the order of eviction is proposed to be made, for the party affected to file a written statement and produce documents and be represented by lawyers. The provi sions of the Civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on oath, and requiring the discovery and production of documents are a valuable safeguard for the person affected. So is the provision for appeal to the Principal Judge of the City Civil Court in the city of Bombay, or to a District Judge in the district who has got to deal with the 677 matter as expeditiously as possible, also a sufficient safeguard as was recognised in Suraj Mail Mehta 's case. " Having dealt with the submissions of learned counsel for the petitioners on the applicability of the provisions of Public Premises Act, we may come to the main question in volved in these matters, namely, whether the provisions of the Public Premises Act override the provisions of the Rent Control Act. For appreciating the submissions of the learned counsel on this question it is necessary to examine the provisions of both the enactments. The relevant provisions of the Public Premises Act have already been set out. We may briefly refer to the provisions of the Rent Control Act. The Rent Control Act has been enacted by Parliament to provide for the control of rents and evictions and of rate of hotels and lodging houses and for the lease of vacant premises to Government, in certain areas in the Union Terri tory of Delhi. It extends to the areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule to the Act (Section 1(2). The expression 'premises is defined in Section 2(i) as under: "Premises means any building or part of a building which is or, is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and in cludes: (i) the garden, grounds and outhouses, if any,, appertaining to such building or part of the building; (ii) any furniture supplied by the landlord for use in such building or part of the building; but does not include a room in a hotel or lodging house. " Section 3, which excludes the applicability of the Act to certain premises, provide as under: "Nothing in this Act shall apply: (a) to any premises belonging to the Government; (b) to any tenancy or other like relationship created by a 678 grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, notwith standing any judgment, decree or order of any court or other authority, the provisions 'of this Act shall apply to such tenancy. (c) to any premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees; or (d) to any premises constructed on or after the commencement of the Delhi Rent Control (Amendment) Act, 1988, for a period of ten years from the date of completion of such construction." Chapter II (Sections 4 to 13) contains provisions re garding rent including fixation of standard rent. Chapter III (Sections 14 to 25) contains provisions for control of eviction, of tenants. Section 14 gives protection to tenants against eviction and provides that an order for eviction of a tenant can be passed only on one or more of the grounds mentioned in clauses (a) to (1) of sub section (1). Special provisions have been made for recovery of immediate posses sion of premises in Sections 14A to 14D in respect of cer tain classes of landlords. Section 22 contains a special provision for recovery of possession of premises where the landlord is a company or a body corporate or a local author ity or a public institution if the premises are required for the use of employees of such landlord or, in the case of a public institution, for the furtherance of its activities. In Chapter IIIA (Sections 25 A to 25 C) provisions have been made for summary trial of certain applications for eviction on the ground of bona fide requirement of the landlord. Chapter IV (Sections 26 to 29) contains provisions relating to deposit of rent. Chapter V (Sections 30 to 34) contains provisions relating hotels and lodging houses. Chapter VI (Sections 35 to 43) contains provisions relating to appoint ment of controllers and their powers and functions and appeals. Section 42 makes provisions for execution of orders passed by the Controller or in appeal, as a decree of civil court. Section 43 attaches finality to the order passed by the Controller and the order passed in appeal. Chapter VII (Sections 44 to 49) contains provisions regarding special obligations of landlords and 679 penalties. Chapter VIII (Sections 50 to 57) contains miscel laneous provisions. Under Section 50 jurisdiction of civil courts is barred in respect of matters specified therein. Section 54 saves the operation of certain enactments, name ly, , the and the Delhi Tenants (Temporary Protection) Act, 1956. On a comparison of the provisions of the Public Premises Act and the Rent Control Act it will be found that: 1. By virtue of Section 1(2) of the Public Premises Act, the said Act is applicable throughout the territory of India, whereas, view of Section 1(2) of the Rent Control Act, the said Act is confined in its application to areas included within the limits of the New Delhi Municipal Com mittee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule and any other urban area included within the limits of the Municipal Corporation of Delhi to which provisions of the said Act are extended by the Central Government by notification in the Official Gazette. (2) Under Clauses (c) of Section 2 of the Public Premises Act, the expression 'premises ' has a wider connotation and it includes open land as well as building or part of a building. Under the Rent Control Act the expression 'prem ises ' as defined in clause (i) of Section 2 has a narrower connotation to mean any building or a part of building and it does not cover open land. In view of the definition of the expression 'public premises ' contained in clause (e) of Section 2 of the Public Premises Act, the said Act, in addition to the premises belonging to or taken on lease or requisitioned by, or on behalf of, the Central Government, is applicable to premises belonging to or taken on lease by or on behalf of the compa nies and statutory bodies mentioned in clauses (2) and (3) of Section 2(e). The Rent Control Act, on the other hand, is applicable to all premises except premises belonging to the Government or to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government (Section 3). In view of the amendment introduced in Section 3 by the Delhi Rent Con 680 trol Act is not applicable to premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees and premises constructed on or after the commencement of the said Amendment Act, for a period of ten years from the date of completion of such construction. The provisions of the Public Premises Act are applica ble to Public Premises in occupation of a person having no authority for such occupation, including a person who was allowed to occupy the public premises under a grant or any other mode of transfer and who has continued in occupation after the authority under which he was allowed to occupy that premises has expired or has been terminated. The provi sions of the Delhi Rent Control Act are applicable only to persons who have obtained possession of the premises as tenants and whose tenancy is continuing as well as persons who after the expiration or termination of the tenancy have continued in occupation of the premises. As a result of this comparison it can be said that certain premises, viz. building or parts of buildings lying within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and in urban areas within the limits of the Municipal Corporation of Delhi, which belong to or are taken on lease by any of the companies or statuto ry bodies mentioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act and which are in occupation of a person who obtained possession of the said premises as a tenant and whose tenancy has expired or has been terminated but who is continuing in occupation of the same, would ex facie fall within the purview of both the enactments. The question which, therefore, arises is whether the occupant of such premises can seek the protection available under the provisions of Rent Control Act and he can be evicted from the premises only in accordance with the said provisions and proceedings for eviction of such a person cannot be initiat ed under the provisions of the Public Premises Act. Shri Venugopal and other learned counsel representing the petitioners have urged that the Rent Control Act is a self contained code providing for regulating the relation ship of landlords and tenants and it makes comprehensive provisions with regard to control of rents as well as evic tion of tenants and that the provision of the Rent Control Act, being special in nature insofar as lease hold proper ties in Delhi are concerned, would prevail over the provi sions of the Public 681 Premises Act which are in the nature of general provisions relating to eviction of unauthorised occupants from Govern ment premises in the whole country. In support of this submission the learned counsel for the petitioners have placed reliance on Sections 22 and 54 and the non obstante clause contained in Section 14(1) of the rent Control Act. It has also been urged by the learned counsel for the peti tioners that the Public Premises Act does not contain any machinery for the termination of the tenancy and that in view of the decision of this Court in V. Dhanapal Chettiar vs Yesodai Ammal, ; , the jural relationship of landlord and tenant can come to an end only on the pass ing of an order of eviction by a competent court in accor ding with the provisions of the Rent Control Act and that in the absence of an order of eviction under the provisions of the Rent Control Act no proceedings can be initiated against a person who came into occupation of the premises as a tenant and who is continuing in occupation of the said premises after the contractual tenancy has expired or has been terminated. The learned Attorney General and Shri G.L. Sanghi, appearing on behalf of the respondents in the appeals, have urged that the Public Premises Act is in the nature of a special enactment making provision for speedy and expedi tious recovery of possession of public premises from persons in unauthorised occupation of the same whereas the Rent Control Act is general enactment regulating the relationship of landlord and tenant and since the Public Premises Act is a special enactment it would override the provisions of the Rent Control Act. It has also been urged that the Public Premises Act is a later enactment, having been enacted in 1971, whereas the Rent Control Act was enacted in 1958, and, therefore, the Public Premises Act would prevail over the Rent Control Act. It has been urged that Section 15 of the Public Premises Act which bars the jurisdiction of other Courts is in the nature of a non obstante clause which gives overriding effect to the provisions of the Public Premises Act. The learned Addl. Solicitor General, appearing for the respondents in the writ petitions, has adopted a different line of argument. He has contended that the Public Premises Act had been enacted by Parliament in exercise of its legis lative power under Article 246(1) read with entries 32, 95 and 97 of List I of the Seventh Schedule to the Constitution whereas the Rent Control Act has been enacted by Parliament in exercise of its legislative power under Article 246(4) read with entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and since the Public Premises Act has been enacted in 682 exercise of the legislative power under Article 246(1) of the Constitution, it would prevail over the Rent Control Act enacted in exercise of legislative power under Article 246(4) of the Constitution. At this stage, it may be mentioned that in Jain Ink Manufacturing Company vs Life Insurance Corporation of India & Another, ; decided by a bench of three Judges, it has been held that the Public Premises Act over rides the provisions of the Delhi Rent Control Act. In that case it has been observed that the scope and object of the Public Premises Act is quite different from that of Rent Control Act and while the Public Premises Act operates in a very limited field in that it applies only to a limited nature of premises belonging only to particular sets of individuals, a particular set of juristic persons like Companies, Corporations or the Central Government, whereas the Rent Control Act is of much wider application and it applies to all private premises which do not fall within the limited exceptions indicated in Section 2 of the Public Premises Act and the object of the Rent Control Act is to afford special protection to all the tenants or private landlords or landlords who are neither a Corporation nor Government or Corporate Bodies. It was, therefore, held that the Public Premises Act is a special Act as compared to the Rent Control Act and it overrides the provisions of the Rent Control Act. The learned counsel for the petitioners have assailed the correctness of the said decision and have submitted that it needs reconsideration. As regards rent control legislation enacted by the State legislatures the position is well settled that such legisla tion fall within the ambit of entries 6, 7 and 13 List III of the Seventh Schedule to the Constitution (See: Indu Bhushan Bose vs Rama Sundari Devi & Another, ; ; V Dhanpal Chettiar 's case (supra); Jai Singh Jairam Tyagi etc. vs Mamanchand Ratilal Agarwal & Others, ; and Accountant and Secretarial Services Pvt. Ltd. & Another vs Union of India & Others, ; The Rent Control Act has been enacted by Parliament in relation to the Union Territory of Delhi in exercise of the legislative power conferred under Article 246(4) of the Constitution which empowers Parliament to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. The Public Premises Act deals with Government property as well as property belonging to other legal entities men tioned in clauses (2) 683 and (3) of Section 2(e) of the Public Premises Act. In so far as it relates to eviction of unauthorised occupants from premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government the Public Premises Act would fall within entry 32 of List I being law with respect to a property of the Union. The property belonging to the various legal entities mentioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act cannot be regarded as property of the Union and the Public Premises Act cannot be held to have been enacted under entry 32 of List I in respect of the said properties. In Accountant and Secretarial Services Pvt. Ltd. and Another vs Union of India and Others, (supra) this Court has held that the Public Premises Act, in relation to properties other than the properties belonging to the Central Government has been enacted under the concurrent list. The learned Additional Solicitor General has placed reliance on the decision of this Court in Smt. Saiyada Mossarrat vs Hindustan Steel Ltd., ; wherein it has been held that with regard to the subject matter of speedy eviction of unautho rised occupants from properties belonging to a Government company, wherein the Central Government has more than fifty one per cent of the paid up capital, the source of authority can be traced to entry 97 read with entry 95 of Union List (List 1). This Court has, however, affirmed the decision of the Division Bench of Madhya Pradesh High Court in L.S. Nair vs Hindustan Steel Ltd., AIR 1980 MP 106 wherein it has been held that insofar as the Public Premises Act deals with a lessee or licence of premises belonging to a Government company, the subject matter of the Act would be covered by entries 6, 7 and 46 of List III. After quoting the observa tions of the Madhya Pradesh High Court in this regard, this Court has observed: "Learned counsel for the petitioner has not been able to show that there is any infirmity in the reasoning of the High Court." This shows that the decision of this Court is rounded on the view mentioned above. Since the Act was held to be covered by entries 6, 7 and 46 of List III, it was not necessary to invoke the residuary power of legislation under entry 97 of List I. The observations made by this Court that the source of authority in the matter of speedy eviction of unautho rised occupants from properties belonging to a Government company wherein the Central Government has more than fifty one per cent of the paid up share capital can, in any case, be traced to entry 97 read with entry 95 of List I are obiter in nature only. There is, therefore, no inconsistency between the decisions of this Court in Accoun 684 tant and Secretarial Services Pvt. Ltd. (supra) and Smt. Saiyada Mossarrat case (supra) inasmuch as in both the decisions it is held that the Public Premises Act insofar as it deals with a lessee or licencee of premises other than premises belonging to the Central Government has been enact ed in exercise of the legislative powers in respect of matters enumerated in the Concurrent List. We are in agree ment with this view. This means that both the statutes, viz. the PubLic Premises Act and the Rent Control Act, have been enacted by the same legislature, Parliament, in exercise of the legis lative powers in respect of the matters enumerated in the Concurrent List. We are, therefore, unable to accept the contention of the learned Additional Solicitor General that the Public Premises Act, having been enacted by Parliament in exercise of legislative powers in respect of matters enumerated in the Union List would ipso facto override the provisions of the Rent Control Act enacted in exercise of the legislative powers in respect of matters enumerated in the Concurrent List. In our opinion the question as to whether the provisions of the Public Premises Act override the provisions of the Rent Control Act will have to be considered in the light of the principles of statutory interpretion applicable to laws made by the same legisla ture. One such principle of statutory interpretation which is applied is contained in the latin maxim: leges posteriors priores conterarias abrogant, (later laws abrogate earlier contrary. laws). This principle is subject to the exception embodied in the maxim: generalia specialibus non derogant, (a general provision does not derogate from a special one). This means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one (Benion: Statutory Interpretation p. 433 34). The rationale of this rule is thus explained by this Court in the J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs The State of Uttar Pradesh & Others, ; "The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers Judges but springs from the common understanding of man and women that when the same person gives two directions 685 one covering a large number of matters in general and anoth er to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier directions should have effect." (p. 94) In U.P. State Electricity Board & Ors. vs Hari Shankar Jain & Ors., ; this Court has observed: "In passing a special Act, Parliament devotes its entire consideration to a particular subject. When a General Act is subsequently passed, it is logical to presume that Parlia ment has not repealed or modified the former Special Act unless it appears that the Special Act again received con sideration from Parliament." (p. 366) In Life Insurance Corporation vs D.J. Bahadur; , Krishna Iyer, J. has pointed out: "In determining whether a statute is a special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with liner points of law." (p. 1127) The Public Premises Act is a later enactment, having been enacted on 23rd August, 1971, whereas the Rent Control Act was enacted on 31st December, 1958. It represents the later will of Parliament and should prevail over the Rent Control Act unless it can be said that the Public Premises Act is a general enactment, whereas the Rent Control Act is a special enactment and being a special enactment the Rent Control Act should prevail over the Public Premises Act. The submission of learned counsel for the petitioners is that the Rent Control Act is a special enactment dealing with premises in occupation of tenants, whereas the Public Prem ises Act is a general enactment dealing with the occupants of Public Premises and that insofar as public premises in occupation of tenants are concerned the provisions of the Rent Control Act would continue to apply and to that extent the provisions of the Public Premises Act would not be applicable. In support of this submission reliance has been placed on the non obstante clauses contained in Section 14 and 22 of the Rent Control Act as well as the provisions contained in Sections 50 and 54 of the said Act. On the 686 other hand the learned counsel for the respondents have urged that the Rent Control Act is a general enactment dealing with the relationship of landlord and tenant gener ally, whereas the Public Premises Act is a special enactment making provision for speedy recovery of possession of Public Premises in unauthorised occupation and that the provisions of the Public Premises Act, a later Special Act, will, therefore, override the provisions of the Rent Control Act in so far as they are applicable to Public Premises in occupation of persons who have continued in occupation after the lease has expired or has been determined. The learned counsel for the respondents have placed reliance on Section 15 of the Public Premises Act which bars the jurisdiction of all courts in respect of the eviction of any person who is in unauthorised occupation of any Public Premises and other matters specified herein. It has been submitted that the said provision is also in the nature of a non obstante clause which gives overriding effect to the provisions of the Public Premises Act. Thus each side claims the enactment relied upon by it is a special statute and the other enact ment is general and also invokes the non obstante clause contained in the enactment relied upon. The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Trnasfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the evic tion of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi. The Public premises Act makes provision for a speedy machinery to secure eviction of unau thorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a competent Court and for trial of such a suit in accordance with the procedure laid down in the Code of Civil procedure, the Public Prem ises Act confers the power to pass an order or eviction of an unauthorised occupant in a public premises on a designat ed officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. In other words, both the enactments, namely, the Rent Con trol Act and the Public Premises Act, are special statutes in relation to the matters dealt with therein. Since, the Public premises Act is a special statute and not a general enactment the 687 exception contained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier contrary laws, the Public Premises Act must prevail over the Rent Control Act. We arrive at the same conclusion by applying the princi ple which is followed for resolving a conflict between the provisions of two special enactments made by the same legis lature. We may in this context refer to some of the cases which have come before this Court where the provisions of two enactments made by the same legislature were found to be inconsistent and each enactment was claimed to be a special enactment and had a non obstante clause giving overriding effect to its provisions. In Shri Ram Narain vs The Simla Banking and Industrial Co. Ltd., ; this Court was considering the provisions contained in the Banking Companies Act, 1949 and the . Both the enactments contained provisions giving overriding effect to the provisions of the enactment over any other law. This Court has observed: "Each enactment being a Special Act, the ordinary principle that a special law overrides a general law does not afford any clear solution in this case" (p. 613) "It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considera tions of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the rele vant provisions therein." (p. 615) Similarly in Kumaon Motor Owners ' Union Ltd. and Another vs The State of Uttar Pradesh, 1 there was conflict between the provisions contained in Rule 131(2)(gg) and (i) of the Defence of India Rules, 1962 and Chapter IV A of the Motor Vehicle Act, 1939. Section 68 B gave overriding effect to the provisions of Chapter IV(A) of the Motor Vehicle Act whereas Section 43 of the Defence of India Act, 1962, gave overriding effect to the provisions contained in the Defence of India Rules. This Court held that the Defence of India Act was later than the Motor Vehicles Act and, therefore, if there was anything repugnant, the provisions of the later 688 Act should prevail. This Court also looked into object behind the two statutes, namely, Defence of India Act and Motor Vehicles Act and on that basis also it was held that the provisions contained in the Defence of India Rules would have an overriding effect over the provisions of the Motor Vehicles Act. In Sarwan Singh & Another vs Kasturi Lal, ; , the question for consideration was, whether the provi sions of Section 14A and Chapter IIIA of the Rent Control Act will prevail over those contained in Sections 19 and 39 of the . Section 14A and 25A of the Rent Control Act contained non obstante clauses but in Section 54 of the Rent Control Act it was expressly provided that nothing in the said Act shall effect the provisions of the . Moreover in Section 19 of the mere was non obstante clause and Section 39 of the said Act gave overrid ing effect to the provisions of the said enactment over any other Jaw. This Court has observed: "When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and inci sive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the obeject and purpose of the laws under consideration." (p. 433) After examining the special and specific purpose under lying the enactment of Section 14A and Chapter IIIA of the Rent Control act and the fact that the Rent Control Act was a later enactment this Court held that the provisions of the Rent Control Act would prevail over those contained in the . The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as Special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. We propose to consider this matter in the light of this principle. The statement of objects and reasons for the enactment of the 689 Rent Control Act, indicates that it has been enacted with a view: (a) to devise a suitable machinery for expeditious adjudica tion of proceedings between landlords and tenants; (b) to provide for the determination of the standard rent payable by tenants of the various categories of premises which should be fair to the tenants, and at the same time, provide incentive for keeping the existing houses in good repairs, and for further investment in house construction; and (c) to give tenants a larger measure of protection against eviction. This indicates that the object underlying the Rent Control Act is to make provision for expeditious adjudication of disputes between landlords and tenants, determination of standard rent payable by tenants and giving protection against eviction to tenants. The premises belonging to the Government are excluded from the ambit of the Rent Control Act which means that the Act has been enacted primarily to regulate the private relationship between landlords and tenants with a view to confer certain benefits on the ten ants and at the same time to balance the interest of the landlords by providing for expeditious adjudication of proceedings between landlords and tenant. As mentioned earlier, the Public Premises Act has been enacted with a view to provide for eviction of unauthorised occupants from public premises. In the statement of objects and reasons for this enactment reference has been made to the judicial decisions whereby by the 1958 Act was declared as unconstitutional and it has been mentioned: "The court decisions, referred to above, have created seri ous difficulties for the Government inasmuch as the proceed ings taken by the various Estate Officers appointed under the Act either for the eviction of persons who are in unau thorised occupation of public premises or for the recovery of rent or damages from such persons stand null and void. It has become impossible for Government to take expeditious action even inflagrant cases of unauthorised occupation of public premises and recovery of rent or damages for such unauthorised occupation. It is, therefore, considered imper ative to restore a speedy machinery for the eviction of persons who are in unauthorised occupation 690 of public premises keeping in view at the same time the necessity of complying with the provision of the Constitu tion and the judicial pronouncements, referred to above." This shows that the Public Premises Act has been enacted to deal with the mischief of rampant unauthorised occupation of public premises by providing a speedy machinery for the eviction of persons in unauthorised occupation. In order to secure this object the said Act prescribes the time period for the various steps which are enquired to be taken for securing eviction of the persons in unauthorised occupation. The object underlying the enactment is to safeguard public interest by making available for public use premises belonging to Central Government, Companies in which the Central Government has substantial interest, Corpora tions owned or controlled by the Central Government and certain autonomous bodies and to prevent misuse of such premises. It would thus appear that, while the Rent Control Act is intended to deal with the general relationship of landlords and tenants in respect of premises other than government premises, the Public Premises Act is intended to deal with speedy recovery of possession of premises of public nature, i.e. property belonging to the Central Government, or Compa nies in which the Central Government has substantial inter est or Corporations owned or controlled by the Central Government and certain corporations, institutions, autono mous bodies and local authorities. The effect of giving overriding effect to the provisions of the Pubic Premises Act over the Rent Control Act, would be that buildings belonging to Companies Corporations and Autonomous bodies referred to in Section 2(e) of the Public Permises Act would be excluded from the ambit of the Rent Control Act in the same manner as properties belonging to the Central Govern ment. The reason underlying the exclusion of property be longing to the Government from the ambit of the Rent Control Act, is that Government while dealing with the citizens in respect of property belonging to it would not act for its own purpose as a private landlord but would act in public interest. What can be said with regard to Government in relation to property belonging to it can also be said with regard to companies, corporations and other statutory bodies mentioned in Section 2(e) of the Public Premises Act. In our opinion, therefore, keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and the Public Premises Act, the provisions of the Public Premises Act have to be construed as overriding the provi sions contained in the Rent Control Act. 691 As regards the non obstante clauses contained in Sec tions 14 and 22 and the provisions contained in Sections 50 and 54 of the Rent Control Act, it may be stated that Par liament was aware of these provisions when it enacted the Public Premises Act contained a specific provision in Sec tion 15 barring jurisdiction of all courts (which would include the Rent Controller under the Rent Control Act). This indicates that Parliament intended that the provisions of the Public Premises Act would prevail over the provisions of the Rent Control Act inspite of the above mentioned provisions contained in the Rent Control Act. It has been urged by the learned counsel for the peti tioner that there is no conflict between the provisions of the Rent Control Act and the Public Premises Act and that both the provisions can be given effect to without one overriding the other. In this regard, it has been pointed out that since no provisions has been made in the Public Premises Act for the termination of the lease, the provi sions of the Rent Control Act can be held applicable upto the stage of termination of the lease, and thereafter, proceedings can be initiated for eviction under the provi sions of the Public Premises Act. In support of this submis sion, reliance has been placed on Dhanpal Chettiar 's case (supra), wherein it has been held that in view of the spe cial provisions contained in the State Rent Control Acts, it is no longer necessary to issue a notice under Section 106 of the Transfer of Property Act to terminate the tenancy because inspite of the said notice the tenant is entitled to continue in occupation by virtue of the provisions of the said Acts. In the said case, it has been further laid down that the relationship between the landlord and tenant con tinues till the passing of the order of eviction in accord ance with the provisions of the Rent act, and therefore, for the eviction of the tenant in accordance with the law, an order of the competent Court under the Rent Control Act is necessary. This would mean that in order to evict a person who is continuing in occupation after the expiration or termination of his contractual tenancy in accordance with law, two proceedings will have to be initiated. First, there will be proceedings under Rent Control Act before the Rent Controller followed by appeal before the Rent Control Tribu nal and revision before the High Court. After these proceed ings have ended they would be followed by proceedings under the Public Premises Act, before the Estate Officer and the Appellate Authority. In other words, persons in occupation of public premises would receive greater protection than tenants in premises owned by private persons. It could not be the intention of Parliament to confer this dual benefit on persons in occupation of public premises. 692 It has also been urged that in Section 22 of the Rent Control Act, special provision has been made for recovery of possession of premises belonging to a company or other body corporate or any local authority or any public institution and that premises belonging to companies, corporations and autonomous bodies mentioned in clauses (2) and (3) of Sec tion 2(e) of the Public Premises would be covered by the said provision and that in view of this special provision it is not necessary to have a further provision in the Public Premises Act for the recovery of possession belonging to those bodies, and therefore, the provisions of the Public Premises Act should be confined in their application to premises other than premises covered by the Rent Control Act. Section 22 of the Rent Control Act provides as under: "Where the landlord in respect of any premises is any compa ny or other body corporate of any local authority or any public institution and the premises are required for the use of employees of such landlord or in the case of a public institution for the furtherance of its activities, then, notwithstanding anything contained in Section 14 or any other law, the Controller may, on an application made to him in this behalf by such landlord, place the landlord in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the Controller is satisfied (a) that the tenant to whom such premises were let for use as a residence at a time when he was in the service or employment of the landlord, has ceased to be in such service or employment; or (b) that the tenant has acted in contravention of the terms, express or implied, under which he was authorised to occupy such premises; or (c) that any other person is in unauthorised occupation of such premises; or (d) that the premises are required bona fide by the public institution for the furtherance of its activities. Explanation For the purpose of this section, "public in stitution" includes any educational institutional, library, hospital and charitable dispensary but does not include any 693 such institution set up by any private trust. " The said special provision shows that, it enables recov ery of possession or premises of which the landlord is a company or other body corporate or any local authority or any public institution in certain circumstances viz., if the premises are required for the use of the employees or such landlord. In the case of public institutions possession can also be obtained under this provision if the premises are required for the furtherance of its activities. In other words, recovery of possession is permissible under this provision only in certain circumstances and for certain purposes. Inspite of this provision Parliament has consid ered it necessary tO extend the Public Premises Act to premises belonging to companies, corporations and statutory bodies mentioned in Clauses (2) and (3) of Section 2(e) by widening the definition of the expression "public premises" in Section 2(e) of the Public Premises Act. The scope and ambit of the aforesaid power conferred under the Public Premises Act cannot be restricted by reference to the provi sion contained in Section 22 of the Rent Control Act. It has been urged by the learned counsel for the peti tioners that many of the corporations referred to in Section 2(e)(2)(ii) of the Public Premises Act, like the nationa lised banks and the Life Insurance Corporation, are trading corporations and under the provisions of the enactments whereby they are constituted these corporations are required to carry on their business with a view to earn profit, and that there is nothing to preclude these corporations to buy property in possession of tenants at a low price and after buying such property evict the tenants after terminating the tenancy and thereafter sell the said property at a much higher value because the value of property in possession of tenants is much less as compared to vacant property. We are unable to cut down the scope of the provisions of the Public Premises Act on the basis of such an apprehension because as pointed out by this Court in M/s Dwarkadas Marfatia and Sons vs Board of Trustees of the Port of Bombay, ; "Every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigour of the Rent Act, must be informed by reason and guided by the public interest. All exercise of discretion or power by public authorities as the respondent, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act 694 as private landlords, must be judged by that standard." These observations were made in the context of the provi sions of the Bombay Rents, Hotel and Lodging Houses Rates (Control) Act, 1947 whereby exemption from the provisions of the Act has been granted to premises belonging to the Bombay Port Trust. The consequence of giving overriding effect to the provisions of the Public Premises Act is that premises belonging to companies and statutory bodies referred to in Clauses (2) and (3) of Section 2(e) of the Public Premises Act would be exempted from the provisions of the Rent Con trol Act. The actions of the companies and statutory bodies mentioned in Clauses (2) and (3) of Section 2(e) of the Public Premises Act while dealing with their properties under the Pubic Premises Act will, therefore, have to be judged by the same standard. For the reasons aforesaid, we are unable to accept the contention of the learned counsel for the petitioners that the provisions contained in the Public Premises Act cannot be applied to premises which fall within the ambit of the Rent Control Act. In our opinion, the provisions of the Public Premises Act, to the extent they cover premises falling within the ambit of the Rent Control Act, override the provisions of the Rent Control Act and a person in unauthorised occupation of public premises under Section 2(e) of the Act cannot invoke the protection of the Rent Control Act. In Civil Appeal No. 3723 of 1966, Shri Yogeshwer Prasad sought to raise contentions relating to the particular facts of that case, namely, that the termination of the lease of the appellant is vitiated by mala fides and that the said appellant could not be held to be a person in unauthorised occupation of the premises and further that the proceedings have not been taken in accordance with the provisions of the Public Premises Act. We find that in this case the appellant filed a writ petition in the High Court directly against the order passed by the Estate Officer without filing an appeal against the said order before the Appellate Authority. The High Court has held that the question of mala fides is a disputed question of fact and the same could not be gone into in proceedings under Article 226 of the Constitution. We are in agreement of the said view of the High Court. As regards the other contentions we are of the view that the appellant cannot be permitted to agitate matters which could be agitated by him in appeal before the Appellate Authority. In Civil Appeals Nos. 2368 and 2369 of 1986 the learned counsel 695 for the respondents have raised a preliminary objection with regard to the maintainability of these appeals on the ground that the appellants, on account of their conduct, are not entitled to invoke the jurisdiction of this Court under Article 136 of the Constitution. The submission of the learned counsel is that before initiating proceedings under the provisions of the Public Premises Act the respondent Bank, viz. the Punjab National Bank, had initiated proceed ings under the Rent Control Act for the eviction of the appellants had in those proceedings the appellants had filed an objection with regard to the maintainability of the eviction proceedings under the Rent Control Act before the Additional Rent Controller and thereupon the Respondent Bank initiated proceedings for eviction of the appellants under the Public Premises Act and thereafter the proceedings initiated by the respondent Bank under the Rent Control Act were dismissed by the Additional Rent Controller by orders dated the 6th August, 1989. The learned counsel of the respondents have urged that the appellants, having raised the objection against the maintainability of the proceedings for eviction under the Rent Control Act on the ground that proceedings could only be maintained under the provisions of the Public Premises Act and having got them dismissed, cannot turn round and raise an objection that the proceed ings for eviction under the Public Premises Act are not maintainable and the proceedings can only be taken under the Rent Control Act. The learned counsel for the appellants have submitted that special leave to appeal was granted by this Court after notice to the respondents and at that stage the respondents had raised this objection but this Court granted special leave and it is not permissible for the respondents to agitate this question now. The orders dated the 6th August, 1989 which were passed by the Additional Rent Controller in the proceedings for eviction initiated by the respondent Bank under Rent Control Act against the appellants in these appeals have been placed on record by the respondents and from the said orders it appears that in the proceedings initiated under the Rent Control Act the appellants had raised a plea that the premises in question had been declared public premises under the Public Premises Act and in view of that the proceedings under the Rent Control Act were not competent. The said orders also show that the Additional Rent Controller dismissed the proceed ings for eviction under the Rent Control Act on the view that the Public Premises Act is applicable to premises in question and his jurisdiction was excluded. This would show that the proceedings which were initiated by the Respondent Bank for the eviction of the appellants under the Rent Control Act were dismissed as not maintainable on the ground that the Rent Control Act was not applicable to the premises and the premises are governed by the provisions of the 696 Public Premises Act. This finding was recorded by the Addi tional Rent Controller in view of the objection raised by the appellants with regard to the maintainability of those proceedings. In other words, the appellants succeeded in those proceedings on the basis of their plea that the prem ises were not governed by the Rent Control Act and were governed by the provisions of the Public Premises Act. Having got the proceedings under the Rent Control Act dis missed the appellants are now raising the plea that the proceedings under the Public Premises Act are not maintain able and that the only remedy available is under the Rent Control Act. This conduct of the appellants would have disentitled them from invoking the jurisdiction of this Court under Article 136 of the Constitution. Since we are of the view that the appellants cannot succeed on the merits, we do not propose to dismiss the appeals on this preliminary ground. In the result the appeals and the writ petition are dismissed. There will be no order as to costs. The appellants in Civil Appeals Nos. 2368 and 2369 of 1986 had been dispossessed from the premises in their occu pation after the dismissal of their appeals by the Addition al District Judge. During the pendency of these appeals interim orders were passed by this Court whereunder posses sion of a part of the premises was restored to the appel lants. Since these appeals have been dismissed the appel lants in both the appeals are directed to handover the possession of the portion of the premises in their occupa tion to the Respondent Bank within one month. In Civil Appeal No. 3725 of 1986 and Writ Petition No. 864 of 1985, this Court had passed interim orders staying the eviction of the petitioners in those matters. Since the appeal and the writ petition are being dismissed the said interim orders shall stand vacated. R.S.S. Petitions dismissed. [/INST]The appellants/petitioners were tenants in the premises belonging to the respondent Banks/Life Insurance Corporation of India. Their tenancy had expired or had been terminated by the respondents and eviction proceedings initiated against them under the provisions of the . Writ peti tions under Article 226 were filled by the appellants in the High Court challenging the orders of eviction passed against them, which were dismissed; hence these appeals. The writ petitioners moved this Court directly under Article 32 of the Constitution against the notices of termination of tenancy issued to them. The Public Premises Act of 1971 was preceded by two enactments the Government Premises (Eviction) Act 1950, and the Public Premises (eviction of unauthorised occupants) Act, 1958 which were declared unconstitutional by different High Courts. Jagu Singh vs M. Shaukat Ali, ; Satish Chander & Anr. vs Delhi Improvement Trust, AIR 1958 Punjab 1; Brigade Commander, Meerut Sub Area vs Ganga Pra sad, ; P.L. Mehar etc. vs D.R. Khanna, etc., AIR 1971 Delhi 1 and Northern India Caterers Private Ltd. vs State of Punjab & Anr. , ; 650 This led to the enactment of the Public Premises Act in 1971. The validity of this act was upheld by this Court in Hari Singh vs The Military Estate Officer, ; Before this Court, the contentions were advanced by the parties mainly on two questions (i) whether the provisions of the Public Premises Act were applicable to the Premises belonging to a nationalised bank; and (ii) whether the provisions of the Public Premises Act override the provi sions of the Delhi Rent Control Act. In regard to the applicability of the Public Premises act, it was inter alia contended that the premises belonging to a nationalised bank or insurance company did not fall within the ambit of the definition of 'Public Premises ' contained in Section 2(e) of the Public Premises Act for the reason that the nationalised bank was not a company as defined in Section 3 of the and it was also not a corporation established by or under a Central Act. On the other hand, it was contended that the respond ents being nationalised bank, was a corporation established by a Central Act, viz., the Bank Nationalisation Act, and the premises belonging to a nationalised bank were 'public premises ' under section 2(e)(2)(ii) of the Public Premises Act. In regard to the second question, each side claimed that the enactment relied upon by it was a special statute and the other enactment was general, and also invoked the not obstante clause contained in the enactment relied upon. In this connection, it was argued on behalf of the respondents that the Public Premises Act having been enacted by Parlia ment in exercise of legislative power under Article 246(1) of the Constitution in respect of matters enumerated in the Union List would ipso facto override the provisions of the Rent Control Act enacted in exercise of the legislative powers under Article 246(4) in respect of matters enumerated in the concurrent list. Dismissing the appeals and the writ petition, this Court, HELD: (1) The provisions of the Public Premises Act, to the extent they cover premises failing within the ambit of the Rent Control Act, override the provisions of the Rent Control Act, and a person in unauthorised occupation of public premises under Section 2(e) of the Act cannot invoke the protection of the Rent Control Act. [694D E] (2) After the second world war there has been develop ment of a new pattern of public corporation in England as an instrument of plan 651 ning in the mixed economy. The general characteristics of such a public corporation is that it is normally created by a special statute; it has no shares and no share holders, either private or public, and its share holder, in the symbolic sense, is the nation represented through Government and Parliament; and it has the legal status of a corporate body with independent legal personality. There has been a similar growth of this type of public corporation in other. countries. This trend is also evident in our country. since Independence and a number of such public corporations have been constituted by Acts of Parliament. [668A C] (3) The expression 'Corporation ' in Section 2(e)(2)(ii) of the Public Premises Act would include public corporations of the new pattern constituted under the Central Acts where in the entire paid up capital vests in the Central Govern ment. [670G] S.S. Dhanoa vs Municipal Corporation, Delhi, ; , distinguished. (4) In order to constitute a corporation it is not necessary that there should be shareholders or members and that in the new pattern of public corporation that has developed there are no shareholders or members. [671G] Bank of New South Wales & Ors. vs The Common wealth, ; and R.C. Cooper vs Union of India, ; , referred to. Oriental Bank of Commerce vs Delhi Development Authori ty, , overruled. (5) Provisions of the Banks Nationalisation Act show that the nationalised Bank has been constituted as a dis tinct juristic person by the Act and it is owned by the Central Government. They further indicate that the nationa lised bank has all the attributes of the new pattern of public corporation. [667B] (6) The object of the legislation in enlarging the definition of 'public premises ' in Section 2(e) of the Public Premises Act is to make available the machinery of the Act for evicting unauthorised occupants not only from the premises belonging to the Central Government but also from premises belonging to Companies, Corporation and statu tory bodies in which the Central Government has a substan tial interest. [670D E] 652 (7) Under Section 2(e)(2)(i) premises belonging to a company incorporated under the , in which not less than fifty one percent of the paid up capital is held by the Central Government, are to be treated as public enterprises. It could not be the intention of Parliament that premises belonging to public corporations whose entire paid up capital vests in the Central Government and who are the instrumentalities of State would be excluded from the ambit of the definition of 'public premises '. [670E G] (8) Keeping in view the provisions of the Banks Nation alisation Act the nationalised bank is a corporation estab lished by a Central Act and it is owned and controlled by the Central Government. The premises belonging to a nationa lised bank are public premises under Section 2(e)(2)(ii) of the Public Premises Act. [671 H; 672A] (9) There is no warrant for confining the scope of the definition of 'public premises ' contained in section 2(e) to premises used for residential purposes only and to exclude premises used for commercial purposes from its ambit. [672D] Hari Singh vs Military Estate Officer, ; , referred to. (10) No distinction can be made between premises used for residential purposes and premises used for commercial purposes in the matter of eviction of unauthorised occupants of public premises and the consideration which necessitate providing a speedy machinery for eviction of persons in unauthorised occupation of public premises apply equally to both the types of public premises. [673B C] (11) The definition of the expression 'unauthorised occupation ' contained in Section 2(g) of the Public Premises Act is in two parts. The second part of the definition is inclusive in nature and expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoev er. The words "whether by way of grant or any other mode of transfer" in this part of the definition are wide in ampli tude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. [673F; G H; 674B] Brigadier K.K. Verma vs Union of India, AIR 1954 Bom 358, distinguished. 653 Lallu Yeshwant Singh vs Rao Jagdish Singh & Ors., ; , and Express Newspapers Pvt. Ltd. & Ors. vs Union of India & Ors. , [1985] Suppl. 3 SCR 302, referred to. (12) It is true that there is no requirement in the Public Premises Act that the Estate Officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease when the Public Premises Act and the Rules framed thereunder provide for a right of appeal of the District Judge against an order of the Estate Officer. which shows that the final order that is passed is by a judicial officer. [675F H] Maganlal Chhagganlal (P) Ltd. vs Municipal Corporation of Greater Bombay & Ors., ; , referred to. (13) As regards rent control legislations enacted by the State legislatures, the position is well settled that such legislation fail within the ambit of entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution. [682E] Indu Bhushan Bose vs Rama Sundari Devi & Anr. , ; ; V. Dhanpal Chettiar 's vs Yesodai Ammal, ; ; Jai Singh Jairam Tyagi Etc. vs Mamanchand Ratilal Agarwal & Ors., ; ; Accountant and Secretari al Services Pvt. Ltd. & Anr. vs Union of India & Ors. , ; , referred to. (14) The Rent Control Act has been enacted by Parliament in relation to the Union Territory of Delhi in exercise of the legislative power conferred under Article 246(4) of the Constitution which empowers Parliament to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. [682G] (15) The Public Premises Act deals with Government property as well as property belonging to other legal enti ties mentioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act. In so far as it relates to eviction of unauthorised occupants from premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government, the Public Premises Act would fail within entry 32 of List I being law with respect to a property of the Union. The property belonging to the various legal entities mentioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act cannot be regarded as property of 654 the Union and the Public Premises Act cannot be held to have been enacted under entry 32 of List I in respect of the said properties. In so far as it deals with a lessee or licensee of premises other than premises belonging to the Central Govt; the Public Premises Act has been enacted in exercising the legislative power in respect of matters enumerated in the concurrent list. [682H; 683A C] (16) Both the statutes, viz. the Public Premises Act and the Rent Control Act, have been enacted by the same legisla ture, Parliament, in exercise of the legislative powers in respect of the matters enumerated in the Concurrent List. [684C] Accountant and Secretarial Services Pvt. Ltd. vs Union of India And Ors., ; ; Smt. Saiyada Mossarrat vs Hindustan Steel Ltd.; , and L.S. Nair vs Hindustan Steel Ltd., AIR 1980 MP. 106, referred to. (17) The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Transfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudica tion of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The Rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi. [686D F] (18) The Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. [689E] Jain Ink Manufacturing Company vs Life Insurance Corpo ration of India & Anr., ; , referred to. (19) Both the enactments, namely, the Rent Control Act and the Public Premises Act, are special statutes in rela tion to the matters dealt with therein. Therefore, the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier contrary laws, the Public Premises Act must prevail over the Rent Control Act. [686H; 687A] J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs The State of Uttar Pradesh, ; ; U.P. State Elec tricity Board vs Hari 655 Shankar Jain; , and Life Insurance Corpora tion vs D.J. Bahadur; , , referred to. (20) In the case of inconsistency between the provisions of two enactments, both of which can be regarded as Special in nature. the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. [688G] Shri Ram Narain vs The Simla Banking and Industrial Co. Ltd.; , ; Kumaon Motor Owners ' Union Ltd. vs The State of Uttar Pradesh, ; and Sarwan Singh vs Kasturi Lal; , , referred to. (21) Keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and the Public Premises Act, the provisions of the Public Premises have to be construed as overriding the provisions contained in the Rent Control Act. [690H] The Parliament was aware of the non obstante clauses contained in Section 14 and 22 and the provisions contained in Sections 50 and 54 of the Rent Control Act when it enact ed the Public Premises Act containing a specific provision in Section 15 barring jurisdiction of all courts (which would include the Rent Controller under the Rent Control Act). This indicates that Parliament intended that the provisions of the Public Premises Act would prevail over the provisions of the Rent Control Act inspite of the above mentioned provisions contained in the Rent Control Act. [691A B] (23) The scope of the provisions of the Public Premises Act cannot be cut down on the basis of an apprehension that the corporations may be induced to earn profits by purchas ing property in possession of tenants at a low price and after buying such property evict the tenants after terminat ing their tenancy and thereafter sell the said property at a much higher value. Every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigours of the Rent Act, must be informed by reason and guided by the public inter est. [693F; E G] M/s Dwarkadas Marfatia and Sons vs Board of Trustees of the Port of Bombay, ; , referred to. </s>

<s>[INST] Summarize the judgemento. 1067 of 1971. Appeal by special leave from the judgment and order dated October 30, 1970 of the: Delhi High Court in F.A.0. (O.S.) No. 40 of 1970. N. A. Palkhivala, D. Mukherjee, R. H. Dhebar and A. J. Rane, for the appellants. V. M. Tarkunde, G. L. Sanghi, B. R. Agarwala and Janendra Lal, for respondent No. 1. A. K. Sen, G. L. Sanghi and B. R. Agarwala, for respondent No. 2. The Judgment of the Court was delivered by P. Jagammohan Reddy, J. This appeal is by special leave. The question for consideration is whether there is a binding, valid and concluded contract between the appellants and the respondents. On an application filed by the respondents under section 20 of the Arbitration Act a single Judge of the Delhi High Court directed the appellants to file the arbitration agreement to refer the disputes between the parties arising under the contract to arbitrators. An appeal against that order to a Division Bench was dismissed. In order to understand the scope of the controversy, a few facts may be stated. On the 21st March 1968, a notice of Global Tender No. 1 of 1968 was issued by the President of India, therein referred to as the Government of India, Ministry of Railways (Railway Board) proposing to sell 80,000 tones of surplus released serviceable and scrap rails, as per details given in the schedule thereto, to established buyers abroad or their accredited agents. It invited offers in respect thereof to be addressed to the President of India and sent to Shri R. No. Mubayi, Director, Railway Stores, Railway Board. With this notice were enclosed the general conditions of tender, special conditions of tender, instructions to tenderers, including proforma for performance guarantee and deed bonds as in clauses 4A and 4B, shipping terms and schedule of stocks available as on 1st March 1968. In the general conditions the seller was defined to mean the President of India acting through the Director, Railway Stores, Railway Board, unless the context otherwise provided. The delivery F.O.B. (Free an Board /F.A.S. (Free Alongside Ship) invoices and freight were dealt with in clause 9. The default clause in clause 11 provided that where a buyer fails to execute the contract the seller was to have power under the hand of the Director, Railway Stores, Railway Board, to declare the contract at an end 439 at the risk and cost of the buyer. The special conditions of tender dealt with prices, quotations, payments, terms of shipment, weighment, basis of sales and handling at ports, force majeure, arbitration, legal jurisdiction, acceptance of offers and title and risk. In the instructions to tenderers, the tenderers were requested to quote their highest offer indicating the price per metric tonne inclusive of export incentive of 5% of F.O.B. value currently applicable as guarantee by the Government of India which will always be to, the sellers benefit for handing over of the rails F.O.B. docks/F.A.S./F.O.B. Indian Port or C.I.F. destination port. The tenderer was required to offer comments clause by clause on the 'general conditions of tender ' and the 'special conditions of tender ' either confirming acceptance of the clauses or indicating deviation therefrom, if any. It was further provided that the contract will come into force from the date the buyers ' letter of credit is accepted by the sellers ' nominee. In 4A of these instructions the proforma deed bond was given which was to be signed by the tenderer and the acceptance was to be signed for and on behalf of the President of India by the person designated for that purpose. Similarly, para 4B. gave the proforma performance guarantee bond to be addressed to the President of India executed by the tenderer and accepted for and on behalf of the President of India by the ,person so designated. The terms and conditions also set out the shipping terms in detail, though a few of them were also mentioned in the special conditions under the headings Shipment, Terms of Shipping and Receiving Notice. It appears that the terms and conditions enclosed with the tender notice annexed to the petition filed in court were not full and complete. Consequently the appellant has annexed a true copy of the enclosures with the special leave petition and prayed that this may be admitted in evidence. As there was no dispute in respect of the contents thereof, we have allowed this prayer because without them it is not possible to arrive at a just conclusion. Pursuant to this tender notice, the respondents, by their letter, exhibit 'B ', dated 21 5 1968, offered to buy 80,000 tonnes of rails at $45.1 per tonne F.O.B. Indian Ports on the term and conditions set out therein. In reply thereto, by a letter dated 25 5 1968, the Dy. Director, Railway Stores, Railway Board, P.C. Oak in para 1 (6) categorically. stated by reference to para 14 of the conditions of the letter of the respondents that as shipping terms have finan cial implications they were requested to indicate with reference to the tender which particular clauses they desire to re negotiate and settle. In para 2 it was stated that the offer of the respondents was not addressed to the President of India as required under clause 1(3) of the Instructions to the Tenderers and, therefore, the Respondents were required to confirm that their offer was deemed to 'nave been addressed to the President of India and ' is 440 open for acceptance on behalf of the President, it was further stated in para 4 that they should send the reply addressed to the President of India through the Director of Railway Stores, Railway Board covering all the points indicated therein, to reach them not later than 28 5 1968. No reply was, however, received by the time indicated in the letter of the appellants and while so stating another letter was addressed to the Respondents on 3 6 68 by C. Parasuraman for Secretary, Railway Board, seeking further clarification in respect of items Nos. 26 and 27 of the offer contained in the aforesaid letter of the Respondents dated 21 5 1968. There were also two other clarifications in respect of the weight of the tonne for which $45.1 was quoted and the option to transfer the contract in the name of the foreign principles which it was stated, could not be agreed to straightaway unless and until they knew the names of the foreign principles and their willingness to enter into a legal binding guarantee of all the terms and conditions of the contract. The Respondents wrote subsequently to the Director, Railway Stores on the 15th June, 29th June, 8th July and the three letters on 10th July and one on the 15th July 1968, some of which were written after a discussion with the Director of Railway Stores in the presence of the Director of Finance, Mr. Datta. On the same day as the letter of 15th July was sent by the Respondents, P. C. Oak signing for the Secretary of the Railway Board, addressed the following letter of acceptance, No. 68/RS(G)/709/10 to the Respondents "Subject: Tender No. 1 of 1968 for Export sale of used re rollable and repayable steel rails. Reference: Your letter Nos. Nil dated 21 5 68, 15 6 68, 29 6 68, 8 7 68, 10 7 68 and 15 7 68. Kindly be advised that your offer (at $39 per long ton F.O.B. Indian Port for export and Rs. 458/ per long ton for indigenous consumption) with terms and conditions referred to in your above letters is hereby accepted. Formal contract will be issued shortly. Kindly acknowledge receipt. Yours faithfully, Sd./ P. C. Oak. for Secretary, Railway Board". Thereafter, it is alleged that several draft agreements were. exchanged regarding which there is a dispute but ultimately be, fore us it is not contested that a draft agreement, which the appellants say is the 5th draft, but according to the Respondents is 441 the final draft, was handed over to the Respondents by P. C. Oak on 27 8 68 but this, however, was not signed. Clause 2 of this draft agreement states. that the contract has been concluded by the issue of seller 's letter No. 68/RS(G)/709/10 dated 15 7 68 to the buyers; that the term of the contract shall be three years from 1 11 1968 to 31 10 1971; that the buyers reserve the right to act upon the contract any time before 1 1 1 68 and start inspection and take delivery of the goods but this will not in any manner effect the terms of the contract. Even thereafter there was further correspondence between the parties. By letter dated 18 9 68 the Respondents wrote to the Director, Railway Stores, agreeing to several other matters to be included in the final draft and requested him to issue the 'final. contract ' without delay. On the 21st September 1968 the Respondents again wrote to the Director, Railway Stores, complaining that the information provided by the various Railways was not complete and requested him to contact the various Railways and obtain the required information as soon a , possible. After the receipt of this letter the Joint Director, Railway Stores (G), wrote to the general Manager (S), All Indian Railways with a copy to the respondents calling for the required information. In that letter the Joint Director stated thus : ". the Board have finalized an export cum internal sale contract with M/s. N. K. (p) Ltd., New Delhi for a period of 3 years, entitling them to export stock of such surplus rails available with the Railways. The de tailed terms and conditions of the contract will be apprised to you when finalized". On the 23rd October 1968, C. Parasuraman, for Secretary. , Railway Board, replied to the letter of the Respondents of the 21st September 1968, stating that it was not correct that their officehas assured them that it would arrange to get the missing details from the concerned C.O.Ss. After this letter two other letters were written by the Respondents to the Director, Railway Stores, dated 7th and 23rd November 1968. In the first letter it was stated thus "In pursuance of your invitation we submitted our tender for purchase of used relayable and re rollable steel rails on 21 5 68. After some negotiations the terms of the contract were finalized and the Secretary, Railway Board by his letter No. 68/RS(G)70910 dated 15 7 68,. accepted our offer and concluded the contract. We were informed that the formal contract will be issued shortly. A draft of the formal contract was handed over to us on 27 8 68. In our letter of 18 9 68, some agreed terms were set out which had to be incorporated in the formal contract. Since the acceptance of our 442 offer we have made all arrangement for the sale of the material We beg to inform you that out of the total quantity of 88,936 tonnes of Rails already offered to us for our approval we approve and shall take delivery of 53,807 Tonnes as per list enclosed herewith. The above quantity may kindly be reserved for us and arrangement be made for their delivery in terms of the contract. " In the second letter, the respondents complained that though the contract for sale of used rerollable and relayable steel rails was concluded on 15 7 68 they regretted that they had not received the formal contract so far and requested that it should be sent without any further delay. In the last paragraph of that letter, the Respondents complained that they came to know that some of the Railways who were. holding storks are selling the steel rails which they have no right to do and requested them to stop such sales. To this, P. C. Oak for Secretary, Railway Board, replied "Kindly refer to correspondence resting with your letters dated July 26, 1968, 18th September 1968 and No. RB/Rails/68/1/114, dated 2nd December 1968. Your contention contained in your letter No. RB/Rails/ 68/1 dated 23 11 68 that the Railway Board is not authorized to sell rails ' to other parties because of their having concluded a contract with you is factually incorrect. No doubt, letter No. 68/RS(G)/709/10 dated 15 7 68 indicated an intention to enter into a con tract with you, but subsequent to this, discussions had been held with you over a number of sittings on 20 7 68, 12 8 68, 26 8 68, 27 8 67 culminating in your letter dated 18 9 68. This would amply indicate that no agreement had been reached on vital terms and conditions, and the question of the existence of a concluded contract does not arise '. . " The Respondents replied to this letter by their letter dated 25 1 1969 expressing surprise and contesting the stand taken by the Railway Board. In the petition of the Respondents filed in Court after setting out the relevant correspondence leading upto the letter of acceptance of P. C. Oak dated 15th July 1968, 'it was stated that that letter was a definite acceptance of the offer and constitutes a binding and valid contract between the parties. With respect to the draft agreement of the 27th August 1968 handed over to the Respondents embodying the agreement between the parties, the averment was that the then Acting Director of Railway Stores desired certain additional terms to be embodied in the terms that were agreed to. The additional terms were agreed to by the plaintiffs (Respondents) by their letter to the 443 Director, Railway Stores, dated 18 9 1968. In para 16 it was further alleged that after the letter of acceptance by the appellants the then Acting Director of Railway Stores and the Director of Finance proposed to the plaintiffs that the price offered by them should be increased or in the alternative certain alterations be made in the agreed terms, but the plaintiffs having justly refused to do so, the 2nd defendant (C. Parasuraman) falsely wrote to the plaintiffs on 15 1 1969 that no concluded contract had taken place and that the Railway Board was, therefore, not precluded from selling rails to other parties. The appellants in their written statement, raised a prelimi nary objection, namely, that the petition was misconceived as there was no arbitration agreement between the parties and so the question of enforcing the arbitration clause in the alleged contract did not arise. It also reiterated its stand earlier taken that the letter dated 15 7 68 written by Oak on behalf of the Secretary, Railway Board, was not a letter of acceptance of the offer of the Respondents so as to amount to a concluded contract binding on the Union of India nor could it be construed as such in view of the mandatory provisions of Article 299 of the Constitution of India. The contention was that unless and until a formal instrument of contract was executed in the manner required by Article 299 of the Constitution and by the relevant notifications, there would not be a contract binding on the Union of India and at any rate no such agreement was entered into as it was. alleged that though interviews had taken place at various times between the plaintiffs and the several officers of the Railway Board, no agreement had been reached on vital terms and conditions. Two submissions were urged on behalf of the appellants, namely : (1) that apart from the contention relating to article 299 of the Constitution, there was no concluded contract between the parties, because (a) the essential terms were not agreed to between them on the date when the acceptance letter was issued by P. C. Oak on 15 7 68, and (b) even it there was an acceptance as alleged, that acceptance was conditional upon a formal contract being executed by the appellants; (2) that the three mandatory requirements of article 299 of the Constitution for a valid and binding contract made in exercise of the executive power of the Union have not been complied with namely, (a) that the contract was not expressed to be in the name of the President, nor (b) was 444 it executed on behalf of the President, or (c) by a person authorized to execute it on his behalf. The crucial question which arises for determination is whether there was a concluded contract, and if there was one, whether the mandatory requirements of Article 299 of the Constitution for entering into a valid and binding contract have been satisfied? It is now settled by this Court that though the words 'expressed ' and 'executed ' in Article 299(1) might suggest that it should be by a deed or by a formal written contract, a binding contract by tender and acceptance can also come into existence if the accept ance is by a person duly authorized on this behalf by the President of India. A contract whether by a formal deed or otherwise by persons not authorized by the President cannot be binding and is absolutely void. We do not for the present consider it necessary to go into the question whether and to what extent the requirements of article 299 have been complied with in this case. What we have to first ascertain is whether apart from the contention relating to Article 299, a concluded contract has come into existence as alleged by the Respondents. Before us detailed arguments were addressed on behalf of the appellants to show that notwithstanding the letter of acceptance of 15th July 1968, no concluded contract had in fact come into existence and though that letter accepted certain terms, there were other essential terms of the contract which had to be agreed to and were the subject matter of further negotiations between the parties; that it was the intention of the parties that all those terms were to be embodied in a formal contract to be executed which contract alone was to be binding between the parties; and that in any case the letter of acceptance and the subsequent letters were not by the Director of Railway Stores but by the Secretary to the Railway Board who was not a person authorized to enter into the agreement between the President of India represented by the Ministry of Railways and the Respondents. On the other hand, the stand taken by the Respondents was that all the essential terms of the contract were agreed to and the contract was concluded on 15th July 1968, though at the ins tance of the Director, Railway Stores further terms with respect to the execution of the contract were the subject matter of negotiations between the parties and in any case these did not pertain to the essential terms and could not on that account detract from the binding nature of a concluded contract. It was also contended that the letter of acceptance by P. C. Oak though signed on behalf of the Secretary, Railway Board was in fact on behalf of the said Board which was authorized to enter into such a contract. It is in our view unnecessary to consider the several contentions as to whether all the essential terms of the contract had been agreed to or that the contract was concluded by the acceptance 445 letter of 15th July 1968 or whether the parties intended it to be a term of the contract that a formal contract should be entered into between them in order to bind the parties. In this case, we are of the view that the Secretary to the Railway Board, on whose behalf the offer of the Respondents was accepted, was not the person authorized to enter into a contract on behalf of the President of India. As can be seen from the various documents already extracted that the tender notice invited offers to be addressed to the President of India through the Director of Railway Stores, Railway Board. Under the general conditions the seller was defined to mean the President of India acting through the Director, Railway Stores and in the default clause it was provided that where the buyer fails to execute the contract, the seller shall have power under the hand of the Director, Railway Stores, Railway Board, to declare the contract at an end. In the letter written by Oak on 25 5 68, as earlier noticed, it was pointed out to the Respondents that their offer was not addressed to the President of India as required under clause 1(3) of the Instructions to the Tenderers and, therefore, the Respondents were required to confirm that their offer can be deemed to have been addressed to the President and is open for acceptance on behalf of the President and their reply should be addressed to the President of India, through the Director of Railway Stores, Railway Board. Even the draft contract dated 27 8 68 in terms of which the Respondents were insisting on a final contract to be issued to them by the appellants was to be executed by the Respondents as buyers on ,the one part and the President of India acting through the Director, Railway Stores, Ministry of Railways (Railway Board) as the sellers, on the other. There is little doubt that the only person authorized to enter into the contract on behalf of the President is the Director, Railway Stores. It is true that the notification of the Ministry of Law issued in exercise of the powers under clause 1 of Article 299 of the Constitution shows that the President directed the 'authorities named therein to execute on his behalf the contracts and assurances of property specified therein. But notwithstanding this, the President is fully empowered to direct the execution of any specified contract or class of contracts on ad hoc basis by authorities other than those specified in the said notification. This Court had in Seth Bikhraj Jaipuria vs Union of India, (1) earlier held that the authority to execute contracts may be conferred on a person not only by rules expressly framed and by formal notifications issued in this behalf but may also be specifically conferred. In this case the letter of ac ceptance dated 15 7 1968 was on behalf of the Secretary, Railway Board, who is not authorized to enter into a contract on behalf of the President. (1) ; 446 It is contended that clause 43 of part XVIII and Part XII empower the Secretary, Railway Board to enter into such con tracts. Clause 43 of Part XVIII provides that all deeds and instruments other than those specified in that part may be executed by the Secretary or the Joint Secretary or the Deputy Secretary or the Under, Secretary in the Railway Board or a Director, Joint Director, Deputy Director or Assistant Director in the Railway Board. It is submitted that as nothing has been specified in Part XVIII relating to the contract of the type we are considering, the Secretary, Railway Board is authorized to enter into a contract on behalf of the President. This submission is untenable because clause 9 specifically provides for the contracts connected with the sale of scrap, ashes, coal, dust, empty containers and stores. The tender, it will be observed, is for rails which are scrap as well as rerollable and relayable but it is urged that relayable rails are not stores nor can they be considered as scrap and as these are not covered by clause 9, the Secretary, Railway Board is fully empowered by the President to enter into a contract on his behalf. We cannot accept this argument because in our view relayable rails are part of the stores. It may be that some of these rails which are part of the stores may be considered to be in a condition which the authorities concerned think should be disposed of. The contracts relating to the goods of the nature specified in the tender notice are, therefore, dealt with by clause 9, as such clause 43 will have no application. Part XLI empowers the Secretaries to the Central Government in the appropriate Ministries or Departments to execute any contract or assurances of property relating to any matter whatsoever and is in these terms : "Notwithstanding anything hereinbefore contained any contract or assurance of property relating to any matter whatsoever may be executed by the Secretary or the Special Secretary or the Additional Secretary or a Joint Secretary or a Director or where there is no Additional Secretary or a Joint Secretary or a Director, a Deputy Secretary to the Central Government in the appropriate Ministry or Department and in the case of. " The contention on behalf of the Respondents is that since Railway Board is a Department of the Government, the Secretary to the Department is authorized to enter into a contract under the above provision. This submission in our view, is equally misconceived because reading the above requirement carefully it will appear that the persons there mentioned should be Secretary. Special Secretary etc., to the Central Government in the appropriate Ministry or Department and not that the Secretary to any Department or office of the Government of India is empowered thereunder. It is however contended that the Secretary to the 447 Railway Board is a Joint Secretary to the Government of India and as such under the above Provision the acceptance letter should be considered to have been executed on behalf of the president Even this submission lacks validity because as pointed out on behalf of the appellant, at the relevant time the Secretary to the Railway Board did not have any status as Secretary to the Central Government. The status of a Joint Secretary was only conferred on him by a notification by the Government of India in the Ministry of Railways for the first time on 15 9 1969 with effect from that date. An affidavit of the Deputy Secretary to the Railway Board (Ministry of Railways) has been filed before us setting out the above fact and enclosing the said notification. Then again it was urged that the members of the Railway Board were Secretaries to the Central Government and hence the Board on whose behalf the Secretary communicated the acceptance could enter into a binding contract. This submission also is without force because there is no material before us to conclude that the Board was so authorized. In these circumstances, even if the correspondence shows that the formalities necessary for a concluded contract have been satisfied and the parties were ad item by the time the letter of acceptance of the 15th July 1968 was written, about which we do not wish to express any opinion, there is no valid or binding contact because the letter of acceptance, on the evidence before us, is not by a person authorized to execute the contracts for and on behalf of the President of India. On the evening before the day the judgment in the case was due to be delivered, an application dated 7 2 72 was filed enclosing an affidavit of R. N. Mubayi who was Director, Railway Stores, between 18 12 1965 to 30 9 1969 as also an affidavit of R. B. Lal, Managing Director of the Respondent No. 1 to take them in evidence and consider the facts stated therein before judgment is delivered, and if necessary, to call for the file and give a re hearing. The affidavit of Mubayi states that only after he recorded on the relevant file and issued instructions to his Deputy Director, Shri P. C. Oak to convey the acceptance of the offer of M/s. N. K. Private Limited, that the acceptance was conveyed by Shri P. C. Oak to the said company. The affidavit of R. B. Lal says that though the affidavit filed by P. Lal, Deputy Secretary, Railway Board stating that the Secretary, Railway Board, did not have the status of Secretary, Special Secretary, Additional Secretary, Joint Secretary or Deputy Secretary to the Government of India in the Ministry of Railway, he has not denied that the Secretary did not have the status of a Director. It is further submitted in that affidavit that the Secretary of the Board had the status of a Director at the relevant time and as mentioned in Part XLI of the Notification of the Ministry of Law, 'a Director ' is authorized to accept offers. 448 Apart from the question whether we should admit additional evidence at this stage in this case and though we had rejected an earlier submission to call for the files, having regard to the facts stated by R. N. Mubayi, Director of Railway Stores during the relevant period that it was he who had asked P.C. Oak to accept the offer and had so endorsed it on the file, as also the affidavit of R. B. Lal that the Secretary to the Board was the Director of Railway Stores, we withheld the judgment and called for the file to satisfy ourselves. The file has been submitted to us by the appellants along with an affidavit of R. Srinivasan, Joint Director, Railway Board in which it is categorically averred that at the relevant time, namely, 15 7 68, the Secretary Railway Board did not have the status of the Director under Para XLI of the Notification of the Ministry of Law or at all. A perusal of the relevant file relating to the letter of acceptance would show that on 15 7 68, Shri Oak made the following endorsement: "Reference to Board 's orders at page 38/N, draft letter accepting M/s. N.K. (P) Ltd., offer is being issued today. D.R.S. may kindly see before issue", and this endorsement was merely signed by R.N. Mubayi. We are not here referring to the other proceedings on the file as to whether the execution of a formal contract was a condition precedent and as one of the terms of the contract but even the above endorsement does not show that the letter of acceptance of 15 7 68 was issued on the orders and directions of Mubayi as alleged by him in the affidavit. What it in fact shows is that it is the Board that issued the orders of acceptance and that the acceptance letter was only to be seen by him. Even the draft letter issued does not contain his initials or his signature in token of his having seen or approved it. The letter of acceptance not having been issued on the orders of the Director, Railway Stores, there was no concluded contract as on that date, by a person authorized to enter into a contract. There is also nothing to show that the Secretary to the Board was the Director, Railway Board as further alleged in the affidavit of R. B. Lal. In this view the appeal is allowed and the application under section 20 of the Arbitration Act is dismissed but there will be no order as to costs of the appellants. On the other hand, we direct the appellants to pay the costs of the Respondents because special leave was granted on condition that the petitioner will pay the costs of the Respondents in this appeal in any event. S.C. Appeal allowed. [/INST]A global tender to sell surplus serviceable and scrap rails was issued to established buyers by the Government of India and pursuant to this tender notice, the respondents by their letter dated 21 5 68 offered to buy the rails at a particular price and Shri P. C. Oak, Deputy Director, Railway Stores, Railway Board, on behalf of the Secretary, Railway Board,, accepted the respondents ' offer with the terms and conditions mentioned in the letters sent by the respondent on 15 7 68. Negotiations for the final contract, however, took place between the parties and on 15 7 68, the respondents complained that some of the Railways who were holding stocks are selling the steel rails which they have no right to sell in view of the concluded contract; but Shri P. C. Oak for Secretary, Railway Board, replied that subsequent to 15 7 68, there were negotiations for the vital terms and conditions of the contract and so the question of the existence of a concluded contract did not arise. At this, the respondents filed a petition in Court under section 20 of the Arbitration Act, after setting out the relevant correspondence leading upto the letter of acceptance of 15th July 1968 and it was stated that, the letter was a definite acceptance of the offer and constitute a valid and binding contract between the parties. In the written statement, the appellants raised a preliminary objection that the petition was misconceived as there was no arbitration agreement between the parties and so the question of enforcing the arbitration clause in the alleged contract did not arise. Further, it was contended by the appellants that the letter of acceptance and the subsequent letters were not by the Director of Railway Stores, but by the Secretary to the Railway Board, who was not a person authorized to enter into the agreement between the President of India represented by the Ministry of Rail ways and the respondents as required under article 299 of the Constitution. Allowing the appeal. BELD : The Secretary to the Railway Board, on whose behalf the offer of the respondents was accepted, was not the person authorized to enter into a contract on behalf of the President of India, as required under article 299, and therefore, the contract, if any, was not binding on the appellants. Further, it was not correct to say that Clause 43 of Part XVIII and Part XLI empowered the Secretary, Railway Board to enter into such contracts; because Clause 9 specifically provided for the contracts connected with the sale of scrap; ashes coal, dust, empty containers and stores; and repayable rails, being part of the stores, it was covered by Clause 9 and the Secretary, Railway Board, was not empowered by the President to enter into a contract on his behalf. [445 B] Seth Bikhraj Jaipuria vs Union of India, [1962] 2 S.C.R. 880, referred to. 438 </s>

<s>[INST] Summarize the judgementivil Appeals Nos. 29 and 30 of 1951. Appeals from the judgment and decree dated 26th October, 1943, of the High Court of Judicature at Allahabad (Verma and Yorke JJ.) in First Appeal No. 48 of 1938 arising out of the judgment and decree dated 6th August, 1937, of the Court of the Additional Civil Judge at Agra in Suit No. 30 of 1936. M.C. Setalvad and Kirpa Ram (K. B. Asthana, with them) for the appellant in Civil Appeal No. 29 of 1951. K.N. Agarwal for the appellant in Civil Appeal No. 30 of 1951. C.K. Daphtary (G. C. Mathur, with him) for the respond ents in both the appeals. April 24. The Judgment of the Court was deliv ered by MAHAJAN J. 796 Mst. Khem Kuer, the young widow of Shah Chiranji Lal, was murdered on the 28th August, 1919, and Mst. Mohan Kuer, the mother, died on the 5th December, 1932. Prem Kuer, the respondent in the appeal, claiming herself to be the heir to Shah Chiranji Lal as his sister, brought the suit giving rise to this appeal in the court of the civil judge, Agra, against, amongst others, Mst. Phool Kuer, the present appellant, for recovery of possession of the properties of Shah Chiranji Lal and mesne profits. Prem Kuer joined her half sister Mst. Ram Kuer and their sons as plaintiffs along with herself. In the array of defendants were impleaded Mst. Phool Kuer and Mst. Khem Kuer, widows of Shah Jwala Prasad and Shah Madho Lal and his sons and a host of others as transferees of the properties. The main defence to the suit was that Shah Jwala Prasad and Shah Madho Lal were recognized to be the owners and heirs to the entire estate of Shah Chiranji Lal by Khem Kuer and Mohan Kuer in a family settlement arrived at between the parties in suit No. 120 of 1915, that by virtue of this family settlement the estate of the deceased was vested in them subject to the life estates of the two women and that the plaintiffs who came to be recognized as reversioners by the Hindu Law of Inheritance (Amendment) Act, 11 of 1929, were not entitled to claim it. It was further pleaded that on the death of Khem Kuer in 1919, Mohan Kuer surrendered the estate in favour of Jwala Prasad and Madho Lal and they took possession of it as owners and the plaintiffs who subsequently became statutory heirs in 1919 could not be allowed to question the surrender and reopen the succession which could not remain in abeyance. The learned additional civil judge who tried the suit, dismissed it holding that the compromise of 1915 was a bona fide settlement of a bona fide dispute and was binding as a family settlement being for the benefit of the estate, that Mohan Kuer surrendered the estate validly in favour of Jwala Prasad and Madho 795 MAHAJAN J. The dispute in this appeal concerns the zemindari and house properties last owned by Shah Chiranji Lal who died at a young age on the 14th May, 1913, leaving him surviving a widow, Mst. Khem Kuer, and his mother Mst. Mohan Kuer, besides a number of collaterals, indicated in the pedigree table below : Shah Pirthi Raj : : : : : : : : Mst. Tulsa Kuer=Shah Lal Chand=Mst. Mohan Kuer : : : : : : : : : : : : Hira Lal : : : : : : : : Shah Jai : : : Kisen : : : Mst. Ram Kuer : =Kherpal : : : : : : : : :Shah Jwala Shah Sri :Prasad Kisen : : : :(1)Khem : : : : : Kuer Shah Madho Ram Chand Lachman Kishen Lal :(2)Phool Lal Prasad =Mst. Umri : Kuer : : : : : : : : : Sudar Mad : Dwarka shan sudan : Prasad Lal Lal : : : : : : : : : : : : Ganga Prasad Jamna Mst. Prem Kuer Shah Chiranji Lal Prasad =Lekh Raj =Mst. Khem Kuer : : : : : : Manohar Lal Lachmi Narain 797 Lal and they entered into possession of it after the death of Khem Kuer. Some of the transferees who had been implead ed as defendants compromised the suit with the plaintiffs and that part of the suit was decided according to the terms thereof between those parties. Prem Kuer preferred an appeal to the High Court of Judicature at Allahabad against the decree dismissing her suit. The High Court by its judgment dated the 26th Octo ber, 1943, allowed the appeal, reversed the findings of the learned additional civil judge on the above issues and decreed the plaintiffs ' suit with costs. Some of the trans feree defendants compromised with the plaintiff appellant in the High Court and the appeal was decided in terms thereof in their favour. Two main points which are in controversy in this appeal and require consideration, are: 1. Whether the compromise in suit No. 120 of 1915 amounts to a family settlement and binds the plaintiff respondent, and, 2. Whether the surrender by Mst. Mohan Kuer was a valid surrender under Hindu law. In order to appreciate the respective contentions of the parties, it is necessary to set out shortly in chronological order the history of the events which has resulted in this controversy. As already stated, Shah Chiranji Lal died on the 14th May, 1913, leaving considerable movable and immovable property. At the time of his death, his widow Khem Kuer was about eleven years old and his mother Mohan Kuer was about 53 years old. The two reversioners, Shah Jwala Prasad and Shah Madho Lal, made an application for mutation of names of the estate in their favour claiming it on the basis of a will alleged to have been made by Shah Chiranji Lal on the 13th May, 1913, a day before his death. On the 10th of September, 1913, an application was made by Mohan Kuer for herself and as guardian of Khem Kuer Challenging the genu ineness of the will and claiming 798 that the estate of the late Shah Chiranji Lal should be mutated in their names. Notice of this application was given to the two reversioners but they thought it prudent not to appear and to contest the contentions raised by the two ladies. with the result that the inheritance of the late Chiranji Lal was mutated in the name of the widow as sole heir under the guardianship of Mohan Kuer by an order dated the 28th October, 1913. The reversioners had also made applications in pending suits for getting themselves im pleaded as legal representatives. Mohan Kuer applied for the removal of their names and for substitution of the name of the widow and of herself in those cases. Pending decision of these matters, on the 11th May, 1915, suit No. 120 of 1915 was filed by Jwala Prasad and Madho Lal on the basis of the alleged will of the 13th May, 1913. On the same day an application was made for the appointment of a receiver and an interim order appointing a receiver was passed by the court. On the 18th May, 1915, Mohan Kuer for herself and as guardian of the minor widow made an application praying for the discharge of the receiver. By an order dated the 23rd September, 1915, the receiver was discharged and it was held by the civil judge that the plaintiffs had no prima facie case and that the will propounded by them was a suspicious document. On the 18th December, 1915, suit No. 120 of 1915 was compromised between the parties. This compromise is in the following terms : "1. The plaintiffs relinquish their claim for possession over the estate of Shah Chiranji Lal. The defendants shall have all those rights to the estate of Shah Chiranji Lal, which she had as a Hindu widow according to law. After the death of the two Musammats, the plaintiffs in equal shares and, after them, their heirs, who might have the right of survivorship one after the other, shall be the owners of the estate of Shah Chiranji Lal. The name of Mst. Mohan Kunwar defendant against one half of the property in lieu of maintenance, shall continue. 799 4. Mohan Kunwar and Mst. Khem Kunwar shall have power to do anything they might choose with the entire income from the movable and immovable property, cash, orna ments, amount of decrees and documents, household goods and other movables, which they might have in their possession. The plaintiffs or anyone else shall have no power to inter fere or to ask for rendition of accounts. In case Mohan Kunwar defendant dies first, Mst. Khem Kunwar shall, as a Hindu widow, become the owner in posses sion of the entire property, of which Mst, Mohan Kuer might have been in possession in any way, subject to the provi sions of condition No. 4. In ,case Mst. Khem Kuer defendant dies first, Mst, Mohan Kuer shall as a Hindu widow, become the owner in possession of the entire property of which. Mst, Khem Kuer might have been in possession in any way, subject to the provisions of condition No. 4." In accordance with the terms of this compromise suit No. 120 of 1915 was dismissed. In the proceedings that were pending for substitution of names the court on the 22nd December, 1915, ordered that Khem Kuer and Mohan Kuer be impleaded as legal representatives of the late Shah Chiranji Lal. On the 2nd September, 1918, Khem Kuer brought a suit against her mother in law Mohan Kuer for a declaration to the effect that she alone was the lawful heir of Chiranji Lal and was the owner of the property, mentioned in schedule A and that the defendant had no concern with it. This suit was compromised between the parties on the 22nd April, 1919. Mohan Kuer agreed that Khem Kuer 's suit be decreed. Khem Kuer undertook to look after Mohan Kuer in every way and if she desired to live separately from her, she agreed to pay her a sum of Rs. 3000 per annum by way of maintenance. Khem Kuer did not live long after her having become owner of the entire estate of her husband under the terms of this compromise. As stated already, she was murdered on the 28th August, 1919. The estate 104 800 thus became vested in Mohan Kuer both according to Hindu law as well as in accordance with the terms of the compromise of the 18th December, 1915. It is alleged that either on the fourth or the thirteenth day after the death of Khem Kuer, Mohan Kuer when asked about the mutation of the estate, said that she had no concern with it and had relinquished it and had devoted herself to worship. On the 15th September, 1919, an application bearing the signature of Mohan Kuer in Hindi was presented by her mukhtar Chaturbhuj in the court of the subordinate judge at Agra, praying that the sale certificate in suit No. 1919 (Shah Jwala Prasad vs Rai Bahadur Shah Durga Prasad), be prepared in the names of Shah Jwala Prasad and Shah Madho Lal, for they were the heirs in possession of the properties of Shah Chiranji Lal. This application (Exhibit N 31) contains the following recital: "Mst. Khem Kuer died on the 28th of August, 1919. I do not want to take any proceedings in my own name. Shah Jwala Prasad and Shah Madho Lal are the subsequent heirs and it is in their names that all the mutation proceedings etc. are being taken in the revenue court. They have been made the heirs in possession of the entire property and an applica tion has been filed in their names in this court for prepara tion of the sale certificate. This petitioner has got no objection to the preparation of the sale certificate in their names, for they are the heirs and are in possession of the property. " The sale certificate was prepared accordingly. On the 16th September, 1919, Jwala Prasad and Madho Lal applied for mutation in respect of the lands relating to mauza Somra in the court of the tahsildar of Etmadpur. In column 5 of this application (Exhibit A 14) it was alleged that they were entitled to mutation by right of inheritance. Similar appli cations were made in respect of other villages also. (Vide Exhibit 128 etc.) Mutations were entered in all the villages on the basis that both of them were heirs in equal shares to the property of the deceased, though according to Hindu law, Shah Jwala Prasad alone was the 801 next heir. During the course of the mutation proceedings one Chintaman, general attorney of Shah Jwala Prasad was exam ined on the 11th October, 1919 and he stated that Mst. Khem Kuer died on the 28th August, 1919, that Shah Jwala Prasad and Shah Madho Lal were her heirs in equal shares, that Mohan Kuer was the mother in law of the deceased and she did not want her name to be recorded and had made relinquishment in favour of Shah Madho Lal and Shah Jwala Prasad in the civil court on the 15th September, 1919. Chaturbhuj, gener al attorney of Mohan Kuer was examined in the same proceed ings on the 27th October, 1919, and he stated that Mohan Kuer did not want her name to be recorded in place of the name of the deceased, that she had no objection to the entry of the names of Shah Jwala Prasad and Shah Madho Lal, that she had sent him for making that statement. He admitted the relinquishment filed by Mohan Kuer in the civil court with respect to the property of Mst. Khem Kuer but he was not able to state when that relinquishment had taken place. The tahsildar after recording these statements ordered the mutation of names in favour of the two reversioners (Exhibit M 2). On the 22nd November, 1919, the two reversioners Shah Jwala Prasad and Shah Madho Lal, having entered into possession of the estate after the death of Khem Kuer made a gift of property of the value of about Rs. 50,000 in favour of the sisters of Shah Chiranji Lal by means of two deeds of gift. (Vide Exhibit M 16). These gift deeds contain the following recitals : "Shah Chiranji Lal deceased was the owner of Katariha estate in which besides other villages the villages speci fied below were also included, and as he had no issue after his death Mst. Khem Kuer became his heir as a Hindu widow of a joint family subject to Mitakshara school of law. On her death we the executants who were entitled to become the absolute owners of the estate of Shah Chiranji Lal according to Shastras became the absolute owner of the entire property 802 of Shah Chiranji Lal by inheriting the estate from him. We obtained possession over everything and mutation of names also were effected in our favour from the revenue court in respect of all villages. Shah Chiranji Lal deceased had two sisters Mst. Ram Kuer and Mst. Prem Kuer and he had a desire during his lifetime to give them some property but owing to sudden death he could not himself fulfil his intention during his lifetime. We the executants accept this fact as desired by him. Besides this the mother of Shah Chiranji Lal also desires the same thing and it is our duty to fulfil the same, and to give property to the Musammats aforesaid is considered to be a pious and good act from the religious point of view. It is our duty also to respect their wishes and fulfil the same, so that the people of our caste and family might not think that after the death of Shah Chiranji Lal his wishes remained unfulfilled. Hence for the reasons set forth above and keeping in view the honour of the family and pious nature of the act we the executants while in a sound state of body and mind . . . make a gift of the following villages in favour of the donees. " The donees subsequently made a number of transfers of the property gifted to them and in every respect the gift deeds were acted upon. Jwala Prasad, the presumptive rever sioner, died in the year 1980. In suit No. 49 of 1928 (same as No. 89 of 1929) one Pandit Rikh Ram had obtained a decree against Shah Madho Lal and his sons and they appealed against it to the High Court and also applied for postponement of the preparation of the final decree. Stay was ordered on the applicants furnishing security in the sum of Rs. 20,000 for future interest, costs, etc. On the 26th May, 1930, in compliance with the order of the High Court a security bond was executed by Shah Madho Lal and his sons as first party and by Mst. Mohan Kuer as second party, containing the following recitals : "After the death of Mst. Khem Kuer Mst. Mohan Kuer was to become the owner of the property with 803 limited interests as a Hindu mother, but she relinquished her inheritance and did not agree to accept any property. By means of a private arrangement, i.e., a family arrange ment, it was decided as between Shah Jwala Prasad and Shah Madho Lal that they should be the owners of the property aforesaid in equal shares. Documents in that connection were registered. Thus Shah Madho Lal executant No.1 is the exclusive owner of the property given below which is being pledged and hypothecated under this security bond. Execu tant No. 4, the second party, has, after hearing and under standing the contents of this security bond, joined in token of the veracity of the facts noted above so that in future she might not be able to take objection to it and so that she might have no objection of any sort to the security bond." (Executant No. 4 was Mst. Mohan Kuer). On the 30th June, 1930, an affidavit bearing the thumb impression of Mst. Mohan Kuer was filed in the same pro ceedings containing the following statements : "I solemnly affirm and say that after the death of Mst. Khem Kuer I did not agree to accept property nor was I the heir and that I relinquished the entire property in favour of Shah Jwala Prasad who became the owner of the entire property which was in possession of Khem Kuer. " The Subordinate Judge expressed the view that the bond could not be held to have been executed by Mohan Kuer, she being a pardanashin lady. He declined to accept the deed as sufficient and valid security. On the 9th July, 1930, the High Court of Judicature at Allahabad dismissed the applica tion for stay of proceedings. On the 15th July, 1931, Mohan Kuer instituted suit No. 24 of 1931 in the court of the subordinate judge of Mathura against the widows of Shah Jwala Prasad, Shah Madho Lal and his sons and a number of transferees who had taken the property from these two reversioners. In para 8 of the plaint it was alleged 804 that the plaintiff was an old pardanashin woman, was simple and of week intellect and illiterate, that on account of the murder of Mst. Khem Kuer, she was very terror stricken and was full of sorrow and had no knowledge about her rights, that the third defendant and Jwala Prasad who wanted to get the property took undue advantage of the plaintiff 's afore said condition and unlawfully entered into possession of the property left by Chiranji Lal deceased and caused the muta tion of names in their favour. In para. 12 it was said that the defendants had got the thumb impressions of the plain tiff on certain documents without telling her the contents of those papers, simply by saying that a decree for a con siderable amount had been passed against the property and it was going to be sold in auction and that a security bond must be furnished for saving the property. She prayed for a decree for possession of the property in dispute in her favour against the defendants. During the pendency of this suit Mohan Kuer died on the 5th December, and on her death an attempt was made by the present plaintiffs to get them selves impleaded as her legal representatives but on the 9th October 1934 it was held that the claim of Mst. Mohan Kuer was of a personal character and the suit therefore could not proceed owing to abatement. It was, however, noted that the legal representatives could file a separate suit, if so advised. It is in consequence of this order that the suit out of which this appeal arises was filed on the 30th April 1936. It was contended by the learned Attorney General that the High Court on mere suspicions and unwarranted assump tions had found the main issues in the case against the appellant and had erroneously held that the compromise in suit No. 120 of 1915 was not binding on the 'plaintiffs and that the surrender by Mohan Kuer was not valid surrender under Hindu law. After hearing the learned counsel at considerable length, we did not think it necessary to hear the respondent in reply, as in our opinion, the decision of the High Court on both the points was right. 805 On the point of surrender, the learned Attorney General contended that the widow effaced herself and put both the reversioners in possession of the property half and half, and agreed to take Rs. 3,000 from them for her maintenance and that the fact of surrender was satisfactorily proved from the conduct of Mohan Kuer in allowing the estate to be mutated in the names of the reversioners and in allowing them to take possession of it, also by the different state ments made by her and from the other documentary and oral evidence led in the case. Emphasis was laid on the state ments contained in the application (Exhibit M 31), on the statement of her mukhtar Chaturbhuj, and on the recitals of the security bond and the affidavit, Exhibit P 30. Whether Mohan Kuer effaced herself and surrendered the property, or whether she merely abandoned it, or whether she entered into an arrangement for the division of the estate between herself, the two reversioners and the daughters and their sons it is not possible to predicate with any amount of certainty. No definite opinion can be offered on the question whether whatever she did, she did voluntarily after fully realizing the consequences of her act and wheth er as a pardanashin lady she had.been properly advised on the matter or whether she merely acted on sentiment. Considerable doubt is cast on the story of surrender set up by the defendants by the recitals in the two deeds of gift, dated 22nd November, 1919, extracted above. The donors did not base their title to the property either on the compromise of 1915 or on the surrender of Mohan Kuer of the year 1919 or on the will; on the other hand, they said that they had become owners of the property of Chiranji Lal by inheritance under Hindu law after the death of his widow. Both of them could not possibly inherit the property half and half under Hindu law. Moreover, there is no clear or definite evidence of either the time when the arrangement was made or of the terms thereof. The evidence on these points is vague and 806 unsatisfactory. It is completely wanting as to the arrange ment under which Mohan Kuer became entitled to receive Rs. 3,000 from them. The conduct of Mohan Kuer and the various statements by her no doubt do indicate that she cut off her connection with the bulk of the estate of Chiranji Lal after the death of the widow and received a sum of Rs. 3,000 from the rever sioners and it is also clear that at her instance the rever sioners gave property of the value of Rs. 50,000 to her daughters, but in the absence of any satisfactory evidence as to the precise nature of this arrangement it is not possible to conclude that the widow after fully realizing as to what she was doing and after proper advice effaced her self. In this connection the allegations made by her in the suit of 1931 cannot be altogether ruled out from considera tion. Assuming however for the sake of argument that Mobart Kuer purported to relinquish her estate in favour of Jwala Prasad and Madho Lal, in our opinion, the relinquishment connot in law operate as an extinction of her title in the estate. The principle underlying the doctrine of surrender is that it cannot possibly be made in favour of anybody except the next heir of the husband. Vesting of the estate in the next reversioner takes place under operation of law and it is not possible for the widow to say that she is withdrawing herself from the husband 's estate in order that it may vest in somebody other than the next heir of the husband. It was held by this court in Mummareddi Nagi Reddi vs Pitti Durairaja Naidu(1) that so far as the next heir is concerned, there cannot be a surrender of the total ity of the interest which the widow had, if she actually directs that a portion of it should be held or enjoyed by somebody else other than the husband 's heirs and that the position is not materially altered if the surrender is made in favour of the next heir with whom a stranger is associat ed and the widow purports to. relinquish the estate in order that it may vest in (1) [1951] s.c. R. 655. 807 both of them. Though in the written statements of the two sets of defendants different versions of the character of the arrangement were pleaded, the learned Attorney General before us stated that the surrender by the widow was made both in favour of Jwala Prasad and Madho Lal in equal moie ties. Madho Lal admittedly was not the next reversioner entitled to succeed to the estate. Thus the surrender of the totality of the interest of the widow was not made in favour of the next heir. That being so, it cannot operate as a valid surrender. If the surrender could be held a valid one, then obviously succession that had opened out in 1919 and vested in the next heirs could not be divested at the instance of the plaintiffs in the year 1932 on the death of Mohan Kuer, but in view of the invalidity of the surren der it has to be held that succession to Shah Chiranji Lal 's estate opened in 1932 and the plaintiffs as next heirs were entitled to take it. The next question for consideration is whether the compromise of 1915 entered into between Mohan Kuer as guardian of Khem Kuer, and the two reversioners who had claimed the estate on the basis of a will, was a bona fide family arrangement and thus binding on the ultimate rever sioners, the plaintiffs. It is well settled that when the estate of a deceased Hindu vests in a female heir, a decree fairly and properly obtained against her in regard to the estate is in the absence of fraud or collusion binding on the reversionary heir, but the decree against the female holder must have involved the decision of a question of title and not merely a question of the widow 's possession during her life (vide Venayeck Anundrow vs Luxumeebaee (1). This principle of res judicata is not limited to decrees in suits contested and it is competent to a widow to enter into a compromise in the course of a suit bona fide in the inter est of the estate, and not for ' her personal advantage, and a decree passed on such compromise is binding upon the reversioner. The question whether the transaction (1) 808 is a bona fide settlement of a disputed right between the parties depends on the substance of the transaction and in order that it may bind the estate it should be a prudent and reasonable act in the circumstances of the case. As observed by their Lordships of the Privy Council in Ram sumran Prasad vs Shyam Kumari (1), the true doctrine is laid down in Mohendra Nath Biswas vs Shamsunnessa Khatun(2), decided in 1914, and it is that a compromise made bona fide for the benefit of the estate and not for the personal advantage of a limited owner will bind the reversioner quite as much as a decree against her after contest. That being so,we proceed to inquire whether the compromise in the present case is one that can be supported on these principles. In agreement with the High Court we are of the opinion that it cannot be so supported. Mohan Kuer in entering into the compromise on behalf of the minor widow never applied her mind to the interests of the ultimate reversioners. She entered into it for her own personal benefit and for the personal benefit of the minor widow in complete indifference as to what was to happen to the estate after their respective deaths. Under this compromise these two ladies got all the rights they had under Hindu law without sacrificing an iota of their property and then they agreed that after their death the plaintiffs in equal shares and after them their heirs shall be the owners of the estate of Chiranji Lal. It did not matter in the least to the two ladies what was to happen to the estate after their deaths and they were quite willing to let this estate go to the plaintiffs in the suit, though one of them was a remote reversioner. The compromise therefore was made in the interest of the actual parties to the suit in complete disregard of the interests of the ultimate reversioners. The widows undoubtedly acted with reasonableness and pru dence so far as their personal interest was concerned but further than that they did not see. The claim, of the two plaintiffs in Suit No. 120 of 1916 was adverse to the inter est of the (1) (1922) 49 I,A. 342. (2) 809 reversion as they were claiming as legatees under the will. The widows while entering into the compromise safeguarded their personal rights only and thus in entering into it they only represented themselves and not the estate or the rever sioners and surrendered nothing out of their rights, and it cannot be said that in the true sense of the term it was a bona fide settlement of disputed rights where each party gave up something of its own rights to the other. The plain tiffs got an admission from the widows in regard to the future succession of the estate that after their deaths they would succeed though they were not heirs in accordance with Hindu law. By this admission the widows lost nothing what soever. Those who lost were the ultimate reversioners and their interest was not in the least either considered or safeguarded. In these circumstances it seems to us that the compromise cannot be held to be a bona fide settlement or family arrangement of disputed rights and was entered into by Mohan Kuer for her personal advantage and of the advan tage of Khem Kuer. The present case is analogous to the decision of the Privy Council in Imrit Konwur vs Roop Narain Singh (1). There in a dispute between a person claiming to be an adopted son of the previous owner and the widow and her daughters who would have title after her, the widow gave up her daughters ' rights in consideration of her receiving practically unimpaired what she could. Their Lordships held that such a compromise could not stand, as indeed it was not a compromise at all. The learned Attorney General laid considerable emphasis on the decision of their Lordships of the Privy Council in Mata Prasad vs Nageshar Sahai (2). In that case the widow admitted the right of the reversioner under Act I of 1869 and agreed that succession will be governed by that Act. The reversioner agreed to let her remain in possession and undertook that he would not alienate the property during that period. The widow in that case was not constituted a full owner under Hindu law and she did not get her full rights (1) (2) (1925) 52 I.A.393 810 under the compromise but as a matter of concession was allowed to remain in possession by the reversioner and as a matter of fact she sacrificed her rights to a considerable extent and did not act for her personal benefit at all except to the limited extent mentioned above. In the cir cumstances of that case it was held "that the compromise was a bona fide family settlement of disputed claims and was binding on the reversioners. In the present case the devolu tion of the property after the death of Chiranji Lal was agreed to be in accordance with Hindu law and that being so, the further devolution of the property after their death was no concern of the widows. That was a matter of law. The ultimate reversioners were stabbed in the back by the widow and such a compromise cannot be held to be binding on them. A large number of cases were cited before us in which com promises under different circumstances had been held to be binding on the reversioners. We consider that it is wholly unnecessary to examine those cases because the circum stances in which those compromises were made were quite different from the circumstances of the present case. Considering all the materials which were placed before us, we hold in agreement with the High Court that the compromise in the present case was neither prudent nor reasonable so far as it affected the interests of the estate and that of the ultimate reversioners and that being so, is not binding on the plaintiffs. For the reasons given above this appeal fails and is dismissed with costs. Civil Appeal No. 30 of 1951. This is an appeal by one of the transferees and arises out of the same suit out of which arises appeal No. 29 of 1951. On the 13th June, 1928, Shah Madho Lal and his son Shah Madhusudan Lal executed a sale deed (Exhibit M 13) in favour of the appellant for the sum of Rs. 21,000. The transferee while adopting the defence taken by Madho Lal and by the heirs of Jwala Prasad, pleaded that he was protected by the provisions of section 41 of the Transfer of Property Act. 811 The High Court held that in cases where a person who has allowed another to occupy the position of an ostensible owner has a limited estate, the rule of section 41 applies only during the lifetime of the limited owner and is not available to protect transferees against the claim of the reversioners. A number of authorities were cited in support of this proposition. The learned counsel for the appellant was unable to displace this proposition. It is quite clear that the plea of section 41 of the Transfer of Property Act could only be raised against Mohan Kuer or her legal repre sentatives but is not available against the plaintiff, Mohan Kuer having acquired a limited life estate. This contention is therefore rejected. The learned counsel then contended that the plaintiff Prem Kuer had relinquished her rights in favour of her sons in 1933 and she had no locus standi to maintain the suit or to appeal against the decision of the trial judge as the title to the estate had vested in her sons. The plaintiffs had alleged in para. 13 of the plaint that the relinquish ment was inoperative and void. The defendants did not dis pute that allegation and it is not open to them at this stage to take up the plea which they could have taken in the trial court or in the appellate court. Even in the grounds of appeal to this court the point was not taken. If the point was taken at the proper stage the plaintiffs might well have proved that the relinquishment was no longer operative or they might have amended the plaint and put it in proper form. The learned counsel adopted the arguments of the learned Attorney General in the other appeal and for the reasons given therein these points are decided against him. This appeal therefore also fails and is dismissed with costs. Appeals dismissed. Agent for the appellant in Civil Appeal No. 29 of 1951: section section Shukla. Agent for the appellant in Civil Appeal No. 80 of 195 I:P. C. Agarwal. Agent for the respondents in both: Rajinder Narain. [/INST]The petitioner who entered into contracts with the Government of India for the supply of certain quantities of sugar of foreign origin, placed orders with dealers in foreign countries and made arrangements for transporting the goods to Bombay by engaging steamers. When the goods were on the high seas and before the vessels arrived at Bombay harbour, the petitioner delivered to the Government the shipping documents including the bill of lading pertaining to the goods and received the price. After the goods reached the port, they were taken delivery of by the Government of India after paying the requisite customs duties to the authorities concerned For the assessment year 1954 55, the Assistant Collector of Sales Tax held that sales tax was payable by the petitioner in respect of the transaction relating to the sugar sold to the Government. The petitioner claimed, inter alia, that the sales had taken place in the course of import and therefore they were not liable to sales tax under article 286(1)(b) of the Constitution of India. But it was contended for the Sales Tax Authorities that the sales were not in the course of import and that, in any case, under the terms of the contracts the intention of the parties was that notwithstanding the delivery of the bills of lading against payment the property in the goods should not pass to the Government till actual delivery was made. Held: (1) that under article 286(1)(b) of the Constitution of India the course of the import of the goods starts at a point when the goods cross the customs barrier of the foreign country and ends at a point in the importing country after the goods cross the customs barrier; (2) that an importer can, if he receives the shipping documents, transfer the property in the goods when they, are on the high seas to a third party by delivering to him shipping documents against payment and such a sale is one made in the course of import; (3) that the delivery of a bill of lading while the goods are afloat is equivalent to the delivery of the goods themselves; Sanders Brothers vs Maclcan & Co., , relied on. (4) that on a true construction of the contracts in question the property in the goods passed to the Government of India 853 when the shipping documents were delivered to them against payment; and (5) that the sales in question took place in the course of. import into India and were exempted from sales tax under Art.286(1)(b) of the constitution. State of Travancore Cochi vs The Bombay Co. Ltd., ; , followed. </s>

<s>[INST] Summarize the judgementl Appeals Nos. 1868 to 1882 of 1969. Appeals from the judgment and order dated July 9, 10, 1968 of the Mysore High Court in Writ Petitions Nos. 1776, 2108, 2109, 2111, 2112, 2272, 2273, 2275, 2385, 2386, 2390, 2395 and 2396 of 1966 and 728 and 990 of 1967. Jagadish Swarup, Solicitor General, section section Javali and section P. Nayar, for the appellant (in all the appeals). M.Mama Jois and R. B. Datar, for respondent No. 1 (in C.As. 1868 to 1871 and 1874 to 1881 of 1969). 832 The Judgment of the Court was delivered by Mitter, J. The State of Mysore has come up in appeal from a common judgment of the High Court at Bangalore disposing of a number of writ petitions and holding void the compulsory transfer of the respondents herein to the Agricultural University under the provisions of the University of Agricultural Sciences Act, 1963. As the same question arise Civil all these appeals it will be sufficient to state the facts in Appeal No. 1$68 of 1969 in which one H. Papanna Gowda is the respondent. The said respondent was appointed on January 7, 1959 as an agricul tural demonstrator in the Mysore Civil Service. His appointment was as a local candidate ' which under the Mysore Civil Service Rules means a person appointed not in accordance with the rules of recruitment. His services were however regularised when he was selected by the Public Service Commission for appointment to that post on August 27, 1959. By an order dated April 4, 1964 he was transferred and posted as a Chemical Assistant of the Sugarcane Research Station Mandya, in the department of agriculture. When he was thus employed, a law made by the State Legislature called the University of Agricultural Sciences Act. , 1963 (hereinafter referred to as the Act ') came into force on April 24, 1964. Before the High Court the respondents to these appeals challenged the vires of section 7(5) of the Act and a notification issued thereunder. The preamble to the Act shows that it was an Act to estab lish and incorporate a University for the development of agriculture, animal husbandry and allied sciences in the State of Mysore. Under section 3(2) the University was to be a body corporate having perpetual succession and a common seal. The powers given under section 6 of the Act enabled it inter alia to create administrative, ministerial and other posts and to appoint persons to such posts. Under section 7(1) subject to the conditions therein mentioned several agricultural and veterinary colleges were disaffiliated from the Karnatak University or the University of Mysore and were to be maintained by the new University as constituent colleges. The control and management of these colleges were to stand transferred to the Agricultural University and all its properties and assets and liabilities and obligations of the State Government in relation thereto were to stand transferred to, vest in, or devolve upon the said University. Under sub section (4) of section 7 the control and management of such research and educational institutions of the Department of Agriculture, the Department of Animal Husbandry and the Department of Fisheries of the State Government were, as and from such date as the State Government 833 might by order specify, to be transferred to the University and thereupon all the properties and assets and liabilities and obligations of the State Government in relation to such institutions were to stand transferred to, vest in, or devolve upon the University. omitting the proviso which is not relevant for our purpose, sub section (5) provided "Every person employed in any of the colleges specified in sub section (1) or in any of the institutions referred to in sub section (4) immediate before the appointed day or the date specified in the order under subsection (4), as the case may be, shall, as from the appointed day or the specified date, become an employee of the University on such terms and conditions as may be determined by the State Government in consultation with the Board :" The Board has been defined in section 2 clause (3) as the Board of Regents of the University. By notification dated September 29, 1965 the control and management of a large number of research and educational institutions were transferred to the University with effect from October 1, 1965. The Agricultural Research Institute Mandya where the respondent was working was one such institution. Not liking the change which his future prospects were likely to undergo as a result of the notification, the respondent presented a writ petition, seeking a declaration that sub sections (4) and (5) of section 7 of the Act Were invalid And for a further declaration that he continued to be a civil servant under the State Government. To put in brief the argument on this head was that he had been removed from a civil post under the State in contravention of the provisions of article 311. A further argument was put up that the respondent had been subjected to hostile discrimination inasmuch as persons who had been appointed in the same manner as himself and later in point of time than himself had been retained in the service of the State thereby infringing articles 14 and 16 of the Constitution. It is not necessary to deal with the second point as the appellant, in our opinion, must fail on the first. There can be no dispute as indeed the learned Solicitor General was constrained to admit that the respondent and others who had filed writ petitions in the High Court challenging the notification ceased to hold the civil posts which they held under the State of Mysore at the time when the notification was issued if it was to have full force and effect. Whether the prospects of the respondent were 11 L694Sup. CI/71 834 or were not to be prejudicially affected if he was to become an employee of the University is not in point. However the learned Solicitor General drew our attention to paragraph 17 of the counter affidavit to the writ petition filed in the High Court where it was stated that the terms and conditions of transfer as agreed to by the Government and the University provided inter alia for the following (1)Every employee of the, Government on his transfer to the University shall enjoy the same pay scale. (2) He was to be eligible for pensionary benefits in the same manner as he had while he was serving the Government. (3) His claims for higher pay scales or higher positions under the University shall be deemed to be on a preferential basis in comparison with others, provided the qualifications and experience were equal; and (4)Every employees of the Government on his transfer to the University was to be protected to the extent that the terms and conditions of his service under the University would not be altered to his detriment. We are not here concerned with the question as to whether for all practical purposes the respondent was not to be a loser as a result of the transfer. Evidently the respondent held the view that as a civil servant of the State of Mysore the prospects of promotion to higher posts with better scales of pay were greater in the service of the State with its manifold activities in various departments. For better or for worse, the notification resulted in extinction of his status as a civil servant. The learned Solicitor General sought to rely on a judgment of the Punjab High Court in Amulya Kumar Talukdar vs Union of India and others(1) a case which was considered by the High Court of Mysore, in aid of his contention that the transfer of the kind effected in this case had been held to be valid by the Punjab High Court. The High Court at Bangalore went into the question rather elaborately and noted that there were many differences between the provisions of the , the Act impugned in the Punjab High Court and the Agricultural University Act of 1963. Tin the Punjab case the petitioner had initially been appointed by the Director, Indian Institute of Technology Kharagpur as a peon. As a result of the Act of 1956 the Institution declared to be one of national importance, was constituted under the Act providing inter alia that the employees who were working in the Institute be fore were to hold office or service thereafter upon the (1) I.L.R. 13 Punj. 781. 835 same terms and conditions and with the same rights and Privileges as to pension, leave, gratuity, provident fund and other matters as they would have held the same on the date of commencement of. the Act as if the Act had not been passed. In the case before us the Act provides by sub section (5) of section 7 that the terms and conditions of the Government employees immediately before the appointed day or the date specified in the notification were to be such as might be determined by the State Government in consultation with the Board. The learned Judge of the Punjab High Court on the facts of that case found it unnecessary to examine the argument whether, the assent given by the President to the Indian Institute of Technology Bill had the effect of terminating the status of the petitioners as Government servants by the President as also the argument raised on their behalf that their lien had been terminated under the Fundamental Rules without their consent. The Punjab decision can not therefore apply to the case as presented before us. In the result the appeals fail and are dismissed with costs. There will be one set of hearing fee. V.P.S. Appeals dismissed. [/INST]The appellant State issued an Order according to which reservation of posts for Scheduled castes. tribes and backward classes was made applicable not only to initial recruitment but also to promotions. Respondents 1 and 3 were in the 'State Government service and the former was the senior. But since the latter belonged to a scheduled caste he was promoted over. the first respondent as per the Order. The High Court quashed the promotion on the basis that such reservation might lead to various anomalies. In appeal to this Court, HELD : Article 16(1) provides for equality of opportunity to all citizens in relation to appointment to any office in the service of the State subject to the exception in article 16(4) that the State may make reservations in favour of backward classes. The reservation contemplated by article 16(4) can be made not merely to initial recruitment but also to Posts to which promotions are to be made. Every such reservation under article 16(4) does introduce an element of discrimination and promotion of junior officers over seniors; but the Constitution makers thought fit, in the interests of society as a whole, that backward classes should be afforded some protection. If, however, the reservation under article 16(4) makes the rule in article 16(1) meaningless the decision of the State would be open to judicial review; but the burden of establishing that a particular reservation is offensive to article 16(1) is on the person who takes the plea. [271 C, E, 272 D G, 273 D F] In the present case, there was no material from which it could be concluded that the impugned Order violated article 16(1). The reservation could not be struck down on hypothetical grounds or on imaginary possibilities. [273 H] General Manager, Southern Railway vs Rangachari, ; and A. Peeriakarupan etc. vs State of Tamil Nadu, [1971] 2 S.C.R. 430, followed. </s>

<s>[INST] Summarize the judgementAppeal No. 75 of 1962. Appeal by special leave from the judgment and decree dated October 19, 1959, of the Bombay High Court in Appeal No. 152 of 1959. N. C. Chatterjee, J.B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants. A. V. Viswanatha Sastri and D. D. Sharma, for respondents. April 22. The judgment of S.K. Das and Hidayatullah, JJ. was delivered by Das J. Sarkar J., delivered separate, judgment. S.K. DAS J. The only question which arises in this appeal is, whether on a proper interpretation of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act LVII of 1947) the Court of Small Causes Bombay had exclusive jurisdiction to deal with the suit out of which this appeal has arisen. The respondent before us is a partnership firm. It was in possession as a tenant of a shop No. 582/638, at Mulji Jetha Market, Bombay. It instituted a suit in the Bombay City Civil Court (to be distinguished from the Court of Small Causes, Bombay) in which it asked for (1) a declaration that it was in lawful possession of shop No. 582/638 at Mulji Jetha Market, Bombay and that the present appellants (who were the defendants in the suit) or their family members, servants or agents had no right to enter into or remain in possession of the said shop ; (2) for an injunction restraining the present appellants, their family members, servants and agents from entering into the said shop ; and (3) for an amount of commission payable to it under an agreement 218 dated June 23, 1955. The main averments in the plaint were that by the aforesaid agreement defendant No. 1, appellant No. 1 before us, appointed the respondent as his commission agent for the sale of the appellants ' cloth in the shop in question. The agreement was to remain in force for a period of four years expiring on June 30, 1959. Pursuant to the agreement, the appellants, their family members, servants and agents were allowed by the respondent to visit the shop only for the purpose of looking after the business of commission agency. On the expiry of the agreement the appellants had no further right to enter into the shop and in paragraphs 10 and 11 of the plaint the respondent firm alleged that some commission was due to it and further it asked the appellants not to disturb the possession and peaceful enjoyment of the shop by the respondent ; but the appellants, their servants and agents were visiting the shop daily and preventing the respondent from having access to its various articles such as stock in trade, books of account, furniture, fixtures etc. On these averments the respondent firm asked for the reliefs to which we have earlier referred. The plaint proceeded on the footing that during the period of the agreement the appellants were mere licensees, and after the expiry of the agreement they were trespassers and had no right to be in the shop. The plaint in terms negatives any relationship of landlord and tenant as between the parties to the suit. The substantial defence of the appellants was that the respondent firm had sublet the shop to the appellants at a monthly rent of Rs. 500/ ; but as no sub tenancy could be legally created at the time, without the consent of the landlord, by reason of the provisions of the Act, the respondent firm with a view to safeguard its position in regard to the penal provisions of the Act required the appellants to enter into a sham agreement in the shape of a letter dated June 30, 1952. The agreement was never acted 219 upon and was intended to be a cloak to conceal the true nature of the transaction. The appellants further alleged that the agreement dated June 23, 1955, was also not operative between the parties, and the true relation between the parties was that of landlord and tenant. On these averments in the written statement the appellants took the plea that as the question involved in the suit related to the possession of premises as between a landlord and his tenant, the Court of Small Causes, Bombay, alone had jurisdiction to try the suit. On these pleadings a preliminary issue as to jurisdiction was framed by the City Civil Court, Bombay and this issue was in these terms: "Whether this court has jurisdiction to entertain and try this suit ?" The learned judge of the City Civil Court relying on a decision of this court in Babulal Bhuramal vs Nandram Shivram (1), decided the preliminary issue in favour of the present appellants. He held that in view of the observations of the Supreme Court in the aforesaid decision, an earlier decision of the Bombay High Court in Govindram Salamatrai vs Dharampal (2), which had taken a different view was of no assistance to the present respondent, and must be deemed to have been over ruled by the Supreme Court decision. We may state here that the decision in Govindram Salamatrai (2) , had itself over ruled an earlier decision of the same court in Ebraham Saleji vs Abdulla Ali Raza (3), where Gajendragadkar J. (as he then was) had taken the view that section 28 of the Act included within its jurisdiction all suits and proceedings where the trial court has to consider all claims or questions arising out of the Act., and it makes no difference whether such claim or question arises from the allegations made in the plaint or those made in the (1) ; (2)(1951) , (3) , 220 written statement. The learned judge of the City Civil Court accordingly made an order that the plaint be returned to the present respondent for presentation to tile proper court. An appeal was taken by the present respondent to the High Court of Bombay from the decision of the learned City Civil judge. The High Court pointed out in its judgment dated October 19, 1959, that the ratio of the decision of this court in Babulal Bhuramal 's case (1), was correctly explained in a later decision of the Bombay High Court in Jaswantlal vs "Western Company, India" (2) and on a correct interpretation of section 28 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, the suit out of which this appeal has arisen was not a suit within the exclusive jurisdiction of the Court of Small Causes, Bombay. The High Court said that the decision in Babulal Bhuramal (1), did not in effect hold, nor did it justify any interpretation to the effect, that section 28 of the Act made a departure from the general principle that governs the question of jurisdiction, which is that jurisdiction at the inception of, the suit depends on the averments made in the plaint and is not ousted by the defendant saying something in his defence. In this respect, the High Court accepted as correct the view expressed by Chagla C. J. in Govindram Salamatrai (3), rather than the view of Gajendragadkar, J. in Ebrahim Saleji (4). In this view of the matter the High Court held that the City Civil Court has jurisdiction to try the suit out of which the appeal has arisen. It, therefore, set aside the order of the learned City Civil judge and directed that it should now dispose of the suit in accordance with law. The appellants then asked for special leave to appeal to this court from the judgment and decree of the High Court, and having obtained special leave have preferred the present appeal. (1) ; (2) (1959) 61 Bom. I.h. 1087, (3) (1951) 53 Bom, L.R (4) , 221 The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was enacted, to amend and consolidate the law relating to the control of rents and repairs of certain premises, of. rates of hotels and lodging houses and of evictions, In Part II of the Act there are provisions which make rent in excess of standard rent illegal, provisions relating to increase of rent, provisions as to when a landlord may recover possession, when a sub tenant becomes a tenant, unlawful charges by landlord etc. All these proceed on the footing that there is or was, at the inception, a relation of landlord and tenant between the parties. In the same Part occur sections 28. 29 and 29 A. Section 28 which we shall presently read deals with jurisdiction of courts ; section 29 deals with appeals, and section 29 A is a section which saves suits involving title. The particular section the interpretation of which is in question before us is section 28 and we shall read only sub section (1) thereof in so far as it is relevant for our purpose. This subsection reads. "28. (1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other re ason, the suit or proceeding would not, but for this provision, be within its jurisdiction. (a) in Greater Bombay, the Court of Small Causes, Bombay, (aa) xx xx xx (b) xx xx xx. . shall have jurisdiction to entertain and try any suit or proceeding between a land. lord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to 222 decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of sub section (2), no other court shall have jurisdiction to entertain any suit, proceeding or application or to deal with such claim or question. " S.29 A also has some relevancy and may be set out here. "Nothing contained in section 28 or 29 shall be deemed to bar a party to a suit, proceeding or appeal mentioned therein in which a question of title to premises arises and is determined, from suing in a competent court to establish his title to such premises. " Leaving out what is unnecessary for our purpose s.28(1) states that notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction, the Court of Small Causes in Greater Bombay shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part (meaning thereby Part II apply and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions and no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with any such claim or question. It is to be noticed that the operative part of the subsection refers to two matters: (a) any suit or proceeding between a landlord and a tenant reletting to the recovery of rent or possession of any premises to which any of the provisions of Part II apply and (b) any application made under the Act or any claim or 223 question arising out of this Act or any of its provisions. What is the true effect of sub s.(I) of s.28 with regard to the aforesaid two matters? Does it mean that if the defendant raises a claim or question as to the existence of a relationship of landlord and tenant between him and the plaintiff, the jurisdiction of the City Civil Court is ousted even though the plaintiff pleads that there is no such relationship, and the only court which has exclusive jurisdiction to try the suit is the Court of Small Causes, Bombay ? That is the question before us. In answering this question it is perhaps necessary to refer to the general principle which admittedly governs the question of jurisdiction at the inception of suits. This general principle has been well explained in the Full Bench decision of the Allahabad High Court, Ananti vs Chhannu (1), and bag not been disputed before us. It was observed there: The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen: If . he frames his suit in a manner not warranted by the facts, and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as framed, would not justify the other kind of court to grant him the relief. . . If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the (1) All, 501. 224 proper court. If, on the other hand, it is found that, having regard to the nature of the suit, it not Cognizable by the class of court to which the court belongs, the plaintiff 's suit will have to be dismissed in its entirety." Having regard to the general principle stated above, we think that the view taken by the High Court in this case is correct. section 28 no doubt gives exclusive jurisdiction to the Court of Small Causes to entertain and try a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of Part II apply; it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its 'provisions all this notwithstanding anything contained in any other law. The argument of learned counsel for the appellants is that the section in effect states that notwithstanding any general principle, all claims or questions under the Act shall be tried exclusively by the courts mentioned in the section, e.g. the Court of Small Causes in Greater Bombay, and it does not matter whether the claim or question is raised by the plaintiff or the defendant. 'The argument is plausible, but appears to us to be untenable on a careful scrutiny. We do not think that the section says or intends to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decide all questions or claims under the Act as to parties between whom there is or was a relationship of landlord and tenant. It does not invest those courts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If, therefore, the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction 225 given under section 28 depends, we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go. The interpretation canvassed for by the appellants will give rise to anomalous results; for example, the defendant may in every case force the plaintiff to go to the Court of Small Causes and secondly, if the Court of Small Causes finds against the defendant 's plea , the plaint may have to be returned for presentation to the proper court for a second time. Learned counsel for the appellants has argued in the alternative that the Court of Small Causes need not return the plaint a second time, for his contention is that Court has "exclusive" jurisdiction to decide the case whenever a claim is made under the Act even though the claim is found to be false on trial. We do not think that this contention can be accepted as correct, for to do so would be to hold that the Court of Small Causes has exclusive jurisdiction to decide question of title, which is clearly negatived by section 29 A. Anomalous results may not be a conclusive arguments but when one has regard to the provisions in Part 11 it seems reasonably clear that the exclusive jurisdiction conferred by s.28 is really dependent on an existing or previous relationship of landlord and tenant and on claims arising under the Act as between such parties. Dealing with a similar argument in Govindram Salamatrai (1) Chagla, C.J. said : "There can be no doubt that when a plaintiff files a suit against a defendant alleging that he is his licensee, it is a suit which cannot be entertained and tried by the Small Causes Court because it is not a suit between a landlord and a tenant, and judging by the plaint no question arises out of the Rent Control Act or any of its provisions which would have to be determined on the plaint as it stands. . . . (1) 226 It cannot be suggested that the plaintiff should anticipate any defence that might be taken up by the defendant that he is a tenant or that the initial jurisdiction which the Court had or which the Court lacked should be controlled or affected by any subsequent contention that might be taken up by the defendant. The jurisdiction of a Court is normally and ordinarily to be determined at the time of the inception of a suit. Therefore when a party puts a plaint on file, it is at that time that the Court has to consider whether the Court had jurisdiction to entertain and try that suit or not. But it is argued that although the Court might have had jurisdiction when the suit was filed, as soon as the defendant raised the contention that he was a tenant the Court ceases to have jurisdiction to try that suit and that contention could only be disposed of by the Small Causes Court by virtue of the pr ovisions of section 28. Therefore, the question that I have to address myself to is whether the question as to whether the defendant is a tenant or a licensee is a question which arises out of the Act or any of its provisions. Really, this question is not a question that has anything to do with the Act or any of its provisions. It is a question which is collateral and which has got to be decided before it could be said that the Act has any application at all. " We are in agreement with these observations, and we do not think that section 28 in its true scope and effect makes a departure from the general principle referred to earlier by us. Nor do we think that the right of appeal given by s.29 affects the position in any way. In respect of a decision given by a Court exercising jurisdiction under section 28, an appeal is provided for in certain circumstances 227 under s.29. This does not mean that s 28 has the effect contended for on behalf of the appellants. As to the decision of this Court in Babulal Bhuramal (1), we do not think that it assists the appellants. We consider that the Bombay High Court correctly understood it in Jaswantlal vs "Western Company, India" (2). In Babulal Bhuramal 's case the facts were these. A landlord after giving a notice to quit to his tenant on December 6, 1947, filed a suit against him in the Court of Small Causes, Bombay, joining to the suit two other persons who were alleged to be sub tenants of the tenant. The landlord 's case was that the tenancy of his tenant was validly terminated and he was entitled to evict his tenant; that the alleged sub tenants of the tenant were trespassers who had no right to be on the premises. The suit succeeded in the Small Causes Court, the Court holding that the subtenants were not lawful sub tenants, the sub letting by the tenant to them being contrary to law. The Small Causes Court, therefore, passed a decree against the plaintiff and the alleged sub tenants. Thereafter, the tenant as plaintiff No. I and the alleged sub tenants as plaintiffs Nos. 2 and 3 filed a suit against the landlord in the City Civil Court for a declaration that plaintiff No. I was a tenant of the defendant and was entitled to protection under the Rent Act and that plaintiffs Nos. 2 and 3 were lawful sub tenants of plaintiffs No, I and were entitled to possession and occupation of the premises as sub tenants thereof. A question was raised in the City Civil Court as to whether the City Civil Court had jurisdiction to entertain the suit. The City Civil Court held that it had jurisdiction to entertain the suit, but dismissed it on merits. In the appeal which was filed in the High Court, the High Court dismissed the appeal holding that the City Civil Court had no jurisdiction to entertain the suit and therefore, the suit filed by the plaintiffs in the City (1) [1959] 367, (2) 228 Civil Court was not maintainable. It was from this decision of the High Court that an appeal was filed in the Supreme Court and the question which the Supreme Court had to consider was whether the second suit filed by the plaintiffs was within the jurisdiction of the City Civil Court. It was urged before the Supreme Court that the suit was main tainable under section 29 A of the Bombay Rent Act which provided that nothing contained in sections 28 or 29 should be deemed to bar a party to a suit, proceeding or appeal mentioned there in which a question of title to premises arises and is determined, from suing in a competent Court to establish his title to such premises. The Supreme Court held that a suit which was competent to establish title under section 29 A was a suit to establish title de hors the Bombay Rent Act and not a suit which sought to establish title which required to be established under the Rent Act itself. It is obvious that in the suit before the Court of Small Causes, it was open to the tenant to claim protection under the Act and by reason of section 28 no other Court had jurisdiction to try that claim; therefore, the Supreme Court held that section 28 barred the second suit and section 29 A did not save it, because it only saved a suit to establish title de hors the Act. The observations made in that decision on which the present appellants rely were these "Do the provisions of section 28 cover %case where in a suit one party alleges that he is the landlord and denies that the other is his tenant or vice versa and the relief asked for in the suit is in the nature of a claim which arises out of the Act or any of the provisions? The answer must be in the affirmative on a reasonable interpretation of section 28. " We agree with the High Court that these observation merely show this that in order to decide whether a suit comes within the purview of section 28 what must 229 be considered is what the suit as framed in substance is and what the relief claimed therein is. If the suit as framed is by a landlord or a tenant and the relief asked for is in the nature of a claim which arises out of the Act or any of its provisions, then only and not otherwise will it be covered by section 28. The High Court has rightly said : "A suit which is essentially one between the landlord and tenant does not cease to be such a suit merely because the defendant denies the claim of the plaintiff. In the same way, a suit which is not between the landlord and tenant and in which judging by the plaint no claim or question arises out of tile Rent Act or any of its provisions does not become a suit covered by the provisions of section 28 of the Act as soon as the defendant raises a contention that he is a tenant. " For the reasons given above we hold that the City Civil Court had jurisdiction to entertain the suit and the High Court correctly came to that conclusion. Therefore, the appeal fails and is dismissed with costs. SARKAR J. I agree that this appeal fails. The City Civil Court, Bombay held that in view of section 28 of the Bombay Rents Hotel and Lodging Rates Control Act, 1947 it had no jurisdiction to entertain and try the Suit which the respondent had filed against the appellants in that Court and directed the plaint to be returned to the respondent for being filed in the proper Court indicated by that section, namely) the Court of Small Causes, Bombay. The City Civil Court had tried the question as a preliminary issue in the suit. There was an appeal to the High Court of Bombay from this decision and the High Court took a contrary view holding that 230 the City Civil Court 's jurisdiction to entertain and try the suit had not been taken away by section 28 of the Act. The matter is now before this Court in further appeal. The suit asked for a declaration that the appellants were not entitled to enter into or remain in possession of a certain shop in Greater Bombay and for a permanent injunction restraining them from entering the shop ' The allegations on which the claim to these reliefs was based were that the appellants had been granted a licence to use the shop of which the respondent was the tenant under the owner and that the appellants were wrongfully continuing there in spite of the termination of the licence and were thereby preventing the , respondent from carrying on its business in the shop. The suit, therefore, was by a licenser against a licensee for certain reliefs based on the termination of the licence. The defence of the appellants to this suit was that the relationship between the parties was not that of licenser and licensee but that the shop had in fact been sub let to the first appellant and that the agreement between the parties had been given the form of a licence only as a cloak to protect the respondent from ejectment under the Act by its landlord on the ground of unlawful sub letting. The appellants contended that as they were really tenants, their landlord, the respondent, was not entitled to remove them from possession in view of the provisions of the Act. The question is, how far the suit is affected by section 28 of the Act. I proceed now to set out the terms of that section omitting the unnecessary portions. section 28 (I) "Notwithstanding anything contained in any law 231 (a) in Greater Bombay, the Court of Small Causes, Bombay, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and. . . . no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. " The section deals with three different kinds of matters, namely, (1) suits or proceedings between a landlord and a tenant relating to the recovery of rent or recovery of possession of premises, (2) an application made under the Act and (3) a claim or question arising out of the Act or any of its provisions. It provides that no court except the Court of Small Causes, so far as properties in Greater Bombay are concerned, shall have jurisdiction to entertain and try any suit or proceeding or to decide any application or lastly to deal with any claim or question of any of the said three kinds mentioned in it. I think it is fairly clear that the suit of the respondent does not fall within the first two kinds of matters contemplated by the section mentioned in. the preceding paragraph and I did not understand learned counsel for the appellants to contend to the contrary. The suit obviously does not come within the second kind for that consists of applications under the Act only and a suit is, of course, not an "application". Turning now to the first kind, it has to be 232 observed that it deals with two varieties of suits between landlord and tenant, namely, a suit for rent and a suit for possession of premises. Obviously the respondent 's suit is not a suit for rent for no rent is claimed at all. Nor do I think it possible to say that the suit is one between a landlord and a tenant for recovery of possession of premises. I suppose whether a suit is of this kind or not will have to be decided by the frame of the suit, that is, by reference to the plaint for the suit is by the plaintiff and it must be as lie has decided it shall be. Admittedly the plaint that the respondent filed does not show that the suit filed by it is between landlord and tenant nor does it contain any claim for recovery of possession of premises. That brings me to the third class of matters mentioned in the section namely, claims and questions arising out of the Act. The section provides that no court other than a Court of Small Causes shall have jurisdiction to deal with any claim or question arising under the Act concerning properties in Greater Bombay. It is important to note here that this part of the section does not purport to affect any court 's jurisdiction to entertain and try a suit but it only prevents a court from dealing with certain claims or questions. Therefore, a court may try a suit in so far as it does not thereby have to deal with a claim or question arising out of the Act. If the other claims and questions arising in the suit cannot be tried without dealing with a claim or question arising out of the Act, then of course the practical result would be to prevent the court from trying the suit at all. Therefore, it seems to me that the real question in this case is whether the City Civil Court had no jurisdiction to try the respondent 's suit as a whole or in part because it would thereby be dealing with a claim or question arising under the Act. Does the 233 decision of the suit then require any claim or question arising out of the Act to be dealt with ? If it does not, the City Civil Court would be absolutely free to try the suit. Now, if one considers the plaint only, then of course it is clear that the present suit raises no claim or question arising out of the Act. But it is said by the appellants that the defence raises such a claim or question. The respondent answers that the section contemplates claims or questions raised by the plaint only, for the section determines the jurisdiction of a court to entertain and try a suit and this must be done when the suit is instituted and, therefore, it is irrelevant to consider what questions the defence raises. I think it unnecessary to decide the dispute whether it is permissible under the section to look at the defence for ascertaining whether a claim or question under the Act arises in the suit. As at present advised, I do not want to be understood as assenting to the proposition that a reference to the written statement is not at all permissible for deciding whether a court has jurisdiction under the section to deal with claims or questions of a certain kind. It is important to remember that the question now is whether a court has jurisdiction to deal with a claim or question and not whether a court has jurisdiction to entertain a suit. I think it unnecessary to decide the dispute because in my view even the defence in the present case does not raise any claim or question tinder the Act. The defence really is that the appellants are not licensees. No doubt the appellants have gone on to say that they are sub tenants but they say that only to show why they are not licensees; apart from that it is irrelevant to enquire whether they are sub tenants or not. I think the defence is only one of 234 a traverse ; it is that the appellants are not licensees as the plaint alleges. That being so, the only question that the suit involves is whether the appellants are licensees of the shop. If they are not licensees, then the suit must fail. No other question would fall for decision. Quite clearly, a question whether a defendant is a licensee or not, is not a question nor is it a claim arising out of the Act. Assume however that the defence by contending that the appellants are not licensees as they are subtenants, also raises the question whether the appellants are sub tenants. Even so, it does not seem to me that is a question or claim arising out of the Act. The Act does not create any tenancy. That has to be created by a contract. The question whether the appellants are sub tenants, that is to say, tenants of a certain kind, is really a question whether a contract of tenancy was made between the appellants and the respondent. That question is not one arising out of the Act for the Act says nothing as to the creation of a tenancy and is only concerned with the regulation of the relations between a landlord and tenant in a tenancy the existence of which is otherwise brought about. The appellants no doubt say that the respondent cannot evict them because they are tenants whose right to possession is protected by the Act. They say that, therefore, a question arises whether they are entitled to remain in possession as subtenants by virtue of the provisions of the Act and without the decision of that question the respondent 's suit cannot be decided. I am entirely unable to see 'that such a question arises in the suit or that it cannot be decided without a decision of that question. As soon as it is held that the appellants are licensees, the suit has to be decreed. When it is so held it has also been necessarily held 235 that the appellants are not tenants, and, therefore, no further question as to rights of tenants under the Act falls to be decided. If however it is held that the appellants are not licensees but tenants, then on that ground alone the suit has to be dismissed for the claim is not based on any ground other than that the appellants are licensees whose licence has expired. It would not in such an eventuality be necessary further to consider whether the appellants who have been found to be tenants, are entitled to protection from eviction under the Act for the suit involves no claim whatever for ejectment of the appellants considered as tenants. No question, therefore, can possibly arise in the suit as to whether the appellants are entitled to be in possession as tenants by virtue of rights created by the Act. Looking at the matter from whatever point of view I do, I am wholly unable to think that the decision of any question or claim arising out of the Act is necessary for deciding the suit. Learned counsel for the appellants referred to Babulal Bhuramal vs Nandram Shivram (1), in support of the proposition that the claim or question arising out of the Act mentioned in the section may be one where only the defence gives rise to it. I find it wholly unnecessary to discuss whether this case supports that proposition for, as I have said in the case in hand, even the defence of the appellants does not raise any such claim or question. I think it right before concluding to refer to section 51 of the Act under which reference to suits and proceedings in the Act are to include reference to proceedings under Chapter VII of the . Chapter VII of the contemplates proceedings for the recovery of possession of premises from licensees after the termination of licences in certain cases. Whether the present case is of that (1) ; 236 type or not is not known. If it is of that type, then it may be that the City Civil Court would have no jurisdiction to deal with it and only the Court of Small Causes would have jurisdiction to do so in view of section 28. As however no argument was advanced by counsel for the appellants on the basis of section 51 nor the facts necessary for its application appear on the record, I do not feel called upon to express any opinion on the matter. I only draw attention to it to show that if the question does arise that has not been argued nor decided in this case. I think it also right to point out that it may be a moot question whether the appellants, having on their own statement entered into an agreement to defraud, in a manner of speaking, the superior landlord of his rights arising under the Act from an unlawful sub letting, can be permitted to say that the real transaction between them and the respondent was a sub tenancy. For these reasons I concur n i the order ' proposed by my brother Das. Appeal dismissed. [/INST]The respondent Is a partnership firm. It instituted a suit in the Bombay City Civil Court against the appellant. It was alleged in the plaint that by virtue of an agreement appellant No. I appointed the respondent as his commission agent for the sale of his cloth in the shop which was in the possession of the respondent. The agreement was to remain in force for four years. Persuant to the agreement the appellants, their family members, servants and agents were allowed by the respondent to visit the shop only for the purpose of looking after the business of commission agency. On the expiry of the agreement the appellants had no further rights to enter into the shop. The respondent prayed for a declaration that it was in lawful possession of the shop, for an injunction restraining the appellants, their family members, servants and agents from entering into the shop and for an amount of commission payable to it under the agreement. The plaint proceeded on the footing that 215 during the period of agreement the appellants were mere licensees and after the expiry of the agreement they were mere trespassers. The plaint in terms negatives any relationship of landlord and tenant as between the parties to the suit. The defence of the appellants was that the respondent had sublet the shop to them at a certain monthly rent. But since no subletting is possible under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, without the consent of the land lord the parties entered into a sham agreement which was never acted upon and which was only a cloak to conceal the true relationship. The relationship was that of a land lord and tenant. On these averments in the written statement the appellants took the plea that the Court of Small Causes Bombay alone had jurisdiction to try the suit. The City Civil Court relying on a decision of this Court upheld the contention of the appellants and made an order that the plaint be returned for presentation to the proper court. The respondent thereupon appealed to the High Court. The High Court held that on a correct interpretation of s.28 of the Act the suit out of which the appeal had arisen was not a suit within the exclusive jurisdiction of the Court of Small Causes Bombay and setting aside the order of the City Civil judge directed that it should dispose of the suit in accordance with law. The present appeal is by way of special leave. In the appeal the same question as to the jurisdiction of the City Civil Court was raised. Held (per S.K. Das and M. Hidayatullah, JJ.) that section 28 no doubt gives exclusive jurisdiction to the Court of Small Causes to entertain and try a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of Part II of the Act apply; it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its provisions. Section 28 does not invest the Court of Small Causes with exclusive power to try questions of title as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If therefore the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under section 28 depends, the defendant by his plea cannot force the plaintiff to go to a forum where on his own averments he cannot go. If the suit as framed is by a land lord or a tenant and the relief asked for is in the nature of a claim which arises 216 out of the Act or any of its provisions then only and not otherwise will it be covered by section 28. The City Civil Court had jurisdiction to entertain the suit and the High Court correctly came to that conclusion. Ananti vs Ghhannu, All. 501 Govindram Salamatrai vs Dharampal, , and Jaswantlal vs Western Company, India (1959), 61 Bom. L R. 1087, approved. Babulal Bhuramal vs Nandram Shivram ; , explained. Per Sarkar, J. The suit is not one between a land lord and a tenant for recovery of possession of premises and there. fore it does not come under the first kind of matters mentioned in section 28(1). The suit does not come under the second kind mentioned in that section as that deals with certain applications only. Section 28 thirdly provides that no court other than a Court of Small Causes shall have jurisdiction to deal with any claim or question arising under the Act concerning properties in Greater Bombay. This part of the section does not purport to affect any court 's jurisdiction to entertain and try a suit but it only prevents a court from dealing with certain claims and questions. Therefore a court may try a suit in so far as it does not thereby have to deal with a claim or question arising out of the Act. It is unnecessary to decide the dispute whether it is per missible under the section to look at the defence for ascertaining whether a claim or question under the Act, arises in the suit because even the defence in the present case does not raise any claim or question under the Act. The defence really is that the appellants arc not licensees. That being so, the only question that the suit involves is whether the appellants are licensees of the shop. Quite clearly, such a question is neither a question nor a claim arising out of the Act. Neither is a question whether the appellants are sub tenants one arising out of the Act for the Act says nothing as to the creation of a tenancy. No discussion of any question or claim arising out of the Act is necessary for deciding the suit. </s>

<s>[INST] Summarize the judgementAppeals Nos. 2251 and 2252 of 1968. Appeals by special leave from the judgment 'and order dated ' October 9, 1968 of the Madras High Court in O.S.A. Nos. 26 and 27 of 1968 and Civil Appeals Nos. 2305 and 2306 of 1968. Appeals by special leave from the judgment and order dated April 12, 1968 of the Madras High Court in Applications Nos. 1760 and 2455 of 1967 in C.S. No. 118 of 1967. M.C. Setalvad, V.P. Raman, D.N. Mishra and 1. B. Dadachanji for the appellant (in C.As. Nos. 2251 and 2252 of 1968) and respondent No. 1 (in C.As. 2305 and 2306 of 1968). section Mohan Kumaramangalam, M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for respondent No. 1 (in C.As. Nos. 2251 and 2252 of 1968) and the appellant (in C.As. 2305 and 2306 of 1968). Rameshwar Nath and Mahinder Narain, for respondent No. 2 (in all the appeals). The Judgment of the Court was delivered by Hegde, J. These are connected appeals. They arise from Civil Suit No. 118 of 1967 on the original side of the High Court of Judicature at Madras. Herein the essential facts are few and simple though the question of law that arises for decision is of considerable importance. The suit has been brought by M/s. Tarapore & Co., Madras (hereinafter referred to as the "Indian Firm"). That firm had taken up on contract the work of excavation of a canal as a part the Farakka Barrage Project. In that connection they entered into a contract with M/s. V/O Tractors Export, Moscow (which 922 will hereinafter be referred to as the "Russian Firm") for the supply of construction machinery such as Scrapers and Bulldozers. In pursuance of that contract, the Indian Firm opened a confirmed, irrevocable and divisible letter of credit with the Bank of India, Limited for the entire value of the equipment i.e., Rs. 66,09,372 in favour of the Russian Firm negotiable through the Bank for Foreign Trade of the U.S.S.R., Moscow. Under the said letter of credit the Bank of India was required to pay to the Russian Firm on production of the documents particularised in the letter of credit alongwith the drafts. One of the conditions of the letter of credit was that 25 per cent of the amount should be paid on the presentation of the specified documents and the balance of 75 per cent to be paid one year from the date of the first payment. The agreement entered into between the Bank of India and the Russian Firm under the letter of credit was "subject to the Uniform Customs and Practice for Documentary Credits (1962 Revision), International Chamber of Commerce Brochure No. 222". Article 3 of the brochure says that: " 'An irrevocable credit is a definite undertaking on the part of an issuing bank and constitutes the engagement of that bank to the beneficiary or, as the case may be, to the beneficiary and bona fide holders of drafts drawn and/or documents presented thereunder, that the provisions for payment, acceptance or negotiation contained in the credit will be duly fulfilled, provided that all the terms and conditions of the credit are complied with. An irrevocable credit may be advised to a beneficiary through another bank without engagement on the part of that other bank (the advising bank), but when an issuing bank authorises another bank to confirm its irrevocable credit and the latter does so, such confirmation constitutes a definite undertaking on the part of the confirming bank either that the provisions for payment or acceptance will be duly fulfilled or, in the case of a credit available by negotiation of drafts, that the confirming bank will negotiate drafts without recourse to drawer. Such undertakings can neither be modified nor cancelled without the agreement of all concerned. " Article 8 of the brochure says: "In the documentary credit operations all parties concerned deal in documents and not in goods. 923 Payment, acceptance or negotiation against documents which appear on their face to be in accordance with the terms and conditions of a credit by a bank authorised to do so, binds the party giving the authorisation to take up the documents and reimburse the bank which has effected the payment, acceptance or negotiation . " The only other Article in that brochure which is relevant for our present purpose is article 9 which reads: "Banks assume no liability or responsibility for the form, sufficiency, accuracy, genuineness, falsification or legal effect of any documents, or for the general and/or particular conditions stipulated in the documents or superimposed thereon; nor do they assume any liability or responsibility for the description, quantity, weight, quality, condition, packing, delivery, value or existence of the goods represented thereby, or for the good faith or acts and/or omissions, solvency, performance or standing of the consignor, the carriers or the insurers of the goods or any other person whomsoever. " On the strength of the aforementioned. contract, the Russian Firm supplied all the machinery it undertook to supply, by about the end of December 1965, which were duly taken possession of by the Indian Firm and put to work at Farakka Barrage Project. They are still in the possession of the Indian Firm. After the machinery was used for sometime, the Indian Firm complained to the Russian Firm that the performance of the machinery supplied by it was not as efficient as represented at the time of entering into the contract and consequently it had incurred and continues to incur considerable loss. In that connection there was some correspondence between the Indian Firm and the Russian Firm. Thereafter the Indian Firm instituted a suit on the original side of the High Court of Madras seeking an injunction restraining the Russian Firm from realizing the amount payable under the letter of credit. During the pendency of that suit the parties arrived at an agreement on August 14, 1966 at Delhi (which shah be hereinafter referred to as the Delhi agreement). The portion of that agreement which is relevant for our present purpose reads as follows: "Tarapore & Co., Madras, agree to withdraw immediately the court case filed by them against 'Tractoro export ' Moscow, in the Madras High Court. Immediately on Tarapore withdrawing the case, V/O 'Tractoro export ' agree to instruct the Bank for 924 Foreign Trade of the USSR in Moscow, not to demand any further payment against L.C. established by Tarapore & Co., Madras, for a period of six months from the due dates in the first instance. During this period both the parties shall do theft best to reach an amicable settlement. In case the settlement between the two parties is not completed within this period of six months V/O Tractors export shall further extend the period of payment by further period of six months for the settlement to be completed. Tarapore & Co. (shall authorise their Bank to keep the unpaid portions L.C. valid for the extended period as stated above. " At this stage it may be mentioned that the Russian Firm had received from the Bank of India 25 per cent of the money payable under the letter of credit very soon after it supplied to the Indian Firm the machinery mentioned earlier. In pursuance of the aforementioned agreement the Indian Firm withdrew the suit. Thereafter there were attempts to settle the dispute. In the meantime the Indian Rupee was devalued. The contract between the Indian Firm and the Russian Firm contains the following term: "Payment for the delivered goods shall be made by the Buyers in Indian Rupee in accordance with the Trade Agreement between the USSR and India dated. 10th June, 1963. All the prices are stated in Indian Rupees. One Indian Rupee is equal to 0.186621 grammes of pure gold. If the above gold content of Indian Rupee is changed the, prices and the amount of this Contract in Indian Rupee shall be revalued accordingly on the date of changing the gold parity of the Indian Rupee. " This clause will be hereinafter referred to as the 'Gold Clause '. In view of that clause, the price fixed for machinery supplied stood revised. Consequently under the contract the Indian Firm had to pay to the Russian Firm an additional sum of about rupees twenty six lacs. Accordingly the bankers of the Russian Firm called upon the Indian Firm to open an additional letter of credit for payment of the extra price payable under the contract. They also intimated the Indian Firm that the extension of time for the payment of the price of the machinery supplied, agreed to at Delhi will be given effect to only after the Indian Firm arranges for the additional letter of credit asked for. The Indian Firm objected to this demand as per its letter of 20th September, 1966. The relevant portion of that letter reads: 925 "We are rather surprised to see this, because, by our arrangement dated the 14th Aug., 1966, at New Delhi you had agreed to give further time for the payments on the withdrawal of the Madras High Court case. That was the only condition that was talked about and incorporated in our written agreement. If you will be good enough to refer to the agreement dated the 14th Aug., 196 '6, you will find that we were obliged to withdraw the Madras suit pending talks of settlement and immediately on our withdrawing this suit, you agreed to instruct your Bankers not to demand any further payment under the letter of credit. There is absolutely no reference in that agreement to our having to open any additional letter of credit in view of the devaluation of the Indian rupee . . We would therefore request you to immediately instruct your Bankers in Moscow. to advise our Bankers regarding the extension of time for payment under the letter of credit without any reference to any additional letters of credit in view of devaluation . . Moreover, when the entire question is open for amicable settlement between us, it is not possible to determine what exactly will be the amount payable and unless that amount is known, it is not possible to open additional letters of credit to give effect to the gold clause . . " On November 1, 1966, the Russian Firm sent to the Indian Firm addendum No. 1 modifying the original contract in accordance with the gold clause. The last clause of that addendum recited that "all ,other terms and conditions are as stated in the above mentioned contract" (original contract). The Indian Firm objected to that addendum as well as to the demand for opening an additional letter of credit. In that connection the Russian Firm wrote a letter to the Indian Firm on November 29, 1966. As considerable arguments were advanced on the basis of that letter, we shall quote the relevant portion of that letter : " . We confirm that you have signed with us the addendum No. 1 to our Contract No. 61/Tarapore 220/65 dated the 2nd Feb., 1965, at our request for the sole and specific purpose of satisfying our bankers. We confirm further that this addendum will not in any manner prejudice the arrangement we have come to in Delhi on the 14th August, 1966, and is without prejudice to your claims and points of controversy regarding which we shall have further discussions with a view to reach an amicable settlement. 926 Under this addendum, the company will extend the letter of credit for one year and accept the drafts for the difference in value of 57.5 per cent due to devaluation. The final amount payable will be in accordance with the settlement. " Thereafter the Russian Firm appears to have drawn drafts on the Indian Firm for the excess amount payable under the gold clause. For one reason or the other, no settlement as contemplated by the Delhi agreement was reached. The Indian Firm complained that the Russian Firm never made any serious attempt to resolve the dispute whereas the Russian Firm alleged that it found no substance in the complaint made by the Indian Firm as regards the machinery supplied. In the suit as brought, as well as in these appeals that controversy is not open for examination. Suffice it to say that the parties did not amicably settle the dispute in question. When the extended time granted under the Delhi agreement was about to come to a close, the Indian Firm instituted the suit from which these appeals have arisen. In that suit the only substantive relief asked for is that the Bank of India as well as the Russian Firm ' should be restrained from taking any further steps in pursuance of the letter of credit opened by the Indian Firm in favour of the Russian Firm. Therein temporary injunctions were asked for in the very terms in which the permanent injunctions were prayed for. At a subsequent stage a further injunction restraining the Russian Firm from enforcing its right under the gold clause was also prayed for. The Russian Firm opposed those applications but the trial judge granted the temporary injunctions asked for. The Russian Firm took up the matter in appeal to the Appellate Bench of that High Court which reversed the order of the trial judge by its Order dated October 9, 1968 but it certified that they are fit cases for appeal to this Court. When the applications in the appeals seeking interim orders came up for consideration by this Court the Russian Firm entered its caveat. It not only opposed the interim reliefs prayed for, it further challenged the validity of the certificates granted by the High Court on the ground that the orders appealed against are not final orders within the meaning of article 133 of the Constitution. Evidently as a matter of abundant caution, the Indian Firm had filed two separate applications seeking special leave to appeal against the orders of the Appellate Bench of the Madras High Court. After hearing the parties this Court revoked the certificates granted holding that the orders appealed against are not final orders but at the same time granted special leave to the Indian Firm to appeal against the orders of the Madras High Court. Civil Appeals Nos. 2051 and 2052 of 1968 are appeals filed by the Indian Firm. Before the Appellate Bench of the High Court of Madras, the Indian Firm had objected to be maintainability of the appeals 927 filed by the Russian Firm on the ground that orders appealed against are not judgments within the meaning of el. 15 of the Letters Patent of the Madras High Court but that objection had been overruled by the Appellate Bench following the earlier decisions of that High Court. That contention was again raised in the appeals filed by the Indian Firm in this Court. To obviate any difficulty the Russian Firm applied to this Court for special leave to appeal against the interim orders passed by the trial judge. We allowed those applications and consequently Civil Appeals Nos. 2305 and 2306 of 1968 came to be filed. In view of the appeals filed by the Russian Firm in this Court against the interim orders made by the trial judge it is not necessary to decide whether the appeals filed by the Russian Firm before. the Appellate Bench of the Madras High Court were maintainable? On that question, judicial opinion is. sharply divided as could be seen from the decision of this Court in Asrumati Debi vs Kumar Rupendra Deb Rajkot and Ors.(x) Hence we shall, confine our attention to the question whether the temporary injunctions issued by the trial judge are sustainable? The scope of an irrevocable letter of credit is explained ' thus in Halsbury 's Laws of England (Vol. 34 paragraph 319 at p. 185): "It is often made a condition of a mercantile contract that the buyer shall pay for the goods by means of a confirmed credit, and it is then the duty of the buyer to procure Iris bank, known as the issuing or originating bank, to issue an irrevocable credit in favour of the seller by which the bank undertakes to the seller, either directly or through another bank in the seller 's country known as the correspondent or negotiating bank, to accept drafts drawn upon it for the price of the goods, against tender by the seller of the shipping documents. The contractual relationship between the issuing bank and the buyer is defined by the terms of the agreement between them under which the letter opening the credit is issued; and ' as between the seller and the bank, the issue of the credit duly notified to the seller creates a new contractual nexus and renders the bank directly liable to the seller to pay the purchase price or to accept the bill of exchange upon tender of the documents. The contract thus created between the seller and the bank is separate from, although ancillary to, the original contract between the buyer and. the seller, by reason of the bank 's undertaking to the seller, which is absolute. Thus the bank is not entitled to, (1) ; L6 Sup. CI/69 8. 928 rely upon terms of the contract between the buyer and the seller which might permit the buyer to reject the :goods and to refuse payment therefore; and, conversely, the buyer is not entitled to an injunction restraining the seller from dealing with the letter of credit if the goods are defective. " Chalmers on "Bills of Exchange" explains the legal position in these words: ' "The modern commercial credit serves to interpose between a buyer and seller a third person of unquestioned solvency, almost invariably a banker of international repute; the banker on the instructions of the buyer issues the letter of credit and thereby undertakes to act as paymaster upon the seller performing the conditions set out in it. A letter of credit may be in any one of a number of specialised forms and contains the undertaking of the banker to honour all bills of exchange drawn thereunder. It can hardly be over emphasised that the banker is not bound or entitled to honour such bills of exchange unless they, and such accompanying documents as may be required thereunder, are in exact compliance with the terms of the credit. Such documents must be scrutinised with meticulous care, the maim de minimis non curat lex cannot be invoked where payment is made by later of credit. If the seller has complied with the terms of the letter of credit, however, there is an absolute Obligation upon the banker to pay irrespective of any disputes there may be between the buyer and the seller as to whether the goods are up to contract or not: Similar are the views expressed in Practice and Law of Banking by H.P. Sheldon 'the Law of Bankers Commercial Credits" by H.C. Gutteridge "the Law Relating to Commercial Letters of Credit" by A.G. Davis "the Law Relating to Bankers ' Letters of Credit" by B.C. Mitra and in several other text books read to us by Mr. Mohan Kumaramangalam, learned Counsel for the Russian Firm. The legal position as set out above was not controverted by Mr. M.C. Setalvad, learned Counsel for the Indian Firm. So far as the Bank of India is concerned it admitted its liability to honour the letter of credit and expressed its willingness to abide by its terms. It took the same position before the High The main grievance of the India Firm is that if the Russian Firm is allowed to take away the money secured to it by the letter ' 929 of credit, it cannot effectively enforce its claim arising from the breach of the contract it complains of. It was urged on its behalf that the Russian Firm has no assets in this country and therefore any decree that it may be able to obtain cannot be executed. Therefore, it was contended that the trial court was justified in issuing the impugned orders. The allegation that Russian Firm has no assets in this country was not made in the pleadings. That apart in the circumstances of this case that allegation has no relevance. An irrevocable letter of credit has a definite implication. It is a mechanism of great importance in international trade. Any interference with that mechanism is bound to have serious repercussions on the international trade of this country. Except under very exceptional circumstances, the Courts should not interfere with that mechanism. For our present purpose we shall assume, without deciding, that the allegations made by the Indian Firm are true. We shall further assume that the suit as brought is maintainable though Mr. Kumaramangalam seriously challenged its maintainability. But yet, in our judgment, the learned trial judge was not justified in law in granting the temporary injunctions appealed against. Ordinarily this Court does not interfere with interim orders. But herein legal principles of great importance affecting international trade are involved. If the orders impugned are allowed to stand they are bound to have their repercussion on our international trade. We have earlier referred to several well known treatises on the subject. Now we shall proceed to consider the decided eases bearing on the question under consideration. A case somewhat similiar to the one before us came up for consideration before the Queens Bench Division in England in Hamzeh Malas and Sons vs British Imex Industries Ltd.(1) Therein the plaintiffs, a 10 Jordanian firm contracted to purchase from the defendants, a British firm, a large quantity of reinforced steel rods, to be delivered in two instalments. Payment was to be effected by opening in favour of the defendants of two confirmed letters of credit with the Midland Bank Ltd., in, London, one in ' respect of each instalment. The letters of credit were duly opened and the first was realized by the defendants on the delivery of ' t, he first instalment. The plaintiffs complained that that instalment was defective and Sought an injunction to bat the defendants from realizing the second letter of credit. Donovan 1. , the trial judge refused the application. In appeal Jenkins, Sellers and Pearce L.JJ. confirmed the decision of the trial judge. In the course of (1) 930 his judgment Jenkins L.J. who spoke for the Court observed thus: "We have been referred to a number of authorities, and it seems to be plain enough that the opening of a 'confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods, which imposes upon the banker an absolute obligation to pay, irrespective of any dispute there may be between the parties as to whether the goods are up to contract or not. An elaborate commercial system has been built up on the footing that bankers ' confirmed credits are of that character, and, in my judgment, it would be wrong for this Court in the present case to interfere with that established practice. There is this to be remembered, too. A vendor of goods selling against a confirmed letter of credit is selling under the assurance that nothing will prevent him from receiving the price. That is of no mean advantage when goods manufactured in one country are being sold in another. It is, furthermore, to be observed 'that vendors are often reselling goods bought from third parties. When they are doing that, and when they are being paid by a confirmed letter of credit, their practice is and I think it was followed by the defendants in this case to finance the payments necessary to be made to their suppliers against the letter of credit. That system of financing these operations, as I see it, would break down completely if a dispute as between the vendor and the purchaser was to have effect of 'freezing, ' if I may use that expression, the sum in respect of which the letter of credit was opened." In Urquhart Lindsay and Co. Ltd. vs Eastern Bank Ltd.(1) the King 's Bench held that the refusal of the defendants bank to take and_pay for the particular bills on presentation of the proper documents constituted a repudiation of the contract as a whole and that the plaintiffs were entitled to damages arising from such a breach. It may be noted that in that case the price quoted in the invoices was objected to by the buyer and he had notified his objection to the bank. But under the terms of the letter of credit the bank was required to make payments. on the basis of the invoices tendered by the seller. The Court held that if the buyers had an enforceable claim that adjustment must be made by way of refund by the seller and not by way of retention by the buyer. (1) 931 Similar opinions have been expressed by the American Courts, The leading American case on the subject is Dulien Steel Products Inc., of Washington vs Bankers Trust Co.(1). The facts of that case are as follows: The plaintiffs,. Dulien Steel Products Inc., of Washington, contracted to sell steel scrap to the European Iron and Steel Community. The transaction was put through M/s. Marco Polo Group Project, Ltd. who were entitled to commission for arranging the transaction. For the payment of the commission to Marco Polo, plaintiffs procured an irrevocable letter of credit from Seattle First National Bank. As desired by Marco Polo this letter of credit was opened in favour of one Sica. The defendant bankers confirmed that letter of credit. The credit stipulated for payment against (1 ) a receipt of Sica for the amount of the credit and (2 ) a notification of Seattle Bank to the defendants that the plaintiffs had negotiated documents evidencing the shipment of the goods. Sica tendered the stipulated receipt and. Seattle Bank informed the defendants that the Dulien had negotiated documentary drafts. Meanwhile after further negotiations between the plaintiffs and the vendees the price of the goods sold was reduced and consequently the commission payable to Marco Polo stood reduced but the defendants were not informed of this fact. Only after notifying the defendants about the negotiation of the drafts drawn under the contract of sale, the Seattle Bank informed the defendants about the changes underlying the transaction and asked them not to pay Sica the full amount of the credit. The defendants were also informed that Sica was merely a nominee of Marco Polo and has no rights of his own to the sum of the credit. Sica, however, claimed payment of the full amount of the credit. The defendants asked further instructions from Seattle Bank but despite Seattle Bank 's instructions decided to comply with Sica 's request. After informing Seattle Bank of their intention, they paid Sica the full amount of the credit. Plaintiffs thereupon brought an action in the District Court of New York for the recovery of the moneys paid to Sica. The action was dismissed by the trial court and that decision was affirmed by the Court of Appeals. That decision establishes the well known principle that the letter of credit is independent of an unqualified by the contract of sale or underlying transaction. The autonomy, of an irrevocable letter of, credit is entitled to protection. As a rule courts refrain from interfering with that autonomy. A half hearted attempt was made on behalf of the Indian Firm to persuade us not to apply the principles noticed above as in these appeals we are dealing with a complaint of fraud. The facts pleaded in the plaint do not amount to a plea of fraud despite the (1) Federal Reporter 2nd Series 298, p. 836. 932 assertions of the Indian Firm that the Russian Firm was guilty of fraud. Evidently with a view to steer clear of the well established legal position Mr. Setalvad, learned Counsel for the Indian Finn urged that the letter of credit was no more enforceable as the original contract stood modified as a result of the Delhi agreement and the Subsequent correspondence between the parties. , It was urged that according to the modified contract the Indian Firm is only liable to pay the price that may be settled between the buyer and the seller. This contention has not been taken either in the plaint or in the arguments before the trial judge or before the Appellate Bench. It is taken for the first time in this Court. This is not purely a legal contention. The contention in question bears on the intention of the parties who entered into the agreement. NO one could have known the intention better than the plaintiff who was a party to the contract. If there was such an intention, the plaintiff would have certainly pleaded the same. That apart, we are unable to accept the contention that either the Delhi agreement or the subsequent correspOndence between the parties modified, the original contract. The Delhi agreement merely provided that the parties will try and settle the dispute out of court, if possible. Much was made of the letter written, by the Russian Firm to the Indian Firm on 29 11 1965 wherein as seen earlier it was stated: "that the final amount payable will be in accordance with the settlement". This letter has to be read along with the other letters that passed between the parties. If so read, it is clear that the statement that the final payment will be made in accordance with the settlement is subject to the condition that the parties are able ,to arrive at a settlement. Otherwise the parties continue to be bound by the original contract subject to the extension of the time granted under the Delhi agreement for the payment of the price. As regards the additional payment demanded by the Russian Firm, there is no occasion for issuing any temporary injunction. If the Indian Firm does not comply with that demand the law will take its course. It is for that Firm to choose its course of action. In the result we allow Civil Appeals Nos. 2305 and 2306 of 1968 with costs of the appellant therein and set aside the temporary injunctions granted by the trial judge. The other appeals are dismissed with no order as to costs. The costs to be paid by the Indian Company. V.P.S. C.A. Nos. 2305 & 2306/68 allowed. C.A.Nos. 2251 & 2252/68 dismissed. [/INST]An Indian Firm (the appellant) entered into a contract with a Russian Firm (the respondent) for supply of certain machinery. In pursuance of the contract, the appellant opened a confirmed, irrevocable and divisible letter of credit with a Bank in India for the entire value of the equipment. The respondent supplied all the machinery and received 25% of the money payable under the letter of credit from the Bank. Thereafter, the appellant complained that the performance of the machinery was not efficient and filed a suit seeking an injunction restraining the respondent from realising the balance of amount payable under the letter of credit. The parties, however, entered into an agreement, by which it was agreed that the appellant would withdraw the suit, the respondent would not demand any payment under the letter of credit for 6 months, the parties would try to settle the dispute amicably during that period, 'and if no settlement was reached the period would be extended by a further period of 6 months. The appellant withdrew its suit, but before any settlement was arrived at the Indian rupee was devalued, as a result of which the appellant had to pay an additional sum for the machinery supplied. There was correspondence between the parties wherein the respondent insisted upon the appellant opening an additional letter of credit. for the extra amount and the appellant objected to such a course. The original dispute between the parties was not amicably settled and when the extended time under the agreement was about to expire, the appellant filed a suit on the original side of the High Court for restraining the Bank and the respondent from taking any steps in pursuance of the letter of credit. A temporary injunction was also prayed for and it was granted, but the order was reversed by the Appellate Bench of the High Court. In appeal to this Court, on the question whether the order of temporary injunction was sustainable, HELD: (1 ) An irrevocable letter of credit has a definite implication. It is independent of and unqualified ' by the contract of sale or other underlying transactions. It is a mechanism of great importance in international trade and any interference with that mechanism is bound to have serious repercussions on the international trade of this country. The autonomy of an irrevocable letter of credit is entitled to protection 'and except in very exceptional circumstances courts should not interfere with that autonomy. [929 B C; 931 G] Urquhart Lindsay and Co. Ltd. vs Eastern Bank Ltd., ; Hamzeh Malas and Sons vs British Imex Industries Ltd., and Dulien Steel Products Inc. o/Washington vs Bankers Trust Co., Fed. Rep. 2nd Series, 298, p. 836, applied. (2) The allegation of the appellant that the respondent had no assets in this Country and therefore if the respondent was allowed to take away 921 the money secured to it by the letter of credit the appellant could not effectively enforce its claim arising from the breach of the contract, was not made in the pleadings. Nor do the facts pleaded in the plaint amount to a plea of fraud. [929 B; 931 H] (3) It could not be contended that the letter of credit was not enforceable as the original contract was modified by the later agreement and subsequent correspondence between the parties. The contention was not taken either in the plaint or in the High Court. It is not a mere legal contention as it bears on the intention of parties. Further, a perusal of the entire correspondence between the parties shows that in the absence of an amicable settlement, the parties continued to be bound by the original contract subject only to extension of time granted for payment of ' price. [932 B D, F] </s>

<s>[INST] Summarize the judgementivil Appeal Nos. 3392 3394 of 1990. From the Judgment and Order dated 30.11. 1989 of the Andhra Pradesh High Court in W.A. No. 269/89, dated 30.8.1988 in W.P. No. 12041/84 and dated 26.11.1987 in W.P. No. 194 of 1983. P.K. Goswamy, Additional Solicitor General, M.K. Ramamurthy, C. Sitaramaiya, M.L. Paul, Kailash Vasdev, Ms. M.M. Rasaily, M.A. Krishnamurthy, Mrs. C. Ramamurthy, T.V.S.N. Chari, Mrs. B. Sunita Rao and Ms. Majula Gupta for the Appearing Parties. The Judgment of the Court was delivered by KASLIWAL, J. Special leave granted. All the above cases are disposed of by one single order as identical questions of law are involved in all these cases. In order to appreciate the controversy, facts in brief are stated of all these cases. SLP No. 4176 of 1988: The respondent Vijaya Kumar was appointed as a Proba tionary Officer (Gr. I Officer) by an Order of the Executive Committee of the Central Board of the State Bank of India on 7.12.71. The respondent was charge sheeted in respect of gross irregularities and corrupt ?401 practices and was ultimately dismissed from service by an order dated 22.12.88 passed by the Chief General Manager of the Bank. Shri Vijay Kumar filed a writ petition No. 194/83 before the Andhra Pradesh High Court challenging his order of dismissal. A Division Bench of the High Court heard the writ petition alongwith writ appeal No. 141/86 and allowed the writ petition but dismissed the writ appeal by order dated 26.11.87. The State Bank aggrieved against the afore said order of the High Court passed in writ petition No. 194/83 has filed this special leave petition. The High Court has allowed the writ petition only on one ground that the appointing authority of Vijaya Kumar was Executive Committee of the Bank and as such Chief General Manager being an authority lower than the appointing authority was not compe tent to pass an order of dismissal. SLP No. 15235 of 1988: In this case the respondent T. Dayakar Rao was appointed as a Clerk in the State Bank of India in the month of Octo ber, 1962. In the month of July, 1971 he was selected as a Trainee Officer and was given job training at various branches of the Bank for two years. While he was working as a Bank Manager he was chargesheeted for irregularities committed by him during the period 1.9.79 to 15.6.80. Disci plinary proceedings were initiated on 29.7.82. On 6.3.84 the Chief General Manager in the capacity of disciplinary au thority passed an order of dismissal. T. Dayakar Rao filed a writ petition No. 1204/84 in the High Court. The Division Bench of the High Court by an order dated 13th August, 1988 allowed the writ petition following the decision of Division Bench given in writ appeal No. 141/86 dated 26.11.87. The Bank aggrieved against the aforesaid order has filed the Special Leave Petition under Article 136 of the Constitu tion. SLP No. 2069 of 1990: In this case Shri A.K. Soundararajan appellant was appointed as Technical Officer by an order dated 14.6.68 of the Executive Committee of the Central Board of the Bank. It was mentioned in the Order that Shri Soundararajan would be governed by the State Bank of India (Officers & Assistants) Service Rules. Post of Technical Officer was considered equivalent to Staff Officer Grade III under the Rules. He was suspended and given a chargesheet on 23.4.82 and was dismissed by an order dated 31.3.83 passed by the Chief General Manager. Shri Soundararajan filed a writ petition No. 7108/85 in the High Court challenging his order of dismissal. Learned Single Judge of the High 402 Court by order dated 31.10.88 allowed the writ petition by following the decision given by the Division Bench in writ petition No. 1204/84 in the case of T. Dayakar Rao. The State Bank aggrieved against the order of the learned Single Judge filed an appeal before the Division Bench. The Divi sion Bench in this case took into consideration an amendment made in Regulation 55 by a resolution dated 25.8.88 made applicable with retrospective effect. The Division Bench by Order dated 30th November, 1989 allowed the appeal filed by the Bank. Shri A.K. Soundararajan aggrieved against the Order of the High Court has filed this Special Leave Peti tion. It would be necessary to narrate the facts of SLP (C) No. 5139/88 (State Bank of India vs Hanumantha Rao) disposed of by an order of this Court dated 30th January, 1990. Hanumantha Rao was promoted as Grade I Officer on 1.4.1973 by the Executive Committee of the Central Board of State Bank of India. In 1979 he was posted as the Manager of a branch of the Bank in Warangal District. In respect of certain alleged acts of misfeasance/malfeasance he was suspended on 17.8.81. On 4.5.82 a memo of charges was served on Hanumantha Rao by the Chief General Manager of the Bank. The Chief General Manager of the State Bank of India, local head office Hyderabad dismissed Hanumantha Rao by an order dated 7.1.84. Hanumantha Rao filed a writ petition No. 5509/84 in the High Court. Learned Single Judge allowed the writ petition declaring the order of dismissal as incompe tent and invalid. The Bank aggrieved against the order of the Learned Single Judge filed a Letters Patent Appeal No. 141/86 before the Division Bench. The Division Bench heard and disposed of the writ appeal No. 141/86 and writ petition No. 194/83 by a common order. The Division Bench agreed with the conclusion of the learned Single Judge that the order of dismissal passed by the Chief General Manager is incompetent and invalid being violative of the guarantee contained in the proviso to Regulation 55(2)(a) of the State Bank of India General Regulations, 1955. While dealing with the cross objections filed by Shri Hanumantha Rao the Bench took notice of the fact that the writ petitioner had died on 24.11.87 and as such gave the following direction: "On account of the death of the writ petitioner it is unnec essary for us to go into the merits of the contentions urged by way of cross objections. There is no question of 403 any enquiry or further enquiry hereafter. We may mention in this connection that the learned counsel for the petitioner (respondent in this Writ Appeal) offered to file a petition to bring on record the legal representatives of the deceased writ petitioner as respondents in this Writ Appeal since, according to him, they would be entitled in any event to claim the monetary benefits flowing from the orders of this Court. Now that we have agreed with the learned single Judge that the order of dismissal was incompetent and invalid, we direct that the writ petitioner shall be treated to be under suspension pending enquiry till 24.11. 1987 and all the monetary benefits that he is entitled to on that basis, including the arrears of suspension allowance, shall be paid over to his legal representatives. Mr. Prasad will file the legal representatives petition within two weeks from today. Post this Writ Appeal for orders after two weeks. The Writ Appeal, accordingly, fails and is dis missed, but, in the circumstances, without costs. " The Bank aggrieved against the aforesaid order filed the SLP No. 5139/88 before this Court. Taking note of the facts and circumstances of the case of Hanumantha Rao having died on 24.11.87 leaving behind 14 children, this Court on 30th January, 1990 did not consider if fit to interfere with impugned order of the Division Bench. It was further made clear that even though this Court was not interfering with the impugned order, the questions raised on behalf of the Bank were left open. The Bank was directed to treat Hanuman tha Rao in service and pay the dues, arrears of salary and other terminal benefits in accordance with law to his legal representatives. With these observations, the SLP was dis missed. The question which calls for consideration in all these cases is whether the order of dismissal could be passed by the Chief General Manager who was lower in rank to the Executive Committee who was the appointing authority in these cases. In order to appreciate this controversy, it would be proper to give reference of the relevant provisions of the (hereinafter referred to as the Act), State Bank of India General Regulations, 1955 (hereinafter referred to as the Regulations) and the State Bank of India (Supervising Staff) Service Rules, 1975 404 (hereinafter referred to as the Rules). Section 43 of the Act empowers the State Bank to appoint such number of officers, Advisors and Employees as it con siders necessary or desirable for the efficient performance of its functions and to determine the terms and conditions of their appointments and service. Section 49 of the Act confers power on the Central Government,in consultation with the Reserve Bank to make rules to provide for all matters in which provision is necessary or expedient for the purpose of giving effect to the provisions of the Act. Section 50(1) of the Act confers powers on the Central Board of Directors of the Bank to make regulations. Sub section (3) of the Section 50 of the Act empowered the Reserve Bank to make the first regulations with the previous sanction of the Central Government. In exercise of the powers conferred by sub section (3) of Section 50 of the Act, the Reserve Bank of India with the previous sanction of the Central Government made the State Bank of India General Regulations, 1955. These regulations have been amended from time to time by the Central Board of Directors by making regulations under subsection (1) of Section 50 of the Act. Regulation 55(2)(a) deals with the initial appointments and promotions to various categories of employees in the bank. Initially the appointments of Officers used to be made only by the Executive Committee as provided in Regulation 55(2)(a). As the bank grew larger in branches, the bank thought fit to vest the power of appointment and promotion to various functionaries of the bank and also gave power to delegate their power of appointment also. Regulation 55(2)(a) was thus substituted by a resolution dated 18th August, 1971 of the Central Board. After this resolution for Officers Grade I & II,the appointing authorities were speci fied as the Secretary and Treasurer or the Managing Director respectively depending upon whether the appointment/promo tion is for service in the Circle or the Central office. The State Bank of India Officers & Assistants Rules which govern the service conditions of Grade I Officer whether they were Probationary Officers or Trainee Officers and Staff Officers followed the scheme of "appointing authority" laid down in the Regulations. Regulation 55(2)(a) was again amended by a resolution of the Central 405 Board on 11th July, 1972. By this amendment there was only a terminological regrouping of the earlier regulation rather than any qualitative change. The State Bank Laws (Amendment) Act, 1973 introduced various amendments and one of the amendments was relating to change of designation of Secre tary and Treasurer as Chief General Manager. Hence the Central Board vide its resolution dated 29.3.74 for the words "Secretary & Treasurer" substituted "Chief General Manager. " The service conditions of all Officers came to be brought under a single set of service rules viz. the State Bank of India (Supervising Staff) Service Rules which came into force on 1.7.75. It would be important to mention that Regulation 55(2)(a) at all relevant period for our purpose recognized the right of the officers or employees of the Bank under the following clause "such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority. " Clause (f) of Rule 3 of the State Bank of India (Supervising Staff) Service Rules which is relevant for our purposes reads as under: (f) "Appointing Authority" means (i) in the case of Officers Grade II and Grade I and of other employees to whom the salary scales applicable to Officers Grade II and Grade I generally apply with or with out modification, the Chief General Manager concerned or the Managing Director according as the employee is serving in the Circle or in or under Central Office; (ii) in the case of Staff Officers of various grades and of other employees to whom the salary scales applicable to Staff Officers generally apply with or without modification, the Managing Director; (iii) in the case of Senior Staff Appointments and of em ployees to whom the salary, scales applicable to Senior Staff Appointments generally apply with or without modifica tion, the Executive Committee; Sub Rule (1) of Rule 50 relevant for our purposes is also reproduced below: 50(1)(i) The Disciplinary Authority may itself, or shall when so directed by its superior authority, institute disci plinary proceedings against an employee. 406 (ii) The Disciplinary Authority or any Authority higher than it may impose any of the penalties in rule 49 on an employ ee. It may be further noted that an amendment in Regulation 55 was approved by Central Board at its meeting dated August 25, 1988 which reads as under: 55(1) Save as provided in sub regulation (2) and as may be directed the Central Board, a Local Board may exercise all the powers of the State Bank in respect of the Staff serving in the areas in its jurisdiction. 2(a) The appointing and/or promoting authority for various categories/grades of officers and employees shall be such as the Executive Committee may by general or special order designate from time to time. (b) No officer or employee of the Bank shall be dismissed, discharged, removed or retired from the service of the Bank or reduced to a lower grade or post or to a lower stage in a time scale by an authority lower than the appointing author ity. Explanation (For the purpose of clause (b) the term 'appointing authority ' shall mean and include the authority who has been designated as such in respect of such class or grade of officers or employees to which the officer or employee concerned, as the case may be belongs at the time when such Order is passed or any proceeding leading to such Order or termination is initiated. ) (c) Nothing in this sub regulation shall affect the powers of a disciplinary authority appointed or notified under any award, settlement under the , governing, affecting or regulating the service conditions of workmen of the Bank, and for the purpose of clause (b) above, the appointing authority shall be deemed to have been substituted by such disciplinary authority. (d) The salary and other emoluments to be granted to offi cers and other employees shall be as laid down in the Rules of Service approved by the Central Board and, where no such rules have been laid down, as fixed by the Executive Commit tee. 407 (e) The power to grant pensions to officers and other em ployees leaving the service of the State Bank, other than pensions provided for under the Rules of pension funds respectively applicable to them, shall be reserved to the Central Board. (f) The grant of gratuities or other financial assistance, either temporary or permanent, to widows, children or other dependents of deceased officers or other employees shall be made by the Executive Committee of the Central Board except where grant of any such gratuity or financial assistance is authorised by any general direction given by the Central Board. Explanation (The term 'Officers ' in this regulation shall include any employee to whom the rules of service generally applicable to officers, apply with or without modification.) (Sub regulation (2) substituted with effect from 1.10.79). " The Executive Committee of the Bank passed the following resolution on August 30, 1988: In exercise of the powers conferred by sub section (1) of Section 43 of the (23 of 1955) and amended sub regulation (2)(a) of Regulation 55 of the State Bank of India General Regulations, 1955, the Executive Committee of the Central Board of the State Bank of India hereby makes the following order: The initial appointments and/or promotions to various categories of officers and other employees in the Bank set out in Column I here under shall be made by the authority specified in Column II. Column I Column II Employees working at branches i) Employees other a) Subordinate the concerned than officers Staff Branch Manager and deputy General Manager ii) Clerical the concerned Staff Regional Manager and Dy. General Manager. b) Employees working at LHOs/ 408 Regional Offices and their establishments The concerned Office Manager/ Admn. Officer at Staff Colleges or Insti tutes Manager Dy. Chief Manager or, where there is no post of above descrip tions the head of con cerned dept/office. ii) Officers in The Chief General Manager junior management for appointments/promotions in the Grade Scale I Circle and the Chief General and Middle Manager (Personnel & HRD) in Management Central Office for Central Grade Scale II Office establishment. iii) Officers in The Deputy Managing Director Middle Management Grade Scale III iv) Officers in The Managing Director Senior Management Grade Scale IV, V v) Officers in Top Recommending Authority: Executive Grade Scale VI, VII The Directors Promotion Committee and special consisting of the Chairman, the scales Managing Director and the Director nominated by the Central Government in terms of clause (e), sub section (1) of Section 19 and the Director nominated by the Reserve Bank of India in terms of clause (f) of sub section (1) of Section 19 of the Act. Promoting/Appointing Authority: The Executive Committee of the Cen tral Board. 409 All authorisations in respect of appointing authority and/or promoting authority made by the Executive Committee from time to time after 1.10.79 shall be deemed to have been done under the amended regulation 55. Appointments autho rised by the Chief General Manager (Personnel & HRD) in respect of JMGS I after 1.10.79 are also confirmed hereby. All the employees of the bank in the cases before us where appointed by the Executive Committee. Order of dis missal in their cases has been passed by the Chief General Manager. It is an admitted position that on the date of passing the order of dismissal the Chief General Manager was the appointing authority. According to the Bank though the employees were appointed by the Executive Committee, but at the time when inquiry was held and the order of dismissal passed, the Chief General Manager had become the appointing authority. On the other hand the contention on behalf of the employees is that the Executive Committee being the appoint ing authority, no authority lower than the Executive Commit tee can pass the order of dismissal in their cases. Accord ing to their contention the Chief General Manager, being a lower authority than the Executive Committee, he had no competence to pass the order of dismissal. Learned counsel for the employees in this regard referred to Article 311 of the Constitution of India and placed reliance on a plethora of cases decided on the basis of guarantee enshrined under Article 311 of the Constitution. The guarantee clause under Article 311(1) of the Consti tution of India which is relevant for our purpose reads as under: "No person who is a member of a Civil Service of the Union or an All India Service or a Civil Service of a State or holds a Civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. " Now so far as the right which has been conferred on the employees of the State Bank contained in Regulation 55(2)(a) is that such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority. Thus a comparison of the provi sions contained in Article 311(1) of the Constitution and the right guaranteed to the employees of the State Bank under Regulation 55(2)(a) shows that there is a material difference between the language used in the two provisions. Under Arti 410 cle 311(1) the words used are "by which he was appointed." In Regulation 55(2)(a) there are no such words "by which he was appointed" and in its place the only right guaranteed is that the employee shall not be dismissed by an authority lower than the appointing authority. Thus the right guaran teed in case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an au thority lower than the appointing authority. A perusal of the relevant Regulations and Rules mentioned above clearly go to show that the Chief General Manager had become the appointing authority of the employees in question under Regulation 55(2)(a) with effect from 1.7.74. Admittedly the orders of dismissal have been passed long after these amend ments when the Chief General Manager had already become their appointing authority under the Regulations and the Rules. The right that an officer or employee of the State Bank of India cannot be dismissed from service by an author ity lower than the appointing authority is a creation of statutory rules and regulations. So far as the right or protection guaranteed under Article 311 of the Constitution is concerned, it applies to members of the Civil Service of the Union or an All India service or a Civil Service of a State or who holds a Civil Post under the Union or a State. Admittedly the employees of the State Bank do not fall under any one of these categories and they cannot seek any protec tion under Article 311(1) of the Constitution. The employees of the State Bank can only claim such rights which have been conferred under Regulation 55(2)(a) of the General Regula tions. The only right conferred under the said provision is that the officers or employees of the State Bank cannot be dismissed by an authority lower than the appointing authori ty. With the risk of repetition it may be stated that on the date when the order of dismissal has been passed, Chief General Manager had already become the appointing authority and as such the order of dismissal has not been passed by an authority lower than the appointing authority. Apart from the view taken by us as mentioned above the Regulation 55 has been amended by a resolution of the Cen tral Board dated August 25, 1988 with retrospective effect. It has now been made clear in the explanation that for the purpose of clause (b) the term appointing authority shall mean and include the authority who has been designated as such in respect of such class or grade of officers or em ployees to which the officer or employee concerned, as the case may be belongs at the time when such order is passed or any proceedings leading to such order or termination is initiated. This provision now concludes the controversy if any and clearly provides that the appointing authority shall mean and include the authority who has 411 been designated as such at the time when such order is passed. It was contended on behalf of the Learned counsel for the employees that the Bank had no power to amend the Regulations with retrospective effect. We see no force in this contention. Section 50(2)(a) of the Act clearly pro vides that all regulations made under this section shall have effect from such earlier or later date as may be speci fied in the regulation. Thus the regulations can be made to give effect from earlier dates also as may be specified in the regulations. We find no force in the contention of learned counsel for the employees that they had vested right in this regard and the same could not have been taken away by making regulations with retrospective effect. There cannot be any vested right in such a matter. As already mentioned above it was a right conferred under Regulation 55(2)(a) and the same can be amended with retrospective effect also in case the authority competent to make regula tions has been given a right to make regulations with retro spective effect. It has been held in State of Jammu & Kash mir vs Triloki Nath Khosa & Ors., S.C.R. 1974 Vol. 1771 that it is well settled that a Government servant acquires a 'status ' on appointment to his office and as a result his rights and obligations are liable to be determined under statutory or constitutional authority which for its exercise requires no reciprocal consent. In Bishun Narain Misra vs The State of Uttar Pradesh and Others, AIR 1965 Vol. 52 SC 1567 it was held that new rule reducing the age of retire ment from 55 years to 53 years could not be said to be retrospective. The proviso to the new rule and the second notification were only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule therefore, could not be struck down on the ground that it was retrospective in operation. In Roshan Lal Tandon vs Union of India & Anr., and Kunj Behari vs Union of India & Ors., AIR 1967 SC Vol. 541889 it was held that the legal position of Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement by the parties. Emolu ment of the Government servant and his terms of service are governed by statute or statutory rules which may be unilat erally altered by he Government without the consent of the employee. It was further held in the above case that the petitioner had no vested contractual right in regard to the terms of his service and that the same can be altered uni laterally. We may further add that the prohibition if any to alter the terms and conditions can be found only under the Constitution of India and in case power of the rule or law making authority is not circumscribed or limited by any constitutional 412 mandate then it has power to amend such terms and conditions of service unilaterally without the consent of the employee. In the cases in hand before us the right whatsoever con ferred on the employees of the State Bank was on the basis of Regulation 55(2)(a) and the Central Board of the Bank was authorised to amend such regulations from any date under Section 50(2)(a) of the Act. In the result the appeals filed by the State Bank of India in the case of Vijaya Kumar and T. Dayakar Rao are allowed, the impugned orders passed by the High Court are set aside and the cases are remanded to the High Court for deciding the writ petitions on other points in accordance with law. Now so far as the appeal filed by Sh. A.K. Sunda rarajan is concerned, the point decided by us shall remain concluded but the appellant would be free to raise other points before this Court which are left undetermined. This case may now be listed for further hearing and final dispos al at an early date. In the facts and circumstances of the case, the parties shall bear their own costs. Y. Lal C.A. No. 3392 & 3393 of 1990 allowed. C.A. No. 3394 of 1990 ordered to be listed for final heating. [/INST]The appellant owned land hearing R.S. Nos. 44/11 and 44/20 in village Thottapuzhasseri in Kerala State. Respond ent 3, M.M.A. High School moved an application under Sub clauses (a) and (b) of Clause (i) of Section 1 of Chapter 6 of the Land Acquisition Manual before the State 's Education Department praying that the aforesaid land be requisitioned for a public purpose for construction of a playground for the school. The State authorities after complying with the requirements of the Kerala Land Acquisition Act, 1961, issued a declaration under Section 6 of the Act stating the lands described therein were needed for a public purpose viz. construction of a playground for the school. The appel lant challenged the validity of the declaration by filing a writ petition before the High Court, contending, that (i) the proposal to acquire the property was mala fide; (ii) that the declaration was bad as no notice was issued to the Education Department as required by Rule 5(b) and (c) of the Kerala Land Acquisition Rules and (iii) that the appellant needed the property for construction of houses for his sons. The High Court dismissed the writ petition holding that there was no violation of the provisions of Rule 5(b) and (c) of the Rules nor was there any infringement of Rule 6. Hence this appeal by the appellant by certificate. Dismissing the appeal, this Court, HELD: The requisition in the instant case, was not made at the instance of the Government Department but at the instance of the Manager, private school and the Education Department merely has given a note certifying that the purpose of the requisition is a public purpose and that the school agreed to bear the entire costs. [544C D] It cannot therefore be contended that the requisition has been made by the Education Department or by its officer for acquisition of the land in question. [541C] 536 The High Court has rightly held that there has been no violation of Rule 5(b) and (c) or 6 of the Rules. [541F] That it is inappropriate to issue notice to the Education Officer or Departmental Officer who certified about the public purpose as well as readiness of the school authority to pay the entire money for acquisition and failure to issue such a notice to the Departmental Officer would not amount to violation of the principles of natural justice and in fringement of the said Rule 5(b) and (c) of the said Rules. [541 F G] Lonappan vs Sub Collector, Palghat, AIR 1959 Kerala 343; State of Madras and Ors. vs Periakkal and Ors., AIR 1974 Madras 383 and State of Mysore and Ors. vs V.K. Kangan and Ors., ; at 371, referred to. </s>

<s>[INST] Summarize the judgementAppeal No.122 of 1956. Appeal from the judgment and order dated March 5, 1954, of the Bombay High Court in Appeal from its Original Jurisdiction Misc. Application No. 1 of 1954. H. N. Sanyal, Addl. Solicitor General, G. N. Joshi and R. H. Dhebar, for the appellants. N. A. Palkhivala, section N. Andley, J. B. Dadachanji, P. L. Vohra and Rameshwar Nath, for the respondent. April 28. The Judgment of the Court was delivered by GAJENDRAGADKAR J. This is an appeal by the Income tax Officer, Companies Circle I (1), Bombay and the Union of India and it raises a short question about the construction of section 35 of the Income tax Act read with section 1, sub section (2) and section 13 of the Indian Income tax (Amendment) Act, 1953 (XXV of 1953). It arises in this way. The Income tax Officer, by his assessment order made on October 9, 1952, for the assessment year 1952 53, assessed the respondent, the Bombay Dyeing and Manufacturing Co. Ltd., under the Act. In the said assessment order the respondent, was given credit for Rs. 50,603 15 0 as representing interest at 2% on tax paid in advance under section 18A of the Act. This credit was given to the respondent in pursuance of the provisions contained in section 18A, sub section (5) of the Act as it then stood. On May 24, 1953, the Amendment Act came into force. Section 1, sub section (2) of the Amendment Act provides that " subject to any special provision made in this behalf in the Amendment Act, it shall be deemed to have come into 705 force on the first day of April, 1952 ". By section 13 of the Amendment Act, a proviso was added to section 18A (5) of the Act. The effect of the amendment made by the insertion of the said proviso to section 18A (5) was that the. assessee was entitled to get interest at 2% not on the whole of the advance amount of tax paid by him as before but only on the difference between the payment made and the amount at which the assessee was assessed to tax under the regular assessment under section 23 of the Act. After the Amendment Act was passed, the first appellant exercised his power under section 35 of the Act and purported to rectify the mistake apparent from the record in regard to the credit for Rs. 50,603 15 0 allowed by him to the assessee. The first appellant held that the assessee was really entitled to a credit of only Rs. 21,157 6 0 by way of interest on tax paid in advance as a result of the retrospective operation of the amendment made in section 18A (5) by the Amendment Act. In accordance with this order a notice of demand under section 29 of the Act was issued against the assessee for the sum of Rs. 29,446 9 0 on the ground that the assessee had been given credit for this excess amount through mistake. Aggrieved by this notice of demand, the respondent filed a petition in the High Court of Bombay on January 4, 1954, under article 226 of the Constitution praying for a writ against the appellants inter alia prohibiting them from, enforcing the said rectified order and the said notice of demand. It appears that this petition was admitted by Tendolkar J. on January 6, 1954, and a rule issued on it. Thereafter the said petition was referred to a Division Bench by the Hon 'ble the Chief Justice for final disposal. Accordingly on March 5, 1954, the petition was heard by Chagla C. J. and Tendolkar J. and a writ was issued against the appellants. The High Court held that section 35 of the Act had no application to the facts of the case because the mistake apparent from the record contemplated by the said section is not a mistake which is the result of the amendment of the law even though the amending law may be retrospective in operation. In other words, in the opinion of the High Court, the 706 mistake mentioned by section 35 had to be apparent on the face of the order and it can only be judged in the light of the law as it stood on the day ,When the order was passed. The appellants then applied for and obtained a certificate from the High Court on October 8, 1954; on their behalf it is urged ' that the High Court of Bombay has erred in law in taking the view that the appellant No. I was not entitled to rectify the mistake in question under section 35 of the Act. Thus the short question which arises before us in the present appeal is whether an order which was proper and valid when it was made can be said to disclose a mistake apparent from the record if the said order would be erroneous in view of a subsequent amendment made by the Amendment Act when the Amendment Act is intended to operate retrospectively ? It is unnecessary to refer to the provisions of section 18A (5) as well as the provision of the proviso which was subsequently added by section 13 of the Amendment Act. It is common ground that, in the absence of the subsequently inserted proviso, the assessee would be entitled to obtain a credit for Rs. 50,603 15 0. It is also common ground that, if the subsequently inserted proviso covered the assessee 's case, he would be entitled to a credit only of Rs. 21,156 9 0. It is thus obvious that the order giving the relevant credit to the assessee was valid when it was made and that it would be erroneous under the subsequent amendment. Under these circumstances, was the first appellant justified in exercising his power of rectification under section 35 of the Act ? In deciding this question it would be necessary to determine the true legal effect of the retrospective operation of the Amendment Act. Section 1, sub section (2) of the Amendment Act expressly provides that subject to the special provisions made in the said Act it shall be deemed to have come into force on the first day of April 1952. The result of this provision is that the amendment made in the Act by s, 13 of the Amendment Act must, by legal fiction, be deemed to have been included in the principal Act as from the first of 707 April, 1952, and this inevitably means that, at the time when the Income tax Officer passed his original order on October 9, 1952, allowing to the respondent credit for Rs. 50,603 15 0, the proviso added by section 13 of the Amendment Act must be deemed to have been inserted in the Act. As observed by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. vs Finsbury Borough Council (1), " if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs ". Thus, there can be no doubt that the effect of the retrospective operation of the Amendment Act is that the proviso inserted by the said section in section 18A (5) of the Act would, for all legal purposes, have to be deemed to have been included in the Act as from April 1, 1952. But it is urged for the respondent that the retrospective operation of the relevant provision is not intended to affect completed assessments. It is conceded that, if any assessment proceedings in respect of the assessee 's income for a period subsequent to the first of April 1952 were pending at the time when the Amendment Act was passed, the proviso inserted by section 13 would govern the decision in such assessment proceedings; but where an assessment proceeding has been completed and an assessment order has been passed by the Income tax Officer against the assessee, such a completed assessment would not be affected and cannot be reopened under section 35 by virtue of the retrospective operation of the Amendment Act. In support of this contention, reliance is placed on the observations of the Privy Council in Delhi Cloth and (1) , 132. 90 708 General Mills Co. Ltd. vs Income tax Commissioner, Delhi and Anr. Lord Blanesburg who delivered the judgment of the Board referred to the Board 's earlier decision in the Colonial Sugar Refining Company vs Irving (2) where it was in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. The learned Judge then added that " Their Lordships have no doubt that the provisions which, if applied retrospectively, would deprive of their existing finality orders which, when that statute came into force, were final, are provisions which touch existing rights. " The argument for the respondent is that the assessee has obtained a right under the order passed by the Income tax Officer to claim credit for the specified amount under section 18A(5) and the said right cannot be taken away by the retrospective operation of section 13 of the Amendment Act. The same argument is put in another form by contending that the finality of the order passed by the Incometax Officer cannot be impaired by the retrospective operation of the relevant provision. In our opinion, this argument does not really help the respondent 's case because the order passed by the Income tax Officer under section 18A(5) cannot be said to be final in the literal sense of the word. This order was and continued to be liable to be modified under section 35 of the Act. What the Income tax Officer has purported to do in the present case is not to revise his order in the light of the retrospective amendment made by section 13 of the Amendment Act alone, but to exercise his power under section 35 of the Act; and so the question which falls to be considered in the present appeal. centres round the construction of the expression "mistake apparent from the record " used in section 35. That is why we think the principle of the finality of the orders or the sanctity of (1)[1927] L.R. 54 I.A. 421. (2)[1905] A.C. 369. 709 the existing rights cannot be effectively invoked by the respondent in the present case. The respondent then urged that the Amendment Act should not be given greater retrospective operation than its language and its general scheme render necessary. This convention is based on the provisions of section 3, sub section (2), section 7, sub section (2) and section 30, sub section (2) of the Amendment Act. Where the Amendment Act intended that its provisions should affect even concluded orders of assessment it is expressly so provided. Since section 13 does not specifically authorise the reopening of concluded assessments it should be held that its retrospective operation is not intended to cover such concluded assessments. That in brief is the argument. We are, however, not satisfied that this argument is wellfounded. Let us examine the three provisions of, the Amendment Act on which the argument rests. Section 3, sub section (1) of the Amendment Act makes several additions and modifications in section 4 of the principal Act. Section 3, sub section (2) then provides that, the amendments made by sub cl. (3) of cl. (b) of sub section (1) shall be deemed to be operative in relation to all assessments for any year whether such assessments have or have not been concluded before the com mencement of the Amendment Act of 1953. It would be noticed that the main object of this sub section is to extend the retrospective operation of the relevant provisions of the Amendment Act beyond the first of April 1952 mentioned by section 1, sub section (2) of the Amendment Act. Since it was intended to provide for such further retrospective operation of the relevant provision the legislature thought it advisable to clarify the position by saying that the said extended retrospective operation would cover all assessments whether they had been completed or not before the commencement of the Amendment Act. Section 7, sub section (1) adds two provisos to section 9 of the principal Act by cls. (a) and (b). Sub section (2) of section 7 then lays down that the amendments made in cl. (a) of sub section (1) shall be deemed to be operative for any assessment for the year ending the 31st day of March, 1952, whether made before or after the commencement of this Act and, where any such 710 assessment has been made before such commencement, he Income tax Officer concerned shall revise it whenever necessary to give effect to this amendment. The position under section 30, sub section (2) of the Amendment Act is substantially similar. By sub section (1) of this section certain additions and amendments are made in the schedule to the principal Act by cls. (a), (b), (c) and (d). sub section (2) then provides for the retrospective operation of the amendment made by sub section (1) in terms similar to those used in section 7, sub section It is clear that the Provisions in sections 7 and 30 are intended for the benefit of the assessees and so the legislature may have thought it necessary to confer on the Income tax Officer specific and express power to revise his orders in respect of the relevant assessments wherever necessary to give effect to the amendments in question. The effect of this provision is to make it obligatory on he Income tax Officer to revise his original orders in he light of the amendments and also to confer on the assessee right to claim such revision. It may be con ceded that in respect of the other retrospective provisions of the Amendment Act such a power to revise the earlier orders cannot be claimed or exercised by the Income tax Officer. In other words, a distinction can be drawn between there two provisions of the Amendment Act and the rest in respect of the power which the Income tax Officer can purport to exercise to give effect to the amendments made by the Amendment Act. Whereas, in respect of the amendments made by section 7 and section 30 of the Amendment Act, the Income tax Officer can and must revise his earlier orders covered by section 7, sub section (2) and section 30, sub section (2), such a power of revision has not been conferred on him in the matter of giving effect to the other amendments made in the Amendment Act. Even so, we do not think it would be legitimate or reasonable to hold that the provisions of section 7(2) and section 30(2) lead to the infference that the retrospective operation of the other provisions of the Amendment Act is not intended to affect concluded assessments in any manner whatever. In this connection, it would be pertinent to remember that the power to revise which has been conferred on 711 the Income tax Officer by section 7(2) and section 30(2) of the Amendment Act is distinct and independent of the power to rectify mistakes which the Income tax Officer can exercise under section 35 of the Act. It is in the light of this position that the extent of the Income tax Officer 's power under section 35 to rectify: mistakes apparent from the record must be determined; and in doing so, the scope and effect of the expression " mistake apparent from the record " has to be ascertained. At the time when the Income tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952. If that be the true position then the order which he made giving credit to the respondent for Rs. 50,603 15 0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record. If a mistake of fact apparent from the record of the assessment order can be rectified under section 35, we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified. Prima facie it may appear somewhat strange that an order which was good and valid when it was made should be treated as patently invalid and 'wrong by virtue of the retrospective operation of the Amendment Act. But such a result is necessarily involved in the legal fiction about the retrospective operation of the Amendment Act. If, as a result of the said fiction we must read the subsequently inserted proviso as forming part of section 18A(5) of the principal Act as from April 1, 1952, the conclusion is inescapable that the order in question is inconsistent with the provisions of the said proviso and must be deemed to suffer from a mistake apparent from the record. That is why we think that the Income tax Officer was justified in the present case in exercising his power under section 35 and rectifying the said mistakes. Incidentally we may mention that in Moka Venkatappaiah vs Additional Income Tax Officer, Bapatla (1), the High Court of Andhra has taken the same view. (1)(1957) 712 In this connection it would be useful to refer to the decision of the Privy Council in the Commissioner of [Income Tax, Bombay Presidency and Aden vs Khemchand Ramdas (1). In Khemchand 's case, the assessees were registered as a firm and they were assessed under section 23(4) on an income of Rs. 1,25,000 at the maximum rate. Being a registered firm no super tax was levied. A notice of demand was also made before March 1927. On February 13, 1928, the Commissioner, in exercise of his powers under section 33, cancelled the order registering the assessee as a firm and directed the Income tax Officer to take necessary action. The Income tax Officer accordingly assessed the firm to super tax on May 4, 1929. The Privy Council held that the assessment made on January 17, 1927, was final both in respect of the income tax and super tax. The fresh action taken by the Income tax Officer on May 4, 1929, was out of time though it had been taken in pursuance of the directions of the Commissioner and that the order of May 4, 1929, was one which the Income tax Officer had no power to make. One of the points raised before the Privy Council was whether, under the relevant circumstances the Income tax Officer had power to make the impugned order in view of the provisions of sections 34 and 35 of the Act. The Privy Council dealt with this question on the footing that the Commissioner 's order cancelling the registration had been properly made. On this basis their Lordships thought that it was unnecessary to consider whether the. case would attract the provisions of section 34 " inasmuch as in Their Lordships ' opinion the case clearly would have fallen within the provisions of section 35 had the Income tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents ". The judgment shows that Their Lordships took the view that looking at the record of the assessments made upon the respondents as it stood after the cancellation of the respondents ' registration and the order effecting the cancellation would have formed part of the record it would be apparent that a mistake (1)(1938) L.R. 65 I.A. 236. 713 had been made in stating that no super tax was leviable. This decision clearly shows that the subsequent cancellation of the assessees ' registration was held by Their Lordships of the Privy Council to form part of the record retrospectively in the light of the said subsequent event, and the order was deemed to suffer from a mistake apparent from the record so as to justify the exercise of the rectification powers under section 35 of the Act. It is because Their Lordships thought that section 35 would have been clearly applicable that they did not decide the question as to whether section 34 could also have been invoked. This decision lends considerable support to the view which we are disposed to take about the true meaning and scope of the expression " the mistake apparent from the record " occurring in section 35. We must accordingly hold that the High Court of Bombay was in error in coming to the conclusion that the notice issued by the Income tax Officer calling upon the respondent to pay 9the sum of Rs. 29,446 9 0 was not warranted by law. The result is the order passed by the High Court issuing a writ against the appellant is set aside and the appeal is allowed with costs throughout. Appeal allowed. [/INST]The appellant Company, a manufacturer of superfine cement, preferred a claim for refund of duty on price of packing material of the product, paid by it during July 4, 1974 to March 1, 1974, on the ground that duty on packing charges on superfine cement was not leviable. But the claim was rejected by the Assistant Collector of Central Excise, the Appellate Collector and also the Appellate Tribunal on the ground of limitation under Rule 11 of the Central Excise Rules, 1944, since the duty was not paid under protest. The Tribunal also held that the letter dated July 11, 1974, in which the appellant had stated that the duty was not levi able on packing charges and if the department felt it was leviable they had no option but to suggest the rates fixed by Government from quarter to quarter as packing charges, was not a protest to save the period of limitation pre scribed in Rule 11. In the appeal before this Court, on behalf of the Compa ny, it was submitted that a similar claim was allowed by the Central Government in the case of Birla Cement Works and that the Trade Notice dated 29.10.1979 by the Collectorate clearly stated that the cost of packing was not liable to be included in the assessable value. While conceding that there was no particular form of protest, it was contended on behalf of the department that if the payments were held as made under protest, by treating the letter as a protest, then the period of limitation under Rule 11 of the Central Excise Rules, 1944 would not be applicable but the Trade Notice of 20.1.1979 could not be 716 given retrospective effect and, therefore, the matter had to be remitted to the Tribunal for disposal on other questions. Allowing the appeal, HELD: The letter of the appellant clearly shows that all possible contentions which could be raised against the levy of duty on the value of packing material were raised, and that the appellant was not accepting the liability, without protest. Therefore, the letter was in the nature of protest. That being the position, the question of limitation does not arise for the refund of the duty. i718 H] Giving the benefit without any Trade Notice in a similar case, the Central Government held, in their revisional order, that as superfine cement was capable of being sold without packing like grey portland cement, the cost of packing for superfine cement should not be added to the assessable value. The authorities ought to have, therefore, extended this view to all similar cases. [719A, D] In these circumstances, the appellant is entitled to refund of the duty paid by it. [719F] </s>

<s>[INST] Summarize the judgementAppeal Nos. 735 and 736 of 1966. Appeals by special leave from the judgment and decree dated March 26, 1965 of the Allahabad High Court, Lucknow Bench in Second Execution Decree Appeals Nos. 3 and 4 of 1961. J. P. Goyal and section P, Singh, for the appellant (in both the, appeals). 233 C. B. Agarwala and K. B. Gupta, for the respondent (in both the appeals). The Judgment of the Court was delivered by Bachawat, J. The appellant filed suit nos. 87 of 1948 and 2/12 of 1948 in the court of the Assistant Collector, 1st Class, Pratapgarh, (a revenue court) against the respondent and 8 others persons under sections 60, 61 and 180 of the U.P. Tenancy Act (U.P. Act XVII of 1939) claiming a declaration that the defendants had no right to the suit lands and a decree for possession in case the defendants were found to be in possession thereof. The suits were decreed in 1948. The appellant took symbolical possession of the lands in execution of the decrees. Appeals against the decrees filed by the respondent and other defendants were dismissed by the Additional Commissioner, Faizabad. The defendants filed second appeals against the decrees. During the pendency of the appeals rules 4 and 5 of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules 1952 came into force. The Board of Revenue held that in view of rules 4 and 5 the pending appeals as also the suits had abated. In 1955 the respondent filed applications for restitution of the lands under section 144 of the Code of Civil Procedure in court of the Assistant Collector, 1st Class, Pratapgarh. The appellant con. tested the application. One of the issues arising on the application was whether the appellant had acquired Bhumidari rights. The Assistant Collector referred this issue to the Civil Court for decision. He refused to recall the order of reference in spite of the respondent 's plea that he had no power to pass the order as no question of proprietary title had arisen. On May 7, 1958 the civil court answered the issue in the negative. On February 18, 1958 the Assistant Collector allowed the application for restitution and directed that the respondent be put in possession of the lands. The appellant filed appeals against the orders dated February 18, 1958 As he was not certain about the proper forum of the appeals he took the precaution of filing the appeals in the revenue court as also in the civil court. On October 23, 1959 the Additional Commissioner, Faizabad Division, held that the Revenue Court had no jurisdiction to entertain the appeals and that the appeals lay to the civil court under sections 286(4) and 265(3) of U.P. Tenancy Act. Accordingly he returned the memoranda of appeals for presentation to the proper court. The appellant filed revision petitions against the orders before the Board of Revenue, In the meantime the appeals filed before the civil court came up for hearing. The respondent submitted to the jurisdiction of the civil court. He did not raise the contention that the, civil court had no jurisdiction to entertain the, appeals. On 234 November 12, 1960 the Additional Civil Judge,, Pratapgarh, allowed the appeals and dismissed the applications for restitution. He held that (1) the appellant was in possession of the lands on the dates of the institution of the suits; (2) the board of revenue had no power to abate the suits or to set aside the decree passed therein, and (3) the application for restitution was not maintainable as the appellant had not obtained possession of the lands in execution of any decree which had been reversed or set aside. In view of this decision, the appellant did not proceed with the pending revision petitions before the board of revenue and on November 18, 1960 the revision petitions were dismissed. On February 1, 1961 the respondent filed second appeals in the High Court against the appellate orders of the civil court dated November 12, 1960. In the original memorandum of appeal, he did not take the plea that the civil court had no jurisdiction to entertain the appeals. For the first time on January 24, 1964, he took this plea by adding a new ground in his memorandum of appeal. The High Court held that (1) the appellant was in possession of the lands before the passing of the decree; (2) the suits had not abated and the Board of Revenue had no jurisdiction to set aside the proceedings, in the suits ' and (3) the applications for restitution were not maintainable. The High Court, however, held that (1) appeals against the orders for restitution lay to the revenue court, (2) the civil court had no jurisdiction to entertain the appeals and (3) the respondent was not estopped from raising the contention. Accordingly on March 26, 1965 the High Court allowed the second appeals, set aside the order of the Additional Civil Judge and returned the memoranda of appeals for presentation to the proper court. The appellant has filed the present appeals after obtaining special leave. On behalf of the appellant it is argued that (1) the appeal from the order of the Assistant Collector dated February 18, 1959 lay to the civil court and not to the revenue court (2) in the circumstances of the case, and in view of section 289(2) of the U.P. Tenancy Act, the respondent was precluded from raising the objection that the appeals did not lie to the civil court. It is common case that suits nos. 87 of 1948 and 2/12 of 1948 Were of the nature specified in Group B of the fourth schedule to the U.P. Tenency Act. In view of section 265(2) read with section 271(2) appeals from orders in proceedings under section 14 4 of the Code of Civil Procedure arising out of, the two suits lay to the revenue court. The appeals did not lie to the civil court under sections 265(3) and 286(4) read with section 271(2) as no question of jurisdiction was decided by the Assistant Collector nor was any question of proprietary title referred to or decided by the civil court. But the more important question is whether having regard to the 235 scheme of the U.P. Tenancy Act and the circumstances of the case, the objection as to the lack of competence of the civil court to entertain the appeals could be raised in the High Court. The U.P. Tenancy Act 1939 consolidates and amends the law relating to agricultural tenancies and other matters connected therewith in Agra and Oudh. It repealed the Agra Tenancy Act, 1926 and the Oudh Rent Act 1886. Chapter XIV of the Act deals with the procedure and jurisdiction of courts. Section 242 provides that certain suits and applications are cognizable by the revenue courts only. The chapter provides for appeals and revisions. No appeal lies from any decree or order passed by any court under the Act except as provided in the Act (section 263). In some cases an appeal lies to a revenue court; in other cases the appeal lies to the civil court. The High Court has no revisional power under section 276 in a case in which no appeal lies to the civil court. It is often a question of extreme nicety whether a suit, application or appeal is cognizable by the revenue court or by the civil court. Sections 289, 290 and 291 deal with objections regarding the proper forum. Section 290 provides that where in a suit instituted in a civil or revenue court, an appeal lies to the district judge or to the High Court, an objection that the suit was instituted in the wrong court shall not be entertained by the appellate court unless such objection was taken in the court of the first instance; and the appellate court shall dispose of the appeal as if the suit has been instituted in the right court. The section closely resembles section 21 of the Code of Civil Procedure and is a recognition of the princi ple that an objection as to the proper forum for the trial of a suit may be waived. Section 291 treats the objection as technical and provides that even where the objection was taken in the court of the first instance, the appellate court may dispose of the appeal as if the suit had been instituted in the right court. It may declare any court to be competent to try the suit and may remand the suit for fresh trial, and the competence of the trial cannot be ques tioned later. With a view to avoid conflicts of jurisdiction section 289 provides for reference to the High Court. Section 289 is as follows : "289(1) Where either a civil or revenue court is in doubt whether it is competent to entertain any suit, application or appeal, or whether it should direct the plaintiff, applicant or appellant to file the same in a court of the other description, the court may submit the record with a statement of the reasons for its doubt to the High Court; (2) Where any suit, application or appeal, having been rejected either by a civil court or by a revenue 236 court on the ground of want of jurisdiction, is subsequently filed in a court of the other description, the latter court, if it disagrees with the finding of the former, shall submit the record, with a statement of the reasons for its disagreement to the High Court; (3) In cases falling under subsection (1) or subsection (2) if the court is a revenue court subordinate to the collector, no reference shall be made under the foregoing provisions of this section except with the previous sanction of the collector; (4) On any such reference being made , the High Court may order the court either to proceed with the case, or to return the plaint, ' application or appeal for presentation of such other court as it may declare to be competent to try the same; (5) The order of the High Court shall be final and binding on all courts, subordinate to it or the Board. " Section 289 vests in the High Court a special jurisdiction. The decision of the High Court given ' on a reference to it under section 289 is binding on all courts. A reference can be made under section 289(1)if any court doubts its own competence to entertain any proceeding. The reference under section 289(1) is optional. Without making any reference the court may refuse to entertain the proceeding on the ground of want of jurisdiction. But the court of the other description in which the proceeding is subsequently instituted is not bound by this finding, see Nathan vs Harbans Singh(1). Before the enactment of section 289(2) if it disagreed with the finding, it could reject the proceeding on the ground that the matter was cognizable by the other court, As neither court was bound by the finding of the other, the litigant could not get relief in any forum. Section 289(2) has been specially enacted to avoid such a deadlock. In such a situation, section 289(2) compels the court to refer the matter to the High Court and to obtain a Provisions corresponding to sections 290, 291 and 289(1) were contained in sections 124 A, 124B, 124C and 124D of the Oudh Rent Act 1886 and sections 268, 269 and 267(1) of the Agra Tenancy Act, 1926. It seems that Oudh Rent Act, 1886 did not contain any provision corresponding to section 289(2). The absence of such a provision seriously hampered the administration of justice. In numerous cases under the Oudh Rent Act, after a suit, application or appeal was rejected by a civil court or revenue court on the ground of want of jurisdiction, the court of the other descrip (1) A.I.R. 1930 All. 264, decision which will bind all the courts. 237 tion where the proceeding was subsequently filed came to the opposite conclusion and held that the matter was within the cognizance of the former court. The decision of the court of one description including the decision of the High Court exercising appellate or revisional power over that Court was not binding upon the court of the other description. Such a situation led to great injustice. The litigant was bandied about from court to court and he could not get any relief anywhere. The Oudh Chief Court mitigated the evil by applying the doctrine that a party litigant could not approbate and reprobate in respect of tile same matter. A party litigant may not be allowed to take inconsistent positions in court to the detriment of his opponent at successive stages of the same proceeding or in a subsequent litigation growing out of the judgment in the former proceeding, see Bigelow on Estoppel, 6th Ed. 783, 789, Mohammad Mehdi Khan V Mussammat Sharatunnissa(1). On this principle it was held in Mahadeo Singh vs Pudai Singh(2) that where a revenue court upheld the plea that it had no jurisdiction to entertain a suit, the party putting forward the plea would be precluded from contending that the civil court could not entertain the suit. Likewise in Saira Bibi vs Chandrapal Singh (8) it was held that when an appeal was originally instituted properly in the revenue court but on objection being raised by a party was dismissed on the ground that the appeal did not lie to that court, it was not open to the party to raise the objection that the appeal could not be entertained by the civil court. This form of estoppel arises when the litigant takes in consistent pleas as to jurisdiction in different courts. It cannot be pressed into service, where, as in the present case, the court in which the proceeding was originally filed suo motu raised the objection as to jurisdiction. In the present case it does not appear that the respondent raised before the revenue court the objection that it was not competent to entertain the appeals. The doctrine of approbate and reprobate cannot be invoked to, preclude the respondent, from raising the objection that the appeals did not lie to the civil court. But the effect of upholding his objection is that the appellant is deprived of his right of appeal altogether. His appeals cannot be entertained either by the civil court or by the revenue court. Section 289(2) is intended to prevent such grave miscarriage of justice. Section 289(2) reenacts the provision of section 267(2) of the Agra Tenancy Act 1926. The object of section 289(2) is to avoid a deadlock between the civil and the revenue courts on the question of jurisdiction, and its provisions should receive a liberal construction. Section 289(2) applies whenever any suit, application or appeal having been rejected either by the civil court or revenue (1) 3 Oudh Cases, 32, Luck, 159,166. (3) A.I.R. 1931 Oudh 123. 238 court on account of want of jurisdiction is subsequently filed in the court of the other description and the latter court disagrees with the finding of the former. In such a case, a reference to the High Court is compulsory and the conflict of opinion is resolved by a decision of the High Court which is binding on all courts. A court subordinate to the collector cannot make the reference without the previous sanction of the collector under section 289(3). It is implicit in section 289(3) that if the collector refuses to give the sanction, the case will proceed as if there is no dis agreement with the finding of the former court. In a case falling within section 289(2), only the court in which the proceeding is subsequently instituted can disagree with the finding of the former court on the question of jurisdiction. If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding. No other court can disagree with the finding and make the reference. In our opinion, if no such reference is made, the finding of the former court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional court or any other court. In the present case the respondent did not raise any objection before the Additional Civil Judge that the civil court was not competent to entertain the appeals. The Additional Civil Judge did not make any reference to the High Court under section 289(2). He decided the appeal on the merits and did not disagree with the finding of the revenue court on the question of jurisdiction. Having regard to this decision the appellant did not proceed with the revision petitions filed by him against the orders of the revenue court on the question of jurisdiction In these circumstances, it was not open to the respondent to raise the objection in the High Court that the civil court was not competent to hear the appeals. In view of the fact that no reference. under section 289(2) was made, the finding of the revenue court that the civil court was competent, to entertain the appeals could not be challenged in the High Court. The case must be decided on the footing that the Additional Civil Judge, Pratapgarh, was competent to enter tain the appeals. On the merits the respondent has no case. The Additional Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits. The High Court agreed with this finding. We see no reason for setting aside this concurrent finding of fact. The appellant did not obtain possession of the lands by executing the decrees passed in the two suits. Even assuming that the suits had abated and the decrees 239 ed therein had been set aside or reversed, no case for restitution. of the lands under section 144 of the Code of Civil Procedure is made out. The Additional Civil Judge rightly dismissed the applications under, section 144. In the result, the appeals are allowed with costs, the orders of the High Court are set aside and the orders passed by the: Additional Civil Judge, Pratapgarh, are restored. [/INST]The election of the respondent to the Bihar Legislative Assembly at the 1967 general election was challenged by the appellant one of the defeated candidates in an election petition. Annexure 2 to the petition was a pamphlet alleged to have been issued by the respondent and his supporters in which reference was made to the call of two Muslim religious heads that Muslims should not vote for the Congress party to which Islam was opposed. The High Court dismissed the election petition whereupon appeal was filed in this Court. The appellant urged that (i) In the aforesaid pamphlet an attempt was made to induce muslim voters not to vote for a Congress candidate in opposition to the mandate of two named religious heads and this amounted to the corrupt practice of "undue influence" under section 123(2) of the Representation of the People Act 1951; (ii) The reference to the mandate of Islam amounted to the use of a religious symbol within the mischief of section 123(3); (iii) The said pamphlet also came within the mischief in section 123(4); (iv) The Returning Officer who was also the Sub Divisional Officer of the District ordered the arrest of the appellant immediately before the election; this was done mala fide, in collusion with the respondent and the appellant was thereby hampered in his election campaign. HELD: (i) The pleadings in the appellant 's election petition did not permit consideration of his contention based on section 123(2) of the Act. In order that a pleading may be sufficient to make out a case of undue influence it must set out full particulars of it in compliance with section 83(1)(c) of the Act comparable to Order 6 r. 4 of the Code of Civil Procedure. The said provision of the Act read with section 123(2) makes it obligatory on a party setting up a case of corrupt practice by exercise of undue influence as suggested, to give full particulars thereof by stating inter alia who attempted ' to induce electors to believe that .voting for a particular person would render them objects of divine displeasure or spiritual censure and in what manner such attempts were made. The real charge in the relevant paragraph of the petition in the present case was that the pamphlet complained of misled the electors by false statements. Such a pleading falls short of an allegation of unique influence by an attempt to make electors exercise their franchise in a particular manner. [43 H 44 C] (ii) The contention that the case fell under section 123.(3) because of the use of the mandate of Islam as a religious symbol was 'also not borne out by the pleadings and therefore could not be considered. [44 D] (iii) To bring the case under section 123(4) there must be a publication by the candidate or his agent of any statement of same fact which is up. CI/69 4 42 false, and which is believed to be false or not believed to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate being a ,statement reasonably calculated to prejudice the prospects of that candidate 's election. The pamphlet in question did not cast any aspersion on the personal character or conduct of the election petitioner. Nor was there any false statement in relation to the candidature, of the petitioner. .Section 123(4) was therefore not attracted to the case. [44 E F] (iv) The. evidence in the case did not prove that the Returning Officer caused the appellant to be arrested mala fide or in collusion with the respondent. The arrest immediately before the election surely hampered the campaign of the election petitioner, but by itself the mere fact of arrest does. not lead to the conclusion that the Returning Officer was trying to bring pressure on the election petitioner not to contest the election and much less that the arrest was made in collusion with the successful candidate. [45 G] </s>

<s>[INST] Summarize the judgements Nos. 84, 174, 188, 241 and 242 of 1966. Petitions under article 32 of the Constitution of India for the enforcement of fundamental rights. M.R. M. Abdul Kari, K. Rajendra Chaudhuri, and K. R. Chaudhuri, for the petitioners (in W. P. No. 84 of 1966). 837 B. K. Bhattacharya and M. L Khowaja, for the petitioners (in W. P. No. 174 of 1966). Daniel A. Latifi and M. I. Khowaja,. for the petitioners (in W. P. No. 188 of 1966). K. L. Gauba and section Saukat Hussain, for the petitioners (in W.P. No. 241 of 1966). section Shaukat Hussain, for the petitioners (in W.P. No. 242 of 1966). C. K. Daphtary, Attorney General, N. section Bindra, R. H. Dhe bar, section P. Nayar for R. N. Sachthey, foe the respondent (in W.P. Nos. 84, 174 and 242 of 1966) and the respondents Nos. 1 and 3 (in W.P. No. 188 of 1966). C. K. Daphtary, Attorney General, Lily Thomas, P.C. Kapur, R. H. Dhebar for R. N. Sachthey for the respondent On W.P. No. 242 of 1966). The Judgment of the Court was delivered by Wanchoo, C. J. These five writ petitions raise common ques tions and will be dealt with together. They attack the constitutionality of the Aligarh Muslim University (Amendment) Act, No. 62 of 1951 (hereinafter referred to as the 1951 Act) and the Aligarh Muslim University (Amendment) Act, No. 19 of 1965, (hereinafter referred to as the 1965 Act). The principal attack is based on the provisions of article 30(1) which lays down that "all minorities whether based on religion or language, shall have the right to establish and administer educational institutions of their choice". The case of all the petitioners is that the Aligarh Muslim University (hereinafter referred to as the Aligarh University) was established by the Muslim minority and therefore the Muslims had the right to administer it and in so far as the Acts of 1951 and 1965 take away or abridge any part of that right they are ultra vires article 30(1). Besides this principal attack, the two Acts are also subsidiarily attacked for violating the fundamental rights guanteed under Articles 14, 19, 25, 26, 29 and 31 of the Constitution. It is unnecessary to set out the nature of the attack under these Articles for that will appear when we deal with the matter in detail later. suffice it to say that all the petitions do not make the attack, under ill these Articles, but the sum total of the subsidiary attack in all these petitions takes in its sweep all these six Articles. The petitions have been opposed on behalf of the Union of India and its main contention is that the Aligarh University was established in 1920 by the , No. XL of 1920, (hereinafter referred to as the 1920 Act) and that this Establishment was not by the Muslim minority but by the Government of India by virtue of a statute namely the 1920 Act and, therefore the Muslim minority could not claim any fundamental right to administer the Aligarh University under article 30(1). It /P(N)78CI 14(a) 838 was further contended that as the Aligarh University was established by the 1920 Act by the Government of India, Parliament had the right to amend that statute as it thought fit in the interest of education and the amendments made by the Acts of 1951 and 1965 were perfectly valid as there was no question of their taking away the right of the Muslim minority to administer the Aligarh University, for the minority not having established the University could not claim the right to administer it. It was further contended that the fact that under the provisions of the 1920 Act the Court of the Aligarh University was, to be composed entirely of Muslims did not give any right to, the Muslim. community as such to administer the. University which had been administered by the authorities established by the 1920 Act. It was further contended that the attack based on the six Articles of the Constitution to which we have referred already had no substance and did not in any manner make the Acts of 1951 and 1965 unconstitutional. We do not think it necessary at this stage to give in detail the reply of the Government of India on these points and shall refer to it as and when the occasion arises. It is necessary to refer to the history previous to the establishment of the Aligarh University in 1920 in order to understand the contentions raised on either side. It appears that as far back as 1870 Sir Syed Ahmad Khan thought, that the backwardness of the Muslim community was due to their neglect of modern education. He therefore conceived the idea of imparting liberal education to Muslims in literature and science while at the same time instruction was to be given in Muslim religion and traditions also. With this object in mind, he organised a Committee to devise ways and means for educational regeneration of Muslims and in May 1872 a society called the Muhammadan Anglo Oriental College Fund Committee was started for collecting subscriptions to realise the goal that Sir Syed Ahmad Khan had conceived. In consequence of the activities of the committee a school was opened in May 1873. In 1876, the school became a High School and in 1877 Lord Litton, then Viceroy of India, laid the foundation stone for the establishment of a college. The Muhammadan Anglo Oriental College, Aligarh hereinafter referred to as the M.A.0. College) was established thereafter and was, it is said, a flourishing institution by the time Sir Syed Ahmad Khan died in 1898. It is said that thereafter the idea of establishing a Muslim University gathered strength from year to year at the turn of the century and by 1911 some funds Were collected and a Muslim University Association was established for the purpose of establishing a teaching University at Algarh. Long negotiations took place between the Associationland the Government of India, which eventually resulted in the establishment of the Aligarh University in 1920 by the 1920 Act. It may be mentioned that before that a 839 largo sum of money was collected by the Association for the University as the Government of India had made it a condition that rupees thirty lakhs must be collected for the University before it could be established. Further it seems, that the existing M.A.0. College was made the basis of the University and was made over to the authorities established by the 920 Act for the administration of the University along with the properties and funds attached to the college, the major part of which had been contributed by Muslims though some contributions were made by other communities as well. It is necessary now.to refer in some detail to the provisions of the 1920 Act to see how the Aligarh University came to be established. The long title of the 1920 Act is in these words: "An Act to establish and incorporate a teaching and residential Muslim University at Aligarh". The preamble says that "it is expedient to establish and incorporate a teaching and residential Muslim University at Aligarh, and to dissolve the Societies registered under the , which are respectively known as the Muhammadan Anglo Oriental College, Aligarh and the Muslim University Association, and to transfer and vest in the said University all properties and rights of the said Societies and of the Muslim University Foundation Committee". It will be seen from this that the two earlier societies, one of which was connected with the M.A.0. College and the other had been formed for collecting funds for the establishment of the University at Aligarh, were dissolved and all their properties and rights and also of the Muslim University Foundation Committee, which presumably collected funs for the proposed University were transferred and vested in the University established by the 1920 Act. Section 3 of the 1920 Act laid down that "the First Chancel lor, Pro Chancellor and Vice Chancellor shall be the persons appointed in this behalf by a notification of the Governor General in Council in the Gazette of India and the persons specified in the schedule [shall be] the first members of the Court" and they happened to be all Muslims. Further section 3 constituted a body corporate by the name of the Aligarh Muslim University and this body corporate was to have perpetual succession and a Common Seal and could sue and be sued by that name. Section 4 dissolved the M.A.0. College and the Muslim University Association and all property, movable and immovable, and all rights, powers and privileges of the two said societies, and all property, movable and immovable, and all rights, powers and privileges of the Muslim University Foundation Committee were transferred and 'vested in the Aligarh University and were to be applied to the objects and purposes for which the Aligarh University was incorporated. 840 All debts, liabilities and obligations, of the said societies and Committee were transferred to the University, which was made responsible for discharging and satisfying them. All references in any enactment to either of the societies or to the said Committee were to be construed ' as references to the University. It was further provided that any will, deed or other documents, whether made or executed before or after the commencement of the 1920Act, which contained any bequest, gift or trust in favour of any of the said societies or of the said Committee would, on the com mencement of the 1920 Act be construed as if the University had been named therein instead of such society or Committee. The effect of this provision was that the Properties endowed for the purpose of the M.A.0. College were to be used for the Aligarh University after it came into existence. These provisions will show that the three previous bodies legally came to an end and everything that they were possessed of was vested in the University as established by the 1920 Act. Section 5 provides for the powers of the University including the power to hold examinations and to grant and confer degrees and other academic distinctions. Section 6 is important. It laid down that "the degrees, diplomas and other academic distinctions granted or conferred to or on persons by the University shall be recognised by the Government as are the corresponding degrees, diplomas and other academic distinctions granted by any other University incorporated under any enactment". Section 7 provided for reserve funds including the sum of rupees thirty lakhs. Section 's provided that "the Uni versity shall, subject to the provisions of this Act and the Ordinances, be open to all persons of either sex and of whatever race, creed or class", which shows that the University was not established for Muslims alone. Under section 9 the Court was given the power to make Statutes providing that instruction in the Muslim religion would be compulsory in the case of Muslim students. Sections 10, 11 and 12 made other provisions necessary for the functioning of a University but they are not material for our purpose. Section 13 is another important section. It provided that "the Governor General shall be the Lord Rector of the University". Further sub section (2) of section 13 provided that "the Lord Rector shall have the right to cause an inspection to be made by such person or persons as he may direct, of the University, its buildings, laboratories, and equipment, and of any institution maintained by the University, and also of the examinations, teaching and other work conducted or done by the University, and to cause an inquiry to be made in like manner in respect of any matter connected with the University. The Lord Rector shall in every case give notice to the University of his intention to cause an ins pection or inquiry." After the enquiry, the Lord Rector had the 841 power to address the Vice Chancellor with reference to the result of such inspection and inquiry and the Vice Chancellor was bound to communicate to the Court the views of the Lord Rector with such advice as the Lord Rector might offer upon the action to be taken thereon. The Court was then required to communicate through the Vice Chancellor to the Lord Rector such action if any as was proposed to be taken or was taken upon the result of such inspection or inquiry. Finally the Lord Rector was given the power where the Court did not, within reasonable time, take action to the satisfaction of the Lord Rector to issue such directions as he thought fit after considering any explanation furnished or representation made by the Court and the Court was bound to comply with such directions. These provisions clearly bring out that the final control in the matter was with the Lord Rector who was the Governor General of India. Then comes section 14 which is again an important provision, which provided for the Visiting Board of the University, which consisted of the Governor, the members of the Executive Council, the Ministers, one member nominated by the Governor and one member nominated by the Minister in charge of Education. The Visiting Board had the power to inspect ' the University and to satisfy itself that the proceedings of the University were in conformity with the Act, Statutes and Ordinances, after giving notice to the University of its intention to do so. The Visiting Board was also given the power, by order in writing, to annul any proceedings not in conformity with the Act, Statutes and Ordinances, provided that before making such an order, the Board had to call upon the University to show cause why such an order should not be made, and to consider such cause if shown within reasonable time. This provision, though not so all pervasive as the provision in section 13 of the 1920 Act, shows that the Visiting Board had also certain over riding powers in case the University authorizes acted against the Act, Statutes and Ordinances. There is no condition that the Lord Rector and the members of the Visiting Board must belong to the Muslim community. Sections 15 to 21 are not material$ for our purposes. They made provisions for officers of the University and Rectors and laid down that "the powers of officers of the University other than the Chancellor, the Pro Chancellor, the Vice Chancellor and, the Pro Vice Chancellor shall be prescribed by the Statutes and the Ordinances". Section 22 provided for the, authorities of the University, namely, the Court, the Executive Council and the Academic Council and such other authorities as might be declared by the Statutes to be authorities of the University. Section 23 provided for the constitution of the Court, and the proviso to sub section (1) has been greatly stressed on behalf of the petitioners which laid down that "no person other than a Muslim shall be a member 842 thereof". It may be added here that the Select Committee which went into the Bill before the 1920 Act was passed was not very happy about this proviso and observed that: " in reference to the constitution of the Court we have retained the provision that no person other than Muslim shall be a member thereof. We have done this as we understand that such a provision is in accordance with the preponderance of Muslim feeling though some of us are by no means satisfied that such a provision is necessary." By section 23(2), the Court was to be the supreme governing body of the University and would exercise all the powers of the University, not otherwise provided for by the 1920 Act, the Statutes, the Ordinances and the Regulations. It was given the power to review the acts of the Executive and the Academic Councils, save where such Councils had acted in accordance with powers conferred on them under the Act, the Statutes or the Ordinances and to direct that necessary action be taken by the Executive or the Academic Council, as the case might.be, on any recommendation of the Lord Rector. The power of Making Statutes was also conferred on the Court along with other powers necessary for the functioning of the University. Section 24 dealt with the Executive Council, section 25 with the Academic Council and section 26 with other authorities of the University. Section 27 laid down what the Statutes might provide. Section 28 dealt with the question of the first Statutes and how they were to be amended, repealed and addled to. There is an important provision in section 28 which laid down that "no new Statute or amendment or repeal of an existing Statute shall have any validity, until it his been submitted through the Visiting Board (which may record its opinion thereon) to the Governor General in Council, and has been approved by the latter, who may sanction, disallow or remit it for further consideration. " This provision clearly shows that the final power over the administration of the University rested with the Governor General in Council. Section 29 dealt with Ordinances and what they could provide and section 30 provided which authorities of the University could, make Ordinances. Section 30(2) provided that "the first Ordinances shall be framed as directed by the Governor General in Council." and sub section (3) thereof lald down that "no new Ordinance, or amendment or repeal of an existing Ordinance shall have any validity until it has been submitted though the Court and the Visiting Board (which may record its opinion thereon) to the Governor General in Council, and has obtained the approval of the latter, who may sanction, disallow or remit it for further consideration". This again shows that even Ordinances could not be made by the University withOut the approval of the Governor General In Council. If any dispute arose between the, Executive and the Academic Council as 843 to which had the power to make an Ordinance, either Council could represent the matter to the Visiting Board and the Visiting Board had to refer the same to a tribunal consisting of three members, one of whom was to be nominated by the Executive Council, one by the Academic Council, and one was to be a Judge of the High Court nominated by the Lord Rector. This again shows that in the matter of such disputes, the Court which is called the supreme governing body of the University, did not have the power to resolve it. Section 31 provides for the making of Regulations, which had to be consistent with the Statutes and Ordinances. It is only the Regulations which did not require the approval of the Governor General before they came into force. Section 32 provided for admission of students to the University and sub section (4) thereof provided that "the University shall not save with the previous sanction of the Governor General in Council recognise (for the purpose of admission to a course of study for a degree) as equivalent to its own degrees, any degree conferred by any other University or as equivalent to the Intermediate Examination of an Indian University, any examination conducted by any other authority". This shows that in the matter of admission the University could not admit students of other institutions unless the Governor General in Council 'approved the degree or any other examination of the institutions other than Indian Universities established by law. Section 33 provided for examinations, section 34 for annual report and section 35 for annual accounts. Sections 36 to 38 provided for supplementary matters like conditions of service of officers and teachers, provident and pension funds, filling of casual vacancies and are not material for our purposes. Section 39 laid down that "no act or proceeding of any authority of the University shall be invalidated merely, by reason of the existence of vacancy or vacancies among its members". Section 40 is important and laid down that "if any difficulty arises with respect to the establishment of the University or any authority of the Uni versity or in connection with the first meeting of any authority of the University, the Governor General in Council may by order make any appointment or do anything which appears to him necessary or expedient for the proper establishment of the University or any authority thereof or for the firs meeting of any authority of the University. " This again shows the power of the Governor General in Council in the matter of establishment of the University. This brings us to the end of the sections of the 1920 Act. There is nothing anywhere in any section of the Act which vests the administration of the University in the Muslim community. The fact that in the proviso to section 23(1) it is provided that the Court of the University shall consist only of Muslims does not necessarily mean that the administration of the University was vested or was intended, to be vested in the Muslim minority. If anything, some of the important provisions to which we have already referred show that the final power in almost every matter of importance 844 was in the Lord Rector, who was the Governor General or in the Governor General in Council. Then follows the schedule which provides for the first Sta tutes of the Aligarh University. These Statutes provided for the Rectors of the University, the Vice Chancellor, Pro Vice Chancellor, Treasurer, Registrar, Proctor and Librarian, the Court, constitution of the Court, the first Court, meetings of the Court and the powers of the Court, the Executive Council, the powers of the Executive Council, the Academic Council and its powers, departments of studies, appointments, register of graduates, convocations, Committees and so on. The annexure to the 1920 Act gave the names of the Foundation Members of the Court numbering 124 who were all Muslims and who were to hold office for five years from the commencement of the Court. Such were the provisions of the 1920 Act. They continued in force till 1951 without any substantial amendment. In 1951, the 1951 Act was passed. It made certain changes in the 1920Act mainly on account of the coming into force of the Constitution. We shall refer only to such changes as are material for our purposes. The first material change was the deletion of section 9 of the 1920 Act which gave power to the Court to make Statutes providing for compulsory religious instruction in the case of Muslim students. This amendment was presume ably made in the interest of the University in view of article 28(3) of the Constitution which lays down that "no person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. " It was necessary to delete section 9 as otherwise the University might have lost the grant which was given to it by the Government of India. Further section 8 of the 1920 Act was amended and the new section provided that "the University shall be open to persons of either sex and of whatever race, creed, caste, or class, and it shall not be lawful for the University to adopt or impose on any person, any test whatsoever of religious belief or profession in order to entitle him to be admitted therein, as a teacher or student, or to hold any office therein, or to graduate thereat, or to enjoy or exercise any privilege thereof, except in respect of any particular benefaction accepted by the University, where such test is made a condition thereof by my testamentary or other instrument creating such benefaction". The new section 8 had also a proviso laying down that "nothing in this section shall be deemed to prevent religious instruction being given in the manner prescribed by the Ordinances to those who have consented to receive it". Clearly section 9 was deleted and section 8 was amended in this manner to bring the law into conformity with 845 the provisions of the Constitution and for the benefit of the University so that it could continue to receive aid from the Government. Some amendment was also made in section 13 in view of the changed constitutional set up and in place of the Lord Rector, the University was to have a Visitor. Section 14 was also amended and the power of the Visiting Board was conferred on the Visitor by addition of a new sub section (6). The next substantial change was that the proviso to section 23(1) which required that all members of the Court would only be Muslims was deleted,. Other amendments are not material for our purpose as they merely relate to administrative details concerning the University. It will thus be seen that by virtue of the 1951 Act non Mus lims could also be members of the Court. But the Court still remained the supreme governing body of the University as provided by section 23 (1) of the 1920 Act. It is remarkable that though the proviso to section 23(1) was deleted, as far back as 1951, there was no challenge to the 1951 Act till after Ordinance No. 11 of 1965 was passed. The reason for this might be that there was practically no substantial change in the administrative set up of the 1920 Act and it was only when a drastic change was made by the Ordinance of 1965, followed by the 1965 Act, that challenge was made not only to the 1965 Act but also to the 1951 Act in so far as it did away with the proviso to section 23(1). It is not our function in the present petitions to consider the policy underlying the amendments made by the 1965 Act nor do we propose to go into the merits of the amendments made by the 1965 Act. We are in the present petitions concerned only with the constitutionality of the provisions of the 1965 Act. If the provisions are constitutional, they were within the legislative competence of Parliament. This brings us to the changes made in the 1965 Act which have occasioned the present challenge. The main amendment in the 1965 Act was in section 23 of the 1920 Act with respect to the composition and the powers of the Court of the University. Sub sections (2) and (3) of the 1920 Act were deleted, with the result that the Court no longer remained, the supreme governing body and could no longer exercise the powers conferred on it by sub sections (2) and (3) of section 23. In place of these two sub sections, a new subsection (2) was put in, which reduced the functions of the Court to three only, namely, "(a) to advise the Visitor in respect of any matter which may be referred to the Court for advice; (b) to advise any other authority of the University in respect of any matter which may be referred to the Court for advice; and (c) to perform such other duties and exercise such other powers as may be assigned to it by the Visitor or under this Act". It further appears from the amendments of sections 28, 29, 34 and 38 that the powers of 846 the Executive Council were correspondingly increased. The Statutes were also amended and many of the powers of the Court were transferred by the amendment to the Executive Council. Further the constitution of the Court was drastically changed by the amendment of the 8th Statute and it practically became a body nominated by the Visitor except for the Chancellor, the ProChancellor, the members of the Executive Council who were ex officio members and three members of Parliament, two to be nominated by the Speaker of the House of the People and one by the Chairman of the Council of States. Changes were also made in the constitution of the Executive Council. Finally the 1965 Act provided that "every person holding office as a member of the Court or the Executive Council, as the case may be, immediately before the 20th day of May, 1965 (on which date Ordinance No. 11 of 1965 wais promulgated) shall on and from the said date cease to hold office as such". It was also provided that until the Court or the Executive Council was reconstituted, the Visitor might by general or special order direct any officer of the University to exercise the powers and perform the duties conferred or imposed by or under the 1920 Act as amended by the 1965 Act on the Court or the Executive Council as the case may be. The contention of the petitioners is that by these drastic amendments in 1965 the Muslim minority was deprived of the right to administer the Aligarh University and that this deprivation was in violation of article 30(1) of the Constitution; and it is to this question we turn now. Under Article 30(1), "all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice". We shall proceed on the assumption in the present petitions that Muslims are a minority based on religion. What then is the scope of article 30(1) and what exactly is the right conferred therein on the religious minorities. It is to our mind quite clear that article 310(1) postulates that the religious community will have the rig establish and administer educational institutions of their choice mentoing thereby that where a religious minority establishes an educational institution, it will have the right to administer that. An argument has been raised to the effect that even though the religions minority may not have established the educational institution, it will have the right to administer it, if by some process it been administering the same before the Constitution came into force. We are not prepared to accept this argument. The, Artice in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The Article cannot be read, to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been 847 administering it before the Constitution came into force. The words "establish and administer" in the Article must be read conjunctively and so read it gives the Tight to the minority to administer an educational institution provided it has been established by it. In this connection our attention was drawn to In re, The Kerala Education Bill, 1957(1) where, it is argued, this Court had held that the minority can administer an educational institution even though it might not have established it. In that case an argument was raised that under article 30(1) protection was given only to educational institutions established after the Constitution came into force. That argument wag turned down by this Court for the obvious reason that if that interpretation was given to article 30(1) it would be robbed of much of its content. But that case in our opinion did not lay down that the words "establish, and administer" in Art 30(1) should be read disjunctively, so that, though a minority might not have established an educational institution it had the right to administer it. It is true that at p. 1062 the Court spoke of article 30(1) giving two rights to a minority i.e. (i) to establish and (ii) to administer. But that was said only in the context of meeting he argument that educational institutions established by minorities before the Constitution came into force did not have the protection of article 30(1). We are or opinion that nothing in that case justifies the contention raised of behalf of the petitioners that the minorities would have the right to administer an educational institution even though the institution may not have been established, by them. The two words in Art 30(1) must be read together and No read the Article gives this right to the minority to administer institutions established by it, If the educational institution has not been established by a minority it cannot claim the right to administer it under article 30(1) We have therefore to consider whether the Aligarh University was established by the Muslim minority; and if it was so established the minority would certainly have the right to administer it. We should also like to refer to the observations in The purgah Committee, Ajmer vs Syed Hussain Ali(1). In that case the Court observed while dealing with article 26(a) and (d) of the Constitution that even if it be assumed that a certain religious institution was established by a minority community it may lose the right to administer it in certain circumstances. We may in this connection refer to the following observations at p. 414 for they appequally to article 30(1): "If the right to administer properties never vested in the denomination or had been validly surrendered by it or had otherwise been effectively and irretrievably lost to it, article 26 cannot be successfully invoked." [1959] S.C.R. 995. (2) [1962] 1 S.C.P. 383. 848 We shall have to examine closely what happened in 1920 when the 1920 Act was passed to decide (firstly) whether in the face of that Act it could be said that the Aligarh University was established by the Muslim minority, (secondly) whether the right to administer it ever vested in the minority, and (thirdly) even if the right to administer some properties that came to the University vested in the minority before the establishment of the Aligarh University, whether it had been surrendered when the Aligarh University came to be established. Before we do so we should like to say that the words "edu cational institutions" are of very wide import and would include a university also. This was not disputed on behalf of the Union of India and therefore it may be accepted that a religious minority had the right to establish a university under article 30(1). The position with respect to the establishment of Universities before the Constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body from Establishing a university and it was therefore, open to a private individual or body to establish a university. There is a good, deal on common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguishes a University from any other educational institution is that a university grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a university which dis tinguishes it from the ordinary run of educational institutions. See St. David 's College, Lampeter vs Ministry of Education(1). Thus in law in India there was no prohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting deges before it could be called a university. But though such a university might be granting degrees it did not follow that the Government of the country was bound to recognise those degrees. is a matter of fact as the law stood up to the time the Constitution time into force, the Government was not bound to recognise agrees of universities established by private individuals or bodies and gene rally speaking the Government only recognised degrees universities established by it by law. of private individual or body could before 1950 insist that the degrees of any university established by him or it must be recognised by government. Such recognition depended upon the will of government generally expressed through statute. The importance of the recognition of Government in matters of this kind cannot be minimized. This position continued even after the Constitution came into force. It is only in 1956 that by sub section (1) of section 22 of the University Grants commission Act, (No. 3 of 1956) it was laid down that "the right to conferring or granting degrees shall be exercised only by a (1) 849 University established or incorporated by or under a Central Act, a Provincial Act or a State Act: or an institution deemed to be a University under section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees". Sub section (2) thereof further provided that "save as provided in sub section (1), no person or authority shall confer, or grant, or hold himself or itself as entitled to confer or grant any degree". Section 23 further prohibited the use of the word "university" by an educational institution unless it is established by law. It was only thereafter that no private individual or body could grant a degree in India. Therefore it was possible for the Muslim minority to establish a university before the Constitution came into force, though the degrees conferred by such a university were not bound to be recognised by Government. There was nothing in 1920 to prevent the Muslim minority, if it so chose, to establish a university; but if it did so the degrees of such a university were not bound to be recognised by Government. It may be that in the absence of recognition of the degrees granted by a university, it may not have attracted many students, and that is why we find that before the Constitution came into force, most of the universities in India were established by legislation. The Aligarh University was also in the same way established by legislation and it provided under section 6 of the 1920 Act that "the degrees , diplomas and other academic distinctions granted or conferred to or on persons by the University shall be recognised by the Government as are the corresponding degrees, diplomas and other academic distinctions granted by any other university incorporated under any enactment. " It is clear therefore that even though the Muslim minority could have established at Aligarh in 1920 a university, it could not insist that degrees granted by such a university should be recognised by Government. Therefore when the Aligarh university was established in 1920 and by section 6 its degrees were recognised by Government, an institution was brought into existence which could not be brought into existence by any private individual or body for such individual or body could not insist upon the recognition of the degrees conferred by any university established, by it. The enactment of s.6 in the 1920 Act is a very important circumstance which shows that the Aligarh University when it came to be established in 1920 was not established by the Muslim minority, for the minority could not insist on the recognition by Government of the degrees conferred by any university established by it. It is true, as is clear from the 1920 Act, that the nucleus of the Aligarh University was the M.A.O College, which was till then a teaching institution under the Allahabad University. The conversion of that college (if we may use that expression) into a university was however not by the Muslim minority; it took place 850 by virtue of the 1920 Act which was passed by the Central legislature. There was no Aligarh University existing till the 1920Act was passed. It was brought into being by the 1920 Act and must therefore be held to have been established by the Central Legislature which by passing the 1920 Act incorporated it. The fact that it was based on the M.A.0. College, would make no difference to the question as to who established the Aligarh University. The answer to our mind as to who established the Aligarh University is clear and that is that it was the Central Legislature by enacting the 1920 Act that established the said University. As we have said already, the Muslim minority could not establish a university whose degrees were bound to be recognised by Gov ernment as provided by section 6 of 1920 Act. that one circumstance along with the fact that without the 1920 Act the University in the form that it had, could not come into existence shows clearly that the Aligarh University when it came into existence in 1920 was established by, the Central Legislature by the 1920 Act. It may be that the 1920 Act was passed as a result of the efforts of the Muslim minority. But that does not mean that the Aligarh University when it came into being under the 1920 Act was established by the Muslim minority. A good deal of argument was addressed, to us on the nature of eleemosynary corporations and the difference between fundatio incipiens and fundatio perficiens and certain English cases were cited in support thereof. It was urged that the word "establish" in the 1920 Act amounted only to, a case of fundatio incipiens and that so far as fundatio perficiens was concerned,, that was the Muslim minority. We do not think it necessary to go into these distinctions of the English law; nor.do we think it necessary to consider the nature of eleemosynary corporations. Suffice it to say that even if we assume that those who contributed money and property which was vested in the Aligarh University (and some of them were non Muslims) were in the post of fundatio perficiens, they could only have visitorial rights under the English common law. But Muslim minority as such could not claim to be fundatio perficiens for that right would only be in the donors and no others. Further even these visitorial rights must be held to have been negatived by the 1920 Act for it specifically conferred such rights on, the Lord Rector and the Visiting Board and no others. Some argument was also based on some cases of the Supreme Court of the United States of America which depended upon the provisions of the Constitution of that country which Prohibits im pairment of contracts. It is profitless to refer to the cases cited in that behalf for our Constitution has no such fundamental right. Further we cannot under any circumstance read the 1920 Act as a kind of contrast. What does the word "establish" used in article 30(1) mean? In Bouvier 's Law Dictionary, Third Edition, Vol. I, it has been 851 said that the word "establish" occurs frequently in the, Constitution of the United States and it is there used in different meanings; and five such meanings have been given, namely (1) to settle firm , to fix unalterably, as to establish justice; (2) to make or form: as, to establish a uniform rule of naturalization; (3) to found, to create, to regulate , as, Congress shall have power to establish post offices; (4) to found, recognize, confirm or admit: as, Congress shall make no law respecting an establishment of religion; (5) to create, to ratify, or confirm, as We, the people, etc., do ordain and establish this constitution. Thus it cannot be said that the only meaning of the word "establish" is to found in the sense in which an eleemosy nary institution is founded and we shall have to see in what sense the word has been used in our Constitution in this Article. In Shorter Oxford English Dictionary, Third Edition, the word "establish" has at number of meanings, i.e. to ratify, confirm, settle, to found, to create. Here again founding is not the only meaning of the word "establish" and it includes creation also. In Webster 's Third New International Dictionary, the word "establish" has been given a number of meanings, namely, to found or base squarely, to make firm or stable, to bring into existence, create, make, start, originate. It will be seen that here also founding is not the only meaning; and the word also means "to bring into existence". We are of opinion that for the purpose of article 30(1) the word means "to bring into existence", and so the right given by article 30(1) to the minority is to bring into existence an educational institution, and if they do so, to administer it. We have therefore to see what happened in 1920 and who brought the Aligarh University into existence. From the history we have set out above, it will be clear that those who were in charge of the M.A.O. College, the Muslim University Association and the Muslim University Foundation Committee were keen to bring into existence a university at Aligarh. There was nothing in law then to prevent them from doing so, if they so desired without asking Government to help them in the matter. But if they had brought into existence a university on their own, the degrees of that university were not bound to be recognised by Government. It seems to us that it must have been felt by the persons concerned that it would be no use bringing into existence a, university, if the degrees conferred by the said university were not to be recognised by Government. That appears to be the reason why they approached the Government for bringing into existence a university at Aligarh, whose degrees would be recognised by Government and that is why we find section 6 of the 1920 Act laying down that "the degrees, diplomas, and other academic distinctions granted or conferred, to or on persons by the university shall be recognised, by the Government. . It may be accepted for present purposes that the M.A.O. College and the Muslim University Association and the Muslim University Foundation Committee were institutions established by the Muslim minority 852 and two of them were administered. by Societies registered under the Societies Registration Act, (No. 21 of 1860). But if the M.A.0. College was to be converted into a university of the kind whose degrees were bound to be recognised by Government, it would not be possible for those who were in charge of the M.A.0. College to do so. That is why the three institutions to which we have already referred approached the Government to bring into existence a uni versity whose degrees would be recognised by Government. The 1920 Act was then passed by the Central Legislature and the university of the type that was established thereunder, namely, one whose degrees would be recognised by Government, came to be established. It was clearly brought into existence by the 1920 Act for it could not have been brought into existence otherwise. It was thus the Central Legislature which brought into existence the Aligarh University and must be held to have established it. It would not be possible for the Muslim minority to establish a university of the kind whose degrees were bound to be recognised by Government and therefore it must be held that the Aligarh University was brought into existence by the Central Legislature and the Government of India. If that is so, the Muslim minority cannot claim to administer it, for it was not brought into existence by it. article 30(1), which protects educational institutions brought into existence and administered by a minority, cannot help the petitioners and any amendment of the 1920 Act would not be ultra vires article 30(1) of the Constitution. The Aligarh University not having been established by the Muslim minority, any amendment of the 1920 Act by which it was established, would be within the legislative power of Parliament subject of course to the provisions of the Constitution. The Aligarh University not having been established by the Muslim minority, no amendment of the Act can be struck down as unconstitutional under article 30(1). Nor do we think that the provisions of the Act can bear out the contention that it was the Muslim minority which was administering the Aligarh University, after it was brought into existence. It is true that the proviso to section 23(1) of the 1920 Act said that "no person other than a Muslim shall be a member of the Court", which was declared to be the supreme governing body of the Aligarh University and was to exercise all the powers of the University, not otherwise provided for by that Act. We have already referred to the fact that the Select Committee was not happy about this provision and only permitted it in the Act out of deference to the wishes of preponderating Muslim opinion '. It appears from paragraph 8 of the Schedule that even though the members of the Court had to be Muslims, the electorates were not exclusively Muslims. For example, sixty members of the Court had to be elected by persons who had made or would make donations of five hundred rupees and upwards to or for the purposes of the University. Some of these persons were and could 853 be non Muslims. Forty persons were to be elected by the Registered Graduates of the University, and some of the Registered Graduates were and could be non Muslims, for the University was open to all persons of either sex and of whatever race, creed or class. Further fifteen members of the Court were to be elected by the Academic Council, the membership of which was not confined only to Muslims. Besides there were other bodies like the Executive Council and the Academic Council which were concerned with the admi nistration of the Aligarh University and there was no provision in the constitution of these bodies which confined their members only to Muslims. It will thus be seen that besides the fact that the members of the Court had to be all Muslims, there was nothing in the Act to suggest that the administration of the Aligarh University was in the Muslim minority as such. Besides the above, we have already referred to section 13 which showed how the Lord Rector, namely, the Governor General had overriding powers over all matters relating to the administration of the University. Then there was section 14 which gave certain over riding powers to the Visiting Board. The Lord Rector was then the Viceroy and the Visiting Board consisted of the Governor of the United Provinces, the members of his Executive Council, the Ministers, one member nominated by the Governor and one member nominated by the Minister in charge of Education. These people were not necessarily Muslims and they had over riding powers over the administration of the University. Then reference may be made to section 28(2) (c) which laid down that no new Statute or amendment or repeal of an existing Statute, made by the University, would have any validity until it had been approved by the Governor General in Council who had power to sanction, disallow or remit it for further ' consideration. Same powers existed in the Governor General in Council with respect to Ordinances. Lastly reference may be made to section 40, which gave power to the Governor General in Council to remove any difficulty which might arise in the establishment of the University. These provisions in our opinion clearly show that the administration was also not vested in the Muslim minority; on the other hand it was vested.in the statutory bodies created by the 1920 Act, and only in one of them, namely, the Court, there was a bar to the appointment of any one else except a Muslim, though even there some of the electors for some of the members included non Muslims. We are therefore of opinion that the Aligarh University was neither established nor administered by the Muslim minority and therefore there is no question of any amendment to the 1920 Act being unconstitutional under article 30(1) for that Article does not apply at all to the Aligarh University. The next argument is based on article 26 of the Constitution. that Article Provides that every religious denomination or any 854 section thereof shall have the right (a) to establish and maintain institutions for religious and charitable purposes. (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. A question was raised Whether article 26 would take in its sweep educational institutions on the ground that such institutions are institutions for charitable purposes. It was urged that article 26 will not apply to educational institutions for there is specific provision in article 30(1) with respect to educational institutions and therefore institutions for charitable purposes in cl. (a) of article 26 refer to institutions other than educational ones. There is much to be said in favour of this contention. But we do not propose to decide this question for present purposes. We shall assume that educational institutions would also come within article 26(a) as institutions for charitable purposes. Even so we fail to see how article 26 helps the petitioners. Clause (a) of that Article gives the right to every religious denomination and the Muslim minority may for present purposes be assumed to be a religious denomination within the 'meaning of article 26 to establish and maintain institutions for religious and, charitable purposes. What we have said with respect to article 30(1) which gives right to minorities to establish and administer educational institu tions of their choice applies equally to cl. (a) of article 26 and therefore we are of opinion that the words, "establish and maintain" must be read conjunctively and it is only institutions which a religious denomination establishes which 'it can claim to maintain. ' It is not necessary to go into all the ' implications of the word "maintain"; it is enough for present purposes to say that the right to maintain institutions for religious 1 and charitable purposes would include the right to administer them. But the right under el. (a) of article 26 will only arise where the institution is established by a religious denomination and it is in that event only that it can claim to maintain it. As we have already held, the Aligarh University was not established by the Muslim minority and therefore no question arises of its right to maintain it within the meaning of cl. (a) of article 26. Reference is also, made to article 26 clauses (c) and (d) which give the right to a religious denomination "(c) to own and acquire movable and immovable property, and (d) to administer such property in accordance with law". So far as that is concerned it is enough to say that Muslim minority does not own the movable and immovable property which was vested in the Aligarh University by virtue of the 1920 Act and therefore cannot claim to administer any such,property. Clauses (c) and (d) give power to the religious denomination to own and acquire movable and immovable property and if it owns or acquires such movable or immovable property it can administer such property in accordance with law. But the Muslim minority did not own the property which was vested in, the Aligarh University on the date the Constitution came 855 into force, and it could not lay claim to administer that property by virtue of article 26(d). For the rest, there is nothing in the impugned amendment Acts which in any way bars the Muslim minority from owning or acquiring and administering movable or immovable property if it so desires for purposes of article 26. But it cannot lay claim under article 26(d) to administer the property which was vested in the Aligarh University by the 1920 Act, for it did not own that property when the Constitution came into force. The next attack on the constitutionality of the 1965 Act is under article 25 of the Constitution. That Article provides that "subject to public order, morality and health and to the other provisions of this Part all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. " We have not been able to understand how the amendment made by the 1965 Act in the 1920 Act in any way affects the tight freely to profess, practice and propagate religion. It may be added that 'learned counsel for the petitioners did not seriously press the contention that the 1965 Act was ultra vires as it violated article 25 of the Constitution. The next Article of the Constitution on which reliance is placed is article 29. That Article provides that "any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same". We have not been able to understand how the amendments made by the 1965 Act in the 1920 Act in any way interfere with the right of the Muslim minority to conserve any distinct language, script or culture which they might have. Here again we may add that no serious argument was raised before us on the basis of article 29. The next Article of the Constitution on which reliance is ,placed is article 14. Here again we are not able to appreciate what the discrimination is which has been brought about by the amendments of the 1965 Act. It seems that the charge of discrimination is based on the provisions of the Benaras Hindu University Act, which University is established ' by an Act of its own. We do not think that article 14 requires that the provisions in every, University Act must always be the same. Each University has problems of its own and it seems to us that it is for the legislature to decide ,what kind of constitution should be conferred on a particular university established by it. There can be no question of discrimination on the ground that some other University Acts provide for some different set up. Each university must be taken to be a class by itself and the legislature has a right to make such provision for its constitution as it thinks fit subject always to the provisions of the Constitution. The mere fact that certain provisions in a statute creating one university are different from provisions in another 856 statute creating another university cannot mean that there is discrimination. It has been urged in this connection that other universities, such as, Delhi, Agra, Allahabad, Patna and Benaras, have certain elective element while the amendment of 1965. has done away with the elective element so far as the Aligarh University is concerned. We have already said that we are not, concerned with the policy of the legislature in enacting the 1965, ' Act; nor are we concerned with the merits of the provisions of the '1965 Atc All that we need say is that simply because there is no elective element in one university while there is such element in" another university it cannot be said that there is discrimination, for, as we have said already, each university is a class by itself and may require a different set up according to the requirements and needs of a particular situation. We therefore. see no, force in the attack on the constitutionality of the 1965 Act on the ground that it is hit by article 14 of the Constitution. The next attack oh the constitutionality of the 1965 Act is based on article 19, and the argument seems to be that the statute deprives Muslims of their right to acquire, hold and,dispose of property and to form associations or unions. The argument has merely to be stated to deserve rejection. We cannot understand how the 1965 Act deprives the Muslim citizens of this country,, of the right to form associations or unions. There is nothing in the 1965 Act which takes away that right, nor is there anything in ' the 1 to 1965 Act which takes away the right of the Muslim citizens acquire, hold and dispose of property But it is said that the Muslim minority has been deprived of the right to manage the Aligarh University and the right to hold the property which was vested in the Aligarh University by the 1920 Act. There is no force in this contention either, for article 19(1)(c) does not give any right to any citizen to manage any particular educational institution. It only gives the right to a citizen to form associations or unions. That right has not been touched by the 1965 Act Similarly, article 19 (1)(f) does not give right to any citizen to hold property vested in a corporate body like the university. All that it provides is that all citizens have the right to acquire, hold and dispose of property of their own. There is nothing in the 1965Act which in any way takes away the right of the Muslims of this country to acquire, hold and dispose of property of their own Lastly reliance is placed on Art.31(1) which provides that "no person shall be deprived of his property save by authority, of law. " We may assume that the "Muslim: minority" is a person for purposes of article 31(1) and the petitioners have a right to file these writs on its behalf. It is urged Oat the Muslim minority has been deprived, of their property, namely. the property vested in the Aligarh University, by the 1965 Act inasmuch as the Court now is a very different body from the Court as it was, under, the 1920 Act. It is difficult to understand this argument. It is clear 857 from the history which we have set out above and from the provisions of the 1920 Act that the two societies which were registered under the , namely, the M.A.O. College and the Muslim University Association, voluntary surrendered whatever property they had including the college buildings etc. to the corporate body created by the 1920 Act, namely, the Aligarh University. The third body, namely, Muslim University Foundation Committee also surrendered the money it had collected in pursuance of the Government direction that it will only establish a university if rupees thirty lakhs were collected for the purpose. The same was apparently collected, the major part from Muslims but some contribution was made by non Muslims also. That fund was also made over to the corporate body, namely, the Aligarh University which was brought into existence by the 1920 Act. This is clear from the preamble of the.1920 Act and also from the provisions contained in section 4 and section 7 thereof. Therefore, when the Constitution came into force on January 26, 1950, there was no property which was held by the Muslim mino rity as such, for the property had already vested in the corporate body, namely, the Aligarh University brought into existence by the 1920 Act. Even assuming that before 1920, the property which was surrendered to the Aligarh University was the property of the Muslim minority, what happened in 1920 put an end to the rights of the Muslim minority to hold the property and all that was done with the consent of those who can be said to have held the proPerty on behalf of the Muslim minority before 1920. There is no attack on the 1920 Act and it is not urged that any part of that Act was in any way ultra vires the Constitution Act which was then in force. Therefore, when the present Constitution came into force on January 26, 1950 the Muslim minority did not have any right in the property which was vested in the Aligarh University by the 1920 Act. The 1965 Act has made no change in the ownership of the property which was vested, in the Aligarh University. Even after the 1965 Act came into force, the property still continues to be vested in the same corporate body, (namely the Aligarh University). In the circumstances, it cannot be said that the 1965 Act deprived the Aligarh University of the property vested in it. As for the Muslim minority they had already given up the property when the Aligarh University was brought into existence by the 1920 Act and that property was vested by the Act in the Aligarh University. The Muslim minority cannot now after the Constitution came into force on January 26, 1950 lay claim to that property which was vested in the Aligarh University by the 1920 Act and say that the 1965 Act merely because it made some change in the constitution of the Court of the Aligarh University deprived the Muslim minority of the property, for the simple reason that the property was not vested in the Muslim minority at any time after the 1920 Act came into force. The argument that there has been breach of article 31(1) has therefore no force. 858 We are therefore of opinion that there is no force in any of these petitions. It is not disputed that the 1951 and 1965 Acts are within the competence of Parliament unless they are hit, by any of the constitutional provisions to which we have referred above. As, they are not hit by any of these provisions, these Acts are good and are not liable to be struck down as ultra vires the Constitution. The petitions therefore fail and are hereby dismissed. In the circumstances we make no order as to costs. V.P.S. Petitions dismissed. [/INST]The respondent was employed as a Tracer in the Engineering Department in the erstwhile Hyderabad State where the cadre of Tracers consisted of both matriculates as well as non matriculates and no distinction was made between them. As a result of the reorganisation of States in 1956 he was allotted to the appellant Mysore State where the cadre of Tracers was reorganised into two, ,one consisting of matriculate Tracers in a higher scale of pay and the other of non matriculates in a lower scale. The respondent was given the option either to remain in his old Hyderabad scale of pay or to accept the new scale applicable to non matriculates. He refused to exercise the option and claimed that the cadre of Tracers should not have been divided into two grades and that no distinction should have been made between matriculates and non matriculates. His claim was rejected by the Superintending Engineer on March 19, 1958 and he filed a writ petition in the High Court praying that the order of the Superintending Engineer be quashed and for the issue of writ in the nature, of mandamus to fix his pay in the scale prescribed for matriculate Tracers. The High Court allowed the petition, holding that there was no valid reason for making a distinction as both matriculate and non matriculate Tracers were doing the same kind of work and the distinction made was in violation of articles 14 and 16 of the Constitution. On appeal to this Court, Held: Allowing the appeal. Higher educational qualifications are relevant considerations for fixing a higher pay scale and the classification of two grades of Tracers in the new Mysore State was not violative of articles 14 or 16 of the Constitution. Articles 14 and 16 form part of the same constitutional code Of guarantees and supplement each other. In other words article 16 is only an instance of the application of the general rule of equality laid down in article 14 and it should be construed as such. Hence there is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. [411E F] 408 The provisions of article 14 or article 16 do not exclude the laying down of selective tests, nor do they preclude the Government from laying down qualifications for the post in question. Such qualifications need not be only technical and it is open to the Government to consider the general educational attainments of the candidates and to give preference to candidates who have better educational qualifications besides the technical proficiency of a Tracer. [411G412B] General Manager, Southern Railway vs Rangachari, ; , 596, referred to. There was no force in the respondent 's contention that because of his having been in one grade with matriculate Tracers in the old State and, on his being made to work in a separate non matriculate grade in the new State his conditions of service were adversely affected in violation of section 116(7) of the . Furthermore the basis of promotion was merit and seniority based on the interstate seniority list prepared under the provisions of the Act; thus the respondent 's seniority had not been affected and he was not deprived of any accrued benefits. [412F G; 414C D] </s>

<s>[INST] Summarize the judgementition (Crl.) No. 1414 of 1979. Under Article 32 of the Constitution. Ram Jethamalani and Harjinder Singh for the Petitioner. U. R. Lalit, E. C. Agarwala and M. N. Shroff for the Respondent. The Judgment of the Court was delivered by KAILASAM, J. The petitioner is brother of Virendra Ambalal Siroya who was detained by an order of detention dated 31 8 1979 issued by Additional Secretary to the Government of India under section 3(1) of the . The detenu was served with the grounds of detention on 5 9 1979. The counsel for the detenu made an application on 17 9 1979 for supply of documents, and statements recorded and relied on in the grounds of detention. Before the documents were supplied, an incomplete representation was made by the detenu on 22 9 1979. The documents were supplied on 25 9 1979, 27 9 1979 and 3 10 1979. The detenu again made a second representation on 5 10 1979 and requested that the order of detention may be revoked by the Central Government. Mr. A. K. Sen, the learned counsel for the petitioner, submitted that the representation requesting the Central Government to order the revocation under section 11 of the Act was not forwarded by the detaining authority to the Central Government and as such the detention is illegal. In the memorandum of grounds in his writ petition at paragraph XIV the detenu submitted that he made representation to the Central Government and that the Central Government had not considered the representation at all. In paragraph XV the detenu contended that the second representation was an application for revocation under section 11 of the Act wherein he specifically requested that the Central Government should revoke the order. The said representation was not considered by the Central Government. It was submitted that non consideration of the representation by the Central Government vitiated the detention order. In reply the detaining authority stated in paragraph 15 as follows: "It is submitted that the consideration of representation of the detenu by the detaining authority is perfectly valid and legal and in accordance with the law. It is, however, denied that merely because it was not considered by the Central Government, the detention order is vitiated in any way." 1080 It is clear from the statement that the representation was not forwarded to the Central Government. The plea on behalf of the detaining authority is that merely because the representation was not considered by the Central Government, the detention order would not be vitiated. The representation of the detenu dated 5 10 1979 is marked as Annexure 'E '. It states that it is a further representation in the matter of his detention. After setting out the various grounds, the relief asked for in paragraph 5 runs as follows: "The petitioner prays that: (a) That the order of detention be revoked by the Central Government. (b) This further representation be placed before COFEPOSA Advisory Board alongwith the earlier representation. (c) That the Advisory Board be pleased to report to the Central Government to revoke the impugned order of detention. " The request of the detenu is clear: He prayed for the revocation of the order of detention by the Central Government. It is not the case of the detaining authority that he did not understand the representation as being intended for the Central Government. On the other hand, his plea is that the mere fact that the Central Government has not considered the representation would not vitiate the order of detention. The detaining authority is the Additional Secretary, Government of India, Ministry of Finance and it is not disputed that a communication to that Central Government can be properly addressed by sending it to the Additional Secretary, Government of India, Ministry of Finance. It is admitted that the representation was properly addressed to the Central Government. The Central Government is empowered to revoke the order of detention at any stage. It was submitted that the order of revocation by the Central Government can only be passed after the order of detention in confirmed by the detaining authority and the Advisory Board. The power conferred on the Central Government by section 11 is wide enough to enable the Central Government to revoke the detention order at any stage for the words used are a detention order may at any time be revoked or modified. The power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power. Any petition for revocation of an order of detention should be dealt with reasonable expedition. In this case it is the main ground urged 1081 on behalf of the detenu that the petition of the 5th of October, 1979 was not forwarded to the Central Government and consequently no order has been passed on that petition up to date. In the course of arguments, Mr. A. K. Sen on behalf of the detenu submitted that even the earlier representation was addressed to the Central Government which was also not forwarded. We do not think that we should entertain this plea as it was not pleaded in the memorandum of grounds that the first representation was to the Central Government but made for the first time in the Court before us. In any event, it is clear that a representation properly addressed by the detenu to the Central Government was not forwarded to the Central Government and as such no action had been taken up to date. It may be permissible for the Central Government to take reasonable time for disposing any revocation petition. But it would not be justified in ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government. It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the petition, declining to order for revocation. The question that arises for consideration is, as to what will be the consequence if a properly addressed petition is not forwarded to the Central Government and as such left unattended for a period of nearly four months. We feel that in such circumstances the detention cannot be justified as being according to the procedure. In the circumstances we do not feel that we will be justified in sending the representation to the Central Government for disposal at this stage. Taking all the facts and circumstances of the case, we feel that the continued detention of the detenu cannot be held to be according to procedure. His release has already been ordered. P.B.R. Petition allowed. [/INST]The accused (appellant) who was charged with offences under section 5(1) (d) of the Prevention of Corruption Act and section 161 of the Penal Code was convicted and sentenced by the Special Judge. The convictions and sentences were confirmed by the High Court. The prosecution alleged that the scooter rickshaw of the complainant driven by his driver was one day involved in a traffic accident and the vehicle was taken to the police station by the accused who was a police constable. The complainant obtained orders of the Magistrate for its release but the accused declined to release the vehicle unless he was paid a sum of Rs. 60. The complainant was not prepared to pay the sum demanded. He then went to an Inspector of the Anti Corruption Department and lodged a complaint that the accused was demanding illegal gratification from him for the release of his scooter rickshaw which was ordered by the Magistrate to be released. The prosecution further alleged that the Inspector called two panch witnesses and after noting down the numbers of six ten rupee currency notes given by the complainant, treated them with phenol phthalene powder and gave them to the complainant. It was arranged that the complainant should hand over the currency notes to the accused and should thereafter make a signal at which the Inspector and panch witnesses would enter the room. The complainant carried out the plan as arranged and gave the call on which the Inspector and panch witnesses entered the room of the accused. On seeing the Inspector, the accused removed the currency notes from his pocket and flung them across the wall into the adjoining room. The notes were collected and when compared with the numbers noted earlier, they tallied. The hands of the accused were then dipped in sodium bicarbonate solution which, colourless earlier, turned pink. Similarly the handkerchief in the right side pocket of the trousers of the accused was removed and also dipped in sodium bicarbonate solution. That too turned pink. Before the trial court many of the witnesses turned hostile and one of the panch witnesses became mentally deranged. In appeal it was contended before this Court that (1) the courts below had made free use of the statements made by the witnesses in the course of investigation as if they were substantive evidence and, if they were excluded, the rest of the evidence would not be sufficient to draw the presumption under 1054 section 4(1) of the Prevention of Corruption Act, (2) the fact that the Inspector was the very police officer who laid the trap, should be sufficient to insist on corroboration of his evidence. Dismissing the appeal, ^ HELD: 1(a) The courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation. [1059E] (b) Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a police officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witnesses in the manner provided by section 145 of the Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re examination of the witness for the limited purpose of explaining any matter referred to in his cross examination. The only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of section 32(1) of the Evidence Act or permitted to be proved under section 27 of the Evidence Act. [1059A C] (c) The contention of the prosecution that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of "proved" in section 3 of the Evidence Act has no substance. The definition of the term "proved" does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred. [1059G] 2(a) The evidence of the Inspector is entirely trustworthy and there is no need to seek any corroboration. [1059H] (b) There is no rule of prudence which has crystalized into a rule of law, nor any rule of prudence which requires that the evidence of such police officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally in the facts and circumstances of another case the court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule nor can there be any precedential guidance. [1060A B]. In the instant case the proved facts were that the complainant made a report to the Inspector, and currency notes whose numbers were noted and which were treated with phenol phthalene powder were handed over to the complainant. The complainant went into the accused 's room and came out after a short while giving the agreed signal. When the Inspector rushed in, the accused threw the currency notes across the wall into the adjoining room. His hands and the handkerchief when dipped in sodium bicarbonate solution turned pink and lastly instead of giving a plausible explanation as to how the phenol phthalene powder came to his hands and the handkerchief in his pocket all that he could say was that he "knew nothing about it". From all these facts the only inference that follows is that currency notes were obtained by the accused from the complainant. It is not necessary that the passing of 1055 money should be proved by direct evidence, it may also be proved by circumstantial evidence. The events which followed in quick succession in the present case led to the only inference that the money was obtained by the accused from the complainant. Under section 114 of the Evidence Act the Court may presume the existence of any fact which is likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to this section is that the Court may presume that a person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. So too in the facts and circumstances of the present case the Court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from the complainant who, a few minutes earlier, was shown to have been in possession of the notes. Once it is found that the accused had obtained the money from the complainant the presumption under section 4 (1) of the Prevention of Corruption Act is immediately attracted. The presumption is rebuttable, but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the courts below. [1061D F] Sita Ram vs The State of Rajasthan AIR 1975 SC 1432; Suraj Mal vs The State (Delhi Administration) AIR 1979 SC 1408 held inapplicable. There is no force in the contention that persons holding clerical posts could not be called independent witnesses on the ground that they would be under fear of disciplinary action if they did not support the prosecution case. The respectability and verasity of a witness is not necessarily dependent upon his status in life and it cannot be said that clerks are less truthful and amenable than superior officers. [1060E] </s>

<s>[INST] Summarize the judgementCivil Miscellaneous Petitions Nos. 34114 15 of 1987 in S.L.P. Nos. 5678 79 of 1987. From the Judgment and Order dated 18.8.1987 of this Hon 'ble Court in S.L.P. Nos. 5678 79 of 1987. Shanti Bhushan, G.L. Sanghi and S.R. Srivastava for the Petitioners. PG NO 1019 Somnath Chatterjee, Tapas Ray, A.K. Mitra, B.P. Singh, Mrs. Pratibha Jain, S.K. Jain, J.R. Dass and D.K. Sinha for the Respondents. The following Order of the Court was delivered by SEN, J. By these applications the applicants Calcutta Youth Front and its President Hridayanand Gupta pray for committing for contempt respondents Nos. 3 9 under the , namely: 1. Kamal Basu, Mayor & Administrator, Calcutta Municipal Corporation; 2. R.K. Prasannan, Municipal Commissioner; 3. B.C. Mitra, Municipal Engineer in Chief; 4. B.K. Roy, Deputy Municipal Commissioner (Sr. ); 5. Sarkar, Chief Municipal Architect & Town Planner; 6. A.K. Goswami, District Engineer; 7. Dr. S.K. Chowdhury, Chief Municipal Health Officer, as well as the lessees respondents Nos. 13 and 14 Jugal Kishore Kajaria in his individual capacity as well as as Director, Messrs Happy Homes & Hotels Private Limited. The applicants alleged that these respondents were guilty of contempt in that they had in breach of the terms and conditions laid down by this Court in its order dated August 18, 1987 in SLPs 5678 79/87 See JT permitted the lessees Messrs Happy Homes & Hotels Pvt. Ltd. to construct an underground airconditioned market at Satyanarayan Park, and that they had connived and acquiesced in permitting the lessees to construct four pucca structures 15 feet in height above the road level partly covering the surface of the Park and covering a major portion of the surface of the Park. It is alleged that the said constructions constitute gross and deliberate violation of the undertaking of the respondent No. 13 in his supplementary affidavit dated July 25, 1987 and the terms of the Court 's order dated October 18, ]987. Applicant No. 2 Hridayanand Gupta in his affidavit dated July 14, 1988 placed reliance on the following observations made by this Court in its order: "Under the scheme there would be no construction on the park; the underground market would be under the park and not over the park. The only difference is that the park would be re located at a height of 6 feet above the road level easily accessible by three separate staircases. Under the scheme, Satyanarayan Park would become a real park with a lush green garden with tall trees. shrubs etc. and a centre for relaxation of the thickly congested Burrabazar locality and in particular for the children as a playground. " PG NO 1020 It was alleged that the assertion of the contemnors before this Court, as was before the High Court, was that tali trees and/or shrubs would be planted apart from the lush green lawn on the eastern garden under the direct supervision of the Agri Horticultural Society of India, Alipore as per its letter dated July 25, 1987. This, according to the applicants, was nothing but a hoax. The applicants allege that the aforesaid respondents have committed deliberate violation of the terms and conditions of this Court 's order by permitting the lessees to construct the aforesaid pucca structures of lofty heights which, apart from the four storeyed building, cover a substantial portion of the surface of the park which would make it literally impossible to have a terrace garden with a lush green lawn with tall trees, shrubs etc. as a place of relaxation, and therefore liable to be committed for contempt. They in the meanwhile pray that respondents Nos. 13 and 14, the lessees, be restrained from subletting the underground air conditioned park to anyone in the greater public interest. These allegations were controverted by the counter affidavit of Jagdish Kanjilal, Deputy Chief Engineer (Design), Planning & Development Department of the Municipal Corporation dated February 10, 1988 and that by the lessees Jugal Kishore Kajaria impleaded as respondents Nos. 13 and 14. The applicants filed rejoinders to these counter affidavits. Having carefully gone through the applications for contempt, the counter affidavit of respondents Nos. 13 and 14 and that filed on behalf of the Municipal Corporation, and having regard to the fact that the allegations made in the applications involve controverted facts, we thought it expedient to request Shri Justice Umesh Chandra Banerjee by our order dated April 21, 1988 to hold an enquiry as to whether there was a violation of the judgment and order passed by him, as affirmed in letters patent appeal by the Division Bench and also by this Court and directed him to forward his findings by the second week of July 1988 that direction of ours was not to be construed as meaning that there was a breach of the terms and conditions laid down in the judgment. It was further directed that the High Court shall not, during the pendency of the enquiry, pass any interim order which would tend to obstruct or delay the completion of the construction work of the underground airconditioned market. In compliance therewith, Shri Justice Umesh Chandra Banerjee has submitted his report holding that there was no violation of his judgment. The learned Single Judge not only heard the parties but also took the trouble of personally visiting the park and note his observations on personal inspection. In the report the learned Judge records his visual impression in the following words: PG NO 1021 "Two open staircases have been provided for an entry onto the park apart from the three other covered entrances which would facilitate entry onto both the Air Conditioned Market as well as to the park. The covered entrances are more or less at a height of about 15 ' ft. There are three other units for Air Handling Plants which are also more or less at a height of about 15 ' ft. On the eastern side there is a storied building and on the top, a built in water reservoir has been erected and atop the built in water reservoir there are existing two huge water cooling tanks. The 4 storied building admittedly has been constructed in place and stead of a one storied building which was existing prior to the licensing agreement and popularly known as Service Block". On visual examination it appears that certain plant and machinery along with a switch room are located and housed in the service block." The learned Judge then goes on to add: "On a close look at the entire nature of construction it cannot be said that the area looks totally green with some trees on one side. shrubs and other small trees all around. In my judgment dated 17th July 1986 l observed: "Lovely lush green park soothing to the eyes would be visualised since the same would be at a raised level. Tall trees have already been re planted. The entire area in question would have a different look. The sceptics might say that this is too much to expect but optimism prompts judicial conscience to allow such a project so that prospect of having such an area in the heart of a commercial centre in the city of Calcutta is not ruled out". " The learned Judge expresses satisfaction that his expectations for beautification of the Metropolitan City of Calcutta were not belied, in these words: "It seems that the judicial optimism has paid a rich dividend in this particular case and the entire area in fact is having a decent and sophisticated look. There was not a blade of grass on the park prior to the licensing agreement. PG NO 1022 But now a lush green lawn is visible and the place in fact has turned out to be a place for recreation of tax payers place for recreation for the children of the locality and a place to wither away the time for the old and aged people. " Along with the report he has annexed a photograph which depicts the existing state of Satyanarayan Park which was once a dark, dangerous place frequented by persons with criminal record, has now turned out to be a beauty spot in a thickly congested area like Burrabazar. It shows that all the work of construction including the covered staircases together with the open staircase, including the four storeyed service block ' is complete. The photograph depicts the state of affairs as to the shape, size and dimensions of these structures and gives an overall view of the proposed park atop the underground air conditioned market at Satyanarayan Park. The learned Single Judge accordingly records a finding that by the raising of these constructions, question of committing any contempt of his judgment does not and cannot arise. We find no justification to come to any different conclusion. At the hearing Shri Shanti Bhushan. learned counsel appearing for the applicants was gracious enough to accept that the re location of the park at a height of 8 feet above the road level instead of 6 feet is not a matter of moment because a few inches more or less here or there is hardly of any significance. He however confined his submissions to two aspects. namely (i) the raising of the lofty structures over the staircase leading to the underground airconditioned market constitutes a breach of the conditions laid down. and (ii) the construction of a four storeyed building covering an area of the park is a flagrant violation of the Court s order. We are afraid. the contention cannot be accepted. The so called lofty structures which we may call bunkers are nothing but the covered space over the staircases from three directions leading to the underground market. The learned counsel perhaps is not right in assuming that the staircases go upwards. Actually. the staircases provide an approach to the public to the undergroud airconditioned market and they go downwards. The staircases would not possibly be kept open and exposed to the sky having regard to the fact that the underground market is centrally airconditioned. We can take judicial notice of the tact that the central air conditioning plant would not be functional unless there were these bunkers constructed over the staircases. That is how the staircases are covered at the Palika Bazar in New Delhi. Furthermore, the bunkers have been constructed according to the architect 's plan duly sanctioned by the Municipal corporation. PG NO 1023 Shri Somnath Chatterjee, learned counsel for respondents Nos. 13 and 14 rightly draws our attention to the finding of the learned Single Judge indicating that the four storeyed building has been constructed to locate the staff quarters. Since the underground market is fully air conditioned, it is essential that the maintenance staff should be located in the park itself. Originally, there was a single storeyed building covering an area of 150 square metres. The newly constructed four storeyed building now covers only 72 square metres i.e. practically half the area earlier occupied. The learned Single Judge has also pointed out that in cl. (3) of the agreement it has been mentioned that the existing fittings and accessories and structures will have to be dismantled and the dismantled materials will be the property of the Municipal Corporation. (4) provides that prior to the aforesaid demolition of the existing staff quarters and other infra structures like pump room etc. which are in use, alternative arrangement shall have to be made by the licensee 'for re location of staff quarters and other infra structures elsewhere which are necessary for maintaining the existing service during the construction period and then finally to rehabilitate them in the premises by the licensee. The agreement further provides that the cost of temporary re location and final rehabilitation shall be borne by the licensee. The learned counsel pointed out that Shri Justice Umesh Chandra Banerjee in his judgment has also made a mention of overhead water tanks. It has been recorded therein as follows: "In any event. the scheme has been approved by the West Bengal Fire Service since adequate provisions have been made for supply of water in case of necessity. 55000 gallons of water will be available at the park, once the scheme is implemented. Apart therefrom, a further 38000 gallons of water will be available at the Lily Pool and 17000 gallons of water at the overhead water tanks In the premises my judgment records therefore: (a) that there be some structures atop the underground market, and (b) that there would also be overhead tanks with the storage facility of about 17000 gallons of water. Question of there being an overhead tank would not arise unless there are constructions atop the underground market. PG NO 1024 The other aspect of the matter which ought also to be noticed is that the licensing agreement itself provides for approval of the drawing and design by the licensor and in fact drawings and designs as appears from the records were approved and constructions were effected as per the plan sanctioned by the Calcutta Municipal Corporation in accordance with the Building Rules. There is no dispute as to the factum of such a construction being made in accordance with the sanctioned plan." Shri Chatterjee further drew our attention to paragraph of the judgment delivered by the Division Bench wherein it has been stated: "After demolishing the old structures the trust had laid a public park commonly known as Satyanarayan Park having approximately an area of 20,000 sq. The Calcutta Improvement Trust had made over the said park to the Calcutta Corporation now known as Calcutta . Municipal Corporation (The Corporation for short) for the purpose of maintenance at its own cost. This fact also finds mention in the order delivered by this court. It would appear that the area of the said park initially was about 28 cottahs corresponding to 20,000 square feet. In the licence it appears that the area mentioned in 2500 square metres equivalent to 26,900 square feet. As such. by no stretch of imagination can it he asserted that a substantial portion of the park has been covered by encroachment and the statement that there cannot be a park or a terrace garden as visualised by this Court 's order runs counter to the existing stale of affairs. To sum up. the learned Single .judge very rightly and properly addressed himself to the question whether there was a breach of the terms and conditions laid down in his Judgment. leaving the question open for this Court to determine whether there was any deviation from the conditions set forth by the Division Bench or by this Court in appeal. We fully concur with the finding and reasoning of the learned Single Judge as also his approach There can be no doubt whatever that there is no breach either of the conditions laid down by this Court or the Division Bench of the High Court. The construction of the hunkers over the there staircases leading to the underground airconditioned market as well as of the four storeyed building were in the architect 's plan and were expressly permitted in the licence and formed part of the sanctioned plan. It was therefore present in the mind of all concerned including the Chief Municipal Architect & Town PG NO 1025 Planner as also of the Administrator of the Municipal Corporation while planning th construction of the underground airconditioned market that these structures would be built up. As already stated, the construction of the bunkers over the three staircases was a matter of absolute necessity to make the central airconditioning plant fully functional. That is how a fully underground airconditioned market can be conceived, as has been done in the Palika Bazar in Connaught Place, New Delhi. As regards the four storeyed structure, the construction thereof does not constitute breach of the conditions laid down. It has already been stated that the four storeyed structure is built to provide residential quarters to the staff and actually now it occupies much lesser space than before. In the premises, the allegation made by the applicant that the aforesaid structures cover a substantial portion of the surface of the park which cannot now be turned into a terrace garden with a lush green lawn,is wholly unfounded. We have already mentioned that the area of land covered by structures acquired by the Calcutta Improvement trust for laying of a park in the Burrabazar area was 20,000 square feet whereas the area of the park in question as mentioned in the licence is 26,900 square feet. These peripheral structures now built are therefore well outside the area of the Satyanarayan Park proper. The applications for contempt must therefore fail and are dismissed with costs. We cannot but deprecate the attempts made by the applicants to move the High Court as well as this Court time and again on one pretext or another in a frantic effort to prevent the construction of the underground airconditioned market at Satyanarayan Park which is a part of the beautification scheme of the great metropolitan city of Calcutta by the State Government of West Bengal where a party in opposition is in power, to provide civic amenities to the citizens. It is fortunate that these attempts by the making of false and vexatious applications to hold up the construction of the underground airconditioned market, the estimated cost of which is about Rs. 4.50 crores, have been frustrated and what was conceived of a development scheme has come to reality. The work of construction is nearing completion, as is evident from the photograph annexed to the report of the learned Single Judge, and we hope and trust that the underground airconditioned market would be commissioned in the near future, and the terrace garden over the market will provide to the amenities to the people living in the locality as a place for recreation besides playground for the children. H.S.K. Petitions Dismissed. [/INST]The applicants filed a contempt petition under Contempt of Courts Act against the respondents (some high officers of the Calcutta Municipal Corporation) and the lessees, respondent Nos. 13 and 14, who were given contract for construction alleging that they were guilty of contempt in that they had constructed the underground market in breach of the terms and conditions laid down by this Court in its order dated 18th August, 19X7. The applicants submitted that the officers had permitted the lessees, to construct an underground air conditioned market at Satyanarayan Park and that they had connived and acquiesced in permitting the lessees to construct four pucca structures of 15 feet in height above the road level partly convering the surface of the park and covering a major portion of the surface of the Park. They also alleged that the construction of the four storeyed quarters (service block) were also in violation of the conditions. The respondents controverted these facts. The matter was referred to the Single Judge of the High Court who had earlier heard the matter and whose decision had been confirmed by a Division Bench of the High Court and by this Court, to hold an enquiry as to whether there was a violation of the judgment and order passed by him The Learned Single Judge personally visited the site and heard the parties. He submitted his report containing his visual impressions and holding that there was no violation of any directions given by him in his judgment and the question of committing any contempt of the judgment does not and cannot arise, He left the question open for this Court to determine whether there was any derivation from the conditions set forth by the Division Bench order and by this Court, PG NO 1017 PG NO 1018 Rejecting the contentions of the applicants, aggreeing with the findings and reasoning of the Single Judge and dismissing the contempt application, this Court, HELD: There can be no doubt whatever that there is no breach either of the conditions laid down by this Court or the Division Bench of the High Court. The construction of the so called lofty structures over the staircase leading to the underground market, which we may call bunkers, as well as of the four storeyed building were in the architect 's plan and were expressly permitted in the licence and formed part of the sanctioned plan. It was therefore present In the mind of all concerned including the Chief Municipal Architect and Town Planner as also of the Administrator of the Municipal Corporation while planning the costruction of the underground air conditioned market that these structures would be built up. As already stated, the construction of the bunkers over the three staircases was a matter of absolute necessity to make the central air conditioning plant fully functional. As regards the four storeyed structure, the construction thereof does not constitute a breach of the conditions laid down. It has already been stated that the four storeyed structure is built to provide residential quarters to the staff and actually now it occupies much lesser space than before. In the premises, the allegation made by the applicants that the aforesaid structures cover a substantial portion of the surface of the park which cannot now be turned into a terrace garden with a lush green lawn, is fully unfounded. [1024G H; 1025A C] The Court cannot but deprecate the attempts made by the applicants to move the High Court as well as this Court time and again on one pretext or another in a frantic effort to prevent the construction of the underground air conditioned market at Satyanarayan Park which is a part of the beautification scheme of the great Metropolitan City of Calcutta by the State Government of West Bengal where a party in opposition is in power, to provide civic amenities to the citizens It is fortunate that these attempts have been frustrated and what was conceived of a development scheme has come to a reality. [1025E G] </s>

<s>[INST] Summarize the judgementminal Appeal No. 248 of 1960. Appeal by special leave from the judgment and order dated October 31, 1960, of the Rajasthan High Court in D. B. Criminal Appeal No. 290 of 1960 and D. B, Criminal Murder Reference No 7 of 1960. 591 R. L. Anand, C. L. Sareen and B. L. Kohli, for the appellants. S.K. Kapur and T. M. Sen, for the respondent 1961. September. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave from the judgment of the Rajasthan High Court. It arises out of an incident in which Bhimsen was murdered on May 8, 1959 at Mandi Pili Bangan shortly before 3 P.m. The prosecution story briefly was, that there was bad blood between Ramratan appellant and the members of the family of Bhimsen on account of panchayat elections in which they had supported rival candidates. Another cause for. enmity was that some time before the occurrences Ramratan appellant was prosecuted under section 307 of the Indian Penal Code and Bhimsen was cited as a prosecution witness in that case and Ramratan did not like that. Bhimsen and his father brought some gram for sale on the night between May 7/8, 1959, to Pili Bangan. Bhimsen returned to the village to bring more grain and came back at about10/11 A.M. on the 8th on his tractor trolly along with his brother Ram Partap. The gram was to be sold 'through Roopram and was stacked in front of his shop in the mandi. Ram Partap was apparently not interested in the sale; and had wandered away leaving his father Jawanaram and his brother Bhimsen at the shop. Shortly before 3 p.m. while the gram was being weighed by Lekhram weighman, the three appellants and two others (namely, Moman and Ramsingh) came up there armed with ,guns. Ramratan shouted that the enemy should not be allowed to escape as Bhimsen was trying to enter the shop of Roopram to save himself on seeing these persons. Before, however, Bhimsen could enter the shop of Roopram, Ramratan came in between and fired at him from a distance 592 about 5 feet. Bhimsen got injured and fell down and died soon after. Jawanaram raised his hands and asked the assailants not to kill Bhimsen but Hansraj appellant fired at him causing a wound on his left hand,. which resulted in a compound fracture. Maniram also fired at. Jawanaram but he dropped on the ground and pellets hit Lekhram weighman who was standing behind Jawanaram. Thereafter all the assailants ran away. Roopram had shut up his shop when the incident took place and he only came out When everything was over. Jawanaram asked him to send telegram to police station Suratgarh and told him the names of the five assailants. Thereafter jawanaram started for the police outpost in Pili Bangan to make a report; but Ramsingh constable met him on the way at a short distance from the shop of Roopram. Thereupon Jawanaram made a report (exhibit P 1) to Ramsingh then and there. While this report was being recorded, Ram Partap also turned up. After the report had been recorded, Jawanaram was sent to the hospital where his injuries were examined at 3 30 P.m. Ramsingh constable went to the spot after recording the report and found the dead body of Bhimsen lying in front of Roopram 's shop It appears that head constable gone outside and returned at 5 P.M. and started investigation thereafter. The Sub inspector arrived on the scene at about 6 p.m. and took over the investigation and. completed it. Thereafter the three appellants and two others who have been acquitted by the Sessions Judge were prosecuted for this murder. The case of the appellants was that they had not committed this offence and that they had been implicated on account of enmity They examined no evidence in defence. The main prosecution evidence consisted of the statements of Jawanaram, his son Ram Partap, Roopram and Lekhram as to what happened at the spot. Jawanaram related the whole story as given above, Ram Partap said that he had come near 593 the spot on seeing the assailants going that way and hid himself at some distance and saw the incident from there. Roopram 's statement was that he shut up his shop as soon as he heard some noise outside and did not see the assailants. When he came out, however, he was told by Jawanaram the names of the five assailants and saw Bhimsen lying dead. He had also heard three reports of gunshots from inside his shop. He saw Jawanaram and Lekhram were also there injured and Jawanaram went away shortly after for making the report. Sometime thereafter the police came to the spot and started investigation. Lekhram stated that he was there weighing the gram. Four or five persons armed with guns came there and shouted and fired two or three times with the result that Bhimsen, Jawanaram and he were injured and Bhimsen died immediately. But he was unable to say whether the five persons in the dock were the assailants. Because of certain answers that he gave in cross examination this witness was treated as hostile by the prosecution. The Sessions Judge relied on the statement of Jawanaram and convicted the three appellants. He however, gave the benefit of doubt to the other two assailants and acquitted them. He did not rely on the statement of Ram Partap as he was of the view that Ram Partap did not arrive in the Mandi till about 6 P.m. He also did not rely on the statement of Lekhram, which in any case was useless in so far as the connection of the appellants with the crime was concerned. As to Roopram he held that his statement that Jawanaram had told him the names of the assailants immediately after the incident was over when he came out of his shop could not be used as corroborate on of the statement of Jawanaram under section 157 of the Indian Evidence Act, as Jawanaram had not said in his statement in Court that he had told Roopram the names of the five assailants He was also doubtful whether the report (exhibit P 1) was 594 recorded at 3 P.m. and thought that it might have been recorded any time up to 6 P.m. But even so he placed full reliance on the evidence of Jawanaram only and convicted the three appellants, sentencing Ramratan to death and the other two to imprisonment for life. This was followed by an appeal to the High Court by the convicted persons. The Sessions Judge also made a reference for the confirmation of the sentence of death passed on Pamratan. The High Court dismissed the appeal. It also accepted the evidence of Jawanaram in the main. The High Court was further of opinion that Ram Partap was in Pili Bagan when the incident took place having come there with his brother Bhimsen at about10/11 A.M.; but the High Court did not think it fit to rely on his evidence as to the actual incident, for it thought that he had not been able to see it properly from where he said he was hiding. Further the High Court did not consider the evidence of Lekhram of much value as if, did not connect the appellants with the crime. But the High Court was of the opinion that Roopram 's statement that Jawanaram had told him immediately after the occurrence the names of the five assailants was admissible in evidence and could be used to corroborate the statement of Jawanaram. The High Court thought that this statement of Roopram was admissible under section 6 as well as under a. 157 of the Evidence Act. The High Court therefore upheld the conviction on the evidence of Jawanaram corroborated as it was by the evidence of Roopram. The High Court having refused to grant a certificate, the appellants applied to this Court for special leave which was granted; and that is how the matter has come up before us. Two main contentions have been urged before, us on behalf of the appellants. In the first place, it is urged that the High Court was not right in the view that the statement of Roopram was 595 admissible under section 6 and section 157 of the Indian Evidence Act and went to corroborate the statement of Jawanaram. Secondly, it is urged that once the statement of Roopram is ruled out as inadmissible there is only the statement of Jawanaram left to connect the appellants with the crime and in the circumstances of this case that solitary evidence should 'De held insufficient to bring home the guilt to the appellants. The first question therefore that arises in the appeal is whether the statement of Roopram to the effect that Jawanaram told him immediately after the incident, when he came out of his shop that the appellants and two others were responsible for the murder of Bhimsen and the injuries to Lekhram and himself, is admissible, either under section 6 or under section 157 of the Indian Evidence Act. We (lo riot think it necessary to consider whether this statement of Roopram is admissible under section 6 of the Evidence Act and shall confine ourselves to the question. whether it can be admitted under section 157 as corroboration of Jawanaram 's state ment. Learned counsclfor the appellants in this connection relies on Mt. Misri vs Emperor (1), and Nazar Singh vs The State (2) which support him and lay down that unless the witness to be corroborated says in his statement in court that be, had told certain things immediately after the incident to another person, that other person cannot give evidence and say that the witness bad told him certain things immediately after the incident. The argument is that the corroboration that is envisaged by section 157 is of the statement of the witness in court that he had told certain things to the person corroborating the witness 's statement, and if the witness did not say in court that he had told certain things to that person, that person cannot state that the witness had told him certain things immediately after the incident and (1) A.I.R. 1934 Sind 100, (2) A.I.R. 1931 Pepsu 66. 596 thus corroborate him. We are of opinion that this contention is incorrect. Section 157 is in these terms: ",In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, or at about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. " It is clear that there are only two things which are essential for this section to apply. The first is that a witness should have Riven testimony with respect to some fact. The second is that he should have made a statement earlier with respect to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact. If these two things are present, the former statement can be proved to corroborate the testimony of the witness in court. The former statement may be in writing or may be made orally to some person at or about the time when the fact took place, if it is made orally to some person at or about the time when the fact took place, that person would be competent to depose to the former statement and corroborate the testimony of the witness in court. There is nothing in section 157 which requires that before the corroborating witness deposes to the former statement the witness to be corroborated must also say in his testimony in court that he had made that former statement to the witness who is corroborating him. It is true that often it does happen that the witness to be corroborated says that he had made a former statement about the fact to some person and then that person steps into the witness box and says that the witness to be corroborated had made a statement to him about the fact at or about the time ",hen the fa ct took place. But in our opinion it is not necessary in view of the words of section 157 that in order to make corroborating evidence admissible, the witness to be corroborated must also say in his evidence that he had made such 597 and such statement to the witness who is to corroborate him, at or about the time when the fact took place. As we have said already what section 157 requires is that the witness to be corroborated must give evidence in court of some fact. If that is done, his testimony in court relating to that fact can be corroborated under section 157 by any former statement made by him relating to the same fact, and it is not necessary that the witness to be corroborated should also say in his statement in court that he made some statement at or about the time when the fact took place to such and such person. The words of section 157 are in our opinion clear and require only two things indicated by us above in order to make the former statement admissible as corroboration. We are therefore of opinion that the Sind and Pepsu cases were wrongly decided. Now let us see what happend in this case. Jawanaram was examined in court and stated about a certain fact (namely, that the assailants of Bhimsen, Lekhram and himself were five persons whom he named). The testimony of Jawanaram to be corroborated is his statement in court with respect to the fact that five persons attacked Bhimsen, Lekhram and himself. Section 157 makes his former statement with respect to the same fact admissible provided that the statement was made at or about the time when the fact took place or before any legal authority competent to investigate the fact. In this case we are concerned with the first of the two conditions necessary, namely, whether he had made that former statement relating to the same fact. at or about the time when the fact took place. The former statement which can be used as corroboration must be about the fact namely that Jawanaram had seen five persons attacking Bhimsen, Lekhram and himself and must have been made at or about the time when the fact took place i. e., when the attack was made. Now Roopram says that Jawanaram 598 had made the statement immediately after the incident was over that five persons including the three appellants had attacked Bhimsen, Lekhram and himself. This was therefore a former statement of Jawanaram at or about the time when the fact took place, namely, the attack by five persons on Bhim sen and others. This former statement can be proved by the person to whom it was made and can be used as corroboration of the evidence of Jawanaram. It was not necessary before the statement of Roopram as to what he heard from Jawanaram can be admissible for Jawanaram also to say in his testimony in court that he bad told Roopram immediately after the incident the names of the five assailants of Bhimsen and others. The former statement which can be used as corrobo ration is the, statement at or about the time the fact took place about which evidence has been given in court by the witness to be corroborated. Section 157 does not contemplate that before the; former statement can be proved in corroboration, the witness to be corroborated must also say in his testimony that he had made the, former statement. Of course if the witness to be corroborated also says in his testimony that he had made the former statement to someone that would add to the weight of the evidence of the person who gives evidence in corroboration, just as if the witness to be corroborated says in his evidence that he had made no former statement to anybody that may make the statement of any witness appearing as corroborating witness as to the former statement of little value. But in order to make the former statement admissible under section 157 it is not necessary that the witness to be corroborated must also, besides making the former statement at or about the time the fact took place, say in court in his testimony that he had made the former statement. We are therefore of opinion that even though Jawanaram did not say in his statement in court that he had told Roopram the names of the five assailants, Roopram 's 599 evidence that Jawanaram had made such a statement would be admissible under section 157 in corroboration of Jawanaram 's testimony as to the fact that five persons had attacked Bhimsen and others. As to the value to be attached to this corroboration in the present case, it is enough to say that Roopram is an independent witness and even though Jawanaram may not have said in evidence that he had told the names of the assailants to Roopram (perhaps by inadvertence as the High Court seems to think), we agree with the High Court in accepting the statement of Roopram that Jawanaram had immediately named the five persons who had attacked Bhimsen, Lekhram and himself. Thus the statement of Roopram corroborates the statement of Jawanaram in two ways : firstly, that there was an incident in front of his shop in which Bhimsen was murdered and Jawanaram and Lekhram were injured, arid secondly, proves the former statement of Jawanaram as to the persons who took part in the incident, thus corroborating his statement in court under s.157. This is not therefore a case where there is no corroboration of the testimony of Jawanaram, even if he were the solitary witness of the incident itself. As to the second point, namely, that we should not accept the solitary testimony of Jawanaram in the circumstances of this case, learned counsclrelies on Vemireddy Satyanarayan Reddy vs The State of Hyderabad (1). In that case there was the solitary testimony of one witness and it was urged that he was an accomplice. This Court hold that he was not an accomplice but remarked that "we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on his sole testimony unless we feclconvinced that he is speaking the truth. " The reason why this Court said so in that (1) ; 600 case was that though the witness was not an accomplice his position was considered somewhat analogous to that of an accomplice though not exactly the same. It was in those circumstances that this Court said that corroboration in material particulars would be required in the circumstances of that case. We are of opinion that those observations cannot be divorced from the context of that case. In the present case Jawanaram is neither an accomplice nor anything analogous to an accomplice; he is an ordinary witness who was undoubtedly present at the time the incident took place. '.rho case of such a solitary witness was considered by this Court in Vadivelu Thevar vs The State of Madras (1) and after referring to the earlier case it was held that as a general rule a court may act on the testimony of a single witness, though uncorroborated. It was further held that unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cages where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, and that the question whether corroboration of the testimony of a single witness was or was not necessary, must depend upon facts and circumstances of each case. These are the general principles which we have to apply in the case of the testimony of a single witness, like Jawanaram. But as we have held that in the present case there is corroboration of Jawanaram 's statement by his former statement deposed to by Roopram, it is not a case of altogether uncorroborated testimony of a single witness. In any case the evidence of Jawanaram has been considered by both the Sessions Judge and the High Court, and the Sessions Judge was prepared to convict the appellants on the sole testimony of Jawanaram while the High Court has also accepted that testimony, though it has added that it is corroborated by the statement of Roopram. In (1) ; 601 the circumstances when the evidence of Jawanaram has been accepted by both the courts, with or without corroboration, we see no reason to disagree with the conclusion of the two courts as to the value of Jawanaram 's evidence. The criticism made against the acceptance of the evidence of Jawanaram has been considered by the two courts and in spite of that criticism the two courts have come to the conclusion that the evidence of Jawanaram is reliable. We agree with the estimate of that evidence by the two courts and hold that Jawanaram 's evidence can be relied on in the circumstances of this case. Two main points are urged in this connection to shake the testimony of Jawanaram. It is said that Jawanaram has introduced Ram Partap in the first information report and that the Sessions Judge at any rate did not believe that Ram Partap was in Pill Bangan before 6 P.m. though the High Court held otherwise. Secondly, it is said that Jawanaram did not make the first report at about 3 P. M. and the Sessions Judge at any rate held that the report could have been made at any time upto 6 P.m. though the High Court held otherwise. We have been taken through the evidence in this connection and we agree with the High Court that even though Ram Partap might not have actually seen the incident he had definitely come to Pili Bangan at about II A.M. with his brother Bhimsen. There is the evidence of Ram Singh constable who says that Ram Partap came there when the report (exhibit P 1) was being written at about 3 P.m., which is supported by the fact that Ram Partap 's presence is mentioned in the report. The defence relied on a statement in the inquest report (Ex. P 4) in which it is mentioned at the end that Ram Partap son of Jawanaram also arrived during the course of the completion of the inquest report and was sent along with the corpse. This means that Ram Partap was not present when the inquest proceedings began and arrived there when they 602 were coming to an end. From this it cannot be inferred that Ram Partap was not in Pili Bangan at all before 6 P.m. There. is ample evidence, which the High Court has rightly believed, to show that Ram Partap had come to Pili Bangan at about 10 or 11 A. M. The other criticism with respect to the time when the report (exhibit P.1) was made is also in our opinion unjustified and the High Court was right in the view it took in that connection. There is no doubt that Jawanaram reached the hospital at 3 30 P.m. as deposed to by Dr. Sudershan Singh and that he was sent by the police. It is obvious therefore that Jawanaram had contacted the police before 3 30 P.m. It stands to reason that if he had contacted the police before 3 30 P.m. be must have made a report of the incident also and that is what exactly Ram Singh constable deposes. We agree with the High Court that in the circumstances there is no reason to disbelieve the statement of Ram Singh constable. The Sessions Judge was doubtful of the evidence of Ram Singh because he was of the view that documentary evidence from the police outpost at Pili Bangan had not been produced in support of Ram Singh 's statement. Ram Singh was asked about it and stated that though exhibit P 1 did not bear the despatch number as it was not sent to the outpost at all, he must have made entries in the diary of the outpost about his starting from there and his return and also about the occurrence, though he did not remember about it. After this statement of Ram Singh, the Sessions Judge was not right in disbelieving him because of the non production of the entries from the outpost. It would have been better if the prosecution had produced those entries ; but even if the prosecution rested upon the oral testimony of Ram Singh, the Sessions Judge could and should himself have sent for those entries, if he was inclined to disbelieve the oral testimony of Ram Singh constable who appears 603 to be a reliable witness. In the circumstances we are of opinion that the view of the High Court that the report was written at 3 P. m. as stated by Ram Singh constable is correct. The evidence of Jawanaram therefore cannot be rejected on these two grounds. Lastly it was urged that Jawanaram bad named five assailants and at least two have been acquitted, and that shows that Jawanaram is not wholly reliable. It is enough to point out that the Sessions Judge gave the benefit of doubt so far as two accused persons were concerned. He did not hold that Jawanaram 's evidence was false with respect to those two persons. Apparently those two persons did not take any active part in the incident and that may have led the Sessions Judge to give them the benefit of doubt; that is, however, no reason for disbelieving the testimony of Jawana ram. We are therefore of opinion that the two courts below were right in relying on Jawanaram. His evidence is corroborated undoubtedly by other witnesses to the extent that the incident did take place at the shop of Roopram; his statement that the three appellants and two others were the assailants is corroborated by his former statement made immediately after the incident was over and deposed to by Roopram. In the circumstances we are of opinion that the appellants have been rightly convicted. Two of the appellants (namely, Maniram and Hansraj) have been sentenced to imprisonment for life while Ramratan has been sentenced to death. The reason why Ramratan has been sentenced to death is that he was the man who shot Bhimsen. He was also the leader of this group and the enmity was directly between him and the members of the family of Jawanaram. We agree with the High Court that there are no extenuating 604 circumstances which would justify the reduction of sentence of death passed on Ramratan. The appeal therefore fails and is hereby dismissed. Appeal dismissed. [/INST]The appellant obtained a preliminary and then a final mort gage decree against the respondent and thereafter a personal decree for the debt remaining due to him 'after sale of the property mortgaged. The appellant applied for execution of the personal decree and thereupon the respondent sued for relief under section 36 of the Bengal Money lenders Act, 1940, by reopening the personal decree. In the suit relief for reopening the preliminary decree and final decree was not claimed. The personal decree was reopened in that suit and an instalment decree for a smaller amount passed instead, which was ultimately upheld by the High Court. The respondent failed to pay the instalments and the appellant applied for executing the decree. The respondent then filed another suit under section 36 of the Act for reopening the preliminary and final decrees. The Subordinate judge dismissed the suit holding that it wag barred as res judicata and the District judge on appeal affirmed that decision. But the 881 High Court in second appeal reversed those decisions and directed the preliminary and the final decrees be reopened and remanded the case to the trial court for passing a fresh preliminary decree. Hence this appeal with special leave. Held (per Kapur and Shah, JJ.), that section 36 of the Bengal Money lenders Act, 1940, contemplated the filing of one and not successive suits for the reopening of transactions including decrees and obtaining relief under the Act. If in such a suit, the borrower failed to seek the entire relief he was entitled to and abandoned his right to a part of the relief, he would be precluded from seeking that relief in another suit. The principle underlying r. 2 of 0. 2 of the Code of Civil Procedure as also the principle of res judicata applied to a suit under section 36 of the Act. Per Hidayatullah, J. When the respondent moved the executing court under section 36 of the Act he had not filed a suit but only an application. It was the duty of the court thereunder to give him full relief although he might not have asked for it. If the court failed in its duty and he filed a suit no question of waiver or constructive res judicata could at all arise. This was made clear by the non obstante words of sub sections (1) and (6) Of section 36 and the question that arose under the section was not s? much of the right of a party as of the duty of the court to give entire relief under the Act. The remedies enjoined by the Act were not exclusive of one another, either expressly or by necessary intendment, and were intended to give the widest possible relief to the borrowers. jadhunath Roy vs Kshitish Chandra Achariya Choudhury (1949) L.R. 76 I.A. I79 and joy Chand Lal Babu vs Kamalaksha Choudhury, (1949) L.R. 76 I.A. 131, referred to. Since the Act required that the decrees passed against the respondent had to be reopened, no provision of the Code of Civil Procedure or of equity could bar the suit, the former being expressly excluded and the latter made inapplicable by the substantive provisions of the Act. </s>

<s>[INST] Summarize the judgementCivil Appeal Nos. 2330 2331 of 1969. Appeals by Special Leave from the Judgment and order dated 17/ 18 1 69 of the Gujarat High Court in Second Appeal No. 187 and 857/61. H. section Parihar and I. N. Shroff for the Appellant. K. J. John for the Respondent. The Judgment of the Court was delivered by KAILASAM, J. These two Civil Appeals are by the Kathiawar Industries Ltd. by special leave against the judgment of the Gujarat High Court holding that the appellants are liable to pay octroi duty on uncrushed salt which is brought by the appellant to the factory situate within the octroi limits and crushed there. The appellant is running a salt manufacturing works at Jaffrabad called "Nawabsidi Mohmad Khan Salt Works". The company had constructed salt works, grinding mills, trolly tracks and a jetty at e port site. The major portion of the salt works is situate out of the Municipal limits. The salt is manufactured outside the municipal limits. The grinding mills and the part of the trolly track leading to jetty come within the municipal limits of the respondent Jaffrabad Municipality. The Municipality by a notice dated 3 1 1955 demanded from the appellant Rs. 7289 6 0 as arrears of octroi. The appellant paid under protest and filed the suit out of which this appeal arises before the Civil Judge Gohilwad, District Bhavnagar, against the respondent for a declaration that the salt manufactured by the appellant at its salt works at Jaffrabad and exported uncrushed and/or crushed was not liable to octroi duty and that the goods passing through municipal limits from the salt works are not liable to octroi duty, and for an injunction restraining the respondent from recovering an amount of Rs. 7289 6 0 and for a further injunction restraining the Municipality from hindering or obstructing the free passage of salt and goods and for the refund of Rs. 250. The appellant also filed another suit for the refund of Rs. 1271 14 O paid under protest. These two suits were decreed, the court declaring that the salt manufactured by 246 the appellant company is not liable to octroi duty. The court also granted an injunction as prayed for. The Municipality preferred appeals. The appellate court while dismissing the appeals and confirming the decree of the trial court observed that the perpetual injunction granted by the trial court would not apply to the salt entering the octroi limits for consumption or use for the factory situated within the octroi limits of the municipality. The Municipality preferred two Second Appeals to the High Court of Gujarat at Ahmedabad. A Bench of the High Court allowed the appeals except to the extent of confirming the declaration that uncrushed salt of the appellant company which is directly sent from the stacking ground to the jetty is not liable to octroi provided the plaintiff company followed the prescribed rules and formalities. The other claims in the suits were dismissed. Against the judgment of the High Court the plaintiff company has preferred these two appeals. The only question that falls for consideration in these civil appeals is whether the salt manufactured by the appellant outside the octroi limits of the respondent and brought by the appellant within those limits for the purpose of being crushed into powder in the appellant 's factory situate within those limits and then exported is liable to octroi. The facts as found by the High Court and which cannot be questioned are that the salt works consists of (i) salt pans; (ii) stacking ground for the salt collected from the pans; (iii) trolly track for carrying salt from stacking ground to the factory within the octroi limits of the Municipality and to the jetty which is outside the octroi limits; (iv) jetty; (v) Power house; (vi) store room; (vii) workshop and (viii) grinding mill which is referred to in the evidence as the crushing factory. (f these, the crushing factory and part of the trolly track (about 1400 feet) are within the octroi Limits of the Municipality and the rest outside those limits. Thus it is not in dispute that only the crushing factory and part of the trolly track are within the octroi limits. salt is prepared is the salt pans outside the octroi limit and the salt which is to be crushed is taken to the crushing factory and the salt which is not to be crushed is taken in uncrushed form directly to the jetty over the trolly track part of which passes through the octroi limits of the Municipality. The salt that is crushed in the crushing factory is also after crushing taken by the trolly to the Jetty. From the jetty the salt whether crushed or uncrushed, as the case may be, is exported by steamers. The High Court has found that the salt which is taken to the crushing factory within the octroi limits for the purpose of crushing and is crushed and later taken to the jetty is liable to octroi. The question is whether this levy is sustainable in law. 247 In 1948, on the formation of Saurashtra State, Jaffrabad came with in the territorial limits of the Saurashtra State and the Bombay District Municipal Act, 1901, as adapted and applied to Saurashtra State became applicable to Jaffrabad. The Jaffrabad Municipality, the predecessor of the respondent, was constituted under the Bombay District Municipal Act. 1901 . The State of Saurashtra, within the territorial limits of which the said Municipality was situate, published an ordinance on 31 8 1949 being ordinance, No. 47 of 1949 called the Saurashtra Terminal Tax and octroi ordinance, 1949. The ordinance extended to the whole of The State of Saurashtra and came into force from 31 8 1949. Section 2 clause (2) of the ordinance defines 'octroi ' as including a terminal tax. Section 3 empowers the Government to impose terminal tax and octroi duty. It provided that octroi may be imposed on "animals or goods, or both, within the octroi limits brought for consumption or use therein". Under section 4 Government is empowered to make rules. In exercise of the powers under the ordinance the State Government n made rules relating to octroi known as the Saurashtra octroi and Terminal Tax Rules on 8th December, 1949 which was published in the Saurashtra Gazette on 15th December, 1949. Rule 3 is the charging rule which provides that octroi is payable in respect of goods set out in the Schedule I attached to the Rules and prescribed that octroi shall be payable at the nakas at rates set out therein. Item No. 23 is "Salt for Factory". Schedule II which gives a list of items which are exempt from octroi duty contains in item No. 6, a sub item in Gujarat which means "Salt". Thus under item 23 "Salt for Factory" is liable to octroi duty. The octroi duty may be imposed under section 3 on "animals or goods, or both, within the octroi limits brought for consumption or use therein". Oh the facts found, namely that uncrushed salt was brought into the factory situate within the octroi limits and crushed salt taken away for export from the octroi limits can it be said that the salt thus brought are goods for consumption or use therein. It is the common case that the uncrushed salt as brought into the octroi limits is crushed and in the crushed form sent to the jetty for export. The finding of the High Court is that the crushing of the uncrushed salt and sending the crushed salt to the jetty within the octroi limits will be used therein as required under section 3. In this appeal it is necessary for us to consider the scope of the I words "consumption" and "use". The precise meaning to be given to the words "consumption" and "use will depend upon the context in 17 475 SCI/79 248 which they are used. These words are of wide import. In the Constitution of India, Entry 52 in List II in Seventh Schedule a right to impose tax "on entry of goods into the local area for consumption, use or sale" is conferred. In Burmah Shell oil Storage & Distributing Co. India Ltd. vs The Belgaum Borough Municipality this Court after tracing the history of octroi and terminal tax observed that while terminal tax is a kind or octroi which is concerned only with the entry of goods in a local area irrespective of whether they would be used there or not, octrois were taxes on goods brought into the area for consumption. use or sale. They were leviable in respect of the goods put to some use or the other in the area but only if they were meant for such user. In considering the meaning of the words "consumption" and "use" this Court observed in Burmah Shell case (supra) that the word consumption; its primary sense means the act of consuming and in ordinary parlance means the use of an article in a way which destroys, wastes or uses up that article. But in some legal contexts, the word "consumption '? has a wider meaning. It is not necessary that by the act of consumption the commodity must be destroyed or used up. n M/s. Anwarkhat Mahboob Co. vs The State of Bombay (now Maharashtra) and others, the question that arose was whether conversion of one commodity into another commercially different article would amount to consumption. The facts of the case were that tobacco was purchased and in the Bombay State the stem and dust from the tobacco was removed. It was contended that removing the stem and dust from the tobacco did not amount to consumption of tobacco or had the effect of converting tobacco into an article commercially different. The Court held that when the tobacco was delivered in the State of Bombay for the purchase of changing it into a commercially different article, viz., biddipatti the delivery was for the purpose of consumption. This Court followed the decision in State of Travancore Cochin and ors. v Sanmugha Vilas Cashew Nut Factory and Ors. wherein it was held that the raw cashew nuts were put through a process and new articles of commerce, namely cashew nut oil and edible cashew nut kernels were obtained. The Court expressed the view that the raw cashew nut is consumed in the process. On the facts the High Court found alter referring to the different processes of baking or roasting. Shelling pressing, pealing etc. that although most of the process is done by hand, part of it is also done mechanically by drums. Oil is extracted out of the outer shells as a result of roasting. After roast 249 ing the outer shells are broken and the nuts are obtained. The i J poison is eliminated by pealing oil the inner skin. By this process of manufacture. the respondents really consume the raw cashew and produce new commodities. This Court accepted this finding and observed at p. 113 that the raw cashew nuts, after they reach the respondents, are put through a process and new articles of commerce, namely, cashew nut oil and edible cashew nut kernels, are obtained. In Anwarkhan Mahboob Co. (supra) this Court gave the example of the process through which cotton is put through before ultimately the final product the wearing apparel is consumed by men, women and children. The Court observed: "But before cotton has become a wearing apparel, it passes, through the hands of different producers, each of whom adds some utility to the commodity received by him. There is first the act of ginning; ginned Cotton is spun into yarn by the spinner; the spun yarn is woven into cloth by the weaver; the woven cloth is made into wearing apparel by the tailor. " At each of these stages distinct utilities are produced and what is produced is at the next stage consumed. It is usual, and correct to speak of raw cotton being consumed in ginning. Applying this test the conclusion is irresistible that when uncrushed salt is crushed in the factory it is commercially a different article and the uncrushed salt must be held to have been consumed. The word "use" is of wider import than "consumption". It cannot be denied that the uncrushed salt has been used and by the user a new product crushed salt has come into existence. On a consideration of the facts and circumstances of the case we are satisfied that octroi is leviable on the uncrushed salt which is brought to the octroi area and crushed as the activity would amount to both consumption and use of the uncrushed salt. In the result the appeals fail and are dismissed with costs. N.V.K. Appeals dismissed. [/INST]HELD: 1. The Court had no power to supply the vacancy under section 8(1) (b) of the only if the arbitration agreement did show that the parties did not intend to supply the vacancy. The words in section 8(1) (b) are these: "and arbitration agreement does not show that it was intended that the vacancy should not be supplied". If no such intention could be culled out from the arbitration clause, the Court could supply the vacancy. [129 D E]. M/s. Prabhat General Agencies etc. vs Union of India and Anr. ,[1971] 2 S.C.R. 564; affirmed. Badam Satyanarayanamurthi vs Badam Venkataramanamurthi, A.I.R. 1948 Madras 312; distinguished. </s>

<s>[INST] Summarize the judgementivil Appeal No. 4447 of 1989. From the Judgment and Order dated 28.4. 1989 of the Delhi High Court in C.W.P. No. 3090 of 1987. Kapil Sibal, Manoj Prasad and Dalveer Bhandari for the Appellant. F.S. Nariman, Soli J. Sorabjee, H.N. Salve and K.J. John for the Respondents. The following Order of the Court was delivered by VENKATACHALIAH, J. The New Delhi Municipal Committee (NDMC) seeks special leave to appeal to this court from the order dated 28.4. 1989, of the High Court of Delhi in Civil Writ Petition 3090 of 1987. In the writ petition, Statsman Ltd., and its Managing Director, Respondents 1 and 2 respec tively herein, sought to impugn the decision of the NDMC dated 18.2. 1987, declining to sanction the Revised Plans for the construction of "Statesman House" a high rise building on plot No. 148, Barakhamba Road New Delhi, of which the first respondent is the lessee. The High Court allowed the writ petition and directed the NDMC to convey its formal sanction of the building plans on or before the 5th day of May, 1989. The NDMC assails the decision of the High Court on grounds, 596 principally, that the plans for the multi storeyed high rise building, as proposed by Statesman Ltd., did not, in the matter of the fire safety requirements, accord with the mandatory requirements of the Statutory Building Bye laws promulgated under the Punjab Municipal Act 1911, in relation to the Union territory of Delhi and that the proposed build ing did not also provide for a "podium/pedestrian walk way" made mandatory by the Zonal Development Plan for Zone D 1 (viz. Connaught Place Area) approved by the Central Govern ment on 30th April 1966 in No. 21023(7)66 UD under Section 9(2) of the Delhi Development Act 1957. We have heard Sri Kapil Sibal learned Senior Advocate for the NDMC and Sri Nariman and Sri Soli J. Sorabjee learned Senior Advocate for the Statesman Ltd and its Manag ing Director. Special Leave is granted. Respondent No. 1, a publisher of Newspapers, holds a lease in perpetuity from Government of the plot No. 148, Barakhamba Road, New Delhi. In the year 1980 Respondent No. 1 sought for, and obtained, permission from the Land Devel opment Officer, to erect a high rise building of an area of 1,62,000 square feet and paid Rs.63,40,918 as betterment levy. On 4.5.1982 it applied for, and on 29.8. 1980 ob tained, sanction from the NDMC of its building plans, valid for 2 years. The sanction was revalidated for a further period of two years. In June 1985, however, there was, it would appear, prohibition on high rise structures. But this prohibition, in relation to Connaught Place area, was lifted on 18.7. On 29.12. 1986 Respondent No. 1 submitted Revised plans incorporating therein substantial changes in the plans necessitated, as it was claimed, by the changing require ments of printing technology and the plans as earlier sanc tioned did not meet these altered requirements. The new building, as envisaged by the revised plans, would accommo date the printery of the Respondent 1, its offices and other offices and business accommodation. On 7.1. 1987 the appel lant forwarded the Revised plans to the Delhi Urban Art Commission (DUAC) in compliance with the requirements of Section 12 of the Delhi Urban Art Commission Act 1973 which envisages that, notwithstanding anything contained in any other law for the time being in force, every local body shall, before according approval in respect of any "building operations" or "development proposals" refer the same to the DUAC for its scrutiny. Section 12 further provides that the decision of the DUAC in that behalf shall be binding on such local 597 body. The DUAC did not promptly scrutinise the plans but engaged itself in some correspondence with the NDMC as also with the Ministry of Urban Development, Government of India, seeking what it referred to as the "requisite clarifica tions", "clear cut finalised policy" and "guidelines" for it to be able to process the plans. However, by communication dated 18.2. 1987, the NDMC in exercise of power under Section 193(3) of the Punjab Municipal Act, 1911, rejected the plans, assigning 28 rea sons for the rejection. On 14.5. 1987, the Architect of First Respondent claiming to have subsequently complied with or clarified the points on which the rejection was based, resubmitted the plans. On 26.5. 1987, the Architects wrote to NDMC to reconsider its decision dated 18.2. 1987, in the light of the rectifications effected. However, no positive response having emanated from the NDMC Respondents 1 & 2, on 27.10.1987, filed the Writ petition in the High Court for an appropriate order directing the DUAC and the NDMC to "forth with deal with the application for grant of sanction". Sometime in March 1988, the Chief Fire Officer, Delhi Fire Services, and the Deputy Commissioner of Police (Traf fic), New Delhi, were impleaded to the proceedings. During the pendency of the proceedings in the High Court, the DUAC which had earlier considered the plans to be 'conceptually unsatisfactory ' took a decision to approve the plans. So did the Chief Fire Officer who, by his communication dated 9.3.1988, gave clearance to the building plans in relation to the Fire safety precautions. The High Court considered the objection raised by the Deputy Commissioner of Police (Traffic) as unrelated to the bye laws as applicable to the situation and held that the objection from that source should not interdict the sanction of plans by the NDMC. During the pendency of the proceedings, the High Court required the parties to sort out their differences. On 9.12. 1988, the High Court had occasion to say: " . . We have no doubt that the NDMC will grant the final approval without wasting any further time. In case the meeting of the Building Plans Committee of NDMC is not sched uled to be held within two weeks, the NDMC will so arrange that a special meeting is held so that the matter is not delayed any further. Case to be listed before Court for final orders and disposal on February 3, 1989. In the course of the order dated 28.4.1989 finally dis posing of 598 the writ petition, the High Court after referring to what is considered to be a co operative attitude of the DUAC and other authorities, however, had this to say of the NDMC: "However, to our surprise on the final date of arguments, that is, on 31.3. 1989 the NDMC changed its counsel and the Standing Counsel for NDMC appeared instead of Mr. H.P. Sharma, advocate who had been appear ing throughout . . " "But surprisingly NDMC was not willing to take a decision and continued to raise frivo lous objections for reasons best known to it. Inspite of the fact the clearance had been granted by Urban Art Commission as also by all other Authorities the sanction was not con veyed and was withheld for no reasons. This attitude of NDMC is beyond our understanding. Since I have come to the conclusion that no objection remains from any Authority I am of the opinion that non sanction of the plans on the part of the NDMC is absolutely unjustified and cannot be supported by any reason whatso ever. " The High Court was persuaded to the view that NDMC 's disinclination to accord sanction to the plan was unjusti fied; that whatever reservations it had had as to the ade quacy of the fire safety measures, as envisaged in the Building designs, were allayed by the Chief Fire Officer 's clearance and held that, thereafter, there was no impediment to the sanction. The High Curt, accordingly, directed the NDMC: " . . to convey its formal sanction of the building plans and release the same to the petitioner Company on or before the 5th day of May, 1989 . . " 5. Before us, Appellant NDMC has aired a serious griev ance both against the validity of the reasoning of and conclusion reached by the High Court as also the manner of the conduct of proceedings which were, according to the appellant, initially more in the nature of efforts directed towards the resolution of the dispute by mutual negotiation than by adjudication, but acquired an adjudicative complex ion with such suddenness that appellant was denied a reason able opportunity of elaborating on the substantial issues, of serious public importance pertaining, as they did, to a vital area of fire safety precautions in highrise buildings as conceived in the Building Bye laws. It is submitted 599 that the High Court failed to consider submissions of the appellant on certain vital issues. In his affidavit dated 6.6. 1989, filed in this Court, Sri H.P. Sharma, learned Advocate who appeared for the NDMC before the High Court stated: " . . Again, it is clear from the order that the entire matter was being conducted in a spirit of compromise which shows that in stead of adjudicating upon the issues in the Writ Petition, parties to the petition were required to resolve the matter amicably. On March 31, 1989, Mr. S.D. Satpate, Chief Archi tect, NDMC and Mr. Karam Chand, Dy Architect, NDMC were present in Court. Counsel for NDMC informed to the Court of the presence of the said persons who were ready to assist the Court as certain objections were still outstanding. However, the Court did not ascertain from any of the Officers if they had any objections. Conse quently, the Hon 'ble Court was not informed of the details of the said objections of the NDMC. Instead, the Court issued Rule on the same date and proceeded with the matter. I, as counsel appearing on behalf of NDMC along with Mr. Bikramjit Nayyar, Advocate requested the Court that the NDMC wished. to file an Affida vit giving details of the outstanding objec tions. Time was sought to file the said affi davit. Counsel for NDMC also indicated that the normal practice of the Court is to issue Rule and thereafter fix the case for final disposal giving an opportunity to the parties to file additional affidavits, if any for the disposal of the petition. However, the Court declined the request and directed counsel for NDMC to proceed with the hearing on that very date. The matter was proceeded with and Judg ment was reserved on that date. During the course of the hearing the standing counsel for the NDMC raised the issue of the applicability of Bye law 16.4.8 of the applicable Building Bye laws of the NDMC and submitted that the clearance of the Chief Fire Officer did not prevent the NDMC from enforcing the applicable bye laws. Standing counsel for the NDMC also submitted to the Court that the approval of the DUAC was conditional. However, the Court in the light of the statement of counsel for the DUAC did not deal with the issue of the applicability of Bye law 16.4.8. " (Emphasis Supplied) 600 To similar purport and effect is the affidavit of Sri Sat pate the NDMC 's Chief Architect. Before we examine the specific contentions raised in the appeal, it is necessary to refer to certain basic fea tures of the proposed building in relation of its fire safety aspects. The eligibility of the proposed construction for sanction except on the point of adequacy of "Refuge areas" in the requirement of a "pedestrian walk way" and "Podium" is not otherwise disputed. The proposed "Statesman House" envisaged by the plans is a fifteen storey, 55.2 meter high structure its High rise portion being a cylindrical structure with a hollow core open to sky. On each of the floors above the 4th floor, commencing above the height of 15 meters, there is a 5 foot wide circular passage on the inner side of the circle over looking the central vacant area. These passages which are connected to the lift areas, provide access to the accommo dation on the respective floors. Only an arc of the circular passage in each of the floors is visible from and overlooks the front of the building. Respondent No. 1 claimed that these inner circular passages answer the description and serve the purpose, of "Refuge areas" required to be provided as fire safety measures. In so designing, the Architects seek to combine general utility and "Refuge areas". The question is whether this architectural and design resource fulness, which enables Respondent 1 to claim these, other wise essentially functional and utility areas, also as 'refuge areas ' for fire safety, really satisfies the re quirements of the Bye laws. We may now turn to the requirements of the Bye laws in this behalf. Fire protection requirements, generally are dealt with by bye law 17.1 and 17.2 which provide: "17.1 Buildings, shall be planned designed and constructed to ensure fire safety and this shall be done in accordance with part IV Fire Protection of National Building Code of India, unless otherwise specified in these bye laws. In the case of buildings (identified in Bye law No. 6.2.4.1), the building schemes shall also be cleared by the Chief Fire Officer, Delhi Fire Service" "17.2 The additional provisions related to fire protection of buildings more than 15m in height and buildings identified in 6.2.4.1, shall be as given in Appendix K." 601 The proposed building is over 15 meters in height and attracts Bye law 16.4.8 which, inter alia, provides: "Refuge Area For all buildings exceeding 15 m in height, refuge area shall be provided as follows: (a) For floors above 15m and upto 24m one refuge area on the floor immediately above 13m. (b) For floor above 24m and upto 36m one refuge area on the floor immediately above 24m. (c) For floor above 36m one refuge area per every five floors above 36m. This Bye law specifies the location, at various heights,, of the "refuge areas". The structural nature and basis of its calculation of the extent of these "Refuge areas" are dealt with by Bye law 16.4.8.1. which provides: "Refuge area shall be provided on the external walls as cantilever projections or in any other manner (which will not be covered in FAR) with a minimum area of 15 sq. and to be calculated based on the population on each floor at the rate of 1 sq. m. per person. " (Emphasis Supplied) The expression "External Wall" is a defined expression. Bye law 2.27 says: "An outer wall of a building not being a partition wall even though adjoining to a wall of another building and also means a wall abutting on an interior open space of any building." In the plans, the disposition of the 'refuge area ' is, admittedly, not in strict accord with the prescription of Bye law 16.4.8 which requires the location of 'refuge areas ' for a group of floors as specified therein. The Bye law does not contemplate one for each floor as now provided in the plans. The 'refuge areas ' are not provided on the outer "external" wall; but are on the wall abutting the inner circular vacant space forming the floor of the hollow care of cylindrical structure. As the entrance is now designed and conceived fire fighting and rescue 602 equipment cannot, it would appear, be carried into this inner area. But Respondent 1 claims that the walls on which these refuge areas are provided about the inner vacant space and are eligible to be called 'External ' walls within the meaning of Bye law 2.27. The NDMC by its communication dated 14.3.1989 to the Chief Fire Officer expressed its reservations as to the correctness and propriety of the clearance to the plans accorded by him on 9.3. By his reply dated 30.3. 1989, the Chief Fire Officer, in justification of the approval which he gave stated: "the consultants have proposed refuge area at each floor above 15m level, which is consid ered to be more convenient and reliable be cause there is hardly any scope of smoke logging due to centre core open to sky." (Emphasis Supplied) 8. The contentions urged by Sri Sibal in support of the appeal are: (i) Bye Law 16.4.8 prescribes that in respect of all buildings exceeding 15 metres in height there shall be provision for refuge areas at specific locations for a specific group of floors. The requirement is mandatory as it is guided by the considerations of the need to direct and concentrate rescue operations at particular, pre fixed locations. The Bye law is binding on the Chief Fire Officer who is not competent to relax the rigor of its pre scriptions. (ii) The 'external ' walls spoken of by Bye law 16.4.8.1, though so defined in Bye law 2.27 as to include a wall "abutting on an interior open space of any building", however, having regard to the purpose of the Bye law can only refer to an outer wall accessible to the rescue team. The definition is. as always, subject to the context requiring a different meaning. For purposes of Bye law 16.4.87 an "external" wall should be understood with reference to an open area from which rescue operations are possible. In the present case the construction of the Bye law suggested by the respondent company would be justified only if fire fight ing and rescue operations could be conducted from the inner open space. In the present case, 603 having regard to the lack of access to the inner vacant space for fire engines etc., the proposition of Respondent 1 is not even a statable possibility. (iii) The clearance from the Chief Fire Offi cer, Delhi Fire Service, envisaged in Bye laws 17.1 is in addition to the requirements of bye laws 16.4.8. and 16.4.8.1. The said clear ance is one of the conditions for eligibility of the plan to be considered for accord of sanction by the NDMC is not in substitution of the requirement of compliance with the objec tive prescriptions of those bye laws. The primacy to the Chief Fire Officer 's implicit in the approach of the High Court is erroneous and virtually renders the clearance of the Chief Fire Officer binding on the NDMC. It is the NDMC and NDMC alone that can decide wheth er the plans satisfy the Bye laws in any particular case. A reasonable construction bye laws 6.2.4.1, 16.4.8., 16.4.8.1, 17.1 and 17.2 would detract from the validity of the first respondent 's claim and establishes that the clearance from the Chief Fire Officer is one of the conditions and not the sole or conclusive test of the adequacy of fire safety measures in terms of the relevant Bye laws. (iv) The view of the Chief Fire Officer that the design of the Refuge areas in the plans is "more convenient and reliable" is factually and technically unsound as the very nature of the cylindrical structure with a hollow core would promote a "stock" or chimney effect. The Chief Fire Officer 's view is not final or conclusive on the point and, at all events, not binding on the NDMC. (v) The construction of a Pedestrian walk way and Podium are mandatory not under the bye laws but from the requirements of a zonal plan of zone D 1 in which plot No. 148, Barakhamba Road is located and that no relaxation of the requirement would be permissible except on a modification of the relevant Zonal Development Control Plans. The provision for "pedestrian walk way" and "podium" is, therefore, mandatory under the Zonal Development Plan and that no authority including the Chief Fire Officer could compel an abandonment of those statutory presumptions. 604 (vi) That in the manner in which the case before the High Court proceeded the NDMC was denied a reasonable and effective opportunity of presenting its case. Considerations of public safety underlying the stand of the NDMC was not properly appreciated and the NDMC should have been afforded an opportunity to substantiate its valid objections to the plans. (vii) The grant of relief in the writ petition in the form of a direction to the appellant to sanction the plan was not permissible and that, at best, the High Court could have directed the appellant to reconsider the question of according sanction to the plans in the light of the High Court 's order. Sri Nanman, for the respondent company however, submitted that the objection to the plans raised by the appellant on the basis that the refuge areas were not in accordance with the Bye laws was a classic after thought on the part of the Appellant. Bye laws 16.4.8 and 16.4.8.1 learned counsel urged, were merely prescriptive of certain minimal standards of fire safety precautions, it being always open to the owner to build into the designs better and more satisfactory standards of fire safety precautions and that in the present case the Chief Fire Officer who was a technical authority, had himself accepted the designs in that behalf as better and more reliable. Learned counsel urged that out of the 28 reasons put forward by the appel lant on 18.2. 1987 in support of the rejection of the plans, not even one referred to its present insistence that the refuge areas should be built only at the levels suggested in the Bye law or that the refuge area did not abut the "exter nal wall" Shri Nariman further pointed out that in the communication dated 18.2.1987 all that was sought to be said, with reference to the refuge areas in each floor, was that the same had not been taken into account in the calcu lation of the F.A.R. Shri Nariman said that bye law 16.4.8 in its language and content had been bodily lifted from the corresponding prescriptions in the "National Building Code of India" (1983), from the provisions of part IV relating to "Fire Protection". The said Code itself indicated that the norms in regard to fire protection referred to therein were only broad guide lines and were not to be construed to prohibit better arrangements. Shri Nariman referred to the following excerpts from part IV of the said Code at para 0.2 and 0.7: 605 " . . An indefinite combination of variable is involved in the phenomenon of fire, all of which cannot be quantified. The requirements of this Code should, therefore, be taken as a guide and an engineering design approach should be adopted for ensuring a fire safe design for buildings. It would also be necessary for this purpose to associate quali fied and trained fire protection engineers with the planning of buildings, so that ade quate fire protection measures could be incor porated in the building design fight from the beginning." (Emphasis Supplied) "0.7. Nothing in this part of the Code shall be construed to prohibit better types of building construction, more exits or otherwise safer conditions than the minimum requirements specified in this part." (Emphasis Supplied) It was, accordingly, urged that the prescriptions in bye law 16.4.8. and 16.4.8.1 were not inflexible and wherever more liberal and better standards of fire precautions were incor porated in the designs, the bye laws did not prevent such better measures being adopted by the licencing authority. It was further urged that the Chief Fire Officer was the au thority competent to decide questions whether the provisions incorporated in the designs were better and more liberal and that his decision in the matter ought to be conclusive and binding on the licencing authority. In regard to the adequa cy and acceptability of fire safety measures in the build ing design, it was urged, the bye law, recognised and ac corded a primacy of place to the decision of the Chief Fire Officer and that, indeed, para K 1 of Appendix K 'read with bye law 17.2 recognised the importance of, and finality, to the decision of the Chief Fire Officer. The said para K 1 Appendix K reads: "K 1 In addition to the provision of Part IV Fire Protection of National Build ing Code of India, the Chief Fire Officer, Delhi Fire Service may insist on suitable provisions in the building from fire safety and fire fighting point of view depending on the occupancy and height of buildings. " The decision of the Chief Fire Officer to accept the distribution of refuge areas in each of the floors, it was said, was referable to the general power of the Chief Fire Officer to issue such directions. In the 606 present case, it was urged, the designs providing for refuge areas in the ratio of one sq. metre per person on each floor was considered by the Chief Fire Officer as a better and more reliable fire safety measures than those envisaged by the bye laws and the Chief Fire Officer preferred to accept them. Shri Nariman sought to point out that in the Annexure B. 1 to the Affidavit dated 7.7.1989 of respondent No. 2 a list of six buildings had been set out respecting which the sanctions granted by the NDMC indicated that the local body had itself understood the prescriptions in the bye laws to be flexible and had further limited the extent of the Ref uge Areas to 0.3 sq. metre per person as against 1 Sq. metre per person set out in bye law 16.4.8.1. As to the requirement of bye law 16.4.8.1 that the refuge area shall be provided on the "external walls" is concerned, Shri Nariman relied upon the definition in Bye law 2.27 to say that a wall abutting an inner vacant space is also an "external wall" and the acceptance of the cor rectness of this position was implicit in the clearance given by the Chief Fire Officer. The words "in any other manner" in Bye law 16.4.8.1 it is urged, makes room for the requisite flexibility. In regard to the "pedestrian walk way and "podium" it was pointed out that the insistence upon these was again, a glaring instance of the inexhaustible resourcefulness of the appellant to thwart Respondent 's project. It was pointed out that none of the 28 objections raised in the NDMC 's communication dated 18.2.1987; nor the further objections raised on 6.2.1989; nor, indeed, the objections raised by NDMC on 14.3. 1989, to the clearance given by the Chief Fire Officer who, incidentally, had advised the deletion of podium in view of the obstruction it would present the fire brigade appliances, had the NDMC raised the question of the alleged infirmity in the plans for want of provision for the walk way and Podium. It was also pointed out that in none of the counter affidavits filed in the High Court nor in the memorandum of Special Leave Petition; nor in the written submissions filed before this Court had this question been agitated by the NDMC. It was pointed out that the committee constituted by the order No. 10(24) RN 83/731/7714 24 dated 13.6.1983 made by the Lt. Governor, Delhi, had in its report of 5.2.1986 suggested the doing away with the proposal to construct a raised pedestrian walk way on either side of Barakhamba Road as, in the view of the committee, the "head clearance under this proposed walk way will be such that cars 607 will be able to pass under it, but fire/rescue appliances will not be able to approach any where near the buildings beyond the raised walkway. " It was pointed out that the committee was also of the opinion that these walk ways, if and when constructed, would nullify all fire safety measures in the buildings on either side of the Barakhamba Road. Shri Nariman referred to the advice of the Chief Fire Officer with regard to the present plans themselves that the walk way and the podium be dispensed with. It was, therefore, urged that the insistence on the construction of the pedestrian walk way while being wholly undesirable, was also a glaring instance of how by these after thoughts appellant made manifest its determination to delay and defeat respondent 's project. On the contentions urged, the points that fall for consideration are: (a) Whether Bye law 16.4.8 as to the disposition and location of the "Refuge Areas" prescribes an inflexible, rigid standard and whether the location and distribution of the refuge areas in each floor is violative of the Bye law? (b) If point (a) is held in the nega tive, whether the clearance given to the plan by the Chief Fire Officer, on the view that distribution of the refuge areas in each floor is a better and more reliable fire safety measure is conclusive and binding on the NDMC. In other words, is it open to the NDMC to examine and decide the question independently of the Chief Fire Officer 's clearance? (c) Whether the Refuge Areas located on the walls abutting the inner vacant area be held to satisfy the requirements of Bye law 16.4.8.1? (d) Whether the extent of 'Refuge Area ' requires to be reduced from 1.0 sq. metre per person to 0.3 sq. metre per person? (e) Whether the NDMC is justified in insisting upon the erection of "Pedestrian Walk way" and a "Podium" in front of the proposed building? 13. Re: points (a) and (b): A number of affidavits and counter 608 affidavits are placed before us on the scope of the Bye laws. It is not necessary to examine all of them as the matter is essentially one of construction of the provision itself. The contents of Bye laws 16.4.8 and 16.4.8.1 are borrowed from Part IV dealing with "Fire Precaution" in the National Building Code of India, 1983. The Code conceives of these prescriptions as only broad guide lines. But the Building Bye laws in the present case which have drawn on these provisions from the Code have, however, assimilated them as part of the statutory prescriptions under the Bye laws. The NDMC says that once this is done the norms are no longer directory but assume statutory import and become mandatory. In the infinite variety of ways in which the problem of adequate fire safety measures to be incorporated in build ings present themselves, and having regard to the wide and complex range of situational variations in the location, character and design of buildings and their disposition in relation to the other factors influencing the evaluation of such safety measures, a view favoring flexibility of ap proach ought to commend itself. The National Building Code of India, from which the substance of the Bye laws are drawn, indicates that these are concerned with indicating certain broad minimal assurances for fire safety and that better and more reliable measures ought not to be excluded. We are not, however, impressed by the submission that the six instances cited in Annexure B 1 to Affidavit dated 7.7.1989 of respondent No. 2 are really instances demon strating departure, from the present stand of the appellant. indeed, appellant points out that out of the six buildings referred to in Annexure B 1, only two i.e. No. 23, Barakham ba Road and DLF Plaza, 21 22, Narendra Place, were dealt with by the NDMC and that the rest were dealt with by the D.D.A. The affidavit of Shri Karamchand, Architect, NDMC overs that no sanction was given in respect of No. 23, Barakhamba Road and that no departure from Bye laws 16.4.8, as understood by the NDMC, was involved in the case of the DLF Plaza building. The explanation offered is, in our opinion, acceptable and, nothing much turns upon the cases referred to in Annexure B 1. 14. But that is not to say that the rigid interpretation sought to be placed by the appellant on the bye law 16.4.8 and 16.4.8.1 is justified. It is, of course, wise in the interest of uniformity of administration of these Bye laws and of elimination of possible complaints of partisanship, that the NDMC should insist upon adherence to the require ments of the Bye law 16.4.8 on its own strict terms. That 609 should not, however, denude the power of the appellant to accept designs which, in the judgment of the appellant, offer and incorporate fire safety precautions of higher measure. When fast and sweeping changes are overtaking the fundamental ideas of building design and construction and new concepts of building material are emerging, it would be unrealistic to impute regidity to provisions essentially ' intended to promote safety in building designs. As suggested in the National Building Code Bye law, provisions such as Bye law 16.4.8 envisage certain minimal safety standards compliance with which should, generally, be insisted in order that there be uniformity and equal treatment and an elimination of imputations of favoritism and arbitrariness. If a building design incorporates fire safety measures in a measure promoting fire safety precautions far better than those suggested by the Bye laws, they should not fetter the hands of the licensing authority to accept them. Under the relevant statute and the Bylaws, the authority to grant or refuse the licence is the NDMC. It has the power to decide whether any proposals are an improvement on the prescrip tions contained in the Bye laws which, indeed, is a matter of some complexity and, in conceivable cases, one calling for expertise is the NDMC itself. From the way the National Building Code, from which the provision is borrowed, has treated such provisions, it is not unreasonable to presume that the requirements were incorporated in the Bye laws with a similar approach as to their import. The clearance from the Chief Fire Officer envisaged by Bye law 17.1 is an additional condition and not a limitation on the power of the NDMC to satisfy itself that the building plans provide for adequate fire safety precaution in accordance with its bye laws or in a better measure. The clearance by the Chief Fire Officer, which is expected to involve and follow a technical assessment and evaluation, obliges the NDMC to give due weight to it but, having regard to the scheme and language of the Bye laws the decision of the Chief Fire Officer is not binding on the NDMC. We accept the submis sions of Shri Sibal that clearance of the plans by the Chief Fire Officer would not render it obligatory on the part of the NDMC ipso facto to treat the plans as necessarily com plying with the requirements of relevant Bye laws. While the clearance by the Chief Fire Officer is an indispensable condition for eligibility for sanction, however, such clear ance, by itself, is not conclusive of the matter nor binding on the NDMC. On the material placed before us we are inclined to hold on points (a) and (b) that the requirements of Bye laws 16.4.8 are not inflexible and that in appropriate cases, where the plans and designs incorporate fire safety measures which, in judgment of the NDMC, are considered to provide for the safety in a measure better than those 610 envisaged by the Bye laws 16.4.8, the NDMC would not be precluded from accepting them. Whether the plans submitted by Respondent 1 distributing 'Refuge Areas ' in each floor provide such a better and more reliable fire safety measure is a matter for the decision of the NDMC. We also hold that the clearance from the Chief Fire Officer in this behalf though entitled to weight, would not be binding on the NDMC which can and is entitled to examine the question independ ently of such clearance from the Chief Fire Officer. Re: point (c): Bye law 16.4.8.1 requires that Ref uge Areas shall be provided on the "external walls" by means of cantilever projections or "in any other manner". In the present case the Refuge Areas are provided on the walls that open into an inner vacant space. They are provided on walls which respondents say are "external walls" having regard to the definition of that expression in Bye law 2.27. The definition is not conclusive; but is subject to the context indicating a contrary import. The purposes of refuge areas include that in the event of an out break of fire in the building, persons exposed to the hazard should be able to have immediate access to a place of safety which by its access to fresh air insulates them from heat and smoke and further that those persons could conveniently be extricated and rescued to safety by rescue operations. The word "exter nal wall" in Bye law 16.4.8.1 which is a provision intended to promote public safety, health and well being must receive a purposive construction which promotes those objects and purposes. Refuge area located on a wall though abutting an inner vacant space would not, by itself, promote the object if the vacant space is such that no rescue operations are possible to be conducted therefrom. If the fire fighting and rescue equipment cannot have access to such inner vacant space, then, in the context of the specific objectives of bye laws 16.4.8.1, the wall abutting such inner vacant space would not be an "external" wall for purposes of the said bye law. Having regard to the very purpose of providing for "Refuge Areas" intended, as it is, to secure protection to persons in the event of an out break of fire in a high rise building, the expression "external wall" must be held to be one which abuts a vacant space to which fighting and rescue equipment can have access and from which rescue operations are feasible. We find it difficult to accept the submissions of Sri Nariman based purely on the definition in Bye law 2.27. The definition is subject to the context suggesting or requiring a different meaning. The context here does suggest such a different import. Having regard to purpose Bye law 16.4.8.1 is intended to serve "Refuge Areas" must be located on walls which open into vacant space from which rescue operations are possible. NDMC should decide this question and examine whether such rescue 611 operations are feasible from the inner circular vacant space. This is an exercise individual to each case and to be judged on case to case basis. The words 'in any other man ner ' in Bye law 16.4.8.1 are not intended to envisage a totally different idea of the location of 'Refuge Areas ' but, prima facie, intended to suggest some feasible alterna tive to the technical design of the construction of the Refuge Area Whether it should be a cantilever projection or designed in some other way. Point (c) is held and answered accordingly. Re: point (d): One of the contentions raised by Sri Nariman was that the insistence of 1 sq. m. per person for calculating the extent of the Refuge Areas is discriminatory as the NDMC had reduced the requirement only to 0.3 sq. m. per person in many other similar highrise buildings. In the course of the counter affidavit filed by Sri Karam Chand, Architect of NDMC, this claim that the extent of refuge area could be calculated at 0.3 sq. metre per person instead of 1.0 sq. metre per person is not disputed. Indeed, it is stated in the said affidavit: " . . The NDMC does not have any objection to the provision of 1.0 sq. metre per person as required by by law 16.4.8.1. In the event the Statesman Limited wish to provide only 0.3 sq. metre per person in accordance with the resolution of August 4, 1988, the NDMC would have no objection to the same and the States man Limited in this regard be directed to amend their building plans in accordance with their desires . . " Respondents are therefore at liberty to limit the Ref uge Areas to 0.3 sq. metre per person as against 1.0 sq. metre per person. Re: point (d): This relates to the insistence on construction of a "pedestrian walk way" and a "podium" parallel to Barakhamba Road in front of the proposed build ing. Though the zonal development plans envisaging a raised pedestrian walk way on either side of Barakhamba Road and the provision for podia connecting the building with the walk way were accepted and an appropriate notification issued way back in 1966, no steps appear to have been taken to give effect to them in a uniform manner. In the very nature of the concept of a pedestrian walk way on either side of the road, the insistence for provision of such a walk way in an individual case without the integration and continuation of the walk way along the whole of the road, 612 would indeed, be purposeless. Several authorities, including a committee constituted by the Lt. Governor of Delhi in 1983 and the Chief Fire Officer, have advised against the imple mentation of the proposal. In the instant case the Chief Fire Officer has, it is not disputed, expressly opined against the desirability of such a 'walk way '. The NDMC has to bestow serious re consideration on its insistence to have such a pedestrian walk way for the building, if such walk ways do not already obtain in other buildings on the Road. The only way in which, perhaps, the zonal developmental requirements in this behalf and the difficulties and prob lems inherent in the insistence upon construction of such pedestrian walk way in an isolated particular case, could be reconciled is to direct the NDMC, in the event of its ap proving the plans otherwise, to keep the requirement of the pedestrian walk way and the podium in abeyance for the present, subject to a written undertaking to be lodged with it by the respondent 1 and 2 to the effect that whenever the policy to implement the Zonal Developmental requirements in this behalf is finally decided upon, the respondent 1 and 2 would undertake to put up such a pedestrian walk way and Podium. The NDMC also, if it so chose, could secure the requisite financial guarantees for the construction of such a pedestrian walk way by the NDMC itself at the expense of the respondent if Respondent 1 and 2 fail to do so whenever so required. This course would, while ensuring the prospect of compliance with the Zonal Development prescriptions, if they are decided to be put into effect, also allay the apprehension of Respondent 1 and 2 that Governmental author ities are dealing with the Statesman 's project with 'an evil eye and an uneven hand. Point (d) is answered accordingly. We might advert here to the grievance of Respondent 1 and 2 that the NDMC did not raise, at the appropriate stage, any specific objections to the plans on the ground that either they were not in conformity with Bye law 16.4.8 or 16.4.8.1 or that the plans were .defective for want of pedestrian walk way. Objection based on bye law 16.4.8.1, it was urged, was never in mind of the NDMC. These objections, it was urged, were developed from stage to stage leaving the inference inescapable that the NDMC was pre determined to decline the sanction for the 'Statesman House ' on one ground or another. We are afraid, the way NDMC has developed its stance from time to time incurs and perhaps justifies this griev ance. Indeed, at no stage of the proceedings before the High Court, or even in important 613 communications bearing on the question of the sanction, did the NDMC refer to the specific objection based on the lacuna that Refuge Areas were not located on the "external" walls, as interpreted by the NDMC and the lack of a provision for the pedestrian walk way. Sri Nariman urged that we should not permit the NDMC to raise these belated and laboured objections. We have considered these submissions. We have proceeded to consider the contentions of the NDMC even on these points on the merits in view of the fact that they are matters of some general public importance, though we are not unmindful that the NDMC has not been business like in the way it has dealt with the question from time to time. It is for this reason that though in view of the findings recorded on the various contentions, the order dated 24.4. 1989 of the High Court requires to be and is hereby set aside, however, we keep this appeal pending for such final orders and directions as may become necessary to be issued. In the meanwhile. We permit Respondent 1 and 2 to effect such rectifications to the plans in regard to the Refuge Area as may be necessary in the light of the observa tions in this order. The refuge areas could be located in each of the floors separately, provided that it could be shown to the satisfaction of the NDMC that such a measure would better promote fire safety in the building and, pro vided further, that they are located on external walls "by cantilever projection or in any other manner" abutting a vacant space from which rescue operations are rendered possible. If such rectifications to the plans are made and submitted within 3 weeks from today, the NDMC will consider and decide the question of according sanction to the plans in the light of the observations in this order and without insisting upon any fresh clearance from DUAC or the Chief Fire Officer within 3 weeks thereafter and report to this Court the decision taken upon such re construction. This appeal shall be kept pending and be taken up for final disposal after the submission of the report from the NDMC in this behalf. If respondents 1 and 2 are aggrieved by such fresh decision of the NDMC, those grievances shall be considered in the further proceedings in the appeal. It was also submitted to us that pending final decision, respondents 1 and 2 should be permitted to com mence the construction as delays had entailed serious cost and time over runs. We permit 614 respondents, at their option, to commence the construction work according to the plans submitted by them, on the condi tion that they file a written undertaking before the NDMC that the construction would be at the risk of the Respond ents 1 & 2 and it would not progress beyond a height of 15 metres and in the event of an ultimate rejection of the plans, they would have no claim against the NDMC for any loss occasioned to respondent 1 and 2. 22. The appeal is directed to be called after 6 weeks to await the further report of the NDMC referred to in para 20 supra. Ordered accordingly. [/INST]Section 10(1) of the , does not confer on the appropriate Government the power to cancel or supersede a reference made thereunder in respect of an industrial dispute pending adjudication by the tribunal constituted for that purpose. Nor can section 21 of the , vest such a power by necessary implication. It is well settled that the rule of construction embodied in section 21 of the can apply to the provisions of a statute only where the subject matter, context and effect of such provisions are in no way inconsistent with such application. So judged it is clear that that section cannot apply to section 10(1) of the . Minerva Mills Ltd. vs Their Workmen, ; , held inapplicable. 1192 Strawboard Manufacturing Co. Ltd. vs Gutta Mill Workers ' Union, ; , explained. The Textile Workers ' Union, Amritsar vs The State of Punjab and others, A. I. R. 1957 pun. 255 and Hayendranath Bose vs Second Industrial Tribunal, , overruled. South Indian Estate Labour Relations Organisation vs The State of Madras, , distinguished. Consequently, where the appropriate Government by two notifications, issued one after the other, referred two industrial disputes between two batches of workmen and their employer for adjudication to the industrial tribunal constituted for that purpose and, thereafter, by a third notification superseded the two earlier notifications and the High Court, on the applications of both the workmen and the employer under articles 226 and 227 of the Constitution, issued a writ of certiorari quashing that notification and by a writ of mandamus required the tribunal to proceed expeditiously with the two references and the State Government appealed: Held, that the impugned notification was invalid and ultra vires 'and the finding of the High Court must be affirmed. Held, further, that since a reference under section 10(1) of the was in the nature of an administrative act, the more appropriate writ to issue would be one of mandamus and not one in the nature of certiorari. The State of Madras vs C. P. Sarathy, , referred to. </s>

<s>[INST] Summarize the judgementCivil Appeals Nos. 133 188 of 1975. [Appeals by Special Leave from the Judgments and Orders dated the (1) 29 4 1970, (2) 28 7 1970, (3) 12 3 1970, (4) 28 7 1970, (5) 7 9 1970, (6) 7 4 1970 & (7) 12 3 1970 of the Madras High Court at Madras in (1) W.P. Nos. 2929, 3253 and 68, 123 and 260 of 1970, (2) W.P. Nos. 1606 and 1607/70, (3) W.P. Nos. 1998, 2484, 2567, 2568, 2569, 2663 65, 3046, 3125, 3126, 3182, 3363 65, 3410, 3508, 3555 60, 3630, 3631, 3667 3668, 3810 3812 and 869 3650 of 1969, (4) W.P. Nos. 2647, 2648/69 and 1121, 1451, 1452 and 1495 and 1496 of 1970, (5) W.P. Nos. 1912, 1913, 1919, 2123, 2318, 2516 and 2610 of 1970, (6) W.P. Nos. 2088, 2317 and 2515/70 and (7) W.P. No. 3666 of 1969 respectively. Niren De, Attorney General of India and R. N. Sachthey, for the Appellants. M. R. M. Abdul Karim and Shaukat Hussain for the Respondents (In Cas. Nos. 137, 140, 149, 152 155, 164, 169, 178, 179, 181, 182, 183 and 187/75.) Mrs. section Gopalakrishnan for the Respondents (In CA No. 177 of 1975). The Judgment of the Court was delivered by RAY, C.J. These appeals arise out of the judgment dated 11th December, 1968 in writ petition No. 3838 of 1968 in the High Court at Madras. In the present appeals the writ petitions in the High Court were allowed following the judgment of the High Court in the aforesaid writ petition No. 3838 of 1968. In Civil Appeals No. 262 273 of 1971 arising out of the common judgment dated 11 December, 1968 of the High Court at Madras in writ petition No. 3838 of 1968 this Court in the decision in Union of India & Anr. vs M/s Parameswaran Match Works etc. set aside the orders of the High Court and dismissed the writ petitions. The present appeals were not heard at that time because service was not complete. This Court by order dated 14 July, 1975 directed that these appeals be listed for hearing on 21 November, 1975. The Union made an application for consolidation of appeals, reduction of security and early hearing of the appeals. The respondents were served in that application. Pursuant to that application this Court ordered on 14 July, 1975 the hearing of the appeals on 21 November, 1975. The respondents have entered appearance in all these appeals. In these appeals the respondents who were petitioners in the High Court asked for a writ of prohibition restraining the appellants from collecting any duty in excess of Rs. 3.75 per gross from the petitioners in pursuance of notification dated 21 July, 1967 as amended by notification dated 4 September, 1967. The case of the respondents in the High Court was that they filed declaration on 22 December, 1969 for 1969 70 that they would not produce more than 75 million match sticks during the financial year. The respondents claimed to be entitled to the concessional 870 rate of excise duty at Rs. 3.75 per gross pursuant to the notification dated 21 July, 1967. The further case of the respondents in the High Court was that the notification dated 4 September, 1967 was issued stating that the concession of Rs. 3.75 per gross would be available to such "D" Class manufacturers who had filed the declaration before 4 September, 1967. The respondents challenged the fixing of the date 4 September, 1967 as an arbitrary time limit making unreasonable discrimination between the same category of manufacture simply on the basis of the application being before or after 4 September, 1967. The respondents craved reference to the judgment of the High Court in writ petition No. 3838 of 1968 dated 11 December, 1968 and prayed for orders in terms of that judgment. The High Court accepted the petition of the respondents following the judgment in writ petition No. 3838 of 1968 dated 11 December, 1968. The appellants challenged the decision of the High Court and relied on the decision of this Court in M/s Parameswaran Match Works case (supra). This Court in M/s Parameswaran Match Works case (supra) held that the purpose of the notification dated 4 September, 1967 was to enable bonafide small manufacturers of matches to earn a concessional rate of duty by filing the declaration. The small manufacturers whose estimated clearance in a year was less than 75 million matches would have availed themselves of the opportunity by making the declaration as early as possible because they would become entitled to the concessional rate of duty on their clearance from time to time. The purpose of the notification was to prevent larger units who were producing or clearing more than 100 million matches in a year and who could not have made a declaration from splitting up into smaller units in order to avail of the concessional rate of duty by making the declaration subsequently. The classification founded on a particular date was held to be reasonable because the choice of a date was to protect the smaller units in the industry from competition by the larger ones and that object would have been frustrated if by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty. Counsel for the respondents relied on an observation of this Court in M/s Parameswaran Match Works case (supra) at page 576 of the Report to the effect that the manufacturers who came to the field after 4 September, 1967 were entitled to concessional rate of duty if they satisfied the condition prescribed in clause (d) of the notification dated 4 September, 1967. In M/s Parameswaran Match Works case (supra) the match works asked for a licence on 5 September, 1967 for manufacturing matches stating that it began the industry from 5 March, 1967 and also filed a declaration that the estimated manufacture for the financial year 1967 68 would not exceed 75 million matches. Parameswaran Match Works contended there that it was denied the benefit of the concessional rate of duty on the ground that it applied for a licence and filed the declaration on 5 September, 1967 after the expiry of the fixed date. This Court held that the 871 concessional rate would be availed by them who satisfied the condition laid down in the notification. The case of the respondents as laid in the petition before the High Court was that they were claiming an order in terms of the judgment in writ petition No. 3838 of 1968. There is no allegation in the petition that the respondents came to the field after 4 September, 1967 or that they started manufacturing matches after 4 September, 1967. The notification dated 4 September, 1967 gave relief, inter alia, to factories mentioned in sub clause (d) of the notification. The factories mentioned in sub clause (d) are those "whose production during any financial year does not exceed or is not estimated to exceed 100 million matches and are recommended by the Khadi and Village Industries Commission for exemption under this notification as a bonafide cottage unit or which is set up by a cooperative society registered under any law relating to cooperative societies for the time being in force". There are no allegations in the petitions in the High Court that the respondents were recommended by the Khadi and Village Industries Commission for exemption as bonafide cottage units or were set up by cooperative society registered under any law relating to cooperative societies. No case was made by the respondents in the petitions on the basis of exemption under sub clause (d). A contention was advanced by the respondents that the Khadi and Village Industries Commission was not competent to make any recommendation as contemplated in sub clause (d) . Section 15 of the which speaks of the functions of the Commission states in clauses (c), (d), (f), (g) and (h) that the Commission may take steps to provide for the sale and marketing of khadi or of products of village industries, to encourage and promote research in the development of village industries. to undertake, assist or encourage the development of village industries, to promote and encourage cooperative efforts among manufacturers of khadi and persons engaged in village industries. Section 15(h) specifically states that the Commission may take steps for ensuring the genuineness of, and for granting certificates to producers of, or dealers in, khadi or the products of any village industry. These provisions indicate that the Khadi and Village Industries Commission is competent to grant certificates recommending village industries for exemption under clause (d) of the notification dated 4 September, 1967. The appeals are all covered by the decision in M/s Parameswaran Match Works case (supra). The appeals are accepted. The orders of the High Court are set aside and the petitions are dismissed. There will be one set of costs to the appellants. P.B.R. Appeals allowed. [/INST]The resondent filed a suit against the Union of India alleging that due to negligence of the railways a consignment of tobacco despatched by him to Gaya was substituted in transit and that in its place inferior tobacco was delivered at Gaya. The railways on the other hand alleged fraud and collusion between the respondent and his father, also a bidi tobacco merchant in Gujarat, because by deliberate manipulation, the respondent consigned inferior goods to Gaya and superior goods to Gujarat. The trial court dismissed the respondent 's suit. The High Court allowed the suit for damages but refused refund of excise duty said to have been paid by the respondent. Dismissing the appeal to this Court, ^ HELD: (1) The appellant had not been able to make out a case of fraud. The High Court was justified in negativing the plea of fraud and in decreeing the suit. [904 FG] (2) Fraud, like any other charge of criminal offence, whether made in civil or criminal proceedings must be established beyond reasonable doubt. However suspicious may be the circumstances, however strange the coincidences and however grave the doubts, suspicion alone can never take the place of proof. [904 FG] A. L. N. Narayanan Chettyar vs Official Assignee, High Court Rangoon, A.I.R. 1941 P.C. 93, referred to. In the instant case there is absolutely no evidence to show any prior meeting of the minds between the respondent and his father before the consignment was sent either to Gujarat or Gaya so as to raise an inference that these two persons had hatched up a conspiracy in order to defraud the appellant. [904 EF] </s>

<s>[INST] Summarize the judgementivil Appeal No. 2111 of 1969. (Appeal by Special Leave from the Judgment and Order dated 26 9 1968 of the Madhya Pradesh High COurt in Civil Revision No. 711/66). V.S. Desai, P. C. Bhartari and D. N. Misra for the Appel lants. B.N. Lokur and Rameshwar Nath for the Respondents. 1018 The Judgment of the Court was delivered by SHINGHAL, J. This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court dated September 26, 1968 setting aside the appellate order or the Second Additional District Judge, Indore, dated Octo ber 29, 1966 and remitting the matter to the Municipal Commissioner for a fresh determination of the annual value of the building. The building in question is known as "Viram Lodge", on Ravindra Nath Tagore Marg, Indore. It belongs to the respondent and has been used by them as a hotel. The annual gross rental value of the building was determined at Rs. 6600/in 1956. It was revised by the Assessment Officer on June 3, 1965 and was raised to Rs. 43,405.20. The respondents filed objections to the valuation, but the Municipal Commissioner fixed the annual value at Rs. 43,405.20. He held that, in view of the "non obstante" clause in section 138(b) of the Madhya Pradesh Municipal Corporation Act, 1956, hereinafter referred to as the Act, there was no justification for the .argument that the rental value of the premises could not be fixed at a rate higher than the standard rent under section 7 of the Madhya Pradesh Accommodation Control Act, 1961. An appeal was taken to the Second Additional District Judge, but without suc cess. The respondents then filed an application for revi sion, which was allowed by the impugned judgment of the High Court dated September 26, 1968. This is how the present appeal has arisen at the instance of the Municipal Corporation and its officers. Section 138 of the Act prescribes the mode for determin ing the annual value of any land or building for purposes of assessing it to property tax. Clause (a) of the section deals with the annual value of land, and it is not the case of the parties that it has any bearing on the controversy. Clause (b) prescribes the mode of determining the annual value of a building and reads as follows, "(b) the annual value of any building shall notwithstanding anything contained in any other law for the time being in force be deemed to be the gross annual rent at which such building, together with its appurtenances and any furniture that may be let for use or enjoyment therewith might reasonably at the time of assessment be expected to be let from year to year, less an allowance of ten per cent for the cost of repairs and for all other expenses necessary to maintain the building in a state to command such gross annual rent. " There are two explanations to the clause. It is nobody 's case that they have any bearing on the short point in con troversy before us. Clause (c) of the section prescribes that if the gross annual rent of a building cannot be deter mined under clause (b), the annual value of the building shall be determined according to that clause. If is 1019 not in controversy before us that the Viram Lodge was never let on rent, and is being run as a hotel by its owners, the present respondents, so that the .question of fixing its standard rent under section 7 of the Madhya Pradesh Accommodation Control Act, 1961, has not arisen. It has argued that, even so, the reasonable rent contemplated by section 138(b) of the Act cannot exceed the standard rent to be fixed under the aforesaid section 7. It has thus been 'urged that it was incumbent for the Municipal Commissioner to determine the annual value of the building on the same basis on which its standard rent was required to be fixed under section 7. Reliance in this connection has been placed on the deci sions of this Court in The Car oration of Calcutta vs Smt. Padma Debi and others,(1) Corporation of Calcutta vs Life Insurance Corporation of India(2) Guntur Municipal Council vs Guntur Town Rate Payers 'Assiciation(3) New Delhi Munici pal Committee vs M.N. Soi and another.(4) As has been stated, clause (b) of section 138 of the Act provides that the annual value of any. building shall "notwithstanding anything contained in any other law for the time being in force" be deemed to be the gross annual rent for which the building might "reasonably at the time of the assessment be expected to be let from year to year. " While therefore the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so "notwithstanding anything contained in any other law for the time being in force". It appears to us that it .would be a proper interpretation of the provisions of clause (b) of section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, hit, where this is not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permis sible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion, give proper effect to the non obstante clause in clause (b with due regard to its Other provision that the letting value should be "rea sonable". We have gone through the decision in Padma Debi 's case (supra). There the premises were on rent and section 127(a) of Calcutta Municipal Corporation Act, 1923, did not con tain a non obstante clause. That the section provided, inter alia, was that the annual value shall be deemed to be the gross annual rent at which the land or building might at the time of assessment "reasonably be expected to let from year to year." This Court examined the significance of the word "reasonable" and held that it would be incongruous to . (1) ; (2) [1971] 1 .C.R. 248. (3) ; (4) ; 15 1338SC1/76 1020 consider fixation of rent beyond the limits fixed by penal legislation as reasonable. That view was taken with refer ence to the provisions of the Rent Control Act which pena lised the taking of a higher rent, and also ' made it irrecoverable. While, therefore, we are in agreement with the view taken in Padma Debi 's case (supra) that it would not be reasonable to consider fixation of rent beyond the limits fixed by the Rent Control Act as reasonable, it would not be a proper interpretation of section 138(b) of 'the Act to ignore the significance of its non obstante clause altogether. That is why we have taken the view that it would be a fair and reasonable interpretation of section 138(b) to hold that as no standard rent has been fixed so far in respect of the Viram Lodge, the Municipal Commis sioner was justified in adopting another suitable criterion for determining the annual value of the building. There is in fact nothing in the Act to. make it obligatory for the Commissioner to follow the provisions of the Madhya Pradesh Accommodation Control Act in spite of the non obstante clause and to limit the annual value to any standard rent that the building might fetch under that Act. We have also gone through Corporation of Calcutta vs Life Insurance,Corporation of India (supra). That was also a case where the premises had been let out on rent. The standard rent had also been fixed, and that was why Padma Debi 's case (supra) was held to be applicable. So also, Guntur Municipal Council vs Guntur Town Rate Payers ' Association (supra) was a case where the premises.were on rent and there also Padma Debi 's case was held to be applicable even though the standard rent had not been fixed, because it was held that there was nothing to prevent the authorities concerned from ascertaining the fair rent by keeping in view the principles which had been laid down for its determination under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. Section 82(2) of the Madras District Municipalities Act, which governed that case, did not contain a non obstante clause. Much the same was the position in M.N. Soi 's case which related to a house in New Delhi, of which rate had to be assessed under the provisions of the Punjab Municipal Act, 1911. The High Court did not properly appreciate the differ ence between the wordings of section 127 of the Calcutta Municipal Corporation Act, 1923, and section 138(c) of the Act, and committed an error in thinking that this was virtu ally similar to Padma Debi 's case. We find that the High Court has taken the view that a full hearing was not given to the respondents at the time of fixing the annual value of the Viram Lodge and that the valuation was based on "no principle". Here again, the High Court was clearly in error because we find from the judgment of the Second Additional District Judge, dated October 29, 1966, that the counsel for the respondents 1021 was given "ample opportunity" by the Municipal Commissioner to represent his case before him. He has also stated that the Assessment Officer paid due regard to all the relevant circumstances which had a bearing on the determination of the reasonable letting value of the building. Counsel for the respondents has in fact not found it worth his while to argue either that such a hearing was not given, or that all the relevant factors were not taken into consideration in determining the annual letting value of the premises. In the result, the appeal is allowed and the impugned judgment of the High Court dated September 26, 1968, is Set aside. The appellants will however pay the costs of the respondents as stipulated in the order of this Court grant ing the special leave. P.H.P. Appeal al lowed. [/INST]Section 15(a) of the as it existed at the rele ant time enacted that tax in respect of any sale or purchase of declared goods inside the State shall not be levied at more than one stage. According to cl. (b) if these goods were subsequently sold, in the course of inter state trade, the tax to levied shall be refunded to such person as prescribed in the State law. The proviso to section 4 of the Tamil Nadu General Sales Tax Act and r. 23 of the Rules provide for the refund of the sales tax in the type of cases mentioned in section 15(b). The appellant bought cotton yarn from local dealers and sold it by way of inter_state sale. It paid the State sales tax and claimed refund under section 15 (b)of the Central Act. It succeeded in part at each of the different stages; but on second appeal for the balance, the Appellate Tribunal re jected the appellant 's claim and held that it was not enti tled to any refund including the relief granted by the Appellate Assistant Commissioner. The High Court rejected its revision petition. Allowing the appeal, HELD: (1) The appellant firm is entitled to be paid the amount of sales tax levied under the State Act in respect of the goods sold by it in the course of inter State trade provided the appellant has paid the sales tax tinder the central Act in respect of those sales. [956 E] (2) The proviso to section 4 of the State Act read with the rules leaves no doubt that the amount has to be paid to the dealer who sells the goods in the course of inter State trade and who has paid the tax under the Central Act in respect of such sale. [955 B] (3)(a) There is no anomaly in paying the amount of the sales tax under the State Act to a dealer who sells declared goods in the course of inter State trade even though he did not himself pay the tax under the State Act in respect of those goods. The reason for that is the price charged from such dealer by the person from whom he purchased the goods would normally take into account the sales tax paid by the seller. [955 C] (b) The case of M. A. Khader & Co. vs Deputy Commer cial Taxation officer 25 S.T.C. 104 followed by the High Court is distinguishable on facts. The question of asking for refund of the sales tax paid under the State Act did not arise directly in that case. The emphasis in the word 'refunded ' as used in section 15(b) of the Central Act and the proviso to section 4 of the State Act. on repayment of the amount. [954 G] (4) (a) A word can have many meanings. To find out the exact connotaon of a word in a statute, one should look to the context in which it is used. The context would quite often provide the key to meaning of the word and the sense it should carry. Its setting would give. colour to it and provide due to the intention of the legislature in using it. In the instant case the context in which the word "refund ed" is used shows that such repayment need not be to the person who initially paid the tax. [954 H] 951 (b) The amended provision makes it plain beyond doubt that the tax levied under the State Act in respect of declared goods has to be reimbursed to the person making sale of those goods in the course of inter State trade or commerce in such manner and subject to such conditions as may be provided in the law in force in that State. Accord ing to the notes on clauses appended to the statement of objects and reasons of the Bill the amendment made in cl. (b) makes it clear that local sales tax would be reimbursed to the person making the sale in the course of inter State trade and commerce. The amendment made in cl. (b) can thus be taken to be an exposition by the legislature itself of its intent contained in the earlier provision. [955 G] (c) The fact that the amendment of cl. (b) of section 15 was not like some other provisions given retrospective effect, would not materially affect the position. The legislature as a result of the amendment clarified what was implicit in the provisions as they existed earlier. An amendment which is by way of clarification of an earlier ambiguous provision can be useful aid in construing the earlier provi sion even though such amendment is not given retrospective effect. [956 B] </s>

<s>[INST] Summarize the judgementAppeals Nos. 206 to 210 of 1964. Appeals from the judgment and orders dated September 26, 1961 of the Calcutta High Court in income tax Reference No. 24 of 1957. Niren De, Additional Solicitor General, Ganapathy Iyer and R.N. Sachthey, for the appellants. Sampat lyengar, B.R.L. Iyengar and D.N. Gupta, for the respondents. The Judgment of the Court was delivered by Sikri, J. These appeals by certificate granted by the High Court of Calcutta under section 66(A)(2) of the Indian Income Tax Act, 1922, are directed against the judgment of the said High Court answering two questions referred to it against the Revenue. The questions are: (1) Whether the profit arising to the assessee company from miscellaneous insurance transactions of mutual character was assessable under the Indian Income Tax Act, and (2) If the answer to question No. (1) is in the affirmative, whether on the facts and in the circumstances of the case the balance of the profits as disclosed in the assessee company 's profit and loss account after deducting the various reserves should be the taxable profits within the meaning of Section 2(6C) read with Rule 6 of the Schedule of the Indian Income Tax Act. The relevant facts and circumstances are as follows: The respondent. the Calcutta Hospital and Nursing Home Benefits Association Limited, hereinafter referred to as the assessee, is a mutual insurance concern carrying on miscellaneous insurance business. The principal objects for which the Association was established were: (1) By means of insurance on the mutual principle to provide, or help towards providing, anywhere in the world for the expense of accommodation and treatment in hospitals 634 and nursing homes and of private nursing for members and their dependants; (2) To organise insurance on the mutual principle under Rules and Regulations to be framed for the purpose with the object of providing such hospital, medical, surgical, nursing and allied services as before mentioned, of supporting and assisting hospitals, in Calcutta or elsewhere; of relieving members or then dependants, in whole or in part from the payment of hospital and other charges while in receipt of such hospital, medical, surgical, nursing and allied services; and of reimbursing and repaying to members or their dependants in whole or in part, all payments for such hospital and other charges which they may have incurred or made which in receipt of such hospital, medical, surgical, nursing and allied services. The members were required to pay a monthly premium, but there was a waiting period of four months for all bench its other than maternity, for which the waiting period was one year. Benefits and privileges became available as from the first day of the fifth calendar month of registration (in respect of Maternity the 13th month) and continued to be available thereafter so long as the subscriptions were not in arrear. These appeals are concerned with the assessment years 1949 50 to 1953 54 and the relevant accounting years ended on December 31, 1948, December 31, 1949, December 31, 1950, December 31, 1951 and December 31, 1952, respectively. In the statement of the case, the Appellate Tribunal describes the accounts maintained by the assessee thus: "The assessee 's published revenue accounts contained three classifications, viz. (i) miscellaneous insurance business revenue account, (ii) profit and ' loss account and (iii) profit and loss appropriation account. In the miscellaneous insurance business revenue accounts were included subscriptions from the members, gross premia from the members and from such amounts were deducted general reserve and or contingency reserve. Reserve so made were transferred to the balance sheet as credit accounts. The claims paid or payable and the expenses of management were deducted from this revenue account. The balance of the miscellaneous insurance business revenue account was transferred to the profit and loss account to the credit of which was further added interest on investments and the debits included provision for taxation, interest on loan, contribution to provident fund and depreciation. The balance of this account being the balance of profit and loss account was transferred. to the profit and toss appropriation account. Therefrom, in one year, ended 635 31st December, 1949, further deduction was made against contingency reserve and the balance either loss or profit was carried forward. " We may now set out the facts regarding 1949 50 assessment. It is not necessary to state the facts regarding other assessment years. The Income Tax Officer for the assessment year 1949 50 added the reserve for taxation, Rs. 1000/ , to the net profit as per profit and loss account, which showed a profit of Rs. 1,653/ , and after deducting depreciation, he assessed the total income at Rs. 2,651/ . On appeal, the Appellate Assistant Commissioner upheld the order of the Income Tax Officer. Following the decision of the Bombay High Court in Bombay Mutual Life Assurance Society Ltd., vs Commissioner of Income Tax, Bombay City (1) he held that the income was assessable to income tax and that under Rule 6 of the Schedule to the Income Tax Act it was permissible for the Income Tax Officer to add the reserves to the income disclosed in the profit and loss account. On further appeal, the Appellate Tribunal found no difficulty in holding that section 2(6C) of the Income Tax Act, according to its true interpretation, included income or the profits of any insurance company of mutual assurance and the said profits shall be taken to be balance of the profits disclosed by the annual accounts. Regarding the reserve, the Tribunal held that the provision for reserve was not an expense to be deducted from the profits disclosed by the assessee company in order to arrive at the profits within the meaning of r. 6, and the Income Tax Officer was entitled to add back the reserve. The High Court held that the surplus, miscalled profit, arising to the assessee company from the miscellaneous insurance transactions of mutual character was not assessable under the Indian Income Tax Act and that, in any event, the assessee was entitled to deduct the reserve. The High Court distinguished Bombay Mutual Life Assurance Society, Ltd. vs Commissioner of Income Tax, Bombay City(1) on the ground that the Bombay decision was a life insurance decision and although it was a mutual life insurance society, nevertheless different and special rules applied to life insurance and the rules with which the Bombay decision was concerned were rules 2 and 3 which did not apply to mutual insurance other than life. The second point of distinction, according to the High Court, was the very distinctive clauses in the memorandum of objects and articles of association of the assessee. Section 2(6C) at the relevant time defined 'income ' to include " . . profits of any business of insurance carried on by a mutual insurance association computed in accordance with Rule 9 in Schedule. " We may mention that another section 2(6C) was substituted by Act XV of 1955, and the wording substituted by this Act in (1) 20 I.T.R.189. 636 sub clause (vii) is "the profits and gains of any business of insurance carried on by a mutual insurance association or by a co operative society computed in accordance with rule 9 in the Schedule. " But nothing turns on the change of the language as far as a mutual surance association carrying on business of insurance is concerned. Rule 9 of the Schedule reads thus ' "9. These rules apply to the assessment of the profits of any business of insurance carried on by a mutual insurance association . . Rule 6 with which we are concerned reads thus: "The profits and gains of any business of insurance other than life insurance shall be taken to be the balance of the profits disclosed by the annual accounts, copies of which are required under the , to be furnished to the Superinte ndent of Insurance after adjusting such balance so as to exclude from it any expenditure other than expenditure which may under the provisions of Section 10 of this Act be allowed for in computing the profits and gains of a business. Profits and losses on the realisation of investments and depreciation and appreciation of the value of investments shall be dealt with as provided in Rule 3 for the business of life insurance. " The Additional Solicitor General, appearing on behalf of the appellant, contends that the Bombay High Court was right in holding that "section 2(6C) imports into the definition of 'income ', which is to be found in the charging section 3, these profits which may not be profits in the ordinary sense of the term but which are made profits by reason of Rule 2 of the Schedule because Rule 2 really gives an artificial extension to the meaning of the word 'profits ' when it says that 'profits and gains shall be taken to be '. Therefore a new class of artificial income is created by this rule and that artificial income is included into the meaning of Section 3 by reason of this rule. " Mr. Sampat Ayyangar, learned counsel for the assessee, relying on the decision of the House of Lords in Arvshire Employers Mutual Insurance Association Ltd. vs Commissioner of Inland Revenue,(1) contends that the Legislature has not made its intention clear because it has used the word 'profits ' in section 2(6C) under a misapprehension that the surplus of a mutual insurance company (1) 637 carrying on insurance business is profits. He says that in Arvshire Employers Mutual Insurance Association case(1) the Legislature had proceeded on a similar misapprehension and the House of Lords held that section 31(1) of the Finance Act, 1933 (23 & 24 Geo. V.c. 19) did not succeed in making the profits of a mutual insurance company taxable. He urges that we should follow this precedent. He relies on the following passage from the speech of Lord Macmillan at p. 347: "The structure of Section 31(1) is quite simple. It assumes that a surplus arising from the transactions of an incorporated company with its members is not taxable as profits or gains. To render such a surplus taxable it enacts that the surplus, although in fact arising from transactions, of the comp any with its members, shall be deemed to be something which it is not, namely, a surplus arising from transactions of the company with non members. The hypothesis is that a surplus arising on the transaction of a mutual insurance company with non members is taxable as profits or gains of the company. But unfortunately for the Inland Revenue the hypothesis is wrong. It is not membership or non membership which determines immunity from or liability to tax, it is the nature of the transactions. If the transactions are of the nature of mutual insurance the resultant surplus is not taxable whether the transactions are with members or with non members. " He further relies on the observations of Lord Macmillan that "the Legislature has plainly missed fire. Its failure is perhaps less regrettable than it might have been, for the Sub section has not the meritorious object of preventing evasion of taxation, but the less laudable design of subjecting to tax as profit what the law has consistently and emphatically declared not to be profit." He says that similarly in this case the Legislature has plainly missed fire. In order to appreciate the scope of that decision, it is necessary to set out the relevant part of section 31 of the Finance Act, 1933. Section 31(1) enacted: "31. (1) In the application to any company or society of any provision or rule relating to profits or gains chargeable under Case I of Schedule D (which relates to trades) . any reference to profits or gains shall be deemed to include a reference to a profit or surplus arising from trans (1)T. C. 331. 638 actions of the company or society with its members which would be included in profits or gains for the purposes of that provision or rule if those transactions were transactions with non members, and the profit or surplus aforesaid shall be determined for the purposes of that provision or rule on the same principles as those on which profits or gains arising from transactions with non members would be so determined. " The Section adopted the device of a deeming provision. The profits arising from the transactions of a company or society with its members were deemed to be profits arising from transactions with non members. Parliament assumed that the latter were taxable. As this hypothesis was wrong, Parliament failed in its objective. But the Indian Legislature did not adopt any deeming device. It defined 'income ' to include profits of any business of insurance carried on by a mutual insurance association. What are those profits is then explained by reference to the Schedule. The effect of this in substance is to incorporate r. 6 into the definition. If the legislature had defined income to include profits of insurance carried on by a mutual insurance association computed according to r. 6, very little would have remained arguable. It is, however, urged that in r. 6 also the word 'profits ' means taxable profits. But r. 6 speaks of balance of profits as disclosed in the accounts submitted to the Superintendent of Insurance. The Superintendent of Insurance is not concerned with taxable profits. What he is concerned with, inter alia, is the balance of profits for the purpose of the . It is then urged that in the definition the word 'surplus ' should have been used instead of profits. But the word 'surplus ' has a technical significance in the , and it seems to us that it would have been inexpedient to use the word 'surplus '. At any rate. r. 6 would then have been drafted differently. It is finally urged that this is a taxing statute and we should give a strict construction to the definition. The definition could still operate if we interpret it in a narrow sense as to include profits from investments and other activities of a mutual insurance company. It is said that this definition was inserted to make it clear that such profits would be taxable. We cannot accede to this contention. It was well established that such profits would be taxable apart from the new definition, We cannot understand why it was necessary 639 to make it doubly clear. Moreover, r. 6 deals with balance of profits, which would include profits arising from the business of insurance of a mutual character. It deals with balance of profits as a composite thing. It is impossible to dissect this composite thing. If we were to accede to the assessee 's contention, the definition would serve no purpose whatsoever. It seems to us that the Legislature has evinced a clear intention to include the balance of profits as computed under r. 6 within 'the word 'income ' in section 3 of the Income Tax Act, and ' accordingly such balance of profits is taxable. We are unable to agree with the High Court that the Bombay case is distinguishable in principle. It is true that the Bombay High Court was concerned with r. 2, but when we go to the schedule and find out what is the balance of profits or surplus that has been made taxable, it does not make any difference to the construction of section 2(6C) whether it is r. 2 that is applied or r. 6. Therefore, disagreeing with the High Court, we answer the first question in the affirmative. This takes us to the second question. The answer to this question depends on the true interpretation of r. 6. It seems to us that on its language the Income Tax Officer is bound to accept the balance of profits disclosed by the annual accounts, copies of which have been submitted to the Superintendent of Insurance. He can only adjust this balance so as to exclude from it any expenditure other than expenditure which may under the provisions of section 10 be allowed for in computing the profits and gains of a business. We are not concerned here with the latter part of r. 6 dealing with profits and losses on the realisation of investments, and depreciation and appreciation of the value of investments. This Court examined the provisions of the in connection with the Schedule in Pandvan Insurance Company Ltd., Madurai vs The Commissioner Income Tax, Madras(1) and arrived at the conclusion that the "makes detailed provisions to ensure the true valuation of assets and the determination of the true balance of profits of an insurance business" and that r. 6 should be construed in the light of this background. Examining r. 6 in the light of this background, it seems to us that the intention of the rule is that the balance of profits as disclosed by the accounts submitted to the Superintendent of Insurance and accepted ' by him would be binding on the Income Tax Officer, 640 except that the Income Tax Officer would be entitled to exclude expenditure other than expenditure permissible under the provisions of section 10 of the Act . It is common ground in this case that these serves which were added to the balance of profits were not expenditure. Accordingly, agreeing with the High Court, we answer the second question in the affirmative . In the result, the appeals are accepted in part. Parties will bear their own costs in this Court. Appeals partly allowed . [/INST]Out of a consignment of 60 bales of piece goods despatched by the Railway, under risk note Form Z, only 29 bales were delivered to the respondent who was the consignee. By sending the consignment thus, the consignor got a specially reduced rate but the burden was thrown on him, of proving misconduct on the part of the railway or its servants, if there was a loss of goods. The risknote also imposed an obligation on the Railway, to disclose how the consignment was dealt with by it, during the time the consignment was in its possession or control. The respondent wrote a letter to the Chief Commercial Manager of the Railway stating that 60 bales were booked but only 29 bales had been delivered, and that a suit for damages would be filed. The letter was sent within 6 months of the booking of the consignment ,and contained the details as to how the amount of damage was arrived at. Later on, a notice was given under section 80 of the Civil Procedure Code, 1908, and a suit was filed for damages. But, before the filing of the suit, there was no demand by the consignor for a disclosure as to how the consignment was dealt with by the Railway throughout the period it was in its possession or control. The Railway however, made a disclosure in its written statement as. to how the consignment was, dealt with throughout that period. Its defence was that, there was a theft in the running train and that was how part of the consignment was lost and not due to any misconduct on the part of the Railway or its servants. Even after the suit was filed and evidence let in at the trial, by the railway there was no statement by the respondent at any stage that the disclosure made by the Railway in the written statement or in the evidence, was in any way inadequate. The resplendent never told the court after the evidence of the Railway w.as over, that he was net satisfied with the disclosure and that the Railway should be asked to make a further disclosure. The suit was dismissed by the trial court but decreed on appeal, by the High Court. In the appeal to the Supreme Court it was contended that, (i) the, suit was barred by section 77 of the Indian Railways Act, 1890, inasmuch as notice required therein was not given by the respondent, and (ii) under the terms of the risk note the Railway was absolved from all responsibility for the less of the goods consigned thereunder, from any cause whatsoever. except upon proof of misconduct of the Railway or its servants, that the burden of proving such misconduct was on the respondent and that the respondent had failed to discharge the burden. HELD: (i) A notice under section 77 of the Act is necessary in the case of non delivery which arises from the loss of goods. Though the letter, written by the respondent to the Chief Commercial Manager, was not specifically stated to be a notice under the section it gave all 'the 'particulars necessary for such a notice and it was also given within time prescribed. Therefore, the letter was sufficient notice for the purpose of the Act, [149 D F] 146 Governor General in Council vs Musaddilal [1961]3 S.C.R. 647 and Jatmull Bhojraj vs The Darjeeling Himalayan Railway Co.Ltd. ; , followed. (ii) The view of the High Court, that there was a breach of the condition relating to complete disclosure, and that on such breach the risk note could be completely ignored and the responsibility of the Railway judged purely on the basis of section 72(1) of the Act, as if the goods were consigned at the ordinary rates on the Railway 'srisk, was not correct. [154 H] The responsibility of the railway administration to disclose to the consignor as to how the consignment was dealt with throughout the time it was in its possession or control arises at once, under the risk note, in either of the cases referred to therein, and is not confined to the stage of litigation. But such disclosure is necessary only where a consignor specifically asks the railway to make the disclosure. If no such disclosure is asked for, the administration need not make it before the litigation. Therefore, if the Railway did not make the disclosure, before the suit was filed, it could not be said to have committed a breach of the term of the contract [153 A D] The disclosure envisages a precise statement of how the consignment was dealt with by the railway or its servants. If the disclosure is asked for before litigation commences and is not given, or the disclosure is given but it is not considered to be sufficient by the consignor, the dispute has to be judicially decided and it is for the court to say, if a suit is filed, whether there .has been a breach ,of the term. At that stage, evidence has to be led by the railway in the first instance to substantiate the disclosure which might have been made before the litigation, to, the consignor, or which might have been made in the written statement. When the administration has given its evidence in proof of the disclosure, if the plaintiff is not satisfied with the disclosure made in evidence, he is entitled to ask the court to call upon the railway to fulfill its obligation under the contract, and the railway should then have the opportunity of meeting the demands of the plaintiff. It is then for the court to decide whether the further disclosure desired by. the plaintiff should be made by the railway, and if the court decides that it should be made, the railway has to make such further disclosure as the court orders. If the railway fails to take that opportunity to satisfy the demands of the plaintiff endorsed by the court, the railway, at that stage, would be in breach of its contractual obligation of disclosure. [153 E 154 B] The effect of the breach however is not to bring the contract to an end and throw the responsibility on the railway, as if the case was a simple case of responsibility under s.72(1). The risk note would continue to apply and the court would have to decide whether the misconduct can be fairly inferred from the evidence of the railway, with the difference that, where the railway has been in breach of its obligation to make full disclosure, misconduct may be more readily inferred and section 114 of the Evidence Act more readily applied. But the conditions of the risk note cannot be completely ignored, simply because there has been a breach of the condition of complete disclosure.[154 D G] Surat Cotton Spinning & Weaving Mills vs Secretary of State for India in Council [1937] 64 I.A. 176, applied. </s>

<s>[INST] Summarize the judgementminal Appeal No. 171 of 1959. Appeal by special leave from the judgment and order dated August 3, 1959, of the Allahabad High Court in Criminal Revision No. 1080 of 1959. 0. P. Rana and A. 0. Ratanaparkhi, for the appellant. G. C. Mathur and C. P. Lal, for The dent. March 26. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. One Ram Narain was ' ordered by the High Court of Allahabad, on June 9, 1958, to furnish a personal bond for a lakh of rupees and three sureties, two in the sum of Rs. 40,000/ each and one in the sum of Rs. 20,0001in respect of the case against him for having committed. criminal breach of trust with respect, to the funds of the Pikaura Co operative Society He 57 was to furnish the personal bond and the sureties within three weeks from the date of the order. It was further ordered: "The applicant should furnish the personal bond and sureties as 'directed above within three weeks from today and during that period he will not be arrested. If he does not furnish the bonds and sureties within this period he will be liable to be re arrested and detained till the necessary bonds and sureties are furnished. " It may be mentioned that Ram Narain had previously furnished a personal bond and sureties in connection with the embezzlement alleged to have been committed by him and that the necessity for a fresh order for furnishing personal bond and sureties arose on account of the police submitting more than one charge sheet with respect to the amount embezzled and it was felt that the original security furnished might not be, effective. On June 26, 1958, Ram Narain executed a personal bond for Rs. 1,00,000/ and offered,the required sureties. Kashi stood surety for Rs. 40,000/ , Safir Hussain for Rs. 40,000/ and Smt. Sona for Rs. 20,000/ respectively. The surety bond by Safir Hussain was not duly verified as he was in hospital at that time, but when it was put up to Safir Hussain for verification on July 12, 1958 be refused to verify it. Prior to this, on July 7, 1958, Safir Hussain filed an application before the Magistrate praying that his surety bonds in connection with the embezzlement of Rs. 40,000/ and Rs. 80,000/ be cancelled. Ram Narain was present in Court that day. No particular order was passed on this application of Safir Hussain. On July 93 1958, an application on behalf of Ram Narain was filed stating that Bekaru 's surety 58 be accepted in place of Safir Hussain 's surety. Bekaru filed the surety. bond offering himself to stand surety for Re. 40,000/ for Ram Narain 's appearance in Court. He was identified by Sri Ahmad Husain, Vakil, who certified that Bekaru Singh possessed sufficient property to stand surety for Rs. 40,000/ . The Magistrate ordered for the verification from the Tehail and on receipt of the report from the Tehsil, accepted the bond on August 20, 1958. The Tehsil report, however, indicated that the house mentioned in the surety bond and alleged to be worth Rim. 60,000/ was estimated to be worth Rs. 16,075/ . The police charge. ,sheet in the case appears to have reached the Court on August 20, 1958, when summons for the appearance of Ram Narain was ordered to be issued for September 1, 1958. The summons was not served. When Ram Narain did not appear on September 1, 1958, September 9, and September 23, the Court, on September 24, ordered action under sections 87 and 88 Cr. P.C. against him and the issue of notices to the sureties to produce him in Court. When he did not appear in Court on October 29, the Court forfeited the personal bond executed by Ram Narain and the bail bonds executed by the sureties and ordered issue of notice to the sureties to pay the penalty or show cause a.,) to why the amount be not recovered from them. Bekaru objected to the forfeiture of his surety bond. On April 20, 1959, the objection was disallowed and the learned judicial officer ordered that the amount of Rs. 40,000/ be recovered from his movable. property through attachment and sale. Bekaru appealed but his appeal was dismissed by the learned Sessions Judge. His revision application to the High Court was also dismissed. He has preferred this appeal by special leave. The main contention for the appellant is that the learned Magistrate should pot have accepted 59 Bekaru Singh 's surety bond without first taking action contemplated by sub sections (2) and (3) of section 502, Cr. P.C. Section 502 reads: "(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate e to discharge the bond, either wholly of so far as relates to the applicants. (2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him. (3 ) On the appearance of such person pursuant to the Warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicant, and shall call upon such person to find other sufficient, sureties, and, if he fails to do so, may commit him to custody. " It is urged that the Magistrate had to issue a warrant for the arrest of Ram Narain when Safir Hussain had presented his application for the discharge of his surety bond and that when Ram Narain would have appeared before the Court in execution of that warrant, the Magistrate had to first discharge Safir Hussain 's surety bond and only then could have called upon Ram Narain to furnish other surety. The Magistrate took no such stop and therefore could not have legally accepted the surety bond offered by Bekaru on July 9,1958. We do not agree with this contention. These provisions Of section 502 are meant for the continuity of the surety bond on the basis of which an accused has been released on bail till such time that the accused is before the Court and for taking further action in case the accused desires to offer another security in place of the one who is to be discharged. They are not conditions precedent for the acceptance of 60 a fresh surety in place of the earlier one. In the circumstances of the present case, there was no occasion to issue a warrant for the arrest of Ram Narain on Safir Hussain 's applying for the discharge of his surety bond We do not Know in what circumstances no particular order was passed on July 7, 1958 on the application of Safir Hussain. Ram Narain who was present in Court that day, may have intimated to the Court that he would offer a fresh surety on July 9. Anyway a fresh surety was offered on that day viz; July 9. Bekaru stood surety. An application on behalf of Ram Narain was presented praying for the acceptance. of Bekaru 's surety bond in place of Safir Hussain 'section In accepting Bekaru 's surety bond the Court committed no wrong. It was interested in getting a fresh surety for letting Ram Narain continue on bail. Bakaru offered the surety bond. His competence to stand surety for Rs. 40,000/. was certified by a Vakil, Safir Hussain 's bond therefore stood cancelled and Bekaru 's took its place. We do not therefore consider that there was any incompetency in the Magistrate 's accepting Bekaru 's surety bond in place of Safir Hussain 'section It is true that Bekaru 's surety bond was formally accepted on August 20, 1958, but that does not matter. Sub section (1) of section 499, Cr. P. C. provides that before any person is released on bail bond must be executed by such person and bonds be also executed by sureties for the attendance of that person in Court. Sub section (3) of s.499 is "(3) For the purpose of determining whether the sureties are sufficient, the Court way, if it so thinks fit, accept affidavits in proof of the facts contained therein relating to the sufficiency of the sureties or may make such further enquiry as it deems necessary. " When Bekaru furnished the surety bond he also filed 61 an affidavit stating therein that the house mentioned in the surety bond was worth over Rs. 40,000/ Sri Ahmed Husain Vakil, certified that Bekaru possessed sufficient property to stand surety for its. 40,000/ In the circumstances, the Magistrate could accept Bekaru 's surety bond. Of course the Magistrate could make further enquiry as well and it was for the purpose of further enquiry that he ordered verification from the Tehsil. Bekaru 's bond, in our opinion, was accepted on July 9, subject to further orders on the receipt of the Tehsil report. Further, Ram Narain 's continuing on bail is justified by the provisions of 8. 500 Cr. P. C., once Bekaru 's surety bond had been filed. Its sub section (1) provides that as soon as the bond has been executed, the person for whose appearance it has been executed shall be released. This contemplates that the accused is to be released on the execution of the bonds which should be accepted on their face value in the first instance. Section 501, Cr. P. C. provides for the issue of a warrant of arrest of the person so released on bail if it is subsequently found that through mistake, fraud or otherwise, insufficient sureties bad been accepted, or if they afterwards became insufficient. We are therefore of opinion that formal acceptance of Bekaru 's surety bond on August 20, 1958 by the Magistrate does not in any way affect Bekaru 's liability on that bond from July 9, 1958. Any way, he was liable on that bond for the non appearance of Ram Narain on a date subsequent to August 20, 1958. It may be mentioned that it was urged up to the appeal stage that the surety bond was accepted on the 20th of August 1958 after the Magistrate had known of the absconding of Ram Narain. The Courts found against this allegation as there was no evidence in support of it. Another point urged is that the surety bond executed by Bekaru Singh did not have on the other 62 side the personal bond executed by Ram Narain and that in the absence of a personal bond by Ram Narain, the surety bond executed by Bekaru could not be legally accepted. Reliance is placed on the case reported as Brahma Nand vs Emperor (1) and a few other cases expressing the same view. These cases are distinguishable on facts. In Brahma Nand 's case. (1) the accused himself had not executed any bond and therefore it was held that the surety bonds could not be forfeited. In the present case Ram Narain executed bond on June 26, 1958. Kasbi, one of the sureties, executed the surety bond printed at the back of the bond executed by Ram Narain. Ram Narain had already bond himself to pay Rs. 1,00,000/ in case he failed to appear in Court when required. Other sureties bond themselves to pay the various amounts in case Ram Narain did not appear. Their surety bond are good by themselves. Bekaru 's surety bond is there fore as effective and legal as Kashi 's bond which is just on the back of Ram Narain 's bond. It is not required by any provision of the Code of Criminal Procedure that all the sureties should execute the bond printed at the back of the form on which the accused execute the personal bond or that the accused must execute as many bonds in identical terms as there are surety bonds by individual sureties. The mere fact that Form No. XLII, Schedule V. Criminal Procedure Code, prints the contents of the two bonds, one to be executed by the accused and the other by the surety, together, does not mean that both these bonds should be on the same sheet of paper. We are, therefore, of opinion that Bekaru 's bond can be forfeited if Ram Narain does not comply with the terms of his bond executed on June 26, 1958 and that Ram Narain had not to execute a (1) A. 1. R. 1939 All. 63 bond afresh when Bekaru furnished fresh surety in place of Safir Hussain 's surety bond. We therefore hold that the appellant 's bond has been rightly forfeited on the non appearance of Ram Narain in 'Court. We therefore dismiss the appeal. [/INST]Respondent 1 was declared elected to the Legislative Assembly. His election was challenged, inter alia, on the ground that he had committed the corrupt practice under section 123 (4) of the Representation of People Act, 1951 of making false statements in relation to the personal character or conduct of Respondent 2, a defeated candidate The statements were contained in a pamphlet issued by the agent of Respondent 1 with his consent. Among other statements the pamphlet contained a false statement that the Respondent 2 wits "purchaser of the opponents of the Congress by means (if money". Respondent 1 contended that the statement related to the public or political character of Respondent 2 and not to his private character and did not fall within take mischief of section 123 (4). Held, that the statement related to the personal character of Respondent 2 and Respondent 1 was guilty of the corrupt practice under section 123 (4) of the Act. The offending statement amounted to an allegation that Respondent 2 bought the votes of the opponents of the Congress by offering bribes. Bribery was itself a corrupt practice and an allegation of bribery involved moral turpitude and clearly and unequivocally affected the private character of Respondent 2. 115 </s>

<s>[INST] Summarize the judgementN: Criminal Appeal No. 234 of 1973. From the Judgment and Order dated 4.8.1972 of the Madras High Court in Criminal Appeal No. 23 of 1971. R.K. Garg, Gopal Singh and L.R. Singh for the Appellants. K.G. Bhagat, A.V. Rangam, Umanath Singh, V.C. Nagaraj and R.B. Misra for the Respondent. The Judgment of the Court was delivered by B.C. RAY, J. This appeal on special leave is directed against the Judgment and Order of the High Court of Judicature at Madras dated 4.8.1972 in Criminal Appeal No. 23 of 1971 whereby the appeal was dismissed and the conviction and sentences passed by the Court of Sessions, east Thanjavur Division at Nagapattinam against the accused nos. 1, 2, 12, 13, 17, 18, 19 and 20 were confirmed. The prosecution case is as follows: All the accused appellants are residents of various villages within Keevalur Police Station. The first accused is the leader of the Left Communist Party are also of the Harijan Kisans of five neighbouring villages. Accused nos. 17 and 18 are the leaders of the Left Communist Party at Keezha Venmani village. There were serious differences between the Mirasdars and the Harijan labourers regarding the fixation of wages for harvest. These troubles started in 1967 and the Kisans have been agitating for higher wages by taking processions and convening meetings. There was a settlement in 1967 whereby the Mannargudi agreement was made between the parties providing for additional half measure of paddy to the Harijan labourers. This settlement was enforced from January 1968, but in November 1968 the Harijan labourers demanded uniform wages of six measures of paddy per kalam of paddy harvested and in case this six measures of paddy was not paid, the labourers trespassed into the lands and illegally harvested paddy crops. This created the trouble as the local Harijan labourers refused to work at a low wage and demanded higher wages. There was the Paddy Producers Association having its offices in several villages. P.W. 1 Gopal Krishna Naidu was the President of 204 Paddy Producers Association of Nagai Taluk and P.W. 19 Ramu Plllai was the President of the Association at Irukkai and he deceased Packiriswami Pillai was a member of the Association. The Mirasdars used to bring labourers from outside for harvest of paddy from their fields as local labourers were reluctant to harvest paddy at the wage of 4 1/2 measures of paddy. The local labourers were very much aggrieved by this bringing of men from outside for harvesting of paddy. On 25th December, 1968 Packiriswami Pillai, since deceased, alongwith other labourers of Irakkai came to harvest the paddy crops from the fields of the Mirasidar P.W. 15 at about 9 a.m. It appears that on apprehending trouble P.W. 15 sent Exhibit P. 9 to the Inspector at Keevalur Police Station and Exhibit P. 8 to the Vallvalam Police Station requesting for sending some police men so that harvesting of crops might be done peacefully. The harvesting of crops was over by 5.30 p.m. and each of the labourers were fed with Sambar Satham. Each of them were paid 4 1/2 measures of paddy per kalam. P.Ws. 25, 26 and one Rangayyan left immediately as they wanted to go to Thevur for seeing a picture. The seventeen Irukkai people started for home sometime thereafter. The Irukkai labourers reached the east west Harijan Street at about 7.30 p.m. P.Ws. 42 and 43 purchased betels in the shop of P.W. 30, Subramaniam, of the main road. There was moon light and electric light. There were bamboo clusters in the form of a hood on either side of the east west Harijan Street near the second electric lamp post from the west. At the east west Harijan Street, P.Ws. 31, 32, 34 to 44 saw a crowd of 10 to 15 persons standing. In that crowd PWs. 31, 32, 34 to 37 saw accused Nos. 1 and 2 armed with aruvals. Tile crowd questioned them as to which place they belonged to, whereon they replied that they belonged to Irukkai. Immediately, A l Gopal cried out, "Do not leave Irukkai people, cut them, beat them." A crowd of about 50 persons being armed with aruvals, sticks etc. came running towards the Irukkai people. P.Ws. 31, 32, 34 to 37 while running found Packiriswami Pillai tripping and falling down near the electric lamp post on the Harijan Street. Accused Nos. 1 and 2 and some others in the crowd also lifted him by hands, legs and clothes. Then he was carried to some distance towards the east. At that time Packiriswami Pillai cried out that he was being cut by Gopal (A 1) and they were leaving him behind and running. P.Ws. 31, 32 and 34 to 37 saw the first accused cutting Packiriswamy Pillai with aruval on his neck and on his head. P.Ws. 31, 32, 347 35, 36 and 37 205 ran towards the Caste Hindu Street and ultimately entered into the house of P.W. 47. Another crowd of 50 60 persons armed with aruvals and sticks came from the south and they caused injuries on the persons of P.Ws. 54 and 55 who came out of their houses. On the same day at about 8.00 p.m. P.W. 79, Inspector of Police, Keevalur Police Station on getting information that some persons armed with lethal weapons were parading on the main road beyond Thevur and towards south, after requisitioning a vehicle (van) from Nagapattinam Police Station sent P.W. 72, the Head Constable with the van for road patrolling between Thevur and Killukudi. P.W. 72 with some S.A.P. men went to Keezha Vanmani and after collecting the injured persons from the house of P. W. 47 as well as collecting the injured P.Ws. 54 and 55 in the van came to the Keevalur Police Station, where P.W. 79 (Inspector of Police) recorded the statement of P.W. 54 who was lying seriously injured in the van and registered the same as Crime No. 326 of 1968 of Keevalur Police Station. He thereafter recorded the statements of P.W. 55 in the van and recorded the statements of other P.Ws. 34 to 37 in the Police Station. Thereafter P.W. 79 at about 11.45 p.m. left for Keezha Venmani and reached at about 12.00 mid night. He met P.W. 31 there. P.W. 79 then went to Nadu street alongwith P.W. 31 and found the dead body of Packiriswami Pillai kept leaning against a Coconut tree with multiple injuries. P. W. 79 recorded the statement of P. W. 31 and registered the same as Crime No. 328 of 1968. The learned Sessions Judge after duly weighing the evidences of P.Ws. found inter alia that there was electric light and also moon light at the time of the occurrence. P.Ws. 31, 32 and 34 to 37 witnessed the fatal injuries caused by aruvals on the head and neck of Packiriswami Plllai by Gopal (A l). It was also held that the crying out by the deceased Packiriswami Pillai that Gopal (A 1) was cutting him was in the nature of Dying Declaration and no motive could be ascribed for the deceased to falsely implicate the accused A 1 Gopal at that moment. Moreover, the injuries sustained by P.Ws. 34 to 36 with all probabilities establish the presence of these P.Ws. at a close range and seeing the occurrence. There was also overwhelming evidence as to the presence of A 1 in the crowd. The learned Sessions Judge found accused No. 1 guilty of offence under section 302 I.P.C. and sentenced him to imprisonment for life. He also found the accused No. 1 alongwith accused Nos. 2, 13, 17 and 18 guilty of murder under s.148 I.P.C. and sentenced each of them to undergo rigorous 206 imprisonment for two years. Accused Nos. 1 and 2 were also held guilty of the offence under section 364 I.P.C. and sentenced each of them to undergo rigorous imprisonment for 5 years. All these sentences will run concurrently. Out of 22 accused, 14 of the accused were acquitted and 8 of them i.e. accused Nos. 1, 2, 12, 13, 17, 18, 19 and 20 were convicted under various offences and they were sentenced to suffer rigorous imprisonment for various terms. Against the aforesaid judgment and order of conviction, all the 8 accused persons failed Criminal Appeal No. 23 of 1971. The appeal was dismissed and the conviction of all the accused appellants for various offences and sentences of imprisonment awarded against each of them were confirmed. Mr. Garg, learned counsel, appearing only on behalf of the accused appellant No. 1 has submitted before this Court that he will argue in this appeal only on behalf of the accused appellant No. 1 Gopal and as regards accused appellant No. 2 he further submitted before us that the appellant No. 2 Ramayyan who was convicted under section 364 I. P. C. and sentenced to undergo rigorous imprisonment for five years may be granted exemption from undergoing the remaining term of the sentence. It has been firstly contended by Mr. Garg, learned counsel, that the statement of P.W. 54 Packiriswamy Poraiyar (exhibit P 11) which was recorded by P.W. 79 and registered in Crime No. 326 of 1968 did not mention about the attack on deceased Packiriswami Pillai or any Irukkai people. It has also been submitted that P.W. 72 (Head Constable) who collected the injured person P.Ws. 54, 55 and 34 to 37 in the van and took them to the Police Station at Keevalur also did not tell about the attack on the deceased Packiriswami Pillai. It has been, therefore, submitted that the statements of P.Ws. 34 to 37 were recorded not at the Police Station immediately after recording statement of P.W. 54 i.e. Exhibit P 11. It has also been submitted that the accused Gopal (A 1) who is well known to the Mirasdars has been falsely implicated at the instance of P.W. 1, who as stated by P.W. 72 came to the place where P.W. 72 was bringing in the injured persons in the van i.e. P.Ws. 54, 55 and 34 to 37 for bring them to the Police Station. This submission has no legs to stand upon. It has been held by both the courts below that the evidences of P.Ws. 34 to 37 were recorded by the Inspector, Keevalur Police Station (P.W. 79) as soon as they were brought to the Police 207 Station at about 10.30 a.m. All these witnesses have clearly stated in their depositions that they witnessed A 1 Inflict cutting injuries on the neck and head of Packiriswami Pillai after lifting him alongwith other accused and carrying him to the east of Harijan Street. The court of appeal below has rightly held that P.W. 54 was only concerned with the incident that occured before his house and as such in Exhibit P 11 there was only the reference to the said incident. It was also held that P.W. 79 in his deposition refuted the suggestion that he did not examine P.W. 34 to 37 at the time alleged by him. Moreover all these P.Ws. 34 to 37 suffered several injuries being chased by the crowd while running towards the house of P.W. 47. Therefore evidences of all these eye witnesses as well as of P.W. 31 were believed by both the courts below that A 1 caused fatal cut injuries on the person of deceased Packiriswami Pillai. P.W. 65 Dr. Madan Gopal, Assistant Surgeon, Government Hospital, Nagapattinam, who conducted post mortem also stated in his deposition that out of the 11 injuries caused on the person of deceased Packiriswami Pillai, the injuries Nos. 1 and 2 which could have been caused by single cut was sufficient in the ordinary course of nature to cause death. The Doctor has also stated in his evidence that after the infliction of injury No. 1, the injured could have shouted out. There is, therefore, ample evidence to negative the submission that the accused No. 1 was falsely implicated. Moreover, P.W. 72 has stated in his deposition that he is deaf and as such he could not hear whether P.Ws. 34 to 37 stated about the injureis caused by A 1 on deceased Packiriswami Pillai. He also stated that he heard P.Ws. 34 to 37 uttering Packiriswami, Packiriswami. It was rightly held by both the courts below that P.W. 72 was deaf and could not hear what they told him. The non mentioning of attack on Packiriswami Pillai by P.W. 54 in his statement does not in any way lead to the inference that the statements of P.Ws. 34 to 37 were recorded after recording of the statement of P.W. 31. It has been tried to be submitted in this connection that the statements of these P.Ws. were recorded in plain sheet of paper instead of recording in diary form, and this raises suspician that the statements of the P.Ws. 34 to 37 were not recorded immediately after the recording of the statement of P.W. 54. This submission was also set at naught by the courts below by holding that P.W. 79 recorded the statements of P.Ws. 34 to 37 in the Police Station after recording of the statements of P.Ws. 54 and 55. The mere recording of 208 statements in plain sheet instead of in diary form in these A circumstances does not lead to any where in view of the clear evidence of P.W. 79 which was believed by both the courts below that the statements of these P.Ws. were recorded by him immediately after recording the statement of P.W. 54 (Exhibit P 11). It was submitted that had P.Ws. 31, 32 and 34 to 37 known about the attack on deceased Packiriswami Pillai and his being carried away, it was unlikely that they would not have informed P.W. 1, who came there as stated by P.W. 72 and P.W. 1 in that case would have taken further action in the matter with the help of P.W. 72. This submission has also no merit. It has been held by the court of appeal below that P.Ws. 31, 32 and 34 to 37 clearly stated in their evidence that they did not see P.W. 1 at all. The evidence of P.W. 1 was that he did not go to Caste Hindu Street at that time. In view of these evidences, the court of appeal below held that the evidence of P.W. 72 to the effect that P.W. 1 came near the house of P.W. 47 could not be accepted. it was also pointed out by the court of appeal below that P.W. 72 has not spoken about presence of P.W. 1 at that time either in Crime No. 326 or in Crime No. 328 of 1968. It was only during the investigation in Crime No. 327 of 1968 namely the connected arson case P.W. 72 made the above statement. Therefore, this submission is not sustainable. It was submitted by Mr. Garg that had P.Ws. 34 to 37 stated in their statements which were recorded by P.W. 72 at Keevalur Police Station about the attack on Packiriswami Pillai, then that statement would have been recorded separately and a separate crime number would have been given to it as was done in recording statement of P.W. 31 and registering it in Crime No. 32 of 1968. It was, therefore, suggested that P.Ws. 34 to 37 were examined by P.W. 79 only after recording statement of P.W. 31. This submission was also urged before the Court of appeal below and it was held that it was not improbable that because at the time of the recording of statement of P.Ws. 34 to 37, P. W. 79 was not aware of the death of Packiriswamy Pillai, so he did not consider it a grave crime and did not register it separately as spoken to by him. P.W. 79 further stated in his evidence that both the occurrences namely attack on P.Ws. 54 and 55 and Packiriswami Pillai formed part of one and the same transaction. P.W. 79 further admitted that he ought not to have registered a separate case in Crime No. 328 of 1968 on the statement of P.W. 31. It was 209 rightly held by the Court of appeal below that P.W. 79 adopted irregular procedure in registering separate crime number on the basis of the statement of P.W. 31 and this cannot lead to the inference that P.Ws. 34 to 37 were examined only after examination of P.W. 31. It was rightly held by the Court of appeal below that these irregularities committed by P.W. 79 in not recording the statement of P.Ws. 34 to 37 in Case Diary Form and registering the separate crime number on the statement of P.W. 31 could not militate against the prosecution case. No motive has been suggested against P.W. 79. It was lastly submitted before us by Mr. Garg that in view of the sentence already suffered by A l and A 2 this Court should remit the remaining period of their sentence. We are unable to accept this submission advanced by Mr. Garg. Mention may be made in this connection to the observations of this Court in State of Maharastra vs Mayer Hans George, A.I.R. , which are as follows: "It is the settled rule of the Supreme Court that it would not interfere with the sentence passed by the Courts below unless there is an illegality in it or the same involves any question of principle. " As we have already stated herein before that the accused 1 and 2 have been convicted by the courts below on the finding that the offences charged against them have been proved by the eye witnesses beyond any reasonable doubt. There was no illegality nor any question of principle involved in the matter of making order sentencing them to imprisonment as provided in sections 302 and 364 of the Indian Penal Code. Therefore, we are not inclined to interfere with the sentences passed by the Courts below. It is pertinent to mention here the observations made by this Court in Pritam Singh vs The State, A.I.R. [1950] S.C. 169, which are as follows: "It will not grant special leave to appeal under Article 136 (1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only 210 those points can be urged at the final hearing of A the appeal which are fit to be urged at the preliminary stage when leave is asked for. It is well established that this court does not by special leave convert itself into a court to review evidence of a third time. Where, however, the court below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, it seems to us that in such a situation it would not be right for this court to affirm such a decision when it occasions a failure of justice." This decision has been relied upon and followed in a subsequent decision of this Court in Sadhu Singh Harnan Singh vs State of Pepsu, A.I.R. In the premise aforesaid, we do not find any infirmity for less any illegality or failure of justice which would impel us to interfere with the order of conviction and sentence concurrently arrived at by both the courts below. We, therefore, dismiss the appeal and confirm the convicFPJ tion and sentences passed on accused Nos. A l and A 2 as well as on other appellants. M.L.A. Appeal dismissed. [/INST]The Mirasdars used to bring labourers from outside for harvest of paddy from their fields as local labourers were reluctant to harvest paddy at the wage of 4 1/2 measures of paddy. The local labourers were very much aggrieved by this bringing of men from outside for harvesting of paddy. On 25th December, 1968 one Packiriswami Pillai, since deceased, alongwith 17 other labourers of Irakkai village was returning home at about 5.30 P.M. after harvesting of crops from the fields of P.W.15. They reached the east west Harijan Street at about 7.30 P.M. mere was moon light and electric light. There, P.Ws. 31,32,34 to 44 saw a crowd of 10 to 15 persons standing. In that crowd P.Ws. 31,32,34 to 37 saw accused Nos.l and 2 armed with aruvals. The crowd questioned them as to which place they belonged to, whereon they replied that they belonged to Irakkai. Immediately, A l, Gopal cried out "Do not leave Irakkai people, cut them, beat them." P.Ws. 31,32,34 to 37 while running found Packiriswami Pillai tripping and falling down near the electric lamp post on the Harijan Street. They also saw accused Nos. 1 and 2 and some others in the crowd lifting the deceased by hands, legs and clothes. Then he was carried to some distance towards the east. At that time Packiriswami Pillai cried out that he was being cut by Gopal (A l) and they were leaving him behind ant running. P.Ws. 31,32 and 34 to 37 saw the first accused cutting Packiriswami Pillai with aruval on his neck and on his head. P.Ws. 31,32, 34,35,36 and 37 ran towards the Caste Hindu Street and ultimately entered into the house of P.W.47. Another crowd of 50 60 persons armed with aruvals and sticks came from the 200 south and they caused injuries on the persons of P.Ws. 54 and 55 who came out of their house. On getting information at about 8.00 P.M., P.W.72, the Head Constable, with some S.A.P. men went to Keezha Vanmani and after collecting the injured persons from the house of P.W.47 as well as collecting the injured P.W.54 and 55 in the van came to the Keevalur Police Station where P.W.79 (Inspector of Police) recorded the statement of P.W.54 and registered the same as Crime No. 326 of 1968. He thereafter recorded the statements of P.W.55 and P.Ws. 34 to 37 in the Police Station. At about 11.45 P.M. P.W.79 left for Keezha Vanmani and met P.W.31 there. Then both of them went to Nadu Street and found the dead body of Packiriswami Pillai with multiple injuries. P.W.79 recorded the statement of P.W.31 and registered the same as Crime No. 328 of 1968. Out of 22 accused, the Sessions Judge acquitted 14 and convected 8, namely, accused Nos.1,2,12,13,17,18,19 and 20 under various offences and sentenced them to suffer rigorous imprisonment for various terms. Te Sessions Judge found the aforesaid accused guilty of various offences on the grounds (1) that there was electric light and also moon light at the time of the occurrence and that P.Ws. 31,32 and 34 to 37 witnessed the fatal injuries caused by aruvals on the head and neck of Packiriswami Pillai by Gopal (A l); (2) that the crying out by the deceased Packiriswami Pillai that Gopal (A l) was cutting him was in the nature of Dying Declaration and no motive could be ascribed for the deceased to falsely implicate the accused A l, Gopal at that moment; (3) that the injuries sustained by P.Ws. 34 to 36 with all probabilities establish the presence of these P.Ws. at a close range and seeing the occurrence; and (4) that there was also overwhelming evidence as to the presence of A l in the crowd. The appeal of all the 8 accused persons filed before the High Court was dismissed. Dismissing the appeal to this Court, ^ HELD : 1. m ere is no infirmity far less any illegality or failure of justice which would impel the Supreme Court to interfere with the order of conviction and sentence con currently arrived at by both the courts below. [210 D] 2(i) P.Ws. 34 to 37 have clearly stated in their depositions that they witnessed A l inflict cutting injuries on the neck and heat of Packiriswami Pillai after lifting him along 201 with other accused and carrying him to the east of Harijan Street. The court of appeal below has rightly held that P.W. 54 was only concerned with the incident that occurred before his house and, as such, in Exhibit P 11 there was only the reference to the said incident. It was also held that P.W. 79 in his deposition refuted the suggestion that he did not examine P.W. 34 to 37 at the time alleged by him. Moreover, all these P.Ws. 34 to 37 suffered several injuries being chased by the crowd while running forwards the house of P.W. 47. Therefore, evidences of all these eye witnesses as well as of P.W. 31 were believed by both the courts below that A l caused fatal cut injuries on the person of deceased Packiriswami Pillai. [207 A C] 2(ii) P.W. 65, Assistant Surgeon, Government Hospital, who conducted postmortem also stated in his deposition that out of the 11 injuries caused on the person of deceased Packiriswami Pillai, the injuries Nos. 1 and 2 which could have been caused by single cut were sufficient in the ordinary course of nature to cause death. The doctor has also stated in his evidence that after the infliction of injury No. 1 the injured could have shouted out. There is, therefore, ample evidence to negative the submission that the accused No. 1 was falsely implicated. Moreover, P.W. 72 has stated in his deposition that he is deaf and as such he could not hear whether P.Ws. 34 to 37 stated about the injuries caused by A 1 on deceased Packiriswami Pillai. He also stated that he heard P.Ws. 34 to 37 uttering Packiriswami, Packiriswami. It was rightly held by both the courts below that P.W. 72 was deaf and could not hear what they told him. The non mentioning of attack on Packiriswami Pillai by P.W. 54 in his statement does not in any way lead to the inference that the statements of P.Ws. 34 to 37 were recorded after recording of the statement of P.W. 31. [207 D F] 3(i) P.W. 79 recorded the statement of P.Ws. 34 to 37 in the Police Station after recording of the statements of P.Ws. 54 and 55. The mere recording of Statements in plain sheet instead of in diary form in these circumstances does not lead to any where in view of the clear evidence of P.W. 79 which was believed by both the courts below that the statements of these P.Ws. were recorded by him immediately after recording the statement of P.W. 54 (Exhibit P 11). [207 H; 208 A] 3(ii) P.Ws. 31,32 and 34 to 37 clearly stated in their evidence that they did not see P.W. 1 at all. The evidence of P.W. 1 was that he did not go to Caste Hindu Street at that 202 time. In view of these evidence, the Court of appeal below held that the evidence of P.W. 72 to the effect that P.W. 1 came near the house of P.W. 47 could not be accepted. It was also pointed out by the Court of appeal below that P.W. 72 has not spoken about presence of P.W. 1 at about that time either in Crime No. 326 or in Crime No. 328 of 1968. It was only during the investigation in Crime No. 327 of 1968 namely the connected arson case, P.W. 72 made the above statement. [208 C D] 4. It was not improbable that because at the time of the recording of statement of P.Ws. 34 to 37, P.W. 79 was not aware of the death of Packiriswami Pillai, so he did not consider it a grave crime and did not register it separately as spoken to by him. P.W. 79 further stated in his evidence that both the occurrences namely attack on P.Ws. 54 and 55 and Packiriswami Pillai formed part of one and the same trans action. P.W. 79 further admitted that he ought not to have registered a separate case in Crime No. 328 of 1968 on the statement of P.W. 31. It was rightly held by the Court of appeal below that P.W. 79 adopted irregular procedure in registering separate Crime number on the basis of the statement of P.W. 31 and this cannot lead to the inference that P.Ws. 34 to 37 were examined only after examination of P.W. 31. It was rightly held by the court of appeal below that these irregularities committed by P.W. 79 in not recording the statement of P.Ws. 34 to 37 in Case Diary Form and registering the separate crime number on the statement of P.W. 31 could not militate against the prosecution case. No motive has been suggested against P.W. 79. [208 G H; 209 A B] 5. The accused 1 and 2 have been convicted by the Courts below on the finding that the offences charged against them have been proved by the eye witnesses beyond any reasonable doubt. There was no illegality nor any question of principle involved in the matter of making order sentencing them to imprisonment as provided in 88. 302 and 364 of the Indian Penal Code. Therefore, the Court is not inclined to interfere with the sentences passed by the Courts below. [209 E F] State of Maharastra vs Mayer Hans George, ; applied. Pritam Singh vs The State, ; and Sadhu Singh Harnam Singh vs state of Pepsu) A.I.R. 1954 S.C. 271 referred to. </s>

<s>[INST] Summarize the judgementminal Appeal No. 162 of 1965. Appeal by special leave from the judgment and order dated January 8, 1965 of the Gujarat High Court in Criminal Appeal No. 345 of 1964. Urmila Kapur and section P. Nayar, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Hidayatullah C.J. This is an appeal by special leave against the judgment and order of a learned Single Judge of the High 448 Court of Gujarat, January 8, 1965, by which an order confiscating 1500 and odd bottles said to contain intoxicating liquor by the City Magistrate, 8th Court, Ahmedabad, has been set aside. The facts of the case are as follows. On January 9, 1963, Sub Inspector, Benot of Ahmedabad City raided a godown con sisting of two rooms in Serial No. 151010 and Survey No. 324/0. He found several deal boxes which were opened and each box was found to contain 144 bottles packed with grass, each bottle containing 4 oz. of some liquid. Bottles were of two kinds, one containing yellow liquid and the other a red liquid. The bottles containing Yellow liquid were labeled 'U. D. Colon Solvek Cosmetics Bombay, 28. , and the bottles containing red liquid were labeled 'Jasmine Batch No. 3. Solvek Cosmetics Bombay. From these bottles, two bottles, one of each kind, were selected and were sent to the Chemical Examiner. Baroda for test. Before sending them, the Panchas were allowed to seal the bottles with paper slips containing the signature of panchas pasted on them for identification. On analysis, they were found to contain alcohol and the respondent Chinubhai Gopaldas was prosecuted under section 66(b) of the Bombay Prohibition Act. The other bottles numbering 1584 containing 6336 oz. of alleged alcohol were kept intact. Gopal Das 's prosecution failed. He was, acquitted by the City Magistrate, because according to him, it was not proved beyond reasonable doubt that he was in possession of these bottles on his own. It was found 'that he possessed them as agents of a wholesale merchant. It is in evidence however that he did not possess a permit or licence for possessing alcohol. The Magistrate while acquitting him ordered the confiscation of the remaining bottles under section 98 of the Prohibition Act. The State Government did not appeal against the acquittal. Gopaldas went to the High Court 'in appeal against the order of confiscation. The learned Single Judge of the High Court ordered return of the bottles, because according to him it was not proved that the 1500 and odd other bottles also contained intoxicants. He therefore held that the confiscation of the bottles was illegal as no order under section 98 of the Bombay Prohibition Act could be passed. In this appeal by the State of Gujarat it is contended that section 98 applies to the case. That section reads as follows : "Whenever any offence punishable under this Act has been committed, (a) any intoxicant, hemp, shora, flowers, molasses, materials. still, utensil, implement or 449 apparatus in respect of which the offence has been committed, shall be confiscated by the order of the Court. " The short question therefore is whether it can be said that in respect of the 1500 and odd bottles, an offence punishable under the Prohibition Act had been committed. It is no doubt true that the person who was charged with committing an offence was found not guilty, but the question is not whether the accused has been successfully brought to book, but whether the offence in respect of the property has been committed or not. There is distinction between the two. An offence may be demonstrated to be committed although the accused who committed it may not be successfully prosecuted. We may give an example. Suppose in a house a vast quantity of contraband opium is found. The householder may get off because the opium was found from a place which was open and had access to strangers. He may get the benefit of doubt and be acquitted, but it is clear that in so far as the opium is concerned, an offence must be deemed to have been committed, and if it is proved that , the contraband article was opium, it would be remarkable that the order should be that the opium be returned to the householder. In these circumstances, on proof that the contraband article in respect of which an offence has been committed is proved to exist, the obvious course would be to confiscate it to the State. In the present case, the two bottles which were sent to the Chemical Examiner were said to contain alcohol although there was some doubt in the mind of the Magistrate as to whether there was no chance of any malpractice. Be that as it may, there are the other bottles intact. There is some evidence to show that they were in the original packing and were a proprietary product. The manufacturer came as a witness and deposed that the liquids were bottled by him as a proprietary manufacture. In these circumstances, it would be fair to assume that all of them were of the same kind as the ones which were sent for chemical examination. However an examination of random samples can be made and if they satisfy the court that the bottles contain contraband articles the bottles can be confiscated. The order of the High Court is thus set aside, but instead of restoring the order of confiscation we order that a few bottles at random should be, analysed and if contraband stuff against the Prohibition Act is found the whole stock shall be confiscated. The appeal is allowed and the case is remanded as ordered. G.C. Appeal allowed. [/INST]A stock of bottles apparently containing cosmetic preparations was found from the possession of the respondent. On analysis the bottles which were taken as samples were found to contain alcohol and as the respondent did not have any licence for possessing alcohol he was Pro secuted under section 66(b) of the Bombay Prohibition Act. The trying Magistrate acquitted him. on the ground that he did not hold the bottles on his own but only as the agent of a wholesale dealer who acknowledged his ownership. While acquitting the respondent the Magistrate ordered the confiscation of the remaining bottles under section 98 of the Prohibition Act. The respondent went to the High Court against the order of confiscation. The learned Single Judge ordered return of the bottles because according to him it was not proved that the 1500 and odd other bottles also con tained intoxicants, and therefore the order under section 98 of the Act was illegal. The State appealed, HELD : Under section 98 what has to be seen is whether an offence under the Prohibition Act in respect of the property in question has been committed or not. An offence may be demonstrated to be committed although the accused who committed it may not be successfully prosecuted. On proof that there is a contraband article in respect of which an offence has been committed the obvious course is to confiscate, it to the State. Therefore in the present case if the court was satisfied that the bottles contained contraband article the bottles could be confiscated.[449C E] [Order of the High Court set aside with the direction that a few bottles at random should be analysed and if contraband stuff against the prohibition act was found the whole stock should be confiscated.] </s>

<s>[INST] Summarize the judgementAppeal No. 556 of 1964. Appeal from the judgment and order dated March, 24, 1961 of the Assam and Nagaland High Court in M. A. (F) No. 29 of 1956. B. Sen and D. N. Mukherjee for the appellant. section G. Patwardhan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Wanchoo, J. This is an appeal on a certificate granted by the Assam High Court and arises in the following circums tances. The appellant had obtained a money decree against Thakur Prosad Joyaswal and others in 1947. As the decree remained unsatisfied it was transferred from Calcutta to Gauhati for execution. On May 2, 1953, an application was made for execution in the court at Gauhati by attachment under 0. XXI, r. 46 of the Code of Civil Procedure of certain movable property of the judgment debtors which was said to be in the possession of the Sub Divisional Officer, Military Engineering Service, Pandu. Consequently an order was issued under O.XXI r. 46 (1)(c)(iii) prohibiting the Sub Divisional Officer from parting with 208 the property of the judgment debtors. It may be mentioned that the Sub Divisional Officer is subordinate to the Garrison Engineer, Shillong. Though certain applications were put in on behalf of the Sub Divisional Officer before the court, it was only on February 1, 1954 that the Acting Garrison Engineer, Shillong stated before the court that the movable property in question (i.e. 41 R.S. joists) had been sold and delivered as far back as November 22, 1951 to Messrs. Ghunilal Kanhaiyalal of Palasbari. This objection was considered by the execution court and it held on September 25, 1964 that this belated statement that the property in question had been sold as far back as November 22, 1951 could not be believed. The execution court therefore dismissed the objection and ordered execution to proceed. Thereafter orders were issued for the production of the joists but they were not produced. Thereupon the appellant applied that the Union of India should be considered to be the principal judgment debtor and execution should be levied against the Union of India. The Union of India objected to this and on April 21, 1956 the objection of the Union of India was dismissed and the execution court held that the Union of India be treated as the principal judgment debtor and be made liable to the extent of the proceeds of the attached joists. Later on the same day, a further legal argument was raised on behalf of the Union of India to the effect that as there was no surety bond the Union of India could not be treated as the principal judgment debtor. This objection was heard and finally the court ordered on April 28, 1956 that even though there was no surety bond executed on behalf of the Union ,of India it was liable as a surety. Thereupon the Union of India appealed to the High Court against the order of April 28, 1956. The High Court allowed the appeal and set aside the order ,of the execution court holding that no action could be taken against the Union of India under section 145 of the Code of Civil Procedure upon which the execution court had apparently relied. Thereupon the appellant asked for and obtained a certificate from the High Court, and that is how the matter has come before us. We are of opinion that there is no force in this appeal. Order XXI r. 46(i) provides that in the case of other movable property not in the possession of the judgment debtor, except property deposited in or in the custody of any court, the attachment shall be made by a written order prohibiting the person in possession of the same from giving it over to the judgment debtor. The necessary prohibitory order had been issued by the execution court in this case with respect to 41 joists and had been received by the Sub Divisional Officer. Such a prohibitory order is sufficient for the purpose of attachment, though the 20 9 property mentioned therein is not actually taken in possession by the Court. After attachment has been made in the manner provided by r. 46 the next step that the court has to take is to order sale of the property attached. Then comes O.XXI r. 79 which provides that where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser [see r. 79(1)]. But where the property sold is movable property in the possession of some person other than the judgment debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser [see r. 79 (2)]. In the present case there was no actual seizure of the property but attachment had been made under O.XXI r. 46 (1). The proper procedure for the court to follow was to sell the property under O.XXI r. 64 and then pass an order under O.XXI r. 79 (2) for its delivery in the manner provided therein. The court however went on asking the Sub Divisional Officer to produce the property and when it was not produced it proceeded under section 145 of the Code. We agree with the High Court that section 145 has no application in the present case. Section 145 runs thus : "Where any person has become liable as surety (a) for the performance of any decree or any part thereof, or (b) for the restitution of any property taken in execution of a decree, or (c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable in the manner therein provided for the execution of the decrees and such person shall, for the purposes of appeal be deemed a party within the meaning of section 47: Provided that such notice as the court in each case thinks sufficient has been given to the surety. " A bare perusal of section 145 shows that it applies when a person has become liable as surety. Now the mere fact that an attachment was made of 41 joists said to be lying with the Sub Divisional Officer by the issue of the prohibitory order under O.XXI r. 46 does not make the Sub Divisional Officer or the Union of India a surety for the performance of the decree which was in execution. There was no surety bond taken from the Sub Divisional Officer and the joists 2 1 0 were not actually seized by the court and handed over to the Sub Divisional Officer as suparddar on the basis of a surety bond. If that had been done some question may have arisen whether the Sub Divisional Officer did become a surety for the performance of the decree or part thereof. But where merely a prohibitory order is issued under 0. XXI r. 46(1) and attachment is made in that manner, there can be no question of the person to whom the prohibitory order is issued becoming a surety for the performance of the decree. We therefore agree with the High Court that section 145 of the Code was not applicable to this case and the execution court was completely wrong in holding that the Sub Divisional Officer became a surety simply because attachment had been made in the manner provided in O.XXI r. 46 (1),. The appeal fails and is hereby dismissed with costs to the Union of India. V.P.S. Appeal dismissed. [/INST]The appellant, who was the decree holder, applied for the execution of the decree. The Sub Divisional Officer, Military Engineering Service, was in possession of some movable property of the judgment debtor. The Court ordered attachment under 0. XXI, r. 46(1), Civil Procedure Code by prohibiting the Sub divisional Officer from handing over the property to the judgment debtor. Thereafter, in stead of following the proper price(lure which was to sell the property under O.XXI, r. 64 and then pass an order for its delivery under O.XXI, r. 79(2), the Court ordered the Sub divisional Officer to produce the property, and, when it was not produced, proceeded under section 145 of the Code treating the Union of India as the principal judgment debtor. HELD: Section 145 of the Code was not applicable to the cage. That section only applies when a person becomes liable as a surety and the execution Court was wrong in holding that the Sub divisional Officer became a surety simply because attachment had been made by the prohibitory order under O.XXI, r. 46(1). [209 H, 210 B C] </s>