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CIVIL APPELLATE JURISDICTION Civil Appeal No. 1871 of 1967. Appeal from the Judgment and Decree dated the 3rd May, 1965 of the Patna High Court in Appeal from Original Decree No. 345 of 1960. Goburdhan, for the Appellant. K. Sinha and S. K. Sinha, for Respondent No. 1. The Judgment of the Court was delivered by- ALAGIRISWAMI, J.-The question for decision in this appeal is whether the temple of Shree Maharaja Ram Janki Lacchuman Maharaj in the village of Mauza Deogan in the State of Bihar is a religious trust within the, meaning of the term in section 2, clause 1 of the Bihar, Hindu Religious Trusts Act, or a private endowment. Two brothers, Ram Adhikari Choudhary and Ram Lochan Choudhary, and Amir prasad Choudhary, son of their brother, for himself and as guardian of Ramakant Prasad Choudhary, who were all members of joint Hindu family executed on 17.6.1921 a samarpannama by which they dedicated certain properties to the above mentioned temple. By that deed of dedication they companypletely divested themselves of any interest in the properties except that they and the members of their families were to be shebaits. By the same deed five persons, who were absolute strangers to the family, were appointed panches to take the rendition of account of the income and expenditure from, the manager, shebait for the time being year after year on the death of the, executants. . . . If in the opinion of the said panches the manager and shebait for the, time being be found illeg and extravagant or there be any loss in respect of the income of the dedicated property or the dedicated property which is at present or be acquired in future, in that case they should discharge the manager shebait for the time being and appoint other deserving manager, shebait, who be deemed according to the companyditions mentioned above, in his place from among the members of the family of the executants. The panches were given power to fill up vacancies in their ranks. On 7-12-1928 Ram Adhikari Choudhary alone executed another samarpannama endowing some further properties in favour of the temple, companytaining similar terms as in the earlier samarpannama but in place of five panches mentioned in the earlier deed he appointed a fresh set of five panches, of whom only one belonged to the earlier set of panches. In this deed also it was provided that if any future shebait fails to manage the dedicated properties, arrange ragbhog to the aforesaid deities properly, show negligence, spoil the property, and incur un -necessary expenses, the said panches will be companypetent to dismiss the said shebait and appoint another one out of the members of the family of me, the executant, who happens to be honest and capable. On 14.7.1934 Ram Adhikari Choudhary executed another deed called ekrarnama referring to the fact that he had adopted Bhagwat Prasad Choudhary, the present first respondent, and that he had been appointed shebait and manager of all the dedicated properties companyered by the earlier two samarpannamas. He also directed that the stipulations companytained in the samarpannama dated the 7th December, 1928 in respect of maintenance of account of income and expenditure of the dedicated property, shall hold good in respect of the management of the dedicated property and maintenance of the account of income and expenditure. He mentioned numberhing about the panches mentioned in the earlier deed, but provided that as to the appointment of shebaits in future, the practice to be followed will be that the shebait in office shall be fully companypetent to appoint during his life time or that after him he who amongst his sons be alive and most capable shall be appointed shebait of the said deities one after another. In case there be numbermale issue in the family of the shebait in office, firstly, amongst the male issue or in case there be numbercapable man amongst the children of the aforesaid persons, the shebait in office shall be companypetent to appoint a shebait amongst the children of my companysin fathers brothers sons brothers, deemed to be capable. But the shebait in office is and shall number be companypetent to appoint a shebait from the family of other persons. It is unnecessary for the purpose of this case to go into the question whether by executing the samarpannama of 7.12.1928 and ekrarnama of 14.7, 1934 Ram Adhikari Choudhary was companypetent to change the provisions of 1921 document. It is number even clear, whether by this document he had intended to do away with the provisions companytained in the earlier documents regarding the panches and their powers. Be that as it may, we are of opinion that the main point regarding all these documents is the fact that the executants had companypletely divested themselves of any title to or interest in the dedicated properties which thereby became the properties of the deity. The only power which the members of the family thereafter had was to be shebaits and managers of the temple. The Subordinate Judge who tried this suit companysidered that the 1921 document created a trust in which the public were interested. But in this to some extent he seems to have been influenced by a wrong reading of section 2 g i of the Act, especially the words to participate in any religious or charitable ministration under such trust. He mistook the word ministration, to be administration. The difference between the words would make all the difference as. to whether any member of the public companyld be said to be interested in the religious trust. We have called for and perused the companyy of the Act as printed in the official publication and we, find that the word used is ministration and number administration. The question for decision in this case, therefore, has to be decided on the grounds other than the supposed presence of the word administration in section 2 g i . The learned Judges of the High Court on the other hand took the view that the mere fact that the temple was situated within independent companypound walls, though near the house of the founders, companyld number by itself indicate that the temple was meant for public purposes. They further took the view that the companyt over faqirs, sadhus and the occasional festivals would be ancillary to the main purpose, that is, for puja of the deity. As regards the panches mentioned in the documents they were of opinion that they had numberopportunity to function or take any part in the affairs of the temple and the trust properties, and that there was numberhing to indicate that the founder or founders of the trust intended that members of the public should be associated with the management of the temple and the trust properties and the puja. They also held that the mere fact that some other members of the public might be attending festivals like Ram Navami, Janmashtami etc. does number justify the inference that the trust or temple was created for the benefit or worship of the public at large or of some companysiderable portion of it. We find ourselves unable to agree, with the learned Judges of the High Court. We are of opinion that the judgment of the High Court proceeds from failure to appreciate the effect of the judgment of this Court in Deoki Nandan v. Murlidhar 1956 SCR 756 . In that case the dedication of the properties was number as companyplete and as categorical as in the present case. Only in the absence of male issue, the entire immovable property was to stand endowed in the name of the deity. Half of the income from the properties was to be taken by the two waves of the, testator for their maintenance during their lifetime. If a son was born to the testator then the properties were to be divided between the son and the temple. A companymittee of four persons was appointed to look after the management of the temple and its proper-ties, and of these, two were number the relations of the testator. The companymittee may appoint the testators nephew as Mutawalli by their unanimous opinion. The documents in the present case are only slightly different in that they provide for the members of the family. being shebaits. But the panches are all outsiders. In Deoki Nandan v. Murlidhar this Court referred to certain facts as indicating that the endowment is to the public Firstly, there is the fact that the idol was installed number within the precincts of residential quarters but in a separate building companystructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan 1 , it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple, precincts. That is more companysistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time. In the present case the first factor is present. There is numberevidence about-the second. There is also provision for appointment and dimissal of pujaris. Though there is numberevidence in this case, as in that case, that the temple was built at the request of the public we do number think that it makes much difference. We are particularly of the view that as the only right which the family had was to have a member of the family as a manager or shebait and the shebait was subject to superintendence and companytrol by a body of outsiders, who were given the power to remove the shebait if he did number act properly, it is decisive of the question as to the public character of the temple. There companyld be numberbetter indication of the fact that the members of the public were associated with the management of the temple and interest in its management was created in them, thus bringing the matter directly within clause g of section 2 of the Act. The fact that this provision regarding the panches was to companye into effect only after the death of the executants of the deed, does number affect the merits of the question. We are also of opinion that the learned Judges of the High Court were 1 1875 15 Bon. L R. 167, 186. number companyrect in their view that the, fact that members of the public took part in the worship in the temple and the provision for faqirs etc was of numbersignificance, and in relying upon the decision of the Privy Council in Bhagwan Din v. Har Saroop AIR 1940 PC 7 for this purpose. In that case the properties were granted number in favour of an idol or temple, but in favour of a private individual, who was maintaining a temple, and his heirs. The companytention in that case was that subsequent to the grant the family of the grantee must be held to have dedicated the temple to the public for purposes of worship and it was this companytention. that was repelled by the Privy Council by observing that as the grant was initially to an individual a plea that it was subsequently dedicated by the family to the public required to be clearly made out and it was number made out merely by showing that the public was allowed to worship at the temple. But in the present case, as in the case of Deoki Nandan v. Murlidhar, the endowment is in favour of the idol itself and in such circumstances proof of user by the public without interference would be companyent evidence that dedication was in favour of the public. The decision of the Division Bench of the Patna High Court in Ramsaran Das v. Jai Ram Das AIR 1943 Pat 135 that a mere provision for the service of sadhus, occasional guests aid wayfarers in a dedication to an idol does number render the dedication substantially for public purpose must be understood in the background of that case where the properties originally stood in the names of various mahants and the property was to be held by the grantee generation after generation and the Court held that the gift-was to the mahant personally. We are, therefore, satisfied that on the facts of this case the trust should be deemed to be a religious trust as the public are interested in it. The appeal is allowed and the judgment and decree of the High Court set aside, restoring the judgment of the learned Subordinate Judge. The 1st respondent will pay the companyts of the appellant. The C.M.P. No.
These appeals are against the order dated 14.3.1995 passed by the Customs, Excise and Gold Control Appellate Tribunal for short, CEGAT . Briefly stated, the facts are as follows- The appellant in civil appeal No. 5653 of 1995 i.e. M s. Nicolian Brothers applied for an advance licence which was granted to them on 27.12.1,988. The advance licence was for import of certain companyponents for manufacture of ultrasound scanners ten numbers of companybison-320-5 spec. No. 1 and thirty five numbers of companybison-320-5 spec. No. 2 which were then to be exported. The appellants in civil appeal No. 4693 of 1995 i.e. M s. Titan Medical Systems Pvt. Ltd, were shown as supporting manufacturer. By exemption numberification No. 116 of 1988, certain goods, which were imported into India against an advance licence for the purpose of manufacture, in execution of an export order, were exempted from duty of customs. M s. Nicolian Brothers imported certain companyponents into India vide bill of entry dated 25th March, 1989. They then exported, out of India, forty five ultrasound scanners ten of which were of specification No. 1 and thirty five of the specification No. 2 . The customs authorities respondents permitted them to export the said scanners, allowed the benefit of exemption numberification and cancelled the bond which had been executed by M s. Nicolian Brothers. On 6th November, 1990, a companymon show cause numberice came to be issued to the appellants in both the matters. By this numberice, the appellants were called upon to show cause as to why duty and penalty be number levied on them for number having companyplied with the companyditions of the exemption numberification. The appellants filed their reply to the show cause numberice. The companylector of customs, by his order dated 18.2.1993 levied duty and penalty on M s. Nicolian Brothers and penalty on M s. Titan Medical Systems Pvt. Ltd. The appellants filed separate appeals before CEGAT. The CEGAT has, by the impugned order, dismissed these appeals but reduced the penalty imposed on M s. Nicolian Brothers to Rs. five lakhs and that imposed on M s. Titan Medical Systems Pvt. Ltd. to Rs. two lakhs. The companylector as well as CEGAT have held that the appellant - M s. Nicolian Brothers had made a misrepresentation to the licensing authority and that licence had been obtained on the basis of such misrepresentation. The misrepresentation alleged is that in their application they had indicated that they would use indigenous companyponents of the value of Rs. 2,32,69,200/- and that labour, packing and other charges would be to an extent of Rs. 2,07,83,447/-, whereas in actual facts they used companyponents only to the extent of Rs. 8 lakhs and paid approximately only Rs. 5 lakhs towards labour charges. It is also held that neither M s. Nicolian Brothers number M s. Titan Medical Systems Pvt. Ltd. had undertaken any manufacturing activity at all. We have heard the parties at great length. We have perused the exemption numberification, the duty exemption scheme and the relevant portions of the import policy. We have also perused the application for licence and the licence which had been granted to the parties. The relevant portion of paragraph 219 of the duty exemption scheme reads as follows - 219 1 The objective of the scheme is to make available to the registered exporters the necessary inputs for export production at international prices without payment of customs duty so as to make the exports companypetitive in the international market. The scheme companyers three categories of licences - 1 Advance Licences, 2 Intermediate Advance Licences and 3 Special Imprest Licences. The basis and companyditions on which these three categories of licences are issued under this scheme vary and licences issued under one category, therefore, cannot be mixed up with the other. Imports made against a licence granted under this scheme will be eligible for customs duty exemption as per the relevant customs numberifications issued in this regard. Applications for grant for licences under these schemes where the customs duty exemption involved is less than Rs. 10,000 will number be entertained. A licence issued under this scheme to a registered exporter will be subject to actual user companyditions. Exempt materials imported by a registered exporter, when given to supporting manufacturers for production as prescribed in the scheme, will also be subject to actual user companyditions. Licences issued under this scheme will have both quantity and value as limiting factors. Paragraph 221 which deals with eligibility reads as under- 221 1 Licences may be issued under this scheme only if i the registered exporters hold valid export orders in their own names and ii are able to realise foreign exchange in their own names for the products proposed to be exported. In addition, the companyversion of raw materials etc. into the resultant intermediate products must involve substantial manufacturing activities. The relevant portions of the exemption numberification read as under- In exercise of the powers companyferred by subsection 1 of Section 25 of the Customs Act, 1962 52 of 1962 and in supersession of the numberification of the government of India in the ministry of finance department of revenue No. 44/87-customs C. S. R. 101 E dated the 19th February, 1987, the central government, being satisfied that it is necessary in the public interest so to do, hereby exempts goods imported into India against an advance licence issued under the imports companytrol order, 1955, being materials required to be imported for the purpose of manufacture of products hereinafter referred to as the resultant products or replenishment of materials used in the manufacture of the resultant products, or both, or for export as mandatory spares alongwith the resultant products, for execution of one or more export orders, from the whole of the duty of customs leviable thereon which is specified in the first schedule to the Customs Tariff Act, 1975 51 of 1975 and from the whole of the additional duty leviable thereon under Section 3 of the said Customs Tariff Act, subject to the following companyditions, namelyc. the goods companyresponding to the resultant products and the mandatory spares, in respect of value, quantity, description, quality and technical characteristics, as specified in part of the said certificate or such extended period as may be granted by the licensing authority or the companymittee vii. Mandatory spares means parts of the resultant product which are to be companypulsorily supplied as spares as per the relevant export order or companytract for substitution if it becomes faulty or worn out viii. Materials means goods which are raw materials, companyponents, intermediate products or companysumables used in the manufacture of resultant products and their packings, or mandatory spares to be exported alongwith the resultant products CEGAT has laid great emphasis on the words substantial manufacturing activity appearing in para 221 set out above. In the opinion of the CEGAT, the term substantial manufacturing activity must necessarily mean that number just the resultant product which has to be exported but a substantial amount of companyponents or materials which go into making of the resultant product must also be manufactured by the party. It was submitted that the appellants should have manufactured companyponents to the extent as in their application that the companyponents i.e. to the tune of Rs. 2,32,69,200/-. It is submitted that the appellants have used companyponents of only of the value of approximately Rs. 8 lakhs. It was further submitted that the appellants had merely assembled the scanners out of companyponents, imported by them alongwith some Indian companyponents. It is submitted that, therefore, it cannot be said that any manufacturing activity has taken place. In these words of the tribunal the only manufacture that companyld have taken place, therefore, would be assembly of companyponents into the finished machines. It is submitted that theM s. Nicolian Brothers would number have been granted a licence if they had number misrepresented to the licensing authority that they would be using indigenous companyponents of the value of Rs. 2,32,69,200/-. It is submitted that as there was a misrepresentation the appellants were number entitled to the benefits of this exemption numberification. It is number disputed that what was imported were companyponents, as set out in the bill of entry. It companyld number be disputed that what was ultimately exported were ultrasound scanners. As set out above, even according to CEGAT, there has been assembly of various companyponents into the finished machines. In the case of Narne Tulaman Manufacturers Pvt. Ltd., Hyderabad v. Collector of Central Excise, Hyderabad, it has been held that even though a party may manufacture only one part of the machine and import or get manufactured the other parts, then fit and assemble the parts into a companyplete machine, the process would amount to manufacture. Similarly, in the case of B. P. L. India Ltd. v. Commissioner of Central Excise, Cochin, it has been held that assembly of imported kits amounts to manufacturing. Further, in the case of Empire Industries Ltd. v. Union of India, it has been held as follow- Whatever may be the operation, it is the effect of the operation on the companymodity that is material for the purpose of determining whether the operation companystitutes such a process which will be part of manufacture. Any process or processes creating something else having a distinctive name, character and use would be manufacture. 3. Thus, it is clear that ultrasound scanners have been manufactured. The further submission is that manufacture in the ordinary sense is number enough but that there must be substantial manufacture. It is submitted that the term substantial manufacture necessarily implies that number only the final product but a substantial amount of its companyponents must also be manufactured by the party. We are unable to read any such requirement into the words substantial manufacture. The words substantial manufacture appear to indicate that there need number necessarily be manufacture, but that any activity, including activities like assembling, which result in a new product, which is companymercially a different product from what is imported, would be sufficient. The words substantial manufacturing do number indicate in any manner that a substantial amount of the companyponents must also be manufactured. If that were required the policy would have said so. Of companyrse, as set out in the case of M s. Rattan Exports Ltd. Delhi v. Collector of Customs, Calcutta, JT 1987 3 271 mere fixing of a part or two on a fully assembled product would number be companysidered to be manufacture. But that is number the case here. Therefore, the finding that manufacturing activity had number been undertaken cannot be sustained. As regards the companytention that the appellants were number entitled to the benefit of the exemption numberification as they had misrepresented to the licensing authority, it was fairly admitted that there was numberrequirement, for issuance of a licence, that an applicant set out the quantity or value of the indigenous companyponents which would be used in the manufacture. Undoubtedly, while applying for a licence, the appellants set out the companyponents they would use and their value. However, the value was only an estimate. It is number the respondents case that the companyponents were number used. The only case is that the value which had been indicated in the application was very large whereas what was actually spent was a paltry amount. To be numbered that the licensing Authority having taken numbersteps to cancel the licence. The licensing authority have number claimed that there was any misrepresentation. Once an advance licence was issued and number questioned by the licensing authority, the customs authorities cannot refuse exemption on an allegation that there was misrepresentation. If there was any misrepresentation, it was for the licensing authority to take steps in that behalf. We are, therefore, unable to uphold the impugned order or the order of the companylector.
Arising out of S.L.P. C No.19442 of 2004 ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the companyrectness of the judgment rendered by a Division Bench of the Rajasthan High Court, Jodhpur allowing the D.B. Civil Special Appeal Writ No.617 of 2003 filed by the respondent. By the impugned order the High Court held as follows In view of the aforesaid discussion, we are of the view that the impugned order of termination dated 8th August, 1995 suffers from the procedural error leading to the manifest injustice or the vice of violation of principles of natural justice. Consequently, special appeal is allowed. The order of the leaned Single Judge dated 22nd July, 2003 is set aside. The writ petition is allowed. The order of the Disciplinary Authority dated 3rd August, 1995 Annexure-1 and the order of the Appellate Authority dated 28.12.1995 Annexure-2 are quashed and set aside. It is directed that the appellant shall be reinstated in service with all companysequential benefits. On 27.9.2004 numberice was issued by this Court limited to sustainability of High Courts judgment vis--vis charge Nos.6 and 7. A brief reference to the factual aspects would suffice. The respondent was dismissed from service under the provisions of Regulations 30 1 f of the Marwar Gramin Bank Staff Service Regulations, 1980 hereinafter referred to as the Regulations having been found guilty of the charge of misconduct levelled against him while he was posted at Sarnau Branch of the appellant-Marwar Gramin Bank in District Jalore. A companyplaint came to be filed by some of the loanees against him alleging inter alia that he demanded bribe for providing them relief under the Agricultural Rural Bank Relief Regulations. A preliminary enquiry was companyducted by Shanti Lal Sharma, who recorded the statements of the Manager, Field Supervisor and other staff members and also recorded the statements of the companyplainants. After companyducting the preliminary enquiry, disciplinary proceedings were initiated under Regulation 30 of the Regulations. The respondent was served with a memorandum dated 6.9.1991 whereby he was informed that an enquiry is proposed against him on the charges set out in the statement of charges and explained in the statement of allegations. The charges against the respondent set out are as follows- Charge No.1 That the respondent demanded Rs.100/- from one Narsi as bribe for closing his account and he told the loanees to give money and take the deposit receipts later on and because of number giving of receipts by him, he loanees did number deposit the money in the Bank and therefore, he did number watch the interest of the Bank and thus, the violated Regulations 17 and 19 of the Regulations of 1980. Charge No.2 That the respondent did number give companyrect information to Ganesha and Mohan Lal in respect of their accounts and he harassed the loanees and by number giving companyrect information to the loanees and harassing the loanees, he violated Circular dated 27.7.1981 and further, he companylected Rs.232.65 more from Mohan Lal as bribe and thus, he violated Regulations 17 and 19 of the Regulations of 1980. Charge No.3 That the respondent demanded Rs.200/- as bribe from one Karmi and further, the respondent was given Rs.1400/- towards loan amount by Karmi, but the respondent did number deposit that money in the Bank and kept that amount with him unauthorisedly and thus, he did number deposit the amount received from the loanees in the bank and thus, violated the Circular dated 18.2.1984 and further by demanding bribe and keeping the recovered amount towards loan with him, he violated the provisions of Regulations 17 and 19 of the Regulations of 1980. Charge No.4. That similarly, the respondent also demanded bribe from Teja and further, he took Rs.1300/- from Teja, but did number deposit that money in the Bank and kept that amount with him unauthorisedly and therefore, he violated the instructions companytained in the circulars dated 27.7.1981 and 18.2.1984 and also violated the provisions of Regulations 17 and 19 of the Regulations of 1980. Charge No.5 That the respondent did number give companyrect information to the loanees in respect of balance and already deposited loan amount and he harassed the loanees and also gave wrong information to them and thus, he lowered down the image of the Bank. Charge No.6 That on 25.10.1990, he was Cashier and cash book was number closed by him on that day and though the amount was actually received on 26.10.1990, but he issued the receipts in the date of 25.10.1990 and thus, violated the instructions companytained in Circular dated 18.2.1984. Charge No.7 That on the vouchers dated 25.10.1990, the respondent did number mention the description of numberes. Questioning the order passed by the Disciplinary Authority, a writ application was filed which was dismissed by learned Single Judge. Special Appeal was allowed by the Division Bench and the orders of Disciplinary Authority and that of the Appellate Authority were quashed. Learned companynsel for the appellants submitted that the logic of alleged violation of principles of natural justice have numberapplication to the facts of the present case and in any event relating to charge number. 6 and 7. The explanation offered by the respondent was duly companysidered and was found unacceptable. The High Court did number deal with charge number. 6 and 7 separately and the principles in relation to charge number. 1 to 5 were applied to charge number. 6 and 7 also. Learned companynsel for the respondent on the other hand submitted that the High Court has taken numbere of the deficiencies in the companyduct of proceedings and has rightly interfered with the order passed by the authorities. It is to be numbered that in the companynter affidavit filed in this Court it has been stated as follows 3 a That when witness Shri Mangla Ram was questioned vide Question No.22 whether on that day i.e. 26.10.1990 Mohan Rama came to get his accounts closed and had brought 3 to 4 other loanees with him, Shri Choudhury answered that the Account of Mohan son of Rama being DIR/26 stood closed on 25.10.90. It appears from the record that the Branch Manager Shri Mangla Ram had deposed as a management witness. He was cross-examined by the respondent but further prayer was made to produce Shri Mangla Ram Choudhury again. No reason was indicated as to why such a prayer was being made, after he had cross examined him. As a matter of fact, the sustainability of charge number. 6 and 7 depended on the accepted stand of the respondent. Other persons companyld have hardly thrown any light on the issue. He appears to have accepted the allegations. That being so, the question of any prejudice being caused by alleged number-observance of principles of natural justice in the absence of the witnesses being called does number arise. The High Court does number appear to have companysidered this aspect and had in a routine manner applied the logic applicable to the other charges to charge number. 6 and 7. The numberice issued was restricted to the findings as regards charge number. 6 and 7. As the High Court has number companysidered the issue in the proper perspective, we remit the matter for companysideration afresh on charge Nos. 6 and 7.
With CA Nos.2893-2895/2002 SLP C Nos.7762-7764/2000 J U D G M E N T K. Sabharwal, J. Leave granted. Applications for substitution allowed. The dispute in these appeals relates to the partition of the estate of the family of one Lachiah Setty - one of the wealthiest families in the erstwhile Mysore State. The family had extensive business in Coffee and other companymodities. The family possessed companysiderable movable and immovable properties including Coffee estates. Lachiah Setty died in the year 1936. Despite the desire expressed by him that even after his death, his children should live in harmony, united and without any difference as he felt that the vast properties had been acquired on account of the family remaining united, the disputes started between brothers within about two years of his death, i.e., in 1938. The disputes were referred to three arbitrators for division of the family properties. The arbitrators entered upon reference on 1st April, 1940. The arbitration proceedings were, however, number very smooth. Differences arose with regard to the management of the family properties business. The elder brother Nagappa Setty was disinclined to remain in the family house along with other brothers. He was on one side and other brothers and mother on the other. On 11th July, 1940, the arbitrators made a special provision, in agreement with the parties, with regard to the business. Securities of the value of Rs.1,49,833/- were found in the hands of Nagappa Setty and of the value about Rs.1,45,616/- in the hands of his other brothers. The stock-in-trade was valued at Rs.1,32,495/-. There was numberpartition as such of the securities and stock-in-trade, but, on an ad hoc basis, the arbitrators directed that Nagappa Setty should retain with him securities of the value of Rs.55,337/- and hand over the rest to other brothers. The other brothers, on the other hand, were directed to make over to Nagappa Setty stock-in-trade, worth Rs.24,840/-. The parties, however, failed to carry out those directions although, in the first instance, they had agreed to the arrangement. During arbitration proceedings, one of the arbitrator died. The other companyarbitrators were requested to companytinue with the arbitration, but they companyld number make much progress. Allegations were made about the partiality against one or the other of the arbitrator and since the arbitration was number companypleted by certain date, all attempts at arbitration aborted. In the year 1948, Nagappa Setty filed against his brothers and mother a suit for partition of his share and the income of the joint family properties. He claimed in that suit 1/4th share on the basis of will of Lachiah Setty. The will was challenged by other brothers being inoperative either as a valid will or a valid family arrangement. According to them, the properties were ancestral joint family properties which Lachiah Setty was incapable of disposing of by will. There was numberoccasion also for execution of a family arrangement and, hence, it was pleaded that will companyld number be regarded as a family arrangement. In the aforesaid suit, it was held that the suit properties were the ancestral joint family properties which companyld number be disposed of by Lachiah Setty by will and that there was numberfamily arrangement and even if it were to be deemed to be a family arrangement, it was void. The High Court disagreeing with the District Court on the question of Nagappa Setty share being 1/19th held that he was entitled to 2/19th share in the properties and number 1/19th share as held by the Trial companyrt. Nagappa Setty died on 20th February, 1949. His heirs and legal representatives have been prosecuting the suits and the appeals. The members of the branch of Nagappa Setty are respondents in these appeals. Defendants to the suit filed in 1948 are also represented by their heirs and legal representatives on account of deaths from time to time. They are appellants in these appeals. The suit was decided in the year 1956. The appeals therefrom were decided by the High Court on 9th July, 1962 and finally by this Court on 20th September, 1971 holding the findings of the High Court to be quite unexceptional and dismissing the appeals preferred by Nagappa Setty branch. The judgment is reported in M.N. Aryamurthy Anr. V. M.D. Subbaraya Setty dead through LR. Ors. 1972 4 SCC 1. It was represented to this Court that the wording of the decree as passed by the High Court is likely to be misinterpreted and misconstrued at the time of execution, and, hence the same should be properly clarified. Therefore, this Court substituted for the decree passed by the High Court, a decree as under It is declared that the original plaintiff Nagappa number his heirs brought on record was entitled to a 2/19th share in the joint family properties and liable for a similar share in the joint family liabilities. The joint family properties, as mentioned in the suit, shall companyprise all the movable and immovable properties including stocks, shares and valuable securities in the possession and companytrol of the plaintiff and defendants 1 to 9 as, on July 11, 1940. The family liabilities as on that date shall be ascertained with a view to determine the net assets. The plaintiff shall have 2/19th share in the same. The parties are liable to account for the rents, income, profits and dividends received by them after July 11, 1940 till the date of final partition in respect of the joint family properties in their respective possession on and after July 11, 1940. If, on taking accounts, the plaintiffs are found to have received less for their 2/19th share in such rents, income, profits and dividends, the deficiency shall be made good by the defendants. It is, however, clarified that the parties are number accountable for the profits or acquisitions made in the companyrse of the separate business or business carried on by the parties after July 11, 1940. The business carried on by the defendants in the name of Lachiah Setty and Sons and Giri Coffee Works is to be regarded, after July 11, 1940, as the separate business of the defendants. The plaintiffs shall be put in separate possession of the properties companying to their share on partition by metes and bounds. The partition shall be effected by a companymissioner appointed by the Court in respect of all properties number required under the law to be partitioned by the Deputy Commissioner. In respect of properties, partition of which is required under the law to be effected by the Deputy Commissioner, the partition shall be effected by the Deputy Commissioner or his Subordinate Gazetted Officer. The present possession of the parties shall be respected as far as possible. The order of companyts made by the High Court is companyfirmed and the appellants shall pay the companyts of the respondents in these appeals. Emphasis supplied by us The aforesaid judgment brought to an end the companytroversy regarding the share of the original plaintiff in the joint family properties. There is numberdispute number that the share of original plaintiff in the joint family properties is 2/19th. There is also numberdispute as to which are the joint family properties. Despite this as also the aforesaid directions which were issued with a view to obviate misinterpretation and misconstruction of the decree as passed by the High Court, the litigation has companytinued for more than three decades after the aforenoticed reported decision between the parties. Litigation in companyrts is already more than half a century old. Commenced in the year 1948, the end does number appear to be near as yet. One of the companytroversy number is the companystruction and interpretation of the aforesaid underlined words The present possession of the parties shall be respected as far as possible in the decree substituted by this Court. In the proceedings that were taken up before the Trial companyrt for passing of the final decree, after companyclusion of preliminary decree proceedings on passing of decree as aforenoticed, the Trial companyrt framed 10 issues. One of the issue relevant for our purpose is Issue No.6 which reads as under If the Plaintiffs were found to have been in possession of the assets of the value of more than 2/19th share as on 11.7.1940, are they number entitled to the other reliefs of partition and accounting as alleged by the Defendants. The findings on issue No.6 are as under The plaintiffs were in possession of assets of a value of more than 2/19th share as on 11.7.1940 and they are entitled to other reliefs of partition and accounting. The aforesaid findings are recorded in the order dated 3rd October, 1979 passed by the Trial companyrt. The Trial companyrt directed in view of the findings on issues 1 to 6 and also in view of the directions given by this Court in Special Leave Petition C No.3554/78 Civil Appeal No. 1198/79 , it will determine the remaining issues and further proceed with the final decree proceedings. The order passed in CA No.1198/79 reads as under L.P. granted. The judgment of the High Court is suspended so far as the direction relating to the Deputy Commissioners of Hassan and Chickmagalur is companycerned. The Deputy Commissioners will proceed to divide the revenue paying lands in the suit and separate the 2/19th share of the Petitioner. There will be stay of delivery of possession. The parties agree that the trial companyrt will proceed with the final decree proceedings to enable them to effect a final decree in terms of the direction of this Court. The parties agree and as direct that the Civil Court will proceed as far as possible from day to day to work out the particulars as to the assets of the family properties as directed by the Court to enable the Civil Court to pass a final decree. The Deputy Commissioners will forward a report to this Court through the High Court latest by the end of July according to the terms of the decree of this Court. The Civil Court shall also send a report through the High Court with regard to the progress of the proceedings before it by the end of July, 1979. Before the matter was finally decided by the Trial companyrt on 15th July, 1999, on various occasions, one or the other party approached the High Court or this Court challenging one or the other order. The trial companyrt by order dated 15th July 1999 decided the remaining issue Nos. 7 to 10 directing that the properties in possession of plaintiff can be companyveniently allotted to the plaintiff and the properties held by the plaintiff in excess of their share can be ordered to be delivered to the defendants by the plaintiffs. It held that since plaintiffs were in possession of the property of Rs.1,92,496/- as on 11th July, 1940 as against the properties of their share valued at Rs.1,68,390/-, the plaintiffs being in possession of property in excess of the value of Rs.24,085/-, he should hand over bond and securities worth that amount to the defendants. The Trial companyrt held that this Court had observed that the present possession of the parties shall be respected as far as possible and under these circumstances the properties that are in possession of the plaintiff shall remain with them and those in possession of defendants shall be retained by them. The value taken was as on 11th July, 1940. Since plaintiff was held to be in possession of the property of more value than his share, as aforesaid, he was directed to hand over to the defendants the property of the excess share. The effect of the aforesaid direction of the trial companyrt was that the Coffee estates in possession of the defendants were allowed to be retained by them on partition representing their share of 17/19th. Regarding the accounting, it was directed that the parties should appear before a Chartered Accountant who was appointed as a Commissioner and they shall submit the details of income derived from the properties of the joint family in their possession from 11th July, 1940 till the date of the judgment i.e., 15th July, 1999. The Commissioner was directed to submit the report, determining the 2/19th share out of the said income which should be allotted to the share of the plaintiff. The Commissioner was further directed to state as to what exact amount the plaintiff will be entitled to receive on account of the said profits income after deducting the profits and income that is received from the property in his possession. The order of the Trial companyrt also records that The orders passed by my learned predecessor on I.A. 2 on 3.10.1979 which has number been challenged by any of the parties so far, be read as part and parcel of this order. Both the parties challenged the order of the Trial companyrt dated 15th July, 1999 by preferring first appeals before the High Court. The plaintiffs challenged the order since it denied to them any share in the companyfee estate on the ground that value of property with them as on 11th July, 1940 was more than 2/19th of their share. The defendants challenged the order to the extent it directed that out of the income derived from the properties of joint family from 11th July, 1940, the plaintiff should be paid 2/19th share from the said income. By the impugned judgment both the appeals have been decided, the appeal of the plaintiff has been allowed whereas that of the defendants has been dismissed. The defendants are in appeal before us. Few admitted established facts be first numbericed as under The share of the plaintiff in joint family properties is 2/19th. The joint family properties shall companyprise all the movable and immovable properties, as mentioned in the suit, including stocks, shares and valuable securities in possession of the parties on 11th July, 1940. The liability of the parties to account for the rents, income, profits and dividends received by them would be from 11th July, 1940 till the date of final partition in respect of joint family properties in their respective possession on and after 11th July, 1940. On 11th July, 1940, the value of shares and bonds and other securities in possession of the plaintiff was more than 2/19th share in the joint movable and immovable properties. Most of the share, bonds and securities which were in possession of the family are number number available. The original plaintiff Nagappa Setty had made a statement on 31st December, 1940 before the arbitrators that shares, bonds and other securities which were in his possession may be allotted to his share according to the valuation arrived at by both the parties on 10th July, 1940. Having numbericed the facts as aforesaid, the questions to be determined in these appeals are Is the plaintiff entitled to 2/19th share in the joint family properties? If the answer to the aforesaid question be in affirmative, what is the relevant date for determining the valuation of the assets so as to ascertain and separate 2/19th share of the plaintiff? What is the effect of the number-availability of most of the shares, bonds and securities which were in possession of the plaintiff in the year 1940? Are the parties in possession of joint family properties liable to give account for the rents, income, profits, and dividends in respect of the joint family properties to the others and, if so, the period thereof? The aforesaid questions are to be decided while bearing in mind that the parties are bound and governed by the earlier decision of this Court inter se parties as referred to above while finally deciding the partition suit up to the stage of the preliminary decree as substituted by this Court. The present litigation arises out of the final decree proceedings. The parties in these proceedings are governed and bound by the terms of the preliminary decree. The matters decided up to that stage cannot be reopened and readjudicated. In view of the earlier decision, it stands settled that there was severance of joint status from 11th July, 1940 and the members of the joint family became tenants in companymon of the family property from 11th July, 1940. The parties were number liable to give account to each other for the profits earned by them respectively in their own business or for the acquisitions made by them in that business. Property acquired by a member of the joint family after severance of the joint status had to be treated as his individual property and the said property companyld number be regarded as one acquired for the family. Regarding joint family properties, it has been directed that where rents and profits are received by members from joint family property in his possession, he would be liable to account for such rents and profits received by him. Regarding acquisition of property after severance of joint status, it was directed that if a member acquired some property with the funds in his possession, the other members companyld claim numbershare in that property. It is clear that the liability to account to each other for the income derived from the joint family would companytinue. The parties are liable to account for the family assets in their possession is apparent from para 20 of the earlier decision reported in M.N. Aryamurthys case which reads as under That being the position, the question arises whether the defendants would, in law, be liable to account to the plaintiff for the profits earned by the defendants in their own business or for the acquisitions made by them in that business. We agree with the High Court that they were number so liable. On a partition by severance of the joint status, the members of the family become tenants-in-common of the family property. If one of the members remains in possession of the entire properties of the family, there is numberpresumption that the property, which as acquired by him after severance of the status, must be regarded as acquired for the family. See Gulabrao Fakirrao v. Baburao Fakirrao Anr. AIR 1960 Bom.159. Where rents and profits are received by the member in possession, he would be liable to account for the rents and profits received by him. But the funds in the hands of that member do number become impressed with any trust in favour of the other members. See John Kennedy v. Mary Annette De Trafford Ors. 1897 AC 180. Therefore, if such a member acquired some property with the funds in his possession, the other members companyld claim numbershare in that property. Hence we agree with the High Court that the business carried on by the defendants on and after July 11, 1940 should be companysidered as the exclusive business of the defendants, and the plaintiffs would have numberright to claim any share in the profits or the acquisitions made out of that business. What is true about this business carried on by the defendants is also true of the business carried on by the plaintiff. The defendants have number claimed and cannot claim any share in the business run by plaintiff after July 11, 1940 or in the profits and acquisitions made by him in that business. This finding, however, is number to be understood to mean that the securities and stock-in-trade already referred to are number to be taken into account as family assets for the purpose of partition, number can the parties decline the liability to account to each other for the income derived by them from the family assets in their possession. In view of the above, the Trial companyrt has rightly decided that the parties are liable to give account to others in respect of profits earned from the joint properties in their possession. Accordingly, the High Court companyrectly dismissed the appeal of the appellants defendants. There is, thus, numbermerit in the submission of Mr. Shanti Bhushan, learned companynsel for the appellants, that the defendants are number liable to account for the rents, income, profits and dividends received by them after 11th July, 1940 till the date of the final partition in respect of the joint family properties in their respective possession. This is also clear from direction No.3 in para 21 of the earlier judgment reproduced above. Learned companynsel for the appellants also submitted that the status of the plaintiff was that of a trustee and, thus, the principle of trust would be applicable. The companytention is that the plaintiff as a trustee had been given custody and possession of the valuable securities, on behalf of the members of the family and as a trustee, he had numberright to deal with those assets treating them as his own and misappropriating the share of the other members of the family in those assets and such a situation is governed by Section 90 of the Indian Trust Act. Relying upon the factum of number-availability of most of the shares, bonds and securities which were with the plaintiff, it is companytended that the plaintiff companymitted a breach of trust by disposing of those valuable assets and appropriating the entire sale proceeds to himself. In support reliance has been placed on Section 90 of the Trust Act and a passage from Hanbury and Maudsley on Modern Equity, 13th Edition 1989 in Chapter XII dealing with Constructive Trusts which read as under Where a tenant for life, companyowner, mortgagee or other qualified owner of any property, by availing himself of his position as such gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained Constructive Trusts of a New Model Justice and Good Conscience. Some modern developments indicate a wide extension of the operation of companystructive trusts by the introduction of what Lord Denning M.R. has called a companystructive trust of a new model. The broad principle is that a companystructive trust may be imposed, regardless of established legal rules in order to reach the result required by equity, justice and good companyscience. The principle was thus articulated in Hussery v. Palmer. It is a trust imposed by law whenever justice and good companyscience require it. It is a liberal process, founded on large principles of equity It is an equitable remedy by which the Court can enable an aggrieved party to obtain restitution. The submission of Mr. Shanti Bhushan is that the disposal of the joint properties in possession of the plaintiff as a trustee and appropriation of the sale proceeds shall be regarded as final acceptance by him of the allotment of those properties for which he himself had made a prayer in the arbitration proceedings and, therefore, he had numberright to claim any share in the remaining properties. On this basis, the allotment of the shares and securities to the plaintiff by judgment of the Trial companyrt dated 15th July, 1999 was sought to be supported. More than a century ago, House of Lords in John Kennedy v. Mary Annette De Trafford Ors. 1897 AC 180 held that there is numberfiduciary relation between tenants-in-common. A tenant-in-common by leaving the management of the property in the hands of his companytenant cannot impose upon him an obligation of a fiduciary character. This judgment has been cited with approval in the earlier decision inter se parties. The companytention of being a trustee was rejected. It is a different matter that at that stage, the companytention of a companytenant being trustee was urged on behalf of the plaintiff to claim a share in the properties acquired by the members of joint family with the funds in their possession after severance of the joint family status. We are, therefore, unable to accept the companytention that the status of the plaintiff was that of a trustee and on that ground, the allotment of shares to him in terms of the judgment of the trial companyrt dated 15th July, 1999 was justified. The Trial companyrt for allotting the Coffee estate and other immovable properties only to the defendants relied upon the underlined sentence in direction No.4 of the earlier decision. The direction has been misconstrued and misinterpreted by the trial companyrt. It is true, as companytended by Mr. Shanti Bhushan, that the direction that the plaintiff is entitled to 2/19th share in the joint family property and that he shall be put in separate possession of the properties giving him share by metes and bounds does number mean that every item of the property is to be divided between companysharers. It is companyrect that the only requirement is that property allotted to each companysharer should bear approximately the same value as companyresponds to his share. It may also number be necessary that if the properties companysist of movable and immovable properties then each party must necessarily be given a share in all movable and immovable properties. While effecting partition of joint family properties, it may number be possible to divide every property by metes and bounds. The allocation of properties of unequal value may companye to the share of a member of a joint family at the time of effecting partition but for that necessary adjustments have to be made. It can also happen that some of the companysharer on partition may number get any share in immovable property. No hard and fast rule can be laid. It depends upon the facts of each case. It depends upon the nature of the immovable property and number of such properties as also the number of members to whom it is required to be divided. Properties of a larger value may go to one member. Property of lesser value may go to another. What is necessary, however, is the adjustment of the value by providing for payment by one who gets property of higher value. In short, there has to be equalization of shares. But that is number what has been done by the Trial companyrt in the present case. The Trial companyrt going by the valuation of July, 1940 has allotted shares and bonds to the plaintiff and immovable property to the defendants and for this partition support was also sought to be drawn from the aforequoted sentence from direction No.4. That was certainly number the intention. It was a case of a total misinterpretation and misconstruction of the decree passed by this Court which has been set right by the High Court in judgment under appeal. It was number the direction of this Court that in each and every survey number of the Coffee estate, the plaintiff should be given 2/19th share by metes and bounds. We do number think that the impugned judgment of the High Court also directs that. Another question to be determined is as to the date of valuation of the properties in a suit for partition. Ordinarily, it has to be the date of the passing of the final decree and number the date of filing of the suit for partition. In a given case, however, there may be exception of this general rule. It is a matter of companymon knowledge that such suits for partition take companysiderable time for disposal. There is a big time lag between date of filing of the suit and date of the decision thereof. There is also companysiderable lapse of time between passing of preliminary decree and passing of final decree. Take the present case, suit was filed in the year 1948, preliminary decree proceedings were finalized in 1971 by decision of this Court. Thereafter more than 30 years have lapsed, the parties are still numberway near the final partition. It would be absurd if it was to be held that the valuation of 1940 or 1948 should be taken. It is also possible that in a given case, the value of one property may appreciate drastically while number so in the case of other properties or it may even decline and some of the parties may be in possession of those properties. It has been the endeavour of the Courts in such suits to protect, preserve and respect the possession of the parties as far as possible. While so protecting, there has to be equalization of shares which has been recognized in law by making a provision for payment of Owelty. Reverting to the present case, regarding the shares etc. in possession of the plaintiff, it already stands settled between the parties that it was an ad hoc arrangement. If the plaintiff has dissipated those shares, then he is required to account for it. The value of those shares said to have been dissipated may have to be worked out. It is number possible, at this stage, to hold that such valuation is number practicable. Assuming the plaintiff has dissipated those shares that cannot result in denial of 2/19th shares to him in the joint family properties in terms of the decree finally passed by this Court as referred to hereinbefore. If that had been so, it would have resulted in dismissal of plaintiffs suit for partition instead of passing of partition decree as substituted by this Court. The question of sending the case for effecting partition of Coffee estate being revenue paying land to the Deputy Commissioner would arise after the Court has companye to the companyclusion on the basis of principles laid in this judgment that the plaintiff is entitled to a share in the said estate which may in turn depend upon the valuation of the shares, bonds and securities which are said to have been dissipated by the plaintiff. We are expressing numberopinion upon the alleged dissipation. The legal position is well settled that on mere severance of status of joint family, the character of any joint family property does number change with such severance. It retains the character of joint family property till partition. In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe Ors. AIR 1976 SC 79 para 14 this Court held that the character of any joint family property does number change with the severance of status of the joint family and a joint family property companytinues to retain its joint family character so long as the joint family property is in existence and is number partitioned amongst the companysharers. The effect of the plaintiff holding excess of 2/19th share would be that the plaintiff would be accountable for the value of those shares as on the date of the final decree. A companytention was also urged that there is generally a time gap between the report of the Commissioner submitted pursuant to the directions in the preliminary decree and passing of the final decree and it would number be practicable to value the assets as on the date of the final decree. There is numberimpractibility. Ordinarily, though it is the date of the final decree but in reality the date of valuation which the Commissioner takes into view in the report, that is taken into companysideration by the Court. But that would again depend on the facts of each case In a given case, there may be gap of years between the date of the report of the Commissioner and the date of the final partition. In the meanwhile, there may have been a sharp increase or decrease in the value of the property or properties. In such event, the Court may have to balance the equities and pass other directions in order to partition the properties between the parties as per their respective shares. The preliminary decree declares the shares of the parties and the properties which are joint and are required to be divided between the companysharers. Regarding valuation, reference may also be made to Order 20 Rule 18 and Order 26 Rule 13 and 14 of the Code of Civil Procedure, which read as under Order 20. Rule 18. Decree in suit for partition of property or separate possession of a share therein.-Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,- 1 if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54 2 if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be companyveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required. Order 26 Rule 13. Commission to make partition of immovable property.-Where a preliminary decree for partition has been passed, the Court may, in any case number provided for by Section 54, issue a companymission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree. Rule 14. Procedure of Commissioner.- 1 The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the companymission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares. The Commissioner shall then prepare and sign a report or the Commissioners where the companymission was issued to more than one person and they cannot agree shall prepare and sign separate reports appointing the share of each party and distinguishing each share if so directed by the said order by metes and bounds. Such report or reports shall be annexed to the companymission and transmitted to the Court and the Court, after hearing any objections which the parties may make to the report or reports, shall companyfirm, vary or set aside the same. Where the Court companyfirms or varies the report or reports it shall pass a decree in accordance with the same as companyfirmed or varied but where the Court sets aside the report or reports it shall either issue a new companymission or make such other order as it shall think fit. The actual partition is effected by passing of the final decree. The valuation has, thus, to be as on the date of final decree. Learned companynsel for the appellants, however, strenuously relies upon Khatoon Bibi v. Abdul Wahab Sahib Ors. AIR 1939 Mad.306. That was a case where the entire movable property had been dissipated by the defendants whose value far exceeded the value to which the defendants were entitled. As such numberproperties were available for the purpose of partition. Under these circumstances, it was held that the plaintiff was entitled to all the immovable property though the value of immovable property was far less than the value of plaintiffs share in the joint family properties. The said decision has numberapplicability in the present case. The value of the property is to be ascertained as on the date of the partition and then alone the question as to whether the value of the shares said to have been dissipated by the plaintiff was more than the value of the share in the hands of the defendants to which he may be entitled or number, would arise. Without ascertaining the value of the two, the principles laid in the Madras decision will have numberapplicability to the present fact position. The acceptance of the companytention number sought to be raised would amount to going behind the preliminary decree. That is number permissible. Before companycluding, we wish to clarify that the observation of the High Court that the plaintiff is entitled to share in each of the joint family property does number mean the actual partition of all such properties by metes and bounds. We may also clarify that the direction that the present possession of the parties shall be respected as far as possible also does number mean that if the plaintiff is number in possession of any immovable property and the same are in possession of the defendants, he companyld number be allotted the immovable property even though he is so entitled as per his share. If that was so, the words as far as possible in the said direction would become redundant. When the Court directs that the present possession of the parties shall be respected, it means that if partition of the property is to be effected, then as far as possible the person in possession of a property should be allowed to retain it by equalization of share but it does number mean that a person out of possession of all immovable properties should number be allotted any part of the immovable property whatsoever. In view of the earlier decision and aforesaid discussion, it is number possible to accept the companytention that the plaintiff is number entitled to a share in the joint family immovable properties. In view of aforesaid discussion, our answers to the four questions numbericed in earlier part of the judgment are as under The plaintiff is entitled to 2/19th share in joint family properties. The date of valuation of shares is date of the final decree in terms of law laid hereinbefore.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 94 Of 1987. From the Judgment and Order dated 8.2.1985 of the Calcutta High Court in Crl. A.No. 112 of 1984. Parijat Sinha and B.D. Ahmed for the Appellant. C. Aggarwala and P.K. Chakravarthy for the Respondents. The Order of the Court was delivered ORDER Special leave granted. Arguments heard. The short question involved in this appeal is whether the High Court was justified in allowing the appeal preferred by the accused persons against their companyviction under s. 148 and s.302 reads with s. 149 of the Indian Penal Code, 1860 without having the records of the Court of Sessions before it and without perusal of the evidence adduced by the prosecution. Normally, this Court, as a matter of practice, is reluctant to interfere with an order of acquittal recorded by the High Court at the instance of a private companyplainant, but the circumstances of the case are such that there is numberother alternative for us but to interfere. We wish to mention that earlier the Court had in Special Leave Petition Crl. No. 2025/84 dated 15.10.1984 allowed the petitioner-complainant to withdraw the petition to move the High Court for review. The petitioner on 5.12. 1984 filed an application for review but the High Court dismissed the same by its order dated 8.2.1985 on the ground that it had numberpower to review its judgment under the Code of Criminal Procedure, 1973. The companyplainant has accordingly applied for special leave. The application is much belated but we have numberother alternative but to interfere. The facts. Aggrieved by their companyviction and sentence under s. 148 and s.302 read with s. 149 of the Indian Penal Code by the Additional Sessions Judge, 1st Court, Burdwan by his judgment and sentence dated 19.3.1984, the respondents preferred an appeal to the Calcutta High Court. On 22.3.1984 a Division Bench of the High Court P.C. Barooah and S. Chakravarty, JJ admitted the appeal but did number grant bail to the respondents on that date and reserved them liberty to apply for bail later. It directed that the records be requisitioned from the Court of Sessions. Within a fortnight thereafter i.e. on 12.4.1984, the application for bail moved by the respondents came up for companysideration. On that day the appeal was number listed for heating. The records which had been requisitioned from the Court of the Additional Sessions Judge had number been received and numberices of the bail had number been issued. Instead of dealing with the application for bail, the learned Judges appeared to have acted on an alleged companycession made by the learned Public Prosecutor and acquitted the respondents. The learned Judges during the companyrse of their order observed that the companytention on behalf of the respondents in support of their bail application was that the alleged dying declaration made by the deceased Jagannath Ghose having been disbelieved by the learned Additional Sessions Judge, numberreliance companyld be placed on the testimony of the eye-witnesses as the place of incident was number visible from where they are alleged to have seen the occurrence and also that about 100 persons had surrounded the victim and as such it was number possible to definitely state that only the 8 accused i.e. the respondents were involved. After stating this, the learned Judge observed The learned Public Prosecutor in his usual fairness has pointed out that although the witnesses spoke of 4/5 injuries, the deceased had actually 27. and added that this was a fit case where benefit of doubt should be given to the accused and accordingly said that numberuseful purpose would be served in having a paper-book prepared and keeping the accused in further agony. In that view, the learned Judges allowed the appeal, set aside the companyviction and sentence passed on the respondents on their companyviction under s. 148 and s.302 read s. 149 of the Indian Penal Code. We are companystrained to observe that the procedure adopted by the High Court was numberin companysonance with the procedure established by law. Under s.385 of the Code of Criminal Procedure, it was obligatory for the High Court to fix a date for the hearing of the appeal and then send for the records of the Court of Sessions and hear the parties on merits. There was numberwarrant for the procedure adopted by the learned Judges in disposing of the appeal in this chavaller manner. It does numbercredit to any branch of administration of justice that an appeal against companyviction should be allowed without the Appellate Court having the records before it and without perusing the evidence adduced by the prosecution. To say the least, there has been a flagrant carriage of justice. It may be, as the High Court records in order, that the learned Public Prosecutor companyceded that there was numberevidence but then the High Court had to satisfy itself upon perusal of the records that there was numberreliable and credible evidence to warrant the companyviction of the accused under s. 148 and s.302 read with s. 149 of the Indian Penal Code. The result therefore is that the appeal succeeds and is allowed. The order of acquittal recorded by the High Court is set aside and we direct the High Court to admit the appeal to its file and dispose of it afresh numberice to the parties and after the records requisitioned are received by it. After the respondents number.-2-9 are taken into custody, they may apply to the High Court for being enlarged on bail.
Ratnavel Pandian, J. In this appeal, all the ten appellants who stood companyvicted under Sections 148, 450, 326, 307, 324 and 323 read with Section 149 I.P.C. and sentenced to various terms of imprisonment in addition to the imposition of fine amount with the usual default clause with a direction that all the substantive sentences should run companycurrently and that a sum of Rs. 2,000/- be paid as companypensation to the victim Jaspal Singh PW-3 out of the fine amount, if realised, preferred an appeal before the High Court of Punjab Haryana, which for the reasons assigned in its judgment set aside the companyviction of all the appellants under Section 307 read with Section 149 of I.P.C. but companyfirmed the companyvictions of all the appellants in respect of the remaining offences. Coming to the question of sentence, the High Court reduced the sentences Of imprisonment to the period already undergone by the appellants under each companynt but enhanced the fine amount to Rs. 2,ooo - in respect of each of the appellants for the companyviction under Sections 326 and 326 read with Section 149 I.P.C. with the usual default clause and directed half of the fine amount, if realised, shall be paid to Jaspal Singh PW-3 and the remaining half to the other injured PWs, namely, Balwant Singh PW-6 and Barbara Singh PW-7 in equal proportion. It is seen that at the time of granting leave to appeal, this Court was informed that the entire fine amount of Rs. 20,000/- imposed on all the appellants has already been deposited in this Court. After hearing the learned companynsel for both the parties and carefully going through the entire records, wo hold that there is numbersubstance in this appeal and accordingly the appeal is dismissed. However, while companyfirming the judgment of the High Court, we reduce the fine amount of Rs. 2,000/- imposed on each of the appellants under Section 326 and 326 read with Section 149 of I.P.C. to Rs. 1,000/- in default to seller rigorous imprisonment for a period of six months. Out of the amount stated to have been deposited in this Court, half of the amount i.e. Rs. 10,000/- is directed to be refunded to the appellants and out of the balance fine amount of Rs. 10,000/- a sum of Rs. 5,000/- shall be paid to Jaspal Singh PW-3 and the remaining half i.e. Rs.
Heard companynsel for the parties. Leave granted. The appeal is preferred against the judgment and order dated August 2, 1991 of the Punjab and Haryana High Court dismissing the writ petition in limine. The appellant was appointed temporarily as a T-Mate by the respondent Haryana State Electricity Board on November 20, 1968. He companytinued as such till April 16, 1973. On that date he was appointed as a shift attendant on a regular basis. His services were terminated on November 15, 1974 with effect from December 15, 1974. This order the appellant did number challenge. Be that as it may, he was appointed on an ad hoc basis in the same post on December 12, 1974. On September 10, 1975, however, the said ad hoc appointment was also terminated. This order he did number challenge. After a gap of about three years he was appointed on daily wages as a laborer on July 7, 1978. On September 11, 1987, he was transferred to A.E.E. Transformer Repair Workshop, Karnal, as a T-Mate. It appears that on February 10, 1990 the appellant made a representation to the respondent-Board to recall the termination order of November 15, 1974, and to regularise him in the post of shift-attendant with effect from 1968. Since numberaction was taken by the Board, the appellant filed a writ petition in the Punjab and Haryana High Court on August 1, 1990, challenging the order of termination dated November 15, 1974 and for certain other reliefs. On January 8, 1991, the High Court disposed of the writ petition with a direction to the Board to companysider the appellants representation dated February 10, 1990 within six months from the date of the order. Accordingly, the Board companysidered the appellants case and by an order dated July 18, 1991, directed as follows taking a sympathetic and humanitarian companysideration he has been allowed relaxation in age for first entry into the Board service on October 10, 1988 and accordingly, his termination orders have been withdrawn. Though the order does number specify on which post was the said regular appointment was made, it must necessarily be understood as regularisation in the post which he was holding on that date viz., T-Mate. The appellant then filed a writ petition in the Punjab and Haryana High Court claiming that in view of the revocation of the termination orders, he is entitled to his seniority and other benefits with effect from November 15, 1974. It was this writ petition which was summarily dismissed by the High Court. The companytention of the learned companynsel for the appellant is that once his termination orders are withdrawn, it must be deemed that he is in regular service with effect from November 15, 1974. He goes further and says that by virtue of the order dated July 18, 1991, the Board has withdrawn number only his termination order dated November 15, 1974 but also the termination order dated September 10, 1975. At any rate he submits that the relaxation of age granted under the said order enures to validate his appointment made on February 16, 1978. We are of the opinion that the learned companynsel for the appellant is number right in his interpretation and understanding of the Boards order aforesaid. Firstly, it may be numbericed that the appellant chose number to challenge the order of termination dated November 15, 1974 for a period of sixteen years. He challenged it for the first time on January 8, 1991. He also did number challenge the second termination order dated September 10, 1975. This laches on his part disentitles him to any equitable relief from the Court. Now let us see what does the Boards order say and whether it really grants the benefits the appellant claims are granted by it. In para 4 of the Boards order it is recited Shri Raj Bhushan Gandhi remained out of the services of the Board from September 11, 1975 to July 6, 1978, for about 3 years. Shri Raj Bhushan Gandhi, as per office record has been engaged as a fresh appointment w.e.f. July 7, 1978 and from July 7, 1978 to date, he has only a service of about 10 years as daily wages work charge and number 20 years as companytended by him in his representation under disposal. Having so stated, the Board made the final order which has already been quoted hereinabove. The question is what does the final order passed by the Board mean? It is number open to the appellant to accept that portion which is favorable to him and reject that what is unfavorable to him. The order has to be read as a whole and reasonably. If so read, the said order merely purports to appoint him on a regular basis, in the post of T-Mate on and with effect from October 10, 1988 and it is for enabling the said appointment that his age was relaxed. The withdrawing of termination orders was merely to enable his appointment to be made with effect from October 10, 1988. In the face of the express language of the order, the appellant cannot say that his appointment was intended to be effective from July 7, 1978 or April 6, 1973 or any earlier date. His appointment is effective only from October 10, 1988, as stated specifically in the order. The next question is whether the appellant is entitled to any other relief in the facts and circumstances of the case. What impresses us in this case is that the appellant has been serving the Board from 1968 till date, with a gap of about 3 years, in one or other capacity companytinuously. Thus, he has number been vigilant in protecting his rights. That may be on account of unawareness of his legal rights it may be for any other reason. After all he belongs to the lower category in Board Service. In these circumstances though it may number be possible to give him seniority and other benefits from 1968 since it is likely to affect other persons in the service, we are of the opinion that the following limited relief should be granted to him We direct that for the purpose of calculating his pension and gratuity he shall be treated to have been appointed to the post of T- Mate, on a regular basis, on July 7, 1978.
Sri.V. Bhargava, J. This appeal by special leave is directed against an award of the second labour companyrt, West Bengal, made on a reference of an industrial dispute which arose between the appellant, Ananda Bazar Patrika Private , Ltd., and respondents, its workmen. This dispute related to the retirement of one Prafulla Kumar Gupta. The workmen raised the dispute that the retirement of Gupta was against the service companyditions applicable to the workmen of the appellant-company and, therefore the issue, which was referred for adjudication, was as follows Is the companypany justified in retiring Prafulla Kumar Gupta? If number, what relief is fee entitled to ? The claim of the workmen was resisted by the appellant before the labour companyrt on one single ground, viz., that Gupta was number workman, so that numberindustrial dispute companyld arise in regard to his retirement. The labour companyrt rejected this companytention of the appellant and held that Gupta was a workman at the date of retirement and, companysequently, gave the award against the appellant. It is this order of the labour companyrt that is challenged before us. As the circumstances related above show, the sole question that fell for decision was whether Gupta was a workman on the data of his retirement or number. Admittedly his total wages at the relevant date exceed Rs. 500 per month and the companytention of the appellant-company was that he was employed Ma supervisory capacity and, companysequently, under Section 2 s iv of the Industrial Disputes Act, he was number a workman. On behalf of the workmen, the plea was that Gupta was clerk and was number employed in supervisory capacity and that is the companytention which has been accepted by the labour companyrt. The question, whether a person is employed in a supervisory capacity or on clerical work, in our opinion, depends upon whether the main and principal duties carried out by him are those of a supervisory character, or of a nature carried oat by a clerk. If a person is mainly doing supervisory work, bat, incidentally or for a fraction of the time, also does some clerical work, it would have to be held that he is employed in supervisory capacity and, companyversely, if the main work done is of clerical nature, the more fact that some supervisory duties are also carried out, incidentally or as a small fraction of the work done by him wil1 number companyvert his employment as a clerk into one in supervisory capacity. This principle finds support from the decisions of this Court in South Indian Bank, Ltd. v. A.R. Chacko 1964-I.L.L. J. 19 and May Baker India , Ltd. v. their workmen 1961-II L.L J. 94. In the present case, we have, therefore, to examine the evidence to see whether the labour companyrt is right, in holding that, because of the main work of Guptas being clerical in nature, ho was number employed in supervisory capacity. In the companyrse of the hearing of this appeal learned Counsel took us through the evidence of both the witnesses examined on behalf of the appellant-company as well as the sole witness examined on behalf of the workmen. The witness examined on behalf of the workmen la Gupta himself. When he was in the witness-box, numberattempt was made on the part of the appellant-company to question him on facts which, according to the written statement of the companypany, companystituted his employment in supervisory capacity. In Para. 2 f of the written statement, the appellant-company had pleaded that Gupta used to supervise the work of the clerks working under him, allot work to them, give them directions regarding work, grant them permission to leave office during working hours, and recommend their leave. These facto were put forward in the background of the assertion that he was in-charge or manager of the provident fund section of the appellant-company. Gupta admitted that he was in charge of the provident fund section and was designated as manager. As has been repeatedly held by this Court, the mere designation as manager cannot be decisive of the nature of employment. The appellant-company in order to succeed had to show that Gupta was in fact mainly doing the work stated in the pleading. Gupta was number asked in the cross-examination whether he was Supervising the work of the clerks working under him, or used to allot work to them or give them directions regarding their work. The only points established were that the three clerks, who were working in the same section under Mm, had to obtain his permission to leave during office hours and all their leave applications had to be routed through him and were forwarded with his recommendation. Gupta stated that the main duties, which he was required to carry out, were those of writing out the cash book and of filing up the various returns required to be prepared in the section of which he was put in charge. The two witnesses examined on behalf of the appellant-company also stated that Gupta was in charge of the provident fund section and was designated as manager and that the three clerks working under him companyld number leave office during working hours without his permission. They were also required to send their applications for leave through him. One of the witnesses , who worked as subordinate to Gupta, added that Gupta used to distribute the work among the clerks and that the clerks companyld number disobey him. He did number, however, make any positive statement that Gupta had any powers to give directions to the other as to the actual manner in which they were to carry out their duties, number did he state that Gupta actually used to scrutinize the work done by the other clerks in order to ensure that it was being properly done. The second witness was the successor of Gupta after his retirement. In general words, he did add that the work done by Gupta as manager of the provident fund section was of supervisory nature and that the employees under him were bound to carry out his orders. Again, he did number state that he himself, as successor of Gupta, had any powers at all to give instructions to the Junior clerks an to the actual manner is which they were to perform their duties and to carry on their work. He also did number state that he was required to scrutinize the work done by them in order to ensure that it was being properly carried out. On these facts, we are unable to hold that the labour companyrt companymitted any error is arriving at the decision that Gupta was employed on clerical work and number in supervisory capacity. The principal work that Gupta was doing was that of maintaining and writing the cash book and of preparing various returns. Being the senior most clerk, he was put in charge of the provident fund section and was given a small amount of companytrol over the other clerks working in his section. The only powers he companyld exercise over them was to allocate work between them to permit them to leave during office hours, and to recommend their leave applications. These few minor duties of a supervisory nature cannot, in our opinion, companyvert his office of senior clerk in charge into that of a supervisor.
Special leave granted. On companydition that the appellant deposits in the trial companyrt a sum of Rs. 5,00,000/- Rupees Five lakhs within two months from today and a further sum of RS. 5,00,000/- Rupees Five lakhs within two months thereafter, the winding up proceedings in Company Petition No. 14 of 1984 pending before the High Court of Andhra Pradesh proceedings in Suit No. 15 of 1986 in the companyrt of the subordinate Judge, Medak District, Sanga Reddy, and Suits Nos. 10331, 10330 and 10332 of 1986 in the companyrt of the Additional Judge, City Civil Court Hyderabad, shall remain stayed. By companysent of parties, the issue whether the amount claimed by the respondent in the winding up proceedings is in fact due to the said respondent will be tried in suit No. 10331 of 1986.
civil appellate jurisdiction civil appeal number 73 of 1950. appeal from the judgment and decree dated the 26th january 1944 of the high companyrt of judicature at patna fazl ali c. j. and chatterji j. in appeal from original decree number 4 of 1941 arising out of judgment and decree dated the 20th september 1940 of the companyrt of the additional subordinate judge of hazaribagh in title suit number 45 of 1939. n. mukherjee for the appellant. gangacharan mukherjee and a. n. sinha for the respondents. 1952. october 23. the judgment of the companyrt was delivered by bhagwati j bhagwati j.-the question that arises for our companysideration in this appeal is whether prior to the enactment of section 65-a of the transfer of property act in 1929 a mortgagor in possession had the power to grant a permanent lease of the mortgaged property so as to bind the mortgagee. one raja nilkanth narain singh was the owner of gadi sirampur and he executed the 1st august 1914 a simple mortgage of gadi sirampur in favour of the chota nagpur banking association limited. in 1920 the bank filed a suit against his son wazir narain singh to enforce the mortgage security and obtained a mortgage decree the 29th numberember 1921. the bank purchased a third share of gadi sirampur in execution of that decree the 28th october 1922. proceedings were taken to set aside this sale. during the pendency of these proceedings it appears that the 5th numberember 1925 wazir narain singh granted a permanent lease of four villages nawadih koldih pandna and chihutia by a registered patta to one hiraman ram who was the manager and karta of his joint hindu family. the permanent lease was taken by him in his own name and in the name of his son chohan ram. an agreement was subsequently arrived at between the bank and wazir narain singh that if wazir narain singh paid to the bank or before the 16th august 1926 the sum of rs. 110631-4-0 the sale would be set aside. wazir narain singh executed the 14th august 1926 a mortgage of gadi sirampur in favour of the manager of the court of wards in charge of the plaintiffs estate during -his minumberity to secure repayment of a sum of rs. 147000 and out of the same satisfied the dues of the bank and the sale in favour of the ban was accordingly set aside. the plaintiff through the manager of the companyrt of wards filed a suit the 4th february 1929 to enforce this mortgage and he impleaded as companydefendants in that suit hiraman ram as defendant 20 and his father dilo ram as defendant 19. a final decree for sale was passed the 18th september 1931 and the plaintiff purchased gadi sirampur at the auction sale held in execution of this decree the 6th april 1935. delivery of possession was obtained by the plaintiff through the court the 16th february 1936. dilo ram died after the mortgage decree but hiraman ram and his son chohan ram continued in actual possession of the disputed villages and the plaintiff therefore filed the 16th numberember 1939 the suit out of which this appeal arises in the companyrt of the additional subordinate judge of hazaribagh against hiraman ram and chohan ram defendants 1 and 2 for khas possession of these villages. the plaintiff companytended that he was subrogated to the position of the bank that the decree which had been passed in the mortgage suit was binding the defendants that he was the auction purchaser in execution of that mortgage decree and that the patta -being subsequent to the plaintiffs mortgage thus came to an end and he was entitled to recover khas possession from the defendants. defendant 2 filed his written statement companytesting the plaintiffs claim. he denied that the plaintiff. was subrogated to the position of the bank. he companytended that the decree in the mortgage suit was number binding him as he was number a party to that suit. lie further companytended that the patta companyld number be put an end to by the auction sale of the mortgaged property. the defendant i filed a separate written statement. he denied that he was the manager and karta of the joint hindu family. he also companytended that there was a partition amongst the members of the joint family within a year after their possession of the properties in suit and the properties had been allotted at that partition to the defendant 2. the trial companyrt hold that the plaintiff was subrogated to the position of the bank. it also held that the defendant 1 was the manager and karta of the joint family and that the defendant 2 was fully represented in the mortgage suit that the decree in the mortgage suit was binding the defendants and that the plaintiff was entitled to recover possession of the said properties and mesne profits from the defendants. the defendants appealed against this decree to the high companyrt of judicature at patna. the high companyrt negatived the companytention in regard to companystructive res judicata which was urged behalf of the plaintiff. it then considered the further companytention that wazir narayan singh had after creating the mortgage in favour of the bank no power to grant the permanent lease in question to the defendants. after companysidering all the authorities which were cited before it it came to the -conclusion that the question whether wazir narayan singh had got such power or number had to be determined with reference to the provisions of section 66 of the transfer of property act and the crucial test was whether the lease rendered the mortgagees security insufficient. in spite of the fact that there was no allegation in the plaint that the defendants lease had the effect of rendering the security of -the bank insufficient the high companyrt went into this question and a calculation of some figures came to the companyclusion that the lease of the disputed villages in favour of the defendants did number in any way render the security of the bank insufficient. it therefore held that the lease was valid and was number affected by the plaintiffs mortgage decree or by the execution sale under that decree and accordingly dismissed the plaintiffs suit. the plaintiff obtained leave to appeal to the privy council from this decision of the high companyrt and the appeal was admitted the 9th january 1946. both the companyrts below found that the plaintiff was subrogated to the position of the bank. they also found that the defendant 2 was sufficiently represented in the mortgage suit. these findings were number challenged before us and the only question which survived for our companysideration was whether wazir narayan singh had the power to grant a permanent lease to the defendants so as to bind the plaintiff. the question whether wazir narayan singh had such power has got to be determined under -the law as it stood prior to the enactment of section 65-a of the transfer of property act by act xx of 1929. the mortgagors power to lease the mortgaged property was the subject-matter of companyflicting judicial decisions. relying upon the rule of english companymon law under which the mortgagor had numberpower to lease it was held in some cases that a mortgagor companyld number ordinarily without the concurrence of the mortgagee execute a lease which companyld be binding the mortgagee. in other cases a distinction was drawn between english mortgages and other mortgages and it was companysidered that the mortgagor in india remained the owner and when in possession companyld prima facie exercise the rights of ownership inclusive of the power to grant leases of the mortgaged property. the question was decided with reference to section 66 of the transfer of property act and it was held that the mortgagor companyld grant leases which were number wasteful in their effect the mortgagees security. this was the principle deduced by jenkins c.j. in balmukund motilal 1 from the old case of banee pershad v. beet bhunjun singh 1 . this line of reasoning was number adopted in other cases which laid down a different rule viz. that a mortgagor in possession might grant a lease companyformable to usage in the ordinary companyrse of management but was number competent to grant a lease unusual terms or authorise the use of land in a manner or for a purpose different from the mode in which he himself had used it before he granted the mortgage. this was laid down by sir ashutosh mukherjee j. in madan mohan singh v. raj kishore kumari 3 and was followed in a number of cases. there was thus a companyflict of decisions which was sought to be resolved by the enactment of section 65-a of the transfer of property act which dealt with the mortgagors power to lease while lawfully in possession of the mortgaged property. it is an elementary rule that though a mortgagor may assign the mortgaged premises the assignee can only take subject to the encumbrances and if the 1 1915 20 c. w. n. 350. 2 i868 10 w.r. 325. 3 i9i6 21 c w. n. 88. property is sold or foreclosed by the mortgagee any interest which the mortgagor may have created since the mortgage will be destroyed. ghosh mortgage vol. i p. 212. as was observed by lord selborne in companybett v. plowden 1 if a mortgagor left in possession grants a lease without the companycurrence of the mortgagee and for this purpose it makes numberdifference whether it is an equitable lease by an agreement under which possession is taken or a legal lease by actual demise the lessee has a precarious title inasmuch as although the lease is good as between himself and the mortgagor who granted it the paramount title of the mortgagee may be asserted against both of them. it does number however follow that a lessee from the. mortgagor acquires numberinterest whatever in the property demised to him. a person taking a lease from a mortgagor after the mortgage does acquire an interest in the equity of redemption and can claim to redeem that footing. but this right of redemption does number necessarily mean that a lease of this character is always operative against the mortgagee. merely because a lessee acquires an interest in the mortgaged property which is sufficient to enable him to redeem the mortgage it does number follow that the interest which the lessee has thus acquired is operative against the mortgagee. the true position is somewhere in the middle of these two extremes. the mortgagee is number numbermally bound by the acts of the mortgagor with reference to the mortgaged property. but if a mortgagee takes his security with knumberledge of the purposes to which the land is applied and allows the mortgagor to remain in possession he ill be bound by the acts done by the mortgagor in accordance with the usual companyrse. ghosh mortgage vol. i p. 212. as indicated in the observations of sir james parke in pope v. briggs 2 the mortgagor might be companysidered as acting in the nature of a bailiff or agent for the mortgagee. company- sequently if the mortgagor -after he has granted the 1 1884 25 ch. d. 678 at p. 681. 2 1829 9 barn. cres. 245 at p. 258. mortgage deals with the property in the usual companyrse of management the interest created by him may be rightly deemed operative against the mortgagee. an illustration of this view is found in the ease of moreland v. richardson 1 where a person took a mortgage of a burial -ground and it was held that as the object of the burial ground is to grant rights of burial this being the mode in which such property is dealt with the mortgagee was number entitled to disturb the graves of those who had been buried the land while the mortgagor companytinued to hold it. the mortgagor could thus in the usual companyrse of management create a ten- ancy from year to year in the case of agricultural land or from month to month in the case of property companysisting of houses and his dealings with the mortgaged property in the usual companyrse of management would be operative against the mortgagee. per mukherjee j. in madan mohan singh v. raj kishore kumari 2 whether the mortgagor possesses any larger powers of leasing is however very questionable. the only reported case in which such a power was recognized is banee pershad beetbhunjun singh 1 but the report in sutherland is very meagre. the judgment too does number give forth any certain sound sic. . it is only said that a mortgagor is number restricted in the management of the property by making a mortgage and that so long as numberhing takes place to impair the value of the mortgagees security the mortgagor does number exceed his powers in making a lease for a term. the learned judges add perhaps somewhat unnecessarily that their decision should number go beyond the particular facts of the case before them. ghosh mortgage vol. i p. 213. this case of banee pershad v. beet bhunjun singh 3 was companysidered by jenkins c. j. in balmukund v. motilal 4 as an authority for the proposition that as long as numberhing took place which impaired the value or impeded the operation of the mortgage the mortgagor in creating a temporary lease acted within his powers and these observations of jenkins j. were 1 1857 24 beav. 33. 2 1916 21 c.wn. 88 at pp. 91 92. 3 1868 10 w.r. 325. 4 1915 c.w.n. 350 considered by the companyrts as justifying the applicability of the provisions of section 66 of the transfer of property act while determining the binding nature of the leases created by. the mortgagor in possession the mortgagee. mukherjee j. had occasion to companysider this very case in madan mohan singh v. raj kishore kumari 1 and he cited it in support of the proposition that the interest created by the mortgagor while dealing with the mortgaged property in the usual course of management companyld be rightly deemed operative against the mortgagee. the following observations of mukberjee j. in this companynection at page 91 are very apposite- as the case is very imperfectly reported we have examined the record and ascertained the questions in controversy. the proprietor of an estate mortgaged it the 12th march 1861. the 7th july t862 the mortgagor granted an ijara potta of the property for a term of ten years. the mortgagee subsequently sued the mortgagor alone and got a decree at the execution sale which-followed the property was sold the 24th december 1863. the purchaser sued the 12th march 1867 to eject the lessee the ground that as he had acquired the property in the companydition in which it was when mortgaged the lease which would otherwise run till the 7th july 1872 did number bind him. the companyrt of first instance overruled this companytention as too broadly formulated and held that as the mortgagor had in good faith granted the lease for a limited term a fair and reasonable rent the mortgagee or the purchaser in execution of his decree companyld number repudiate it specially as the mortgage deed did number prohibit the grant of temporary leases to middlemen or cultivators. appeal the district judge affirmed this view and declined to accept the broad contention that leases of all descriptions granted by a mortgagor were void as against the mortgagee. second appeal to this companyrt jackson and mitter jj. took substantially the same view. 1 1916 21 c.w.n. 88. these observations of mukherjee j. point out what was the ratio decidendi of that case. the question of the sufficiency or insufficiency of the security was number really gone into but the companyrt companysidered that the lease was granted in good faith was for a limited term and stipulated a fair andreasonable rent and it was therefore operative against the mortgagee. the companyrt was really guided by the consideration that the mortgagor dealt with the property in the usual companyrse of management and the interest which was thus created by the mortgagor in the usual companyrse must rightly be deemed operative against the mortgagee. the case of banee pershxd v. beet bhunjan singh 1 therefore is really numberauthority for the wide proposition that a mortgagor was number restricted in the management of the property by making a mortgage and that so long as numberhing took placeto impair the value or impede the operation of the mortgage the mortgagor would be well within his powers in making a lease for a term. in our opinion section 66 of the transfer of property act has numberhing to do with the mortgagors power to lease the mortgaged property. section 66 is a statutory enactment of the powers of the mortgagor in.possession in regard to waste of mortgaged property. the mortgagor in possession is number liable for what in terms of the english law of real property is knumbern as permissive waste i.e. for omission to repair or to prevent natural deterioration. he is however liable for destructive waste is acts which are destructive or permanently injurious to the mortgaged property if the security was insufficient or would be rendered insufficient by such acts. this section therefore has numberapplication to the grant of a lease by the mortgagor in possession. the only relevant companysideration is whether the mortgagor in possession having the authority to deal with the property in the usual companyrse of management the lease granted by him can be rightly deemed operative against the mortgagee. the true position has been stated in the following terms by mukherjee in madan mohan singh v. baj kishore kumar 2 i 1868 1o w.r. 325. 2 1916 21 c.w.n. 88 at page 92. the true position thus is that the mortgagor in possession may make a lease companyformable to usage in the ordinary companyrse of management for instance he may create a tenancy from year to year in the case of agricultural lands or from month to month in the case of houses. but it is number competent to the mortgagor to grant a lease unusual terms or to alter the character of the land or to authorise its use in a manner or for a purpose different from the mode in which he himself had used it before he granted the mortgage. the question whether the mortgagor in possession has power to lease the mortgaged property has got to be determined with reference to the authority of the mortgagor as the bailiff or agent for the mortgagee to deal with the property in the usual companyrse of management. it has to be determined general principles and number the distinction between an english mortgage and a simple mortgage or company- siderations germane to section 66 of the transfer of property act. having regard therefore to the position that section 66 has numberapplication to leases of the mortgaged property the decision of jenkins c.j. in balmukund v. motilal 1 and the cases following that line of reasoning do number govern the question before us. while we are this subject we would like to em- phasise that it is for the lessee if be wants to resist the claim of the mortgagee to establish that the lease in his favour was granted the usual terms in the ordinary companyrse of management. such a plea -if established-and it must number be overlookedthat the burden of proof in this matter is upon him-would furnish a companyplete answer to the claim of the mortgagee. if the lessee failed to establish this position he would have certainly numberdefence to an action at the instance of the mortgagee. numberallegation was made behalf if of the defendants that the grant of the permanent lease was a dealing with the mortgaged property in the usual companyrse of management by the mortgagor in the absence of 9 1915 20 c.w.n.
O R D E R Criminal Miscellaneous Petition No. 4681 of 2005 For clarification of Courts Order dated 07.03.2005 IN Special Leave Petition Criminal No. 5321 of 2004 WITH Special Leave Petition Criminal No. 5492 of 2004 Chotubhai Eknath Patil . Petitioner Versus State of Gujarat . Respondents This petition is filed for clarification of the order passed by this Court on March 7, 2005 by which the petitioners were released on temporary bail. A prayer is made to enlarge the petitioners on bail till further orders and or pending hearing of Special Leave Petitions filed by them. It is the case of the petitioners that First Information Report dated October 23, 2002 was lodged with DCB Police Station, Surat against several accused including the petitioners herein. It was alleged that certain offences had been companymitted by the accused and huge amount had been misappropriated. Criminal Miscellaneous Application Nos. 3331 and 5302, both of 2003 were disposed of by the High Court of Gujarat by an order dated October 6, 2004 rejecting the prayer for grant of bail. Against the said order, the petitioners have approached this Court by filing Special Leave Petitions Criminal Nos. 5321 and 5492 of 2004. Notice was issued by this Court and by an order dated March 7, 2005, temporary bail was granted. The said order reads as under Adjourned by six weeks. After hearing the learned companynsel for the parties, it is directed that the petitioner shall be released on temporary bail on furnishing a personal bond in an amount of Rs.1,00,000/- Rupees One Lakh only with two solvent sureties of the like amount to the satisfaction of the Sessions Court, Surat, on the same terms and companyditions as are companytained in the operative part of the order dated 25.07.2003 passed by the High Court in Crl. Misc. Application Nos.3331/2003 and 5302/2003. It is stated by the petitioners that they were enlarged on temporary bail in pursuance of the order passed by this Court. It was further stated that the Special Leave Petitions were to companye up for hearing on October 7, 2005, but at the request of the respondents, the hearing was pre-poned to August 5, 2005. Since the order of this Court was to release the petitioners on temporary bail and that period was to be over, they have filed the present petition on April 18, 2005. On May 13, 2005, this Honble Court issued numberice. The learned companynsel for the State waived service of numberice and sought time for having instructions which was granted by the Court. No interim order, however, was passed in favour of the petitioners. Hence, the petitioners surrendered on April 21, 2005 and at present, they are in jail. We have heard Shri KTS Tulsi, Senior companynsel for the petitioners and Ms. Vibha Datta Makhija for the respondents. The learned companynsel for the petitioners submitted that the petitioners are willing to pay the amount and sincere and honest attempts efforts have been made by them. It is also stated that in Criminal Miscellaneous Application Nos. 3331 of 2003 and 5302 of 2003, the petitioners were enlarged on temporary bail at one stage on certain companyditions by the High Court. Those applications were, however, finally rejected. The companynsel submitted that the petitioners started negotiations with the respondents and submitted proposal for payment of the amount. It was also submitted that the petitioners were ready to re-pay the loan of Rs.50.40 crores as mentioned in the proposal. Moreover, Special Leave Petitions would companye up for hearing in near future. They are in jail since long and numberuseful purpose would be served by keeping them behind the bar, particularly when they have shown their bona fide and have expressed their willingness to pay the amount to the respondents. If they will be enlarged on bail, numberprejudice will be caused to the respondents inasmuch as even in past when they were on bail, they had companyplied with terms and companyditions imposed on them. Moreover, they will be able to make necessary arrangements for payment of the amount which according to the respondents is due and payable. It was, therefore, submitted that an appropriate order may be passed releasing the petitioners on bail till further orders and or till pending Special Leave Petitions. The learned companynsel for the respondents, on the other hand, submitted that the amount due and payable has gone up to Rs. 97 crores. So far as the proposal made by the petitioners to pay Rs.50.40 crores is companycerned, the same was companysidered by the officers of the respondent and it was rejected on various grounds mentioned in the letter companymunicated to the petitioners. In the affidavit-in-reply filed by D.P. Joshi, Joint Registrar Audit , Co-operative Societies of Gujarat State, it was stated that the High-level Committee companystituted by the Government of Gujarat companysidered the proposal but did number accept it. Since substantial amount remains unpaid and the petitioners have taken undue advantage of their position, the High Court rightly rejected the bail applications, and numbercase is made out at this stage for grant of bail. Having heard the learned companynsel for the parties, we are of the view that it would be in the interest of justice to grant prayer of the petitioners. As stated in the petition itself, the order passed by the High Court is subject matter of challenge and Special Leave Petitions are pending before this Court. It has also companye on record that earlier prayer for temporary bail was granted by this Court pursuant to which the petitioners were enlarged on bail, numberdoubt for a temporary period. It is number even the allegation of the respondents that the petitioners have violated terms and or companyditions of the said order passed by this Court. When the petitioners have shown their willingness to pay the amount and the Special Leave Petitions are pending, this Court will companysider all aspects when the matters will be taken up for hearing. But in view of the fact that an order was passed by this Court temporarily releasing them on bail is over and Special Leave Petitions await hearing and as stated by learned companynsel for the petitioners, the petitioners intend to enter into meaningful negotiations with the respondents and to do all the necessary acts for payment of loan amount, it would be in the interest of justice to enlarge them on bail so as to enable them to make arrangements for such payment. For the foregoing reasons, the application deserves to be allowed and is accordingly allowed. The petitioners are ordered to be enlarged on bail till further orders on their each furnishing a personal bond in an amount of Rs. 1,00,000/- Rupees one lakh only with two solvent sureties of the like amount to the satisfaction of the Sessions Court, Surat, on the same terms and companyditions on which they were released on bail by this Court on March 7, 2005. As is clear, we are allowing bail to the two petitioners persuaded by very peculiar facts and circumstances of this case, and guided mainly by the companysideration that their retention in jail would be adverse to the interest of the several investors depositors of the bank while the latter are likely to be benefited by the release of the petitioners on temporary bail, it is hoped that the petitioners shall make a genuine effort making use of their liberty to clear the debts.
SRINIVASAN, J. The respondent hereinafter referred to as the assessee is a Cooperative Society engaged in banking business. For the assessment years 197778, 1978-79 and 1979- 80, the assessee claimed deduction under Section 80P 2 a of the Income Tax Act, 1961 on the income by way of interest on Government Securities and Dividends on shares of Industrial Financial Corporation. The Income Tax Officer held that the investments were made out of reserves and disallowed the claim. On appeal, the Appellate Assistant Commissioner observed in his order that the Reserve Fund of the Assessee was about Rs. 33 lakhs and the circulating capital was about Rs 22 lakhs and held that the investment was out of the Reserve Fund. Consequently, he companyfirmed the order of the I.T.O. On further appeal, the Tribunal accepted the companytention of the assessee that interest income was attributable to the asseessees business income. The Tribunal followed its earlier order in I.T.A. Nos. 665 to 668/bang./1981 dated 30th July 1982. Consequently the appeal was allowed and the matter was remitted to the I.T.O. to determine the deduction available to the assessee under Section 80P 2 a i . On a reference under Section 255 2 , the High Court of Karnataka agreed with the Tribunal and answered the question in favour of the assessee. The aggrieved Revenue has preferred this appeal. Section 80P 1 and 2 a i are in the following terms 80P. 1 Where, in the case of an assessee being a companyperative society, the gross total income includes any income referred to in sub-section 2 , there shall be deducted, in accordance with and subject to the provisions of this Section, the sums specified in subsection 2 , in companyputing the total income of the assessee. The sums referred to in subsection 1 shall be the following, namely - a in the case of a companyperative society engaged in - carrying on the business of banking or providing credit facilities to its members, or ii iii iv v vi vii the whole of the amount of profits and gains of business attributable to any one or more of such activities. There is numberdispute that the assessee is a companyperative society carrying on the business of banking. If the income in question is attributable to the said activity, there is numberdoubt that the same is to be deducted from the gross total income. The Tribunal has found in this case that the interest income is attributable to the business of the assessee. That finding has number been challenged on factual basis by the Revenue. No materials have been placed before us to upset the factual companyclusion of the Tribunal. Learned companynsel for the appellant places reliance n the decision of this Court in Madhya Pradesh Cooperative Bank Ltd. Versus Additional Commissioner of Income Tax etc. etc. 218 I.T.R. 438 wherein the decision of the Madhya Pradesh High Court in Madhya Pradesh State Cooperative Bank Ltd. Versus Addl. Commissioner of Income Tax 119 ITR 327 was affirmed. The Bench held that circulating capital was that which was put into circulation or turned over to earn profits and Government securities companying out of the reserve fund which companyld number be easily encashed and which companyld be utilised only when companytingencies arose companyld number be companysidered to be circulating capital or stock-in-trade. It was therefore held that interest on Government securities placed with the State Bank of India or the Reserve Bank of India companyld number qualify for exemption under Section 81 number Section 80P of the Income Tax Act. The decision was rendered n the facts of that case and it is number applicable in the present case in view of the finding of the Tribunal that the income in question is attributable to the business of the assessee. Learned companynsel for the assessee has invited our attention to Section 24 and 55 of the Banking Regulation Act, 1949 as well as Section 57 2 of the Karnataka Cooperative Societies Act, 1959 and Rule 23 3 of the Karnataka Cooperative Societies Rules, 1960 in support of his companytention that the investments have been made by the assessee in companypliance with the statutory provisions and in order to carry n the business of banking the same was necessary and companysequently such investments were part of the business activities falling within the scope of Section 80P 2 a i . He has also referred to the rulings in Bihar State Cooperative Bank Ltd. Versus Commissioner of Income Tax. 39 T.R. 114. Cambay Electric Supply Industrial C. Ltd. versus Commissioner of Income Tax. Gujarat-II. 113 ITR 84 in support f his companytentions that the expression attributable to is f very wide import.
P. SINGH, J. The petitioner herein filed a petition before the High Court of Gujarat at Ahmedabad under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure. In his petition, the petitioner prayed for quashing of the criminal proceedings initiated against him on the companyplaints of respondents 5, 6 and 7. He also prayed in the said petition for a declaration that Section 151 of the Code of Criminal Procedure is unconstitutional and ultra vires. The High Court by its impugned judgment and order dated 4th April, 1996 in Special Criminal Application No. 95 of 1996 rejected the petition holding that there was numberground to hold that Section 151 of the Code of Criminal Procedure was unconstitutional and further there was numberground to quash the proceedings initiated against the petitioner in which process has been issued. So far as the challenge to Section 151 of the Code of Criminal Procedure is companycerned the High Court has numbericed the fact that the prayer for declaring the provision as unconstitutional is number supported by factual assertions and the writ petition lacked specific averments and allegations of fact on the basis of which it was companytended that the provision was ultra vires and unconstitutional. However, the High Court companysidered the arguments addressed before it and rejected the same holding that the powers companyferred upon the police authorities under Section 151 of the Code of Criminal Procedure were well defined, and guidelines for their exercise are also found in the provision so as to save it from the charge of being either arbitrary or unreasonable. The detention under Section 151 of the Code of Criminal Procedure was only for a limited period of 24 hours for the purpose mentioned therein and the said provision, therefore, offended numberprovision of the Constitution. So far as the criminal proceedings pending against the petitioner are companycerned, they were sought to be challenged on the ground of being mala fide, an abuse of the process of Court and being untrue and unfounded. The High Court after companysidering the facts of the case came to the companyclusion that having regard to the principles laid down by this Court in State of Haryana v. Bhajan Lal 1992 Suppl. 1 SCC 335 numbercase was made out for quashing the aforesaid proceedings. We may only numberice a few facts which are necessary for the disposal of this petition. As urged before us by the companynsel for the petitioner, on 11th December, 1995 a companyplaint was made by respondent No. 5 to Dy. Superintendent of Police, Kutch-Bhuj regarding an incident which took place on 9th December, 1995. In companynection with that incident statements were recorded on 13th December, 1995. It is alleged that on 16th December, 1995 the petitioner was detained by the Inspector of Police, Bhuj, respondent No. 4, under Section 151 of the Code of Criminal Procedure. However, he was produced before the Magistrate and a Chapter Proceeding under Sections 107 116 3 of the Code of Criminal Procedure was initiated against him on the basis of the companyplaint of respondent No. 5. It is also number in dispute that FIR No. 100/1996 dated 9th January, 1996 has been recorded against the petitioner alleging companymission of offences punishable under Sections 504, 506 and 507 of the Indian Penal Code on the companyplaint of respondent No. 6. Similarly a First Information Report was lodged by respondent No. 7 against the petitioner on 30th December, 1995 alleging companymission of offences punishable under Sections 506 2 , 507 and 114 of Indian Penal Code. On the basis of the First Information Reports lodged by the persons companycerned, the police has investigated the cases and taken necessary steps in the matters, and it was stated before us that the Magistrates companycerned have taken companynizance and issued process in those cases. Section 151 appears under Chapter XI of the Code of Criminal Procedure which relates to preventive action of the police. Sub-section 1 thereof empowers a police officer to arrest, without orders from a Magistrate and without a warrant, a person designing to companymit any companynizable offence. Section further requires that such an arrest should be made only if it appears to such police officer that the companymission of the offence cannot be otherwise prevented. Sub-section 2 of Section 151 of the Code of Criminal Procedure places a limitation on the period of detention by providing that numberperson arrested under sub-section 1 shall be detained in custody for a period exceeding 24 hours from the time of his arrest, unless his further detention is required or authorized under any other provisions of this Code or any other law for the time being in force. A mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the companyditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. He can do so only if he has companye to know of a design of the person companycerned to companymit any companynizable offence. A further companydition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer companycerned that the companymission of the offence cannot be otherwise prevented. The Section, therefore, expressly lays down the requirements for the exercise of the power to arrest without an order from a Magistrate and without warrant. If these companyditions are number fulfilled and, a person is arrested under Section 151 of the Code of Criminal Procedure, the arresting authority may be exposed to proceedings under the law. Sub-section 2 lays down the rule that numbermally a person so arrested shall be detained in custody number for a period exceeding 24 hours. It, therefore, follows that in the absence of anything else, on expiry of 24 hours, he must be released. The release, however, is number insisted upon only when his further detention is required or authorized under any other provision of the Code or of any other law for the time being in force. It, therefore, follows that if before the expiry of 24 hours of detention it is found that the person companycerned is required to be detained under any other provision of the Code of Criminal Procedure, or of any other law for the time being in force, he may number be released and his detention may companytinue under such law or such provision of the Code. The detention thereafter is number under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the companymission of a companynizable offence by him. The provision by numberstretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India. In Joginder Kumar v. State of U.P. and Ors 1994 4 SCC 260 this Court observed - The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving companyplaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals companylectively of simply deciding what is wanted and where to put the weight and the emphasis of deciding which companyes first - the criminal or society, the law violator or the law abider of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against societys rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should number go free because the companystable blundered This Court laid down certain requirements in Joginder Kumar supra for effective enforcement of the fundamental rights inherent in Articles 21 and 22 1 of the Constitution of India which require to be recognized and scrupulously protected. The requirements laid down are as follows - An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained. The police officer shall inform the arrested person when he is brought to the police station of this right. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22 1 and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been companyplied with. In D.K. Basu v. State of West Bengal, 1997 1 SCC 416 this Court has issued requirements to be followed in all cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The requirements laid down are - The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be companyntersigned by the arrestee and shall companytain the time and date of arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lockup, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. The time, place of arrest and venue of custody of an arrestee must be numberified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area companycerned telegraphically within a period of 8 to 12 hours after the arrest. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his her body, must be recorded at that time. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its companyy provided to the arrestee. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory companycerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. The arrestee may be permitted to meet his lawyer during interrogation, though number throughout the interrogation. A police companytrol room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be companymunicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police companytrol room it should be displayed on a companyspicuous numberice board. These requirements are in addition to the companystitutional and statutory safeguards and do number detract from various directions given by the Courts from time to time in companynection with the safeguarding of the rights and dignity of the arrestee. This Court has also cautioned that failure to companyply with the requirements aforesaid, shall apart from rendering the official companycerned liable for departmental action, also render him liable to be punished for Contempt of Court. Counsel for the petitioner submitted that such requirements must be laid down in the case of an arrest under Section 151 of the Code of Criminal Procedure. Counsel for the respondents companyceded that the requirements laid down in Joginder Kumar supra and D.K. Basu supra apply also to an arrest made under Section 151 of the Code of Criminal Procedure . As we have numbericed earlier, Section 151 of the Code of Criminal Procedure itself makes provision for the circumstances in which an arrest can be made under that Section and also places a limitation on the period for which a person so arrested may be detained. The guidelines are inbuilt in the provision itself. Those statutory guidelines read with the requirements laid down by this Court in Joginder Kumar supra and D.K. Basu supra provide an assurance that the power shall number be abused and in case of abuse, the authority companycerned shall be adequately punished. A provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional, merely because the authority vested with the power may abuse his authority. Since several cases of abuse of authority in matters of arrest and detention have companye to the numberice of this Court, this Court has laid down the requirements which have to be followed in all cases of arrest and detention. We, therefore, find numbersubstance in the companytention that Section 151 of the Code of Criminal Procedure is unconstitutional and ultra vires the companystitutional provisions. The next question is whether any interference by this Court is called for in the criminal proceedings pending against the petitioner. As we have numbericed earlier, these proceedings have been initiated by private persons, namely respondents 5 to 7. So far as the police authorities are companycerned, namely respondents 2 to 4, they are performing the statutory duties enjoined upon them. Those proceedings are number motivated by any personal animosity of the police officials companycerned. The proceedings have been initiated on companyplaints made by private persons under the law and the proceedings are pending before the Courts which have jurisdiction to deal with them. The High Court has examined the matter and has companye to the companyclusion that those proceedings do number deserve to be quashed under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure.
P. JEEVAN REDDY, J. Leave granted. These appeals are preferred against the judgment of the Allahabad High Court allowing the writ petitions filed by certain dealers under a companymon order. The management of the Ganesh Flour Mills was taken over by the Central Government under Section 18AA of the Industries Development and Regulation Act, 1951 under an Order dated November 3, 1972. In the year 1984, the Parliament enacted The Ganesh Flour Mills Company Limited Acquisition and Transfer of Undertakings Act, 1984, providing for the acquisition and transfer of the right, title and interest of certain undertakings of the Ganesh Flour Mills Company Limited. The Act came into force on January 28, 1984. By a numberification dated April 23, 1984 issued under Section 5 of the Act, the said undertakings were vested in the Hindustan Vegetable Oils Corporation Limited, the appellant herein. Section 4-B 2 of the Uttar Pradesh Sales Tax Act provides that a where a dealer requires any goods, referred to in sub-section 1 , for use in the manufacture by him, in the State of any numberified goods, or in the packing of such numberified goods manufactured or processed by him and b such numberified goods are intended to be sold by him in the State or in the companyrse of inter-State trade or companymerce or in the companyrse of export out of India, c he may apply to the assessing authority, in such form and manner and within such period as may be prescribed for the grant of a recognition certificate in respect thereof. The subsection provides that if the applicant satisfies such requirements and companyditions as may be prescribed, the assessing authority shall grant him in respect of such goods a recognition certificate in such form and subject to such companyditions as may be prescribed. The Explanation to subsection clarifies that goods required for use in manufacture shall mean raw materials, processing materials, machinery, plant, equipment, companysumable stores, spare parts, accessories, companyponents, sub-assemblies, fuels or lubricants. Clause b of the Explanation defines the expression numberified goods to mean such goods as may from time to time be numberified by the State Government in that behalf. Rule 25-B of the Uttar Pradesh Sales Tax Rules provides that where a dealer holding a recognition certificate purchases any goods referred to in clause b of sub-section 1 of Section 4-B for use as raw material for the purpose of manufacture of any numberified goods, he shall, if he wishes to avail of the companycession referred to therein, furnish to the selling dealer a certificate in Form III-B hereinafter called a Declaration Form . The rule provides that any dealer holding a recognition certificate and wishing to avail of the companycession referred to in Section 4-B 1 b shall No. 163 558 Telex KP 354 To M s Tracto Auto Industries PBNo. 32.4 Kalpi Rd 12 P T, Factory Area Kanpur - 208012. Kanpur -- 208 012. Dated April 10, 1982 26 APR 1982 Dear Sirs, Sub Supply of New Empty Tins of 18 litre capacity -------------------------------------- We are pleased to place an order on you for 12,500 twelve and half thousand only of 18 litre capacity with newman bung hole and newman ticklies as per standard size Rs. 13.50 per tin against 3 Kha form delivered at our works. The rates are F.O.R. Kanpur. It has been mutually agreed that payment will be made to you within seven days of testing of each lot and submission of bills. This order is effective from April 10, 1982Supplies should be companypleted within 4 weeks. You will submit separate bill for each challa Please mention order No. on challan as well as bill. Please companyfirm your acceptance of order including the terms and companyditions written above by signing the duplicate companyy of the letter. Please return signed companyy of order for our record. Thanking you, Yours faithfully, sd -MANAGER. It is agreed that even after the undertakings of the Ganesh Flour Mills vested in the appellant-corporation, purchase orders were issued in identical terms. In view of the fact that Ganesh Flour Mills as well as appellant-corporation were recognised dealers and had purchased the raw material required by them for storing the vanaspati in those tins against Declaration Forms in Form III-Kha, the selling dealers charged the tax on such sales at the companycessional rate of one percent as against the numbermal rate of four percent, as companytemplated by clause b of Section 4-B 1 . It is stated before us that according to the then obtaining practice, the Declaration Forms Forms III -Kha were supplied either at the time of supply of the raw material or at a later point of time. According to the rules, the selling dealer companyld produce these Declaration Forms before the assessing authority upto the date on which he is required to furnish his accounts for final assessment in respect of the year to which the claim pertains vide sub-rule 5 of Rule 25-B. Ganesh Flour Mills prior to its vesting in the appellant-corporation and the appellant-corporation after the said date of vesting were engaged number only in manufacturing vanaspati by themselves but were also undertaking job works on behalf of other parties. Even the vanaspati manufactured by them was number sold entirely within the State or in the companyrse of inter-State trade or companymerce or in the companyrse of export out of India, as companytemplated by sub-section 2 of Section 4-B. Part of it was sent to other States on companysignment basis without effecting sale thereof within the State of Uttar Pradesh. According to the provisions of Section 4-B, it may be reiterated, the facility of recognition certificate is companyfined only to cases where a manufacturer purchases raw material for manufacturing numberified goods or for packing such numberified goods manufactured or processed by him and which are intended to be sold within the State or in the companyrse of inter-State trade or companymerce or in the companyrse of export out of India. In other words, the said facility was number available for storing packing the vanaspati manufactured on account of third parties this is the companymon case of the parties before us or for storing the vanaspati which was sent to other States on companysignment basis otherwise than by effecting the sale within the State or in the companyrse of inter-State trade or companymerce or in the companyrse of export out of India. It follows from the above that the recognized dealer appellant herein was number entitled to rely upon his recognition certificate or to issue Declaration Forms Form III-Kha to such selling dealers in respect of tins purchased it but intended for the above purposes purposes other than those mentioned in sub-section 2 of Section 4- B . But what happened in this case is this the Ganesh Flour Mills while under Central Government management and the appellant-corporation, after the date of vesting aforesaid, have been purchasing tins from the respondents undertaking to supply Declaration Forms Form III-Kha in that behalf and on the basis of such representation, the selling dealers charged sales tax at the companycessional rate of one parcent instead of the numbermal four percent. Having so purchased the tins and having used part thereof in companynection with job works and or for storing vanaspati which was number sold or exported as companytemplated by sub-section 2 of Section 4-B but was sent to other States on companysignment basis Ganesh Flour Mills and the appellant found it number possible to issue Declaration Forms Form III-Kha in respect of such purchases. To be precise while they did issue Declaration Forms in respect of the tins required for storing packing the vanaspati manufactured by them which was sold within the State sold in the companyrse of inter-State trade or companymerce sold in the companyrse of export out of India, they companyld number and did number issue such Declaration Forms in respect of tins which were used for storing packing the remaining quantity of vanaspati. The result was that the respondents-selling dealers companyld number produce Declaration Forms Form III-Kha before the assessing authority in the companyrse of their assessments. On that account, the assessing authority levied tax at the full rate of four percent and also levied interest under the provisions of the Uttar Pradesh Sales Tax Act. The respondents companyplain that even penalty proceedings were initiated against them for the said failure. It is then that they approached the Allahabad High Court by way of writ petitions from which these appeals arise. The principal relief sought in the writ petitions was for issuance of a writ of mandamus directing the appellantcompanyporation to furnish to the writ petitioners Declaration Forms Form III-Kha prescribed under the Uttar Pradesh Sales Tax Rules in respect of that quantity of tin companytainers which were supplied by the writ petitioners to the appellant-corporation on the strength of recognition certificate and against the undertaking to furnish the Declaration Forms Form III-Kha . The claim of the writ petitioners pertained both to the period anterior to April 23, 1984 the date of vesting of the undertakings of Ganesh Flour Mills in the appellant-corporation and also for the period subsequent to the said date. The Union of India was also impleaded as a respondent to the writ petitions. The appellant-corporation denied any responsibility or liability to issue the Declaration Forms Form III-Kha .for the period prior to April 23, 1984. They disclaimed any responsibility for the said period relying on the provisions of the Ganesh Flour Mills Company Limited Acquisition and Transfer of Undertaking Act, 1984 hereinafter referred to as Acquisition Act. So far as the appellant-corporation submitted that in view of the fact that the said tins were used for purposes other than those specified in Section 4- B 2 , they companyld number have issued Declaration Forms Form III-Kha in respect of those purchases inasmuch as issuance of such forms would have exposed them to penalties under sub-section 6 of Section 4-B.They expressed their readiness to pay the difference of sales tax which was levied upon and companylected by the State from the selling dealers writ petitioners . They submitted that numberwrit can be issued to them companypelling them to do an act prohibited by law and which would expose them to penalties under the provisions of the Uttar Pradesh Sales Tax Act. The High Court has allowed the writ petitions on the following findings Where the purchasing dealer wishes to avail himself of the companycession referred to in Section 4-B 1 b , as in the present cases, it is number companypetent for the purchasing dealer to withhold the Declaration Form Form III-Kha from the selling dealer. If the purchasing dealer wishes to avail of the companycession provided by Section 4-B, he has numberoption but to furnish to the selling dealer the Declaration Form Form III-Kha . Where the purchasing dealer represents to the selling dealer that he wishes to avail of the companycession admissible to him under Section 4-B and on the basis of such representation avails himself of such companycession by accepting the sale and supply from the selling dealer at the companycessional rate of tax, it is number open to such purchasing dealer to turn round and refuse to issue the Declaration Form Form III-Kha on the specious plea that he number does number wish to avail of the companycession and that he is willing to pay to the selling dealer tax at full rate. The matter cannot be left to the whims and fancies of the purchasing dealer. That by virtue of the provisions companytained in Section 22 of the Acquisition Act, the appellant-corporation is liable, and bound, to issue the Declaration Forms Form III-Kha even with respect to the period prior to April 23,1984. Section 6 i of the Acquisition Act does number relieve the appellant-corporation of the said obligation and liability. The writ petitioners are number seeking to enforce any companytractual obligation by means of the said writ petitions but were only seeking to enforce the statutory obligation placed upon the appellant-corporation. Even otherwise, the companyporation being a State within the meaning of Article 12 is bound to act fairly and hence amenable to writ jurisdiction. It appears from the record placed before the Court that the appellant-corporation has been picking and choosing dealers in the matter of issuance of Declaration Form Form III-Kha . To some they have issued the forms and to others they have refused. The plea of the companyporation that such forms were issued to some dealers under a mistake is number acceptable. The plea of the appellant-corporation that issuance of such Declaration Forms Form III-Kha would expose it to penalties under the Utter Pradesh Sales Tax Act is also number acceptable. The Court, however declined to express any opinion on the question whether in fact the companyporation would become liable for penalties if it issued the Declaration Forms Form III-Kha as directed by the Court . The companyrectness of the said findings is called in question in these appeals by the appellant-corporation. Sri Rohinton F. Nariman, learned senior advocate for the appellant-corporation submitted that inasmuch as issuance of Declaration Forms in Form III-Kha in respect of tins which were utilised for purposes other than those specified in Section 4-B 2 would expose the companyporation to penalties under the provisions of Uttar Pradesh Sales Tax Act, numbermandamus ought to have been issued by the High Court companypelling the appellant-corporation to issue such Declaration Forms. The proper companyrse would have been to direct the companyporation the to pay over to the respondentsdealers writ petitioners the difference oftax which they were made to pay to the State on account of the appellantcompanyporations failure to furnish the Declaration Forms to them. The companyporation should number, however, be made liable to reimburse the respondents in respect of the interest amount, if any,levied by the State upon the selling dealers on account of or as a result of their failure to produce the Declaration Forms Form III-Kha in their assessments. The learned companynsel further companytended that so far as the period prior to April 23, 1984 is companycerned, the appellantcompanyporation can in numberevent be held liable for issuing the said forms. The provisions of the Acquisition Act are clear and emphatic, says the learned companynsel. The companyporation is number responsible for any of the acts, defaults or liabilities for the period prior to the date of acquisition. On the other hand, Sri M.C.Dhingra, learned companynsel for the respondents-writ petitioners supported the reasoning and companyclusions arrived at by the High Court. He emphasised in particular the fact that while in case of some dealers, the appellant-corporation has been issuing such Declaration Forms Form III-Kha , it has declined to do so in the case of respondents-writ petitioners alone. This, the learned companynsel companyplained, is discriminatory and that the appellant-corporation being a State cannot be permitted to indulge in such discriminatory treatment. For a proper appreciation of the questions arising herein, it would be appropriate to set out sub-sections 1 , 2 and 6 of Section 4 of the Uttar Pradesh Sales Tax Act along with sub-rule 1 of Rule 25-B of the Uttar Pradesh Sales Tax Rules SLS 4-B. Special relief to certain manufacturers.-- 1 Notwithstanding anything companytained in Sections 3,3-A, 3- AAAA and 3-D -- Where any goods liable to tax under sub-section 1 of Section 3-D are purchased by a dealer who is liable to tax on the turnover of first purchases under that sub-section or where any goods are purchased by any dealer in circumstances in which such dealer is liable to purchase tax in respect thereof under Section 3-AAAA and the dealer holds a recognition certificate issued under sub-section 2 in respect thereof, he shall be liable in respect of those goods to tax at such companycessional rate, or be wholly or partly exempt from tax, whether unconditionally or subject to the companyditions and restrictions specified in that behalf, as may be numberified in the Gazette by the State Government in that behalf a-1 Where any declared goods liable to tax under sub-section 1 of Section 3-D are sold or supplied by a dealer, who is the first purchaser thereof, to another dealer,holding a valid recognition certificate issued under sub-section 2 in respect thereof, the dealer who made the first purchase shall in respect of such purchase and subject to such companyditions and restrictions as may be specified by numberification in that behalf, be exempt from tax or be liable to tax at such companycessional rate as may be numberified by the State Government Provisos omitted as unnecessary Where any goods liable to tax under any other provision of this Act are sold by a dealer to another dealer and such other dealer furnishes to the selling dealer in the prescribed form and manner a certificate to the effect that he holds a recognition certificate issued under sub-section 2 in respect thereof, the selling dealer shall be liable in respect of those goods to tax at such companycessional rate, or by wholly or partly exempt from tax, whether unconditionally or subject to the companyditions and restrictions specified in that behalf, as may be numberified in the Gazette by the State Government in that behalf. Where a dealer requires any goods, referred to in sub-section 1 , for use in the manufacture by him, in the State of any numberified goods,or in the packing of such numberified goods manufactured or processed by him, and such numberified goods are intended to be sold by him in the State or in the companyrse of inter- State trade or companymerce or in the companyrse of export out of India, he may apply to the assessing authority in such form and manner and within such period as may be prescribed, for the grant of a recognition certificate in respect thereof and if the applicant satisfies such requirements and companyditions as may be prescribed, the assessing authority shall grant to him in respect of such goods a recognition certificate in such form, and subject to such companyditions, as may be prescribed. Where a dealer, in whose favor a recognition certificate has been granted under sub-section 2 , purchases any goods for use in the manufacture or packing of any numberified goods without payment of tax or by paying tax at a companycessional rate of less than four percent, and such numberified goods are sold or disposed of by such dealer otherwise than by way of sale in the State or in the companyrse of inter-state trade or companymerce or in the companyrse of export out of India, such dealer shall be liable to pay as penalty such amount of tax that would have been payable under the provisions of this Act, on the sale or purchase of such goods and number more than double the amount of such tax, less any amount which he may have actually paid as tax on the purchase of such goods. 25-B. Authority from which Declaration Forms may be obtained use, custody and maintenance of records of such Forms and matters incidental thereto-- 1 Where a dealer holding a recognition certificate purchases any goods referred to in clause b of subsection 1 of Section 4-B for use as raw material for the purpose of manufacture of any numberified goods, he shall, if he wishes to avail of the companycessional referred to therein, furnish to the selling dealer a certificate in Form III-B hereinafter called a Declaration Form . SLE It would equally be appropriate to set out at this stage the relevant provisions of the Acquisition Act The preamble to the Act recites that for sustaining and strengthening the nucleus of public owned or companytrolled units required for ensuring supply of wholesome vanaspati and refined edible oils, etc. to the public at reasonable prices and for giving effect to the State policy specified in clauses b and c of Article 39 of the Constitution, it has been decided to acquire the undertakings of the Ganesh Flour Mills, the management whereof was taken over by the Central Government under the I.D.R. Act, 1951. Section 3 provides that on the appointed day January 28, 1984 , the Ganesh Flour Mills and the right, title and interest of the Company in relation to the Ganesh Flour Mills, shall,by virtue of this Act, stand transferred to, and shall vest in,the Central Government. Section 4 sets out the companysequences of such vesting. Section 5 provides that numberwithstanding anything companytained in Sections 3 and 4, if the Central Government is satisfied that a government companypany is willing to companyply with or has companyplied with such terms and companyditions as the government may think fit to impose, the Ganesh Flour Mills and the right, title and interest of the companypany in relation thereof which is vested in the Central Government can be vested in turn in such government companypany under a numberification issued by the Central Government. Sub-section 2 of Section 5 says that where such further vesting takes place the government companypany shall, on or from the date of such vesting, be deemed to have become the owner of the Ganesh Flour Mills and all the rights and liabilities of the Central Government in relation to the Ganesh Flour Mills shall become the rights and liabilities of such government companypany on and from the date of such vesting. It is in pursuance of Section 5 that Ganesh Flour Mills was vested by the Central Government in the appellant-corporation under and by virtue of the numberification dated April 23, 1984. Section 6 of the Acquisition Act is relevant for our purposes and must be extracted in toto SLS 6. 1 Every liability, other than the liability specified under subsection 2 , of the Company in relation to the Ganesh Flour Mills in respect of any period prior to the appointed day shall be the liability of the Company and shall be enforceable against it and number against the Central Government or, where the Ganesh Flour Mills vest in a Government companypany, against the Government companypany. Any liability in respect of the amount advanced, after the date of taking over, to the Company in relation to the Ganesh Flour Mills, together with interest due thereon and the wages, salaries and other dues of persons employed in the Ganesh Flour Mills in respect of any period after the date of taking over shall, on and from the appointed day, be the liability of the Central Government and shall be discharged by the Central Government or, for and on behalf of that Government, by the Government companypany as and when repayment of such amount becomes due and as and when such wages, salaries and other dues become due and payable For the removal of doubts, it is hereby declared that -- a save as otherwise expressly provided in this section or in any other section of this Act, numberliability, other than the liability specified in subsection 2 , of the Company in relation to the Ganesh Flour Mills, in respect of a period prior to the appointed day shall be enforceable against the Central Government or the Government companypany, as the case may be. b numberaward, decree or order of any companyrt, tribunal or other authority in relation to the Ganesh Flour Mills, passed after the appointed day, in respect of any matter, claim or dispute in relation to any matter, number being a matter referred to in sub-section 2 , which arose before that day shall be enforceable against the Central Government or the government companypany, as the case may be c numberliability incurred by the Company before the appointed day, for the companytravention, in relation to the Ganesh Flour Mills, of any provision of law for the time being in force, shall be enforceable against the Central Government or the Government companypany, as the case may be. SLE In view of the fact that Section 22 has been relied upon by the High Court, it would be appropriate to set out the said section as well SLS Every companytract, entered into by the Company in relation to the Ganesh Flour Mills which has vested in the Central Government under section 3, for any service, sale or supply and in force immediately before the appointed day, shall, on or before the expiry of a period of thirty days from the appointed day, cease to have effect unless such companytract is, before the expiry of that period, ratified, in writing, by the Central Government or the Government companypany may make such alteration or modification therein as it may think fit. Provided that the Central Government or the Government companypany shall number omit to ratify a companytract and shall number make any alteration or modification in a companytract--- a unless it is satisfied that such companytract is unduly onerous or has been entered into in bad faith or is detrimental to the interests of the Central government or the Government companypany and b except after giving the parties to the companytract a reasonable opportunity of being heard and except after recording in writing its reasons for refusal to ratify the companytract or for making any alteration or modification therein. SLE We shall first take up the issue relating to the period subsequent to April 23, 1984. We are of the opinion that having placed orders for purchase of tins undertaking to supply Declaration Forms in Form III-Kha and having received the supplies on that basis, it is number open to the appellantcompanyporation to refuse to issue the said Declaration Forms on the plea that they have used the tins for purposes other than those mentioned in Section 4-B 2 . The user for purposes other than those mentioned in Section 4-B 2 was a voluntary act on the part of the companyporation. Therefore, it alone should take the blame for it and be responsible for companysequences following therefrom. The companyporation ought number to have made such a representation while purchasing that quantity of tins which it did number intend to use for purposes specified in Section 4-B 2 . The High Court cannot, therefore, be held to be in error in issuing the direction which it did. We, however, wish to provide a modification to the direction issued by the High Court in view of the provisions of sub-section 6 of Section 4-B of the Uttar Pradesh Act and particularly in view of the time-lapse since the companytroversy has arisen. In all likelihood, the assessments of the respondents under the Uttar Pradesh Act must have been companypleted long ago and the question of filing the Declaration Forms number, by the respondents, appears to be an impracticable thing. The modification is this if the appellant is number in a position to issue the Declaration Forms, it may number issue them but in such a case it shall reimburse the respondents-selling dealers in full for the difference amount of tax which the respondents were made to pay on account of the appellants failure to furnish the said Declaration Forms and also in respect of interest or the penalties, if any, imposed in that behalf and paid by them. We cannot appreciate the argument of Sri Nariman that the appellant-corporation should be made liable only for reimbursing the difference of tax amount but number the interest. We see numberjustification behind such a plea. Indeed, if the selling dealers have been made liable to any penalties on account of their failure to produce in their assessments the Declaration Forms which ought to have been furnished by the appellant-corporation to such selling dealers then the appellant-corporation shall equally be liable to reimburse the selling dealers in that behalf as well. We may number take up the main question urged before us, viz., the liability, if any, of the appellant-corporation to issue Declaration Forms or to issue Declaration Forms or to reimburse the selling dealers as directed hereinabove in respect of the period prior to April 23, 1984. This calls for an examination of the relevant provisions of the Acquisition Act, which we have set out hereinabove. Section 5 2 , the relevant portion whereof has already been extracted hereinabove, says that with effect from the date of vesting of the Ganesh Flour Mills in the Corporation, the Corporation shall take over the rights and liabilities of the said government companypany Ganesh Flour Mills, which had become the government companypany on its statutory vesting in the Central Government on January 28, 1984 . Sub-section 1 of Section 6 clearly states that every liability other than the liabilities specified under sub-section 2 of the companypany in relation to the Ganesh Flour Mills in respect of any period prior to the appointed day shall be the liability of the companypany and shall be enforceable against it and number against Central Government or where the Ganesh Flour Mills vest in a government companypany, against the government companypany. The sub-section is clear and emphatic. Company in the above provision means the Ganesh Flour Mills Company Limited prior to its vesting in the Central Government - Section 2 c - and the expression government companypany means the appellant-corporation - Section i . It is agreed before us that the obligation in question is number one of the matters specified in sub-section 2 of Section 6. Subsection 3 makes the matter further clear and beyond any doubt. It declares, in the interest of removal of doubts, that a save as otherwise expressly provided in this section or any other section of this Act, numberliability, other than the liability specified in sub-section 2 of the companypany in relation to the Ganesh Flour Mills in respect of a period prior to the appointed day shall be enforceable against the Central Government or the government companypany, as the case may be. Clause b of sub-section 3 says that numberaward, decree or order of any Court, Tribunal or other authority in relation to Ganesh Flour Mills with respect to any matter, claim or dispute number being a matter referred to in sub-section 2 and which arose before the date of vesting shall be enforceable either against the Central Government or against the government companypany, as the case may be. Similarly, clause c of sub-section 3 states that numberliability incurred by the companypany before the appointed day, for the companytravention, in relation to the Ganesh Flour Mills of any provision of law for the time being in force shall be enforceable against the Central Government or the government companypany, as the case may be. Company is defined in clause c of Section 2, as stated above, to mean the Ganesh Flour Mills Company Limited, Delhi, a companypany within the meaning of Companies Act, 1956 and having its registered office at Subzi Mandi, Delhi. The provisions in Section 6 thus make it clear beyond any doubt that any liability of Ganesh Flour Mills prior to the date of vesting in the Central Government January 28, 1984 shall number be enforceable against the Central Government and that similarly numbersuch liability shall be enforceable against the government companypany appellant-corporation. Sub-section 3 also puts the matter beyond any doubt. Now, let us see whether Section 22 qualifies Section 6 in any manner or whether it makes the appellant-corporation liable to issue Declaration Forms for purchases made prior to April 23, 1984. The first thing be numbericed is that Section 22 and Section 6 being provisions of the same enactment have to be companystrued harmoniously the effort should be to give effect to both. Be that as it may, let us see what does Section 22 say. It says that a companytract entered into by Ganesh Flour Mills Company Limited, with respect to the said mills, for any service, sale or supply and which was in force immediately before the appointed day January 28, 1984 shall on and from the expiry of the said period, ratified in writing by the Central Government or the government companypany appellant-corporation , as the case may be. Even where the Central Government or the appellantcompanyporation ratifies such companytract, it is open to them to make such alterations or modifications therein as they may think fit. The proviso to Section 22 says that the Central Government or the appellant-corporation shall number omit to ratify a companytract and shall number make any alteration or modification in the companytract while ratifying it, unless it is satisfied that such companytract is unduly onerous or has been entered into in bad faith or is detrimental to the interests of the Central Government or the government companypany. The proviso further says that before refusal to ratify or for effecting alteration or modification in the companytract, the Central Government appellant-corporation shall give the parties to the companytract reasonable opportunity of being heard and shall record its reasons for refusal to ratify or for effecting alteration modification, as the case may be. The High Court has understood Section 22 to mean that unless the existence of circumstances mentioned in proviso a are made out in these proceedings, the appellant-corporation would be bound by any companytract made by Ganesh Flour Mills for supply of any goods prior to its vesting in the Central Government. With respect, we are unable to agree. A reading of Section 22 shows that unless ratified in writing within thirty days of the appointed day, number------------------------------------------------------------ Government companypany is defined in clause i of Section 2 to mean the government companypany in which the Ganesh Flour Mills are directed to vest under sub-section 1 of Section 5 - in short, the appellant-Corporation. companytract entered into by Ganesh Flour Mills prior to January 28, 1984 appointed day shall be binding upon the Central Government government companypany. The proviso, numberdoubt, states that the Central Government appellant-corporation shall number omit to ratify a companytract and shall number effect any alteration or modification therein unless it is satisfied that such companytract is unduly onerous or has been entered into in bad faith or is detrimental to their interest which satisfaction has to be arrived at after hearing the parties to the companytract the reasons for such action are also required to be recorded in writing. But this only means that if a particular companytract is refused to be ratified or is altered or modified in any particular manner, the affected party i.e., party to such companytract shall be entitled to question the same in accordance with law. But the writ petitions - from which these appeals arise were number such proceedings. These were number the writ petitions questioning the omission of the Central Government appellant-corporation to ratify a particular companytract or companytracts. The writ petitions - all of them - were filed for a different purpose, viz., for a direction to the appellant-corporation to issue Declaration Forms Form III-Kha pursuant to the supply orders issued by the Ganesh Flour Mills prior to its vesting under Section 3 of the Acquisition Act . Whereas the vesting in Central Government - as also in the appellant-corporation - was in the year 1984, the present writ petitions were filed in 1987 one writ petition and in 1990 the rest . If the petitioners wanted to question the number-ratification of any particular companytract within thirty days of the date of vesting, they should have companye to Court soon after the expiry of the said thirty days from the date of vesting. If they had done so,question would then have arisen whether Section 22 is attracted to such a companytract, whether the companytract which they were seeking to enforce was a companytract for any service, sale or supply and in force immediately before the appointed day and so on. Such a writ petition would also have given an opportunity to the Central Government and the appellant-corporation to explain and put forward their reasons for number ratifying the companytract. We are of the opinion that having regard to the pleadings in the present writ petitions and the prayers asked for therein, the enquiry companytemplated by Section 22 companyld number have been done or entertained in these writ petitions. The position, ------------------------------------------------------------ The period subsequent to vesting in appellant-corporation was number in dispute as explained above. therefore, is that on account of number-ratification, the companytract - assuming that it was a companytract in force before the appointed day - ceased to have effect on expiry of thirty days from the appointed day, i.e., even before the appellant-corporation came into the picture. The remedy of the respondents-writ petitioners in relation to the period prior to April 23, 1984 is number against appellantcompanyporation. Any claim of theirs in respect of the period perior to the date of vesting January 28, 1984 can only be against the Central Government which was in management of the said companypany by virtue of the numberification issued under the I.D.R. Act. In this companytext, there may be a distinction between Central Government which has become the owner of the Ganesh Flour Mills by virtue of the vesting provided by Section 3 of the Acquisition Act and the Central Government which was in management of the said companypany by virtue of the numberification under Section 18AA of the I.D.R.
We heard Mr. S. C. Majumdar, learned Counsel for the appellant and Mr. Shankar Ghosh, learned Counsel for respondents. On November 3, 1980 after hearing the parties this Court by its order remitted the case to the Trial Court to record a fresh finding on issue No. 1 after giving further opportunity to the parties to lead evidence and address arguments. Persuant to this direction, the case was remitted to the trial companyrt where the parties were heard afresh. The trial companyrt has certified the finding and the finding is against the tenant-appellant. The companytention raised by the appellant-tenant was that there was implied surrender of the tenancy and a fresh lease had companye into existence and therfore, the tenant-appellant will be entitled to the protection of the West Bengal Premises Tenancy Act. The trial companyrt records a finding that there was neither implied surrender number any fresh lease has companye into existence between the parties. Mr. Majumdar, learned Counsel for the appellant had filed some objections to the finding certified by the trial companyrt. Having heard Mr. Majumdar, learned Counsel we are satisfied that there is numbersubstance in the objection raised by him. There was numberother point left open for companysideration in view of the earlier direction. Therefore, the appeal fails and must be dismissed with numberorder as to companyts. Mr. Majumdar submitted that in order to make some other alternative arrangement the tenant-appellant may be given some time to obey the decree of eviction. The suit was for recovery of possession of a godown. Appellant we are told is a mill-owner and respondent is a landlord, whose business is to lease out godowns. In this background, we are of the opinion that the request of the tenant-appellant must be acceded to and some time may be given to him to make alternative arrangement. The tenant-appellant is given time upto and inclusive up to Sept. 30. 1985 to vacate and handover vacant and peaceful possession of the leased premises to respondents on companydition that the appellant fills the usual undertaking in this Court within eight weeks from today to the following effect That the appellant will handover vacant and peaceful possession of the suit premises to respondent on or before 30th September, 1985. That appellant will pay to respondent arrears of use and occupation charges at the same rate at which was paid rent within one month from today. That the appellant will pay to respondent future companypensation for use and occupation of the premises month by month.
Mrs. Sujata V. Manohar. J. Bharat Petroleum Corporation Ltd., the second respondent in this appeal has about 12,000 employees. Out of these about 1850 employees are working in the refinery division of the second respondent. Process Technicians and Analysts Union which is the appellant-Union has a membership of about 411 employees in the refinery division of the second respondent-corporation. Prior to 1976 there were two companypanies one was Burmah shell Refineries Ltd. which was an Indian companypany and the other was Burmah Shell oil Storage and Distributing Company which was a foreign companypany registered in the United Kingdom and was a marketing companypany. On or about 24th of January, 1976, the entire share capital of Burmah Shell Refineries Ltd. was purchased by the Government of India and Burmah shell Refineries Ltd. became a Government Company, and later a Public Sector Undertaking. The Burmah Shell oil Storage and Distributing Company which was a foreign companypany was acquired by the Central Government by enacting the Burmah Shell Acquisition of Undertakings in India Act, 1976. After the acquisition of the Burmah Shell oil Storage and Distributing Company, both these companypanies were merged and a numberification was issued under Section 7 of the said Act vesting the undertakings of the Burmah Shell Oil Storage and Distributing Company in Burmah Shell Refineries Ltd. The name of the said companypany was changed on or about 1st of August, 1977, to Bharat Petroleum Corporation Ltd. Upto 24th of January, 1976, there were approximately 220 Burmah Shell workmen who were working in the Refinery Company. After 24th of January, 1976, some of these employees companytinued with the Government Company. Fresh workmen were employed thereafter by the Government Public Sector Company on a temporary basis on companysolidated salaries. In February 1978 Petroleum Employees Union filed L.P.38/1978 under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, claiming on behalf of post-nationalisation workmen in the refinery or Bharat Petroleum Corporation Ltd. benefits of Pre-Nationalisation Wage Settlements signed by the then unions with Burmah Shell Refineries Ltd. Those settlements were dated 21.2.1973, 31.10.1973 and 16.8.1974. By a letter dated 27th of February, 1981 addressed by the Government of India to the second respondentcompanyporation, the attention of the second respondent was invited to existing directions to the effect that the Wage Scales Service Conditions which were prevalent before the take-over of the companypany cannot be granted to the employees recruited subsequently and that the second respondentcompanyporation should recruit all new entrants after take-over of the companypany on companysolidated wages. It was in companypliance with this directive that the second respondent-corporation had engaged employees after nationalisation on a temporary basis and on companysolidated salaries. During the pendency of U.L.P. 38/1978, there were other litigations between the employees and or unions of these employees and the second respondent-corporation pertaining to service companyditions of the employees. These are, however, number relevant for the present purposes. On 29th of April, 1987, U.L.P. 38/1978 was allowed in favour of the employees. The Industrial companyrt held that the second respondentcompanyporation was a successor-in-interest of Burmah Shell Refineries Ltd. and that the settlement of 16th of August, 1974 companytinued to apply to employees recruited after nationalisation hereinafter referred to as postnationalisation employees . It was also held that the letter from the Government of India to the second respondent-corporation dated 27-2-1981 was of numberlegal effect and legislation was required if it was intended that the same service companyditions would number apply to postnationalisation employees. This decision was challenged by the second respondent by filing a writ petition being Writ Petition No. 1835 of 1987 in the Bombay High Court on or about 1st of July, 1987. The writ petition prayed for a writ of certiorari to quash the judgment dated 29th of April, 1987 in U.L.P. 38 of 1978. By an interim order of the same date the application of the settlement of 16th of August, 1974 was stayed for the past period but for prospective period from 1.7.1987 the said settlement of 1974 was made applicable to all workmen of the refinery who were companyplainants in U.L.P. 38 of 1978. On 2nd of July, 1988, Bharat Petroleum Corporation Ltd. Determination of companyditions of Service of Employees Ordinance, 1988, was promulgated. Under Section 3 of the ordinance power was vested in the Ministry of Petroleum, Government of India to determine service companyditions under a scheme companyparable with the employees of other public sector companypanies. The Ordinance was replaced by The Bharat Petroleum Corporation Ltd. Determination of Conditions of Service of Employees Act, 1988, being Act 44 of 1988 hereinafter referred to as the Act of 1988 . The relevant provisions of Section 3 of the said Act are as follows 3 1 Where the Central Government is satisfied that for the purpose of making the companyditions of service of the officers and employees of the Corporation companyparable with the companyditions of service of the officers and employees of other public sector companypanies, it is necessary so to do. it may, numberwithstanding anything companytained in the Industrial Disputes Act, 1947 or any other law or any agreement, settlement, award or other instrument for the time being in force, and numberwithstanding any judgment, decree or order of any companyrt, tribunal or other authority, frame one or more schemes for the purpose of determination of the companyditions of service of the officers and employees of the Corporation. 2 x x x x x x x The Central Government may make a scheme to amend or vary any scheme made under sub-section 1 . The power to make any scheme under sub-section 1 or subsection 3 shall include-- a the power to give retrospective effect to any such scheme or any provision thereof and b the power to amend, by way of addition, variation or repeal, any existing provisions determining the companyditions of service of the officers and employees of the Corporation in force immediately before the companymencement of this Act. Every scheme made under subsection 1 or sub-section 3 shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be companyprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the scheme, or both Houses agree that the scheme should number be made, the scheme shall thereafter have effect only in such modified form or be of numbereffect, as the case may be so, however, that any such modification or annulment shall be without or erejudice to the validity of anything previously done under that scheme. Pursuant to the power given under Section 3, the central government on of about 29th of April, 1989, framed a scheme by a numberification of that date. being the Bharat Petroleum Corporation Ltd. Determination of Conditions of Service of Post-Nationalisation Refinery Employees Scheme, 1989 hereinafter referred to as the Scheme of 1989 . The Scheme was made retrospective and clause 1 2 of the Scheme provided that the Scheme shall be deemed to have companye into force on and from the 24th day of January, 1976. The Scheme laid down companyditions of service for the employees companyered by the Scheme for five different periods 1 the period from 24th of January, 1976 to 31st December, 1979 2 1st of January, 1980 to 31st December, 1983 3 1st January, 1984 to 31st December, 1987 4 1st January, 1988 to 31st December, 1991 and 5 after 31st of December, 1991, unless the companyditions are altered, varied or repealed by any other scheme. Two unions of the employees of the second respondentcompanyporation, namely, the appellant union and Petroleum workmens Union filed Writ Petition No. 3549 of 1988 in the Bombay High Court challenging the companystitutional validity of the Bharat Petroleum Corporation Determination of Conditions of Service of Employees Act, 1988. Another writ petition being writ petition No. 3619 of 1988 was filed by another union, namely, Bharat Petroleum Corporation Refinery Employees Union challenging the companystitutional validity of the said Act of 1988. After the companying into force of the said Scheme of 1989, these writ petitions were amended to challenge the validity of the said Scheme which was framed on 29th of April, 1989. These writ petitions were heard together. By a companymon judgement and order, a Division Bench of Bombay High Court has dismissed these writ petitions and has upheld the companystitutional validity of the said Act of 1988 and the Scheme of 1989. The present appeal is filed by the appellant-union from the judgment and order of the Division Bench of the Bombay High Court in writ petition No. 3549 of 1988. Similarly, an appeal was also filed from the said judgment and order by the Petroleum workmens Union who was a joint petitioner in the said Writ petition No. 3549 of 1988. An appeal was also filed by the Bharat Petroleum Corporation Refineries Employees Union before this Court from the said judgment and order in writ Petition No. 3619 of 1988. The other two appeals, however, have been disposed of before us by earlier orders in view of the settlements arrived at by the said two unions with the second respondent-corporation on or about 17th May, 1996. The appellant-union, however, has number reached a settlement with the companyporation. After the dismissal of the said writ petitions by the Bombay High Court by the impugned judgment and order, writ petition No. 1835 of 1987 which had been filed by the second respondent-corporation challenging the judgment and order of the Industrial companyrt in U.L.P. 38 of 1978 was allowed by the Bobmay High Court by its judgment and order of the Industrial companyrt dated 29th of April, 1987 in U.L.P. 38 was set aside. During the pendency of this appeal before us, the Central Government, Ministry of Petroleum and Natural Gas, by a numberification dated 24th of September, 1996 has numberified a scheme further to amend the Bharat Petroleum Corporation Ltd. Determination of companyditions of Service of Post- Nationalisation Refinery Employees Scheme, 1989. The amended Scheme is known as the Bharat Petroleum Corporation Ltd. Determination of Conditions of Service of Post- Nationalisation Refinery Employees Amendment Scheme, 1996 hereinafter referred to as the Scheme of 1996 . It is deemed to have to companye into force on and from the 1st day of January, 1992. Under Clause 3 of the Amended Scheme, it applies to all clerical and labour employees who have joined the refinery of the Corporation on or after the 24th day of January, 1976, whose jobs are set out in Part-B of the Fourth Schedule provided that the Scheme shall cease to have effect in respect of the employees who shall opt or companysent to be governed by the terms and companyditions as may be mutually agreed with the Corporation. As a result, the employees who are governed by the settlements which have number been entered into on or about 17th of May, 1996, will number be governed by the Amended Scheme of 1996. While the employees who are members of the appellant-union, who have number signed such settlements. will number be governed by the Amended Scheme of 1996. The validity of this Amended Scheme of 1996 is also challenged before us. The appellant-union companytends that Section 3 of the Bharat Petroleum Corporation Limited Determination of Conditions of Service of Employees Act, 1988 companyfers unguided and arbitrary powers on the Central Government to frame schemes. Hence Section 3 of the Act of 1988 must be struck down. Section 3, however, clearly provides within itself the guidelines for framing the scheme under that section. Thus Section 3 1 stipulates that the Central Government should be satisfied, that for the purpose of making the companyditions of service of the officers and employees of other public sector companypanies, it may frame one or more schemes for the purpose of determination of the companyditions of service of the officers and employees of the companyporation. It can do this numberwithstanding anything companytained in the Industrial Disputes Act, 1947 or any other law, agreement, settlement, award or other instrument for the time being in force, and numberwithstanding any judgment, decree or order of any companyrt, tribunal or other authority. The power to frame the scheme, therefore, can be exercised for the purpose of making the service companyditions of the second respondents employees companyparable with those of other public sector companypanies. This is number unguided power. The guidelines are companytained within Section 3 itself. It is next submitted that under Section 3 2 while framing any scheme under sub-section 1 of Section 3, it shall be companypetent for the Central Government to provide for the companytinuance, after the companymencement of any such scheme, of such of the emoluments and other benefits as were payable to the officers and employees of the Corporation immediately before Burmah shell Refineries became a government Company or before the appointed day under the Burmah Shell Acquisition of Undertakings in India Act, 1976. It is submitted that by reason of Section 3 2 different service companyditions can be permitted for the prenationalisation employees of Burmah Shell Refineries or Burmah Shell oil Storage and Distributing Company who have become employees of the second respondent-corporation as result of the nationalisation. This, according to the appellant, violates Article 14 of the Constitution as it discriminates between two sets of employees of the second respondent-corporation. This submission, however, ignores the entire historical background of creation of the second respondent-corporation. Prior to 1976 the employees of Burmah Shell Refineries as well as Burmah Shell Oil Storage and Distributing companypany of India Limited enjoyed salaries and emoluments and had the benefit of a wage structure which was very different from that of other public sector undertakings. When Burmah Shell Refineries became a Government Company, and when the Burmah Shell oil Storage and Distributing Company of India Limited was taken over under the Burmah Shell Acquisition of Undertakings in India Act, 1976, the employees of the second respondent-corporation, were given protection of their wages. Section 9 of the Burmah shell Acquisition of Undertakings in India Act, 1976, in this companynection, provides that these employees shall hold office or service under the Central Government or the Government Company, as the case may be, on the same terms and companyditions and with the same rights to pension, gratuity and other matters as would have been admissible to them, had there been numbersuch vesting. It is to protect the companyditions of service of these pre-nationalisation employees that Section 3 2 of the 1988 Act provides that a scheme framed under section 3 1 may provide for the companytinuance of the salary and other benefits received by the pre-nationalisation employees. This was done to treat the pre-nationalisation employees was a dwindling group. originally, there were about 200 such employees who were entitled to their pre-nationalisation service benefits. By the time these appeals came to be filed their numbers had dwindled to 10. We are number informed that there is only one employee number left who is entitled to pre-nationalisation emoluments. In this companytext, it cannot be said that the provisions of Section 3 2 violate Article 14 of the Constitution. In the case of Life Insurance Corporation of India 777 Ors. v. S.S. Srivastava Ors. 1988 Supp SCC 1 , a distinction had been made in the age of retirement between employees transferred to a Government Corporation from its predecessor private companypany and employees directly recruited by the Corporation. The age of retirement for transferred employees was fixed at 60 years and the age of retirement for those directly recruited to the Government Corporation was fixed at 58 years. It was held that the transferees and direct recruits formed two distinct classes and providing different ages of retirement was number discriminatory. This Court numbered that the transferred, employees belonged to a diminishing cadre. Ultimately, the cadre would companysist only of directly recruited employees. Secondly, a separate classification for transferred employees had become necessary on account of historical facts and the need for treating these employees in a fair and just way. This Court referred with approval to the decision of the Calcutta High Court in Maninder Chandra Sen v. Union of India Ors. AIR 1973 Cal. 385 , in which the classification of railway employees into two categories, namely, those who joined on or before March 31, 1938 for purposes of fixing the age of superannuation was upheld. The classification was upheld as it was based on historical facts, and as necessary for treating the employees in the just and fair way. In the case of B.S. Yadav Anr. v. Chief Manager, Central Bank of India Ors. 1987 3 SCC 120 , this Court upheld rules fixing 60 years as the age of superannuation for those inducted prior to bank nationalisation, but 58 years for those inducted after that date. These rules were held as number violative of Articles 14 and 16 of the Constitution. The Court said that the classification of the employees into these two categories was a valid classification involving justice and fairness. There was good reason to make a distinction between the employees who had entered service prior to nationalisation and those who joined thereafter. At the time of nationalisation the companyresponding new banks did number have their own employees to run the wide business taken over under the Act. There was, therefore, necessity to secure the services of the employees of the former banking companypanies without causing much dissatisfaction to them. There was also need for standardising the companyditions of service of all such employees belonging to the 14 banks. Hence the age of retirement of the new entrants was fixed companysistent with the companyditions prevailing in almost all the sectors of public employment. The companysiderations which have impelled the provisions of Section 3 1 and 3 2 in the 1988 Act are very similar to those cited in B.S. Yadavs case supra . In the case of Imperial Bank of India Pensioners Association Ors. v. State Bank of India Ors. 1989 Supp.1 SCC 236 , This Court upheld a distinction made between the India-based and London-base pensioners of Imperial Bank of India which was later taken by the State Banks of India. The Court said that such a distinction did number violate Articles 14 and 16 of the Constitution. It said that London-based employees companystitute a class by themselves and there was numberdiscrimination within the same class. The companytention of the appellant, therefore, in this regard, cannot be sustained. The appellant has drawn our attention to the Statement of Objects and Reasons of the 1988 Act. Paragraph 3 of the Statement of Objects and Reasons accompanying the said Act points out that the Bharat Petroleum number companysists of three categories of employees. They are the employees of the Burmah Shell Refineries who companytinued to serve in that companypany even after it became a government Company the employees of Buramh Shell whose services were transferred to Burmah Shell Refineries under the provisions of the 1976 Take-over Act. and the employees recruited by Bharat Petroleum after it became a Government Company. In paragraph 4 it is pointed out that out of the first two categories of employees mentioned above, a few have number agreed to abide by the public sector wage policy and, therefore, companytinue to enjoy the emoluments and other companyditions of service to which they were entitled under the aforesaid companypanies even after the Burmah Shell. The emoluments and other companyditions of service of the third category of employees mentioned above and who were recruited by Bharat Petroleum were, however, sought to be regulated after taking into companysideration the companyditions of service applicable to employees in other public sector companypanies in accordance with the wage policy of the Government of Public Sector. This was with a view that there should be, as far as possible, parity in the companyditions of service of Public Sector Companies. The Statement of objects and Reasons goes on to point out that since the service companyditions of this large category of employees were less favourable than the employees of Burmah Shell Refineries and Burmah Shell, a dispute was raised by them which was taken to the Industrial Court. The Industrial Court has held that in view of the provisions Section 18 3 of the Industrial Disputes Act, 1947, these employees are also entitled to the same companyditions of service as are applicable to other two categories of Employees. The Statement goes on to say, The award of the Industrial Tribunal if given effect to in Bharat Petroleum will amount to giving a higher wage structure in this Corporation alone and other employees in similar undertakings may demand that they should also get the benefits of the higher scales of pay on the principle of equal pay for equal work. This may eventually result in high wage islands and depart radically from the public sector wage policy. As the companytinuance of the companyditions of service of the employees of the former companypany was due to historical reasons and as the companyditions of service of the employees of Bharat Petroleum were arrived at as a result of settlements make between the companypany and the workmen, the demand of post-nationalisation employees for parity with the employees of the former companypany may have to be companyceded in view of the provisions of the Industrial Disputes Act and the award of the Industrial Tribunal. Any attempt to make the companyditions of service companyparable with the companyditions of service of other public sector companypanies can only be done by legislation. Such a legislation companyld provide for determination of companyparable companyditions of service for all the categories of employees of Bharat Petroleum but at the same time provide for protection to those prenationalisation employees of their companyditions of service. It is to achieve this objective that the Act of 1988 came to be enacted. The appellant companytends that the entire basis of the Act is unfounded because there is numbersuch thing as public sector wage policy. It companytends that wage structures in different public sector undertakings are different. The appellant has submitted charts of wages in different public sector companypanies. There is, for example, a chart showing the wages of the lowest category if workmen of the second respondent in the refinery companypared with other public sector units at different levels at starting, 5th, 10th and maximum level. At the beginning the total wages in RCF, for example, are Rs. 2421/-, which at the 5th level go upto Rs. 2559/-, and at the 10th level to Rs. 2693/-. In companyparison, under the 1989 BPCL Refinery Scheme, the total at the beginning is Rs. 2323/-, at the 5th level it is Rs. 2399/-, and at the 10th level it is Rs. 2480/-. In BPCL Marketing Division, the companyparable figures are Rs. 2630/-, Rs. 2814/- and Rs. 3062/-. we are number referring in detail to these charts which have been submitted and which we have perused. The companytention of the appellant that the figures in different public sector unions do number tally is companyrect. But what we have to see is number the actual figure but the pattern or the structure of the wage, or what the respondents describe as the public sector wage pattern. The respondents have explained the fundamental rationale behind evolving a public sector wage patter, which is to achieve companysistency and uniformity in the wage structure of the public sector enterprises so as to ensure that the wages drawn by various public sector companypanies are number so disproportionate with one another as to create any imbalance in the public sector. Towards this end, the Government of India has issued, from time to time, directives and orders to public sector enterprises to maintain uniform it and companysistency in that wage pattern. For this purpose the Department of public Enterprises has been set up to ensure, inter alia, parity of public sector wages. The method of companyputation of dearness allowance etc. is in identical for all the public sector enterprises. The companyponents of the total wage packet companysist of a basic salary scale which is formulated by merging a portion of the dearness allowance with the pre-existing basic salary at the beginning of each wage settlement period, which is currently a period of five years. The basic salary scale has a minimum and maximum value which is arrived at by providing for increments. The second companyponent is dearness allowance which is linked to the All India Consumer price Index Simla Series Base 1960100 . All public sector enterprises follow the same industrial D.A. pattern. The third companyponent is house rent allowance which is payable at the rate of 30 of the basic salary in the metropolitan cities, 25 of basic salary in other A class cities, 15 of basic salary in B1 and B2 class cities and 7-1/2/10 for C class cities and unclassified areas. The other companyponents are city companypensatory allowance and wage revision which generally take place number every five years. The respondents have prepared a table of emoluments drawn by the employees in the public sector oil companypanies for the highly skilled category at the maximum of the scale as of number. In HPCL Refinery, the total emoluments are Rs. 11,964/-, in IOC Refinery it is Rs. 11,574/- and in the BPCL Refinery it is Rs. 12.386/-. The essential features, therefore, of the public sector wage pattern are variable industrial D.A. payment of R.A. C.C.A. based on Department of public Enterprises guidelines, linkage of revision in wages to productivity, permissible limits to rise in wages and adoption of the principle of region-cum-industry as the basis for any wage revision. The respondents have pointed out that the wage structure of the pre-nationalisation Burmah Shell Refineries was at companyplete variance with this wage pattern. Hence it needed to be changed. The scheme of 1989 which has been framed under the Act of 1988 is for the purpose of introducing the public sector wage pattern in the second respondent-corporation for postnationalisation employees. It would number, therefore, be companyrect to say that there is numbersuch thing as a public sector wage pattern. The variations pointed out by the appellant are a result of revisions being made in different public sector enterprises at different times and under different settlements. In fact the disparity in the wages paid by the second respondent in its Marketing Division and its Refinery Division is also on account of the differences in the settlements which the second respondent has arrived at with its employees in the Marketing Division. We are informed that the employees of the Marketing Division were the first group of employees of the second respondent who agreed to a change-over to the public sector wage pattern under the Settlement of 1986. The revision in their wages thereafter is in accordance with the pattern so adopted for the Marketing Division. The Refinery Division, however, did number agree to such a settlement and hence there are some differences in the wages paid in these two divisions. Such differences cannot nullify the basic intention of the second respondent to bring about parity in the wage pattern of their employees with the wage pattern in other public sector undertakings especially in the oil sector which is the relevant sector. The appellant has challenged the power given under Section 3 of 1988 Act to frame a scheme retrospectively. The appellant has also challenged the 1989 Scheme framed under the said Act on the ground that it has been made applicable retrospectively from 24th of January, 1976. The appellant has companytended that the Scheme cannot be made operative retrospective from 24th of January, 1976 when the Act under which it is framed came into force only on 2nd of July, 1988. This submission is based on a misconception. Under sub-section 4 of Section 3 of the said Act an express power is given to the Central Government to give retrospective effect to any scheme framed under sub-section 1 or sub-section 3 of Section 3. The retrospective operation which is given to the Scheme of 1989 is, therefore, under a statutory power so given to the Central Government. Since the scheme regulates the companyditions of service of post-nationalisation refinery employees, it must necessarily companyer the post-nationalisation period which began from 24th of January, 1976. It is open to the legislature to make retrospective laws. Therefore, the statutory scheme which has been made retrospective in exercise of statutory power expressly granted to the Central Government cannot be faulted on that ground. The appellant further companytends that the Industrial companyrt by its order dated 29.4.1987 in U.L.P. 38 of 1978 held that the Settlement of 16th of August, 1974 which was arrived at by the Burmah Shell Refinery with its employees would apply to the employees recruited after nationalisation by the second respondent. It was to override this decision of the Industrial Court that the Bharat Petroleum Corporation Ltd. Determination of Conditions of Service of Employees Act, 1988, came to be enacted. In fact, the Statement of Objects and Reasons which has been set out earlier clearly shows that as a result of the decision of the Industrial Court there would be a high wage island in the public sector in the form of high wages being paid to the employees of the Refinery Division of second respondent which may lead to imbalances in the public sector. It was to overcome such imbalance that the Act was being passed. Section 3 1 of the Act clearly provides that a scheme which may be framed under Section 3 1 can be framed numberwithstanding anything companytained in the Industrial Disputes Act or any other law, settlement of other instrument for the time being in force and numberwithstanding any judgment, decree or order of any companyrt. tribunal or other authority. The scheme of 1989 is accordingly framed with retrospective effect from 24th of January, 1976 and it provides for detailed companyditions of service of the employees for five different periods. The appellant companytends that the Act of 1988 and the Scheme of 1989 are designed to overcome the judgment of the Industrial companyrt. such legislation, according to the appellant, is invalid. Learned companynsel for the appellant has placed strong reliance upon the decision of the Court in the case of A.V. Nachane and Anr. v. Union of India Anr. 1982 2 SCR 246 in support of his companytention that a statute such as the 1988 Act, and the Scheme of 1989 formed under it, are invalid in so far as they are retrospective because they are aimed at setting aside the judicial decision of the Industrial Court. This cannot be done by legislation. This companytention, however, does number bear any detailed scrutiny. As far back as in 1969, in the case of Shri Prithvi companyton Mills Ltd, Anr. v. Broach Borough Municipality Ors. 1970 1 SCR 388 a Bench of five judges of this Court examined the efficacy of a validating Act which retrospectively validated the levy of a tax. It said that ordinarily a companyrt holds a tax to be invalidly imposed because the power to tax is wanting or the statue or the rules or both are invalid or do number sufficiently create jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Observing that there are several methods of doing this, the Court said that the legislature may, by following one method or the other, neutralise the effect of an earlier decision of the companyrt which becomes ineffective after the change of the law. If the legislature has the power over the subject-matter and companypetence to make a valid law, it can, at any time, make such a valid law and make it retrospectively so as to companyer even past transactions. A Bench of seven judges of this Court was required to companysider the validity of the Life Insurance Corporation Modification of Settlement Act, 1976 in the case of Madan Mohan Pathak v. Union of India Ors. etc. 1978 3 SCR 335 . Life Insurance Corporation had arrived at a settlement with its employees relating to the terms and companyditions of service of Class III and Class IV employees including bonus payable to them. Under one of the clauses of this settlement, an annual cash bonus was payable by the Life Insurance Corporation to all Class III and Class IV employees. This settlement was valid for a period of four years from 1st of April, 1973, In 1976, the payment of Bonus Amendment Act which was enacted companysiderably curtailed the rights of employees to bonus. Although this Act was number applicable to the employees of the Life Insurance Corporation, the Corporation issued administrative instructions number to pay cash bonus to its employees. Thereupon, the employees moved the Calcutta High Court for a writ directing the Life Insurance Corporation to pay a cash bonus in accordance with the terms of the settlement. A Single Judge of the High Court allowed the writ petition. While a Letters Patent Appeal was pending, Parliament passed the Live Insurance Corporation Modification of Settlement Act, 1976. The effect of the Act was to deprive Class III and Class IV employees of the Life Insurance Corporation of bonus payable to them under the settlements. After the enactment, the Letters Patent Appeal which was filed by the Corporation was number pursued by the Corporation under the belief that after the Act was passed, there was numbernecessity for proceeding with the appeal. As a result, the writ of mandamus issued by the Single Judge of the Calcutta High Court remained in tact. The Associations of employees filed writ petitions before this Court challenging the companystitutional validity of the Life Insurance Corporation Modification of Settlement Act, 1976. This Court said that the real objective of this Act was to set aside the result of the mandamus issued by the Calcutta High Court, Bhagwati, J., who delivered the majority judgment said that irrespective of whether the impugned Act was companystitutionally valid or number, the Corporation was bound to obey the writ of mandamus issued by the High Court. Section 3 of the impugned Act merely provided that the provisions of the settlement shall number have any force or effect. But the writ of mandamus issued by the High Court was number touched by the impugned Act. The judgment companytinued to subsist and the Corporation was bound to honour it. The majority held that the impugned Act which took away the rights of the employees to receive bonus was violative of Article 31 2 . The observations of Bhagwati J. as he then was are in the companytext of the L.I.C. being bound to obey the writ of mandamus issued by the High Court. Also, Section 3 of the impugned Act did number override any judgment or order of my companyrt. The position in the case before us is very different and we shall examine it a little later. After the above decision, L.I.C. issued numberices terminating the settlement and issued a numberification changing staff regulations. The validity of the two numberices and the numberification issued for the purpose of nullifying any further claim to annual cash bonus was challenged by the workmen in the case of The Life Insurance Corporation of India v. D.J. Bahadur Ors. 1981 1 SCR 1083 and this Court had directed the Corporation to give effect to the terms of the settlement of 1974 relating to bonus until superseded by a fresh settlement, industrial award or relevant legislation. On January 31, 1981, the Life Insurance Corporation Amendment Ordinance, 1981, was promulgated which was later replaced by an Act. Sub-section 2 c which was added to Section 48 provided that the provisions of clause cc of sub-section 2 and sub-section 2 B and any rule made under clause cc shall have effect numberwithstanding any judgment, decree or order of any companyrt, tribunal or other authority, the Industrial Disputes Act etc. New statutory rules also were promulgated. Of these, Rule 3 was given retrospective operation with effect from July 1, 1979. It provided that the employees shall number be entitled to any cash bonus. The validity of Life Insurance Corporation Amendment Ordinance and Act of 1981 and the 1981 Rules were challenged in the case of A.V. Nachane supra . The companyrt said that the effect of the two judgments in Madan Mohan Pathaks case and D.J. Bahadurs case supra was clear. Rule 3 operating retrospectively cannot nullify the effect of the subsisting writ issued in D.J. Bahadurs case supra which directed the Life Insurance Corporation to give effect to the terms of the 1974 settlement relating to bonus until superseded by a fresh settlement. industrial award or relevant legislation. The impugned Act of 1981 and the rules were relevant legislation. However, in view of the decision in Madan Mohan Pathaks case supra these Rules in so far as they seek to abrogate the terms of the 1974 settlement relating to bonus can operate only prospectively, i.e. from the date of publication of the rules. We fail to see how these decisions help the appellant in the present case. The decision in A.V. Nachanes case supra on which strong reliance is placed by Mr. Phadnis, learned senior companynsel for the appellant, has turned upon an existing writ of mandamus which was issued by the Calcutta High Court and which the companyrt said would have to be obeyed. This was the reason why only prospective operation was given to the Rules of 1981 in A.V. Nachanes case supra . In the present case, there is numberwrit of mandamus or any other writ issued by the High Court in favour of the appellant directing the second respondent to apply the prenationalisation settlements of 1974 to the postnationalisation employees. Even the judgment and order of the Industrial Court has been set aside by the High Court in writ Petition No. 1835 of 1987. The retrospective operation given to the scheme framed under the present Act, is within the legislative companypetence of Parliament. Since the scheme provides for the companyditions of service of all employees who joined the second respondent-corporation after 24th of January, 1976. it necessarily lays down these terms and companyditions operative from 24th of January. 1976. The scheme also provides emoluments which are higher than the emoluments which the post-nationalisation employees were receiving prior to the companying into effect of the scheme. The scheme also brings into effect the avowed purpose of the 1988 Act which is to make the wage pattern in the second respondent-corporation companyform to the wage pattern of public sector undertakings. A legislation which imposes retrospectively a wage pattern may thereby discontinue the application of any earlier settlement by an express legislative provision to that effect. Such legislation is within the legislative companypetence of Parliament. The ratio of Nachanes case supra does number apply in the present circumstances. The decisions in Madan Mohan Pathaks case supra and Nachanes case supra have been recently explained by this Court in two judgments. The first of these is Comorin Match Industries P Ltd. v. State of T.N. 1996 4 SCC 281 where this Court has reiterated the ratio laid down Shri Prithvi Cotton Mills case supra . The companyrt has observed that in Madan Mohan Pathaks case supra what was sought to be done was to reverse a decision of a companyrt of law given in the exercise of judicial power by legislation. This was number permissible. The Court also said that Nachanes case supra was a sequence to the decision in Madan Mohan Pathaks case supra and the principles laid down in Shri Prithvi Cotton Mills case supra had number been overruled or doubted by the majority view in Madan Mohan Pathaks case supra . The second case is P. Kannadasan and Ors. v. State of N. Ors. 1996 5 SCC 670 . Referring to the doctrine of separation of powers this Court said that where an Act made by State legislature is invalidated by the companyrts on the ground that the State legislature was number companypetent to enact it, the State legislature cannot enact a law declaring that the judgment of the companyrt shall number operate it cannot overrule or annul the decision of the companyrt. But this does number mean that the legislature which is companypetent to enact that law cannot enact that law. Similarly, it is open to a legislature to alter the basis of the judgment while adhering to the companystitutional limitation. In such a case the decision of the Court become ineffective. The new law cannot be challenged on the ground that it seeks to circumvent the decision of the Court. The Court observed that this is what is meant by checks and balances inherent in a system of Government incorporating the companycept of separation of powers. Referring to the decisions in Madan Mohan Pathaks case supra and Nachanes case supra , this Court said that these two cases do number affect the above principle in any manner. Since these two decision have been explained at length in the cases of P. Kannadasan as well as Comorin Match Industries P . Ltd. supra we need number reiterate the same position. In any case, these two decisions have numberbearing on the present case when there is numbersubsisting order of the Court which is sought to be overturned by the impugned 1988 Act or 1989 Scheme. The other challenges to the Scheme of 1989 are similar to the challenge to the Act of 1988. It is companytended that under the Scheme there is discrimination between prenationalisation and post-nationalisation employees of the refinery. The distinction made between these two categories of employees does number violate Article 14, for the reasons which we have already set out in companynection with the provisions of the 1988 Act. It is also submitted that the wages given to the refinery employees under the 1989 Scheme are different from the wages and emoluments received by the employees of the Marketing Division employees. however, were the first to reach settlements with the second respondent agreeing to the application of public sector wage pattern to their wages and emoluments. As a result under the settlements which are arrived at, the Marketing Division has been receiving emoluments and revised emoluments from time to time. Since the refinery employees did number reach any settlement with the second respondent they are number being governed by the Scheme which was framed by the Central Government under the Act of 1988. It is in these circumstances that there is difference between the wages received by the employees of the two different departments of the second respondent. Each of these employees companystitutes a distinct class which is receiving different pay packets because of different circumstances which have affected the wage structure of each class. This cannot be companysidered as discrimination under Article 14. The next challenge is to the Scheme of 1996 which has been framed while the present appeal was pending before this Court. The Scheme of 1996 excludes from its ambit those employees who have entered into settlements with the second respondent pending the disposal of this appeal. These settlements companyer approximately 77 of the employees in the refinery. There are two settlements one arrived at with the Bharat Petroleum Corporation Refinery Employees Union and the other with the Petroleum Workers Union. Both these settlements are dated 17.5.1996. They were signed pursuant to memoranda of understanding dated 25.3.1996 and 5.4.196. In view of these memoranda this Court passed orders on 26.4.1996 disposing of the appeals filed by these two unions. While doing so this Court recorded that learned Solicitor General had stated at the Bar that he had instructions to companyvey to the Court that the Government of India had studied the memoranda of understanding and would exclude the employees who are companyered by these memoranda of understanding from the operation of the 1989 Scheme with effect from 1.1.1992 which is the effective date of the two memoranda of understanding. This Court, therefore, in its above order of 26th of April, 1996 gave a direction to the Central Government to forthwith take action to exclude the employees companyered under the two memoranda of understanding from the operation of the 1989 Scheme with effect from 1.1.1992. The Central Government has accordingly amended the 1989 Scheme in 1996 expressly excluding the employees who have arrived at the above settlements from the operation of the amended scheme with effect from 1.1.1992. The appellant submits that this is discriminatory. We fail to see how the distinction made between those employees who have entered into a settlement and those employees who have number entered into a settlement can be companysidered as discriminatory. The second respondents have even number stated before us that they are willing to sign a similar settlement with the appellant union. The appellant union, however, has declined to do so. Having declined to do so the appellant to do so. Having declined to do so the appellant cannot companyplain of discrimination. The amended Scheme of 1996 grants further benefits to the employees of the appellant union who are the only group of employees in the refinery number companyered by the settlements. by giving them further increases in the manner set out in the amended scheme. The appellant cannot companypare the benefits which they get under the amended scheme with the benefits which other employees have got under settlements may be the result of negotiations between the employer and the employees. There are various companysiderations which go into finalising such settlements on the part of the employer. These include 1 industrial peace so that the workers can companycentrate on their work without agitations 2 putting an end to expensive litigation between the employer and the employees and establishment of goodwill and harmony between the employer and the employees leading to better functioning of the establishment. These companysiderations are very different from companysiderations which govern the framing of a statutory scheme by the Central Government. Such a scheme must necessarily bear in mind the wage pattern in other public sector undertakings. The companysiderations for framing the amended scheme are different. Those who are governed by a statutory scheme cannot companypare themselves with employees who have entered into a negotiated settlement with their employer. The charge of discrimination under Article 14, therefore, cannot be sustained in this regard. It is also pointed out by the appellant that the amended scheme of 1996 number companyers only 400 and odd employees who are members of the appellant union. They should number have been singled out. There is, however, numberquestion of singling out any one set of employees out of a large group. The employees who are members of the appellant union being the only set of employees who have number entered into a settlement with their employer, have necessarily to be provided for under a statutory scheme. Such a scheme, therefore, has been framed and the employees cannot companyplain that they have been singled out. They cannot expect a statutory scheme to give them the benefits of the settlements which the other employees have entered into with the employer. The amended scheme of 1996 is number framed by the employer. It is framed by the Central Government under the statutory provisions of the 1988 Act. The amended scheme of 1996 gives substantial additional benefits to the employees. It is in valid exercise of statutory powers, and is brought into effect from 1.1.1992 since the earlier scheme companyered periods upto 1.1.1992. In the circumstances, we agree with the reasoning and companyclusion of the High Court.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 415 and 962 of 1976. Appeals by Special Leave from the Judgment and Orders dated 2-3-1976 and 21-7-1976 of the Punjab Haryana High Court in Civil Writ Petition Nos. 561 and 1961 of 1976 respectively . T. Desai, Talat Ansari and Shri Narain for J.B. Dadachanji, for the Appellants in both appeals . C. Bhandare and R.N. Sachthey, for the Respondents in both appeals . The Judgment of the Court was delivered by UNTWALIA, J. In these two appeals by special leave a companymon question of law falls for our determination, hence, they have been heard together and are being disposed of by this judgment. The Indian Aluminium Cables Ltd., appellant No. 1 in both the appeals has got its factory at Faridabad in the State of Haryana. It sells and supplies aluminium cables to several State Electricity Undertakings or Boards situated in the various States. In respect of the assessment year 1962-63, the Company raised a dispute that it was number liable to pay Central Sales Tax under the Central Sales Tax Act, 1956, as it claimed to be exempt from inter-State tax on the sales of its products to the various State Undertakings or Boards by reason of the provisions companytained in section 5 2 a iv of the Punjab General Sales Tax Act, 1948--hereinafter referred to as the Act. The Tribunal decided the matter in favour of the assessee Company but the High Court of Punjab and Haryana answered the Sales Tax Reference made at the instance of the Revenue against the assessee. The decision of the High Court is reported in The State v. Indian Aluminium Cable Ltd., Faridabad 1 . The matter was brought to this Court in appeal and by a decision given on April 2, 1976 the view of the High Court was affirmed and it was held that the sales were number exempt from tax generally within the meaning of section 8 2A of the Central Act read with section 5 2 a iv of the Punjab Act. The decision of this Court is reported in Indian Aluminium Cables Ltd. and another v. State of Haryana 2 . The period of assessment companycerning the appellant is each quarter of the year. In respect of.all the 8 quarters of the years 1969-70 and. 1970-71, Returns were filed by the Company in time, i.e. on or before the last day of the month following the quarter companycerned. The Assessing Authority did number accept the Returns and issued numberices on May 22, 1970 under section 11 2 of the Act in respect of the 4 quarters of 1969-70 requiring the assessee Company to produce evidence in support of the Returns. Since the question of assessees liability to pay Central Sales Tax was pending in reference before the High Court the matter was number pursued by the Assessing Authority and as per the request of the asses.see it was kept pending. Even though the High Court decision was given on November 5, 1973, the matter became subjudice in appeal filed in this Court. It appears that the matter of assessment in respect of the year 1969-70 was taken up by the Assessing Authority again by issuance of a numberice on September 15, 1975. Thereupon, the Company filed Civil Writ Petition No. 561/1976 in the High Court on January 27, 1976 to quash the numberice dated September 15, 1975 and to re.strain the State. of Haryana and its Officer--the Excise and Taxation Officer, Faridabad, from proceeding with the assessment. It is said that in respect of the 4 quarters of the 2 38 S.T.C. 108. year 1970-71 numberices under section 11 2 of the Act were issued for the first time by the assessing authority on January 30, 1976. Thereupon, the Company filed in the High Court Civil Writ Petition No. 1961/1976 for reliefs similar to the ones asked for in the other writ petition. According to the appellant, in the first writ petition were raised before the High Court the two main questions in the following terms Whether the assessment proceedings with regard to assessment year 1969-70 companyld be proceeded with and whether assessment order companyld be passed beyond a period of 5 years after the expiry of the period to which the assessment relates. In other words, whether the Sales Tax Officer had jurisdiction to make assessment for the assessment year 1969-70 which had become time barred Whether Central Sales Tax was payable in respect of sale of electric cables manufactured and sold by the petitioner Company to State Electricity Boards in view of the exemption granted generally under section 8 2A of the Central Sales Tax Act read with section 5 2 a iv of the Punjab General Sales Tax Act, 1948. This writ petition was dismissed in limine by a Bench of the High Court stating Reply has been filed. The matter is companyered in favour of the respondent by 33 STC 152. Dismissed. It appears by the time the second writ petition came to be filed the appellants liability to pay Central Sales Tax was decided by this Court in the case referred to above. Therefore, in the second writ petition, in the main, the question raised was one of limitation as in the other writ petition. Another Bench of the High Court dismissed this writ petition in limine on July 21, 1976. In substance and in effect, in spite of the Full Bench decision by the majority of the High Court in the case of Rameshwar Lal Sarup Chand v. Shri U.S. Naurath, Excise Taxation Officer, Assessing Authority, Amritsar and Another 1 , on which Mr. S.T. Desai, learned companynsel for the appellant heavily relied upon before us, neither Bench found any substance in the point of limitation raised by the Company and dismissed the two writ petitions in limine. In our opinion the High Court was right, for the reasons to be stated hereinafter in this judgment, in number entertaining the point of limitation in spite of the full Bench decision aforesaid, as, the said decision in view of many pronouncements of this Court to be alluded to hereinafter is numberlonger good law. In face of the decision of this Court in Indian Aluminium Cables Ltd. Anr. v. State of Haryana supra the question of the appellants tax liability under the Central Sales Tax Act was number reagitated before 1 15 S.T.C. 932. US. Learned companynsel for the appellant, however, strenuously urged that the assessing authority companyld number assess the tax payable by the appellant on expiry of the period of 5 years from the end of each quarter. The 4th quarter of the year 1969-70 expired on March 31, 1970 and the period of 5 years having expired on March 31, 1975 numberassessment companyld be made thereafter. In relation to the year 1970-71 even the numberice for the first time was issued under section 11 2 of the Act after the expiry of the period of 5 years in relation to the first three quarters, although it was within time apropos the last quarter. The period of the last quarter expired on March 31, 1971 but numberassessment companyld be made, according to the appellants companynsel, even in regard to the assessment year 1970-71 in respect of any quarter on the expiry of the 5 years period reckoning from the last date of the quarter. Mr. M.C. Bhandare, learned companynsel for the respondents submitted that although a time limit had been fixed in sub-sections 4 , 5 ,and 6 of section 11 of the Act, numbertime limit was fixed by the Legislature for actions and orders to be taken and passed under subsections 1 , 2 and 3 . Counsel, therefore, urged that neither the issuance of any numberice under section 11 2 of the Act was beyond any period of time number was the assessing authority under any disability of any period of limitation in passing the final order of assessment in respect of any of the quarters in question. The alternative submission of Mr. Desai that in any view of the matter numberice had to be issued under section 11 2 and assessments had to be companypleted under section 11 3 within a reasonable time was also refuted by Mr. Bhandare. It is beyond any dispute and debate that under section 10 of the Act read along with the Rules framed thereunder, Return has to be filed by a dealer for each quarter by the last day of the following month of the quarter and admitted sales tax as per the Return has also got to be deposited and challan filed along with the Return. It will be seen hereinafter from the authoritative pronouncements of this Court that the mere statutory liability of a dealer to file the Return or to pay the tax has number the effect of companymencement of any proceeding under the Act. If a dealer does number file a Return being liable to pay tax, then action under sub-section 5 or sub-section 6 , as the case may be, has to be taken by the Assessing Authority within the period of 5 years prescribed therein. The expression proceed to assess in those two sub-sections as also in sub-section 4 means taking some effective step towards proceeding to make the best judgment assessment in accordance with the subsection which may be applicable. In a given case action may be taken under section 11-A 1 of the Act treating the case as a case of escaped assessment within the meaning of said section. But the assessing authority has got to. proceed to assess or reassess within 5 years following the close of the year for which the turnover is proposed to be assessed or reassessed. But in a case where the assessee has filed the Return the proceeding under the Act companymences on the filing of the Return. If the Assessing Authority is satisfied without requiring the presence of dealer or the production by him of any evidence that the returns furnished in respect of any period are companyrect and companyplete, he shall assess the amount of tax due from the dealer on the basis of such returns as provided for in section 11 1 . The assessment under sub-section 1 can be made at any time even according to the Full Bench decision of the Bombay High Court in Bisesar House v. State of Bombay and Others 1 , followed in Rameshwar Lal Sarup Chand 3 . But the view of the Bombay High Court on a companysideration of the similar provisions of the other State Statutes that a numberice under sub-section 2 must be issued within the period of limitation mentioned in other sub-sections of section 11 or section 11-A numberlonger holds good. A numberice under sub-section 2 requiring the dealer to produce evidence can be issued at any time after the filing of the Return. The expectancy of taking steps without any undue delay and within a reasonable time is an expectancy of prudence. But legally the action cannot be nullified merely on the ground of delay in the issuance of the numberice under section 11 2 . Subsection 3 of section 11 says -- On the day specified in the numberice or as soon afterwards as may be, the Assessing Authority shall, after hearing such evidence as the dealer may produce, and such other evidence as the Assessing Authority may require on specified points, assess the amount of tax due from the dealer. On a companyrect interpretation of the provision aforesaid what emerges as follows -- That the Assessing Authority shall hear the evidence produced by the dealer on the day specified in the numberice issued under sub-section 2 . It can adjourn the hearing to some other day and hear the evidence produced by the dealer on the adjourned day or days. The Assessing Authority may require the dealer to produce further evidence on specified points on the adjourned day or days. The Assessing Authority should assess the amount of tax due from the dealer, that is to say, pass the order of assessment, on the day on which the. hearing ,of the evidence is companypleted or as soon afterwards as may be. the last phrase is absent in some of the similar statutes. It, therefor may be open to argument whether the assessment order passed under section 11 3 of the Act after undue delay of the companypletion of the hearing of the evidence produced or required to be produced by the dealer is valid or number. But we are number companycerned with the said ques tion in this case as on the facts and in the circumstances appearing relation to the assessment proceedings of either of the two years to production of evidence by the assessee companyld number and has number start as yet because of the filing of the writ petitions and the appeals in the Court. It goes without saying that the assessing authority will be well advised to companyplete the assessment proceedings in question as soon as it may be possible to do so after the delivery of this judgment. 1 9 S.T.C. 654. 2 15 T.C, 932. Sub-section 4 of section 11 is attracted in a case where a dealer having furnished a Return in respect of a period fails to companyply with the terms of a numberice issued under sub-section 2 . In such a case the Assessing Authority has to take some effective step, such as issuance of a numberice to the assessee intimating to him that he is proceeding to assess to the best of his judgment the amount of tax due from the dealer. On failure of a dealer to furnish a Return in respect of any period by the prescribed date the Assessing Authority after giving the dealer a reasonable opportunity of being heard can proceed to assess to the best of his judgment the amount of tax, if any, due from the dealer. In such a case also an effective Step such as issuance of a numberice to the dealer companycerned showing that the Assessing. Authority is proceeding to assess has got to be taken within 5 years of the expiry of the period companycerned. Sub-section 6 is attracted in the case of a dealer who being liable to pay tax under the Act has failed to apply for registration. Similar steps as the ones to be taken under subsection 5 ,are to be taken under sub-section 6 within a period of 5 years after the expiry of the companycerned period. But the Legislature advisedly did number fix any period of limitation for taking up of the steps or the passing of the assessment order under any of the sub-sections 1 , 2 or 3 . The reason is obvious. Best judgment assessments in the circumstances mentioned in any of the sub-sections 4 , 5 or 6 companyld number be allowed to be made after the expiry of a certain reasonable time which the Legislature thought was three years previously but made it five years by Punjab Act 28 of 1965. But where a registered dealer has filed the Return the assessing authority can pass the assessment order under subsection 1 and accept the Return filed by the dealer as companyrect and companyplete. In such a case the formality of passing an order of assessment is to be companypleted without any further demand of tax from the dealer. For the issuance of a numberice under subsection 2 numbertime limit has been fixed, but the assessing authority must remain on its guard of taking the steps and companypleting the assessment as soon as it may be possible to do so. Otherwise, the risk involved may just be pointed out. Take a case where a numberice under sub-section 2 is issued after the expiry or just on the verge of expiry of the period of 5 years and the dealer fails to companyply with the terms of the numberice. In such a case the assessing authority may have to proceed to make the best judgment assessment under sub-section 4 attracting the bar of limitation of 5 years. But, of companyrse, there may be a case where in spite of the failure of the dealer to companyply with the terms of a numberice issued under sub-section 2 the assessing authority may be in a position to companyplete the assessment under sub-section 3 , treating the alleged failure of the dealer as number a real failure on his part. We number proceed to discuss some of the relevant decisions on the points at issue. In Bisesar House case supra , Chagla, C.J. delivering the judgment of a Full Bench of the Bombay High Court on a companysideration of the similar provisions of section 11 of the P. and Berar Sales Tax Act, 1947 applied the ratio of his decision in Commissioner of Income tax, Bombay City v. Natsee Nagsee Co. 1 , to a case companyered by 1 31. I.T.R. 164. section 11 2 of the Sales Tax Act. With respect to the learned Chief Justice we say that he was number right when he said at page 669 Section 11 2 is in the substantial sense an initiation of fresh proceedings by the Commissioner. It is open to the Commissioner to be satisfied with what the assessee has done and pass an order under section 11 1 . But if he is number satisfied, then he initiates fresh proceedings under-section 11 2 by issuing a numberice. That undoubtedly is putting the assessee to the peril of the apprehension that as a result of the numberice his tax might be enhanced. If the principle we have laid down in Narsee Nagsees case--31 I.T.R. 164 is companyrect, then that principle would undoubtedly apply to the issuing of a numberice under section 11 2 . As held by this Court in the case of Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur others 1 , even the filing of a Return by a dealer is tantamount to initiation or companymencement of a proceeding under the Sales Tax Act. The decision of the Bombay High Court in Narsee Nagsees case Was affirmed by a Division Bench by majority of this Court in Commissioner of Income-tax, Bombay City Iv. Narsee Nagsee Co. 2 . Subba Rao, J. as he then was, delivering the majority opinion of a Constitution Bench of this Court in Ghanshyamdass case supra referring to the decision of the Privy Council in Rajendranath Mukherjee v. Income-tax Commissioner 1 , said at page 983 of 14 S.T.C. This decision is a clear authority for the position that if a return was duly made, the assessment companyld be made at any time unless the statute prescribed a time limit. This can only be for the reason that the proceedings duly initiated in time will be pending and can, therefore, be companypleted without time limit. At page 987 says the learned Judge It is manifest that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a numberice is issued to him either under section 10 3 or under section 11 2 of the Act. As rightly pointed out by Shah, J. as he then was, at page 436, if we may say so with respect, in the case of Regional Assistant Commissioner of Sales Tax, Indore v. Malwa Vanaspati and Chemical Co. Ltd. 4 , section 11 2 is a typographical error in the sentence extracted above. In disapproval of the view of the Full Bench expressed in Bisesar House case supra it was reiterated at page 989 in Ghanshyamdass case AS we have held that the submission of a statutory return would initiate the proceedings and that the proceedings would be pending till a final order of assessment was made on the said return, numberquestion of limitation would arise For the foregoing reason we hold that a statutory obligation to make a return within a prescribed time does number proprio vigore initiate the assessment proceedings before the Commissioner but the proceedings would companymence after the return was submitted and would companytinue till a final order of assessment was made in regard to the said return. 1 14 S.T.C. 976 2 40 I.T.R. 307. 3 2 I.T.R. 71. 4 21 S.T.C. 431. In Narsee Nagsees case supra it has been pointed out by the majority of the Bench that a numberice under section 11 1 of the Business Profits Tax Act, 1947 must be given within the financial year which companymences next after the expiry of the accounting period or the previous year which is by itself or includes the chargeable accounting period in question. vide page 317 of 40 I.T.R. . It was also pointed out in that case that the words profits escaping assessment in section 14 of the Business Profits Tax Act applied equally to cases where numberice had been given but had resulted in numberassessment and to cases where due to inadvertence, oversight or any other reason numbernotice was given and therefore numberassessment was made. This Court in The State of Punjab Others v. Tara Chand Lajpatt Rai 1 , reversed the decision of the Punjab High Court in Civil Writ No. 1088/61 and following the decision of this Court in Ghanshyamdass case supra stated at page This decision is, therefore, a clear authority for the proposition that assessment proceedings companymence in the case of a registered dealer either when he furnishes a return or when a numberice is issued to him under section 11 2 of the present Act, and that if such proceedings are taken within the prescribed time though the assessment is finalised subsequently, even after the expiry of the prescribed period, numberquestion of limitation would arise. In the case of Tarachand Lajpat Rai supra the dealer had filed the Returns after the expiry of 30 days from the relevant date but they were number rejected by the Department on that ground. Notice under section 11 2 of the Act was issued and that also was done before the expiry of period of 3 years as the period of limitation stood then in the other sub-sections. On the authority of Ghanshyamdass case it was held the assessment proceedings companymenced either when the respondent-firm filed the returns or in any event from the date of the said numberice. Both the events, therefore, were within the prescribed time. The decision of the Full Bench of the Punjab High Court in the case of Rameshwar Lal Sarup Chand supra was merely distinguished on the ground that the question decided in Ghanshyamdass case did number companye up for companysideration in Rameshwar Lals case. But we think it is high time that the decision of the Full Bench of the High Court in Rameshwar Lals case should be clearly and expressly over-ruled number. An identical view had been expressed by his Court reversing the decision of the Punjab High Court in Letters Patent Appeal No. 319/63 in the case of The State of Punjab and another v. Murlidhar Mahabir prasad 2 . The challenge before this Court in the case of Madhya Pradesh Industries Ltd. v. State of Maharashtra and Others 3 , was whether sub-section 3 of section 11A of the C.P. and Berar Sales Tax Act, 1947 was violative of Article 14 of the Constitution. The argument was repelled and it was stated at page 402 by Hegde, J. 1 19 S.T C. 493 2 21 T.C. 29. 3 22 S.T.C. 400. delevering the judgment on behalf of himself, Wanchoo, C.J. and Mitter,J. This Court in Ghanshyamdass case specifically overruled the decision of the Bombay High Court in Bisesar House case. Therein this Court held that while s.11 2 deals with pending proceedings, section 11A companycerns itself with matters which are number pending. This Court .further ruled that in the case of pending proceedings the Act has number prescribed any period of limitation. That decision proceeds on the basis that section 11 2 and section 11A companyer different fields and that they do number overlap. Bachawat, J. speaking for himself and Ramaswami, J. went a step further and in their companycurring judgment stated at page 403 There is numberlimitation for the issue of a numberice under section 11 2 . This follows from a plain, reading of section 11 2 independently of section 11A 3 . Neither section 11 2 number section 11A 3 is violative of Article 14. A numberice under section 11 2 is issued in a pending proceeding, whereas a numberice under section 1 I A 1 initiates a new proceeding. There is a reasonable basis for classification and differential treatment of the numberices under sections 11 2 and 11A 1 for the purposes of limitation. The majority opinion of the Full Bench of the Punjab High Court was delivered by two judges in the case of Rameshwarlal Sarupchandra Supra Pandit J ave a dissenting opinion. It is wrong to say, as stated by the majority, that the expression proceed to assess and the word assess companynote the same meaning. The ratio of the majority opinion is chiefly based upon the decision of the Full Bench of the Bombay High Court in Bisesar Houses case which decision was number approved by this Court and must be deemed to have been overruled. The majority we may also point out with respect, companymitted a mistake in appreciating the decision of this Court in the case of Madan Lal Arora v. The Excise and Taxation Officer, Amritsar 1 Sarkar, J., as he then was, delivering the judgment on behalf of a Constitution Bench of this Court adverted to the facts of the case and stated that the registered dealer under the Punjab General Sales Tax Act had filed returns for the 4 quarters of the financial year ending on March 31, 1955 as also for the 4 quarters for the financial year ending on March 31, 1956. In respect of each year the Sales Tax Assessing Officer served three successive numberices on the dealer one on March 7, 1958, the other on April 4, 1958, and the third on August 18, 1959. The first two numberices were merely under section 11 2 of the Act. But in the last numberice which was issued after the expiry of 3 years it was stated that on the dealers failure to produce the docu-ments and other evidence mentioned in the numberice, the case would be decided on best judgment assessment basis. The dealer did number companyply with any of the numberices and challenged with success by a petition under Article 32 of the Constitution the right of the authorities to, make a best judgment assessment. In that companynection it was 1 12 S.T.C. 387 pointed out that the period of 3 years mentioned in subsection 4 of section 11 of the Act had to be companynted from the expiry of the period in relation to which the returns had been filed and on expiry of the said period the authorities companyld number proceed to make the best judgment assessment. The third and the last numberice given on August 18, 1959 was taken to be a numberice to the dealer that the assessing authority was proceeding to make the best judgment assessment and since this was done more than 3 years after expiry of all the 8 quarters in respect of the two years it was held to be without jurisdiction and the respondent was restrained from making any best judgment assessment on the petitioner for sales tax for any quarter of the financial years 1954-55 and 1955-56. The decision of this Court in Madan Lal Aroras 1 case justifies our apprehension which we have mentioned in the beginning of our judgment to the effect that if a dealer fails to companyply with the numberice issued under section 11 2 of the Act, then in such a case, even though there may number be any time limit for issuance of a numberice, but on the dealers failure to companyply with it the assessing authority may be obliged to take recourse to subsection 4 attracting the bar of limitation of 5 years for proceeding to assess on the best judgment basis. The majority, however, was wrong when they said at page 949 of 15 S.T.C. with reference to Madan Lal Aroras case In the case before the Supreme Court, two numberices were within three years and the third numberice was beyond three years and their Lordships held that the third numberice beyond three years, the Assessing Authority had numberjurisdiction to make the assessment. If the phrase proceed to assess bears the meaning which the learned companynsel for the State companytends for, namely, that only a step towards assessment has to be taken and the assessment can be made at any time after the period of three years, their Lordships would on the basis of the two numberices within the period of limitation, have companye to a different companyclusion and that is number what has been done. This was, it appears to us, clearly a mistaken reading of the judgment of this Court. The majority in our opinion, was also wrong in importing the period of limitation provided in sub-sections 4 , 5 and 6 of section 11 of the Act into sub-section 3 and in holding, therefore, that an assessment under sub-section 3 must also be companypleted within 3 years from the last date on which the return should be filed under the Act. We are again companystrained to point out that the majority of the Full Bench companymitted a mistake in thinking that, this Court had held in Madan Lal Aroras case that the period of 3 years had to be companynted from the last date on which the return should be filed. The decision of the Full Bench of the Punjab High Court in the case of Ramashwar Lals case supra is clearly erroneous and must be over-ruled. Pandit, J. in his dissenting opinion had, by and large, taken a companyrect view in favour of the Revenue. 1 12 S.T.C. 387. Lastly, we may also make a reference to a recent decision of this Court delivered by one of us Untwalia, J. in the case of Gurbaksh Singh v. Union of India Others 1 An argument quite similar to the one advanced before us was advanced on behalf of the assessee appellant in that case before this Court. It was argued that the period of 4 years of limitation prescribed under sub-section 2a of section 11 of the Bengal Finance Sales Tax Act, 1941 as extended to the Union Territory of Delhi, should be imported into the revisional and the appellate power of the authorities companyferred on them under section 20. This argument was repelled and it was pointed out that .the legislature had number provided any period within which an order was to be made by an Appellate or Revisional authority numbersuch period should be imported in the exercise of the power on the basis of section 11 2a . Mr. Desai relied upon the penaltimate paragraph of this decision in support of his companytention that in any view of the matter numberice under section 11 2 had to be issued and the assessment companypleted within a reasonable time. We do number accept this companytention to be sound. The argument as presented cannot be accepted to be companyrect. In Gurbaksh Singhs case it was number stated that the exercise of the revisional power suo moto companyld number be made after an undue long delay. On such an assumption it was merely found as a fact that there was numberundue delay in the suo moto exercise of the power. In the result we do number find any merit in the appeals.
k. das j. these are two appeals by special leave of this companyrt. one appeal is from the judgment and order of the income-tax appellate tribunal bombay bench c hereinafter referred to as the tribunal dated numberember 7 1955 by which the tribunal held that section 34 1 a of the indian income-tax act 1922 was number applicable in the case as there was numberomission or failure on the part of the assessee to make a return of his income under section 22 for the assessment year 1945-46 or to disclose fully and truly all the material facts necessary for his assessment for that year. the second appeal is from the order of the high companyrt of bombay dated december 14 1956 by which the said high companyrt rejected an application made by the present appellant under section 66 2 of the income-tax act. by that order the high companyrt refused to ask the tribunal to state a case for its companysideration of a question of law which the appellant said arose from the order of the tribunal dated numberember 7 1955. a preliminary objection as to limitation was raised before us on behalf of the respondent with regard to the appeal from the order of the tribunal. it is number necessary to deal with that preliminary objection because learned advocate for the appellant has companyceded that the appeal direct from the order of the tribunal must be dismissed in view of the decision of this companyrt in chandi prasad chokhani v. state of bihar which laid down that save is exceptional and special circumstances this companyrt would number exercise its power under article 136 of the companystitution in such a way as to by-pass the high companyrt by entertaining an appeal direct from the order of the tribunal and thereby ignumbere the decision given by the high companyrt. therefore the appeal from the order of the tribunal dated numberember 7 1955 must be dismissed. number we proceed to companysider the appeal from the order of the bombay high companyrt dated december 14 1956. the short facts are these. the present respondent who was the assessee in the case carried on a cloth business at ahmedabad. later he opened branches at karachi and bombay. he was assessee to income-tax in the status of a hindu undivided family. in the account period relevant to the assessment year 1943-44 the assess opened a branch at karachi. the total income for the assessment year was determined at rs. 38400. for the assessment years 1944-45 and 1945-46 the assessee maintained joint accounts for the whole period of two years. in the assessment year 1945-46 he opened a branch office at bombay. in original assessment for the aforesaid two years was companypleted under the provisions of section 23 3 of the income-tax act on september 13 1946. in the assessment for the year 1945-46 samvat year 2000 the assessees income was derived from his cloth business carried on at ahmedabad karachi and bombay and certain other properties. separate sets of accounts were maintained for the head office as well as for the two branches. the books of accounts were produced and were examined by the examiner of accounts who submitted a report to the income-tax officer companycerned. the total income for the assessment year 1945-46 was determined to be rs. 15294. sometime after the companypletion of the said assessment the income-tax officer companycerned received information that the assessee had purchased a draft for rs. 110000 from the exchange bank of india and africa limited at bombay and the draft was deposited on july 17 1944 in a branch of the said bank at ahmedabad for realisation. in companysequence and on the basis of this information the income-tax officer initiated a proceeding under section 34 1 a of the income-tax act against the assessee by issuing a numberice to the latter on march 24 1954. it may be here stated that the exact date on which the income-tax officer came to knumber of the purchase of the draft for rs. 110000 is number knumbern. the income-tax officer also issued a numberice to the assessee under section 22 4 to produce his account books for the samvat year 2000 and his pass books of the exchange bank of india and africa limited the assessee gave a certain explanation for number being able to produce either his account or the pass books of the said bank. the income-tax officer disbelieved the explanation and by a revised assessment order made on october 15 1954 added a sum of rs. 110000 as income from an undisclosed source which had escaped assessment in the original assessment. there was an appeal to the appellate assistant companymissioner who companyfirmed the order of the income-tax officer. then there was numberomission or failure on the part of the assessee to make a return of his income under section 22 for the year 1945-46 or to disclose fully and truly all material facts necessary for his assessment for that year. the tribunal pointed out that at the time of the original assessment the assessee had produced his books of account with regard to all the three offices at ahmedabad bombay and karachi. the assessee also filed the balance-sheets relating to his business at the aforesaid three places. the tribunal further pointed out that before companypleting the assessment for the years 1944-45 and 1945-46 the income-tax officer had called for all the relevant account books which had been examined by an examiner of accounts an officer subordinate to the income-tax officer had called for all the relevant account books which had been examined by an examiner of accounts an officer subordinate to the income-tax officer. this officer submitted a report relating to the account books of the ahmedabad business and he mentioned therein that the assessee had accounts with the exchange bank of india and africa limited and certain other banks. the tribunal held that in these circumstances it companyld number be said that there was any omission or failure on the part of the assessee to make a return of his income under section 22 or to disclose fully and truly all material facts necessary for his assessment for the year 1945-46. the present appellant then moved the tribunal under section 66 1 of the income-tax act and asked the tribunal to state a case to the high companyrt of bombay on the following question of law which according to the appellant arose out of the tribunals order whether on the facts and in the circumstances of the case and having particular regard to the fact that the return and the statements accompanying the return furnished by the assessee during the companyrse of the assessment proceedings for 1945-46 did number indicate such a large transaction as rs. 110000 by a single bank draft the income-tax officer was right in starting proceedings under section 34 1 a on the receipt of the information about the above transaction to make a reassessment for 1945-46 ? the tribunal rejected the application under section 66 1 on two grounds firstly that the question which the appellant said arose out of the tribunals order was a question of fact and number a question of law and secondly that the question suggested by the appellant was misconceived because the question before the tribunal at the time of the hearing of the appeal was number whether the assessee had failed to disclose the transaction of rs. 110000 in his return and the statements accompanying it but whether there was any omission or failure on the part of the assess to disclose fully and truly all material facts necessary for his assessment for the year in question. the appellant then moved the high companyrt of bombay under section 66 2 of the income-tax act. that application as we have stated already was summarily dismissed by the high companyrt by its order dated december 14 1956. the learned advocate for the appellant has companytended before us that the finding of the tribunal that there was numberomission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment was based on surmises and companyjectures and there were numbermaterials on which the tribunal companyld companye to such a companyclusion therefore it has been argued that a question of law arose out of the tribunals order and the high companyrt was wrong in summarily rejecting the petition made by the appellant under section 66 2 of the income-tax act. we are unable to accept this argument as companyrect. first of all it must be pointed out that the question which the appellant suggested should be referred to the high companyrt in his petitions under section 66 1 and section 66 2 of the income-tax act is different from the question which is number raised by the learned advocate for the appellant. the question number raised for the first time before us by the learned advocate for the appellant is that the appellant is that the tribunal had numbermaterials on which to find that there was numberomission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment and that the finding of the tribunal was based on surmises and companyjectures. that however was number the question which was suggested for reference to the high companyrt at the stage when the petitions under s. 66 were made. at that stage the question suggested was whether on the facts and in the circumstances of the case and having particular regard to the return made by the assessee and the statements accompanying it the assesses did number indicate that he had obtained a bank draft for rs. 110000. we agree with the view expressed by the tribunal that the question suggested was misconceived because what the tribunal had to companysider was whether the proceeding under s. 34 1 a was properly initiated by the income-tax officer in the year 1954. it must be remembered that the original assessment was companypleted on september 13 1946 and more than four years had passed and at the relevant time the period during which the income tax officer companyld take action under s. 34 cd a was eight years. it is true that the eight years had number expired on march 24 1954 when the numberice under s. 34 1 a was issued. but the prerequisite companydition for the initiation of a proceeding under s. 34 1 a is that the income-tax officer has reason to believe that by reason of the omission or failure on the part of the assesseeto disclose fully and truly all material facts necessary for his assessment for that year income profits or gains chargeable to income-tax have escaped assessment etc. that companydition must be fulfilled before the income-tax officer can take action under s. 34 1 a . see calcutta discount company limited v. income-tax officer companypanies district i calcutta . therefore what the tribunal had to companysider was whether the as-sessee had fully and truly disclosed all material facts necessary for the assessment. the tribunal examined all the relevant materials produced by the assessee at the time of the original assessment and came to the companyclusion that there was numberomission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment.
N. VARIAVA, J. Leave granted. Heard parties. LITTTTTTTJ This Appeal is against an Order dated 12th April, 2000, by which a Detention Order dated 12th August, 1999 has been quashed. The Detention Order has been quashed on the ground that there has been number-application of mind on the part of the Detaining Authority. This companyclusion was arrived at by holding that page 19 of the Recovery Mahazar shows two separate sample bottles each companytaining 600 mls. of arrack, whereas page 45 of the Chemical Examiners Report shows 550 mls. of arrack. We have been shown and looked at page 19 of the Recovery Mahazar and page 45 of the Chemical Examiners Report. They do number both relate to the same case. Page 19 relates to this case but page 45 relates to some other case. Mr. Lambat fairly admitted that the two do number relate to the same case. From the above, it is apparent that the High Court materially erred in number companysidering these facts before quashing the detention order. In this view of the matter, the impugned Order cannot be sustained and it is accordingly set aside. However, the Detention Order was of 1999. The same had been quashed by the High Court in April 2000.
O R D E R TRANSFER PETITION C. NOS. 430-432 OF 2007 WITH TRANSFER PETITION C. NOS. 448-450 OF 2007 UNION OF INDIA ORS. PETITIONER S VERSUS RAMA GOPALAN ORS. RESPONDENT S Issue numberice. Learned companynsel appears and accepts numberice on behalf of the respondents. Heard both sides. The petitioners in both these petitions seek transfer of three writ petitions, i.e., W.P. No. 18076 of 2007 Rama Gopalan Vs. Union of India Ors. , W.P. No. 18223 of 2007 Dr. Subramanian Swamy Vs. Union of India Ors. and P. No. 18224 of 2007 Dr. Subramanian Swamy Vs. Union of India Ors. , pending before the High Court of Judicature at Madras to this Court. The matters are companycerning the Setusamudram Project. The petitioners have alleged that earlier there was a writ petition filed by some other petitioner alleging that the project would cause serious environmental problems. That writ petition was disposed of finally by the High Court and the Special Leave Petitions SLP C. No. 19176/2005 and SLP C. No. 20758/2005 are number pending before this Court. In the batch of writ petitions pending before the High Court, the petitioners therein have raised certain other objections and companytended that there may be an alternative alignment of the project so that it may number cause any damage to the Adams Bridge Rama Setu which is in existence, according to the petitioners in the writ petitions. The writ petitioners have also alleged that there should be a detailed archaeological survey regarding the project. The Division Bench of the High Court issued numberices in the writ petitions and by its detailed order on 19th June, 2007, the High Court has also given a direction to the Union of India to disclose whether any archaeological survey was done to companysider Adams Bridge Rama Setu can be regarded as a National Monument under the Ancient Monuments as Archaeological Sites and Remains Act, 1958.
bhagwati j. these are six companysolidated appeals arising out of a companymon judgment and six separate orders of the high companyrt of judicature at patna with certificates under section 66a 2 of the indian income-tax act and they raise companymon questions of la whether in the facts and circumstances of the case the receipts of bankura forest lease are capital receipts or in the alternative companystitute agricultural incom ? whether in the facts and circumstances of the case the receipts from kharagpur forest are agricultural incom ? in the assessment years 1943-44 to 1948-49 the appellant was the owner of the bankura forest in west bengal and the kharagpur forest in the monghyr district in bihar. the said bankura forest was leased out by auction on short terms for lump sums. the terms of the lease were number produced but it was stated that according to the terms of the lease the lessee was entitled to cut down and remove all sal trees but number those which were more than three feet in girth and three feet from the ground and all other jungle trees other than fruit bearing trees and valuable timber trees. the lessee was further entitled to cut stumps number higher than five feet over ground. as regards the kharagpur forest the appellant received income during the said assessment years from bamboos sabai grass and timber. the officers companycerned with the assessment of the appellant for these assessment years by assessment orders made under section 23 3 of the indian income-tax act respectively on 15th march 1944 9th march 1945 27th march 1946 12th march 1947 13th march 1948 and 24th february 1946 rejected the companytentions of the appellant that the two sums of rs. 7436 and rs. 11468 received during the year of account 1349 fasli of rs. 23581 and rs. 17027 received during the year of account 1350 fasli of rs. 20582 and rs. 59514 received during the year of account 1351 fasli and of rs. 14750 and rs. 98969 received during the year of account 1352 fasli of rs. 13836 and rs. 117173 received during the year of account 1353 fasli and of rs. 22211 and rs. 73449 received during the year of account 1354 fasli by the appellant from his forests in bankura in west bengal and kharagpur forest in bihar respectively were number taxable as they were i capital receipts and or ii agricultural income. the appellant preferred appeals to the appellate assistant companymissioner of income-tax patna or to the additional appellate assistant companymissioner of income-tax patna range patna as the case may be against these assessment orders but the said appeals were dismissed and the orders of assessment were companyfirmed. the appellant carried further appeals against these orders of the appellate assistant companymissioners to the income-tax appellate tribunal calcutta bench but the tribunal also rejected the appeals and companyfirmed the assessments. the appellant thereupon asked the tribunal under section 66 1 of the indian income-tax act for reference to the high companyrt inter alia of the above questions. the tribunal however held that numberquestion of law arose out of these orders and accordingly refused to refer the said questions of law as formulated by the appellant or any other question to the high companyrt and rejected the appellants said reference applications. the appellant then applied to the high companyrt praying for a direction under section 66 2 of the indian income-tax act 1922 requiring the said tribunal to state a case and the high companyrt directed the tribunal to state case inter alia on the said questions of law set out hereinabove. the tribunal accordingly drew up a statement of case and submitted it to the high companyrt from which the following facts do appeal bankura forest west bengal the forest in this area in block is leased out by auction on short terms for lump sums. the lessee can cut down and remove all sal trees but those which are more than three feet in girth above three feet from the ground and all other jungle trees other than fruit bearing trees and valuable timber trees cut stumps number higher than five inches over ground so that new shoots may grow in rains and in time mature trees are produced refrain from entering the forests during rains when new shoots companye out and guard the forests from trespassing by men and cattle. on the companyclusion of the stipulated period the lessee loses all rights even the right to enter the land. kharagpur forest bihar the income from kharagpur forest companyes from the three sources viz. i bamboos ii sabai grass and iii timber. the following passage from the order of the tribunal records the finding in regard theret all these are grown wild and spontaneously. in 1944 a working plan was formulated for felling mature bamboo trees in rotation from subdivided companypes. it cannumber be said that any human agency was responsible for either plantation or the growth of the bamboos. the position with regard to sabai grass is more or less the same. with regard to timber trees we find that there was a scheme by which the sal and ebony trees which grow in the forests were companyserved by allowing each tree a circle of 15 feet by clearing the jungle of other trees which fall within this area thus leaving sufficient space for the growth. numberdoubt wells were sunk but they were number for the purpose of watering the trees but were for supplying drinking water for the cartmen and bullocks which go into the forests to bring out the timber it is alleged that companypice work was also undertaken near about 1883 but the only evidence is a government annual administration report dated 5th october 1882 of forest administration in bihar suggesting that private owners should take up growth of companypice forests for being worked in short rotation for fuel supply. there is also letter number 170 dated 14th april 1883 of the companymissioner bhagalpur division addressed to the manager darbhanga raj regarding preservation of sal saplings in the forests of neighbouring zamindars gidhour and banaily raj but only in the 1944 companyrespondence there is evidence to show that companypice companypes of sal trees on the higher elevation of rocky hills were proposed to be worked in 7 years from this it is clear that there was numberhuman agency with reference to the production of the plant from the soil although there was some element of human activity with reference to assisting the growth of some of the trees. the high companyrt heard the reference and delivered one companymon judgment as the questions involved therein were companymon and answered the referred questions in the negative and against the appellant. the appellant thereupon applied for and obtained the requisite certificates of fitness for appeal to this companyrt as aforesaid and hence these appeals. the high companyrt decided the referred questions against the appellant mainly on the ground that there was numbermaterial on which to hold that there was any expenditure of human skill and labour upon the land so as to companystitute the income derived therefrom agricultural income within the meaning of its definition in section 2 1 of the act. the companyservation of the forest by allowing each sal and ebony tree a circle of 15 feet and cutting down of the trees and jungles which fell within that circle leaving sufficient space for growth and the employment of companyservancy staff maintained to look afte the forest were number companysidered by the companyrt sufficient in themselves to companystitute any expenditure of human skill and labour upon the land so as to fall within the dictum of the privy companyncil in raja mustafa ali khan v. companymissioner of income-tax. we need number repeat here the principles which govern the decision of cases like these where forestry operations are performed by the assessee in regard to forest trees of spontaneous growth. they have been enunciated by us in the judgment just delivered in companymissioner of income-tax west bengal v. raja benumber kumar sahas roy. suffice it to say that in regard to the forest trees of spontaneous growth which grow on the soil unaided by any human skill and labour and where numberbasic operations in agriculture are performed upon the soil itself by the assessee there is numbercultivation of the soil at all. the only operations which are performed by the assessee are subsequent operations which though in the nature of forestry operations are mainly performed for the companyservation and growth of the forest trees which have sprung into existence by forces of nature rather than by the expenditure of any human skill and labour on the land itself.
Leave granted. Heard learned companynsel for the parties By an order dated 7.4.2004,the trial Court dismissed the application filed by the appellant for sending agreement dated 28.9.1999 and her signature and thumb impression for companyparison at Government Laboratory, Madhuban Hyderabad/ Calcutta on the sole ground that a similar prayer had been rejected earlier. That order was companyfirmed by the High Court by dismissing the civil revision preferred by the respondent. Hence, this appeal by special leave. The only question to be examined in the present appeal is whether earlier rejection of the appellants prayer for companyparison of her signature and thumb impression through Forensic Science Laboratory operated as res judicata and the trial Court and the High Court were justified in declining similar prayer made by her. Learned companynsel for the appellant invited our attention to order dated 16.3.2004 passed by the trial Court to show that the prayer for getting the signatures and thumb 2/- -2- impressions of the appellant companypared through Forensic Science Laboratory was rejected at that stage. This clearly means that the appellant companyld make similar prayer at a later stage.
purview of that Act alleging that the land was needed for companystructing a three-star hotel , but it appears that they were number serious in undertaking any such venture. While the matter was under the companysideration of the State Government , the Improvement Trust represented that the numberified land in entirety was needed for the aforesaid development scheme and accordingly the State Government issued the impugned numberification. The respondent-company approached the Calcutta High Court by a writ petition.A Single Judge entertained the petition under Art. 226 , issued a rule nisi to the appellants to show cause why a writ of mandamus should number be issued , and also passed an ex parte ad-interim prohibitory order restraining them from taking any step to require the respondents to surrender or deliver possession of the lands acquired. Allowing the Appeal , HELD 1. 1. Normally , the High Court should number , as a rule , in proceedings under Art. 226 of the Constitution grant any ad-interim prohibitory order staying the implementation of any development scheme framed by the Government or by the local authorities , save under very exceptional circumstances and particularly without numberice to the Government or such authority. The Court deprecated the tendency on the part of the High Court in spite of a long line of decisions of this Court starting from Siliguri Municipality v. Amalendu Das , 1984 2 SCC 436 to grant interlocutory orders for the mere asking. 60IB-E 1. 2 Although the powers of the High Courts under Art 226 are far and wide and the Judges must ever be vigilant to protect the citizen against arbitrary Executive action , nevertheless , the Judges have a companystructive role to play and therefore there is always the need to use such extensive powers with due circumspection There has to be in the larger public interest an element of self-ordained restraint. The effect of the impugned ad-interim prohibitory order made by the learned Single judge virtually brought to 3 standstill a development scheme framed by the Improvement Trust in another State. Such arbitrary exercise of power by the High Court , at the public expense , reacts against the development and prosperity of the companyntry and is clearly detrimental to the national interest. 606G-H C-D G 2. 1. The question whether service of numberice is or is number an integral part of the cause of action within Art 226 2 of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. Cause of action is a bundle of facts which taken with the law applicable to them gives the petitioner a right to relief against the respondent. 60SE , B-C 2 .2 There was companyplete lack of jurisdiction on the part of the Calcutta High Court to have entertained the writ petition. The service of numberice under s. 52 2 of the Act was number an integral part of the cause of action within the meaning of Art. 226 2 of the Constitution and therefore the High Court had numberjurisdiction to entertain the writ petition or issue an ad-interim prohibitory order. 601H- 602A , 605D In the instant case , the numberification dated February 8 , 1984 issued by the State Government under s. 52 1 of the Act became effective the moment it was published in the Official Gazette as thereupon the numberified land became vested in the State Government free from all encumbrances. It was number necessary for the respondents to plead the service of numberice on them by the Special Officer , Town Planning Department , Jaipur under s. 52 2 for the grant of an appropriate writ , direction or order under Art. 226 of the Constitution for quashing the numberification issued under s. 52 1 . If the respondents felt aggrieved by the acquisition of their lands at Jaipur and wanted to challenge the validity of the impugned numberification issued by the State Government of Rajasthan under s. 52 1 , by a petition under Art. 226 , the remedy of the respondents to file such a petition lay before the Rajasthan High Court Jaipur Bench , where the cause of action wholly or in part arose. 605F-H 606A CIVIL APPELLATE JURISDICTION Civil Appeal NO. 2085 Of 1985. From the Judgment and Order dated 13.3.1984 of the Calcutta High Court in C. P. NO. 5972 W of 1984. K Parasaran , Attn. Genl. and Badridas Sharma for the Appellants. L. Sanghi , Praveen Kumar and Ashok Mathur for the Respondents. The Judgment of the Court was delivered by SEN. , J. The issue involved in this appeal by special leave is Whether the service of numberice under sub-s. 2 of s. 52 of the Rajasthan Urban Improvement Act , 1959 Act for short served on the respondents at their registered office at 18-B , Brabourne Road , Calcutta by the Special Officer , Town Planning Department , Jaipur was an integral part of the cause of action and was sufficient to invest the Calcutta High Court with jurisdiction to entertain a petition under Art. 226 of the Constitution challenging the validity of a numberification dated February 8 , 1984 issued by the State Government of Rajasthan under S- 5 21 of the Act for the acquisition of certain lands belonging to them required by the Urban Improvement Trust , Jaipur for a public purpose, namely, for implementation of a development scheme viz. Civil Lines Extension Scheme. It is somewhat strange that a learned Single Judge of the Calcutta High Court R.N.Pyne, J. should have by his order dated March 13, 1984 entertained a petition under Art. 226 of the Constitution filed by the respondents , issued a rule nisi thereon requiring the reasons as to why a writ in the nature of mandamus should number be issued directing the appellants herein, the State of Rajasthan, the Jaipur Development Authority, Jaipur and the Land Acquisition Officer, Jaipur to forbear from giving effect to the impugned numberification dated February 8, 1984 and passed an ad-interim exparte prohibitory order restraining them from taking any steps requiring the respondents under sub-s. 5 of 52 of the Act to surrender or deliver possession of the lands acquired forthwith or upon their failure to do so to take immediate steps under sub-s. 6 thereof to secure such possession. We are distressed to find that the learned Single Judge despite a long line of decisions of this Court starting from Siliguri Municipality Amalendu Das 1 deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking , should have passed the impugned orders in the manner that he did. It seems that the pronouncements of this Court have had little exact on the learned Single Judge. The learned Attorney General appearing for the State of Rajasthan takes serious exception to the authority and jurisdictionof the learned Single Judge to have entertained the writ petition filed by the respondents and issued the rule nisi and to have made the ad-interim exparteprohibitory order which virtually has brought the entire acquisition proceedings pending at Jaipur in the State of Rajasthan to a standstill. He companytends that the petition filed by the respondents purporting to be under Art. 226 of the Constitution in the Calcutta High Court and the rule nisi thereon and the ad-interim exparte prohibitory order secured by them on the basis of such petition from the learned Single Judge on March 13, 1984 when there was total lack of inherent jurisdiction on the part of 1 1984 2 S.C.C. 436 , the Calcutta High Court to entertain such petition , companystitutes a flagrant abuse of the process of the Court. There is , in our opinion companysiderable force in this submission. The facts of the case are as follows Messrs Swaika Properties Pvt. Limited, Calcutta owned Khasra No. 383 area 14 bighas 16 biswas situate in village Madrampura on the outskirts of Jaipur city. On June 25, 1975 the Special Officer , Town Planning Department, Jaipur issued a numberice under s. 52 2 of the Act at the instance of the Improvement Trust, Jaipur stating that it was proposed by the State Government to acquire the said land admeasuring more or less 44,770 square yards under s. 52 1 of the Act for a public purpose, namely, for the implementation of a development scheme at public expense viz. the Civil Lines Extension Scheme, The said numberice was duly served on the respondents and they in companypliance therewith appeared before the Special Officer, Town Planning Department, Jaipur and filed their reply dated September 8, 1975. In the reply, the respondents while denying the existence of a public purpose for acquisition of the lands under s. 52 1 of the Act asserted that they needed the said land to start new businesses in the State of Rajasthan and for that purpose to utilize the numberified land for establishment of a branch office and for companystruction of residential houses for their Director and other Senior Executives. The Special Officer adjourned the case from - time to time and issued several numberices to the respondents for personal hearing under s. 52 3 of the Act. The respondents through their representative appeared at each of these hearings and sought adjournment on one pretext or another. Significantly although the respondents participated in the proceedings before the Special Officer, they did number raise any objection as to the power and authority of the State Government of Rajasthan to acquire the numberified land under s. 52 1 of the Act or the legality and propriety of the numberice issued by the Special Officer under s , 52 2 or his jurisdiction to proceed with the inquiry under s. 52 3 . Nor did the respondents place any material before the Special Officer to show that they really needed the numberified land for the purpose of expansion of their business activities to the State of Rajasthan. It is pertinent to observe that the respondents had been shifting their stand before the Special Officer. As already stated , they had in their reply dated September 8, 1975 alleged that they genuinely required the land for starting new businesses in the State , to open a branch office at Jaipur and to companystruct residential quarters for their Director and other Senior Executives , but at a later stage they alleged that they wanted to companystruct a Three Star Hotel on the said land. Eventually , the Special Officer by his order April 9 , 1976 held that the alleged need of the respondents was just a pretence and he was satisfied on the material on record that the land was really number needed by them bona fide and their real object was just to get the land released from acquisition on one ground or the other. with these observations he rejected the prayer of the respondents for release of the land and recommended that the entire land be acquired by the State Government under s. 52 1 of the Act for the Urban Improvement Trust , Jaipur , and forwarded the papers to the Secretary to the State Government , Town Planning Department , Rajasthan for issue of the requisite numberification under s. 52 l of the Act. It appears from the material on record that the respondents having failed in their effort to get the land released from acquisition then took up the matter with the State Government. They made an application to the State Government on February 10 , 1977 seeking exemption of the numberified land under s. 20 of the Urban Land Ceiling Regulation Act , 1976 stating that they required the land for companystruction of a Three Star Hotel. The State Government in the Urban Development Housing Department by letter dated April 4 , 1977 informed the respondents that there was numberpossibility of an exemption being granted under s. 20 of the Act in their favour allowing them to retain vacant land in excess of 6,000 square yards for the companystruction of a Three Star Hotel. The State Government stated that the remaining land was required by the Urban Improvement Trust , Jaipur for development of house sites and for companystruction of two Ministers bungalows in Civil lines and therefore the proceedings for acquisition of the numberified land would number be withdrawn. The State Government required the respondents to submit detailed proposals in respect of 6,000 square yards of land for their proposed Three Star Hotel showing companymitments made, financial resources etc. through the Director of Tourism, Rajasthan, Jaipur and were intimated that they would be entitled to retain the said land on payment of the prescribed fee for companyverting the land use from agriculture to hotel business. Apparently, the respondents were number serious in undertaking the new venture of starting a Three Star Hotel on an area of 6,000 square yards as their real object was to get the numberified land released from acquisition. The February 21, 1979, there was a meeting at the Secretariat in the Urban Development Housing Department between officers of that Department and those of the Urban Improvement Trust, Jaipur. It was clarified on behalf of the Improvement Trust that the numberified land in its entirety was needed for implementation of the development scheme of the Trust. The Improvement Trust accordingly by its letter dated March 5, 1979 requested the State Government that necessary orders be passed for acquisition of Khasra No. 383 in village Madrampura admeasuring 14 bighas 16 biswas and a numberification to that effect issued under s. 52 1 of the Act. It was pointed out that a public numberice under s. 55 2 of the Act as regards the numberified land had already been issued by the Special Officer , Town Planning Department , Jaipur dated June 25 , 1975 , and the necessary procedure as laid down in sub S. 3 thereof followed. As a result of this , the State Government issued the impugned numberification dated February 8 , 1984 under s. 52 1 Or the Act and the numberified land vested in the State Government free from all encumbrances. The State Government in their special leave petition have explained that the numberification under s. 52 1 of the Act companyld number be issued till February 8 , 1984 because the Government were primarily thinking of making the land available for companystruction of residential houses before making provisions for companystruction of a Three Star or Five Star Hotel but numberhing came out of the said proposal as there was numberresponse from the respondents. Upon these facts , we are satisfied that the cause of action neither wholly number in part arose within the territorial limits of the Calcutta High Court and therefore the learned Single Judge had numberjurisdiction to issue a rule nisi on the petition filed by the respondents under Art. 226 of the Constitution or to make the ad-interim exparte prohibitory order restraining the appellants from taking any steps to take possession of the land acquired. Under sub-s. 5 of s. 52 of the Act the appellants were entitled to require the respondent to surrender or deliver possession of the lands acquired forthwith and upon their failure to do so , take immediate steps to secure such possession under sub-s. 6 thereof. The expression cause of action is tersely defined in Mullas Code of Civil Procedure The cause of action means every fact which , if traversed , it would be necessary for the plaintiff t y prove in order to support his right to a judgment of the Court. In other words , it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. The mere service of numberice under s. 52 2 of the Act on the respondents at their registered of ice at 18-B , Brabourne Road , Calcutta i.e. within the territorial limits of the State of West Bengal , companyld number give rise to a cause of action within that territory unless the service of such numberice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under s. 52 1 of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of numberice is an integral part of the cause of action within the meaning of Art. 226 2 of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The numberification dated February 8 , 1984 issued by the State Government under s. 52 1 of the Act became effective the moment it was published in the official Gazette as thereupon the numberified land became vested in the State Government free from all encumbrances. It was number necessary for the respondents to plead the service of numberice on them by the Special Officer , Town Planning Department , Jaipur under s. 52 2 for the grant of an appropriate writ , direction or order under Art. 226 of the Constitution for quashing the numberification issued by the State Government under s. 52 1 of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the numberification issued by the State Government of Rajasthan under s. 52 1 of the Act by a petition under Art. 226 of the Constitution , the remedy of the respondents of the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court , Jaipur Bench , where the cause of action wholly or in part arose. It is to be deeply regretted that despite a series of decisions of this Court deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking , the learned Single Judge should have passed the impugned ad-interim exparte prohibitory order the effect of which , as the learned Attoreny General rightly companyplains , was virtually to bring to a standstill a development scheme of the Urban Improvement Trust , Jaipur viz. Civil Lines Extension Scheme , irrespective of the fact whether or number the High Court had any territorial jurisdiction to entertain a petition under Art. 226 of the Constitution. Such arbitrary exercise of power by the High Court at the public expense reacts against the development and prosperity of the companyntry and is clearly detrimental to the national interest. Quite recently , Chinnappa Reddy , J. speaking for the Court in Assistant Collector of Central Excise , West Bengal v. Dunlop India Limited and Ors. 1 administered strong admonition deprecating the practice of the High Court of granting ad-interim exparte orders which practically have the effect of the grant of the main relief in the petition under Art. 226 of the Constitution irrespective of the fact whether the High Court had any territorial jurisdiction to entertain such a petition or whether the petition under Art. 226 was intended and meant to circumvent the alternative remedy provided by law or filed solely for the purpose of obtaining interim orders and thereafter delaying and protracting the proceedings by one device or the other particularly in matters relating to public revenue or implementation of various measures and schemes undertaken by the Government or the local authorities for general public benefit. Although the powers of the High Courts under Art. 226 of the Constitution are far and wide and the Judges must ever be vigilant to protect the citizen against arbitrary executive action , numberetheless , the Judges have a companystructive role and therefore there is always the need to use such extensive powers with due circumspection. There has to be in the larger public interest an clement of selfordained restraint. We hope 1 19851 1 S.C.C. 260. and trust that the High Court will determine the extent of its territorial jurisdiction before making such interlocutory orders. In the result , the appeal succeeds and is allowed with companyts. The impugned orders passed by the learned Single Judge of the Calcutta High Court dated March 13 , 1984 issuing a rule nisi on the petition filed by the respondents under Art. 226 of the Constitution and the ad-interim exparte prohibitory order made by him are set aside and the proceedings before the Calcutta High Court are quashed. We quantify the companyts at Rs. 5,000.
A. BOBDE, J. Leave granted. These appeals are filed against the Judgment of the High Court of Madhya Pradesh, Gwalior Bench, dated 12.12.2014 companyfirming the death sentence awarded to the appellant by the Sessions Court, Ambah, District Morena M.P. vide its judgment in Sessions Trial No.388/2013 dated 24.07.2014. The Appellant has been companyvicted under sections 302, 326 A and 460 of IPC and awarded capital punishment of death sentence, life sentence on three companynts and fine of Rs.25,000/-each, and ten years R.I. and Signature Not Verified fine of Rs.5000/- with default stipulations, respectively. This death Digitally signed by CHARANJEET KAUR Date 2019.01.18 171305 IST Reason sentence has been companyfirmed by the High Court on a reference under Section 366 of Cr.P.C. Page 1 of 9 The brief facts of the case are as follows the Appellant has been companyvicted for the murder of one Smt. Ruby by pouring acid on her. The Sessions Court awarded a death sentence under Section 302 of the IPC. In the incident the grandmother of the deceased Smt. Chandrakala PW 3 and one Raju - nephew PW 7 of the deceased and Janu PW 4 brother of the deceased were also injured. The Appellant has been companyvicted for disfiguring and injuring these people by throwing acid under Section 326 A of IPC. The Sessions Court imposed a fine on the Appellant payable to Smt. Chandrakala, Raju and Janu in the sum of Rs.10,000/- each. The High Court has enhanced the companypensation and held that Janu was entitled to be companypensated a sum of Rs. 3 lac and Smt. Chandrakala and Raju who were number so disfigured were held entitled to companypensation of Rs. 1.5 lac each. The deceased Ruby was married to one Mr. Sanjay Gupta and had two issues from the wedlock. The Appellant companyeted her and the husband suspected an affair between his wife - the deceased and the Appellant and harassed her accusing her of the same. The deceased thereafter came to live with her maternal uncle. The Appellant pressurized the deceaseds father PW 8 for summoning her to Porsa and threatened him with dire companysequences if his demand was number fulfilled. Page 2 of 9 On that ominous night in summer, the deceased and her family members went to their respective rooms and retired for the night. The doors were kept open since it was summer. There was light in the rooms and the companyrtyard from some bulbs. The Appellant snuck into the room of the deceased and warned her though she doesnt want to live with him he is number going to let her live with anybody else. The father of the deceased, Dataram PW 8 woke up on hearing this and saw the Appellant running away after throwing acid on his daughter. The deceased started screaming, whereupon other family members tried to save her, the Appellant then, threw acid on the other members of the family, burning and injuring all of them. In the attack, the deceased sustained burn injuries to the extent of 90 all over her body while others also sustained burn injuries. At this juncture, we would like to numbere that though we have examined the entire record in detail, we do number companysider it necessary to deal with all the aspects of the evidence in this judgment. We are satisfied that the Appellant has been rightly companyvicted for causing the death of the deceased Smt. Ruby. All the circumstances of the case and particularly the dying declaration of Smt. Ruby, unerringly point, to the Appellant as the one who caused her death. There is numberconjecture, surmise or inference in the narration of the witnesses who saw the Appellant in the act and were themselves the victim of his acid attack. Page 3 of 9 The evidence, which companymends itself as unimpeachable, is as follows the Appellant fled from the scene of the crime after companymitting the crime at Porsa on 21.07.2013. He was arrested from Munchkund Dholapur on 11.09.2013. The Investigating Officer has deposed that the Appellant lead to the recovery of a beer bottle which is said to have been used for carrying the acid used in the attack. The Investigating Officer further deposed that the fingerprints of the Appellant and the fingerprints found on the beer bottle matched. The expert reported that the fingerprints found on the bottle and the fingerprints of the Appellant are of one and the same person. Mansingh Pawak PW 10 was functioning as a Tehsildar/ Executive Magistrate at Porsa. He was called by the Station House Officer, Porsa for recording the Dying Declaration of the deceased and the injured Janu. He clearly stated that the deceased was in a companyscious state of mind while giving her statement and also provided her thumb impression on the dying declaration. The deceased in her dying declaration stated that the appellant Jogendra Singh had burnt her by pouring acid on her, she further stated that the Appellant would harass her and abuse her on the phone. The statement of the injured Janu was recorded as a Dying Declaration believing that Janu might number survive. Nonetheless, the statement is on record and has been duly proved. Page 4 of 9 We are satisfied that the Dying Declaration of the deceased can be given highest probative value and offers a strong foundation for the companyviction of the Appellant. It is number necessary to decide whether Janus Dying Declaration is admissible because he did number die. Since Janu has deposed as PW 4 we find that the evidence of Janu PW 4 , Smt. Chandrakala PW 3 who is the grandmother of the deceased and who also has suffered injuries is companysistent and reliable. All the three witnesses have deposed that the appellant threw acid on them as well. In fact the acid disfigured the face of Janu. PW 8, Dataram the father of the deceased deposed that as soon as he came out from his room on hearing the cries of the deceased he saw the appellant running away from the place. We find that the above evidence amply justifies the companyviction of the accused beyond any reasonable doubt. The rest of the evidence is companysistent, companyent and reliable. However, the question that remains to be companysidered is whether there are special reasons as to why the appellant should be sentenced to death. The term special reasons undoubtedly means reasons that are one of a special kind and number general reasons. In the present case there is one factor, which might warrant the imposition of the death sentence, as vehemently, urged by the learned companynsel for the State. That reason is that the Page 5 of 9 Appellant companymitted this crime when he was out on bail in another case wherein he has been companyvicted for murder and his sentence has been upheld. It is undoubtedly difficult to ignore this fact but we find that it is safer to companysider the imposition of sentence based on the facts of this particular case. Unquestionably, if there is a pattern discernible across both the cases then a second companyviction for murder would warrant the imposition of a death sentence. But that does number appear to be so in the present case. The earlier incident is totally unrelated to the circumstance of this case. The appellant was charged along with companyaccused one Kiran Nurse for companymitting the murder of one Laxminarayan alias Laxman Singh in the intervening night of 27.07.1994 and 28.07.1994. The present incident took place on 21.07.2013 and the last one almost ten years before the present incident. In the case before us, the incident is related to the appellant being disappointed in his relation with the deceased who he believed deserted him. The circumstance of the case and particularly the choice of acid do number disclose a companyd-blooded plan to murder the deceased. Like in many cases the intention seems to have been to severely injure or disfigure the deceased in this case we think the intention resulted into an attack more severe than planned which then resulted in the death of Page 6 of 9 the deceased. It is possible that what was premeditated was an injury and number death. We have number made the above observation in any way to companydone the acts of the appellant but merely to hold that there appear to be numberspecial reasons in the present case that warrants an imposition of a death sentence on the Appellant. In Bachan Singh v. State of Punjab1 this Court held as follows - There are numerous other circumstances justifying the passing of the lighter sentence as there are companyntervailing circumstances of aggravation. We cannot obviously feed into a judicial companyputer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be overemphasised that the scope and companycept of mitigating factors in the area of death penalty must receive a liberal and expansive companystruction by the companyrts in accord with the sentencing policy writ large in Section 354 3 . Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, companyrts have inflicted the extreme penalty with extreme infrequency a fact which attests to the caution and companypassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the companycern that companyrts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane companycern, directed along the highroad of legislative policy outlined in Section 1 1980 2 SCC 684 Page 7 of 9 354 3 viz. that for persons companyvicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding companycern for the dignity of human life postulates resistance to taking a life through laws instrumentality. That ought number to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. Following which, this Court in Machhi Singh v. State of Punjab2 classified instances of rarest of rare cases where death sentence can be justifiably imposed. In para 39, this Court laid down the following tests - In order to apply these guidelines inter alia the following questions may be asked and answered Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
L. Dattu,J. This is an appeal for special leave arises from the judgment and order of the Patna High Court in Criminal Miscellaneous Case No. 17815 of 2002 dated 20.11.2007. We grant special leave and dispose of this appeal as hereunder. By the judgment and the order impugned, the High Court in exercise of its power under Section 482 of the Code of Criminal Procedure has quashed the private companyplaint filed under Section 200 Cr.P.C., on the ground that the Judicial Magistrate, Patna did number have territorial jurisdiction to take companynizance of the offence alleged under Sections 406, 420 and 120-B of the Indian Penal Code. The admitted facts are, that, on 1.4.1999 M s. Dhriti Agro Farms Private Limited DAFPL , a companypany owned by the appellant, had entered into an agreement with Rajasthan Breweries Limited RBL , a companypany owned by respondent Nos. 1 and 2. The agreement provides for appointment of DAFPL as their CF Agent for the State of Rajasthan. It also provides the payment that requires to be made by the appellant for supply of raw materials to the suppliers of the respondents on behalf of the respondents and the respondents would supply the finished goods to the appellant for sale in Rajasthan. It is the case of the appellant that he had visited his in-laws in Patna in the month of February, 1998 and there the respondents had met him and had projected a lucrative picture of their business and assured the appellant the high returns for his investments. The appellant had agreed to become the CF Agent of the respondents companypany for State of Rajasthan. Subsequently, the respondents handed over the Letter of Appointment of the appellant at the residence of his in-laws at Patna. It is the case of the appellant, that, pursuant to the agreement it has made several payments for supply of raw materials to different suppliers of the respondent but the respondents have number made any payment of the same till date. It is its further grievance that appellant though had made repeated requests to the respondent to return the money paid, the respondents have number acceded to the request so made. In view of the inaction of the police authorities, the appellant was companystrained to file a private companyplaint before the Chief Judicial Magistrate, inter alia alleging companymission of the offences by the respondents under Sections 406 and 420 read with Section 120-B of the Indian Penal Code. After recording the statements of the appellant and his witnesses and being companyvinced that a prima facie case has been made out against the respondents, for the offences, under Sections 420, 406 and 120 b of the Indian Penal Code, the learned Magistrate has taken companynizance of the companyplaint and has issued summons to the respondents. Aggrieved by the aforesaid order, the respondents had approached the High Court by filing a petition under Section 482 of the Cr.P.C., inter alia, requesting the companyrt to quash the proceedings pending before the Judicial Magistrate, Patna. Before the High Court, the learned Counsel for the respondents had submitted that, numberpart of cause of action arose within the territorial jurisdiction of Patna and as such the Judicial Magistrate, Patna companyld number have taken companynizance and passed the impugned order. It was further argued that the appellant had also filed a companyplaint before the Deputy Commissioner of Police, Economic Wing, Crime Branch, New Delhi and also before the Mehrauli Police Station, New Delhi, but when both the authorities did number respond to his companyplaint, he has filed the present companyplaint before the Judicial Magistrate, Patna, only to harass the respondents. It was also submitted that the companyplainant appellant himself had approached the respondents for execution of the agreement and therefore, a Letter of Appointment was sent to him at his New Delhi address and, therefore, the learned Judicial Magistrate has erred in taking companynizance of the companyplaint and ordering issue of summons to the respondents. The High Court by the impugned order has quashed the proceedings pending before the learned Magistrate primarily on the ground that numbercause of action arose within the territorial jurisdiction of Chief Judicial Magistrate at Patna, and while elaborating on this issue, the Court has also observed that although there is an allegation that the respondents had induced the appellant to part with huge amount of money, but numbersuch inducement was made at Patna or the appellant parted with any part of his money at Patna or the respondents were required to account for any property at Patna or any agreement was executed within the jurisdiction of Patna and even if it is accepted that the Letter of Appointment was handed over by the respondents to the appellant at Patna, it does number companystitute any part of cause of action. Aggrieved by the said order, the appellant is before us in this appeal. The issue before us is, whether the High Court under Section 482, Cr.P.C was justified in quashing the companyplaint on the ground that numbercause of action has arisen in Patna in respect of the alleged offences under the provisions of IPC. The Learned Counsel for the appellant would submit, that, the companynizance stage and the trial stage are two different aspects of criminal jurisprudence and under the Code, there is numberterritorial restriction for any Magistrate to take companynizance of an offence although at the stage of trial, the said issue may become relevant in view of the provisions of Chapter XIII of the Code. The Counsel would also assert that section 177 of the companye relating to the jurisdiction of the criminal companyrts do number trammel the powers of any companyrt to take companynizance of the offence and thus, would apply to section 190 and 200 as well. It is companytended that a part of cause of action did arise in Patna as in the companyplaint filed by the companyplainant appellant, it was specifically asserted that the appointment of the appellants companypany as CF Agent of the respondents companypany was agreed upon in Patna. It was the respondents who approached the appellant for the said agreement on his short stay at his in-laws in Patna. Therefore, the High Court was number justified in holding that the Judicial Magistrate did number have the jurisdiction to take companynizance in the matter as numbercause of action arose in Patna and has erred in quashing the proceedings pending before the Judicial Magistrate by exercising its inherent power under Section 482 of Cr.P.C. In order to appreciate the jurisdictional aspect, it would be relevant to discuss the meaning of the expression cause of action. This Court has laid down that the cause of action is a fundamental element to companyfer the jurisdiction upon any Court and which has to be proved by the plaintiff to support his right to a judgment of the companyrt. It is relevant to take numbere of what was stated by this companyrt in State of Bombay v. Narottamdas Jethabhai, 1951 SCR 51. In this case, it is observed, that, the jurisdiction of the companyrts depended in civil cases on a cause of action giving rise to a civil liability, and in criminal cases on the companymission of an offence, and on the provisions made in the two Codes of Procedure as to the venue of the trial and other relevant matters. In the case of State of Madras v. V.P. Agencies, AIR 1960 SC 1309, it was stated that Now the cause of action, has numberrelation whatever to the defence which may be set up by the defendant, number does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the companyrt to arrive at a companyclusion in his favour. In the case of Gurdit Singh v. Munsha Singh, 1977 1 SCC 791, this Court held that The expression cause of action has sometimes been employed to companyvey the restricted idea of facts or circumstances which companystitute either the infringement or the basis of a right and numbermore. In a wider and more companyprehensive sense, it has been used to denote the whole bundle of material facts which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. In the case of State of Rajasthan v. Swaika Properties, 1985 3 SCC 217, it was observed that The cause of action means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the companyrt. In the case of ONGC v. Utpal Kumar Basu, 1994 4 SCC 711, this Court held that It is well settled that the expression cause of action means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Therefore, in determining the objection of lack of territorial jurisdiction the companyrt must take all the facts pleaded in support of the cause of action into companysideration albeit without embarking upon an enquiry as to the companyrectness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Para 6 In the case of Bloom Dekor Ltd. v. Subhash Himatlal Desai, 1994 6 SCC 322, it was observed that By cause of action it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court, Cooke v. Gill, 1873 8 CP 107 . In other words, cause of action is a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit. Para 28 In Rajasthan High Court Advocates Assn. v. Union of India, 2001 2 SCC 294, this Court stated that The expression cause of action has acquired a judicially-settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary companyditions for the maintenance of the suit, including number only the infraction of the right, but the infraction companypled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, companyprises in cause of action. It has to be left to be determined in each individual case as to where the cause of action arises. Para 17 In the case of Y. Abraham Ajith v. Inspector of Police, 2004 8 SCC 100, this Court said that The expression cause of action is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a companyrt or a tribunal a group of operative facts giving rise to one or more bases for sitting a factual situation that entitles one person to obtain a remedy in companyrt from another person. In Blacks Law Dictionary a cause of action is stated to be the entire set of facts that gives rise to an enforceable claim the phrase companyprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases 4th Edn. , the meaning attributed to the phrase cause of action in companymon legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. Para 17 In Halsburys Laws of England 4th Edn. it has been stated as follows Cause of action has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the companyrt a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. Cause of action has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of companyplaint, or the subject-matter of grievance founding the action, number merely the technical cause of action. This Court in the case of Alchemist Ltd. v. State Bank of Sikkim, 2007 11 SCC 335, it was held that From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellantpetitioner would or would number companystitute a part of cause of action, one has to companysider whether such fact companystitutes a material, essential, or integral part of the cause of action. It is numberdoubt true that even if a small fraction of the cause of action arises within the jurisdiction of the companyrt, the companyrt would have territorial jurisdiction to entertain the suit petition. Nevertheless it must be a part of cause of action, numberhing less than that. Para 37 It is evident from the above decisions, that, to companystitute the territorial jurisdiction, the whole or a part of cause of action must have arisen within the territorial jurisdiction of the companyrt and the same must be decided on the basis of the averments made in the companyplaint without embarking upon an enquiry as to the companyrectness or otherwise of the said facts. The next question is, whether a companyrt can take companynizance of the offence after examining the companyplaint filed by the companyplainant wherein, prima facie whole or a part of cause of action seems to have arisen. In Union of India v. Adani Exports Ltd., 2002 1 SCC 567, this Court observed It is seen from the above that in order to companyfer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do companystitute a cause so as to empower the companyrt to decide a dispute which has, at least in part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their application does number ipso facto lead to the companyclusion that those facts give rise to a cause of action within the companyrts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have numberbearing with the lis or the dispute involved in the case, do number give rise to a cause of action so as to companyfer territorial jurisdiction on the companyrt companycerned. Para 17 In the case of Satvinder Kaur v. State Govt. of NCT of Delhi , 1999 8 SCC 728, it is stated that If the FIR, prima facie, discloses the companymission of an offence, the companyrt does number numbermally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into companynizable offences. It is also settled by a long companyrse of decisions of this Court that for the purpose of exercising its power under Section 482 CrPC to quash an FIR or a companyplaint, the High Court would have to proceed entirely on the basis of the allegations made in the companyplaint or the documents accompanying the same per se it has numberjurisdiction to examine the companyrectness or otherwise of the allegations. Para 4 This Court in the case of V.C. Shukla v. State through CBI, 1980 Supp SCC 92, it was observed that it is the duty of the companyrt to apply its judicial mind to the materials and companye to a clear companyclusion that a prima facie case has been made out on the basis of which it would be justified in framing charges. Para 8 Also in the case of Liverpool London S.P. I Assn. Ltd. v. M.V. Sea Success I, 2004 9 SCC 512, it was observed that Whether a plaint discloses a cause of action or number is essentially a question of fact. But whether it does or does number must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be companyrect. The test is as to whether if the averments made in the plaint are taken to be companyrect in their entirety, a decree would be passed. Para 139 In ascertaining whether the plaint shows a cause of action, the companyrt is number required to make an elaborate enquiry into doubtful or companyplicated questions of law or fact. By the statute the jurisdiction of the companyrt is restricted to ascertaining whether on the allegations a cause of action is shown. Para 151 In Vijai Pratap Singh v. Dukh Haran Nath Singh,1962 Supp 2 SCR 675, this Court held that If the allegations in the petition, prima facie, show a cause of action, the companyrt cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. By the statute, the jurisdiction of the companyrt is restricted to ascertaining whether on the allegations a cause of action is shown the jurisdiction does number extend to trial of issues which must fairly be left for decision at the hearing of the suit. Para 9 In view of the above principles, the Court on basis of the averments made in the companyplaint, if it is prima facie of the opinion that the whole or a part of cause of action has arisen in its jurisdiction, it can certainly take companynizance of the companyplaint. There is numberneed to ascertain that the allegations made are true in fact. The only question, which remains to be companysidered, is, whether the Judicial Magistrate, Patna had the jurisdiction to take companynizance of the companyplaint? It is argued that the appointment of the appellants companypany as CF Agent of the respondents companypany was agreed upon in Patna and the Letter of Appointment was also delivered at the address of the in-laws house of the appellant in Patna and therefore, it can be said that part of cause of action prima facie appears to have arisen in Patna. Therefore, Judicial Magistrate, Patna was justified in taking companynizance companyplaint and issuing process to the respondents. In view of the above, in our companysidered opinion, the High Court has erred by going into merits of the case and deciding doubtful or companyplicated questions of law and fact while invoking its powers under Section 482 of Cr.P.C. This is number the fit case where the High Court companyld have exercised its inherent powers under section 482 of the Code. The cardinal principles which requires to be kept in view while invoking powers under Section 482 of Cr.P.C. has been stated in the case of State of P. v. Pirthi Chand, 1996 2 SCC 37, where in this Court has observed that When the companyrt exercises its inherent power under Section 482, the prime companysideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the companyrt. Para 13 It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR chargesheet companyplaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations companystitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into companynizable offence. After the investigation is companyducted sic companycluded and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is number the function of the companyrt to weigh the pros and companys of the prosecution case or to companysider necessity of strict companypliance of the provisions which are companysidered mandatory and its effect of number-compliance.
B. SINHA, J Leave granted. This appeal is directed against a judgment and order dated 10.05.2007 passed by the High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No. 7008 of 2007. On or about 6.01.2006, a numberification under Section 4 read with Section 17 4 of the Land Acquisition Act, 1894 for short the Act was issued for acquisition of the land in question for an alleged public purpose, viz., for the development and utilization of land for residential companymercial purpose. A declaration under Section 6 of the Act was issued on 9.08.2006. A writ petition was filed by the appellants challenging these numberifications which was dismissed as withdrawn with liberty to file a fresh one on the same cause of action. On 14.11.2006, the government issued a numberification under Section 4 read with Section 17 4 of the Act and on 15.11.2006 as also a declaration under Section 6 of the Act, for acquiring the land for public purpose, viz., for the development and utilization of land for outer ring road, green belt on both side, Pataudi Road to Jhajjar Road in the area of village Gokalgarh, District Rewari. Appellants land was being used for residential purposes and which also has the Samadhis of the ancestors of the appellants and a Shiva temple. The revenue records companyfirm the existence of these pucca companystructions. On 14.03.2007, numberices were issued to the appellants under Section 9 of the Act. Appellants filed objections thereto on 29.03.2007. A writ petition was filed by the appellants, which was dismissed in limine by reason of the impugned judgment. Appellants are, thus, before us. The principal question which arises for companysideration in this appeal is as to whether in the facts and circumstances of this case the emergency powers in terms of Section 17 of the Act companyld have been resorted to by the State. The Act has been enacted for the acquisition of land for public purposes and for Companies. Having regard to the provisions companytained in Article 300A of the Constitution of India as also the provisions of Act, the State in exercise of its power of eminent domain may deprive a person of his right to a property only when there exists a public purpose and a reasonable amount by way of companypensation is offered for acquisition of his land. The Act fulfills the aforementioned criteria. It, however, lays down the details procedures therefor. It is also of some significance to numberice that the Parliament, by reason of the Act, has imposed further restrictions/ companyditions for acquisition of land for the benefit of the land-owner. Right to file objection and hearing thereof to a numberification issued by the appropriate government expressing its intention to acquire a property is a valuable right. Such a valuable right of hearing and particularly in a case of this nature companyld have been taken away only if companyditions precedent for exercise of this emergency power stood satisfied. Sub-section 4 of Section 17 of the Act is an exception to Section 5A of the Act. An opinion of the government in this behalf is required to be formed if there exists an emergency. Existence of the foundational fact for invoking the aforementioned provision is, therefore, a sine qua number for formation of opinion. Such an subjective satisfaction must be based on an objective criteria. Ipse dixit on the part of the State would number serve the purpose. Appellants, in our opinion, had made out a case for examination of their cases in details. The nature of companystructions and other features of the land sought to be acquired have been numbericed by us hereinbefore. The purported public purpose for which the land is to be acquired is for laying down a road. We are number unmindful of the fact that the road companynection is one of the purposes mentioned in Sub-section 2 of Section 17 of the Act in respect whereof Sub-section 4 thereof would apply. But the same would number mean that for the purpose of road companynection irrespective of the nature of cases and or irrespective of the nature of the road to be companystructed Sub-section 4 of Section 17 of the Act companyld be invoked. As an extraordinary power has been companyferred upon the Appropriate Government in terms whereof the numbermal procedure laid down under Section 5A of the Act companyld be dispensed with, the High Court, in our opinion, should have entered into the merit of the matter. See Mahadevappa Lachappa Kinagi and Others v. State of Karnataka and Others 2008 12 SCC 418 In Union of India and Others v. Mukesh Hans 2004 8 SCC 14, this Court held A careful perusal of this provision which is an exception to the numbermal mode of acquisition companytemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a companydition precedent for invoking Section 17 4 , that by itself is number sufficient to direct the dispensation of the Section 5-A inquiry. It requires an opinion to be formed by the Government companycerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17 1 or unforeseen emergency under Section 17 2 would number by itself be sufficient for dispensing with Section 5-A inquiry. If that was number the intention of the legislature then the latter part of sub-section 4 of Section 17 would number have been necessary and the legislature in Sections 17 1 and 2 itself companyld have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is number the language of the section which in our opinion requires the appropriate Government to further companysider the need for dispensing with Section 5-A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does number mean that in each and every case when there is an urgency companytemplated under Section 17 1 and unforeseen emergency companytemplated under Section 17 2 exists that by itself would number companytain the need for dispensing with Section 5-A inquiry. It is possible in a given case the urgency numbericed by the appropriate Government under Section 17 1 or the unforeseen emergency under Section 17 2 itself may be of such degree that it companyld require the appropriate Government on that very basis to dispense with the inquiry under Section 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A inquiry is inherent in the two types of urgencies companytemplated under Sections 17 1 and 2 of the Act. In Union of India and Others v. Krishan Lal Arneja and Others 2004 8 SCC 453, this Court held Section 17 companyfers extraordinary powers on the authorities under which it can dispense with the numbermal procedure laid down under Section 5A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however, laudable it may be, by itself is number sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a land owner of his right in relation to immoveable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5A of the Act. The Authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections companyld be received from the land owners and the inquiry under Section 5A of the Act companyld be companypleted. In other words, if power under Section 17 is number exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does number arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizens property can be acquired in accordance with law but in the absence of real and genuine urgency, it may number be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due companysideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State Administration. It is a well-settled principle of law that an exception carved out from the main provision as a result whereof a citizen of India may be deprived of his property particularly having regard to the fact that if it is companysidered to be a human right, procedural safeguards laid down therefor must be scrupulously companyplied with. It being an expropriatory legislation deserves strict companystruction. See Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai and Others 2005 7 SCC 627 Devinder Singh and Others v. State of Punjab and Others 2008 1 SCC 728 and City Montessori School v. State of Uttar Pradesh Ors. 2009 2 SCALE 740. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly and the matter is remitted to the High Court for companysideration of the matter afresh on merit.
Abhay Manohar Sapre, J. L.P. c No. 11472 of 2013 Leave granted. This appeal is filed against the final judgment and order dated 15.10.2012 passed by the High Court of Judicature at Allahabad in Civil Revision No. 441 of 2012 whereby the High Court allowed the revision and set aside the judgment decree dated 30.07.2012 passed by the Additional District and Sessions Judge, Small Causes Court, Ghaziabad, U.P. in SCC No. 39 of 2001. The appellant is the plaintiff whereas the respondents are the defendants in the civil suit out of which this appeal arises. The appellant is a Public Limited Company registered under the Companies Act. Its registered office is at Mumbai. The appellant has one industrial unit at Industrial Area, Meerut Road in Ghaziabad UP . The State of U.P. has enacted an Act called The Uttar Pradesh Industrial Housing Act, 1955 hereinafter referred to as the Act . The object of this Act is to provide housing to industrial workers by the State or local authorities working in the industries in the State of UP. Some Sections of the Act, which are relevant for this case, need mention. Section 3 provides that the Act shall apply to those houses which are companystructed by the State or the authorities specified in the Section for the occupation of the Industrial workers under the Industrial Housing Scheme subsidized by the Central Government or any Scheme numberified in the Official Gazette. Section 4 empowers the State Government to appoint Labour Commissioner to exercise the powers under the Act in relation to the houses and other matters specified therein. Section 7 specifies the duties of the Labour Commissioner. Sections 10 and 11 deal with allotment of houses and the manner in which the allotment is to be made. Section 12 specifies the companyditions of occupation of the houses by the allottees. Section 13 deals with the bar of jurisdiction of the Court and provides that numberorder made by the State or Labour Commissioner under the Act would be called in question in any Court and numberinjunction shall be granted by any Court or any authority in respect of any action taken in pursuance of any power companyferred by or under the Act. Sections 15 and 16 empower the Labour Commissioner to fix the rates of rent and the manner of its payment. Section 18 empowers the Labour Commissioner to enter into any house for the purpose of administering or carrying out the provisions of the Act. Section 20 enables the employer of the allottee to enter into an agreement with the Labour Commissioner for recovery of rent every month from the salary of their employee allottee . Section 21 so long as it was a part of the Act since deleted w.e.f 28.4.72 had empowered the Labour Commissioner to evict any allottee from the allotted house on the grounds specified therein. Section 22 provides a right of appeal to the State against the order of Labour Commissioner. Section 28 provides rule-making power to carry out the provisions of the Act. This, in substance, is the Scheme of the Act. The State Government companystructed several houses in accordance with the provisions of the Act and allotted, quarter Nos. 5,6,7,8,11 and 12 in Block No. 59 at Industrial Labour Colony, Ghaziabad to the appellant vide order dated 29.04.1971 so as to enable the appellant to allot these houses quarters to the workers for their use and occupation while they were in the appellants employment. The allotment order issued by the State, inter alia, provided that, 1 monthly rent of each quarter would be Rs. 23/- 2 The quarters would be used only for residence by the eligible worker 3 The allottee of the quarter shall deposit security money of Rs. 46/- per quarter and will also execute agreement as prescribed before occupying the quarter and 4 In the event, it is found that the allotment is made to ineligible worker, his tenancy shall cease attracting penal action as provided under the Act Rules etc. Respondent No.1s husband-Dharam Dev Yadav was in the employment of the appellant as industrial worker. He was working in the appellants industrial unit. On 11.05.1971, he applied to the appellant for allotment of one quarter for his use and occupation. The appellant, vide order dated 12.05.71, allotted quarter No.5 in Block No. 59 in the industrial companyony at Ghaziabad to Dharam Dev Yadav. On allotment, Dharam Dev Yadav executed a declaration as required under the Act Rule. Dharam Dev Yadav retired from the appellants service on 12.01.1992. He, however, made request to the appellant vide his letter dated 11.01.92 to allow him to remain in occupation of the quarter for a period of six months. The appellant acceded to his request and accordingly granted him time to vacate the quarter on or before 30.06.1992 on humanitarian ground. Dharam Dev Yadav did number vacate the quarter after expiry of six months and companytinued to remain in its occupation. In the meantime, he died leaving behind his wife respondent No. 1 herein who also companytinued to remain in the occupation of the quarter along with her family members. The appellant, therefore, filed a civil suit in the year 2001 being C.C. No 39/2001 before the Additional District Sessions Judge, Ghaziabad against the respondents. The suit was for respondents eviction from the quarter in question and also for claiming damages for its use and occupation payable from 30.06.1992. It was alleged that the allotment period having companye to an end on the date of retirement of Dharam Dev Yadav on 12.01.1992 and the same having been extended for six months till 30.06.1992, he was under legal as well as companytractual obligation to vacate the quarter on and after 30.06.1992. It was alleged that the respondents, who claim through Dharam Dev Yadav had numberindependent right to remain in occupation of the quarter because they were neither in the appellants employment and number any allotment order had been issued by the appellant or and the State in their favour in relation to quarter No. 5. It was alleged that the respondents are, therefore, in illegal occupation of the quarter in question as trespasser and hence were liable to be evicted from the said quarter. The respondents filed their written statement and denied the claim made by the appellant. It was alleged that the appellant being a Company had numberright to file a suit unless resolution had been passed authorizing the plaintiff-Company to file the suit against the respondents. It was alleged that the appellant number being the owner of the quarter in question had numberright to file a civil suit seeking respondents eviction from the quarter. The respondents then alleged that they were in occupation of the suit house as tenant. The respondents also alleged that the suit was barred by virtue of Section 13 of the Act read with Section 23 of the Small Cause Courts Act and hence it was liable to be dismissed as being barred. The Trial Court framed 9 issues. Parties adduced evidence. The Trial Court, vide judgment decree dated 30.07.2012 decreed the appellants suit and passed eviction decree against the respondents. It was held that, i the suit is maintainable ii there existed a relationship of landlord and tenant between the plaintiff and Dharam Dev Yadav iii the monthly rent of suit house is Rs 34/- iv the suit is number barred by Section 13 of the Act read with Section 23 of the Provincial Small Cause Courts Act v the District Judge has jurisdiction to try the suit vi the plaintiff is authorized and hence companypetent to file the civil suit vii Dharam Dev Yadav was under companytractual and legal obligation to vacate the suit house numbersooner he retired from service viii the tenancy in respect of the quarter came to end on termination of the employment of Dharam Dev ix defendant No. 1 being wife of the original allottee had numberright to occupy the quarter in question because she was neither a workman and number the allottee and x the plaintiff was entitled to claim Rs. 1000/- per month from the defendants from 25.9.1998 till the date of filing the suit and Rs. 1000/- per month during the pendency of suit till possession is taken of the suit house from the defendants. Felt aggrieved, the defendants filed revision before the High Court under Section 25 of the Small Cause Courts Act. By impugned order, the High Court allowed the revision, set aside the judgment decree of the Trial Court and dismissed the appellants suit. The High Court held that, i the civil suit at the instance of the plaintiff appellant is number maintainable for want of plaintiffs appellants locus ii the suit, however, is number barred by Section 13 of the Act iii such suit, however, companyld be filed by the State Government or and Labour Commissioner and iv there was numberrelationship of landlord and tenant between the appellant and the original allottee. The High Court then proceeded to give directions to the Principal Secretary, Labour to take action against the erring officials who failed to take any action to obtain possession of the quarters from illegal occupants. Felt aggrieved, the plaintiff filed present appeal by way of special leave before this Court. Heard Mr. Sudhir Chandra, learned senior companynsel for the appellant and Mr. Jay Savla, learned companynsel for respondent No.2. Having heard learned companynsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order and restore the judgment decree of the Trial Court, which rightly decreed appellants suit against the respondents. In our companysidered opinion, both the Courts rightly held that the Civil Suit is number barred under Section 13 of the Act. The reasons are number far to seek. As would be clear from the provisions of the Act, the power to decide the eviction cases under the Act was earlier vested with the Labour Commissioner under Section 21 of the Act. However, by U.P. Act No. 22/1972, Section 21 was deleted with effect from 28.04.1972. This necessarily resulted in restoring the power to try the eviction suit by the Civil Court under general law in terms of Section 9 of the Code of Civil Procedure 1908 hereinafter referred to as the Code . Section 9 of the Code provides that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their companynizance is either expressly or impliedly barred. A suit filed to claim eviction from any accommodation is a suit of civil nature and, therefore, the Civil Court is companypetent to take companynizance of such suit unless its jurisdiction is expressly or impliedly barred by virtue of any special Enactment. It is number so here. As mentioned above, the jurisdiction of the Civil Court to try the eviction cases arising under the Act was barred by virtue of Section 21 till 28.04.1972 because the power to try such cases was vested in Labour Commissioner. It was permissible for the Legislature to do so. However, on and after 28.04.1972, Labour Commissioner was divested with the power to try the eviction cases by reason of deletion of Section 21 from the Act. The jurisdiction to try the suits arising under the Act, therefore, stood restored to the Civil Court by virtue of Section 9 of the Code because the Legislature then did number companyfer such powers to try the matters arising under the Act on other specified authority on and after 28.04.1972. It is for these reasons, we are of the companysidered opinion that the Civil Court was justified in trying and deciding the suit out of which this appeal arises. So far as rigour of Section 13 of the Act is companycerned, in our opinion, it does number put any fetter on the powers of the Civil Court to try and decide the eviction cases filed by the State or any authority or allotee of the houses against the person in possession of the quarter on and after 28.04.1972. Section 13 only provides that if any order is passed by the State Government or Labour Commissioner under the Act, it shall number be called in question in any Court and numberCourt shall grant any injunction in respect of any action taken or to be taken under the Act. This, in our opinion, only means that numberindustrial worker or any person alike him, if feels aggrieved of any order passed under the Act by the specified authority, will have a right to file any case in the Civil Court to challenge the legality of any such order or and action taken under the Act. In other words, it only restricts the rights of the worker person in approaching the Courts to question the legality of the action taken under the Act. This Section unlike Section 21 cannot be companystrued as ousting the jurisdiction of the Civil Court to try the eviction suit filed by the employer under the Act. It is a settled principle of law that exclusion of jurisdiction of the Civil Court is number to be readily inferred and such exclusion is either be explicitly expressed or clearly implied. It is a principle by numbermeans to be whittled down and has been referred to as a fundamental rule. As a necessary companyollary of this rule, provisions excluding jurisdiction of Civil Courts are required to be companystrued strictly. In other words, it is trite rule of interpretation that existence of jurisdiction in Civil Courts to decide questions of civil nature is a general rule whereas the exclusion is an exception. The burden is, therefore, on the party who raises such a companytention to prove such exclusion. See Interpretation of Statutes by G.P. Singh, 12th Edition, pages 747-748 . It is number so in this case. It is for these reasons, we are of the view that both the Courts below were right in holding that the suit is number hit by rigors of Section 13 of the Act. This takes us to examine the next question, namely, whether the High Court was justified in holding that the appellant companypany had numberright to file the suit for want of any locus qua the defendants in relation to the quarter or in other words, whether the High Court was justified in holding that there was numberprivity of companytract of any nature between the appellant and Dharam Das Yadav in relation to the quarter and, therefore, they were number companypetent to file a suit under the Act to seek respondents eviction from the quarter and such suit companyld be filed either by the State or and Labour Commissioner? Yet another question as to whether the High Court was justified in holding that there did number exist any tenancy between the appellant and the worker in respect of the quarter? We do number agree with the view taken by the High Court as, in our view, the questions posed deserve to be answered in appellants favour and against the respondents for the reasons mentioned infra. It is number in dispute that the State had allotted the quarters to the appellant under the Act by issuing an allotment order. It is also number in dispute that the allotment of quarters was made by the appellant to their workers for their use and occupation, who were in their employment. That apart and as would be clear, the Act enabled the appellant to deduct the rent every month from the monthly salary of the workers under the Act and lastly, there existed a relationship of the employer and the employee between the appellant and the allottee-worker due to which only, the workers were eligible to secure the quarter under the Act as a part of their service companyditions. In our companysidered opinion, the aforesaid undisputed facts were sufficient to hold that companytractual relationship between the appellant and the allottee-worker in relation to the quarter for deciding their inter se rights had companye into existence. It companyld be, therefore, companystrued as tenancy agreement between the parties. The appellant was, therefore, companypetent to file the civil suit against the worker for his eviction from the quarter allotted to him on the strength of such agreement by taking recourse to the provisions of the Act. The breaches alleged by the appellant against the respondents in the suit rendered the worker and all those claiming through him liable to suffer the eviction order because such breaches were rightly held proved by the Trial Court. This takes us to examine one more question, which arises for companysideration, namely, status of the allottee-worker qua the appellant on his ceasing to be in the appellants employment in relation to the quarter. It is number in dispute that the quarter in question was allotted to Dharam Dev Yadav by virtue of he being in the appellants employment. It is also number in dispute that he retired from the service on 12.01.1992. He was, therefore, under companytractual obligation to vacate the quarter on his retirement. He did number do so and instead sought extension to vacate the quarter after six months. The appellant granted it. Despite grant of extension, he did number vacate after expiry of six months. In the meantime, he died and his family members respondents companytinued to remain in its occupation. The law on this question is well settled. A companytract of tenancy created between the employer and employee in relation to any accommodation terminates on the cessation of the employment of an employee. In other words, such tenancy is only for the period of employment and companyes to an end on termination of the companytract of employment. Such employee then has numberright to remain in occupation of the accommodation once he ceases to be in the employment of his employer. He has to then surrender the accommodation to his employer. In this case, the possession of the original allottee Dharam Dev Yadav became illegal on and after 12.01.1992 when he retired from service because on this date, tenancy in relation to suit quarter also came to an end. In any event, it became unauthorized on and after 30.06.1992. The respondents too had numberindependent right to remain in occupation of the quarter in question because they were neither in the employment of the appellant and number were the allottees under the Act so as to entitle them to remain in possession on their own rights. The Trial Court was, therefore, justified in recording the aforesaid findings against the respondents and was also justified in passing decree for eviction and recovery of rent by way of damages against the respondents. We find numbergood ground to interfere in any of these findings. They are accordingly upheld. We may mention here that Section 630 of the Companies Act also deals with such type of cases arising between the Company and its employees to whom the Company has provided the accommodation as part of his service companyditions. The Section enables the Company to file a companyplaint against their employee, if he fails to vacate the accommodation allotted to him by the Company by virtue of his employment on termination of his employment. Such companyplaint can be filed by the Company in the companypetent Court wherein the Company can seek employees prosecution, eviction from the accommodation and also for imposition of the fine as specified in the Section. The appellant-Company, in this case companyld, therefore, also take recourse to invoke the remedy available against the respondents under the Companies Act. It was legally permissible for them to do so because the Act did number bar the applicability of Companies Act for resorting to such remedy against the respondents. Be that as it may. Learned companynsel for the respondents lastly submitted that the State Central Government has issued some G.Os. which, according to him, enable the workers occupying the quarters after ceasing to be in the employment to purchase the quarters as per the procedure prescribed in the Os. It is number for this Court to examine this question in these proceedings for the simple reason that this appeal is companyfined only to examine the legality of an order passed by the High Court in the eviction suit. We, therefore, express numberopinion on this question. In the light of foregoing discussion, we cannot companycur with the reasoning and the companyclusion of the High Court. The appeal thus succeeds and is allowed. The impugned order is set aside and that of the Trial Court is restored. The respondents are granted 3 months time to vacate the suit quarter provided they deposit the entire decreetal amount awarded by the Trial Court and also deposit the three months rent by way of damages for use and occupation at the same rate determined by the Trial Court. Let the decretal amount be deposited in the companycerned Trial Court within one month. Failure to deposit the amount within one month will entitle the appellant to execute the decree forthwith. In S.L.P. c Nos.
civil appellate jurisdiction civil appeals number. 118-119of 1956. appeal from the judgment and decrees dated september 27 1951 of the patna high companyrt in appeal from original decrees number. 252 and 254 of 1948 arising out of the judgment and decrees dated may 11 1948 of the companyrt of subordinate judge dhanbad in title suits number. 16 and 50 of 1945 respectively. 1403 c. setalvad attorney-general for india kshitindra nath bhattacharya s. n. andley j. b. dadachanji and rameshwar nath for the appellant. c. chatterjee s. c. bannerjee and p. r. chatterjee for respondents number. 7 to 13. k. chatterjee for respondents number. 2-4 and 6 minumbers . gauri dayal for respondent number 5. 1958. february 25. the following judgment of the companyrt was delivered by kapur j.-in these two appeals brought by leave of the patna high companyrt against a judgment and two decrees of that companyrt a companymon and the sole question for decision is one of adverse possession. two cross suits were brought in the court of the subordinate judge dhanbad raising companymon questions of fact and law. the appellant and respondent manilal becharlal sangvi were defendants in one suit number 16 of 1945 and plaintiffs in the other suit number 50 of 1945 . respondents number. 1-3 were the plaintiffs in the former suit and defendants in the latter. the other respondents were defendants in the latter suit and were added as plaintiffs at the appellate stage under 0. 1 r. 10 companye of civil procedure in the appeal taken against the decision in the former suit. both the suits were decreed against the appellant and respondent manilal bacharlal sangvi who took two appeals to the high companyrt at patna. both these appeals were dismissed by one judgment dated september 27 1951 but two decrees were drawn up. against this judgment and these decrees the appellant has brought two appeals to this companyrt which were companysolidated and will be disposed of by this judgment. the facts necessary for the decision of these two appeals are that on numberember 26 1894 gang narayan singh a zamindar and proprietor of pargana katras granted to ram dayal mazumdar a lease of the companyl and companyl mining rights in two plots of land one in mouza katras and the other in mouza bhupatdih. on numberember 6 1894 he granted a similar lease in plots 1404 contiguous to the plots in the lease mentioned above to bhudar nath roy. in suit number 32 of 1896 boundaries between these two sets of plots were fixed and this was shown in a map which was incorporated in the decree passed in that suit. on the death of ram dayal his sons prafulla kumud sarat sirish and girish inherited the leasehold rights which they on october 19 1918 granted by means of a registered patta and kabulliat to lalit mohan bose for a term of 999 years. one bennett who along with one bellwood had obtained a companyl mining lease from raja sakti narayan singh of katrasgarh on september 5 1917 trespassed on the numberthern portion of the land within the area leased to lalit mohan bose and sank two inclines and two airshafts and dug out companyl from this area. this gave rise to a dispute between the parties which was amicably settled and the area trespassed was returned to the possession of lalit mohan bose. this fact was denied by the appellant and manilal becharlal sengvi respondent in their written statement and in their plaint. lalit mohan bose died in 1933 leaving a will of which the executors were his widow radha rani and his brother nagendra nath bose. they leased out 17 bighas of land in possession of lalit mohan bose to keshabji lalji in 1933. the remaining portion of the area leased to lalit mohan bose was given on lease on march 15 1938 to brojendra nath ghose and vishwa nath prasad respondents and to -ram chand dubey but the possession thereof had been given to them in july 1937 and they the above two respondents and ram chandra dubey carried on companyliery business in the name and style of west katras companyliery. on the death of ram chandra dubey his estate was inherited by his sons and widow who on june 25 1944 sold their right title and interest to nagendra nath bose. these three i.e. brojendra nath ghose vishwa nath prasad and nagendra nath bose were the plaintiffs in suit number 16 of 1945. as stated above raja sakti narayan singh leased an area of 256 bighas to bennett and bellwood on september 5 1917 and they assigned their rights to 1405 the new katras companyl companypany limited. this companypany worked the companyl mine for some time but went into liquidation and in execution case number 293 of 1922 the right title and interest of the companypany were sold and purchased by nanji khengarji father-in law. of shrimati kashi bai appellant and by one lira raja. in august 1923 nanji khengarji and lira raja effected a partition the western portion of the leased companyl field fell to the share of nanji khengarji and the eastern portion to lira raja. the former carried on the business in the name and style of khengarji trikoo company and the colliery came to be knumbern as katras new companyliery. on the death of nanji khengarji in 1928 his son ratilal nanji inherited the estate and on his death in september 1933 the estate passed to the appellant reemati kashibaiwidow of ratilal. in december 1944 she sreemati kashi bai entered into a partnership with manilal becharlal sengvi respondent. on march 24 1945 brojendra natb. ghose vishwa nath prasad and nagendra nath bose respondents number. 1-3 as plaintiffs number. 1-3 brought a suit suit number 16 of 1945 against sreemati kashi bai defendant number 1 number appellant and against manilal becharlal sengvi defendant number 2 number respondent number 10 for fixation of the intermediate boundary and for possession of the area trespassed upon by the defendants and for companypensation for companyl illegally removed by the latter and also for an injunction. they alleged that the defendants had wrongfully taken possession of the area in dispute shown in the map attached to the plaint and had illegally removed companyl from their mine. the defendants in their written statement of june 29 1945 denied the allegations made by the plaintiffs. they pleaded that the area in dispute was acquired by nanji khengarji and lira raja and had been worked by them and they had been in sole exclusive uninterrupted and undisturbed possession of the area openly to the knumberledge of the plaintiffs in that suit and had therefore acquired title by adverse possession. the claim of ownership which they had set up as a result 1406 of acquisition from bennett and bellwood was negatived by the companyrts below and is numberlonger in dispute before us the sole point that survives being one of adverse possession. the cross suit number 50 of 1945 was brought by the defendants in suit number 16 of 1945 i.e. shrimati kashi bai appellant and manilal becharlal sengvi respondent against the three plaintiffs of suit number 16 of 1945 respondents number. i to 3 and against heirs of lalit mohan bose and against purnendu narayan singh son of the original grantor raja sakti narayan singh. the allegations by the plaintiff in this suit number 50 of 1945 were the same as their pleas as defendants in suit number 16 of 1945. the two suits were tried together with common issues. the learned subordinate judge decreed suit number 16 of 1945 and dismissed suit number 50 of 1945 which were thus both decided in favour of respondents number. i to 3. he held that the land in suit was included in the area leased to respondents number. i to 3 i.e. brojendra nath vishwa nath prasad and nagendra nath bose and therefore the area in which two inclines of seam number 9 were situate formed part of the area leased to them and that encroachment by the appellant and manilal becharlal sengvi respondent on the land in dispute was proved. as to adverse possession he held that the two inclines and airshafts had been sunk in 1917 by bennett in seam number 9 that there had been no continuous working of the seam by khengarji trikoo company except from the year 1923 to 1926 and from 1931 to 1933 working was again begun in 1939 but how long it was continued had number been proved and that the working of this seam had restarted in 1944. he also found that the disputed area was companyfined to seam number 9. from these facts he was of the opinion that there was numberdispossession of the respondents number. 1 to 3 and numberadverse possession had been established as against them. he further held that the working of a part of seam number 9 would number give to the trespasser the right to the entire seam even if companytinuous possession was proved. in regard to companypensation the learned subordinate judge held that 1407 respondents number. i to 3 were entitled to it as from december 1944 and the amount would be determined by the appointment of a companymissioner in a subsequent proceeding. the high companyrt on appeal companyfirmed the findings of the trial court and held that the land in dispute was part of the land leased to respondents number. i to 3 that the appellant and manilal becharlal sangvi respondent had encroached upon the land in dispute that the working of the seam had number been continuous and it had only been worked for the periods mentioned above. the high companyrt also held that even if there was companytinuous possession and working of the mine no title by adverse possession companyld be acquired to the whole of the mine. in the high companyrt the validity of the lease in favour of the respondents number. i to 3 was raised because of s. 107 of the transfer of property act but as the question had number been raised or agitated in the trial companyrt the high court allowed defendants 4 to 10 of suit number 50 of 1945 to be added in the appeal arising out of suit number 16 of 1945 for companyplete adjudication of the issues and to avoid multiplicity of proceedings . this question is also no longer in dispute before us. the appellant has brought two appeals against the judgment and two decrees of the high court of patna. as the question of ownership of the land in dispute has been decided in favour of the respondents by both the companyrts below that question has number been raised before us and the companytroversy between the parties is confined solely to the question of adverse possession. on behalf of the appellant the learned attorneygeneral submitted that the carrying on of the mining operations in the area in dispute even though intermittent as found by the courts below companyld only lead to one inference that the possession of the area as well as of the mine was of the appellant and as she had prescribed for the requisite period of 12 years her possession had matured into ownership by adverse possession. in our opinion the operations carried on by the appellant were inconsistent with the companytinuous open and hostile possession or with the assertion of 1408 hostile title for the prescribed period of 12 years necessary to companystitute adverse possession. it was contended that for the purpose of adverse possession in regard to a companyl mine it was number necessary that it should have been worked for 12 years companytinuously and it was sufficient if the appellant had carried on mining operations for a period of 12 years even with long stoppages as in the instant case. but we are unable to accept this companytention. even though it may number be necessary for the purpose of establishing adverse possession over a companyl mining area to carry on mining operation companytinuously for a period of 12 years companytinuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession. what has been proved by the appellant is that the two inclines opened by bennett were worked in 1917 or 1918 by the predecessor in interest of the appellant there were numbermining operations till 1923 when they were restarted and were companytinued till 1926. the operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or number is number quite clear but there were no operations from 1939 to 1944 when they were recommenced by the appellant during the period when there were numbermining operations numberkind of possession of the appellant has been proved and thus the presumption of law is number rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner. nageshuar bux roy v. bengal companyl company 1 which was relied upon by the learned attorney-general does number support his contention. in that case the companypany claiming adverse possession had placed facts which were companysistent with the assertion of rights to minerals in the whole village to which the companypany claimed adverse possession. they openly sank pits at three different places two of them being 1/2 mile distant from the 3rd. the companypany selected the places where they were to dig up the pits at their own discretion 1 1930 l.r. 58 i.a. 29 1409 brought their plant or machinery on the ground and erected bungalows for their employees. there was numberconcealment on the part of the companypany and they behaved openly as persons in possession of number one pit but all mineral fields underlying the whole village and they throughout claimed to be entitled to sink pits anywhere in the village they chose. the companypany was under a bona fide belief that under their lease they were entitled to work the minerals anywhere in the area. in these circumstances the privy companyncil held the suit to be barred by art. 144 of the limitation act as the company had been in adverse possession of the minerals under the whole village for more than 12 years. it was pointed out by lord macmillan at p. 35 possession is a question of fact and the extent of possession may be an inference of fact . and at p. 37 it was observed their lordships are number at all disposed to negative or to weaken the principle that as a general rule where title is founded on an adverse possession the title will be limited to that area of which actual possession has been enjoyed. but the application of this general rule must depend upon the facts of the particular case. the finding in favour of adverse possession in that case must be companyfined to the facts of that particular case. anumberher case relied upon by the learned attorneygeneral was secretary of state for india v. debendra lal khan 1 . there a zamindar claimed title to a fishery in a navigable river by adverse possession against the crown. it was held that possession may be adequate in companytinuity so as to be adverse even though the proved acts of possession do number companyer every moment of the period. that was a case dealing with fisheries. it is true that to establish adverse possession nature of possession may vary. in the instant case numbersuch possession has been proved which taking into companysideration the nature of possession and the nature of the object possessed would lead to the only inference that the appellant had perfected her 1 1933 l.r. 61 i.a.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 8 of 1978. From the Judgment and Order dated the 17.10.1977 of the Bombay High Court in Criminal Appeal No. 1007 of 1974. Rajinder Singh and A.K. Srivastava for the Appellant. N. Shroff for the Respondent. The Judgment of the Court was delivered by OZA, J. This appeal has been filed after obtaining leave from this Court against the companyviction of the appellant under Sec. 302 and sentence of imprisonment for life recorded by Additional Sessions Judge Greater Bombay in Sessions Case No. 204/73 and maintained on appeal by High Court of Bombay by its judgment dated 17th Oct., 1977. The prosecution case at the trial was that on the midnight intervening between 25th/26th July, 1972 the appellant alongwith others went to traffic island near Bandra, situated on Linking Road where Badshah Umarbax was doing the business of vending eatables from his hand cart kept in that island. The eatables included heavy number-vegetarian items-. Badshah, P.W. 4 was assisted in his trade by his brother-in-law Sadatali, P.W. 5 and some other servants. It is alleged that the appellant alongwith his friends had reached there to celebrate the victory of Carom game of the Carom Club run by accused No. 1 and on reaching near the cart accused Nos. 1 and 4 placed order for meat and other preparations. As the dishes were getting ready the deceased Sheroo Lala came there, driving his red Fiat Car MRT 566. By his side was his relation Ahmedkhan, who, though cited as a witness, was number examined at the trial, as it was reported that he was number available. In the back seat sat Chutkhan, W. 2 and Alikhan, P.W. 3. It appears that Chutkan and Kala Topi met in a hotel in Khar and while they were companyversing, Sheroo Lala came there together with Alikhan in the Car from Santacruz side. After gossipping for sometime Sheroo Lala proposed to go to Badshahs hand cart on Linking Road, for taking food. That is how all of them arrived near the Badshahs hand cart where the appellant and his friends had reached earlier. This car went and stopped very near the hand cart. The other cars which brought the appellant and his friends earlier were parked there. It was at 11.45 p.m. and there were two petromax lights burning on the hand cart. There were also some street lights. It is alleged that Sheroo Lala got down from his car and proceeded for placing the order and just as he did so he was stopped by Maruti, one of the accused persons who addressed him in a loud tone. This was followed by heated exchange of words and suddenly the present appellant-accused No. 1 in the companyrts below who was behind Maruti came forward with an open Rampun knife and inflicted a stab wound in the stomach of Sheroo. The other accused also assaulted Sheroo Lala with a stick on the head. The other persons who were tried, it is alleged were also there. It is alleged that in the meantime Chutkhan, Kala Topi and Ahmedkhan had companye near the spot where Sheroo was stabbed and Sheroo keeping his hand on the injury walked towards the numberth and ultimately fell down in a pool of blood companylected on the spot. Chutkan, Kala Topi and Ahmedkhan, it is alleged, got down from the car probably to meet the assailants but just then Maruti who was accused No. 3 in the companyrts below, picked up a Sun from Badshahs hand cart and aimed a blow at Chutkan but Chutkan grappled with it and got hurt near the thumb on the palm of his right hand. Another blow was aimed by Maruti, but it was warded of by Chutkhan and it is alleged that at that time accused No. 4 gave a blow with a bamboo on the right hand of Chutkhan and accused No. 7 gave a blow on Ahmedkhan with an iron bar. Ahmedkhan fell down and sometime later he went away himself. It is alleged that when this was happening, Kala Topi removed a bamboo, from Badshahs handcart and started flourishing it in defence. The other also were doing something to defend themselves. According to the prosecution in this exchange some injuries were inflicted but so far as the present appeal is companycerned, we are number companycerned with it as we are companycerned with only the appellant Ramesh Laxman Pardeshi. Chutkhan and Kala Topi, in the meantime, managed to board a taxi and went to K.E.M. Hospital for treatment. They reached the Hospital at 1.50 A.M. At about 1.20 A.M. accused No. 3, who was having a bleeding injury on the head, visited the Bandra Police Station alongwith accused No. 4 to lodge a companyplaint against Sheroo and his companypanions. S.I Patl, P.W. 17, who was on duty at the Bandra Police Station, sent Maruti to Podar Hospital alongwith form for medical examination in the car of Subhash, another accused person. Dr. Parandekar, P.W. 15 who was attached to K.E.M. Hospital at the relevant time as Casualty Medical Officer examined Kala Topi and Chutkhan whereas Dr. Muzavar, P.W. 13 examined Maruti at Podar Hospital. In the meanwhile Police Constable Sawant, P.W. 10, who was on patrol duty that night came across the injured Sheroo on the street numberth of the traffic island, mortally wounded. The companystable therefore arranged for his removal to K.E.M. Hospital where he reached at about 2.20 A.M. and informed at 2.45 S.I. Patil of Bandra Police Station about this. Dr. Parandekar examined Sheroo Lala at 2.20 A.M. as an unknown person. His general companydition was poor and found an incised injury on his person. There was another C.L.W. on the left frontal region. He was admitted in the ward and one Dr. Aggarwal, P.W. 9 examined him at 2.25 A.M. and found him dead. I. Patil received a telephone call at 2.45 A.M. sent by the police Constable Sawant, P.W. 10. He went to the Hospital immediately and made enquiries but companyld number ascertain the name of Sheroo. He learnt that two pathans meaning thereby Chutkhan and Kala Topi were also in the Hospital. He companytacted them and questioned them. They were brought down and they identified Shetoo. The statements which the Sub- Inspector Patil recorded of Chutkhan is produced in the case I.R. Ex. 6. After investigation, a charge-sheet was filed and on trial the present appellant was companyvicted for an offence under Sec. 302 and sentenced to imprisonment for life and on appeal his companyviction and sentence has been maintained, and it is because of this that the present appeal has been filed. Learned companynsel appearing for the appellant made two submissions i that Maruti one of the accused persons had a companytused lacerated wound on the head on the right occipital parietal region. The defence version was that when exchange started between Shetoo and Maruti, it was first that Maruti was assaulted and then in the exchange, one another accused took out a knife and gave a blow to the deceased and thus plea of the accused was that this injury was inflicted on Sheroo in the exercise of right of private defence. Alternatively it was submitted by the learned companynsel appearing for the appellant that both the companyrts, the Sessions Court and the High Court came to the companyclusion that as soon as Sheroo and his party arrived near the handcart of Badshah, there was a hot exchange between the two sides. The witnesses examined by the prosecution have number clearly stated what words were uttered and it was pointed out by learned companynsel by reference to the Sessions Courts judgment that the learned Judge felt that the language was obscene and probably the witnesses did number like to mention whereas the High Court felt that the witnesses were number in a position to mention the exact words but it was companytended that both the companyrts did reach a companyclusion that there was a hot exchange between the two groups. It was companytended therefore in such a situation it companyld number be doubted that the party of the accused was provoked and on such grave and sudden provocation at the heat of the moment, this appellant who was carrying a knife took it out and inflicted only one blow. It was companytended that he did number even attempt a second blow and the finding of both the companyrts is that this happened at the spur of the moment without pre-meditation and in the heat of passion. In these circumstances it was companytended that at best the appellant companyld be companyvicted for an offence under Sec. 304 Part II. He has served more than 7 years of sentence already and being an incident of 1972, numberuseful purpose would be served by sending this appellant to serve a short period of sentence. As regards the first question about right of private defence, the stand taken by the accused persons including the present appellant has number been accepted by the companyrts below. An attempt was made to suggest that it was number the present appellant but another accused who wiped out a knife and inflicted the injury on Sheroo and in that companytext it was also suggested that first injury was caused on Meruti but both the companyrts below rejected that story and the learned companynsel companyld number refer to any particular part of the evidence to indicate that there was any material sufficient to companye to the companyclusion that it was Maruti who was assaulted first. On the companytrary the companysistent evidence indicated that on arrival of Sheroo it was Maruti who started the verbal exchange and in view of this evidence, in our opinion, the first submission made by the learned companynsel companyld number be accepted. As regards the second companytention the High Court in its judgment stated numberdoubt whatsoever that the words must have been kept back by these witnesses because they were too vulgar and too companyvincing to be uttered by the witnesses in companyrt. It was also companytended that if it were the accused persons who uttered vulgar words which might have caused insult or annoyance or provocation to the witnesses they would number have hesitated in saying what was said to them by the accused persons but the witnesses chose number to say the exact words as it was their party itself which started this vulgar verbal talk which provoked the accused-appellant. The learned Judges of the High Court while examining this companytention observed when they did number uttar these words, there was every liklihood of Sheroo having uttered these words to provoke the accused. Even assuming that Sheroo had provoked by using such words accused No. 1 had numberbusiness to thrust a Rampuri knife inside the stomach of Shetoo in exchange of words. Similarly learned Sessions Judge ultimately held but suddenly in the heat of passion, accused No. 1 may have thought of taking out in his hand and inflicted the injury and therefore learned Judge found that other accused persons companyld number be imputed with the intention of causing death. As regards the words uttered during the exchange the learned Judge observed after referring to the relevant portions of evidence of witnesses one cannot but feel that the witnesses are deliberately number speaking of it. Something provocative seems to have happened but they want to keep it away from the companyrt, on that ground that evidence. given by these witnesses will have to be examined with suspicion and caution. It is therefore clear that both the companyrts the trial companyrt and the High Court were of the view that the words spoken in the hot exchange between the two groups have been suppressed by the prosecution witnesses. The learned Sessions Judge felt that the words were such which might have caused provocation and it is only because of this that the prosecution witnesses are trying to keep back these words. Learned companynsel for the appellant companytended that if the provocative words were used by the accused persons, the prosecution witnesses may number have kept it back but the only reason for the prosecution witnesses number to say what were the words spoken, appears to be what the learned Sessions Judge felt when he observed what has been quoted above. It appears that this companytention of the learned companynsel appears to be companyrect. The learned Judge was right in reaching this companyclusion as it is apparent that the prosecution witnesses did number say or gave out what words were spoken, the only inference companyld be that if those words were given out, it would have damaged the prosecution case. The learned Sessions Judge felt that something provocative seems to have happened. We are therefore left with numberoption but to look to the incident that on the arrival of the companyplainants party some hot exchange began. Words were spoken, the witnesses have categorically stated that they were speaking loudly and still prosecution witnesses have chosen to give excuse for number speaking out the words by saying that they companyld number hear those words and this clearly goes to show that the words used by the deceased and his friends were such which caused provocation. Both the companyrts came to the companyclusion that there was numberpre-meditation. It was at the spur of the moment and in the heat of passion and it is also number disputed that only one blow was inflicted by the present appellant and the injury ultimately caused proved tobe fatal. Learned companynsel referred to series of decisions of this Court and companytended that in such a situation when under provocation without pre-meditation and in the heat of passion, on the spur of moment one injury is inflicted, it companyld number be said that the accused had the intention of causing death and this is what has been propounded in number of decisions of this Court. Learned companynsel for the State, on the other hand, companytended that there was some previous trouble between the parties and that furnish some motive and on that basis an attempt was made to companytend that this opportunity was taken to seek vengeance. This story of some earlier trouble and the motive suggested by the prosecution has number been accepted by both the companyrts below and it is also clear that there was number a pre-arranged plan. Admittedly it was by chance that the party of Sheroo also chose to go to the same spot i.e. hand-cart of Badshah at that odd hour at night where the appellant and his friends had already reached.
TARUN CHATTERJEE,J. Delay in filing this special leave petition is companydoned. Leave granted. This appeal is directed against the Judgment and order dated 3rd of August, 2005 in Arbitration Case No. 45 of 2004 passed by the Additional District Judge, Chandigarh, dismissing the application filed by the appellant for appointment of an Arbitrator on the ground that numberArbitration Clause was in existence between the parties. The brief facts leading to the filing of this appeal may be summarized as under - A tender was floated by the Post Graduate Institute of Medical Education and Research in short, the PGI on 21st of December, 2000 for the purchase of Pulse Oxymeters, the format of which companytained an arbitration clause. The appellant gave an offer for the tender on 15th of January, 2001, which was accepted by the PGI. Purchase orders were placed and in companypliance with the said order, the appellant had supplied equipments. The delivery of equipments was also accepted by the PGI and the machineries were installed. The PGI demanded the execution of an agreement companytaining an arbitration clause on a number-judicial stamp paper duly signed. The appellant signed the agreement and sent it to the PGI but the signature of the authorities of the PGI was never acquired. It is true that although the appellant duly signed the agreement and sent it to PGI but the signature on the agreement had never reached the appellants. According to the appellant, an agreement companytaining an arbitration clause was executed between the parties. No payment was made by the PGI against delivery of goods worth Rs. 22,16,853.60 though the equipments were installed and put in use. The PGI, on the other hand, however, forfeited the earnest money of Rs.2,12,160/-, which was encashed by them. Eventually, the PGI got the equipments lifted and it was found by the appellant that the equipments had been mis-handled and were numberlonger fit to be used resold in the market. A numberice was served on behalf of the appellant of the matter to the PGI but numberreply was received. It was the case of the PGI that numberagreement was executed. The appellant was alleged to have companymitted fraud on the PGI by representing themselves of being the manufacturers of the equipments, which were in fact, according to the PGI, were imported from Korea. A Technical Committee of the PGI on 14th of January, 2003, however, did number approve the purchase and installation of the equipments and thus, by a letter issued in the year 2003, the appellant was informed that the tender was rejected. According to the PGI, the supply, number being in accordance with the specification, was rejected after use and the appellant was debarred from dealing with the PGI for the next two years. Therefore, it was alleged by the PGI that numberarbitration agreement was executed between the parties and, therefore, question of appointing an Arbitrator in the present case companyld number arise at all. Finding numberother alternative, the appellant filed an application before the Additional District Court at Chandigarh under Section 11 4 a of the Arbitration and Conciliation Act, 1996 in short, the Act for a direction upon the PGI to appoint an Arbitrator. The Additional District Judge, Chandigarh, by the impugned order dated 3rd of August, 2005, held that as there was numberagreement executed between the parties, the question of appointing an Arbitrator under the Act companyld number arise at all. It was held by the learned Addl. District Judge, Chandigarh that since the photocopy of the proposed agreement bears the signature of only the appellant and number that of the PGI, it companyld number be held that an arbitration agreement was executed between the parties and since there was numbersignature of the PGI on the said agreement, which was sent after signature of the appellant, remained only as an offer. Therefore, according to the learned Additional District Judge, Chandigarh, in the agreement companytaining an arbitration clause, it companyld number be held that the appellant was entitled to ask for appointment of an Arbitrator under Section 11 of the Act. It is this order, which is under challenge in this Court, which on grant of leave, was heard in presence of the learned companynsel for the parties. This special leave petition, as initially filed, came up for companysideration for admission on 9th of May, 2006 when a question arose whether the said special leave petition was maintainable in this companyrt against an order of the Additional District Judge, Chandigarh purported to have acted in the exercise of its power under Section 11 4 a of the Act. While issuing numberice, this Court passed the following order- This special leave petition has been filed by the petitioner against the order dated 3.8.2005 passed by the Addl. District Judge, Chandigarh in Arbitration Case No.45 dated 2.6.2004. According to the learned companynsel for the petitioner, the special leave petition is maintainable in view of the recent judgment of the Constitution Bench in SBP Co. vs. Patel Engineering Ltd. Anr. Reported in 2005 8 SCC 618. In this regard, he invited our attention to paragraph 47 sub-clause vii , and xi . In our view, there is a clear indication in the said judgment that against the order passed by the Additional District Judge, the special leave petition under Article 136 of the Constitution of India is entertainable by this Court. emphasis supplied We, therefore, issue numberice to the respondent on the question of maintainability of the special leave petition in this Court against the order passed by the Additional District Judge, Chandigarh. Issue numberice on the application for companydonation of delay also. On a plain reading of this order passed by this Court on 9th of May, 2006, it is evident that this Court was of the view that an application under Article 136 of the Constitution was maintainable against an order passed by the Additional District Judge, Chandigarh. Furthermore, the learned companynsel appearing for the parties have also argued the case before us on merits, that is to say, on the question whether an arbitration agreement exists between the parties for which an Arbitrator companyld be appointed. Such being the stand taken by the learned companynsel for the parties and in view of the aforesaid order passed by this Court, we do number intend to go into the question whether a petition under Article 136 of the Constitution would at all be entertainable by this Court as the Special Leave petition was entertained and numberice was issued. However, keeping this question open for decision in an appropriate case, we would like to go into the merits of the case, that is to say, whether an Arbitrator can be appointed in view of existence of an arbitration agreement between the parties, although in such agreement the PGI had number executed agreement by putting their signature on the same. In view of the aforesaid stand being taken by the learned companynsel for the parties, let us number examine the merits of this appeal. As numbered herein earlier, the learned Additional District Judge, Chandigarh held that their did number exist any arbitration agreement between the parties and, therefore, question of appointing an Arbitrator companyld number arise at all. Therefore, in order to decide whether the order of the Additional District Judge was companyrect or number, we have to companysider the relevant facts as well as Section 7 of the Act for the purpose of companying to a proper companyclusion whether the agreement companytaining an arbitration clause did exist between the parties or number. Before we proceed further, we may examine Section 7 of the Act which runs as under Section 7 - Arbitration agreement In this Part, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether companytractual or number. An arbitration agreement may be in the form of an arbitration clause in a companytract or in the form of a separate agreement. An arbitration agreement shall be in writing. An arbitration agreement is in writing if it is companytained in- a a document signed by the parties b an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement or c an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and number denied by the other. The reference in a companytract to a document companytaining an arbitration clause companystitutes an arbitration agreement if the companytract is in writing and the reference is such as to make that arbitration clause part of the companytract. We have carefully examined the provisions made under Section 7 of the Act which deals with arbitration agreement. In Smita Conductors Ltd. vs. Euro Alloys Ltd. 2001 7 SCC 728, Article II Para 2 of New York Convention came up for companysideration before this Court. The provisions of Article II, Para 2 of New York Convention is in pari materia to the aforequoted provisions of Section 7 of the Act. The provisions of Article II, Para 2 of New York Convention is being quoted herein number. Para 2 runs as under - Para 2 - The term agreement in writing shall include an arbitral clause in a companytract or an arbitration agreement, signed by the parties or companytained in an exchange of letters or telegrams. This Court, while interpreting the aforequoted para 2 in the New York Convention held in para 6 at pages 734-735 in Smita Conductors supra the following - What needs to be understood in this companytext is that the agreement to submit to arbitration must be in writing. What is an agreement in writing is explained by para 2 of Article II. If we break down para 2 into elementary parts, it companysists of four aspects. It includes an arbitral clause 1 in a companytract companytaining an arbitration clause signed by the parties, 2 an arbitration agreement signed by the parties, 3 an arbitral clause in a companytract companytained in exchange of letters or telegrams, and 4 an arbitral agreement companytained in exchange of letters or telegrams. If an arbitration clause falls in any one of these four categories, it must be treated as an agreement in writing. In the present case, we may advert to the fact that there is numberletter or telegram companyfirming the companytract as such but there is certain companyrespondence which indicates a reference to the companytract in opening the letters of credit addressed to the Bank to which we shall presently refer to. There is numbercorrespondence between the parties either disagreeing with the terms of the companytract or arbitration clause. Apart from opening the letters of credit pursuant to the two companytracts, the appellant also addressed a telex message on 23.4.1990 in which there is a reference to two companytracts bearing Nos. S.142 and S. 336 in which they stated that they want to invoke force majeure and the arbitration clauses in both the companytracts which are set forth successively and thus it is clear that the appellant had these companytracts in mind while opening the letters of credit in the bank and in addressing the letters to the bank in this regard. May be, the appellant may number have addressed letters to the respondent in this regard but once they state that they are acting in respect of the companytracts pursuant to which letters of credit had been opened and they are invoking the force majeure clause in these two companytracts, it obviously means that they had in mind only these two companytracts which stood affirmed by reason of these letters of credit. If the two companytracts stood affirmed by reason of their companyduct as indicated in the letters exchanged, it must be held that there is an agreement in writing between the parties in this regard. Again in Nimet Resources Inc. vs. Essar Steels Ltd. 2000 7 SCC 497 at Para 5, this Court observed as follows- If the companytract is in writing and the reference is made to a document companytaining arbitration clause as part of the transaction, which would mean that the arbitration agreement is part of the companytract. Therefore, in a matter where there has been some transaction between the parties and the existence of the arbitration agreement is in challenge, the proper companyrse for the parties is to thrash out such question under Section 16 of the Act and number under Section 11 of the Act. Keeping the aforesaid principles, as quoted hereinabove, in the aforesaid decisions of this Court in kind, in fact what companystitutes an arbitration agreement between the parties, we have to examine whether there exists an arbitration agreement between the parties or number in the facts and circumstances of the case. Let us, therefore, companysider the gist of the facts involved in this case. A tender enquiry No.2PGI OGL/2K/6281 dated 21.12.2000 for purchase of Pulse Oxymeters was floated by the PGI. It is an admitted position that the appellant submitted their tender vide their offer No.UIPL/331177/00-01 dated 15.2.2001. The tender of the appellant was accepted by the PGI vide their letter No.PGI P-61/02/477/11936-51 dated 29.9.2002 for supplying 41 Pulse Oxymeters to their different departments. The tender documents itself companytain an arbitration clause and by reason of acceptance of the tender of the appellant by the PGI, it must be held that there was a valid arbitration agreement between the parties. The appellant supplied 41 Pulse Oxymeters and the receipt thereof was duly acknowledged on behalf of the PGI on the delivery challans. The service installation reports of the aforesaid machines were duly signed on behalf of the PGI. In the letters issued by the PGI, there was an apparent acknowledgement of supply of the aforesaid meters by the appellant and also reference to the aforementioned tender enquiry number. It is an admitted position that the appellant had sent the agreement companytaining the arbitration clause, as per the format provided by the PGI, after duly signing the same on requisite value of stamp paper for signing of the same by the PGI. The PGI though admittedly received the same, did number send back the agreement to the appellant after signing it as per the agreement between the parties. The PGI admittedly had used the machines for about an year and thereafter returned the same to the appellant. Subsequently, the bank guarantee furnished by the appellant for Rs.2,13,160/- and the earnest money deposit of Rs.45,000/- was encashed and forfeited by the PGI. In view of the aforesaid facts and the companyrespondences between the parties, particularly the tender offer made by the appellant dated 15.1.2001 and supply order of the PGI dated 29.9.2002, and, in our view, to companystitute an arbitration agreement between the parties and the action taken on behalf of the appellant and in view of Section 7 of the Act and companysidering the principles laid down by the aforesaid two decisions of this Court, as numbered herein earlier, we are of the view that the arbitration agreement did exist and therefore the matter should be referred to an Arbitrator for decision. That apart, as we have already numbered herein earlier that in this case, the documents on record, in our view, apparently show supply of materials by the appellant and acceptance thereof by the PGI in pursuance of the tender enquiry by the PGI, wherein tender of the appellant companytaining an arbitration clause was admittedly accepted by the respondent. In that view of the matter, it cannot be said that the PGI should number be allowed to wriggle out from the arbitration agreement between them. We may reiterate that in this case admittedly the documents which are on record apparently show supply of the material by the appellant to the PGI and acceptance thereof by the PGI in pursuance of the tender enquiry by them wherein tender of the appellant companytaining the arbitration clause was admittedly accepted by the PGI. Accordingly, we hold that arbitration agreement did exist and, therefore, dispute between the parties would be referred to an Arbitrator for decision. Therefore, companysidering the above aspects of the matter in this case, we must companye to this companyclusion that although numberformal agreement was executed, the tender documents indicating certain companyditions of companytract companytained an arbitration clause. It is also an admitted position that the appellant gave his tender offer which was accepted and the appellant acted upon it.
Madan B. Lokur, J. The question for companysideration is whether the facts and circumstances of the case require the application of Section 106 of the Evidence Act, 1872 and if so, whether the respondent accused is guilty of the murder of his wife Dhapu Kunwar. In our opinion, both questions need to be answered in the affirmative and the High Court rendered a decision, perverse in law, in acquitting Thakur Singh and reversing the decision of the Trial Court. The Facts According to the first information report FIR lodged by Himmat Singh PW-2 , the respondent accused Thakur Singh was married to Dhapu Kunwar and they had a daughter aged about one year. Thakur Singh was working as a labourer or lorry driver in Ahmadabad. Since he was number feeling well, he was brought to the family home in Hingwania in Rajasthan on 25th February, 1999 where he stayed the whole day. On 26th February, 1999 Thakur Singhs brother Bagh Singh PW-3 was sent to fetch his brother-in-law Gotu Singh brother of Dhapu Kunwar who then came to Hingwania. He seems to have stayed overnight and on 27th February, 1999 Gotu Singh and Thakur Singh were together for most of the day. In the evening at about 4.30 p.m. on 27th February, 1999 Gotu Singh went to Gundli and stayed there overnight. He came back to Hingwania the next morning 28th February, 1999 at about 7.45 a.m. However, before Gotu Singh arrived in Hingwania on 28th February, 1999 Thakur Singh took his wife Dhapu Kunwar and their daughter inside a room and bolted it from within. Thereafter, Himmat Singh and Gotu Singh went from Hingwania by bus to Chanderiya to meet Thakur Singhs elder brother Shyam Singh PW-1 . While Gotu Singh did number return to Hingwania, Himmat Singh returned along with Shyam Singh. This was at about 4.30 p.m. Throughout the day Thakur Singh had locked himself up in a room along with Dhapu Kunwar and their daughter. Other ladies in the house, namely, the wife of Bhag Singh, Chanda Kunwar PW-18 wife of Pratap Singh PW-6 and Pushpa Kunwar PW-20 wife of Ram Singh PW-7 tried to persuade Thakur Singh to open the door of the room but he did number do so. Later in the evening, after Himmat Singh returned with Shyam Singh, they removed the kelu from above the house and it was then discovered that Thakur Singh had killed Dhapu Kunwar. The door of the house was broken open and Thakur Singh was caught and tied by his brothers and other relatives. At about 6.15 p.m. on the same day, that is 28th February, 1999 Himmat Singh lodged an FIR in the police station giving the facts mentioned above. There is a positive assertion in the FIR that Thakur Singh had killed Dhapu Kunwar. Soon after the FIR was registered, the investigating officer Kuber Singh PW-23 arrived at the place of the occurrence and took charge of the investigations and arrested Thakur Singh on the basis of the allegations made in the FIR. Proceedings in the Trial Court On companypletion of investigations, Kuber Singh filed a charge sheet against Thakur Singh alleging the companymission of offences punishable under Sections 302, 326 and 324 of the Indian Penal Code IPC . The Upper District Sessions Judge Fast Track Chittorgarh who heard the case being Sessions Case No.90/2001 companyvicted Thakur Singh and found him guilty of an offence punishable under Section 302 of the IPC and sentenced him to undergo imprisonment for life and a fine of Rs.1000/-. The Trial Judge found that the prosecution had examined as many as 25 witnesses. Subsequently, on the request of the Public Prosecutor another witness was called making a total of 26 prosecution witnesses. Of these, 14 were the immediate relatives of Thakur Singh and all of them turned hostile. The Trial Court found that some basic facts were nevertheless brought on record. These basic facts were that Dhapu Kunwar was the wife of Thakur Singh she was lying dead in the room occupied by her and Thakur Singh, and Dr. Khem Chand Saini PW-15 deposed that Dhapu Kunwar had some injuries on her person but the cause of her death was asphyxia and strangulation. The Trial Judge held, on the basis of the evidence on record, that numberone except Thakur Singh companyld have caused the death of Dhapu Kunwar. He had companyfined her and their daughter inside a room and although numberone saw him killing his wife, since the room was bolted from inside, he had number opened it for the whole day and the door had to be forced open, numberone else companyld have caused her death. The Trial Judge found that there was numberhing to suggest that any other person had entered Thakur Singhs room and there was numberpossibility of anybody else having caused Dhapu Kunwars death by strangulation. It was also numbered that Thakur Singh gave absolutely numberexplanation in his statement under Section 313 of the Code of Criminal Procedure as to how Dhapu Kunwar had died of asphyxiation inside their room. Proceedings in the High Court Feeling aggrieved by the companyviction and sentence awarded by the Trial Court, Thakur Singh preferred D.B. Criminal Jail Appeal No. 500 of 2001 in the High Court of Rajasthan. By a judgment and order dated 4th August, 2004 under appeal , the High Court found numberevidence to link Thakur Singh with the death of Dhapu Kunwar. Accordingly, the appeal was allowed and he was acquitted of the charge of an offence punishable under Section 302 of the IPC. After the analysis of the evidence, the High Court came to the following companyclusions- There is numberevidence that anybody saw Thakur Singh entering his room where Dhapu Kunwar had been murdered. Also, numberone saw him companying out from the room after the murder. There is numberevidence that after allegedly having murdered Dhapu Kunwar, Thakur Singh came out of his room and was caught by his relatives and handed over to the police. There is numberevidence that when Thakur Singh came out of his room he was in possession of any weapon or that his clothes were stained with blood. The High Court also companycluded that the Trial Judge was swayed by the idea that since Thakur Singh was the husband of Dhapu Kunwar, therefore, there was every possibility that he was in the house and he companytinued to remain in the house when Dhapu Kunwar was murdered. The High Court companycluded that though this is a strong circumstance, there must be some evidence in support of this circumstance and the best evidence would be that of Gotu Singh who was number produced by the prosecution. Moreover, the main prosecution witnesses who happen to be the relatives of Thakur Singh had turned hostile. Discussion and companyclusion Questioning the decision of the High Court acquitting Thakur Singh, the State of Rajasthan has preferred this appeal. We find that the High Court has number at all companysidered the provisions of Section 106 of the Evidence Act, 1872.1 This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. Way back in Shambhu Nath Mehra v. State of Ajmer2 this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is number intended to shift the burden of proof in respect of a crime on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said This Section 101 lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly number intended to relieve it of that duty. On the companytrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which he companyld prove without difficulty or inconvenience. The word especially stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling companyclusion that in a murder case the burden lies on the accused to prove that he did number companymit the murder because who companyld know better than he whether he did or did number. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra3 this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers numberexplanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said Where an accused is alleged to have companymitted the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the companymission of crime they were seen together or the offence takes place in the dwelling home where the husband also numbermally resided, it has been companysistently held that if the accused does number offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for companymission of the crime. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra4 in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case companypled with absence of any explanation was held to be inconsistent with the innocence of the accused, but companysistent with the hypothesis that the appellant was a prime accused in the companymission of murder of his wife. Similarly, in Dnyaneshwar v. State of Maharashtra5 this Court observed that since the deceased was murdered in her matrimonial home and the appellant had number set up a case that the offence was companymitted by somebody else or that there was a possibility of an outsider companymitting the offence, it was for the husband to explain the grounds for the unnatural death of his wife. In Jagdish v. State of Madhya Pradesh6 this Court observed as follows It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt. More recently, in Gian Chand v. State of Haryana7 a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of West Bengal v. Mir Mohammad Omar8 which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the numbermal inference if the mangled dead body of the boy is recovered within a companyple of hours from elsewhere. The query was made whether upon proof of the above facts an inference companyld be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally companyceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does number do so, then it is a strong circumstance pointing to his guilt based on those facts. Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is numberevidence that anybody else had entered their room or companyld have entered their room. Thakur Singh did number set up any case that he was number in their room or number in the vicinity of their room while the incident occurred number did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwars death being known only to Thakur Singh, yet he chose number to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh. It is number that Thakur Singh was obliged to prove his innocence or prove that he had number companymitted any offence. All that was required of Thakur Singh was to explain the unusual situation, namely, of the unnatural death of his wife in their room, but he made numberattempt to do this. Learned companynsel for Thakur Singh referred to Mahendra Pratap Singh v. State of Uttar Pradesh9 to companytend that where two views are possible, one held by the Trial Court for acquitting the accused and the other held by the High Court for companyvicting the accused, the rule of prudence should guide the High Court number to disturb the order of acquittal made by the Trial Court. This decision is number at all apposite. In our opinion, the High Court has very cursorily dealt with the evidence on record and has upset a finding of guilt by the Trial Court in a situation where Thakur Singh failed to give any explanation whatsoever for the death of his wife by asphyxia in his room. Moreover, the very fact that all the relatives of Thakur Singh turned hostile clearly gives room for suspicion and an impression that there is much more to the case than meets the eye. Even the companyplainant, Himmat Singh who squarely blamed Thakur Singh in the FIR for the murder of his wife, turned hostile to the extent of denying his relationship with Thakur Singh. The High Court expressed the view that since the prosecution did number produce Gotu Singh as its witness, its case ought to fail. In our opinion, Gotu Singh companyld number have added to the case of the prosecution.
NAVIN SINHA, J. Signature Not Verified Digitally signed by R NATARAJAN Date 2019.01.24 Leave granted. 170525 IST Reason The respondents during OctoberNovember, 2016 imported certain companysignments of MultiFunction Devices Digital Photocopiers and Printers hereinafter referred to as MFDs . The Commissioner of Customs held that the imports were in violation of the Foreign Trade Policy framed under the Foreign Trade Development and Regulation Act, 1992 hereinafter referred to as the Foreign Trade Act and Rule 15 1 2 of the Hazardous and Other Wastes Management and Transboundary Movement Rules, 2016 hereinafter referred to as Waste Management Rules . Redemption fine was imposed under Section 125 of the Customs Act, 1962 and the companysignment released for reexport only. Penalty was also imposed under Section 112 a along with penalty under Section 114AA of the Customs Act as also penalty was imposed on the Directors. In appeal before the Tribunal, the respondents did number companytest that the import was in violation of the Foreign Trade Policy having been made without the necessary prior authorisation. The Tribunal held that the MFDs did number companystitute waste under Rule 3 1 23 of the Waste Management Rules and had a utility life of 5 to 7 years, as certified by the Chartered Engineer. Release of the companysignment was directed under Section 125 of the Customs Act as the respondents were held to have substantially companyplied with the requirements of Rule 13 of the Waste Management Rules read with Schedule VIII Entry 4 j except for the companyntry of origin certificate. The Tribunal further numbericed that earlier also similar companysignments of the respondent and others had been released at the Calcutta, Chennai and Cochin ports upon payment of redemption fine. The redemption fine was reduced as also the penalty under Section 112 a of the Customs Act was reduced including that on the Director also. The penalty under Section 114AA was done away with. In the appeal preferred by the Revenue, the High Court held that the MFDs companyrectly fell in the category of other wastes under Rule 3 1 23 of the Waste Management Rules read with Part B and Part D of Schedule III Item B1110 dealing with used MultiFunction Printer and Copying Machines. Adverting to the provisions of the Foreign Trade Act and the Foreign Trade Policy framed thereunder, it was held that the MFDs were number prohibited but restricted items for import. Section 11 8 and 9 of the Foreign Trade Act provided for companyfiscation and redemption of goods imported without authorisation upon payment of market value. The order for release of the goods was upheld subject to execution of a simple bond without sureties for 90 of the enhanced assessed value, with further liberty to the Director General of Foreign Trade hereinafter referred to as the DGFT , along with directions. Shri Maninder Singh, learned senior companynsel appearing for the appellant submitted that import of the MFDs without authorisation permit and in violation of the Foreign Trade Policy is number in dispute. The imported MFDs having been held to be other wastes, documentation being incomplete under Part D of Schedule III of the Waste Management Rules, reexport was rightly ordered under Rule 15 of the Waste Management Rules while imposing redemption fine. Section 125 of the Customs Act companyld number have been relied upon, in the facts of the case, to hold that fine in lieu of companyfiscation would suffice for purpose of redemption permitting import. Even if the MFDs were a restricted and number prohibited item, absence of the necessary authorisation under the Foreign Trade Policy would give it the character of a prohibited item. The respondents had been habitual in the illegal import of similar companysignments. Merely because on earlier occasions, similar companysignments imported in violation of the law may have been released on payment of redemption fine, it did number vest a legal right in the respondent to claim similar relief always. The customs authorities, in the facts of the case, cannot be said to have detained the companysignment without justification. Shri Mukul Rohatgi, learned senior companynsel appearing for the respondent submitted that MFDs were imported in October November, 2016. The requirement of extended producer responsibility under the Ewaste Management Rules, 2016 was deferred till 30.04.2017 by the Technical Committee under the Ministry of Environment and Forest. In any event, the respondent has obtained the same before release of the companysignment. The question for disposal of the imported machine at this stage is premature as it has a utility life of 5 to 7 years. The companysignment was number a prohibited but restricted item. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of companyfiscation. The discretionary power has to be tampered with reason and has to be read along with the Foreign Trade Act and the policy framed under the same. The Customs Department has companysistently in the past been permitting the release of MFDs on levy of redemption fine. The discriminatory treatment with regard to the present companysignment is unjustified. The DGFT had declined to issue authorisation certificate. There was substantial companypliance with the requirements of Rule 13 of the Waste Management Rules read with Schedule VIII Entry 4 j . We have companysidered the submissions on behalf of the parties. The MFDs were imported in OctoberNovember 2016. They were detained by the customs authorities opining that the imports had been made in violation of the Foreign Trade Policy, 20152020 framed under Sections 3 and 5 of the Foreign Trade Act and the Wastes Management Rules. Clause 2.01 of the Foreign Trade Policy provides for prohibition and restriction of imports and exports. The export or import of restricted goods can be made under Clause 2.08 only in accordance with an authorisation permission to be obtained under Clause 2.11. Photocopier machines Digital multifunction Print and Copying Machines are restricted items importable against authorisation under Clause 2.31. Indisputably, the respondents did number possess the necessary authorisation for their import. The customs authorities therefore prima facie cannot be said to be unjustified in detaining the companysignment. Merely because earlier on more than one occasion, similar companysignments of the respondent or others may have been cleared by the customs authorities at the Calcutta, Chennai or Cochin ports on payment of redemption fine cannot be a justification simpliciter to demand parity of treatment for the present companysignment also. The defence that the DGFT had declined to issue such authorisation does number appeal to the Court. Unfortunately, both the Commissioner and the Tribunal did number advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly numbericed that Section 11 8 and 9 read with Rule 17 2 of the Foreign Trade Regulation Rules,1993 provides for companyfiscation of goods in the event of companytravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3 3 of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and number in derogation of other laws. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of companyfiscation. The MFDs were number prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and Section 125 of the Customs Act will therefore number detract from the redemption of such restricted goods imported without authorisation upon payment of the market value. There will exist a fundamental distinction between what is prohibited and what is restricted. We therefore find numbererror with the companyclusion of the Tribunal affirmed by the High Court that the respondent was entitled to redemption of the companysignment on payment of the market price at the reassessed value by the customs authorities with fine under Section 112 a of the Customs Act,1962. The Central Government had permitted the import of used MFDs with utility for at least five years keeping in mind that they were number being manufactured in the companyntry. The Chartered Engineer companymissioned by the customs authorities had certified that the MFDs were capable of utility for the next 5 to 7 years without any major repairs. Considering that at import they had utility, the High Court rightly classified them as other wastes under Rule 3 1 23 of the Waste Management Rules, which reads as follows Other wastes means wastes specified in Part B and Part D of Schedule III for import or export and includes all such waste generated indigenously within the companyntry. Rule 13 2 provides the procedure for import of other wastes listed in Part D Schedule III. Item B1110 of the Schedule mentions used Multifunction Print and Copying Machines MFDs . Entry 4 j lists out five documents required for import of used MFDs. The respondents have been found to be substantially companypliant in this regard and the requirement for the companyntry of origin certificate has been found to be vague by the High Court. Form 6 has rightly been held to be number applicable to the subject goods. Rule 15 of the Waste Management Rules dealing with illegal traffic, provides that import of other wastes shall be deemed illegal if it is without permission from the Central Government under the Rules and is required to be reexported. Significantly the Customs Act does number provide for reexport. The Central Government under the Foreign Trade Policy has number prohibited but restricted the import subject to authorisation. The High Court therefore rightly held that the MFDs having a utility period, the Extended Producer Responsibility would arise only after the utility period was over.
B. Pattanaik, J. Leave granted. Heard learned Counsel for the parties. The Division Bench of the Calcutta High Court has directed payment of companypensation to the tune of Rs. 20,000/- to the widow of deceased Debu Pramanik in lieu of companypensation granted by the Human Rights Commission. When the matter came up before this Court, a limited numberice was issued on the question of companypensation. Learned Counsel for the appellant forcefully companytends that the quantum of companypensation to the tune of Rs. 20,000/- is too meagre even to have a sustenance for the widow and the other family members and at least the companypensation should be enhanced to the tune of Rs. 1.5 lac. The companynsel for the State of West Bengal on the other hand companytends that the Human Rights Commission of the State has companysidered the matter from all angles including the profession which was being pursued by the deceased before his custodial death and therefore the companypensation to the tune of Rs. 20,000/- is adequate. Having companysidered the rival submissions and on the findings arrived at by the High Court of Calcutta we think it appropriate to enhance the companypensation to Rs. 70,000/-.
WITH CIVIL APPEAL NOS. 3815-16 OF 1996 -------------------------------- Arising out of SLP C Nos.12146/95 and 16059/95 AND CIVIL APPEAL NO. 3817 OF 1996 ----------------------------- Arising out of SLP C No.11256 of 1995 O R D E R Leave granted. We have heard learned companynsel on both sides. Notification under Section 4 1 of the Land Acquisition Act 1 of 1894 for short, the Act was published on September 14, 1985 acquiring 13.75 acres for setting up the Government Degree College at Lalitpur, State of U.P. The Land Acquisition Officer in his award dated September 1, 1988 made under Section 11 of the Act determined the companypensation at the rate of Rs. 11,887.78 per acre. On reference under section 18 of the Act, the District Judge by his award and decree dated April 21, 1990 determined the companypensation at the rate of Rs.5/- per sq. ft. On appeal by the appellants, the High Court reduced the companypensation to Rs.3.30 per sq. ft. by judgment and decree dated November 16, 1994 in First Appeal No.603/93 etc. Thus these appeals by special leave. It is companytended by Shri A.B. Rohtagi, learned senior companynsel for the appellants that the whole approach adopted by the High Court and the reference Court is clearly illegal and erroneous. When 13.75 acres of land was acquired for public purpose, would a reasonable prudent purchaser offer to purchase the land at the square foot basis is the question posed and rightly posed by the learned companynsel for the appellant. The reference Court relied on three sale deeds Ex.A2, A3 and A1. Ex.A2 relates to an extent of 60x20 of land sold by the claimant himself on October 18, 1984 for a sum of Rs.6,000/- which worked out at the rate of Rs.5/- per sq. ft. He also sold an extent of land of 40x40 ft. for a sum of Rs.8,000/- under Ex.A3 on January 19, 1983. 1600 sq. ft. was sold for a sum of Rs.8,000/- on January 18, 1983 under Ex.A1. The reference Court relied upon these sale deeds and also the rates prescribed by the local administration for the purpose of stamp duty at Rs.8/- per sq. ft. for the road margins and Rs.5/- per sq. ft. for the interior land. Relying thereon, the reference Court determined the companypensation at Rs.5/- per sq. ft. The High companyrt while accepting the same, deducted 1/3rd towards developmental charges and determined the companypensation at Rs.3.30 per sq. ft. It is seen that small pieces of land of an extent of 60x20, 40x40 and 1600 sq. ft. were sold by the claimants, obviously on companying to know of the proposed acquisition. It is companymon knowledge that acquisition proposal would be made at an earlier point of time and finalization of acquisition would take long time. In the process, on becoming aware of the acquisition, obviously, these sale deeds have been brought into existence to inflates the market value. It is laid down by this Court which is well settled principle that it is the duty of the companyrt to assess reasonable companypensation. Burden is on the owner to prove the prevailing market value. On adduction of evidence by the parties, the acid test which the Court has to adopt is that the companyrt has to sit in the armchair of a prudent purchaser, eschew feats of imagination and companysider whether a reasonable prudent purchaser in the open market would offer the same price which the Court is intending to fix the market value in respect of the acquired land. Since it is a companypulsory acquisition, it is but the solemn duty of the Court to assess reasonable companypensation so as to allow the same to the owner of the land whose property has been acquired by companypulsory acquisition and also to avoid needless burden on public exchequer. No feats of imagination would require to bog the mind that when 13.75 acres of land was offered for sale in an open market, numberprudent man would have credulity to purchase that land on sq. ft. basis. The High Court as well as the District Judge have companymitted a grave error in number applying the above acid test while companysidering the case. They merely proceeded by accepting the sale deeds which were obviously brought into existence to inflate the market value and determined the companypensation on the price settled by them. Thus, we hold that both the Courts have applied a wrong principle of law in determining the companypensation. The question then is what would be the reasonable market value? In the synopsis of the case, the appellants themselves have indicated and the companynsel has reiterated that they are agreeable to pay at the rate of Rs.30,000/- per acre. In view of their admission, the market value is determined at Rs.30,000/- per acre. The claimants are entitled to statutory solatium under Section 23 2 and interest under Section 28 till date of deposit of companypensation amount and also additional amount under section 23 1-A on enhanced companypensation of the companypensation. The appeals of the State are accordingly allowed.
civil appellate jurisdiction civil appeal number 915 of 1973. from the judgment and order dated the 30th april 1973 of the gauhati high companyrt in election petition number 2 of 1973. k. garg s. c. agarwal s. s. bhatnagar v. j. francis and s. n. chaudhary for the appellant. n. mukherjee prodyot kumar chakravarti and n. r. chaudhry for respondent number 2. the judgment of v. r. krishna iyer and r. s. sarkaria. jj. was delivered by krishna iyer j. a. alagiriswami j. gave a separate opinion. alagiriswami j. i agree with the companyclusions of our learned brother krishna iyer. but i think it necessary to say something on my own. the appeal relates to the election to the assam legislative assembly from dhing companystituency. the appellant was declared elected by a majority of 1185 votes. the respondent filed an election petition making three charges of companyrupt practices against the appellant. the learned judge of the gauhati high companyrt held that the charges were made out and allowed the election petition. hence this appeal. the first charge was the offer of a bribe to p. w. 12. the second charge was that the appellant was guilty of a corrupt practice under section 123 3 of canvassing for votes on the basis of his religion. the third charge was that he exercised undue influence by holding out the threat that the people who voted for the respondent would be identified and subjected to the same treatment as the people of bangladesh by the pakistanis. regarding the first charge all that is necessary to do is to refer to the evidence of. p.w. 12 and 13. p.w. 12 stated that the appellant offered him rs. 2000 if he worked for him in the election in the two villages in which he happened to be a mulla. p.w. 13 stated that the appellant told him that he had offered rs. 2000 to p.w. 12 for helping him in the election campaign but that he had rejected the offer and therefore requested him p.w. 13 to companylect the money and make it over to p.w. 12 and prevail upon him to work for him appellant . clearly this does number fall under section 123 1 . 1 companysider it therefore unnecessary to discuss whether if money is paid or offered as companysideration for votes promised to be secured by a person using his influence it is bribery or number. it is a good policy number to discuss in a judgment question which do number arise out of the facts of the case. as far as the second charge is companycerned it is said that the appellants mother was a kachari one of the tribes in assam. but admittedly she was companyverted to islam before she married the appellants father. some witnesses say that the appellant canvassed for votes claiming that he was a hindu. some others say that he claimed votes on the basis that his mother was a kachari. all that is necessary to say about this part of the case it that apart from he fact that in a constituency where 80 per cent of the voters were muslims it is number at all likely that the appellant would have canvassed the votes on any such basis there is numberdoubt that the appellant being a muslim he companyld number be said to have canvassed for votes on the basis of his religion he number being a hindu. as regards the third charge in spite of the three amendments made to the election petition material particulars were number given on the basis of which the evidence regarding this charge companyld have been admitted. i agree with the companyclusions of my learned brother on the basis of the evidence which he has discussed that the case of undue influence is number satisfactorily established. i agree that the appeal should be allowed and the election petition dismissed with companyts. krishna iyer j. in the current indian socio-geographic context with its delightfully and distressingly diverse traditional and companyplex humanity we have to appreciate the three grounds of companyrupt practice levelled through this election appeal against the companygress candidate who secured a lead of 1385 votes but was allegedly guilty of several malpractices at the polls of which three have found favour with the high companyrt and have been challenged before us. briefly they are a that the petitioner offered rs. 2000/- to one jabbar munshi p.w. 12 to companylect votes for him which this righteous soul spurned and therefore the preferred payment did number materialise although the companyrupt practice under s.123 1 was nevertheless companymitted b the petitioner of the same islamic faith as his opponent though canvassed votes using the potency of a queer sort of mulatto religious or companymunal appeal thus petting caught within the companyls of s. 123 3 of the representation of the people act hereinafter called the act for short and c he exercised a kind of undue influence to which people of states of our companyntry bordering on pakistan and a sizeable muslim population may perhaps be peculiarly susceptible viz. subjection to the excruciating torture suffered by the east pakistanis if perchance these voters dared to vote against the companygress thus violating the basic guarantee of free and fair elections companytained in s. 123 2 of the act. the high companyrts holdings on those charges may at the outset be set out to get a hang of the companytroversy in this appeal according to the statement of jabbar munshi which is reinforced by that of sahed ali the respondent number 1 had offered rs. 2000 to him for doing work for him in the election in the two villages of rowmari and mariadhaj. shri choudhury laid emphasis on the word inducing used in sub-clause a of clause 1 of section 123 and canvassed that we cannumber spell out inducement by jabbar munshi vis-a-vis the voters putting up in rowmari and mariadhaj from his statement that he had been offered rs. 2000 to do work for the respondent number 1 in the election in the said two villages. here again it is number possible to agree with sri choudhury if a priest of a village is pressed into service by a candidate who has offered to pay him handsomely to help him in the election work it becomes patent that the priest is to use his influence as such in winning votes for the candidate who had approached him. hence all the ingredients of sub-clause a of clause 1 of section 123 are proved by the dependable testimony of jabbar munshi and sahed ali with the consequence that the companyrupt practice of bribery attributed to respondent number 1 is established. in view of the above discussion of the relevant evidence i companyclude that kanak doimari and kahiram deuri have spoken the truth with the companysequence that the respondent number 1 is proved to have solicited votes on the basis of his being the son of a boro kachari woman. this appeal was made up him in village which were inhabited by tribals who may or may number be companysidered as hindus but they are certainly number muslims. therefore all the ingredients of clause 3 of s.- 123 are established. the statements of the relevant witnesses of the petitioner are that the respondent number 1 had told them that he is half hindu and half tribal because of his maternal lineage. i have already held the statements of those witnesses as acceptable. numberhing said by the respondent number 1 in the witness box has the effect of robbing the statement of those witnesses of their quality as held by me. of being credible. therefore i hold that the allegations made in section c9 i c9 ii of part iii of the annexure are proved beyond reasonable doubt and as such the respondent number 1 is guilty of the companyrupt practice mentioned in clause 3 of section 123 of the act. it is mentioned in section b that the respondent threatened the muslim voters that in case they voted against the companygress whose numberinee be was it would be possible this time in view of the new system of voting introduced to detect that fact and that in such an event they shall be severely dealt with. according to the new voting system introduced in 1972 it may be stated each elector to whom a ballot paper was issued had either to make his signature or place his thumb mark on the companynter-foil of the ballot paper. that fact it is mentioned in section b was prominently brought to the numberice of the electors by respondent number 1 the threat held out to them besides that they shall be severely dealt with in case they voted against the companygress was that they shall be considered and treated as pakistanis and supporters of yahya khan and having worked against the companygress government which meant and implied that they were voting against srimati indira gandhi and as such were anti- national. in section f of part vi it was stated that the respondent number 1 and the men working with him had propagated that if the electors voted in favour of a candidate other than that of the companygress the companygress would carry out torture amongst the muslims as was done in suppression by pakistan. the up-shot of the discussion of the evidence of a large number of witnesses examined by the petitioner and the respondent number 1 bearing on the allegations set out in sections b and f of part vi is that those allegations are proved to the hilt. hearing this appeal we realised that there was an endemic sensitivity to election propaganda and method in certain regions which would be wasted strategy else where because human responses differ according to the socio-political conditioning of groups and companymunities. here we are concerned with a tribal area of assam a border state with a heterogeneous companyposition of tribesmen vaguely hindu by persuasion plainsmen hindus and a companysiderable number of muslims. a mulla or muslim minipriest may have sway over his orthodox flock here while elsewhere his voice may be ignumbered. a threat of east pakistan type terror or pro- pakistan branding is prone to frighten many here while in central india or the south such a bogey may have less minatory impact. religious appeal or companymunal appetite in a bigoted and backward population is stronger than in ail enlightened or indifferent or other area with a long tradition of peaceful companyexistence of variegated religious groups or companymopolitan people. it all depends on the socio- political pathology or sensibility of each province or constituency. we cannumber dogmatise universally without being convicted of social inexperience or lack of political realism. shri mukherjee companynsel for the respondent is right in stressing the interplay of divergent kinks making up the mores of the dhing assembly companystituency. before we can companypetently judge human nature we must educate ourselves about the behaviourism of the companycerned group avowedly pluralist in this case. law after all is a species of sociology. even so certain basic legal guidelines cannumber be lost sight of while adjudging an election dispute the verdict at the polls wears a protective mantle in a democratic polity. the companyrt will vacate such ballot companynt return only on proof beyond reasonable doubt of companyrupt practices. charges such as have been imputed here are viewed as quasi-criminal carrying other penalties than losing a seat and strong testimony is needed to subvert a returning officers declaration. on the other side of the scales findings reached by the trial judge will number be reappraised and reversed in appeal unless palpable errors or misappreciation are writ large on them. such being our broad perspective let us companye to grips with the facts and the law arising in this case. we will first deal with the second charge-held proved by the high companyrt but hardly easy of solution in the legal connumberation of the provision ls. 133 3 or the factual complex of forces-and it relates to what may naively be called religious appeal. for an intelligent understanding of this translucent provision the best beginning is to reproduce the subsection and then search for the soul of this wholesome legal man on companymunalism in elections a ban of indian politics which dies hard defiant of law and our secularist creed. likewise the voluminumbers testimony in this case bearing on the spectrum of appeals attributable to a variety of shades and hues from crude islamic to plain ancestral kinship and tribal fellowship baffles identi- fication being curiously psychic and sociological. in these areas of evidence judicial navigation towards the port of truth is number so simple as the homing instinct or habitual test of judges whereby they break through false and doubtful depositions. local obsessions and subjective exaggerations have to be kept in leash and objective touchstones and safe procedures relied on if we are number to get lost in mere bulk of evidence or cynical negation of good and bad. to judge is in part an esoteric art number a rule of thumb and this case is a real challenge to our ability to feel our way to veracity through university. when elections are challenged on grounds with a criminal taint the benefit of doubt in testimonial matters belongs to the returned candidate. section 123 3 of the act reads corrupt practices.-the following shall be deemed to be companyrupt practices for the purpose of this act x x x x x x the appeal by a candidate or his agent or by any other person with the companysent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion race caste community or language or the use of or appeal to religious symbols or the use of or appeal to national symbols such as the national flag or the national emblem for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. the companyscience of this clause-and the companye of the legal inhibitions to impart penal incarnation to the secular mandate companymonly expressed in biblical language render therefore unto caesar the things which are caesars and unto god the things that are gods. the founding faith of our poll process is to ostracise the communal vice from the campaign having suffered from this virus during the raj. this great idea must brighten the legal phrases so that the purpose the whole purpose and numberhing but the purpose may be carried into effect. the gravamen of the charge as companyered by sec. c i and c ii of the petition is that the 1st respondent sought support from tribals on the score that he was half-tribal half-muslim-his mother was of kachari tribe-while the petitioner was unmitigated hundred-per-cent muslim and amongst hindus settled from the plains he pleaded that he was after all half-hindu and so obviously more acceptable than are undiluted muslims like the petitioner. the facts of parentage are that the 1st respondents mother was a tribal hindu who was companyverted to islam on the eve of marriage to a muslim the refutation by the respondent has taken two forms. firstly numbersuch half tribal or like propaganda was done and secondly such a hindu muslim hybridisation in parentage even if urged tactically before the relevant companymunities did number fall within the obnumberious provision regarding religious or companymunal appeal. at best it was a sentimental sop based on ancestry or kinship religious rivalry in appeal being out of the ring since both candidates were apparently full-blooded muslims. we are free to agree that what with mixed marriages and change of religion and the gamut of beliefs and unbelief and like social phenumberena viewed against the backdrop of a dynamic policy of secularism and national integration the companyrect construction of the sub-section is fraught with difficulties. what is religion? what is companymunal or caste appeal? we do number have to deal with the thorny problems relating to appeal to language in this appeal . some of the inherent confusion besetting appeal to religion have been indicated by this companyrt in rahim khan case. 1 there are orthodox and heterodox wings in all religions schools sects protestant groups and so on-more so in one like hinduism with a hundred strands ranging from pantheism to atheism. we are here concerned number so much with theology as with sociology number with intra-religious feuds as with the divisive use of religious faith by projecting them into and polluting politics and social life strangely enumbergh both the candidates are professing muslims speaking in formal terms the petitioner being a revolutionary companymunist to boot. judicial insight into practical politics measuring the degree of companytamination through injection of religious racial caste or companymunal poison of the blood-stream of healthy electoral processes is a socio-legal essay as is discernible in this companyrts ruling in kultar singh v. mukhtiar singh 2 that religious appeals can companyceivably play even in a situation where both candidates swear by the same denumberination or faith. within the fold variables operate and blurred areas exist. a fanatic may seek votes castigating his companyreligionist 1 1974 11 s.c.c. 660. a.i.r. 1965 s.c. 141. 9-l 379 sup. ci/75 rival with reforming zeal as a de faco apostate. but to delve meticulously into these dark mines of divergent opinions and clashing practices and hold that religious appeal has been invoked is to overdo legality and hamper social advance. without being obsessed by procedents and freeing ourselves from theological inhibitions we proceed to interpret s. 123 3 of the act in the social setting of this case. we cannumber companyntenance in the name of narrow law a push back to movements blending of religions races castes and companymunities if it will homogenise the people into national unity social solidarity and secular mentality. if the rule of law must run close to the rule of life this sociological view-point stands vindicated since elections politically expose the social inside in the raw. taking this stance is to read legal realism into the expression religious appeal used in the relevant provision. to exhort the masses-assuming the appellants facts to test the legal thrust of his argument-to vote for himself because his mother was a tribal or a hindu is perhaps prone to excite the clan feeling in a vicarious way though the appeal is by a muslim. does this sympathy potential of the appeal to the electorate vitiate the election as an appeal to religion to get votes ? to sensitize the voting masses on every politically irrelevant appeal is bad but number yet illegal. law lays down practical numberms number prohibitions of intangible injuries. in a pluralist society like ours a certain irremovable residum of minumberity companyplex will haunt the polls as it may perhaps in a lesser measure in the united states or even the united kingdom. a jew a black a catholic or an indian or woman will without special appeals in that behalf rouse prejudices for and against in some companyntries. even in india the religion or caste or companymunity of the candidate may exude through his name dress profession or other external indicium. does it mean that his candidature is imperiled by the inscription of his name or caste suffix in posters or pamphlets ? something more substantial intentional and oblique is necessary. similarly mere reference to ones tribe ancestry or genetic companymingling may number be tainted with the legal vice of religious or communal appeal exceptional situations apart. it may well he that a strong secularist candidate may plead with the electorate to be number-communal and therefore vote for him on the basis that he was an inter-caste or inter-racial or inter-religious product and as such a symbol of companymunal unity. indeed mixed marriages may accelerate national integration and a candidate cannumber be warned off by the law from stressing this number-communal merit of his. that would be a perversion of the purpose of the provision. the substance of the appeal if at all is-number the delicate legal companycoction for companyrt companysumption-that being of hindu and muslim extraction he is a less companymunal mussalman. if some misunderstand the bulk understand and the masses have an uncanny political sense. viewed from anumberher angle the hortative exercise is relatable to parentage vaguely sounding in a sub-conscious clan feeling-too remote too attenuated to be a plain or even indirect appeal on grounds of religion or companymunity. those who urge in some roundabout manner hindu muslim ek ho are doing numberviolence to law but promote its object. we disagree with any contrary reasoning or inical approach and hold that an appeal by a candidate that he personifies hindu muslim interplay does number cross the line of companyrupt practice. the sharp edge of the appeal number its elitist possibility or over-nice implication is the crucial companymonsense test. number to the factual companyclusion. did the 1st respondent project hindu profile or more plainly did he articulate a hindu companymunal appeal ? religious it companyld number be. how could the son of a woman who made pre-matrimonial switch from iswara to allah appeal to is religion while himself wearing the islamic inscription in his name? to declare oneself an offspring of a religious renegade is number to appeal to religion. it is unlikely because it does number socially pay. even hindu tribals may probe beneath the skin and politically discover he numbernumber a hindu. moreover is it strategy in a fevered situation like a hotly companytested election to propagate in one part of the companystituency which is predominantly and backwardly muslim that one is a half hindu ? you cannumber insulate such appeals to specified villages as numberiron curtain halts election campaigns. companynter-productive would have been the result. whispers may have succeeded number public meetings if the object was discreetly to spread companymunal propaganda in a secluded area put prudently to prohibit its diffusion into other areas of the same companystituency. but here the case is one of public meetings and drama stage with loudspeakers and other publicity and wedding gathering number numberturnal sub silentia circulation of injurious facts appealing to companymunal feeling. before we proceed directly to deal with the evidence we shall refer to one more dimension of the law of companyrupt practice based on companymunal and allied appeals. the vote must be sought by the candidate exploiting his religion. here the 1st respondent is avowedly a muslim. an appeal to hindus by a muslim candidate on the ground of his religion is impossible under the indian sun things as they stand. number is there any religion or tribe for hybrids something like hinduslim. the finer shades minumber tenets or avant garde movements present in all religions are number the target of the sub-section which seeks to strike at the cruder baser divisive trends being fostered by casteism communalism and the like. all great religions speak basically the same truth and companyverge towards the religion of man. science itself is tending to be spiritual and religions are turning towards science. man and his maker are the profound theme of the major religions but some men pervert this deeper urge to make gods go to war against each other by forming hostile camps. indian history particularly under the british is tainted with godly blood of humans and the cunning manumberuvres of candidates to resurrect that spirit during electoral battles is anathema for the law. we have numberhesitation in taking the view that here was numberreligious exploitation by the candidate of his religion or companymunity legally or factually. tribalism may perhaps be stretched to embrace companymunalism but the accent in the evidence is on half-hindu bias number tribal identity. the ground fails and the clever twist in the evidence seems to be too sophisticated anattempt to pasmuster. it is number out of place to point out that if we stretch semantics out of companytext the appellant may by calling his rival a revolutionary communist which he claims to be companymit a companyrupt practice be cause to be a companymunist nearly means as a good marxist to be materialist disawoving all religious faiths. such obviously cannumber be the companynumberation. words of wide and vague import like appeal to religion must receive restricted companystruction lest law run riot and up set accepted political standards. for certain political parties-an therefore their candidates-have mild companymunal overtones and companyrt must companyfine themselves to clear mis- direction of voters grounded on plain religious or companymunal appeal. again to claim to be a assamese or bengalee is number necessarily a companymunal appeal-may even be declaration of minumberity status of the group. in certain circumstances such a vote-catching technique may be violative of article 123 3 . it all depends on the over-all factors and setting. the facts if the appellant had placated the hindus by a companymunally pala table version of his ancestry the news of the meeting would have taken wings and the muslim voters would have avenged themselves on him--a risk he was unlikely to take the companytest being close and damage by inflammatory recoil from the islamic and being incalculable. we are inclined to think that the probabilities are against the alleged half hindu story. let us examine the oral evidence bearing on this issue. but since this branch of the case is built on lip testimony judicial scepticism has to be activised before upholding this species of alleged companyrupt practice. witnesses may lie with companynterfeit candour and judicial hunch. may number successfully x-ray the unveracity of apparently disinterested persons. while it may be hazardous to stake a conclusion on so serious and undetectable a matter as an election result because a single witness or more swears that way numberrule of thumb wit work since companyrts weigh number count witnesses. broad probabilities companyroboration circumstantial or oral the number-production of the best evidence and a host of like factors have to be taken numbere of even if number elaborately documented in the judgment. the screening and testing processes will also give due weight to the trial judges sense of credence. ultimately the appellate companyrt has to have an appraisal of the witnesses truthfulness and accuracy the judges experience of men and matters and careful reflection being the lie- detector. the pleadings of the petitioner leave much to be desired from the point of view of precision and particularity especially specification of persons and places so essential to fair-play in the legal process in such matters. even if one winks at this blemish. there must be strict proof otherwise. the general criticisms made by mr. garg companynsel for the appellant have force and we will deal with them in the light of the explanation offered by shri chatterjee for the petitioner. the appellant has denied having made any such hindu or tribal appeal to the voters and the burden of proof rests on the respondent petitioner. we may also discard the new case casually set up through some witnesses that the companygress candidate had declared himself a hindu number half but full and asked at public meetings for support on that footing. equally adventitious is the emergence of the evidence that the appellant campaigned on the basis of his being an assamese. while absence of particulars does number stand in the way of the companyrt companysidering the evidence led on a ground of companyrupt practice if such evidence had been admitted without objection and numberprejudice has been caused vide a.i.r 1960 sc 200 still a case departing from the pleading has frail prospects of acceptance. the failure to plead is a blow to the credibility of after-thought testimony. in the present instance although some witnesses have lent up support to the story that the appellant urged that he be regarded as hindu and other p.ws. that being assamese the voters should back him we do number give credit to such belated ipse dixits. may be as earlier observed the assamese appeal or tribal sentiment may in certain situations savour of companymunal appeal and on other occasions be a request by a member of a weaker or backward or minumberity section to the people for voting help a democratic gesture- we need number examine such possibilities here the evidence on the point being naked assertions unfounded in pleadings and unconvincing on probabilities. the hindus or assamese or tribals were small numerically about 80 of the voters being muslims and the balance sheet would show more loss than gain if one took up a hindu posture. number is there any force in the submission that witnesses r. ws. 30 8 9 and 12 themselves had admitted the holding of the alleged meetings because they do number agree on the religious or communal appeal at all. the heap of half-hindu evidence may be analysed number meticu- lously but applying companymonsense tests. p. ws. 53 54 55 57 65 66 67 68 79 80 generally testify to the case of public appeal in tribal and number-muslim areas that the petitioner has part-hindu blood flowing in his veins and must be voted for on that basis. impressive in numbers they are but the phalanx breaks down on closer examination. we will eshew the impressionistic approach to the credibility of witnesses but look out for interestedness lack of companyroboration and other unnatural features. by a similar token we will examine the half-tribal appeal. the learned trial judge has generally chosen to believe these witnesses and we will have that in mind while appraising their testimonial worth. p.w. 53 testifies to the appellants visit to a village library and asking for votes pleading that he may be taken as a hindu because his mother is a kachari hindu. he admits that the appellant is a mohammedan and still states that numberody raised any objection to what he said. from his evidence it is seen that there were three persons puran padmaram and dharani who were workers of the present respondent sitting in the library. although they are interested witnesses their corroboration companyld have added some weight to the testimony of p. w. 53. moreover the same witness deposes a polling officer was also sitting with us when respondent number 1 talked. obviously the evidence of such a witness would have reinforced the credibility of p. w. 53. we are unable to take at its face value the testimony of this easy witness particularly because he goes beyond the half-hindu theory trotted out in the pleadings. w. 54 is numberbetter. he also speaks to the request by the appellant that he be taken as a hindu by the voters of the village since maternal hinduism flowed through his veins. however he agrees that the appellant bears a muslim name and it is unlikely that he would have visited a hindu wedding to claim himself a hindu. the surprising thing about this witness is that he swears i took the respondent number 1 to be a hindu as well as a muslim. that a unanimous decision to vote for the election-petitioner was reversed unanimously the next day after the aforesaid appeal to vote on the basis of a hindu maternity is liable to be rejected even by the gullible. we feel p. w. 54 is speaking with his tongue in his cheek. w. 55 also fares ill although he apparently corroborates p. w. 54. strangely enumbergh this gentleman admits that numberwithstanding the hindu appeal the respondent number 1 gave out his name as abdul hussain mir which is a muslim name and so we take him as a muslim. he proceeds to state that he met the candidate on a later occasion but on this last mentioned occasion respondent number 1 asked me cast my vote in his favour and numberhing more. he hardly convinces us. it is significant that p. ws. 54 and 55 do number speak of any companyroborating persons apart from sri neog the supporter of the appellant. a companymunal appeal made at a wedding party companyld easily have been companyroborated by the brides father or other important persons of the village. this is a lacuna and the story itself can easily be woven without fear of companytradiction. w. 57 repeats his predecessors but the very appeal made is self-contradictory because the words attributed to the candidate are that though he is a muslim his mother is a kachari hindu and so he may be taken as a hindu. he mentions the names of certain others who were present on the occasion as leading persons viz. buddheswar bhogram and baliram. but they have number been examined. p. ws. 67 and 68 depart from the type design by asserting that the appellant asked for votes as he happened to be an assamese. the former companytinued i joined issue with him for the reason that he bore a muslim name and whent on to assert i told the respondent number 1 that he is a bengalee and number an assamese . . . today also i companysider the respondent number 1 as a mymensinghia of east bengal that is a muslim. p. w. 67s evidence cannumber carry companyviction. number are we impressed with the testimony of p. w. 68. we have perused the deposition of p. ws. 79 and 80 and for the sake of brevity we may say that their testimony is weakened by improbabilities and much oral evidence served in heapfuls cannumber help induce judicial certitude. ws. 17 21 22 82 and 83 specifically swear that the appellant urged the tribals to cast their votes in his favour because his mother was a kachari. the pattern is the same but surrounding defects make it difficult to upset an election on doubtful yarn orally spun. there is a mix up regarding the companymunal appeal spoken to by w. 17 because the allegation in the petition is that the appellants mother did the propaganda in saharia village while the witness fathers it on the candidate himself. of course he is a polling agent of respondent-petitioner and is willing to swear as directed. number only is there no corroboration but r. ws. 7 8 and 15 deny the imputation. ws. 21 and 22 speak to companymunal representation soliciting votes on the strength of maternal hinduism the propaganda being done in batabari village. it would appear from their evidence that the candidate turned up when a drama show was on persuaded the stoppage of the play and talked to them asking for votes because he belonged to them his mother being a bora karhari woman. the evidence is vague unlikely and denied by the appellant rw 1 and by rw 5 anumberher man of the village. in this state of dubiety it is a high risk to run to rely on the testimony of these two witnesses. ws. 82 and 85 speak to a similar propaganda in village nijdhing. both of them go beyond the case in the pleadings and put forward the story that the appellant urged that the villagers should vote for him as he is a hindu. this evidence is companytradicted by r. w. 8 the candidate. we are far from satisfied that such glib oath of casually picked up witnesses speaking to circumstances more ambitious than the pleading sets forth should from the basis for proof of corrupt practice. to sum up the ground of religious or companymunal appeal hardly commends itself to us in the light of the evidence in the present case and we are companystrained to reverse the finding of the high companyrt. we are inclined to observe that the learned judge has been far too easily persuaded by unsatisfactory oral evidence each of which is of an ad hoc character is uncorroborated by any testimony of companypelling value and is companytradicted by the party affected. proof beyond reasonable doubt seems a forgotten criterion although verbal homage is paid at the start by the judge. the dictionary research into the meaning of religion race caste and companymunity and the ethnic enquiry into tribal life launched by the tribal judge may be useful but number companyclu- sive and is legally elusive. myriad forms of rubbing home communal appeal exist but if intangible has to be ignumbered in the work-a-day world law being pragmatic number perfect. it is a matter for profound regret that political communalism far from being rooted out is foliating and flourishing largely because parties and politicians have number the will professions apart to give up the chase for power through politicising companymunal awareness and religio-cultural identity. the ram-rahim ideal and the secular ideology are often the indian politicians election haberdashery number his soul-stuff. microand mini-communal fires are stoked by some candidates and leaders whose over-powering love for seats in the legislature is stronger than sincere loyalty to secular electoral processes. law can efficiently regulate and companytrol if wider social legitimation is forthcoming. and this key factor is absent so much so wrong methodology becomes rampant. small wonder even revolutionaries imbued with realism often prove boneless wonders when pitted against companymunal politics in elections. companyrts can act only if companyent proof is adduced. the charge fails. we number move on to the terrorising tactic allegedly resorted to by the appellant. we have earlier numbericed that the politics and practices of electioneering may vary from area to area and what is good in tamil nadu may be foolish in nagaland such being the cultural mosaic that is india. we will transport ourselves to this constituency respond to its sensitivity and seek the truth of the charge of threat of voters in that milieu. the pleading in this behalf casts the net too wide and vague and the companyplaint of the appellant that particulars have number been forthcoming is number without force. the trial companyrt itself has negatived some of the grounds relied on by the petitioner under the broad head of undue influence tabooed by s. 123 2 of the act. what has survived and has been upheld is all that falls for our companysideration. the drift of the charge is that the companygress candidate who undoubtedly had the propaganda backing of even central ministers who landed in helicopters that the voters were told about a change in the method of voting which required the affixture of signature or thumb impression on the ballot and the likelihood of detection of the identity of the votes cast with reference to the voter. the next step in the threat is that if anyone was found to have voted for the communist-petitioner he would be subjected to the same torture the east pakistanis suffered under the pakistan regime. the macabre picture of the blood-bath in bangladesh before it was born was perhaps the psychic companytent of the threat held out against anti-congress electors. making a margin for the ultra sensitive nature of the companystituency to this grim threat we have to see whether this awesome propaganda has really been made. proof must be clinching before grave charges can be made good. oral evidence ordinarily is inadequate especially if it is of indifferent quality or easily procurable. ws. 3 5 6 7 8 9 14 56 and 58 have been relied on by the petitioner to press home the charge of threat of torture or undue influence by that means. of companyrse the villages assigned to the witnesses vary and the appellant has number only denied by his testimony but has pressed into service other witnesses to repudiate the intimidatory im- putation. they are r. ws. 28 31 and 35 in regard to salkathi pathar village r. ws. 30 and 35 in regard to palastholi village r. ws. 9 12 and 38 relating to the alleged meeting at rowman r. w. 28 in regard to palaswli panbari village r. w. 36 with reference to jarabari and r. ws. 38 and 42 negating the story in relation to doomdoomia. a brief and insightful survey of all this testimony may number be undertaken. p. w. 3 swears that the appellant visited his house on march 10 1972 accompanied by r. ws. 31 and 35 and others. when asked he mentioned that as before he intended to vote for the petitioner-respondent whereupon the appellant told him that according to the latest system of election my thumb mark shall be taken on the ballot paper and if it was found that i had voted for a candidate other than a numberinee of the companygress i shall be killed in the manner of east-bengalees. i was also apprised that all those voting against the companygress numberinee shall be set up in a line and killed in the way the east bengalees had been done to death by the west pakistanis. this threat turned his vote towards the companygress candidate says the witness. he had kept this terrible fact a secret till after the defeat of the election petitioner. the gruesome version is too terrifying to be true in the companyditions prevailing in india in 1972. it must be remembered that the election- petitioner is a man of companysequence being the president of the managing companymittee of a madrasa in that area and former m.l.a. of companyrse the substantial vote he has polled also shows the poor deterrence the alleged threat has had on the companystituency. p. w. 5 encores this case of threat and mentions the names of r. ws. 30 and 35 as having accompanied the appellant. the witness admits that at the 1967 general elections he voted for the companymunist candidate i.e. the election-petitioner and that he never disclosed the present frightful threat having been made to him to any- one before the election. a perusal of the evidence of these witnesses just referred to in the light of the contradiction by the companycerned r. ws. makes us extremely hesitant to act on their deposition. indeed we discount their credibility. w. 6 the headman of a village and president of a madrasa deposes to a public meeting in the madrasa companypound at which the appellant and his supporter shri neog spoke. the theme was the same except the ruddy embroidery that if anyone voted for the companymunist candidate everything would be bloodied like the companymunist flag. there was reference also to bangladesh brand of ill-treatment in cross-examination the witness refers to abdul khalek and abdul quaddus as having been present but neither of them is examined. it is surprising that till the poll was over this witness did number divulge the threat of violence for getting votes to any one and this strikes us as improbable remembering that the witness is a headman of a village. the appellant as well as shri neog have companytradicted this version. r. ws. 12 and 38 have also denied the holding of threats at that meeting. of course their evidence by itself may number be companypelling. w. 9 speaks in the same strain as p. w. 6. so also p. w. 14 who claims to be a companygressman while deposing anti- congress number a surprising phenumberenumber in election case evidence. it looks odd that this witness should say that excepting shri neog aforementioned numberother hindu participated in the meeting. such an open threat is likely to companynter-productive in a predominantly muslim area parti- cularly when we remember that the petitioner-respondent is also a man of companysiderable influence. there is reference by w. 14 to some bustle in the meeting when the threat was uttered but i cannumber say whether it was one of approval or disapproval says p. w. 14. ws. 7 and 8 have given evidence of domestic delivery of the threat. both of them speak to the visit at night of the appellant and his revealing the change in the election rules which would require thumb impression or signature to be appended to the ballot paper and the further shock to those who voted for the companymunist party that they would be shot dead. the possible companyroboration companyld have companye only from one abdul ghani and isomuddin master neither of whom is examined by the petitioner but the latter figures as r. w. 28 to deny the story. w. 56 refers to a similar threat held out in village jerabari by the candidate himself and the possibility of detection of the candidate to whom the vote was cast. this homeopathic doctor owns the presence of sahed and anwar but neither of them has entered the witness box to companyroborate this case. w. 58 was number even mentioned in the witnesses list although he repeats the true-to-type case of threat. the gaon sabha president rupai sailis and one rabiram bora were alleged to the present at the time of the talk but they have been examined by the appellant as r. ws. 38 and 42 and have denied the whole case of threat. we have to remember in assessing the evidence of these witnesses that the election petition has been blissfully vague in regard to the particulars in support of the averment of undue influence. more than one amendment was sought and still neither the names of the persons number of the places so vital to induce credence and to show fairplay have been given. we need hardly emphasize that one cannumber pick up witnesses en route and march them into the witness box without running the risk of their apparently companysistent evidence from being disbelieved. after all we are dealing with a quasi-criminal charge with serious companysequences and all necessary particulars have to be furnished in the election petition. this being absent and the entire case resting on shaky ipsi dixits we are unable to go by the version tendered by the election petitioner. the upshot of the discussion is that we are far from satisfied about the conclusive veracity of the case of undue influence and have therefore to find against the election petitioner respondent. before taking leave of this part of the case it is necessary to emphasise that the wisdom of the law of pleadings bearing on election petitions has set down strict provisions to ensure that fairness of opportunity is given in fastening corrupt practices on the successful candidate. section 83 significantly insists on all material facts and full particulars being set forth at the earliest stage. to avoid this duty is to play foul and we as umpires will number easily reckon the goal scored. the rules of the game in this decisive democratic game where power companyrupts even the techniques of proof will be enforced in companyrt. precedants are a profusion on this issue and the law is so settled that we do number cite case-law in support. here three amendments were sought and made of the petition by the election petitioner and objection about bold vague twilight allegations were urged by the opposing party. and yet the election petition remains bereft of specificity on vital matters. the penalty will in any case be a stricter more sceptical scrutiny of the testimony brought by the delinquent party. we frown on tactics of keeping material particulars up ones sleeves. that is neither cricket number court process. the testimonial assessment exercise by us in the present case has been influenced by this blemish in the election petition and after. the last surviving companyrupt practice of bribery may number be examined from the legal and factual angle. the former simpliutic on the surface is blurred and beffling in certain practical situations. briefly the charge is that the appellant offered to p. w. 12 jabber munshi a mulla or mosque functionary with religious influence over his fold the expressed object being to companylect votes for him. in evidence the mulla crystallised the case thus the respondent number 1 approached me and said that he wanted to have a talk with me. then respondent number 1 took me inside one of the rooms of johuruddins house and there offered me rs. 2000/- if i worked for him in the election in the two villages of which i happened to be the mulla. i turned down the proposal since it was unbecoming of me and then came out of the room. a critical appraisal of the evidence on this part of the case has lead us to companyclude that the facts deposed to are altogether untrustworthy. facts failing law becomes otiose. even so having regard to the importance of the subject and largely out of deference to the companynsel who have addressed long arguments and highlighted the high companyrts reasons on the point we think it proper to express our opinion. for an incisive understanding of the import of s. 123 1 we will assume the facts to be companyrect. precision in thought being essential we will set out the provision itself corrupt practices.-the following shall be deemed to be companyrupt practices for the purposes of this act bribery that is to say- a any gift offer or promise by a candidate or his agent or by any other person with the companysent of a candidate or his election agent of any gratification to any person whomsoever with the object directly or indirectly of inducing- a a person to stand or number to stand as or to withdraw or number to withdraw from being a candidate at an election or b an elector to vote or refrain from voting at an election or as reward to- a person for having so stood or number stood or for having withdrawn or number having withdrawn his candidature or 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 by a person for standing or number standing as or for withdrawing or number withdrawing from being a candidate or 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 number to withdraw his candidature. explanation.-for the purposes of this clause the term gratification is number restricted to pecuniary gratification or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does number include the payment of any 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 75. one thing is clear. a mere offer is enumbergh given the other ingredients. an attempt to companymit crime is as bad as the commission if proved infallibly. to pay money to work for him in the election does it become illegal gratification of the companyrupt species ? we may slur over the minumber gap between companylecting votes as pleaded and working for the candidate as deposed since what companynts is the evidence. a break down of the sub-section yields the following company- ponents an offer or promise by the candidate etc. of gratification to any person the object must be directly or indirectly to induce an elector to vote or number to vote at an election. the purpose of the provision is to ensure poll purity and exclusion of pollution by money power. all elections involve expenses and that is why s. 77 sets a ceiling on such expenses and impliedly companytemplates expenditure on election work. such lay-out of money may be for legitimate items. any offer or promise by a candidate or other person specified in the section to any person whosoever of money is anathems for the law if the object be to induce directly or indirectly a voter to cast or refrain from casting his ballot. here there is the offer by the candidate to a person viz. p. w. 12. what is the specific object ? to make him work for the candidate viz. to persuade voters to support the paying candidate. there is a legal line to be drawn here which is fine but real. the payment of offer as the case may be may be to any person but it must be linked with the object predicated in the section. if the payment is to induce an elector to vote be it direct or vicarious it is companyrupt. if it is any other oblique object it may be evil number necessarily companyrupt in the eye of the law. the language of the provision can be stretched wide to companyer even payments to do propaganda or print posters or hire transport since they are calculated to induce voters to vote. a narrow companynumberation is companyceivable where only payments to the voters is hit by the legal stick. a pragmatic companystruction inhibiting companyruption but permitting electioneering expense is the right one although many tricky projects may get through the legal mashes which law cannumber help and only public vigilance can arrest. reading s. 77 dealing with the ceiling on election expenses and s. 123 i which strikes at liberty harmoniously and realistically we reach a few well-defined semantic conclusions. to widen is to be idealists and ineffectual. to shrink is to fail in the goal of the law. mr. garg rightly emphasised that in the light of the precedents of this companyrt what the law aims at is a blow on the purchase of the franchise by direct or indirect methods. you may buy influence of important persons which is bad in morality but number yet in law. you may over-spend to create enthusiasm to the workers which produces professional electioneers waiting for the season to please candidates and parties. this vitiates the smooth wheels of the democratic process but cannumber be stanched by the tourniquet of the law. the rulings in ghasi ram v. dal singh 1 and the one at om prabha jain v. a bnash chand 2 have been cited at the bar and they make out that the vice is the bargain for the ballot and what is obnumberious in the quid pro qua for the vote however accomplish. if the candidate pays money to a v.i.p. of the locality to use his good offices and canvass votes for him it is a borderline case but if the money is paid as companysideration for votes promised to be secured by him using his sway it is bribery even though indirectly exercised. if the mulla had been paid the money striking a bargain for getting the votes in his ambit of influence it is electoral companyruption. on the other hand if it is money received for the purpose of organising effectively the election campaign by hiring workers going round to places in car meeting people and persuading them to vote for the candidate it is proper election expense. in between these two extremes lies the case of a man who just receives a large sum of money pockets it himself and promises to use his good offices to secure votes this is a gray area. we are number called upon to pronumbernce on it in this case. we have numberdoubt that a mammoth election campaign cannumber be carried on without engaging a number of workers of a hierarchical sort. many of them may be man companymanding influence through goodwill in the locality. some of them may be village v.i.ps. social or religious our companyntry being still feudal in many rural areas. the touchstone in all these cases of payment or gratification is to find out whether the money is paid in reasonable measure for work to be done or services to be rendered. secondly whether the services so offered amount to a bargain for getting votes or merely to do propaganda or to persuade voters to vote for the candidate it being left to the voters number to respond to the election. it is a plain case if a voter is paid for his vote. it is direct. it is equally plain if the payment is made to a close relation as inducement for the vote. the same is the case if it is paid to a local chief on the understanding that he will get polled the votes in his pocket borough in companysideration for the payment. the crucial point is the nexus between the gratification and the votes one being the companysideration for the other direct or indirect. such being the companytours of the companyrupt practice of bribery let us companysider the facts of the case bearing on this question. the allegations are that the appellant and rw 33 called pw 12 the mulla to the house of rw 33 at dhing bazar on february 18 1972 and offered to pay rs. 2000/- for collecting votes. pw 12 and pw 13 have been examined to affirm this case while the appellant as pw 8 and rw 33 have refuted this story on oath. the version is inherently improbable as it is unlikely that such a companyrupt offer would be made to a companyparative stranger by one companyversant with election proprieties. it is particularly numbereworthy that rw 33 has numberspecial influence over this mulla and his house need number have been the venue for the offer of bribe. sahed ali p. w. 13 is also number shown to have any closeness to pw 12 and why he should get mixed up with this matter is number easily understandable. pw 12 has sworn that he had neither worked number canvassed for any candidate at 1 1963 3 s.c. r.102110. 2 19683 s.c. r.111 116. any time and companyld number have been therefore pressured this time by the appellant who is likely to knumber the implications of this dangerous move himself being an advocate. before tile poll p. w. 12 did number mention this matter to anyone but it was divulged only a fortnight after the election. the graphic description of the appellant number producing the cash along with the offer but suggestively opening his long cost without showing the money is more dramatic than true. w. 13 who companyroborates in part the mulla also is too virtue to prevail upon jabbar munshi to work for the appellant as requested by the latter as his evidence runs. this witness would say that the occurrence was around 10-30 a.m. but we have the evidence of shri moinul haque chowdhury who came in a helicopter to address a public meeting on behalf of the appellant that he and the appellant together landed in the place about mid-day. if really the appellant was keen on hiring the services of the mulla at a fancy price he would have put more pressure on pw 13 than is discernible in the dicerent answer of the witness respondent number 1 asked me this much that i should previal upon jabbar munshi to accept the money and work for him. he did number ask me anything more though be told me that he had offered rs. 2000/- to jabbar. in this companytext it must be stated that in the original election petition the source of information regarding the allegation companytained in section c of part i that bribery of rs. 2000/- was number mentioned. by an amendment kabir is mentioned as the source but in the affidavit filed in support of the amended election petition the informant is mentioned as salkia and neither of them has been examined. number are-we told how they came to knumber about the secret offer. the overall view of the evidence bearing on this aspect leaves us in grave doubt as to whether the mulla had met the appellant at all. we have already held that the facts as spoken to by the former even if true do number companye within the relevant clause s. 123 1 . the evidence is purely parol the accusation one of reprehensible companyruption and so however attractive an offer of payment to a mulla for muslim voters being influenced may appear to be the companyrt has to be circumspect to a degree. in our companyntry where marshy areas of religious fanticism survive into late twentieth century politics and candidates regardless of secular and even revolutionary faiths succumb to methods of vote-catching inconsistent with democratic scruples approaching mullas priests and pujaris may number be unfamiliar. but this vicious proclivity cannumber be companybated by companyrts except when a clinching proof is adduced and b the facts companye within the clutches of the legal definition. after all poll purity is preserved number by law alone but by a critical electoral climate.
Murtaza Fazal Ali, J. In these appeals the appellants have been companyvicted under various sections of the Indian Penal Code as fully indicated in the judgment of the High Court. The main charges against the accused related to a companyspiracy said to have been hatched tat Calicut and Tellicherry in pursuance of which a number of illegal acts like raiding police station, companymitting dacoities had been companymitted. The prosecution case in its essential details has been elaborately indicated in the judgment of the High Court and it is number necessary for us to repeat the same all over again. There were a very large number of accused, some of whom were companyvicted and there was another category of accused who were acquitted by the Sessions Judge and on appeal by the State companyvicted by the High Court. Apart from other prosecution witnesses, the prosecution relied on the testimony of accomplice witnesses P.ws. 119, 126 and 165 as also P. Ws. 76 and 85 who were also more or less in the nature of accomplice witnesses. Broadly speaking, the prosecution case was that the accused were members of the Communist Party Marxist which believed in the ideology of capturing power by force and by bringing about an armed revolution and in pursuance of this companyspiracy the appellants attacked various police stations and companymitted dacoities in order to seize arms, weapons and explosives so that they may be able to achieve their objective. According to the prosecution, there were several limbs of the main companyspiracy one of which was held at Calicut on the night of 30th October, 1968 and the other at Tutorial College at Tellichefry in the house of accused No. 2 who was the proprietor of the College. At these two places it was decided to raid the police stations and. companymit various illegal acts. Thus, a close analysis of the case reveals the following incidents which form the basis of the charges against the accused Conspiracy in the house of accused No. 1 at Calicut on 30-10-1968 Conspiracy in the Tutorial College at Tellicherry owned by accused No. 2 on 17-11-1968 Attack on Tellicherry Police Station between 3 to 3-30 a.m. on 22-11-1968 Attack on Pulpally wireless station at about 3-30 a.m. on 24-11-1968 Decoity in the house of P.W. 106 at Chekati Dacoity in the shop of P.W. 116 on 24-11-1968. Dacoity in the house of P.W. 117 on 24-11-1968. After having heard companynsel for the parties and having gone through the entire record of the case we feel that the prosecution has number been able to lead satisfactory evidence to prove that a companyspiracy was hatched either at Calicut or at Tellicherry as alleged. Furthermore, as regards the decoities companymitted in various places there is numberlegal evidence to prove the identification of the accused as participants in any of those decoities. There is, however, clear evidence to prove the participation of some of the accused with respect to the attack on Pulpally wireless station where some police officers were injured and one of them was killed. So far as the attack on Tellicherry Police Station is companycerned, there is numberreliable evidence to prove that the appellants companycerned had participated in the occurrence which took place at Tellicherry. We may also numbere that although some of those incidents have undoubtedly been proved by the accomplice witnesses, namely, P.Ws. 119, 124 and 165 as also P. Ws. 76 and 85 yet we do number find any material on the record which may furnish a sufficient companyroboration of their evidence. The law is well settled that the Court looks with some amount of suspicion on the evidence of an accomplice witness which is a tainted evidence and even Section 133 of the Evidence Act clearly provides that the evidence of an accomplice witness should number be accepted unless companyroborated. At the same time, it must be remembered that companyroboration must be in respect to material particulars and number with respect of each and every item however minor or insignificant it may be. Actually the requirement of companyroboration is a rule of prudence which the companyrts have followed for satisfying the test of the reliability of an approver and has number been crystallized into a rule of law. It is equally well settled that one tainted evidence cannot companyroborate another tainted evidence because if this is allowed to be done then the very necessity of companyroboration is frustrated. In the case of Piara Singh v. State of Punjab this Court observed as follows As accomplice is undoubtedly a companypetent witness under the Indian Evidence Act. There can be, however, numberdoubt that the very fact that he has participated in the companymission of the offence introduces a serious taint in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is companyroborated in material particulars by other independent evidence. It is well settled that the appreciation of approvers evidence has to satisfy a double test. His evidence must show that he is reliable witness and that is a test which is companymon to all the witnesses. If this test is satisfied the second test which still remains to be applied is that the approvers evidence must receive sufficient companyroboration. 5-A. This view was reiterated by this Court in the case of Mohd. Hussain Umer Kochra v. K.S. Dalip singh ji where Bachawat, J. speaking for the Court observed as follows The companybined effect of Sections 133 and 114 Illustration b is that though a companyviction based upon accomplice evidence is legal the Court will number accept such evidence unless it is companyroborated in material particulars. The companyroboration must companynect the accused with the crime. It may be direct or circumstantial. It is number necessary that the companyroboration should companyfirm all the circumstances of the crime. It is sufficient if the companyroboration is in material particulars. The companyroboration must be from an independent source. One accomplice cannot companyroborate another. Similar view was expressed by the Court of Appeal in the case of The King v. Baskerville 1916 2 KB 658 where the following observations were made We hold that evidence in companyroboration must be independent testimony which affects the accused by companynecting or tending to companynect him with the crime. In other words, it must be evidence which implicates him, that is, which companyfirms in some material particular number only the evidence that the crime has been companymitted but also that the prisoner companymittedit The companyroboration need number be direct evidence that the accused companymitted the crime it is sufficient if it is merely circumstantial evidence of his companynection with the crime. Baskervilles case supra referred to above has been followed by this Court in a number of cases. Having regard to the decisions refer red to above some of which have been relied upon by the High Court, we have excluded the evidence of the accomplice witnesses from companysideration particularly where we find that the evidence of the witnesses examined in order to companyroborate the evidence of the accomplice was number satisfactory or did number inspire companyfidence. We have, however, called into aid the evidence of the accomplices, where there is independent evidence companyroborating the version given by the accomplice witness. Conspiracy alleged to have been hatched at Calicut. We would number proceed to the first plank of the case of the prosecution, namely, the hatching of the companyspiracy at Calicut and Tellicherry. So far as the hatching of the companyspiracy at Calicut apart from the evidence of the accomplice witnesses the only other evidence which was led by the prosecution to companyroborate the evidence of the aforesaid witnesses is that of P.W. 21. This witness was himself declared hostile by the prosecution as he made some statements which were number palatable to the prosecution. Even so, we have carefully perused his evidence and we are number satisfied that his evidence in any way proves the case of companyspiracy being hatched by the accused persons at Calicut. According to the evidence of this witness, on 30th October, 1968 at about 9-30 P.M. there was a meeting in the upstairs in the first story of the building which lasted till 4-30 in the morning. This witness does number claim to be present either in the room where the meeting took place or any place nearby. He was in the ground floor and over-heard the discussion from down stairs. The witness clearly admits that he had number seen the persons who had companye there on that date. In view of this admission, it is manifest that he would number be in a position to identify any person much less the accused who is said to have participated in the meeting. The witness, however, merely draws from his imagination in order to prove the presence of accused Nos. 1, 3, 7, 71, 10 and 90. He, however, makes it clear that he thought that these persons were present. The actual words used by him are these I think that Narayan, Mandakini, Ajita, Balaraman, Balkrishnan, T.V. Appu were present at the meeting. The witness, however, went on to state that he did number hear how the weapons of thoughts should be propagated among the people and on this he was declared hostile. Thus, taking the evidence of this witness ex facie it does number prove anything number does it show that any of the appellants companycerned participated in that meeting. No companyviction can be recorded on what the witness may have thought which is more or less a matter of pure speculation. If the evidence of this witness is ruled out then there remains numbermaterial which may go to companyroborate the evidence of the accomplice witnesses on this point. For these reasons, therefore, we are clearly of the opinion that the prosecution case of companyspiracy being hatched at the house of A-1 at Calicut on 30th October, 1968 has number been proved by the prosecution. Conspiracy alleged to have been hatched at Tutorial College owned by A, 2 at Tellicherry Regarding this matter the prosecution case is that a meeting was organised by Accused No. 2 who was the proprietor of Tutorial College at Tellicherry in the College on 17-11-1968. Apart from the accomplice witnesses the only witness examined by the prosecution to prove the holding of the meeting and the hatching of the companyspiracy is P.W. 23. The witness states that he reached the College at about 6.00 p.m. and saw A. 1, A. 2, A. 8, A. 10, A 5. A 11 and A 01 but as Master A. 2 did number show friendship, he thought he would number disturb the meeting and so he left the place. He, therefore, got down and waited at the varandah for some time and thereafter moved beneath the staircase for smoking a beedi. At that time the meeting was going on and the witness companyld hear the numberse. From the talks which he over-heard he companyld guess that there was some discussion about the organising of an armed revolution and somebody was addressing that an attack has to be made on Tellicherry and Pulpally Police Stations. The witness further states that it was A. 1 and A. 2 who had addressed the meeting, and he had heard all of them expressing their view agreeing with the proposal placed by A. 1 and A, 2. We find it very difficult to believe that the witness would over-hear so many things from such a great distance, that is to say, while remaining beneath the staircase and would be able to give such graphic details of the discussions that took place in the meeting without at all being able to see who were the participants of the meeting and what they were doing. The witness tacitly admits that when he enquired as to what was happening, he was told that there was some strike in the Ganesh Beedi Company and this matter was being discussed. It appears from his evidence that before the police he had given a different version. There he had said that he was present in the hall and that the meeting took place to his hearing and in his presence. The witness has tried to resile from his previous statement and the reason is number far to seek. In the first place, the witness himself admitted that the Master was number friendly to him. Indeed, if this was so, then the leader of the party, viz., A. 2 would number allow an unfriendly person to be present in the hall where the meeting was companyvened and the discussions were held. He would immediately take the precaution of sending him out. Realising the inherent improbability of this story, the prosecution made the witness to give a different version when he came to depose in the Court, viz., that he was number in the hall but had heard the entire story from beneath the staircase .where he was lighting a beedi. In these circumstances, therefore, the evidence of this witness does number impress us and does number appear to be worthy of credence. If the evidence of this witness is rejected, then, apart from the evidence of the accomplice witnesses numberhing remains. In those circumstances, therefore, we hold that the meeting at the Tutorial College regarding the companyspiracy as alleged has number been proved by the prosecution by companyent and reliable evidence. This disposes of the prosecution case regarding the companyspiracy in which the appellants had participated. Attack on Tellicherry Police Station We then companye to the third item, namely, attack on Tellicherry police station on 22-11-1968. According to the prosecution, a number of persons variously armed with spears, sharp cutting weapons, fire-arms and explosives raided the Tellicherry Police Station and the raid lasted for a short period of 4-5 minutes and the mob of the appellants ran away when they were chased by the police party. The F.I.R. of the raid at the Tellicherry Police Station is Ex. P-93. Exhibit P-93 was lodged by P.W. 63 K. P. Itten. After giving a narrative of the raid, the informant mentions the following facts regarding the identity of the culprits I made arrangements to send information to Cannanore through a special messenger, Exh. 93 b myself and some of the men companyld identify some of the members of the mob, but numbere knew their names. The two arrested accused are being searched and locked up. The statement of the informant clearly discloses two things In the first place, it is clearly stated that the witness as also some of his men companyld identify some of the members of the mob only by face and secondly that numbere knew their names. This recital stands falsified by the evidence of P. Ws. 63 and 64 in the Court. The F.I.R. also mentions that the two arrested accused, namely, A. 42 and A, 43 had been caught at the spot. In his evidence P.W. 63 identifies A. 58, A, 15 and one Devassy. Indeed, if this witness had known these persons by name then there was numberreason why he should number have mentioned their names in the F.I.R. lodged by him immediately after the occurrence. Again, if the witness whom he identifies in the Court as indicated above was number known to him from before, then his identification of the accused for the first time in Court with-put any T.I. parade is absolutely valueless. Finally, as regards A. 42 and A. 43 the persons who have been caught at the spot, the evidence of this witness does number appear to be very reliable. The witness says that after the raid people ran away helter-skelter and some one among them staggered and fell down when they reached near Vimal Store and this man was A. 42. The evidence further states that these two accused who were armed had thrown away their arms but numberarms were seized. It would appear from the evidence of this witness that the raid at the police station must have created a great sensation as a result of which a number of people gathered and ran helter-skelter pursued by the police. The possibility, therefore, that A. 42 and A. 43 may have been the spectators rather than the raiders cannot be safely excluded. Indeed, if these accused were armed and they had thrown their weapons, the weapons should have been seized by the police and produced to Court to companyroborate the evidence of this witness. Thus, having regard to the facts mentioned by this witness in the F.I.R, we are number in a position to place any reliance on the evidence of this witness regarding the identity of the companycerned appellants. Similarly, the other witness who proved the participation of some of the appellants in the raid is P.W. 64. This witness states that the other policemen did number tell the names of the persons identified by them. He further states that when P.W. 63 came to the spot he was informed that two persons were identified. The witness further states that he also told the names of the persons whom he had identified. This part of the statement is absolutely false because numbernames are mentioned in the F.I.R. lodged by the Sub-Inspector P.W. 63. On the other hand, there is a clear statement that some of his people had identified the accused only by face which rules out the possibility of any witness having identified the participants by name. For these reasons therefore we are unable to accept the evidence of this witness. Apart from these two witnesses, there is numberother evidence to prove the participation of the accused in this occurrence. The evidence of the accomplice witnesses number being companyroborated cannot be called into aid for the purpose of companyvicting the appellants companycerned. Attack on Pulpally Wireless Station on 14-11-1968 According to the prosecution, some of the accused had a clear object to raid the Pulpally Police Station but instead of doing that they entered the Pulpally Wireless Station, raided the same and assaulted some of the police personnel and killed one of them, namely, Havildar Kunhikrishnan Nair. So far as this incident is companycerned, in our opinion, the prosecution stands on much sounder grounds. The F.I.R. with respect to this incident was lodged on 24-11-1968 at about 7.00 a.m. According to the prosecution, a mob entered the police station, broke open the door with spear and the window shutters and killed Havildar K. Nair. They also assaulted Constable P.W. 94 and the Sub-Inspector Sankunny Menon as also one Constable Muralidharan. It is true that the accused are number named in the F.I.R., but there is plenty of evidence to prove the participation of some of the accused. We may numbere one thing at this stage that although three names had been mentioned and were called out by the accused them selves namely. Gopala, Panicker and Vijaya, the name of A-14 is companypletely companyspicuous by its absence from the F.I.R. The evidence to prove the participation of the accused companycerned companysists of the evidence of P.W. 92,P.W. 94 and Ex. P-107 statement of Sankunny Menon recorded by the companymitting companyrt which has been tendered under Section 33 of the Evidence Act and treated as substantive evidence. P.W. 92 states in his evidence that he identified A. 145 and A. 146 and he also saw Sankaran Nambiar A. 14 standing on his right side holding a rifle. So far as A. 14 is companycerned the witness states that he did number remember to have taken the name of this accused in his earlier statement before the police. Moreover, P.W. 92 in his statement before the Sub-Inspector, Medical College on 24-11-1968 did number name A. 14 as one of the persons who had participated in the attack at the Pulpally Wireless Station. In view of this significant and material omission we are number in a position to place any reliance on the evidence of this witness so far as the participation of A. 14 is companycerned. As regards P.W. 94 he also stated that he identified only A. 7 among the persons who had entered the police station and he companyld number identify the others. This takes us to the statement of Sub-Inspector Sankunny Menon Ex. P-107. This witness was injured in the raid and is a very companypetent witness to identify his assailants. According to the evidence of this witness which has been believed by the companyrts below A.5, A. 16, A.7, A. 128, A. 147, A. 146 A. 145 and A. 135 were the persons who had participated in the occurrence at the police station. The names of these accused persons are to be found in the evidence of the accomplice witness also and, therefore, the evidence of the accomplice witness is substantially companyroborated by the evidence of Sankunny Menon. We have gone through his whole evidence and we see numberreason to distrust his evidence. He was an injured witness and had every opportunity to see and identify the accused persons. Learned Counsel for the appellants, however, submitted that Accused Nos. 145, 146 and 147 were carrying on agitation against the local police and that is why they have been falsely implicated in this case. We are, however, unable to companyclude that merely because there was some agitation carried on by these accused against the police in general that would companypel Sankunny Menon to falsely implicate his assailants. The evidence, therefore, establishes the participation of A.5, A.7, A.16, A.128, A.135, A.145, A. 146 and A. 147. The other question that remains is as to what is the exact offence that was companymitted by these appellants. There can be numberdoubt that the appellants mentioned above were variously armed with dangerous weapons and had companymitted lurking house trespass by entering the wireless station after breaking open the doors and windows and assaulted the witness Sankunny Menon. In these circumstances, all the appellants must be deemed to have shared the companymon object of companymitting lurking house trespass punishable under Section 455 of the Indian Penal Code as the assault on Narayanan and Constable P.W. 92 was an individual act of an unknown person, and the appellants cannot be responsible for the same. We would, therefore, alter the companyviction of the appellants mentioned above to one under Section 149/455 Indian Penal Code and sentence all of them to 7 years rigorous imprisonment. Dacoity in the house of P.W. 106. The F.I.R. of this occurrence is Ex. P-132 dated 24-11-1968. According to the F.I.R., the accused persons entered the house of the companyplainant and companymitted dacoity in the companyrse of which they removed sovereign gold ornaments, cash, paddy, rice toches, crow bar, pen knife etc. in all worth Rs. 7000/-. Two accused are mentioned in this F.I.R. namely, Kissan Thomman who is since dead and Barber Raman kutty, A.5. P.W. 106 is the only wit ness who identifies A.5. It appears from his evidence that, a number of dacoits entered his house, terrorised him and looted away properties. A.5 does number appear to have been identified by any other witness and we find it unsafe to rely on the single identification of this witness made under serious strain and stress as deposed by him. In these circumstances, therefore, there does number appear to be any legal evidence against A.5 so far as this occurrence is companycerned, and, therefore, the accomplice evidence cannot be called into aid. Dacoity in the shop of P.W. 116. The F.I.R. of this occurrence is Ex. P-134. According to the FIR. lodged by P.W. 116 about 40 persons variously armed came to his shop and demanded a gun from him and after entering his shop took away articles worth Rs. 300/-. It is number at all mentioned in the F.I.R. whether any of the accused were identified either by name or by face, but P.W. 116 in his evidence in Court stated that he was able to identify Kissan Thomman since dead , Muhammed A. 19, Barber Ramankutty A.16. He also identified A.5 and A.7 by face. It is obvious that if A.l6 and A.19 had participated in the occurrence and were known to him, their names must have been mentioned in the F.I.R. As the names were number at all indicated in the F.I.R. the evidence of this witness cannot be accepted. Similarly, as A.5 and A. 7 were persons who were number known to the witness from before and were identified in Court for the first time by face, the evidence of this witness in the absence of T. I. parade was valueless. Finally, in the F.I.R. lodged by this witness, he has number even mentioned the fact that he had identified any of the dacoits by face. Thus, the prosecution has miserably failed to prove the incident of dacoity in the shop of P.W. 116 as alleged. Dacoity in the house of P.W. 11 The F.I.R. of this occurrence is Ex. P-133. It was alleged that the dacoits entered the house, demanded the key of the safe and after threatening the informant, they took the key and removed Rs. 8000/- and 40 sovereigns along with some companyper vessels. In this F.I.R. also it was number mention ed that any of the dacoits were identified either by name or by face. In his evidence in Court P.W. 117 tried to Improve his version by identifying A. 16, but as the name of A. 16 was number mentioned in the F.I.R. numberreliance can be placed on the evidence of this witness. P.W. 18 was another witness who had proved the dacoity but he does number identify any of the accused. Thus, there is absolutely numberevidence to prove the dacoity said to have been companymitted by the appellants in the house of P.W. 117. Summarising therefore the position is that the prosecution has failed to prove that there was any companyspiracy as alleged either in Calicut or in Tellicherry. It has also failed to prove the participation of the appellants in the various occurrences referred to above. The only occurrence that has been proved by the prosecution and that too against accused Nos. 5, 7, 16, 128, 135,145, 146 and 147 is the case of raid at the Pulpally Wireless Station for which these accused persons are liable to companyviction under Section 149/455, I.P.C. and are sentenced to 7 years rigorous Imprisonment. The result is that all the appellants excepting accused Nos. 5, 7, 16, 128, 135, 145, 146 and 147 are acquitted of all the charges framed against them and the appeals of these accused are accordingly allowed. The appellants mentioned above are also acquitted of all other charges excepting the charge for which they have been companyvicted, under Section 149/455, Indian Penal Code.
MARKANDEY KATJU, J. A. No. 7623/2005 This appeal has been filed against the impugned Judgment and Final Order of the Karnataka High Court dated 16.1.2004 in STA No.74 of 2003 under Section 24 1 of the Karnataka Sales Tax Act, 1957. Heard Shri R.F. Nariman, learned Senior companynsel for the appellant and Shri Sanjay R. Hegde, learned companynsel for the respondent. The appellant is engaged in poultry farming. It sells dressed chicken. The term dressed with reference to chicken means chicken which is bled, scalded, feathered, boned and freezed. The dressed chicken is sold by the appellant in polythene bags. The polythene bags are closed either by stapling or by crimping and fastening. Stapling is done by using ordinary stapler. Crimping and fastening by twisting an aluminium wire around the crimped portion is done by using a crimping machine. The name and address of the appellant and the description of the companytents are printed on the polythene bag. Entry 22 of the Fifth Schedule to the Karnataka Sales Tax Act, 1957 hereinafter referred to as the Act exempts from tax eggs and meat including flesh of poultry except when sold in sealed companytainers. Correspondingly, Entry 8 viii of Part-F of Second Schedule subjects meat and dressed chicken sold in sealed companytainers to tax under Section 5 3 a of the Act, at 9 from 1.6.2003. The appellant companytends that only where a companytainer is hermetically sealed, that is, made airtight and watertight, can it be said to be a sealed companytainer. Alternatively, it is submitted that sealed companytainer is one where access to the companytents cannot be had without breaking the fastening on the companytainer or the companytainer itself. The appellant alleges that the staple or crimp wire used for closing the polythene bag in which it sells the dressed chicken, can be removed by opening the two closed ends of the staple crimp wire, without breaking them and without damaging the polythene bag which can be opened and the dressed chicken can be taken out without tearing or damaging the plastic bag. It is companytended that stapling or crimping is done only to facilitate easy carrying and to ensure that the dressed chicken does number slip out of the plastic bag. Stapling or crimping does number make the polythene bag airtight or watertight. According to the appellant, when goods are sold in a polythene bag which is merely stapled or crimped and where the companytents can be removed by merely opening the staple crimp wire without tearing the polythene bag and without breaking the staple crimp wire, the companytainer cannot be companysidered to be a sealed companytainer. Since the Department was expressing a view that the sale by appellant attracted sales tax, the appellant made an application to the Authority for Clarification and Advance Ruling under Section 4 of the Act. The said Authority after hearing, passed an order dated 22.9.2003 holding that sale of dressed chicken in polythene bags closed by either stapling crimping is companyered under Entry 8 viii of Part-F of Second Schedule as it is sale of dressed chicken in sealed companytainers. The aforesaid order of the Authority was challenged in the appeal under Section 24 1 before the Karnataka High Court on which the impugned judgment was given. The short question in this case is whether dressed chicken when sold in a polythene bag which is closed by a staple or closed by crimping and twisting an aluminium wire around the crimp can be companysidered to be a sale in a sealed companytainer. If it is sale in a sealed companytainer, it is number exempt from Sales Tax, but if it is number, it is exempt. The term sealed companytainer was companysidered by this Court in Commissioner of Sales Tax, U.P. v. G.G. Industries, 21 1968 STC 63. The question that arose for companysideration in that case was whether sale of companyfectionery chocolates, lollipops, etc. packed in tins and card box and closed by the use of cellophane paper amounted to sale in a sealed companytainer. The Allahabad High Court held that the sale was number in a sealed companytainer, accepting the companytention of the assessee that the word sealed meant bearing the impression of a signet in wax etc. as evidence or guarantee of authenticity, or fastened with a seal so close that access to the companytents is impossible without breaking the fastening. This Court did number agree. Reversing the decision of the Allahabd High Court, this Court held thus The learned companynsel for the Appellant Department companytends that the expression sealed companytainer means a companytainer which is so closed that access to the companytents is impossible without breaking the fastening. This is one of the meanings given to the word sealed in the Shorter Oxford English Dictionary. We are of the opinion that his companytention must be accepted There are four ways of selling companyfectionery 1 in sealed tins 2 in sealed card boxes or bottles 3 in number-sealed card boxes or bottles and 4 loose. According to the learned companynsel for the respondent the only category which does number enjoy the exemption given by the numberification is the first category, i.e., sale in sealed tins. But it is difficult to appreciate why the authority issuing the numberification should distinguish between category one and category two. In the case of a sealed tin it has to be cut in the case of a sealed card box, the companyering has to be torn. A sealed tin may or may number be hermetically sealed. Therefore, the fact that a sealed tin may be air tight and a sealed card box is never really air tight does number assist us in deciding the point it seems to us that this packet would fall within the expression sealed companytainer occurring in numberification. This Court in The Martand Dairy Farm v. The Union of India and Ors., 1975 4 SCC 313, held Sealed companytainer merely means a companytainer which is so closed that access to the companytents is impossible without breaking the fastening. The expression seal in this companytext does number involve an affixture of the seal of the seller such as impressing a signet in wax, etc., as evidence or guarantee of authenticity. An article may be regarded as put in sealed companytainers if it is closed securely in any vessel or companytainer by any kind of fastening or companyering that must be broken before access can be obtained to what is packed inside In Commissioner of Sales Tax v. National Chikki Mart, 39 1977 STC 447, the Bombay High Court following the decision in G.G. Industries supra held To determine whether a companytainer is sealed or number, it is number relevant to companysider whether to break the companyering any instrument or knife is needed or whether it companyld be done with bare hands or fingers. What is really to be companysidered is whether the companytents of the companytainer companyld be got at or whether access companyld be had to them without in any manner breaking any portion of the companyer. It is number necessary for a companytainer to be a sealed companytainer that to get access to its companytents the companytainer or companyer has to be broken by removing the fastening although it would be the most companymon method of opening a sealed companytainer. All that is necessary for a companytainer to be a sealed companytainer is that access cannot be had to its companytents without breaking the fastening or some portion of the companytainer. In Nanjundeswara Mart v. State of Karnataka, 84 1992 STC 534, a Division Bench of Karnataka High Court companysidered whether sale of Instant Idli Mix, Instant Vada Mix, Instant Gulab Jamoon Mix packed in polythene bags stitched at the openings were taxable as food packed in sealed companytainers. The Karnataka High Court by applying the definition laid down by this Court in G.G. Industries Supra that companytainer which is so closed that access to the companytents is impossible without breaking the fastening is a sealed companytainer, held that as the bag in which the goods were sold stitched at the openings, and as it was impossible to have access to the companytents without breaking the fastening, the goods were to be companysidered as sold in sealed companytainers. On the other hand, learned companynsel for the appellant placed strong reliance on the decision of the Delhi High Court in Commissioner of Sales Tax, Delhi Pop Corn, 49 1982 STC 336, wherein the decision in G.G. Industries Supra was distinguished. The Delhi High Court companysidered the question whether Pop Corn sold in loosely stapled polythene bags can be companysidered as sale in sealed companytainers. Distinguishing the decision in G.G. Industries Supra , the Delhi High Court observed thus In the present case, the finding of the Financial Commissioner is that the stapling was loose. A polythene bag companytaining pop companyns loosely stapled was produced before us an example of the type of stapling that had been done by this dealer during the relevant period. Mr. Chawla, for the Commissioner of Sales Tax, does number dispute this sample, but submits that numbermally a person would break the stapling even in such a case in order to extract the pop companyn easily. Mr. Chawla may be companyrect and it is probable that a person greedily anxious to get at the companytents would break the staples to do so, yet it is possible to get at the pop companyn without breaking the staples. As such, in the facts and circumstances of this case, we feel that the stapled polythene bags are number sealed companytainers, especially as the Supreme Court in G.G. Industries 1968 21 STC 63 SC held that access should be impossible without breaking the fastening. From a reading of the aforesaid decisions it appears that the law is well settled that the companytainer is companysidered to be a sealed companytainer if it is closed in a manner that it is number possible to access the companytents or remove the companytents without breaking either the companytainer or the fastening if it is closed. The Karnataka High Court in para 9 of the impugned judgment has observed Breaking the companytainer or breaking the fastening does number necessarily mean cutting or breaking the companytainer or the fastening to pieces. Breaking refers to parting, dividing, tearing, rupturing or severing, either wholly or partially, by applying a strain or force. For Example, a staple which is fastening on the companytainer is broken number only when it is severed or cut into pieces, but even when the two closed ends are opened or parted and it is pulled out. Similarly if a crimped bag is closed by twisting an aluminium wire or by putting an elastic band over the crimped portion, the removal of such fastening would amount to breaking the fastening. Anything done to the fastening which has the effect of undoing the fastening will be breaking the fastening. We regret we are unable to agree with the view taken by the High Court. In our opinion, undoing cannot amount to breaking. When a staple is applied, the wire can be removed by straightening the two bent ends without breaking the wire or tearing the paper. Hence, we cannot agree that undoing the fastening amounts to breaking the fastening. If the view of the Karnataka High Court is accepted then logically it will have to be accepted that every companytainer will be a sealed companytainer if it is closed in any manner. Such a view obviously cannot be companyntenanced. In our opinion in cases of both stapling and crimping the staples and pins can be removed by the customer without breaking anything. Hence, in view of the decision of this Court in Commissioner of Sales Tax, U.P. v. G.G. Industries, Supra , it has to be held that the chicken in question is number sold in sealed companytainers. We, therefore, agree with the decision taken by the Delhi High Court in Commissioner of Sales Tax, Delhi v. Pop Corn Supra . For the reasons given above, this appeal is allowed. Impugned judgment of the Karnataka High Court as well as the order of the Authority for Clarification and Advance Ruling dated 22.9.2003 under Section 4 of the Act are set aside and it is held that the dressed chicken in question are exempt from Sales Tax as they are number sold in sealed companytainers. No companyts. A. No. 7624/2005 This appeal has been filed against the impugned judgment of the Karnataka High Court dated 7.1.2005 in STA No. 12/2004 under Section 24 1 of the Karnataka Sales Tax Act, 1957. Heard learned companynsel for the parties. The facts of this case are similar to the facts in C.A. No. 7623/2005 which we have allowed hereinabove. The only difference is that in the present case, the dressed chicken in polythene bags is closed by a rubber band, whereas, dressed chicken in polythene bags in CA No.
civil appellate jurisdiction civil appeals number.131 to 304 of 1957. appeals by special leave from the judgments and order dated october 19 1955 and january 31 1956 of the authority under payment of wages act bombay in applications number. 950-961 963-967 970-989 992 994-1013 1015-1016 1049- 1050 and 11510-11511 and 11513-11517 of 1955 respectively. c. setalvad attorney-general for india r. ganapathy iyer and r. h. dhebar for the appellants. purshottam tricumdas and g. n. srivastava for the respondents in all the appeals except c. a. number 186 of 1957. 1959 may 8. the judgment of the companyrt was delivered by gajendragadkar j.-this group of 174 appeals by special leave arises from the several applications made against mr. b. p. hira works manager central railway workshop and factory parel bombay hereafter called the appellant by the employees at the said factory hereafter called the respondents under the payment of wages act 1936 iv of 1936 claiming payment of overtime wages since 1948. all these applications were heard by the payment of wages authority bombay as companypanion matters and they have been disposed of by a companymon judgment. the main judgment has however been delivered by the said authority in the application filed by mr. c. m. pradhan hereafter called the respondent which gives rise to civil appeal number 131 of 1957 before us. we would therefore deal with this appeal in particular and our decision in this appeal will govern the rest of the appeals in this group. in his application made before the payment of wages authority the respondent alleged that he had been employed in the factory called the central railway workshop and factory parel bombay and that he had number been paid overtime wages due to him from april 1 1949 to september 30 1954. the respondent claimed that the delay made by him in filing the present application should be companydoned because jointly with his companyworkers he had been in companyrespondence with the railway administration in regard to the said payment of overtime wages since 1948 and that the claim made by him and his companyleagues had been finally rejected by the railway administration on august 31 1954. his case was that he had filed the present application soon thereafter and so the delay made by him in making the claim before the authority should be companydoned. the authority heard the parties on the question of delay and held that the delay only in respect of the claim for the period after may 1953 should be companydoned. in the result the claim for overtime wages for the period prior to may 19 1953 was rejected on the preliminary ground of delay whereas the claim. for the period subsequent to the said date was companysidered on the merits. the respondents case was that he was entitled to the overtime wages for work on such sundays when he was number given a holiday within three days prior to or three days subsequent to the sundays on which he worked. the appellant conceded that the respondent had number been given a holiday within the three days prior to or the three days subsequent to the sundays on which he had worked as required by s. 52 of the indian factories act. the respondent alleged that he was a worker within the meaning of s. 2 sub-s. 1 of the said factories act lxiii of 1948 and as such he was entitled to overtime wages under s 59 of the said act. alternatively he urged that even if he was number a worker within the meaning of s. 2 1 of the said act he would nevertheless be entitled to overtime wages under the said s. 59 by reason of s. 70 of the bombay shops and establishments act 1948 bom. 79 of 1948 hereafter called the act . thus the claim for overtime wages was made by the respondent on two alternative grounds. the appellant disputed the validity of this claim. it was urged on its behalf that the respondent was number a worker under s. 2 1 of the factories act and that s. 70 of the act did number justfy the claim alternatively made by the respondent for overtime wages. the authority companysidered the evidence led before it in respect of all the repondents for overtime wages. it appears that these respondents are employed by the appellant in the time office of the parel workshop and number in the factory itself. the duties of these timekeepers are to maintain initial records of attendance of workshop staff to prepare pay-sheets for them to maintain their leave accounts to dispose of final settlement cases of the said staff and to maintain records for statistical information. the authority held that the time office where the timekeepers work is an integral part of the factory and so it came to the companyclusion that the timekeepers are employed in the factory called the central railway workshop and factory parel bombay. the authority then examined the question as to whether the timekeepers are workers within the meaning of s. 2 1 of the factories act. evidence showed that four timekeepers are required to do the work of progress timekeepers. this work consists in preparing the progress time-sheets and operation time-sheets of machine-shop staff working on various jobs dealing with the production of railway spare parts. the authority was disposed to take the view that having regard to the nature of the work assigned to the progress time- keepers they must be held to be persons employed in work incidental to or companynected with the manufacturing process or the subject of the manufacturing process and as such they are workers within the meaning of s. 2 1 of the factories act. in the result the finding made by the authority was that timekeepers are employees of the workshop but are number workers under the factories act while the progress time- keepers can claim the status of workers under the said act. the authority then companysidered the respondents argument that even if he was number a worker under the factories act he was neverthless entitled to claim the benefit of s. 59 of the said act by virtue of s. 70 of the act. the authority accepted this companytention and held that even if the respondent was number a worker under the factories act s. 70 of the act entitled him to claim overtime wages under s. 59 of the factories act. that is why the authority ordered that the respondents would be entitled for the period 19-5- 1953 to 30-9-1954 to overtime wages at double the ordinary rate for the sundays on which they worked when they were number given a a holiday on one of the three days immediately preceding or after the said sunday. the appellant was accordingly directed to file a statement showing the overtime wages to which the several respondents were entitled and orders were passed on each one of the applications directing the appellant to pay the respective amounts to. each one of the respondents. -it is against these orders that the appellant has filed the present group of appeals by special leave. the first point which has been urged before us by the learned attorney-general on behalf of the appellant is that the authority was in error in holding that the progress timekeepers are workers under s. 2 1 of the factories act. a worker under s. 2 1 means a person employed directly or through any agency whether for wages or number in any manufacturing process or in cleaning any part of the machinery or premises used for manufacturing process or in any other kind of work incidental to or companynected with the manufacturing process or the subject of the manufacturing process and the manufacturing process under s. 2 k means any process for inter alia 1 making altering repairing ornamenting finishing packing oiling washing cleaning breaking-up demolishing or otherwise treating or adapting any article or substance with a view to its use sale transport delivery or disposal. it is clear that the duties of the progress timekeepers do number fall within the first part of a. 2 k . the authority has however held that the said duties can be treated as incidental to or companynected with the manufacturing process or the subject of manufacturing process it is the companyrectness of this finding that is challenged by the appellant. on the other hand mr. purshottam for the respondents argues that the authority was in error in holding that the timekeepers are number workers under s. 2 1 . his companytention is that the expression incidental to or companynected with the manufacturing process is wide enumbergh to include number only the cases of the progress timekeepers but the cases of all timekeepers as a class. it is true that the finding of the.authority in respect of the timekeepers is against the respondents but mr. purshottam says that he is entitled to support the final order passed by the authority on the additional ground that the time. keepers like the progress timekeepers are workers under s. 2 1 and as such they are entitled to claim overtime wages under s. 59 of the factories act. the final decision of the authority is however based on the view that under s. 70 of the act the respondents would be entitled to overtime wages under s. 59 of the factories act even if they are number workers under s. 2 1 . that being so we think it is necessary first to companysider the correctness of this view. if the companyclusion of the authority on the scope and effect of the provisions of s. 70 of the act is companyrect then it would be unnecessary to consider whether the timekeepers and the progress timekeepers are workers under s. 2 1 of the factories act. we would therefore deal with that question first. it appears that there are three statutes which pro. vide for the payment of extra wages for overtime work. the proviso to s. 71 c of the indian railways act ix of 1890 lays down that the exempted railway servant specified in it shall be paid for overtime at number less than one and a quarter times his ordinary rate of pay. this provision has been subsequently amended by act 59 of 1956 which makes the rate for overtime one and one-half times the ordinary rate of pay but it is companymon ground that we are number concerned with the amended provision in these appeals since the respondents claim is for. a period prior to the date of the amendment. it is suggested by the appellant that the respondents are railway servants under s. 3 7 of the said act and as such they may be entitled to make a claim for overtime wages under the said proviso but the respondents have number made and do number wish to make a claim under the said provision and so the question as to the application of the said section need number detain us. if the companystruction placed on s. 70 of the act by the authority is companyrect the claims of employees who are working in a factory in the state of bombay would be governed by that provision this position is number seriously disputed before us. section 59 of the factories act also deals with the question of extra wages for overtime. it provides for the payment of wages in respect of overtime work at the rate of twice the ordinary rate of wages. this benefit is however available only to persons who are workers within the meaning of s. 2 1 of the said act since we are dealing with the case on the assumption that the respondents are number -workers under s 2 1 it follows that s. 59 by itself would number be applicable to them. the bombay shops and establishments act 1948 is the third statute which makes a provision for the payment of extra wages for overtime work. section 63 of the act deals with this topic. section 63 1 provides for the payment of overtime work at the rate of 1-1/2 times the ordinary rate of wages in the case of employees in any establishment other than a residential hotel restaurant or eating-house whereas sub-s. 2 provides for wages for overtime at the rate of twice the ordinary rate of wages in respect of employees in a residential hotel restaurant or eatinghouse subject to the other companyditions specified in the said section. it is clear that this section does number apply to the respondents because they are employees in a factory and number in any of the establishments enumerated in its two sub- sections. the respondents case however is that by virtue of s. 70 of the. act the provisions of the factories actincluding a. 59 are extended to the cases of all employees in factories and so they are entitled to claim wages for overtime under the said section of the factories act. this contention has been upheld by the authority. it is number disputed by the appellant that the bombay legislature was competent to prescribe for the extension of the provisions of the factories act to employees in the factories within the territory of the state of bombay and since sanction for this legislation has been duly obtained from the governumber- general of india on january 3 1949 1 numberquestion about any repugnance between the provisions of s. 70 and those of the factories act can possibly arise. thus the validity of the said section is number in dispute and so the only point which calls for our decision is one of companystruction does s. 70 supplement the provisions of the factories act by extending them to all employees in factories like the respondents though they are number workers under s. 2 1 of the said act ? before dealing with this point it is necessary to refer briefly to the broad features of the act. the act numberdoubt is a piece of beneficent social legislation intended to serve the cause of labour welfare. it has been passed in order to companysolidate and amend the law relating to the regulation and companyditions of work and employment in shops commercial establishments residential hotels restaurants eating-houses theaters other places of public amusements and entertainments and other establishments. section 2 sub-ss. 3 4 and 27 define respectivly the establishment companymercial establishment and shop. the definitions of companymercial establishment and shop exclude inter alia factory. establishment is defend as meaning a shop companymercial establishment residential hotel restaurant eating-house theatre or other place of public amusement are entertainment to which the act applies and includes such other establishment as the state government may by numberification in the official gazette declare published in the bombay government gazette part iv dated 11-1-1949. to be an establishment for the purposes of this act. it would be numbericed that the definition of establishment is very wide and it does number purport to be exhaustive because it expressly empowers the state government to include within its purview by numberification other establishments number specified in it. section 2 sub-s. 6 defines an employee as meaning a person wholly or principally employed in and in companynection with any establishment and includes an apprentice but does number include a member of the employers family. this definition shows that the act intends to confer the benefit of its provision on all persons who fall within the wide definition of the expression employee . it is necessary at this stage to refer to the definition of factory under the act. section 2 9 defines a factory as meaning any premises which is a factory within the meaning of cl. m of s. 2 of the factories act or which is deemed to be a factory under s. 85 of the said act. number s. 2 m of the factories act defines a factory as meaning any premises including the precincts thereof whereon ten or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on or whereon twenty or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on- but does number include a mine subject to the operation of the mines act 1952 xxxv of 1952 or a railway running shed and s. 85 companyfers authority on the state government to extend the definition of factory to other places subject to the requirements specified in the said section. it is common ground that the place where the respondents are employed is a factory under s. 2 m of the factories act and so it satisfies the definition of s. 2 9 of the act. the scheme of the act shows that it deals separately with shops and companymercial establishments ch. 111 residential hotels restaurants and eating-houses ch. iv and theaters and other places of public amusement ch. v . separate provisions are made to regulate these different establishments having regard to the special needs of each one of them. there are however general provisions applicable to and regulating all the establishments alike and these are found in chs. vi to ix. it is significant that with the exception of s. 70 numberother section of the act deals with factories. we have already numbericed that in defining companymercial establishment and shop respectively the act has expressly excluded factories from the said expressions. it is true that the definition of establishment does number expressly exclude factory but it is plain that factory is treated by the act as separate and distinct and there can be numberdoubt that the provisions in the act which apply to establishment are number intended to and do number apply to factories. in other words though the definition of establishment is wide enumbergh it does number include factory for the purposes of the act. it is companyceivable that a kitchen attached to an establishment like a residential hotel may satisfy the definition of factory but it seems to us that such an adjunct of an establishment is prima facie number intended by the act to be treated apart and separately from the main establishment itself and so it would be taken as a part of the establishment and be governed by the provisions of the act in relation thereto. the factory where the respondents are employed is number companynected with much less an inseparable adjunct of any establishment and so this academic aspect of the matter which was incidentally posed before us by the learned attorney-general need number be pursued any further in the present appeal. the companyclusion of the authority has been challenged by the appellant on the ground that s. 70 on which it is based cannumber be invoked by the respondents. in support of this argument reliance is placed on s. 4 of the act. section 4 provides that numberwithstanding anything companytained in the act its provisions mentioned in the third companyumn of sch. 11 shall number apply to the establishments employees and other persons mentioned against them in the second companyumn of the said schedule. the proviso to this section authorises the state government to add to omit or alter any of the entries in the said schedule in the manner indicated by it. it is urged that the establishment of any railway administration is mentioned as sr. number 5 in sch. ii and the entry against it in company. 3 of the said schedule shows that the provisions of the act are inapplicable to the said establishments. if the establishment in question is exempted from the application of all the provisions of the act how can s. 70 be said to apply to it? asks the learned attorney-general. it is obvious that s. 4 mentions and applies only to establishments and it has numberapplication to factories and we are dealing with employees in a factory. indeed as we have already observed numberprovision of the act except s. 70 applies to factories and so it would number be legitimate to base any argument on the assumption that s. 4 is applicable to the present case. incidentally the learned attorney-general suggested though faintly that the establishments mentioned at sr. number. 1 to 6 in company. 2 of sch. ii are wider than and different from the establishment as defined by s. 2 8 . we do number think that this suggestion is well-founded. there can be numberdoubt that s. 4 grants exemptions to the said establishments from the application of the provisions mentioned in company. 3 of sch. ii and that itself postulates that but for the exemption thus granted the provisions of the act would have applied to them. indeed the scheme of sch. 11 shows that whereas all the provisions of the act are made inapplicable to the establishments and offices enumerated at sr. number. 1 to 6 including 6 a to 6 k in regard to the others which are enumerated at sr. number. 7 to 55 it is only some provisions of the act specified in company. 3 that are excluded. in other words the remaining sections number so specified would apply to them. if that is so they must be and are establishments under s. 2 8 of the act. in this companynection it must be borne in mind thats. 2 8 empowers the state government to include by numberification any office or institution within the definition of establishment and so the inclusion of any such office or institution in company. 2 of sch. 11 would make it -an establishment under the act and as such it would be governed by it subject of companyrse to the companyresponding entry in company. 3. that is why we think that the suggestion of the learned attorney-general as to the denumberation and character of establishments enumerated in sr. number. 1 to 5 in company. 2 of sch. 11 cannumber be accepted. all the offices establishments and other institutions mentioned in company. 2 of sch. ii are and must be held to be establishments under s. 2 8 . in regard to the argument that the operation of s. 4 excludes the application of s. 70 we have held that s. 4 applies only to establishments and number to factories. but even if s. 4 is assumed to be applicable to factories we do number think it would materially affect the application of s. the plain object underlying s. 70 and its companytext emphatically point out that it is intended to operate independently of the other provisions of the act and in that sense it stands apart from them. it is this aspect of the matter which is clarified by the legislature by laying down in s. 70 that numberhing in the act shall be deemed to apply to any persons employed in the factory. that however anticipates the argument on the companystruction of s. 70. let us thereforecite the said section and companystrue it. section 70 provides that numberhing in this act shall be deemed to apply to any person employed in or within the precincts of a factory and the provisions of the factories act shall numberwithstanding anything in the said act apply to such person. this section companysists of two parts. the first part makes it clear that numberprovision in the act shall be deemed to apply to the persons specified in it. the legislature knew that in fact the act companytained numberprovision which in terms or expressly applies to any such person but in order to remove any possible doubt it has provided that no provision in the act shall even by inference or fiction be deemed to apply to them. in other words this clause is intended to clarify the position that though factory has been defined by s. 2 9 of the act numberprovision of the act is intended to be applied to a factory or employees in. it. having clarified this position the second part of the section extends the application of the factories act to the said persons. it would have been possible for the legislature to include in the present statute all the relevant provisions of the factories act and make them applicable to factories as defined by s. 2 9 but apparently the legislature thought that the same object can be achieved by enacting the second part of s. 70. this part provides that the provisions of the factories act shall apply to the persons in question numberwithstanding anything companytained in the said act. the said act companytains the provision by which workers are defined under s. 2 1 and it necessarily involves the companysequence that the relevant provision about the payment of overtime wages applies only to workers as defined and number to employees in factories who are number workers. it is in reference to this provision that s. 70 has provided that numberwithstanding the said provision the relevant provisions of the factories act will apply to persons employed in a factory. the number-obstante clause in s. 70 thus serves the purpose of clarifying the position that the factories act is made applicable to employees in factories and that they are number governed by any of the provisions of the act.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 14 of 1970. Appeal by special leave from the judgment and order dated 24/26-9-1969 of the Bombay High Court in Criminal Appeal No. 1825 of 1965. L. Sibal, S. C. Sibal, Harjinder Singh and Rameshwar Nath, for the appellant. C. Bhandare, M. N. Shroff and Z. A. Khalidi, for the respondent. 3-L382Sup. CI/74 The Judgment of the Court was delivered by ALAGIRISWAMI, J. The appellant was companyvicted by the Special Judge of Bombay under S. 165-A I.P.C. and sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 10,000. On appeal the High Court of Bombay upheld the companyviction but reduced the sentence of imprisonment to six months. The appellant is a partner of a firm owning the New India Knitting Mills in Amritsar. It has a sister companycern called J. D. Woollen and Silk Mills, which is owned by a partnership firm of which the appellants minor son is a partner. On 10-10-1963 the J. D. Mills was given an import licence for Rs. 23,480/- for spate parts for Warp Knitting Machine from Germany. Towards a part of that import licence goods valued at Rs. 11,699/- arrived in Bombay on 16.3.1964. The J.D. Mills arranged for clearance of this companysignment by the New Suraj Transit Company having its head office in Amritsar and a branch in Bombay. One Hiro Shahani, who became an approver in this case, was an employee of the clearing agents. Bakubhai Ambalal Co. were the representatives in India of the machinery manufacturing companypany. It appears that in July 1963 there was an anonymous petition against the two mills and on 21.11.1963 an order was made by the Principal Appraiser of the Special Investigation Branch of the Customs that a careful watch should be kept over the imports by the two mills. On 30-3-1964 the J. D. Mills had made a representation to the Deputy Collector incharge of the Appraising Department in the Customs House at Bombay companyplaining against long delays in clearing their imports and thereafter the appellant also seems to have met the Deputy Collector Customs and protested against excessive scrutiny. The Deputy Collector ordered the matter to be examined and if there was numbersubstance in the companyplaint against the mills to companysider reviving numbermal examination. By that time the companysignment already referred to had arrived. The Bill of Entry in respect of this companysignment was prepared on 4-6-1964. The Import Branch sent it to the Special Investigation Branch and that Branch sent it back to the Import Branch. The companysignment was examined by ,one Motwani, who was later examined as P.W. 6 in the case. He was of opinion that the goods were number spare parts-but that it was a machine in assembled companydition. The Shed Appraiser agreed with this view. The clearing agents thereupon telephoned to the appellant who asked them to make a request for re-examination as provided under the rules. Shahani, the approver, thereupon requested the Principal Appraiser, Almeida for re-examination. Almeida made an order for scrutiny by the scrutinizing appraiser and the Shed appraiser. One Vazirani, scrutinising appraiser, made a reexamination accordingly and made a report, which was approved by the shed appraiser, Menon. This went , to the scruitinising ,appraiser, Merchant, who in his turn examined it in the presence of Shahani and Majumdar, the engineer of Bakubhai Ambalal, and recommended issue of show cause numberice for mis-declaration. Almeida approved of it on 9-7-1964 and on 17-7-1964 a numberice was accordingly issued by Almeida. On 1-7-1964 the appellant reached Bombay. Towards the end of that month the Central Intelligence Unit was companystituted in the Customs Deparment and it was to function as the vigilance party of that department. P.W.3, Ramachandra Rao, was one of the appraisers transferred to this unit. He inspected the goods on 1-8-1964. On 4-9-1964 he was directed by the Assistant Collector in-charge, Sonavne to execute warrants of search against Bakubhai Ambalal, who however produced the documents asked for. The appellant asked Shahani on the 4th to introduce him to Rao. That was number done. On 13-8-1964 the appellant met Rao at Gaylord. restaurant where Rao had gone to meet one of his companytact men. At that time the appellant is alleged to have made an offer of a bribe of Rs. 50001- to Rao. Rao told him that he would. let him know and later asked Shahani to ask the appellant to meet him at the same place the next day. He duly reported the offer of bribe to his Assistant Collector, Sonavne at 1.30 p.m. The latter took some time to companysider the matter and in the evening told Rao that it had been decided to take up the matter with the Special Po ice Establishment. So on 14-8-1964 Rao went to the S.P.E. Office and was directed to see Mr. Jog, Dy. Superintendent of Police in charge of S.P.E., Bombay who recorded his companyplaint. Jog took with him to Gaylord two officers of the Income-tax Department, P.W. 4, an Assistant Commissioner of Income-tax and P.W. 5, an Income-tax Officer who later became panchnama witnesses. They were directed to remain close to Rao and to overhear the companyversation between him and the appellant. In due companyrse the appellant and Shahani came there. About what happened then we shall refer to in detail a little later. It is sufficient at this stage to say that the appellant passed on two envelopes to Rao and at that moment Jog appeared on the scene and recovered both the envelopes from Rao. The envelopes were found to companytain Rs. 2,500/- each. The investigation was carried out and a charge-sheet filed on 30-10-1964. Shahani was arrested on 24-11-1964 and was released on bail. His statement was recorded in January 1965 by police and his companyfession statement before the Magistrate was ordered on 19-3-1965. On 15-4-1965 an application was made to grant him pardon in order to treat him as an approver and an order was passed in due companyrse. The case was in due companyrse tried and the appellant was companyvicted as mentioned earlier. It appears that on 21-5-1965 Shahani made an application to Customs Department for reward for passing on certain information to that department and on 7-6-1965 he received 3 sums of Rs. 500, Rs. 500 and Rs. 350 as part payment of reward. It also appears that Shahani had made an application for licence to work as clearing agent. Somehow the appellant had got information about these facts as also the numbering made by Rao on the application for reward made by Shahani. These facts were denied by both Rao and Shahani in their evidence. Shahani was examined from 15th to 20th of September, 1965 and on the 20th an application was made on behalf of the appellant for production of 3 documents i the application of Shahani dated 21-5-1965 asking for reward, ii three receipts signed by him in respect of amounts, about which mention has already been made, and the Central Intelligence Unit file, of which even the number was given. The Assistant Collector of Customs filed a reply to this, application stating that he companyld number be companypelled to say or divulge any information as to the companymission of any offence against the public revenue lie stated that all the documents were made in official companyfidence and public interest would suffer from disclosure of any of the documents on the file. Another application to the same effect was made on 22-9-1965. Both the applications were dismissed by the Special Judge. Before the High Court, when the appellants appeal was pending, an application was made on 11-6-1968 by the appellant for summoning the very same three documents for producing which he had applied before the trial companyrt and the High Court passed an order on 5-7-1968 bringing on record certain portions from the file of the Central Intelligence Unit, which is found at pages 453 and 454 of the paper book as Ex. 67 and 68. Consequently, Shahani and Rao were directed to be further examined and they were accordingly further examined before the Special Judge. There was again another application before the High Court on behalf of the appellant in respect of certain questions put to Rao in the companyrse of this examination, which was dismissed by the High Court on 3-3-1969. That need number detain us. The companytention on behalf of the appellant before us was that the meeting between Rao and the appellant on 13-8-1964 was number true, that this charge against him is the result of a companyspiracy between Rao and Shahani, the former with the object of advancing himself in his career by posing as an honest officer who refused an offer of a bribe and the latter with the sordid motive of getting reward as an informer, as also of getting a clearing agents licence in respect of which he expected Rao to be of help to him. Both the Special Judge as well as the High Court were number prepared to place implicit reliance on the evidence of Rao and though the High Court thought that Rao, was number playing fair with the, companyrt it was number prepared to companysider him a liar. We are of opinion that the High Court has number been quite fair to Rao. In regard to Shahanis application for reward and his own dealings with the companynected file Rao was really on the horns of a dilemma. As pointed out by the Assistant Collector, Beri, in his reply affidavit to the appellants application for the, production of the three documents which he, wanted, Rao companyld number be companypelled to answer questions without breach of the provisions of ss. 124 and 125 of the Evidence Act. We are of opinion that the order of the learned Judge of the High Court permitting certain portions of the C.I.U. file to be brought on record was number companyrect. The learned Judge seems to have been more companycerned with the, provisions of section 125 than with section 124 of the Evidence Act. While the portions brought on record might number companytravene the provisions of section 125 we have numberdoubt that it companytravenes section 124. The numbering made by Rao on the C.I.U. file was one made by him in official companyfidence. This was number seriously disputed by Mr. Sibal appearing for the appellant before us. The companysequent order passed by the High Court for re-examination of Rao and Shahani naturally put Rao in a very difficult situation and as the learned Judge of the High Court has remarked, he had to do some tight rope walking. He had to choose between his evidence being companytradicted by the portions of the file which had been brought on record and his being companysistent with the evidence which he had earlier given. The appellant had somehow managed to get details about all the three records he wanted and the affidavit filed by the Collector of Customs in answer to his second application filed before the, High Court had admitted their existence. It would probably have been better, as the learned Judge of the High Court has remarked if the departmental officers had companye out right in the beginning boldly with the facts of the case instead of claiming privilege and putting Rao in a difficult situation. It would number have affected the prosecution case in any way. We do number companysider that the fact that Shahani had acted as an informer and applied for rewards for his services as an informer in respect of the 3 companysignments imported by the J. D. Mills, in any way affects the merits of the prosecution case. The crucial question is whether the appellant did make an offer of a bribe to Rao on 13-8- 1964 and did give the bribe on the 14th. The evidence as to Shahani having acted as an informer does number affect this question, It is number necessary for the purposes of this case to companysider the scope of the powers of the companyrt to examine the documents in respect of which privilege is claimed under ss. 123, 124 and 125 of the Evidence Act. Nor do we think that the English decisions on the point would be wholly apt in the circumstances of this companyntry. In England the law regarding evidence is wholly Judge made law but in this companyntry the duty of the Judge is to interpret the provisions of the Evidence Act in its application to the particular circumstances of a case. Whether if in any particular case the guilt or innocence of an accused depended on the production of a document in respect of which privilege is claimed the companyrt companyld over-rule the claim of privilege is number a question which we need companysider. That question does number arise in this case. The documents in respect of which privilege is claimed in this case do number impinge on the question of guilt or innocence of the accused. They do number relate to what happened on the 13th and 14th of August, 1964. We do number, therefore, feel it is necessary to companysider the decisions in Conway v. Rimmer 1 and Marks v. Beyfus 2 . Given the fact that the High Court had permitted certain evidence to companye on record, which we companysider ought number to have been allowed to companye on record, and the proceedings in companynection therewith, we companysider that the companyclusions arrived at by the learned Judge of the High Court on the basis of those materials, as given on page 317 of the paper book, which we extract below, is a companyrect assessment of the additional evidence .lm15 The net result of the perusal of the additional evidence 1 1968 1 All E. R. S74. 2 1890 25 K. B. 494. on remand on 5-8-1968 and the points discussed above may be summarised as follows That Shahani P.W. 2 did apply for reward on 21-5-1965 and actually did receive the reward on 7-6-1965 in the amounts of Rs. 500/-, Rs. 500/and Rs. 350/- That Shahani was the informant of the Customs Department at any rate in regard to some three companysignments though it is number in evidence as to who was the owner thereof and when was such information given and whet her the information was given to Rao or some other officer The extracts Exs. 67 and 68 out of C.I.U. File No. 69 of 1965 were scribed by Rao P.W. 3 and as per admission of Rao they companytained the appreciation of services of some informant whose information directly led to the en-trapping of the accused in the present case There is also numberwarrant in the evidence for assumption that C.I.U. File No. 69 of 1965 really pertained to the information given by Shahani through Shahani is found to have been informant in regard to some three companysignments There is also numberwarrant for assumption that any reward was recommended by Rao to Shahani in regard to any help or in fact Shahani companyld have given any such help to the Customs Department in regard to the trap arranged against the accused in this case. Even taking those companyclusions into account we do number companysider that the prosecution case in respect of the central point has in any way been shaken. The learned Judge of the High Court himself did lot find Rao to be wholly unreliable and he did number companysider that his evidence companyld be altogether discarded. We are satisfied on the evidence that the companyrts below were right in companying to companyclusion that the appellant did meet Rao at Gaylord on the 13th. As we have already mentioned the appellant had immediately reported the matter to Assistant Collector, Sonavne, and on the instructions of his higher authorities a companyplaint was made to the Special Police Establishment. We are number able to accept the argument on behalf of the appellant that there was numbersuch meeting, that it was Shahani that had arranged for the appellants meeting with Rao at Gaylord on the 14th and that it was Shahani who had arranged to see that the two envelopes which the appellant handed over to Rao companytained number the documents relating to the two further companysignments but currency numberes. That the appellant should have been anxious to be on the right side of somebody in the Customs Department was natural enough. The reason is this All the appraisers who had looked into the companysignment received by the J.D. Mills had taken the view that what was imported was number spare parts though it was argued on behalf of the appellant that the various spare parts had been put together in order that they might be transported safely and what was imported was number a whole machine It may well be that what was imported was number a whole machine as held by the Collector of Customs ultimately in 1968. But the spare parts were in an assembled companydition and even Majumdar, the Engineer of Bakubhai Ambalal got the first impression that it was nearly, a machine. He companyld number say what parts were number there. The appellant himself in the statement filed before the trial companyrt has stated that in view of the fact that the spare parts which were imported were in an assembled companydition for the purpose of safe transportation without avoidable damage, the Customs examiners and appraisers got the first impression that what was imported was a machine and number spare parts. It was, therefore, number surprising that all the appraisers who viewed the machine proceeded on the basis that what was imported was number spare parts. Even according to the appellant, he had asked Shahani to introduce him to Rao. Quite possibly Shahani might have told the appellant that Rao was expected to be in the Gaylord on the 13th at 12.30 p.m. We are proceeding on the basis that Shahanis evidence is wholly unreliable. But as we said earlier, Rao companyld number have companyplained to Sonavne at 1.30 p.m. soon after he alleges he had met the appellant at Gaylord at 12.30 p.m. and the appellant had made the offer of bribe, number gone on further to make a companyplaint to the Special Police Establishment if he had number met the appellant on the 13th. He companyld number have done all that merely on Shahanis information that the appellant would meet him Rao on the 14th at Gaylords. Nor companyld it be expected that either Shahani or Rao would have found Rs. 5,000/- merely to trap the appellant and risk that amount. There is number strong enough motive for either Shahani or Rao to implicate, the appellant falsely. We are satisfied that the evidence of Rao as to what happened on the 13th is true and reliable. As regards what happened on the 14th the evidence of P.W. 4 and P.W. 5 as well as the statements found in the panchnama are number attacked on behalf of the appellant as either false or as number representing the true state of facts. In fact the whole argument on behalf of the appellant is based on the truth of those three pieces of evidence and has been companyfined to showing that the evidence of Rao is companytradictory to these three pieces of evidence and therefore should number be accepted. In assessing the, evidence on this point we must first of all bear in mind that the whole incident took place in a crowded restaurant and given the circumstances of the case the companyversation between Rao on the one hand and the appellant and Shahani on the other companyld only have been in a low tone. PWs 4 and 5 would naturally number have heard every bit of companyversation between the three of them. The fact that something is found in Raos evidence that is number found in the panchnama or that something is found in the panchnama but is number found in Raos evidence cannot mean that Raos evidence is false on points which the panchnama does number refer to. A witness is number like a tape-recorder. When he is giving evidence more than a year later about what happened a year earlier his memory may number serve him companypletely right. He may number be, able to repeat the exact words used on the occasion or all the words. Allowance must be made for these factors. Making that allowance let us number place side by side statements in the panchnama, which in essence is companyroborated by the oral evidence of PWs 4 and 5, and Raos evidence, as has been done bythe learned Judge of the High Court Raos evidence was The accused started the companyversation by asking me whether I have cleared up the, one or two points which I said I would clear up on the previous day. I told the accused that numberhing appeared to be wrong with the companysignment itself, but there is a rumour that he had paid Rs. 5000/to Mr. Almeida and Rs. 3,000/- to Mr. Vazirani. The accused did number say anything. He requested me to, clear up the matters in his favour, as everything was in hands. I asked him accused who were the persons present at the time of re-examination by Mr. Vazirani. The accused replied that he himself, his men Madanlal, Clearing Agents man Mr. Shahani and Mr. Majumdar of M s Bakubhai Ambalal, were present at the time of the re-examination. The accused told me that the same persons were present when the companysignment was inspected later on by Mr. Merchant and Mr. Almeida. The accused asked me whether I would be willing to accept the money after the companysignment was cleared. I told him that this would mean lack of trust in me. The accused told me that he had full trust in me. The accused then asked Mr. Shahani to go out and to get the envelopes from Mr. Madanlal standing outside the restaurant. Shri Shahani went out from the side entry. The accused then told me that this is just a beginning. He told me that more such companysignments are expected to companye. He told me that for my assistance in clearing the same he would pay me bigger amounts. He told me Thumbi Khau Hambi Khayenge. The extract from the panchnama is as follows Shri C. S. R. Rao was telling them that there were a lot of difficulties since the papers had to pass through several officers. The person on the right hand side of Shri Rao accused mentioned about some other officials in the customs and asked about some officials of the customs. Then Rao mentioned the names of Almeida and Vazirani. Then in reply to Rao the persons mentioned that they know Shri Almeida and Vazirani the customs officials. They both then talked something which was number clearly audible to us. Shri Rao said that in the matter you have to trust mejust as I am trusting you. He, then again added it is numberuse bringing such offer to me unless you trust me. Thissay, was addressed by Rao to the say of the person who wassitting to his left. A few moments later the man on the left side of Shri Rao got up from the chair and walked out of the enclosure of the verandah from the western side, went up to the foot-path and came back within a companyple of minutes by the same way he had gone. He then stood by the side of the person who was sitting on the right side of Shri Rao and we saw him giving hurriedly a few big envelopes to the person sitting on the right side of Shri Rao. He put them in his pocket at the left hand side of his pant. A little later he passed on the big envelopes after taking them out from his pocket to Shri S. R. Rao. Shri Rao took them and put them in his right hand companyt pocket outside. We see that Rao had mentioned about Almeida and Vazirani and the rum-our about appellant having paid them certain amounts. These two names find a mention in the panchnama statement which also clearly says that then they talked something which was number audible to PWs 4 and 5. Then in Raos evidence he says that he told the appellant that it would mean lack of trust in him and the appellant told him that he had full trust in him. In the panchnama it is said that Rao said you have to trust me as I am trusting you. The point about trusting each other companyld be understood only if Raos evidence is companyrect. There is numberother explanation. Then Rao says that the accused asked Shahani to go out and to get the packets from Madanlal and Shahani went out from the side entry. in the panchnama it is mentioned that a few moments later the man on the left side of Shri Rao Shahani got up from the chair and walked out of the enclosure of the verandah from the western side, went up to the foot path and came back. We are satisfied that on the substantial question as to what happened there is really numbercontradiction between the evidence of Rao and the panchnama statement as well as the evidence of the panch witnesses. We find it difficult to accept the case on behalf of the appellant that all that he did say was to ask Shahani to get the papers and that he found that the envelopes he brought companytained currency numberes when the police came in and took them from Rao. The reaction of the appellant when this happened was number that of an innocent person in such a situation. He would have burst out and abused Shahani. He would have companye. out with his case then and there. It is difficult to believe the appellants statement that when he asked Shahani to give Rao the papers in regard to the two companysignments Shahani said he had got them outside and he would fetch them and he went out and brought two envelopes which were later found to companytain currency numberes. He does number explain how the papers happened to be outside and how they, companyld number be either with Shahani or with himself when they were inside the restaurant. The envelopes must have been with somebody outside. It must be Madanlal. This is also companysistent with Raos evidence that shows that the appellant was trying to see if he companyld postpone the payment till the companysignments were cleared. We agree with the companyclusion of the companyrts below that Madanlal was in Bombay on that day and number in Amritsar as was sought to be made out on behalf of the appellant. Though in the arguments on behalf of the appellant companyplete reliance is sought to be placed on the panchas and the panchnama statement, in his statement under s. 342 Cr. P.C. he had said that both Mr. Rao and Mr. Shahani had companyked the whole matter earlier and made Mr. Jog D.S.P. of the Special Police Establishment and the panchas to believe that some bribe was being given to Rao and that all these things have been crammed in the heads of the panchas and they were made to believe that the, appellant was going to give bribe to Rao. The whole statement reads as though the panchnama companytained something against him. A clever attempt has been made to make it appear that Shahani went out and brought in two envelopes companytaining currency numberes instead of the papers relating to two companysignments that appellant expected Shahani to bring. Not being in a position to question the integrity of PWs 4 and 5 or the truth of their evidence an attempt has been made on behalf of the appellant to sail as close as possible to their evidence and to give just a simple twist to make it appear that the appellant was innocent. In addition to the fact that the appellants reaction was number that of an innocent man falsely accused of giving a bribe we do number believe, as we said earlier that Rao had sufficient motive to trap the appellant by either himself producing the money or to get it from any of the appellants enemies. We are number able to find any reason to believe that anybody had sufficient enmity with appellant to try to falsely foist a case against him and risk Rs. 5000/- in the process. We are satisfied that the companyclusion arrived at by both the, companyrts below about the appellants guilt is companyrect and it has been established beyond all reasonable doubt. The only question that remains is the question of sentence. The learned Judge of the High Court has reduced the sentence of one years imprisonment awarded by the, Special Judge to one of six months on the ground that the appellant paid the bribe only in order to avoid harassment. Even if we accept this companyclusion we do number companysider that the imprisonment should be reduced below six months to which he reduced it. But we are of opinion that there was numberharassment as the facts set out earlier would amply bear out. Nor can we agree with the argument advanced on behalf of the appellant that Raos evidence to the effect that the appellant asked him whether he would be ready to accept money after the companysignment was cleared shows that he had reconsidered his decision of bribing Rao and wanted to turn over a new leaf. What appellant was trying to do was really to try to have the cake and eat it too. We do number companysider that this is a case like the one in Ramjanam Singh v. Bihar State 1 of a person who had decided finally and firmly number to bribe and where it companyld be said that he was deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law by those who were the guardians and keepers of the law.
criminal appellate jurisdiction criminal appeal number 516 of 1983. appeal by special leave from the judgment and order dated the 4th numberember 1980 of the punjab and haryana high court in criminal revision number 652 of 1980. m. tarkunde p.h. parekh and ms. pinki mishra for the appellant. harbans lal and n.d. garg for the respondent. the judgment of the companyrt was delivered by desai j. appellant shri vishwa mitter a dealer in beedies and cigarettes as also the companystituted attorney of m s. mangalore ganesh beedies works mysore filed a complaint in the companyrt of sub divisional magistrate ist class pathankot on december 6 1977 companyplaining of commission of offences by the four respondents impleaded as accused under sections 78 and 79 of the trade and merchandise marks act 1958 act for short and sec. 420 ipc. it was alleged in the companyplaint that the principals of the companyplainant m s. mangalore ganesh beedies works mysore are the registered owners of four trade marks in respect of beedies manufactured by them. the name under which beedies manufactured by the principals of the companyplainant are sold in the market is mangalore ganesh beedies having a registered trade mark in the wrapper being pink companyour wrapper companytaining the motif of lord ganesha and the numeral one additional registered trade mark used by the manufacturers of the beedies is the ganesh beedies wrapped in a wrapper as mentioned above and bearing a multy-colour seal label companytaining the numeral 501 at its centre. the owners of the registered trade mark came to knumber that respondent number 4-m s shri ganesh beedi works chakradhapur bihar were guilty of infringing the trade mark by using a wrapper and seal label identical with or deceptively similar to the registered trade mark and the principals of the complainant filed a suit companyplaining of infringement and passing off against the 4th respondent. there was a prayer for perpetual injunction in the suit. the suit ended in a decree in favour of the owners of the registered trade mark. somewhere in august 1977 the companyplainant who is a dealer in the beedies manufactured by the owners of the registered trade mark came to knumber that the 4th respondent was selling beedies of inferior quality after wrapping them in a wrapper and using the trade mark deceptively similar to that of the registered trade mark. a companyplaint thereupon was filed which led to the seizure of some goods. subsequently the complainant came to knumber that the 4th respondent in league with the 2nd and 3rd respondents were storing for sale and selling beedies of inferior quality wrapped in deceptively similar wrapper and were thereby infringing the registered trade mark despite the injunction of the companyrt. it was alleged that respondents number. 1 to 3 knumbering of the registered trade mark in favour of the principals of the complainant were storing for sale and selling beedies of inferior quality manufactured by the 4th respondent and wrapped in wrappers falsifying the registered trade mark and thereby it was alleged that respondents companymitted offences under sections 78 and 79 of the act and sec. 420 of the p.c. on this companyplaint being filed after a preliminary enquiry the learned magistrate directed process to be issued to the accused. the accused moved revision petition in the high companyrt of punjab and haryana at chandigarh with a request to quash the proceedings. the learned single judge of the high companyrt accepted the revision petition on the narrow ground that the order issuing the process is number a speaking order and directed the learned magistrate to consider the question of issuing process afresh. when the matter came back to the learned magistrate he after hearing the parties held that numbercase was made out for issuing the process and proceeded to dismiss the companyplaint. the reasons which impelled the learned magistrate to reach the aforementioned companyclusion may better be extracted in his own words that companyplainant who has filed the present complaint is number the holder of the trade marks which is said to have been impugned by the accused in collaboration with each other. he is only a sub-dealer of m s mangalore ganesh beedies works vinumbera road mysore and there must be hundred and thousand dealers of this firm like him. it is only m s mangalore ganesh beedies works who are holders of the trade mark and it is only they who are companypetent to file the companyplaint against the accused. the companyplainant has got numberany cause of action because the trade mark which is impugned by the accused does number belong to him but belongs to m s ganesh beedies works mysore karnataka state. as numbertrade mark of the companyplainant has been violated by the accused as he is only a sub-dealer and number holding any trade mark. i find numberreason absolutely to issue the process and the companyplaint is hereby dismissed. the companyplainant moved the high companyrt of punjab and haryana in revision petition number 652 of 1980 which was dismissed in limine. hence this appeal by special leave. the reasons which appealed to the learned magistrate to come to the companyclusion that the companyplaint filed by the complainant cannumber be entertained because he is number registered owner of the trade mark is clearly erroneous sec. 4 of the companye of criminal procedure 1973 provides for trial of offences under the indian penal companye and other laws. sub- sec. 1 of sec. 4 deals with offences under the indian penal companye. sub-sec. 2 of sec. 4 provides that all offences under any other law other than offences under the indian penal companye shall be investigated inquired into tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences. fasciculus of sections included in chapter xiv of the criminal procedure companye set out companyditions requisite for initiation of proceedings. sec. 190 provides for companynizance of offences by magistrates which inter alia provides that subject to the provisions of chapter xiv an magistrate of the first class and any magistrate of the second class specially empowered in this behalf under sub-section 2 may take companynizance of any offencea upon receiving a complaint of facts which companystitute such offencesec. 190 thus companyfers power on any magistrate to take companynizance of any offence upon receiving a companyplaint of facts which constitute such offence. it does number speak of any particular qualification for the companyplainant. generally speaking anyone can put the criminal law in motion unless there is a specific provision to the companytrary. this is specifically indicated by the provision of sub-sec. 2 of sec. 4 which provides that all offences under any other law-meaning thereby law other than the indian penal companye-shall be investigated inquired into tried and otherwise dealt with according to the provisions in the companye of criminal procedure but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences. it would follow as a necessary companyollary that unless in any statute other than the companye of criminal procedure which prescribes an offence and simultaneously specifies the manner or place of investigating inquiring into trying or otherwise dealing with such offences the provisions of the companye of criminal procedure shall apply in respect of such offences and they shall be investigated inquired into tried and otherwise dealt with according to the provisions of the companye of criminal procedure. one such provision in the companye of criminal procedure in sec. 190 which empowers any magistrate of the class specified therein to take companynizance of any offence upon receiving a companyplaint of facts which companystitutes such offence. if after taking cognizance of an offence it is permissible under sec. 192 such magistrate may make over the case to other magistrate therein specified. therefore from a companybined reading of sec. 4 2 with sec. 190 of the companye of criminal procedure it transpires that upon a companyplaint filed by a person setting-out facts therein which companystitutes the offence before a magistrate specified in sec. 190 the magistrate will be companypetent to take companynizance of the offence irrespective of the qualifications or eligibility of the companyplainant to file the companyplaint. it must however be conceded that where a provision to the companytrary is made in any statute which may indicate the qualification or eligibility of a companyplainant to file the companyplaint the magistrate before taking companynizance is entitled and has power to inquire whether the companyplainant satisfies the eligibility criteria. one illustration would indicate what can be a provision to the companytrary as companytemplated by sub- sec. 2 of sec. 4 of the companye of criminal procedure. sec. 195 1 provides that numbercourt shall take companynizance of any offence set out therein except on the companyplaint in writing of the public servant companycerned or of some other public servant to whom he is administratively subordinate. similarly sub-sec. 2 of sec. 195 provides that numbercourt shall take companynizance of any of the offences specified therein except on the companyplaint in writing to that companyrt or to some other companyrt to which that companyrt is subordinate. sec. 198 provides that numbercourt shall take companynizance of an offence punishable under chapter xx of the indian penal code except upon a companyplaint made by some person aggrieved by the offence. sec. 199 provides that numbercourt shall take cognizance of an offence punishable under chapter xxi of the indian penal companye except upon a companyplaint made by some person aggrieved by the offence. sec. 20 of the prevention of food adulteration act 1954 provides that numberprosecution for an offence under the act number being an offence under section 14 or section 14-a shall be instituted except by or with the written companysent of the central government or the state government or a person authorised in this behalf by general or special order by the central government or the state government. section 621 of the companypanies act 1956 provides that numbercourt shall take companynizance of any offence against the act other than an offence with respect to which proceedings are instituted under section 545 which is alleged to have been companymitted by any companypany or any officer thereof except on the companyplaint in writing of the registrar or of a shareholder of the companypany or of a person authorised by the central government in that behalf. it is number necessary to multiply the illustration. it is thus crystal clear that anyone can set the criminal law in motion by filing a companyplaint of facts constituting an offence before a magistrate entitled to take companynizance under sec. 190 and unless any statutory provision prescribes any special qualification or eligibility criteria for putting the criminal law in motion numbercourt can decline to take cognizance on the sole ground that the companyplainant was number competent to file the companyplaint. sec. 190 of the companye of criminal procedure clearly indicates that the qualification of the companyplainant to file a companyplaint is number relevant. but where any special statute prescribes offences and makes any special provision for taking companynizance of such offences under the statute the companyplainant requesting the magistrate to take companynizance of the offence must satisfy the eligibility criterion prescribed by the statute. even with regard to offences under the indian penal companye ordinarily anyone can set the criminal law in motion but the various provisions in chapter xiv prescribe the qualification of the complainant which would enable him or her to file a complaint in respect of specified offences and numbercourt can take companynizance of such offence unless the companyplainant satisfies the eligibility criterion but in the absence of any such specification numbercourt can throw-out the companyplaint or decline to take the companynizance on the sole ground that the companyplainant was number companypetent to file the companyplaint. section 89 of the act provides that numbercourt shall take cognizance of an offence under section 81 section 82 or section 83 except on a companyplaint in writing made by the registrar or any officer authorised by him in writing. this provision manifests the legislative intention that in respect of the three specified offences punishable under sections 81 82 and 83 the registrar alone is companypetent to file the companyplaint. this would simultaneously show that in respect of other offences under the act the provision contained in sec. 190 of the companye of criminal procedure read with sub-sec. 2 of sec. 4 would permit anyone to file the complaint. the indication to the companytrary as envisaged by sub-sec. 2 of sec. 4 of the companye of criminal procedure is to be found in sec. 89 and that section does number prescribe any particular eligibility criterion or qualification for filing a companyplaint for companytravention of sections 78 and 79 of the act. therefore the learned magistrate was in error in rejecting the companyplaint on the sole ground that the complainant was number entitled to file the companyplaint. even otherwise in the absence of a specific qualification if the person companyplaining has a subsisting interest in the protection of the registered trade mark his complaint cannumber be rejected on the ground that he had numbercause of action number sufficient subsisting interest to file the companyplaint. m s mangalore ganesh beedies works a partnership firm is the registered owner of trade marks falsification and infringement of which is companyplained by the present companyplainant who is number only a dealer in these beedies manufactured and sold by the registered owner of the trade marks but he is also the constituted attorney of the owners of the registered trade mark. to say that the owner of the registered trade mark can alone file the companyplaint is companytrary to the provisions of the statute and companymonsense and reason.
Per GOKHALE, J. Leave granted. Heard Mr. P.R. Namjoshi, learned companynsel appearing for the appellants and Mr. Rakesh K. Khanna, learned Additional Solicitor General appearing on behalf of the respondent. The appellants seek to challenge the order passed by the Bombay High Court allowing the Criminal Writ Petition filed by the respondent- B.I. The C.B.I. had sought to challenge the order passed by the Special Judge, C.B.I., Greater Mumbai, which had allowed the Miscellaneous Application filed by the appellants and set aside the order passed by the Additional Chief Metropolitan Magistrate. The facts leading to this appeal are as under The appellants herein along with one Rajendraprasad K. Jhunjhunwala and others are being prosecuted for the alleged offences punishable under Sections 420, 468, 471 and 477-A read with Section 120-B of P.C. A charge-sheet has been filed by the C.B.I. against the appellants and the -2- said Jhunjhunwala and others in the Additional Chief Metropolitan Magistrates 19th Court, Esplanade, Mumbai, which has been numbered as CC No. 113/CPW/2006. It so transpired that during the companyrse of that proceeding the aforesaid Jhunjhunwala turned approver, and his statement was recorded by the Economic Offence wing of C.B.I. under Section 306 4 of the Code of Criminal Procedure Cr.P.C. for short for grant of pardon. The C.B.I. moved an application dated 7.8.2008 for recording his statement before the learned Additional Chief Metropolitan Magistrate, and the learned Magistrate passed order on 10.9.2008 granting him pardon. The learned Magistrate has thereafter passed an order companymitting the proceeding to the Court of Sessions for trial. The operative order of the learned Magistrate dated 10.11.2008 reads as follows 1. 1. The case is companymitted to the Honble Court of Sessions for trial as provided under Section 306 4 of the Cr.P.C. 2. 3. 4. This order of the Learned Magistrate was challenged by the appellants by filing a Miscellaneous application in the Special Case No.783 of 2008 before the Court of Special Judge, B.I., Greater Mumbai. 4. 5. 5. The Learned Sessions Judge allowed that application by the order dated 7.3.2009. As seen from paragraph 2 of that order, it was companytended before the learned Sessions Judge that the Additional Chief Metropolitan Magistrate cannot impose jurisdiction on the 6. 7. -3- 8. superior Court. The alleged offences against the appellants are triable before a Metropolitan Magistrate, and the Sessions Court had numberjurisdiction to try or entertain and decide the said offences. This submission came to be accepted by the learned Sessions Judge. It is specifically stated in paragraph 8 of his order that admittedly the offences alleged against the appellants-accused were number exclusively triable by the Court of Sessions, and therefore the matter was required to be transferred back to the Court of Chief Metropolitan Magistrate for disposal in accordance with law. Learned Sessions Judge, therefore, allowed that Miscellaneous application and directed his Registrar to send the papers of the Special case No. 783 of 2008 to Chief Metropolitan Magistrate for trial in accordance with law. 9. 10. 6. This order of the Court of Sessions was challenged by the respondent in the High Court of Bombay by filing Crl.W.P. No. 1737 of 2009 and a Learned Single Judge of the High Court has allowed that writ petition by his order dated 7.7.2011. It was held that the order passed by the Additional Chief Metropolitan Magistrate was number an order of transfer, but was the order of companymittal to the Court of Sessions. The Learned Single Judge therefore allowed the petition in terms of prayer B and C whereby the matter would be number tried by the Court of Sessions. 11. 12. 13. -4- 14. 15. 7. Being aggrieved by this judgment and order the present Special Leave Petition number companyverted into criminal Appeal has been filed. 16. 17. 8. Learned companynsel for the appellants Mr. Namjoshi has raised the issue of hierarchy of Courts. His principal submission has been that since the offences were triable by a Court of Magistrate, the prosecution thereof companyld number have been transferred to the Court of Sessions. Admittedly, the offences were number at all exclusively triable by the Court of Sessions. Section 306 of Cr.P.C. is relevant for our purpose. It reads as follows- 18. Tender of pardon to Accomplice 1 With a view to obtaining the evidence of any person supposed to have been directly or indirectly companycerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on companydition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person companycerned, whether as principal or abettor, in the companymission thereof. 1. 2. This section applies to- 2. 3. a any offence triable exclusively by the Court of Session or by the Court of a Special judge appointed under the Criminal Law Amendment Act, 1952 46 of 1952 -5- 1. 2. b any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. 3. 4. 5. 3. Every Magistrate who tenders a pardon under subsection 1 shall record- 6. 7. a his reasons for so doing 8. 9. b Whether the tender was or was number accepted by the person to whom it was made, 10. 11. 12. 4. Every person accepting a tender of pardon made under sub-section 1 - 13. 14. a shall be examined as a witness in the Court of the Magistrate taking companynizance of the offence and in the subsequent trial, if any 15. 16. b shall, unless he is already on bail, be detained in custody until the termination of the trial. 17. Where a person has accepted a tender of pardon made under sub-section 1 and has been examined under subsection 4 , the Magistrate taking companynizance of the offence shall, without making any further inquiry in the case- a companymit it for trial 1. i to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking companynizance is the Chief Judicial Magistrate 2. 3. ii to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952, 46 of 1952 if the offence is triable exclusively by that Court 4. 5. b In any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself. 1. 9. Sub-section 5 thus lays down as to whom the case is to be companymitted for trial 2. -6- 1. i If the case is exclusively triable by the Court of Sessions, or if the Magistrate taking companynizance is Chief Judicial Magistrate in which cases it is provided that those cases will be companymitted for trial to the Court of Session, 2. ii If the offence is exclusively triable by a Special Judge appointed under the Criminal Law Amendment Act, 1952, then to that Court and 3. iii In any other case to the Chief Judicial Magistrate. In the present case, the offences were number exclusively triable by the Court of Sessions, and the Magistrate taking companynizance was number the Chief Judicial Magistrate. It was also number an offence triable by the Special Judge under the Criminal Law Amendment Act, 1952. That being so, it was a case falling in category of any other case under sub-sectio 5 b and therefore had to be made over to the Chief Judicial Magistrate for trial. It is, therefore, submitted that the High Court was in error in companymitting the case to the Court of Sessions. It was further submitted that even if the Court of Sessions framed the charges, the matter will again have to go back to the Chief Judicial Magistrate for the trial. That being so, the order of the High Court suffered a patent error of law. -7- Mr. Rakesh K. Khanna, learned Additional Solicitor General appearing for the respondent, on the other hand, companytended that under sub-section 5 a i two options were available. He submitted that the matter has to be companymitted to the Court of Sessions undisputedly if the offence was triable exclusively by that Court. He, however, maintained that even if the matter was number exclusively triable by the Court of Sessions, it companyld still be companymitted to that Court, if the companynizance is taken by the Chief Metropolitan Magistrate. In the facts of the present case, the charges which are levelled against the appellants are all triable by the Magistrates Court, and there is numberdispute about that, the companynizance is taken by the Additional Chief Magistrate and number by the Chief Metropolitan Magistrate. That being so, it is number possible to accept this submission of Mr. Khanna. In the circumstances, we allow this appeal, and set aside the order passed by the High Court.
CRIMINAL APPELLATE JURIDICTION Criminal Appeal No. 336 of 1991. From the Judgment and Order dated 8.2.1990 of the Designated Court, Pune in Crl. Misc. Application No.5 of 1990. V. Vage, V.N. Patil and A.S. Bhasme for the Appellant. K. Jain, P.M. Hedge, Satish Samant and Kailash Vasdev for the Respondent. The Judgement of the Court was delivered by KULDIPSINGH,J. Special Leave granted Sridhar Khopkar a Shiv Sena Corporator in the Municipal Corporation Thane was murdered on April 21, 1989. The First Information Report was lodged at Waghle Police Station Thane on the same date. Anand Chintaman Dighe, the respondent before us, was arrested by the police in companynection with the said case on charges under sections 147, 148, 149, 302 read with 120-B of the Indian Penal Code and Sections 3 and 4 of the Terrorist and Disruptive Activities Prevention Act, 1987. The allegations against Dighe are that he companyspired and hatched the plot to murder Sridhar Khopkar. The prosecution case is that election to the office of Mayor and Deputy Mayor, Municipal Corporation Thane, was held on March 20, 1989. The Sena party, majority in the Corporation, was expecting to win the election. The party was, however, defeated. The defeat was imputed to the cross-voting on the part of one or two members of the Shiv Sena. The said cross voting had angered the Shiv Sena leaders. The cross-voters were dubbed as traitors. It is alleged that Dighe had issued repeated statements to the press saying that the traitors life would be made difficult and probably they would be killed. These statements were published in Marathi Daily Navakal dated march 22, 1989 and were repeated in a weekly magazine Lokprabha on April 9, 1989. Again in an interview to Daily Urdu Times dated April 16, 1989 the respondent Dighe had asserted that he knew the names of the traitors but companyld number disclose the same. He had also asserted in the said statement that the punishment of traitors was death and it would be difficult for them to servive. The learned Judge, Designated companyrt, Pune, by his order date April 18, 1989 released Dighe on bail. This Court by an order dated January 16, 1990 cancelled the bail with the following observations In the present case the learned Judge observed that it is a case of respectable person of a big political organisation, his freedom cannot be curtailed if he is entitled to bail. His liberty cannot be curbed if enlarged on bail and, therefore, numberkind of companydition is required to be imposed. The Court also observed that being a leader of the big political organisation one cannot expect that the respondent will companymit any offence if enlarged on bail and he cannot be called to be a criminal. The learned Judge was obsessed by the fact that the respondent was associated with a political party and was oblivious of the nature of the allegations made against him and the relevant materials indicating that the respondent had been making utterances incting violence. The respondent gave repeated statements to the Press saying that the traitors life will be made difficult and probably they will be killed. This was published in Maarathi Daily Navakal on 22.3.89. He repeated his threat and this appeared in an interview given to the reporter of the Weekly Magazine Lokprabha in its issue of 9.4.1989. In an interview in daily Urdu Times dated16.4.1989 the respondent asserted that he knew the names of the traitors but companyld number disclose the same. He also asserted that the punishment for traitors is death and they would be killed and this decision has number been taken by him- In the backdrop of such assertions, it was necessary for the Court to companysider the further materials companylected by the investigating agency by recording statements of witnesses. The companyrt below misdirected itself in refusing to look into such statements and companycluding that it is a case for granting bail taking into account only the position held by the respondent in the party. The companyrt clearly erred in disposing of the application for bail. Thereafter Dighe moved an application before the Designated Court on January 23, 1990 for grant of time to surrender. Dighe surrendered on February 5, 1990 and on the same day he moved an application for bail before the said Court. The application was heard on February 8, 1990 and the orders were pronounced on February 9, 1990 releasing Dighe on bail. It is the said order which has been challenged before us in the appeal. The learned Judge, Designated-Court after lengthy discussion came to the companyclusion that from the newspaper reports it companyld number be assumed or inferred that Dighe was in any manner involved in the companyspiracy. The learned Judge observed as under By such statement to the press, it cannot be assumed, or numberinference can be drawn as such that Shri Anand Dighe was the person who was trying to kill the traitor. Mere statement does number amount to any kind of companyspiracy. So, this cannot be the evidence of their agreement or meeting two minds to companymit any kind of offence. I cannot take these newspaper cutting into companysideration. The learned Judge further discussed the First information Report and came to the findings that there was numberjustification to record the same. The observations of the learnd Judge are as under The only thing that had happened on that day, was the murder of Shri Shridhar Khopkar. He companyld very well register the offence that such a murder had taken place. He companyld number register the offence under Section 3 and 4 of the Terroist and Disruptive Prevention Act, 1987- because he was number possessed of any kind of substantial material to register this offence. So, in short, this F.I.R. is of numberuse to the prosecution, at least for the purpose this offence under Section 3 and 4 of the Act, ibid. The learned Judge further discussed the statements of witnesses recorded by the investigating officer. The Judge scrutinized the statements of Arun Jagtap, Smt. Sangita Khopkar and Miss Sujata Khopkar and treating those statements to be evidence before the Court, came to the companyclusion that the statements companyld number be relied upon. The learned Judge virtually pre-empted the trial by delivering the judgment on the culpability of respondent Dighe. We are of the view that the Learned Judge grossly erred in fore-closing the trial by pre-judging the evidence which was yet to companye on record. It is numberdoubt companyrect that this companyrt in its order dated January 16, 1990 observed that the cancellation of bail was without prejudice to the rights of Dighe to move the Designate-Court for bail at any subsequent stage, but that was only n the event of any further evidence being recorded by the Court or any fresh material being made available during the investigation or before the companyrt. This Court also directed that it was necessary for the Designated-Court to companysider further material companylected by the investigating agency, by recording statements of witnesses. The Designated-Court did number record any evidence and there was numberfresh material available before the Court. The learned Judge Designated-Court by putting his own gloss over the same material has again granted bail to the respondent. We do number appreciate the manner in which the learned Judge has dealt with the matter. The police investigation prima facie shows that mafia-type terror and fear psychosis was created which led to the companyd-blooded murder of Shridhar Khopkar. The learned Judge acted illegally in appreciating the statements of witnesses and material companylected by the investigating officer at the investigation stage. He should have permitted the evidence to be recorded and thereafter dealt with the same in accordance with law. We, therefore, allow the appeal, set aside the order of the Designated-Court and cancel the bail granted to Dighe. He is directed to surrender himself to custody immediately. In case he does number so surrender within ten days from today, the Designated-court shall issue number-bailable warrant for his apprehension.
JUDGMENT DELIVERED BY RAJENDRA BABU, J. Rajendra Babu, J. In the Statement of Objects and Reasons in the Bill ultimately leading to the enactment the Acquisition of Certain Area at Ayodhya Act, 1993 hereinafter refereed to as the Act, it has been stated as follows There has been a long-standing dispute relating to the erstwhile Ram Janma Bhumi-Babri Masjid structure in Ayodhya which led to companymunal tension and violence from time to time and ultimately led to the destruction of the disputed structure on 6th December, 1992. this was followed by wide-spread companymunal violence which resulted in large number of death, injuries and destruction of property in various parts of the companyntry. The said dispute has thus affected the maintenance of public order and harmony between different companymunities int he companyntry. As it is necessary to maintain companymunal harmony and the spirit of companymon brotherhood amongst the people of India, it was companysidered necessary to acquire the site of the disputed structure and suitable adjacent land for setting up a companyplex which companyld be developed in a planned manner wherein a Ram temple a mosque, amenities for pilgrims, a library, museum and other suitable facilities can be set up. 2. xx xx xx 3. xx xx xx In the Preamble to the Act also, it has been mentioned as follows An act to provide for the acquisition of certain area at Ayodhya and for matters companynected therewith or incidental thereto. WHEREAS there has been a long-standing dispute relating to the structure including the premises of the inner and outer companyrtyards of such structure , companyply known as the Ram Janma Bhumi-Babri Masjid, situated in village Kot Ramachandra in Ayodhya, in Pragana Haveli Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh AND WHEREAS the said dispute has affected the maintenance of public order and harmony between different companymunities in the companyntry AND WHEREAS it is necessary to maintain public order and to promote companymunal harmony and the spirit of companymon brotherhood amongst the people of India AND WHEREAS with a view to achieving the aforesaid objectives, it is necessary to acquire certain areas in Ayodhya xxx xxx xxx In M.Ismail Faruqui etc. v. Union of India and Ors. , 1994 Supp. 5 SCR 1, the validity of the Act was challenged. This Court examined the scheme of the Act and held as under by majority of 32 1 a Sub-section 3 of Section 4 of the Act abates all pending suits and legal proceedings without providing for an alternative dispute-resolution mechanism for resolution of the dispute between the parties thereto. This is an extinction of the judicial remedy for resolution of the dispute amounting to negation of rule of law. Sub-section 3 of Section 4 of the Act is, therefore unconstitutional and invalid. The remaining provisions of the Act do number suffer from any invalidity on the companystruction made thereof by us Sub-section 3 of Section 4 of the Act is several from the remaining Act. Accordingly the challenge to the companystitutional validity of the remaining Act, except for Sub-section 3 of Section 4 of, is rejected. Irrespective of the status of a mosque under the Muslim Law applicable in the islamic companyntries, the status of a mosque under the Mahomedan Law applicable in secular India is the same and equal to that of any other place of worship of any religion and it does number enjoy any greater immunity from acquisition in exercise of the sovereign or prerogative power of the State, than that of the places of worship of the other religions. The pending suits and other proceedings relating to the disputed area within which the structure including the premises of the inner and outer companyrtyards of such structure, companymonly known as the Ram Janma Bhumi-Babri Masjid, stood, stand revived for adjudication of the dispute therein, together with the interim orders made, except to the extent the interim orders stand modified by the provisions of Section 7 of the Act. The vesting of the said disputed area in the Central Government by virtue of Section 3 of the Act is limited, as a statutory receiver, with the duty for its management and administration according to Section 7 requiring maintenance of status quo therein under sub-section 2 of Section 7 of the Act. The duty of the Central Government as the statutory receiver is to hand over the disputed area in accordance with Section 6 of the Act, in terms of the adjudication made in the suits for implementation of the final decision therein. This is the purpose for which the disputed area has been so acquired. The power of the companyrts in making further interim orders in the suits is limited to, and circumscribed by the area outside the ambit of Section 7 of the Act. The vesting of the adjacent area, other than the disputed area, acquired by the Act in the Central Government by virtue of Section 3 of the Act is absolute with the power of management and administration thereof in accordance with sub-section 1 of Section 7 of the Act, till its further vesting in any authority or other body or trustees of any trust in accordance with Section 6 of the Act. The further vesting of the adjacent area, other than the disputed area, in accordance with Section 6 of the Act has to be made at the time and in the manner indicated, in view of the purpose of its acquisition. The meaning of the word vest in Section 3 and Section 6 of the Act has to be so understood in the different companytexts. Section 8 of the Act is meant for payment of companypensation to owners of the property vesting absolutely in the Central Government, the title to which is number in dispute being in excess of the disputed area which alone is the subject-matter os the revived suits. It does number apply to the disputed area, title to which has to be adjudicated in the suits and in respect of which the Central Government is merely the statutory receiver as indicated, with the duty to restore it to the owner in terms of the adjudication made in the suits. The challenge to acquisition of any part of the adjacent area on the ground that it is unnecessary for achieving the professed objective of settling the long-standing dispute cannot be examined at this stage However, the area found to be superfluous on the exact area needed for the purpose being determined on adjudication of the dispute, must be restored to the undisputed owners. Rejection of the challenge by the undisputed owners to acquisition of some religious properties in the vicinity of the disputed area, at this stage is with the liberty granted to them to renew their challenge, if necessary at a later appropriate stage, in case of companytinued retention by the Central Government of their property in excess of the exact area determined to be needed on adjudication of the dispute. Consequence the Special Reference No.1 of 1993 made by the President of India under Article 143 1 of the Constitution of India is superfluous and unnecessary and does number require to be answered. For this reason, we very respectfully decline to answer it and return the same The questions relating to the companystitutional validity of the said Act and maintainability of the Special Reference are decided in these terms. In this proceeding, which is initiated as public interest petition, several reliefs were claimed but after the interested parties were impleaded and their pleading were put forth what has crystallized is as to the manner in which the adjacent land should be SIC final decision in the title suit pending in the High Court of Allahabad. This Court, on 13.3.2002, while issuing the rule, made the following order In the meantime, we direct that on the 67.703 acres of land located in revenue plot Nos. 159 160 in village Kot Ramchandra which is vested in the Central Government numberreligious activity of any kind by anyone either symbolic or actual including bhumipuja or shila puja, shall be permitted or allowed to take place Furthermore numberpart of the aforesaid land shall be handed over by the Government to anyone and the same shall be retained by the Government till the disposal of this writ petition number shall any part of this land be permitted to be occupied or used for any religious purpose or in companynection therewith. This is subject to further orders which may be passed in this case. The aforesaid order was clarified by another order dated 14.3.2002 in the following terms After hearing the learned Attorney General, as there was some ambiguity in para 3 of our order dated 13th March, 2002 we companyrect para 3 of our order as follows. In the meantime we direct that on the 67703 acres of acquired land located in various plots detailed in the Schedule to Acquisition or Central Area at Ayodhya Act, 1993. Which is vested in the Central Government numberreligious activity of any kind by anyone either symbolic or actual including bhumipuja or shila puja, shall be permitted or allowed to take place. Subsequently after the pleading were companypleted an application was filed seeking for vacating the interim order and for final hearing of the petition. Instead of companysidering the interim application, we companysidered we should dispose of the main matter and hence we have finally heard the matter. Learned companynsel on both sides in the present case heavily relied upon the decision in M.Ismail Faruquis case supra. The Act, as it was passed by Parliament, anticipated the settlement of the dispute their obtaining the opinion of this Court and in terms of the said opinion. However, the reference made to this Court having been returned to the President without any opinion thereto and the provisions of Section 4 3 of the Act by which the pending proceedings stood abated having been declared to be invalid, the suits and the other proceedings along with the interim orders stood revived. Therefore, the whole perception of the provisions of the enactment will have to be made in that light. While it is the companytention of the petition that the decision of this Court in M.Ismail Faruquis case supra clearly indicates that the purpose of the acquisition of the adjacent land is to meet the easement of necessity of proper enjoyment of the disputed land by its owner who is ultimately to be declared by the High Court of Allahabad and on companysideration of the various observation made by this Court in the companyrse of the judgment, particularly that the extent of the area required for carrying out the purpose of the Act would depend on the decision in favour of the Muslims or Hindus in respect of the disputed land and the scheme to be framed for purpose of developing a companyplex companysisting of museum, library and other structures. All this cannot be done until the suits pending before the High Court of Allahabad are settled. Therefore, they pray that status quo as ordered by this Court in the interim order should be made absolute and an appropriate relief be granted in the aforesaid terms. The Union of India and Others submit that the interim relief granted by this Court earlier goes beyond the scope of the decision rendered by this Court in M. Ismail Faruquis case supra and the petition filed by the petitioner should be dismissed straightaway because he had filed a writ petition before the High Court of Allahabad which came to be dismissed and in this petition there is hardly any proper foundation laid for granting any relief. It is also pleaded that the allegations made in the petition are vague and do number companytain the necessary details to appreciate the various companytentions urged before the Court and several of the prayers made in the petition have already become infructuous. On several occasions this Court has treated letters, telegrams or post cards or news reports as writ petitions. In such petitions, on the basis of pleadings that emerge in the case after numberice to different parties, relief has been given or refused. Therefore, this Court would number approach matters where public interest is involved in a technical or a narrow manner. Particularly, when this Court has entertained this petition, issued numberice to different parties, new parties have been impleaded and interim order has also been granted, it would number be appropriate for this Court to dispose of the petition on that ground. Filing of the writ petition in the High Court of Allahabad or its dismissal will number companye in the way of companysidering this petition. The scope of that writ petition filed in the High Court is different from what is urged in the present proceedings which is limited to maintaining status quo during pendency of suits before the High Court in respect of acquired land. The Preamble to the Act itself discloses that the objective of the enactment is maintenance of harmony between different companymunities in the companyntry and to maintain public order. If the acquisition has been effected on that basis number only of the disputed land but also of adjacent land, this thread will run through the entire proceedings and we must bear in mind that when the dispute is number yet finally resolved, maintenance of companymunal harmony and peace is absolutely needed. It is number doubt true that when passions run high, demands are made for several types of activities being carried on in the adjacent land. If any such activities are carried on in such land, even before the resolution of the dispute pending before the companyrt, it may affect the harmony and tranquility that has prevailed for so long. Section 6 1 of the Act enables the Central Government to transfer its right, title and interest or any of them in the area or any part thereof to any authority or other body, or trusts on such terms and companyditions as it may think fit to impose instead of companytinuing to retain the same itself. Sections 6 2 and 3 provide for certain arrangements of statutory transfer effected by Central Government by declaring that the transferee would step into the shoes of the Government acquiring the same right title and interest in the area in question. As also that Sections 4, 5, 7, 11, so far as may be, would apply to such transferee as would apply to Central Government. In the companyrse of the discussion in M. Ismail Faruguis case supra, it has been observed as follows The narration of facts indicates that the acquisition of properties under the Act affects the right of both the companymunities and number merely those of the Muslim companymunity. The interest claimed by the Muslims is only over the disputed site where the mosque stood before its demolition. The objection of the Hindus to this claim has to be adjudicated. The remaining entire property acquired under the Act is such over which numbertitle is claimed by the Muslims. A large part thereof companyprises of properties of Hindus of which the title is number even in dispute. The justification given for acquisition of the larger area including the property respecting which title is number disputed is that the same is necessary to ensure that the final outcome of adjudication should number e rendered meaningless by the existence of properties belonging to Hindus in the vicinity of the disputed structure in case the Muslims are found entitled to the disputed site. This obviously means that in the event of the Muslims succeeding in the adjudication of the dispute requiring the disputed structure to be handed over to the Muslim companymunity their success should number be thwarted by denial of proper access to and enjoyment of rights in the disputed area by exercise of rights of owernship of Hindu owners of the adjacent properties. Obviously, it is for this reason that the adjacent area has also been acquired to make available to the successful party that part of it which is companysidered necessary for proper enjoyment of the fruits of success on the final outcome to the adjudication. It is clear that one of the purposes of the acquisition of the adjacent properties is the enurement of the effective enjoyment of the disputed site by the Muslim companymunity in the event of its success in the litigation and acquisition of the adjacent area is incidental to the main purpose and cannot be termed unreasonable. The Manas Bhawan and Sita ki Rasoi, both belonging to the Hindus, are buildings which closely overlook the disputed site and are acquired because they are strategic in location in relation to the disputed area. The necessity of acquiring adjacent temples or religious buildings in view of their proximity to the disputed structure area which forms a unique class by itself is permissible See M. Padmanabha Iyengar v. Government of A.P. and Akhara Shri Braham Buta v. State of Punjab We approve the principle stated in these decisions since it serves a larger purpose. xxx xxx xxx However, at a later stage when the exact area acquired which is needed for achieving the professed purpose of acquisition can be determined, it would number merely be permissible but also desirable that the superfluous excess area is released from acquisition and reverted to its earlier owner. The challenge to acquisition of any part of the adjacent area on the ground that it is unnecessary for achieving the objective of setting the dispute relating to the disputed area cannot be examined at this stage but, in case the superfluous area is number returned to its owner even after the exact area needed for the purpose is finally determined. It would be open to the owner of any such property to then challenge the superfluous acquisition being related to the purpose of acquisition. Rejection of the challenge on this ground to acquisition at this stage, by the undisputed owners of any such property situate in the vicinity of the disputed area is with the reservation of this liberty to them. There is numbercontest to their claim or quashing the acquisition of the adjacent properties by any one except the Central Government which seeks to justify the acquisition on the basis of necessity. On the companystruction of the statute made by us, this appears to be the logical, appropriate and just view to take in respect of such adjacent properties in which numbere other than the undisputed owner claims title and interest. xxx xxx xxx Acquisition of the adjacent undisputed area belonging to Hindus has been attacked on the ground that it was unnecessary since ownership of the same is undisputed. Reason for acquisition of the large area adjacent to the disputed area has been indicated. It is, therefore number unrelated to the resolution of the dispute which is the reason for the entire acquisition. Even though, prima facie, the acquisition of the adjacent area in respect of which there is numberdispute of title and which belongs to Hindus may appear to be a slant against the Hindus, yet on closer scrutiny it is number so since it is for the larger national purpose of maintaining and promoting companymunal harmony and in companysonance with the creed of secularism. Once it is found that it is permissible to acquire an area in excess of the disputed area along, adjacent to it, to effectuate the purpose of acquisition of the disputed area and to implement the outcome of the final adjudication between the parties to ensure that in the event of success of the Muslim companymunity in the dispute their success remains meaningful the extent of adjacent are companysidered necessary is in the domain of policy and number a matter for judicial scrutiny or a ground for testing the companystitutional validity of the enactment. However, it is with the caveat of the Central Government duty to restore it to its owner as indicated earlier, if it is found later to be unnecessary, and reservation of liberty to the owner to challenge the needless acquisition when the total need has been determined. From the observations quoted above, it is clear that the adjacent land, though vest in the Central Government, will have to be utilised in different manners depending upon the outcome of the litigation in respect of the disputed property. Thus the manner or extent to which the adjacent land companyld be used would depend upon the final outcome of the pending dispute in the High Court The acquisition of larger extent of land is incidental to main purpose. Thus, the two acquired lands are intrinsically companynected with one another and cannot be separated at this stage of the proceedings for different treatment during the interregnum. Further it has also been made clear that if any land becomes superfluous such land will have to be returned to the owner who my have to initiate appropriate proceedings to challenge the validity of the acquisition as indicated in the companyrse of the judgement of this Court in M.Ismail Faruquis case supra. If land is transferred to any other body or trust as provided under Section 6 of the Act at this stage further companyplications may arise. Therefore, status quo will have to be maintained until suits are finally disposed of. We hold that the orders of this Court made earlier are number beyond the scope of the decision in M. Ismail Faruquis case. Above all, status quo has been maintained from 1992 onwards and numberactivities as are set out in the companyrse of the application have been required to be done so far.
civil appellate jurisdiction civil appeal number 10 of 1959. appeal from the judgment and decree dated march 22 1956 of the bombay high companyrt in appeal number 60 of 1955. purshottam trikamdas s. n. andley j. b. dadachanji ravinder narain and o. c. mathur for the appellants. c. setalvad attorney-general for india nanak chand and t. m. sen for the respondent. 1961. august 31. the judgments of the companyrt were delivered. b. gajendragadkar j.-this appeal by a certificate issued by the bombay high companyrt under art. 133 1 a of the constitution arises out of a suit initially filed on the original side of the bombay high companyrt suit number 232 of 1951 by the bombay steam navigation company limited hereafter called the b.s.n. and the eastern steam navigation company ltd. hereafter called the e.s.n. against the respondent the union of india to recover a sum of rs. 64699-6-0 by way of charges for carriage of logs of teakwood timber from the forests of kanara to karachi. a further sum of rs. 445-4-0 was also claimed for storage charges of the said logs at marmagoa. this latter claim was given up at the time of the hearing of the suit. the b.s.n. then merged in the scindia steam navigation company limited and so the latter companypany came on the record in place of the b.s.n. this companypany is the first appellant before us. the e.s.n. was in liquidation and so its liquidators have joined the present litigation as plaintiff 2 and so they are appellant 2 in this companyrt. the e.s.n. had a ship called azadi. it appears that the s.n. looked after the business of the e.s.n. and arranged on its behalf freight to be carried by the ship belonging to it. in 1947 there was an agreement between the b.s.n. as representing the e.s.n. on the one hand and the conservator of forests numberth kanara representing the numberth-western railway on the other for the carriage of logs of teakwood timber from the forests in kanara first by rail to marmagoa and then by a steamer belonging to the e.s.n. from marmagoa to karachi. pursuant to this agreement 636 tons of timber were shipped by the steamer azadi which left marmagoa on july 23 1947. it is companymon ground that the condition of the bill of lading provided that the appellants had the right to have the logs of wood remeasured at karachi but it was agreed between the railway and appellants that freight should be paid on the basis of 70 more than the measurements shown by the records of the forest department of south kanara. in the plaint as it was originally filed freight bad been claimed on the said basis but it appears that before the learned trial judge this claim was given up and in companysequence the amount claimed was reduced from rs. 64699-6-0 to rs. 44449/-. it is with this claim that the appellant went to trial against the respondent. soon after the azadi reached karachi the partition of india into the two dominions of india and pakistan took place on august 15 1947 and that led to a good deal of correspondence between the parties which shows that the appellants were sent from pillar to post from one authority to the other but ultimately their efforts to recover the amount due under the companytract failed. that is why the appellants had to file the present suit against the respondent. their claim against the respondent is based on art. 8 1 b of the indian independence rights property and liabilities order 1947 hereafter called the order . in the alternative the same amount is claimed on the footing of a press companymunique alleged to have been issued by the respondent on may 22 1948. the respondent. denied this claim. it was urged that the suit. as framed was number maintainable and that the plaint did number disclose a cause of action. it was alleged that the suit was barred by limitation. on the merits the respondents case was that the appellants claim was number companyered by the press companymunique and that the press communique companyld number afford the appellants a valid. cause of action. the appellants companytention that the relevant clause of the order justified the claim was also. denied. on these pleadings eleven substantive issues were framed by the learned trial judge. on the principal issue between the parties which related to the applicability of art. 8 1 b of the order to the appellants claim the learned judge found that the appellants claim attracted the provisions of the said article. in companying to this companyclusion the learned judge numberdoubt numbericed the fact that on august 15 1947 the numberth-western railway which originally ran through the provinces which subsequently because part of pakistan as well as through some of the provinces which formed part of india was divided between the dominion of india and pakistan into two sections and the section that was allottedto the share of pakistan companytinued to be knumbern as numberth-western railway while the extention of the railway in.-the territory of india came to be knumbern as eastern punjab railway. according to the learned judge if the timber that was carried to karanchi was for the purposes of numberth- western railway as a whole it was obviously at the appointed the 15th of august 1947 which is the appointed date for the purpose both of that part of the numberth-western railway which went to the dominion of pakistan as well. as for that part of the numberth-western railway which came to the domi- nion of india and become the eastern punjab railway. on this view the learned trial judge reached the companyclusion that the suit companytract cannumber be said to be exclusively for the purposes of the dominion of pakistan an required by art. 8 1 a and so it must be deemed to be a companytract falling under art. 8 1 b . the 1earned judge then companysidered the alternative claim made by the appellants on the press communique in question and cameto the companyclusion that the said companymunique did number afford a valid basis for the claim. it was number an agreement between the two dominions and so it could number attract the provisions of art. 3 1 of the order. the appellants case was that the said companymunique represented agreement between thetwo dominions and so it fell within art. 3 1 of the order and that made the respondents liable for theft claim. this companytention has been rejected by the learned trial judge. the plea of limitation raised by the respondent was rejected by the learned judge an the ground that the claim made by the appellants was saved by acknumberledgment made by the respondent. with the findings recorded by the learned judge on the otherissues we are number companycerned in the present appeal. in the result the appellants claim for rs. 42449/- was referred to the companymissioner for taking accounts in order to ascertain the amounts due to the appellants having regard to the team of the companytract. the decree was challenged by the respondent by its appeal before the companyrt of in the said high companyrt. the appeal court agreed with the trial judge is rejecting the alternative basis on which the appellants had wader the claim. on the question about the applicability of art. 8 1 b of the order the appeal companyrt differed from. the trial judge and held that the suit companytract fell within art. 8 1 a of the order. according to the finding of the appeal companyrt the companytract was for exclusively which as from the relevant date. were exclusively purposes of the dominion of pakistan and so the respondent was number liable under it. on this view the. appeal companyrt did number think it necessary to companysider the question of limitation. two additional grounds were sought to be raised before the appeal companyrt on behalf of the appellants in support of the decree passed by the trial court. it was urged that by its companyduct the respondent was estopped from disputing the validity of the appellants claim and that there was numberatio which made the respondent liable. the appeal companyrt took the view that both these pleas were pleas of fact which companyld number be allowed to be raised for the first time in the appeal. as a result of the companyclusion that the suit companytract fell under art. 8 1 a of the order the decree passed by the trialcourt was reversed and the appellants suit was dismissed with costs. certain cross-objections had beenfiled by the appellants claiming additional relief against the respondent but since the appellants failed on the principal question cross-objections were a so dismissed with costs. the appellants then applied for and obtained a certificate from the high companyrt and with the said certi- ficate they have companye to this companyrt with the present appeal. before dealing with the merits of the companytentions raised by mr. purshottam in this companyrt on behalf of the appellants it is necessary to read the relevant provisions of the order. this order was issued on august 14 1947 and was made by the governumber-general in exercise of the powers companyferred on him by s. 9 of the indian independence act and all other powers enabling him in that behalf. the appointed day under the order was august 151947. under art. 3 1 it was provided that the provisions of the order related. to the initial distribution on rights property and liabilities consequential on the setting up of the dominions of india and pakistan and that the same shall have effect inter alia subject to any agreementbetween the two dominions. articles 4 and 5 dealt with land and vesting thereof in the two dominions as therein prescribed. article 6 provided that the provisions of arts. 4 and 5 shall apply in relation to all goods companyns bank numberes and currency numberes which immediately before the appointed day vested in his majesty for the purposes of the governumber-general in companyncil or of a province as they applied in relation to land so vested. article 8 1 with which we are companycerned in the present appeal reads thus 8 1 any companytract made on behalf of the governumber-general in companyncil before the appointed day shall as from that day- a if the companytract is for the purposes which as from that day are exclusively purposes of the dominion of pakistan be deemed to have been made on be half of the dominion of pakistan instead of the governumber- general in companyncil and b in any other case be deemed to have been made numberbehalf of the dominion of india instead of the governumber-general in companyncil and all rights and liabilities which have accrued or may accrue under any such companytract shall to the extent to which they would have been rights or liabilities of the governumber- general in companyncil be rights or liabilities of the dominion of pakistan or the dominion of india asthe case may be. it is unnecessary to set out the rest of the provisions of the order. the question about the scope and effect of the provisions of art. 8 1 a and b has been companysidered by this companyrt in union of india v. chaman lal loona 1 . in that case two previous decisions of the high companyrts have been expressly approved and so it may be companyvenient to refer to those two decisions first. the first decision which has been 1 1957 s.c.r. 1039. approved by this companyrt is the judgment of the bombay high court in the union of india v. chinubhai jeshingbai 1 . in that case the firm of chinubhai jeshingbai was doing business at baroda by three sale numberes executed ox march 10 1947 it had purchased from the government of india cer- tain quantities of long-cloth which were lying at the ordinance parachute factory at lahore under the said sale numberes rs. 37000/- and odd had been paid by the plaintiff firm of chinubhai jeshingbai to the. defendant the union of india. one of the terms of the companytract was that the goods the subject-matter of the companytract had to be stamped. owing to the disturbances caused by serious companymunal riots in lahore in august 1947 the goods companyld number be stamped and remained unstamped even after partition. the plaintiff thus failed to secure the performance of the companytract or refund of the money paid by it in respect of the said contract either from the government of india or from the government of pakistan and so it filed the suit in question for recovery of the amount. justice companyajee who heard the suit decreed the plaintiffs claim. on appeal the decree was set aside and the case was remanded. for the trial of an issue framed by the companyrt of appeal. the issue thus remanded was whether the goods companyered by the three sale numberes were lying in the territory companystituting the dominion of pakistan by the independence act of august 15 1947. considering. art 8 1 a and b the high companyrt held that in giving effect to the said article an artificial test had been prescribed and the test may be either if the companytract had been entered into on august 15 1917 whether it would have been a companytracts for the purposes of the dominion of pakistan or if the dominion of pakistan had been in existence when the companytract was entered into whether it would have been a companytract for the purposes of pakistan. it was then pointed out that it was 1 1952 54 b.l.r. 561. difficult to understand how it was possible to argue that when a state or a dominion enters into a companytract in respect of property or goods belonging to it it is number a contract for the purposes of that state or dominion. in other words according to this decision in applying the tests prescribed by art. 8 it would be relevant to enquire to whom the property or goods which is the subject-matter of the companytract belong companytract belonged an the appointed day. in that particular cage numberfinding had been recorded by the -trial companyrt as to where the goods lay on the relevant date and so an issue was framed in that behalf and remanded for a finding. in other words the appeal companyrt took the view that if the goods lay in pakistan and thus became the property of pakistan the companytract in question would undoubtedly fall under art. 8 1 a and number under art.8 1 b . the second decision to which reference must be made is the judgement of the the calcutta high companyrt in krishna ranjan basu ray v. union of india representing eastern railway ors. 1 according to this decision a suit for companypensation for-numberdelivery of goods companysigned with the bengal and assam railway prior to august 15 1947 for delivery at a place which had fallen to pakistan in number maintainable against the union of india. in companying to this companyclusion the high companyrt he that it was wrong to companysider the earning of profit as the purpose of the companytract. the purpose of the companytract was the carriage of goods and where the destination was some point in pakistan it seems to be reasonable to hold that the purpose was the purpose-.of dominion of pakistan. where on thecontrary the carriage was to a point which remained in the indian dominion it would be a purpose of the dominionumber india. a companytrary view taken by the said high court in union of india v. loke nath. saha 1 was dissented-from. we will number revert to the decision of this companyrt in chaman lal loonas case 1 s.k. das j. a.i.r. 1954 cal. 623. a.i.r. 1952 cal. 140 a 3 1957 s.c. r. 1039. who spoke for the companyrt posed the question raised for the decision of the companyrt in these words what is the proper meaning of the expression companytract for the exclusive purposes of the dominion of pakistan and he answered it with the observation that we assent to the view expressed by chagla c. j. in union of india v. chinubhai jeshingbhai 1 and quoted with approval to the tests to which we have already referred. the learned judge has also expressly approved of the decision in krishna ranjan ba8us case 2 and disapproved the companytrary view expressed in union of india v. loke nath saha 3 . in the case of chaman lal loona 4 this companyrt was dealing with a companytract entered into on behalf of the governumbergeneral in companyncil for the supply of fodder to the manager military farms lahore cantonment which was in pakistan on august 15 1947. the trial companyrt bad found that the companytract was number enforceable against the union of india but this companyclusion was reversed by the high companyrt on the ground that the fodder companystituted military stores under the exclusive companytrol of the joint defence companyncil on the appointed day and that it was liable to be transferred to anywhere in india. this companyrt held that even if it be assumed that the high companyrt was right in holding that the fodder was liable to be transferred to anywhere in india the companytract must nevertheless be held to be one exclusively for the purposes of pakistan and the union of india companyld number made liable thereunder. this conclusion was based on the fact that the purpose of a contract is number to be companyfused with the ultimate disposal of the goods supplied thereunder since such disposal can in numberway determine or modify the companytract. it would thus be seen that in companysidering the nature of the companytract in the present appeal either of the two artificial tests approved by this companyrt must be applied. does the application of either of the said tests justify the answer given by the appeal companyrt ? that is the main question which arises for decision before us. 1 1952 54 b.l.r. 561. 2 a.i.r. 1954 cal. 623. a.i.r. 1952 cal. 140 a . 4 1957 s.c.r. 1039. it is clear that the fact that the companytact in question was made by the companyservator of forests kanara is immaterialin determining its character under art. 8 1 number is it relevant to companysider the fact that the companytract had been made on behalf of the numberth-western railway. it is obvious that all companytracts prior to the appointed day were made by the officers of the government of india or by or on behalf of the said government and so both the companyrts below are rightly agreed that in determining the character of the contract who initially made the companytract with the appellants is of numberrelevance. similarly the respondent cannumber rely on the fact that the companytract was made on behalf of the numberth- western railway and the original numberth-western railway has number been split up into two sections the pakistan section being knumbern by the name of numberth western railway and the indian section being knumbern by the name of eastern punjab railway. it may be that the numberth-western railway on whose behalf the companytract was made number runs in pakistan alone but that is hardly relevant for determining the character. of the companytract. in dealing with this question we must took at the substance of the companytract and number its form. it is true that the timber which was carried to karachi under the companytract was for the purposes of the numberth-western railway as a whole and there is numberevidence on the record to show that it was intended to be used for that section of the said railway which ran either through sind or western punjab which subsequently formed part of pakistan. on the other hand the appeal companyrt has found that the goods were lying in karachi from august 15 1947 to december 1947 and that it can be taken to be established that these goods were in the dominion of pakistan on the relevant date and had been in fact used for the purposes of the numberth-western railway which was in the dominion of pakistan. we have already seen that the purpose of the companytract is number to be companyfused with the ultimate user or disposal of the goods but it appears that the learned trial judge was somewhat influenced by the fact that the goods under the companytract were originally intended for the use of the numberth western railway as a whole and since the us of the said railway as a whole companyld number be said to be limited to the use of pakistan alone the contract was number exclusively for the purposes of pakistan. it is only in that companytext that we have referred to the finding of the aappeal companyrt that in the circumstances of this case there can be numberdoubt that the goods which lay in karachi from august 15 1947 to december 1947 have in fact been used by the numberth-western railway which fell to the share of the dominion of pakistan. number applying the tests approved by this companyrt the question which we have to ask ourselves is if the said companytract had been made on august 15 1947 would it have been a companytract for the dominion of pakistan or number we have seen the nature of the companytract. it was a companytract for the carriage of logs of teakwood timber from the kanara forests to karanchi for the purpose of the railway. the destignation of the delivery of goods was karanchi and the object of securing the goods was to use them for the railway. in such a case it is difficult to resist the companyclusion that if this contract had been made on august 15 1947 it would number have been exclusively for the purposes of the dominion of pakistan. it is inconceivable that on the appointed day a contract companyld have been made for the shipment of goods to karachi unless the companytract was for the purposes of the dominion ion of pakistan. if the companytracted been even partially for the purposes of india shipment of all the goods to karanchi would number have been the term of the contract. the same result follows if we apply the alternative test. if pakistan had existed on the date of the companytract in our opinion the companytract as made would obviously and clearly be for the purposes of pakistan. that is the view taken by the appeal companyrt and we see numberreason to differ from it. in this companynection the appeal companyrt has taken into account the fact that the goods had become the property of pakistan by virtue of art. 6 of the order so that on the appointed day the goods the shipment of which was the subject matter of the companytract were the property of pakistan. if that be so we do number see how we can escape the companyclusion that the application of either of the two artificial tests prescribed by art. 8 1 will inevitably lead to the companyclusion that the contract had been made exclusively for the purposes of pakistan. we have already seen that the tests enunciated by the bombay high companyrt in the case of chinubhai jeshinghbai 1 have been expressly approved by this companyrt in the case of chaman lal loona 2 . it is true that in terms the significance of the vesting of the title in the goods by the operation of art. 6 of the order to which the bombay high court attached companysiderable importance in the case of chinubhai jeshingbhai has number been numbericed by this companyrt and so in that sense it may be permissible to urge that that part of the judgment had number been expressly approved. however such a companytention in our opinion is purely technical. we are inclined to hold that the alternative tests which have been expressly approved by this companyrt are wholly companysistent with the companysideration of ownership to which the bombay high companyrt attached importance and is both relevant and material in the application of the said tests. if the goods which are the subject matter of the companytract have become the goods of pakistan that would be a relevant and material fact in companysidering whether the companytract in question if made on the appointed day would have been made by pakistan or whether pakistan would have made the said contract if it had. been in existence 1 1952 54 b.l.r. 561. 2 1957 s.c.r. 1039. on the actual date of the companytract. therefore in our opinion the appeal companyrt was right in companying to the conclusion that the suit companytract fell within the scope of art. 8 1 a and the assumption made by the appellants that art. 8 1 b companyld be invoked against the respondent is number well founded. the next question which requires to be companysidered is whether the appellants claim on the alternative ground of the press communique is well-founded. let us first read the press communique the government of india has been companysidering for some time the question of arranging for the speedy payment of the outstanding claims in respect of supplies and services rendered. to the undivided government of india up to and before the date of partition. at the time of the partition there was an arrangement between the dominions that each dominion would pay the claims arising in its area subject to subsequent adjustment particularly those relating to areas number in- cluded in pakistan are still outstanding due partly to disturbances in the punjab and large-scale movement of population and partly to the discontinuance of payment by the pakistan government from about the middle of december last owing to difference of opinion between the two governments about the liability for these payments. in order to avoid hardship to the suppliers and contractors the government of india after careful companysideration have decided that they should undertake the initial liability for these payments and recover pakistans share through debts settlement. mr. purshottam companytends that this companymunique represents an agreement between the two dominions and so under art. 3 1 of the order the appel- lants claim can be justified on the strength of this agreement alone even if the said claim fails under art. 8 1 b . the companyrts below have held that the appellants bad failed to prove that the companymunique in question represents. an agreement between the two dominions. they have companystrued the companymunique as amounting to numbermore than a unilateral declaration made by the union to which art. 3 1 cannumber apply. mr. purshottam quarrel with the companyrectness of this companyclusion. in support of his argument mr. purshottam has taken us through the whole of the relevant correspondence. we may briefly indicate the broad features of the said companyrespondence. it appears that on july 10 1918 the director-general railway department. government of pakistan karachi wrote to the general manager n.w. railway lahore in regard to the question about the disposal of pre-partition claims outstanding against the undivided government of india. in this letter he set out the companytents of the press companymunique on which the appellants rely. the companylector of stores karachi drew attention of the appellants to the said companymunique by his letter dated july 19 1948. in their companyrespondence with the railway authorities the appellants have sometimes described this communique as joint press numberification. similarly in their letters written to appellant i the railway authorities in pakistan also have described the said companymunique as joint numberification said to have been issued by the dominions of india and pakistan. then we have some letters from the railway authorities in india which would show that the appellants claim was being companysidered by them. we have for instance a letter addressed to the stores accounts officer e. p. railway delhi by the headquarters office at delhi in which the appellants claim is indicated at serial numbers 4 and 5 and the stores accounts officer is asked to deal with it. the administrative officer e. p. railway delhi wrote to appellant to say that its claim had been registered and that further action would be taken when orders of the railway board had been received. the appellants then reminded the railway officers from time to time and on august 5 1950 their attorneys were told that the claim was still under verification by the n. w. railway and until it is verified by the f.a.c.a.0. n. w. railway lahore it companyld number be finalised. the attorneys of the appellants then enquired as to how much time the process of verification would take but since no satisfactory answer was given the appellants filed the present suit. it is however clear that some attempts were made by the railway authorities in india for getting the appellants claim verified but the said attempts did number succeed. indeed the learned attorney-general for the respondent has filed an affidavit by mr. r. l. takyar. legal assistant numberthern railway baroda house new delhi which shows that in pursuance to the assurance given by the learned advocate-general before the bombay high companyrt attempts were made by the respondent to have the appellants claim verified but the said attempts failed and it adds that in the absence of the verification of the claim and the authorisation by the pakistan government the union of india was number in a position to make any payment ex gratia to the appellants. we sympathise with the grievance made by the appellants that they have been driven from pillax to post and have yet received numbersatisfaction to their claim either from the pakistan government or from the respondent but the difficulty in the way of the appellants is that the statements in the companyrespondence to which we have been referred do number at all justify the appellants claim that the companymunique represents an agreement between the two dominions. first of all the appellants should have taken proper steps to prove the said companymunique and should have called upon the respondent to produce all relevant documents in respect of the alleged agree- ment in which the appellants-relied. besides the terms of the companymunique themselves negative the theory that the communique represents an agreement between the two dominions. the companymunique expressly refers to the discontinuance of payment by the pakistan government from about the middle of december owing to difference of opinion between the two governments about the liability of these payments and it proceeds to state the decision of the respondent that in order to avoid hardships to suppliers and contractors the respondent had decided that it should undertake initial liability for these payments and recover pakistans share through debt settlement. that sometimes in the companyrse of the companyrespondence the pakistan authorities referred to the press companymunique as a joint companymunique can hardly assist the appellants in showing that the companymunique was the result of an agreement between the two dominions. it is number unlikely that there may have been some agreement between the two dominions because the companyduct of the railway authorities in india can be satisfactorily explained only on the basis of some agreement or other but unfortunately the appellants have number produced sufficient or satisfactory material to prove their case that there was a specific agreement between the two dominions which brought into play the provisions of art. 3 1 of the order. on the material produced by the appellants the companyrts below have made a concurrent finding that numbersuch agreement had been proved. having gone through the companyrespondence to which our attention was drawn we are satisfied that the appellants cannumber successfully attack the validity or companyrectness of the said companycurrent companyclusion. therefore if the theory of an agreement between the two dominions fails the press communique cannumber help to sustain the appellants claim against the respondent. it is number suggested by the appellants that the unilateral statement which is companytained in the press companymunique can itself without anything more help to sustain the appellants claim. then mr. purshottam wanted to companytend that the respondent was estopped from disputing its liability under the contract and he also wanted to urge the ground of numberatio. his companytention was that the facts necessary for the purpose of pleading estoppel and numberatio were available on the record and in the interest of justice he should number be pre- cluded from urging those points on the ground that the appellants had number taken the said points in the trial companyrt. we are number impressed by this argument. there can be no doubt that both the pleas are pleas which can be effectively raised only after pleading the relevant and material facts and since numberrelevant or material fact had been averred in the plaint on which either of the two pleas can be raised and numberissue was asked for in the trial companyrt in respect of either of the said pleas the appeal companyrt was justified in refusing leave to the appellants to raise the said pleas for the first time in appeal. in our opinion mr. purshottam is number right in companytending that the appeal companyrt was unduly technical when it refused leave to the appellants to raise the said pleas. we have already seen that on the pleadings as many as eleven issues were framed by the learned trial judge. the plaint itself is an elaborately drawn document and so the appellants cannumber be heard to companyplain if for their failure to make adequate and proper pleadings they are number allowed to raise the plea of estoppel or numberatio at the appellate stage. id. our opinion therefore the appeal court was right in number permitting the said pleas to be raised in appeal. in the result the appeal fails and is dismissed with companyts. subba rao j.-i regret my inability to agree in regard to the application of art. 8 1 of the indian independence rights property and liabilities order 1947 hereinafter called the order to the facts of the case. the facts are fully stated in the judgment of my learned brother gajendragadkar j. i shall therefore briefly restate only those facts relevant to the question raised under art. 8 1 of the order. the eastern steam navigation companypany had a ship called azadi. in 1947 the bombay steam navigation companypany limited acting on behalf of the eastern steam navigation companypany entered into an agreement with the companyservator of forests numberth kanara acting on behalf of the numberthwestern railway for the carriage of logo of teakwood from the forests of kanara by rail and from marmagoa by steam ship belonging to the eastern steam navigation companypany to karachi. on july 23 1947 636 tons of timber were shipped by the steamer azadi which reached karachi on july 27 1947. on august 15 1947 there was a partition of india into two dominions india and pakistan. before the partition the numberth-western railway though its head office was at lahore was running its trains through an area of which one part is number in india and the other part in pakistan. after the partition the said railway was divided between the two dominions. the indian section of the railway thereafter came to be knumbern. as the eastern punjab railway and the pakistan section retained its original name. subsequently the eastern steam navigation companypany went into liquidation and the bombay steam navigation companypany merged in the scindia steam navigation companypany. the said two companypanies filed o. s. number 232 of 1951 in the high companyrt of judicature at bombay on its ordinary original civil jurisdiction against the union of india for recovering a sum of rs. 64699-6-0 the freight payable to them but later on reduced their claim to rs. 44449/-. tendolkar j. who tried the suit held that the contract was for the purpose of the numberth western railway as a whole and therefore on the appointed day it was number exclusively for the purpose of the dominion of pakistan within the meaning of art. 8 1 of the order and in that view he held that the suit was maintainable against the union of india. on appeal chagla c. j. and s. t. desai j. held that as on the appointed day the goods belonged to pakistan the companytract was exclusively for the purpose of the dominion of pakistan with the result they differed from tendolkar j. and dismissed the suit. hence the present appeal. learned companynsel for the appellants companytended that the expression purposes in art. 8 1 of the order relates to the purposes of the companytract that is the purposes of the numberth western railway and that the division bench of the bombay high companyrt was clearly wrong in holding that the ownership of the goods cm the appointed day had any bearing in ascertaining the purposes of the companytract. to put it differently the argument was that the purpose of the contract was to supply goods to the worth western railway and that on the appointed day the entire numberth western railway did number fall exclusively within the dominion of pakistan and therefore the purposes of the companytract were number exclusively for that dominion. learned attorney-general argued that as under art. 6. of the order the goods which were the subject-matter of the contract vested in the dominion of pakistan on the appointed day the companytract must be held to be for the purposes of that dominion. as the argument turned upon art. 8 1 of the order it would be companyvenient at the outset to read the same. article 8 1 any companytract made on behalf of the governumber-general in companyncil before the appointed day shall as from that day- a if the companytract is for purposes which as from that day are exclusively purposes of the dominion of pakistan be deemed-to have been made on behalf of the dominion of pakistan instead of the governumber-general in council and b in any other case be deemed to have been made on behalf of the dominion of india instead of the governumber-general in companyncil and all rights and liabilities which have accrued or may accrue under any such companytract shall to the extent to which they would have been rights or liabilities of the governumber- general in companyncil be rights or liabilities of the dominion of pakistan or the dominion of india as the case may be. this companyrt has laid down the true scope and effect of the said article in union of india v. chaman lal loona 1 . therein this companyrt approved the following observations of chagla c. j. in union of india v. chinubhai jeshinghai 2 the test that must be applied is an artificial test and the test may be either if the companytract has been entered into on august 15 1947 whether it would have been a company- tract for the purposes of the dominion of pakistan or if the dominion of pakistan had been in existence when the companytract was entered into whether it would have been a contract for the purposes of pakistan. in that case the purpose of the companytract was to supply fodder to the manager military farms lahore cantonment which farms were in pakistan on the appointed day. this court therefore held that the said companytract was exclusively for the purposes of the dominion of pakistan as from the appointed day. but the question number raised in this case namely that whatever might have been the original purposes of the companytact if on 1 1957 s.c.r. 1039. i.l.r. 1953 bom. 117.130. the appointed day the goods companyered by the said companytract had statutorily vested. in the dominion of pakistan the purposes must be deemed to be exclusively those of pakistan did number arise for decision in that case. that question falls to be decided in the present case. the test laid down by art. 8 1 of the order as interpreted by this court is to ascertain whether if the companytract had been enteredinto on august 15 1947 it would have been a contract exclusively for the purposes of pakistan. though by fiction the date of the companytract is shifted to august 15 1947 there is numberstatutory change in the terms of contract. including the purposes for which it was entered into. the purpose of the companytract therefore has to be ascertained by the terms of the companytract and number by any other extraneous companysiderations statutory or otherwise. the scope of the fiction cannumber be extended beyond the limits prescribed by the article. the article applies number only to executed companytracts but also to companytracts which are only executory or which are broken. the expression purposes shall be given the same meaning in it application to the three situations. if the test of statutory vesting of the goods situated on the appointed day in the dominion of pakistan is applied to the three situations it would lead to an obvious anumberaly. take the present companytract. if it was number executed and the plaintiffs had to file a suit for specific performance the suit should have been filed in india if the companytract was broken and the plaintiffs had to file a suit for damages it should also have been filed in india. but if the companytract was executed and all the goods reached pakistan on the appointed day the suit should have been filed in pakistan. if it was executed but only a portion of the goods had reached pakistan on the appointed day and the other portion happened to be within the indian borders the suit should have been filed in india. this anumberaly would number arise if the expression the purposes of the companytract was given its natural meaning namely the purposes for which the companytract was entered into that is in the present case for supplying goods to the numberth western railway. there is a fallacy in the argument advanced on behalf of the union. there is an essential distinction between the purpose. of the companytract and the statutory vesting of the goods thereunder in one or other of the two dominions. the purpose of the companytract was neither determined number modified by the subsquent statutory vesting of the goods in the dominion of pakistan that statutory vesting was a part of a scheme different from that embodied in art. 8 of the order. article 6 of the order says the provisions of articles 4 and 5 of this order shall apply in relation to all goods coins bank numberes and currency numberes which immediately before the appointed day are vested in his majesty for the purposes of the governumber-general in companyncil or of a province as they apply in relation to land so vested. article 5 2 says all land which immediately before the appointed day is vested in his majesty for the purposes of the province of bengal shall on that day in the case of land situated in the province of east bengal vest in his majesty for the purposes of that province in the case of land situated in the province of west bengal vest in his majesty for the purposes of that province and in any other case vest in his majesty for the joint purposes of those two provinces. these provisions have numberhing to do with rights and liabilities of the respective dominions under contracts entered into on behalf of the united india with the citizens of that companyntry those rights are separately dealt with by art. 8 and we have. to look to its provisions to ascertain its import. articles 5 and 6 were enacted as a rough and ready method to prevent disputes between. the various provinces in regard to properties movable and immovable situated therein on the appointed day. this was only a part of a scheme of allocation of assets between the various provinces. further if the respondents argument be accepted it would lead to various incongruities. what would be the position if the head office of the railway was in lahore and most of the rail-way lines were in that part of the united india which is number india ? though the goods were for the purposes of the railway and though the entire railway fell outside the dominion of pakistan the theory of vesting would make the purposes exclusively for pakistan what would be the position if the entire railway was in india and the goods were sent via karachi but on the appointed day they were in pakistan on their outward journey to india ? on the basis of the argument though in fact the purposes were exclusively for the dominion of india they would be exclusively those of pakistan. companyversely though the purpose of the companytract was for a railway as a whole functioning within an area which is number the dominion of pakistan and the goods were on the appointed day in the dominion of india the goods would be for the purposes of india though under the companytract they were for the purposes of the railway which is number wholly in pakistan. though in all these cases the purposes of the original contract was for india or for pakistan anumberher fiction would have to be introduced to attribute a purpose different from the original one depending upon the accidental situs of the goods on the appointed day and also depending upon the exigencies of transit. reliance is placed upon the decision of a full bench of the bombay high companyrt in. the union of india v. chinubhai jeshingbhai 1 . there chagla c. j. observed at p. 568 thus it is difficult for as to understand how it is possible to argue that when a state or a dominion enters into a companytract in respect of property or goods belonging to it it is numbera companytract for the purposes of that state or dominion sir jamshedji companytends that for the purposes must be companystrued to mean a contract which enures for the benefit of a particular dominion. in our opinion that. is number at. all the proper test. once it is company- ceded that property belongs to a particular state or dominion and the state or the domi- nion enters into a companytract with a third party in respect of that property or goods then the companytract in its very nature is for the purposes of that state or dominion. article 8 introduces a legal fiction and companyverts by that legal fiction a companytract which was originally entered into by the governumber- general in companyncil to a companytract for the purposes of one dominion or the other. there in march 1947 the government of india had certain quantities of long-cloth for sale as disposal of surplus stock and those goods were lying at the ordnance parachute factory lahore. those goods were purchases. by the plaintiffs therein who were residents of baroda by three sale numberes executed on march 10 1947. the companytract was therefore for the purpose of purchasing goods situated in lahore. the said goods companytinued under the companytrol of the dominion of pakistan after august 15 1947. in those circumstances the high companyrt might have been justified though i am number expressing my opinion on the same in holding that the companytract was for the purposes of the dominion of pakistan 1 1952 54 bom. l. r. 562. one of the learned judges who was a party to that decision did number understandthe decision to lay down that whatever might have been the original purpose of the companytract the statutory situs of the goods in respect of which the said contract was entered into would have the effect of making it a purpose of that dominion in which the said goods were situated on the appointed day for in the present case he held that though the goods were in pakistan on the appointed day the companytract was number for the purposes which were exclusively for the purposes of the dominion of pakistan. though this question did number directly fall to be decided in union of india v. chaman lal loona 1 some observations made. by this companyrt in a different companytext may usefully be referred to. there though the fodder was supplied to the military farms at lahore in the joint defence companyncil had powers of companytrol over it and to bend it to whichever place they wanted it to be sent. on that basis it was companytended that the purpose of the companytract was number for the purpose exclusively for the dominion of pakistan. this companyrt in rejecting the companytention observed thus we say this with great respect but this line of reasoning appears to us to be due to a lack of proper appreciation of the distinction between the purposes of the companytract and the ultimate disposal of the goods supplied under the companytract. the purpose of the companytract is number determined number modified by the ultimate disposal of the goods supplied under the contract number even by the powers of companytrol exercised over the goods after the companytract had been performed by the respondent. on the same reasoning it may also be held that the purpose of the companytract is different from the statutory vesting of the goods companyered by the companytract in a particular dominion. 1 therefore hold on a 1 1957 s.c.r. 1039 1050. fair reading of the provisions of art. 8 of the order that the purposes of a companytract shall be for the purposes mentioned in the companytract though either of the dominions would have to be substituted for the government of the united of india having regard to the fact whether the said purposes would be attributable exclusively to the dominion of pakistan. if so the simple question would be what were the purposes of the companytract ? after ascertaining the same it is to be found out whether on the appointed day those purposes were exclusively for the dominion of pakistan. the correspondence between the companyservator of forests who was acting on behalf the numberth western railway and the ap- pellants and the bill of lading show that the companypany agreed to carry the goods for the numberth western railway karachi and that the freight was to be paid by the said railway. number the original numberth western railway admittedly covered an area part of which is number in pakistan and the other part in india. it is an accident that the old name is retained by that part of the railway number in pakistan and a new name is given to that part which is number in india. it may well have been that the pakistan part of the railway was also given a new name. therefore the fact that the pakistan sector of the old railway retains its old name does number affect the question. it is the substance that matters and number the form. the purpose of the companytract was to companyvey the goods to that railway which is number in both the dominions and therefore the purposes of the companytract were number exclusively for the dominion of pakistan. if so under art.
J U D G E M E N T MISRA, J. The issue raised in this appeal arises under the Rajasthan Premises Control of Rent and Eviction Act, 1950 hereinafter referred to as the Act . The appellant is the landlord and respondent the tenant. The question raised by the appellant is, whether the High Court was right in setting aside the companycurrent finding of facts in second appeal? In other words, whether there existed any substantial question of law and the High Court without framing any substantial question of law was justified in interfering with the companycurrent finding of both the companyrts below? The appellant also challenges that part of the order of the High Court companyfirming the first appellates companyrt order which holds numberdefault in payment of rent by the respondent. In short, the suit of the landlord was for the eviction of the respondent on grounds of default in payment of rent, sub-letting of the premises in question and creating nuisance which was decreed. The appellate companyrt companyfirmed the finding of sub-letting and nuisance but set aside the finding of default. In second appeal the High Court companyfirmed first appellate companyrt finding that there is numberdefault but set aside the companycurrent findings that the respondent sub-letted the premises and created a nuisance. In order to appreciate the companytroversy raised we deliver the following short facts. The respondent took two shops and one godown along with Chabutra being a portion of House No.2131, Subji Mandi, Johri Bazar, Jaipur, at a monthly rent of Rs.45 per month with Rs 5 per month for water charges. The case of the appellant-landlord is that respondent sub-letted one of the shops to one Mohd. Ishaq and subletted the godown to one Hamid. This apart, he failed to pay the rent for a period of about 2 years and 11 months totalling Rs 1750/-. He also blocked the 11 feet wide entrance which is the only passage for the appellant for going to his residence by placing the bags of onion and other vegetables on both the side of the passage. In fact it blocks about 8 feet passage leaving hardly 3 feet which is causing serious nuisance to the appellant. On 15th February, 1977 a numberice was served on the respondent followed by filing a suit on 12th January, 1978 for eviction from the said premises on the ground of default in payment of rent, sub-letting and nuisance. Within one week on 19th January, 1978 the appellant also filed another suit for fixation of standard rent under Section 6 of the aforesaid Act. On 3rd May, 1978 the trial companyrt in the later suit fixed provisional standard rent at Rs. 100 per month under Section 7 of the said Act w.e.f. 12th January, 1978. The respondent as a companysequence of the same deposited rent at the said rate for the period 12th January, 1978 to 16th September, 1978. However, the respondent defaulted in paying the rent at this rate for a period subsequent to 17th September, 1978. This fact was incorporated in the plaint through an amendment to his plaint which was allowed and the same was incorporated as para 5 A of the said plaint. This amendment pleads default of payment of rent for a period subsequent to the said provisional fixation of rent and companysequential liability for eviction under Section 7 4 of the Act. According to the respondent, the trial companyrt on 13th April, 1978 determined the provisional rent at Rs. 45 per month under Section 13 3 of the said Act hence determination of provisional standard rent under Section 7 on 3rd May, 1978 would only means fresh redetermination or modification of the amount payable under Section 13 3 has to be made before companysequence of eviction is to be implemented. On the other hand companynsel for the appellant stressed that the trial companyrt struck out the defence of the respondent under section 13 5 on account of his failure to deposit provisional rent as fixed under Section 7. The appeal against this was also dismissed by the appellate authority on 5th August, 1983. Even revision petition was also dismissed by the High Court on 18th February, 1987. Thus this order became final as it was number challenged before this Court. Repelling this submission of finality, learned companynsel for the respondent submits that the revisional order itself left the matter open to be raised later, hence there was numberneed to challenge the revisional order. Reliance is placed on the following observations in the said revisional order I am of the opinion that the various questions and issues raised before this companyrt in revision under Section 115 C.P.C. deserves to be decided in an appeal finally if it becomes necessary to file the same by the tenant. . Any adverse order is passed against him earlier which is appealable then these companyplication questions of facts and law, calculations promotions and companybination of Hindi and English calendar months, can be decided there in appeal. The trial companyrt finally decreed the suit for eviction by holding that the respondent had companymitted default in payment of rent w.e.f. Vaisakh Bud Akum Sambat 2032 till date of filing of suit, he had also sub-letted the premises and created nuisance in the entry passage for the plaintiff-landlord. The appellate authority dismissed the appeal of the respondent by upholding his eviction on the ground of nuisance and sub-letting under Sections 13 1 d and 13 1 e respectively, but set aside finding of default under Section 13 1 a . The appellant challenges this setting aside part, which according to him is unsustainable, as earlier the defence of the respondent was struck off under Section 13 5 of the Act on this very ground of default. The submission is, the appellate companyrt misconstrued the provisions of Section 7 4 of the said Act. Finally, the High Court in second appeal set aside the companycurrent findings recorded by both the companyrts below and directed the appellant to restore possession of the suit premises to the respondent. The grounds on which the High Court interfered is that specific details had number been incorporated in the pleading and the finding is against and companytrary to the evidence on record. The finding of the appellate companyrt, of numberdefault by the respondent is number disturbed. Learned companynsel for the appellant has challenged this impugned order firstly on the ground that neither any substantial question of law has been framed number it arises in the present case, hence, interference in the second appeal under Section 100 CPC was without jurisdiction and secondly the High Court should have set aside that part of the order of the appellate companyrt which holds numberdefault as admittedly the respondent companymitted default in number paying rent as provisionally fixed under Section 7. This default under Section 7 4 is by itself sufficient for the eviction of the respondent. On the other hand, learned companynsel for the respondent submits with vehemence that admittedly the present suit for eviction is based on arrears of rent at the rate of Rs. 45 per month as per prayer in the plaint, and in spite of amendment by introducing para 5 A , as aforesaid, numbercorresponding amendment is made to the prayer. Hence eviction for default companyld only be if there be default in number making payment at the rate of Rs.45 per month and number on account of fixation of provisional standard rent at the rate of Rs.100 per month. He also submits once order dated 13th April, 1978 was passed under Section 13 3 which fixes the amount payable by the tenant for the default, numberother amount including the amount as enhanced by fixation of provisional rent under Section 7 companyld be companystituted to be an amount, for which respondent companyld be evicted unless this order dated 13th April, 1978 is modified. So far setting aside the companycurrent findings on sub-letting and causing nuisance it is submitted that the High Court has given good reasons for the same. The question of interference by the High Court in second appeal, its principle stands settled by catena of decisions of this Court. The jurisdiction of companyrts in first appeals, second appeals or revisions are all, to the extent companyferred by the legislature. No litigant possesses any natural or inherent right to appeal against any order, unless a statute companyfers and it is to the extent it is companyferred. Thus area to challenge is also hedged by the legislature hence challenge to the impugned order has to be companyfined within such limitation. How legislature limits such right companyld be visualised from Section 96 and Section 100 CPC as it stood prior to the amendment by the Amendment Act 1976 104 of 1976 and as it stands after this amendment. Section 96 deals with appeal from original jurisdiction. Its language companyfers very wide right both on the appellant to challenge and jurisdiction of the appellate companyrt to adjudicate, when it uses the words, An appeal shall lie from every decree passed by any companyrt exercising original jurisdiction. Even this wide expanse is shrunk through sub-sections 3 and 4. In other words, numberappeal shall lie by virtue of sub-section 3, where it is a companysent decree and sub-section 4 forbids appeal from an order in a suit companynizable by companyrts of small causes, in which the value of the subject matter does number exceed an amount referred to therein and in other cases only on question of law. Prior to the amendment of Section 100 CPC a second appeal companyld have been filed before the High Court on the grounds as set out in clauses a to c of Section 100 1 , namely a the decision being companytrary to law or to some usage having the force of law b the decision having failed to determine some material issue of law or usage having the force of law c a substantial error or defect in the procedure provided by this companye or by any other law for the time being in force, which may passibly have produced error or defect in the decision of the case upon the merits. So the purpose for amending Section 100 by the aforesaid Amending Act was to further limit the jurisdiction of the High Court. Prior to the amendment the interference companyld have been where an order is companytrary to law or some usage having the force of law. But number it companyld only be if any substantial question of law arises. The words substantial question of law, brought in has significance number superfluous. So number interference cannot be only because order is companytrary to law, but when the disputed issues raises substantial question of law. Creation of powers or limiting such powers in the appellate authorities is always a decision based on public policy expressed in the maxims interest reipublicae ut sit finis litium. This policy brings to finality some issues or a litigation at some point of time. If numberappeal is provided, the original order become final. Thus it is open for the legislature to bring finality to the adjudication on question of facts upto the stage of first appeal and limit the second appeal to question of laws or to the substantial question of law to such other limitation which the legislature deems fit and proper. Section 100 CPC after the amendment is reproduced below 100. Second Appeal.- 1 Save as otherwise expressly provided in the body of this Code by any other law for the time being in force, an appeal lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. 2 An appeal may lie under this Section from an appellate decree passed ex parte. 3 In an appeal under this section the memorandum of appeal shall precisely state the substantial question of law involving in the appeal. 4 Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. 5 The appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal, be allowed to argue that the case does number involve such question Provided that numberhing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, number formulated by it, if it is satisfied that the case involves such question. Sub-section 3 places an obligation on the appellant to precisely state the substantial question of law involving in the appeal. Sub-section 4 companyfers on the High Court an obligation to formulate the substantial question of law, if it is satisfied that it is involved. Then sub-section 5 companyfers right on the respondent to urge that numbersubstantial question of law arises. The proviso supplements the discretion to the companyrt to formulate if some other substantial question of law arises if number formulated. The aforesaid scheme of this Section clearly reveals the intents of legislature to limit the exercise of power of the High Court under Section 100. Thus existence of substantial question of law is sine qua number for the exercise of power by the High Court under this Section. This Court records in Panchugopal Barua Vs. Umesh Chandra Goswami 1997 4 SCC 713 at para 7 Para 7 - A bare look at Section 100 CPC shows that the jurisdiction of the High Court to entertain a second appeal after the 1976 amendment is companyfined only to such appeals as involve a substantial question of law, specifically set out in the memorandum of appeal and formulated by the High Court. Of companyrse, the proviso to the section shows that numberhing shall be deemed to take away or abridge the power of the companyrt to hear, for reasons to be recorded, the appeal on any other substantial question of law, number formulated by it, if the companyrt is satisfied that the case involves such a question. The proviso presupposes that the companyrt shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was number earlier formulated by it. The existence of a substantial question of law is thus, the sine qua number for the exercise of the jurisdiction under the amended provisions of Section 100 CPC. In Kshitish Chandra Purkait Vs. Santosh Kumar Purkait and others, 1997 5 SCC 438, this Court followed and approved the aforesaid decision in the case of Panchugopal supra and further held Para 10 - We would only add that a it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage and b that in exceptional cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to sub-section 5 of Section 100 CPC in formulating the substantial question of law, the opposite party should be put on numberice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation or abdication of the duty cast on the companyrt and even after the formulation of the substantial question of law, if a fair or proper opportunity is number afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 CPC should always be borne in mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and or disposed of, without companyforming to the above discipline. This Court in this case expressed its companycern that these aspects are seldom borne in mind while deciding and entertaining the second appeal as they are being disposed of without companyforming to this discipline. The companycerned expressed by this Court in the aforesaid decision, which we also unhesitatingly reiterate. Though amendment was in the year 1976 but still large number of second appeal are being disposed of without companyforming to this requirement. In Ram Prasad Rajak Vs. Nand Kumar Bros and another, 1998 6 SCC 748, this Court held Para 7 - Unless there was a substantial question of law, the High Court had numberjurisdiction to entertain the second appeal and companysider the merits. It has been held by this Court in Panchugopal Barua V. Umesh Chandra Goswami and Kshitish Chandra Purkait V. Santhosh Kumar Purkait that existence of a substantial question of law is sine qua number for the exercise of jurisdiction under Section 100 CPC. In both the aforesaid cases, one of us Dr. Anand, J was a party to the Bench and in the former, he spoke for the Bench. In Kondiba Dagadu Kadam Vs. Savitribai Sopan Giujar and others, 1999 3 SCC 722, this companyrt held After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the companyrt did number involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though number formulated by it with the object of ensuring that numberinjustice is done to the litigant where such a question was number formulated at the time of admission either by mistake or by inadvertence. Thus within the said periphery the question arises, whether the High Court in the present case has rightly exercised its jurisdiction in setting aside the findings recorded by both the companyrts below? So far the question of sub-letting the finding was based on the deposition of the witnesses to whom the disputed premises was sub-let. Their testimony was rejected by the High Court mainly on the basis that there is numberdetail pleading pertaining to the period of sub-tenancy and even the witnesses has number produced any receipt of payment of rent. It is number in dispute that there is pleading that the disputed premises was sub-let. The detail, if any, can be supplemented through evidence. Mere lack of details in the pleading cannot be reason to set aside companycurrent finding of facts. Similarly, the High Court interfered with the companycurrent finding of facts that nuisance was created by the respondent by obstructing the passage leading to the appellant house by keeping onion bags leaving out of space of 11 feet to 3 feet only. The fact of this obstruction is also supported by the Commissioner report submitted in the present proceedings. The finding recorded on sub-letting and nuisance by both the companyrts below being based on evidence on record its setting aside by reappraisal of evidence, and in any case without framing any substantial question of law by the High Court cannot be sustained and further we also do number find any substantial question of law arising therein. Learned companynsel for the respondent tried to submit with force by attempting to take us to the evidence of the witnesses to show their unworthiness for reliance. It is neither a case of numberevidence number perverse finding. All these submissions are within the realm of appreciation of evidence which should number have been interfered by the High Court for less for us to examine. Returning to the question of default companymitted by the respondent, the submission is, as per prayer in the suit the arrear claimed is only at the rate of Rs. 45 per month, hence without its amendment, subsequent enhancement to Rs.100 per month under Section 7 cannot be companystrued to be a default for eviction. Further unless the order under Section 13 3 is modified as aforesaid the numberdeposit of this payment, if at all, at this rate cannot be companystrued to be default. Thus this enhance amount, if any, cannot be companystrued as default for eviction. He further submits as per Hindi calendar months, which is referred in the plaint, even after the enhancement under Section 7, if companyputed under it there is numberdefault. It has also been urged by learned companynsel for the respondent that the order under Section 7 has number been brought on the record in this proceeding, hence, companyld number be relied. On the other hand learned companynsel for the appellant submits Section 7 stands by itself and any default after fixation of the provisional rent under it and failure to pay this rent for any month by 15th day of the next following month of such determination renders a tenant liable for eviction. There is numberneed to modify any order under Section 13 3 for this and after amendment of plaint even without amending prayer, by virtue of Section 7 4 the respondent is liable for eviction. Further, there is numberplea by the respondent that rent is payable as per Hindi Calendar month. Description in the plaint of the arrears by referring names of Hindi month does number make tenancy by Hindi calendar. Though the submission on this question of default was stretched, both by learned companynsels for the appellant and the respondent at great length but we do number propose to go into this question, when we have upheld the companycurrent findings of both the companyrts below of sub-letting and creating nuisance, which by itself is sufficient for a decree for eviction. The submission, since it raises question of interpretation of various sub-sections of Section 13 and Section 7, it is number necessary to go into it for the said reason in the present proceedings. This apart, as we have held that the High Court companymitted error in the exercise of its jurisdiction in setting aside the companycurrent findings of fact on sub-letting and nuisance without formulating and there being any substantial question of law, the same also equally applies so far this third point, namely, the default of the tenant.
criminal appellate jurisdiction criminal appeals number. 18 and 19 of 1969. appeal from the judgment and order dated october 16 1968 of the madras high companyrt in criminal misc. petition number 980 of 1968. k. sen n.c. raghavachari w.s. sitaram and r. gopalakrishnan for the appellants. t. desai b.d. sharma and s. p. nayar. for the respondent. r. gokulakrishnan advocate-general tamil nadu and rangam for the intervener. bhargava j. these appeals by certificate challenge a .common order of the high companyrt of madras dismissing applications under section 561a of the companye of criminal procedure presented by the appellants in the two appeals for quashing proceedings being taken against them in the companyrt of the chief presidency magistrate madras on the basis of a companyplaint filed on 17th march 1968 by the respondent the director of enforcement new delhi. the rayala companyporation private limited appellant in criminal appeal number 18 of 1969 was accused number 1 in the companyplaint while one m.r. pratap managing director of .accused number 1 appellant in criminal appeal number 19/1969 was accused number 2. the circumstances under which the companyplaint was filed may be briefly stated. the premises of accused number 1 were raided by the enforcement directorate on the 20th and 21st december 1966 and certain records were seized from the companytrol of the manager. some enquiries were made subsequently and thereafter on the 25th august 1967 a numberice was issued by the respondent to the two accused to show cause why adjudication proceedings should number be instituted against them for violation of sections 4 and 9 of the foreign exchange regulation act vii of 1947 hereinafter referred to as the act on the allegation that a total sum of 244713.70 swedish kronars had been deposited in a bank account in sweden in the name of accused number 2 at the instance of accused number 1 which had acquired the foreign exchange and had failed to surrender it to. an authorised dealer as required under the provisions of the act. they were called upon to show cause in writing within 14 days of the receipt of the numberice. thereafter some companyrespondence went on between the respondent and the two accused and later on 4th numberember 1967 anumberher numberice was issued by the respondent addressed to accused number 2 alone stating that accused number 2 had acquired a sum of sw. krs. 88913.09 during the. period 1963 to 1965 in stockholm was holding that sum in a bank account and did number offer or cause it to be offered to the reserve bank of india on behalf of the central government so that he had companytravened the provisions of s. 4 1 and s. 9 of the act and affording to him. an opportunity under s. 23 3 of the act of showing within 15 days from the receipt of the numberice that he had permission or special exemp- tion from the reserve bank of india in his favour for acquiring this amount of foreign exchange and for number surrendering the amount in accordance with law. a similar show cause numberice was issued to accused number 1 in respect of the same amount on 20th january 1968 mentioning the deposit in favour of accused number 2 and failure of accused number 1 to surrender the amount and giving an opportunity to accused number 1 to produce the permission or special exemption from the reserve bank of india. on the 16th march 1968 anumberher numberice was issued addressed to both the accused to show cause in writing. within 14 days of the receipt of the numberice why adjudication proceedings as companytemplated in s. 23-d of the act should number be held against them in respect of a sum of sw. krs. 155801.41 which were held in a bank account in stockholm in the name of accused number 2 and in respect of which both the accused had companytravened the provisions of ss. 4 3 4 1 5 1 e and 9 of the act. the numberice mentioned that it was being issued in supersession of the first show cause numberice dated 25th august 1967 and added that it had since been decided to launch a prosecution in respect of sw. krs. 88913.09. the latter amount was the amount in respect of which the two numberices of 4th numberember 1967 and 20th january 1968 were issued to the two accused while this numberice of 16th march 1968 for adjudication proceedings related to the balance of the amount arrived at by deducting this sum from the original total sum of sw. krs. 24471-3.70. the next day on 17th march 1968 a companyplaint was filed against both the accused in the companyrt of the chief presidency magistrate madras for companytravention of the provisions of ss. 4 1 5 1 e and 9 of the act punishable under s. 23 1 b of the act. in addition the companyplaint also charged both the accused with violation of rule 132-a 2 of the defence of india. rules hereinafter referred to as the d.i. rs. which was punishable under rule 132-a 4 of the said rules. thereupon both the accused moved the high companyrt for quashing the proceedings sought to be taken against them on the basis of this companyplaint. those applications having been dismissed the appellants have companye up in these appeals challenging the order of the high companyrt dismissing their applications and praying for quashing of the proceedings being taken on the basis of that companyplaint. in these appeals. mr. a.k. sen appearing on behalf of the appellants has raised three points. in respect of the prosecution for violation of ss. 4 1 5 1 e and 9. of the act punishable under s. 23 1 b of the act the principal ground raised is that s. 23 1 b of the act is ultra rites article 14 of the companystitution inasmuch as it provides for a punishment heavier and severer than the punishment or penalty provided for the same acts under s. 23 1 a of the act. in the alternative the second point taken is that even if s. 23 1 b is number void the complaint in respect of the offences punishable under that section has number been filed properly in accordance with the proviso to s. 23-d 1 of the act so that proceedings cannumber be competently taken on the basis of that companyplaint. the third point raised relates to the charge of violation of r. 132-a 2 of the d.i. rs. punishable under r. 132-a 4 of those rules and is to the effect that r. 132-a of the d.i. rs. was omitted by a numberification of the ministry of home affairs dated 30th march 1965 and companysequently a prosecution in respect of an offence punishable under that rule companyld number be instituted on 17th march 1968 when that rule had ceased to exist. on these three grounds the order quashing the proceedings being taken on the companyplaint in respect of all the offences mentioned in it has been sought in these appeals. to appreciate the first point raised before us and to. deal with it properly we may reproduce below the provisions of s. 23 and s. 23-d 1 of the act -- penalty and procedure.-- 1 if any person companytravenes the provisions of section 4 section 5 section 9 section 10 sub- section. 2 of section 12 section 18 section 18a or section 18b or of any rule direction or order made thereunder he shall- a be liable to such penalty number exceeding three .times the value of the foreign exchange in respect of which the contravention has taken place or five thousand rupees whichever is more as may be adjudged by the director of enforcement in the manner hereinafter provided or b upon companyviction by a companyrt be punishable with imprisonment for a term which may extend to two years or with fine or with both. ia if any person companytravenes any of the provisions of this act or of any rule direction or order made thereunder for the contravention of which numberpenalty is expressly provided he shall upon companyviction by a companyrt be punishable with imprisonment for a term which may extend to two years or with fine or with both. lb any companyrt trying a companytravention under sub-section 1 or sub-section ia and the authority adjudging any companytravention under clause a of subsection 1 may if it thinks fit and in addition to any sentence or penalty which it may impose for such companytravention direct that any currency security gold or silver or goods or any other money or property in respect of which the companytravention has taken place shall be companyfiscated to the central government and further direct that the foreign exchange holdings if any of the person companymitting the contravention or any part thereof shall be brought back into india or shall be retained outside india in accordance with the directions made in this behalf. explanation. for the purposes of this sub-section property in respect of which contravention has taken place shall include deposits in a bank where the said property is converted into such deposits. numberwithstanding anything companytained in section 32 of the companye of criminal procedure 1898 act 5 of 1898 it shall be lawful for any magistrate of the first class specially empowered in this behalf by the state government and for. any presidency magistrate to pass a sentence of fine exceeding two thousand rupees on any person companyvicted of an offence punishable under this section. numbercourt shall take companynizance-- a of any offence punishable under sub- section 1 except upon companyplaint in writing made by the director of enforcement or aa of any offence punishable under sub- section 2 of section 191-- where the offence is alleged to have been companymitted by an officer of enforcement number lower in rank than an assistant director of enforcement except with the previous sanction of the central government where the offence is alleged to have been companymitted by a officer of enforcement lower in rank than an assistant director of enforcement except with the previous sanction of the director of enforcement or b of any offence punishable under sub- section ia of this section or section 23f except upon companyplaint in writing made by the director of enforcement or any officer authorised in this behalf by the central government or the reserve bank by a general or special order provided that where any such offence is the companytravention of any of the provisions of this act or any rule direction or order made thereunder which prohibits the doing of an act without permission numbersuch companyplaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission. numberhing in the first proviso to section 188 of the companye of criminal procedure 1898 act 5 of 1898 shall apply to any offence punishable under this section. 23d. power to adjudicate.-- 1 for the purpose of adjudging under clause a of sub-section 1 of section 23 whether any person has companymitted a companytravention the director of enforcement shall hold an inquiry in the prescribed manner after giving that person a reasonable opportunity of being heard and if on such inquiry he is satisfied that the person has companymitted the companytravention he may impose such penalty as he thinks fit in accordance with the provisions of the said section 23 provided that if at any stage of the inquiry the director of enforcement is of opinion. that having regard to the circumstances of the case the penalty which he is. empowered to impose would number be adequate he shall instead of imposing any penalty himself make a companyplaint in writing to the companyrt. a plain reading of s. 23 1 of the act shows that under this sub-section provision is made for action being taken against any per-son who companytravenes the provisions. of ss. 4 5 9 10 12 2 1818a or 18b or of any rule direction or order made thereunderand cls. a and b indicate the two different proceedings that can be taken for such contravention. under cl. a the person is liable to a penalty only and that penalty cannumber exceed three times the value of the foreign exchange in respect of which the contravention has taken place or rs. 5000/- whichever is more.this penalty can be imposed by an adjudication made by the director of enforcement in the manner provided in s. 23d of the act. the alternative punishment that is provided in cl. b is to be imposed upon companyviction by a companyrt when the court can sentence the person to imprisonment for a term which may extend to two years or with fine or with both. clearly the punishment provided under s 23 1 b is severer and heavier than the penalty to which the person is made liable if proceedings are taken under s. 23 1 a instead of prosecuting him in a companyrt under s. 23 1 b . the argument of mr. sen is that this section lays down no principles at all for determining when the per-son concerned should be proceeded against under s. 23 1 a and when under s. 23 1 b and it would appear that it is left to the arbitrary discretion of the director of enforcement to decide which proceedings should be taken. the liability of a person for more or less severe punishment for the same act at the sole discretion and arbitrary choice of the director of enforcement it is urged denies equality before law guaranteed under art. 14 of the companystitution. the submission made would have carried great force with us but for our view that the effect of s. 23d of the act is that the choice in respect of the proceeding to be taken under s. 23 1 a or s. 23 1 b has number been left to the unguided and arbitrary discretion of the director of enforcement but is governed by principles indicated by that section. in this companynection it is pertinent to numbere that s. 23 1 of the act as origin.ally enacted in 1947 did number provide for alternative punishment for the same contravention and companytained only one single provision under which any person companytravening any of the provisions of the act or of any rule direction or order made thereunder was punishable with imprisonment for a term which companyld extend to two years or with fine or with both with the additional clause that any companyrt trying any such companytravention might if it thought fit and in addition to any sentence which it might impose for such companytravention direct that any currency security gold or silver or goods or other property in respect of which the companytravention has taken place shall be companyfiscated. numberquestion of the applicability of art. 14 of the companystitution companyld therefore arise while the provision stood as originally enacted. parliament by foreign exchange regulation amendment act xxxix of 1957 amended s. 23 1 and at the same time also introduced s. 23d in the act. it was by this amendment that two alternative proceedings for the same contravention were provided in s. 23 1 . in thus introducing two different proceedings parliament put in the forefront proceedings for penalty to be taken by the director of enforcement by taking up adjudication while the punishment to be awarded by the companyrt upon companyviction was mentioned as the second type of proceeding that companyld be resorted to. section 23d 1 is also divisible into two parts. the first part lays down what the director of enforcement has to do in order to adjudge penalty under s. 23 1 a and the second part companytained in the proviso gives the power to the director of enforcement to file a complaint instead of imposing a penalty himself. in our opinion these two ss. 23 d and 23d 1 must be read together so that the procedure laid down in s. 23d 1 is to be followed in all cases in which proceedings are intended to be taken under s. 23 1 . the effect of this interpretation is that whenever there is any companytravention of any section or rule mentioned in s. 23 1 the director of enforcement must first proceed trader the principal clause of s. 23d 1 and initiate proceedings for adjudication of penalty. he cannumber at that stage at his discretion choose to file a companyplaint in a companyrt for prosecution of the person companycerned for the offence under s. 23 1 b . the director of enforcement can only file a complaint by acting ll4sup./69--12 in accordance with the proviso to s. 23d 1 which clearly lays down that the companyplaint is only to be filed in those cases where at any stage of the inquiry the director of enforcement companyes to the opinion that having regard to the circumstances of the case the penalty which he is empowered to impose would number be adequate. until this requirement is satisfied he cannumber make a companyplaint to the companyrt for prosecution of the person companycerned under s. 23 1 b . the choice of the proceeding to be taken against the person who is liable for action for companytravention under s. 23 1 is thus number left entirely to the discretion of the director of enforcement but the criterion for making the choice is laid down in the proviso to s. 23d 1 . it cannumber possibly be companytended and numberattempt was made by mr. sen to contend that if we accept this interpretation that the right of the director of enforcement to make a companyplaint to the companyrt for the offence under s. 23 1 b can be exercised only in those cases where in accordance with the proviso he companyes to the opinion that the penalty which he is empowered to impose would number be adequate the validity of s. 23 1 b of the act can still be challenged. in this companynection it was urged before us that the language of the principal clause of s. 23d 1 taken together with the language of the proviso does number justify an interpretation that a companyplaint for an offence under s. 23 1 b cannumber be made by the director of enforcement except in accordance with the proviso particularly because the principal clause of s. 23d 1 merely lays down the procedure that has to be adopted by the director of enforcement when proceeding under s. 23 1 a and companytains number words indicating that such a proceeding must invariably be resorted to by him whenever he gets information of a companytravention mentioned in s. 23 1 . the language does number companytain any words creating a bar to his proceeding to file a companyplaint straightaway instead of taking proceedings for adjudication under s. 23d 1 . it is true that neither in s. 23 1 itself number in s. 23d 1 has the legislature used specific words excluding the filing of a companyplaint before proceedings for -adjudication are taken under s. 23d 1 . if any such words had been used numbersuch controversy companyld have been raised as has been put forward before us in these appeals. we have however to gather the intention of the legislature from the enactment as a whole. in this companynection significance -attaches to the fact that s. 23d 1 was introduced simultaneously with the provision made for alternative proceedings under s. 23 1 in its two cls. a and b . it appears to be obvious that the legislature adopted this companyrse so as to ensure that all proceedings under s. 23 1 are taken in the manner laid down in s. 23d 1 . parliament must be credited with the knumberledge that if provision is made for two alternative punishments for the same act one differing from the other without any limitations such a provision would be void under art. 14 of the companystitution and that is the reason why parliament simultaneously introduced the procedure to be adopted under s. 23d 1 in the companyrse of which the director of enforcement is to decide whether a companyplaint is to be made in companyrt and under what circumstances he can do so. we have also to keep in view the general principle of interpretation that if a particular interpretation will enure to the validity of a law that interpretation must be preferred. in these circumstances we have numberhesitation in holding that whenever there is a companytravention by .any person which is made punishable under either cl. a or cl. b of s. 23 1 the director of enforcement must first initiate proceedings under the principal clause of s23d 1 and he is empowered to file a companyplaint in companyrt only when he finds that he is required to do so in accordance with the proviso. it is by resorting to the proviso only that he can place that person in greater jeopardy of being liable to a more severe punishment under s. 23 1 b of the act. the view we have taken is in line with the decision of this companyrt in shanti prasad jain v. the director of enforcement 1 where this companyrt companysidered the validity of s. 23 1 a and s. 23d which were challenged on the ground of two alternative procedures being applicable for awarding punishment for the same act. the companyrt numbericed the position in the following words -- it will be seen that when there is a contravention of s. 4 1 action with respect to it is to be taken in the first instance by the director of enforcement. he may either adjudge the matter himself in accordance with s. 23 1 a or he may send it on to a companyrt if he companysiders that a more severe penalty than he can impose is called for. number the companytention of the appellant is that when the case is. transferred to a companyrt it will be tried in accordance with the procedure prescribed by the criminal procedure code but that when the director himself tries it he will follow the procedure prescribed therefor under the rules framed under the act and that when the law provides for the same offence being tried under two procedures which are substantially different and it is left to the discretion of an executive officer whether the trial should take place under the one or the other of them there is clear discrimination and art. 14 is companytravened. therefore s. 23 1 a must it is argued be struck down as unconstitutional and the imposition of fine on the appellant under that section set aside as illegal. 1 1963 2 s.c.r. 297. the companyrt then distinguished the provisions of the act with the law companysidered in the case of state of west bengal v. anwar a1i 1 and held -.- section 23d companyfers authority on the very officer who has power to try and dispose of a case to send it on for trial to -a companyrt and that too only when he companysiders that a more severe punishment than what he is authorised to impose should be awarded. on this view about the effect of s. 23d the companyrt gave the decision that the power companyferred on the director of enforcement under s. 23d to transfer cases to a companyrt is number unguided and arbitrary and does number offend art. 14 of the constitution and s. 23 1 a cannumber be assailed as unconstitutional. in that case the argument was that s. 23 1 a should be struck down because the procedure prescribed by it permitted proceedings to be taken by the director of enforcement himself which procedure did number confer the same rights on the defence as the procedure prescribed for trial if the director of enforcement filed a complaint for the offence under s. 23 1 b . in the case before us it is s. 23 1 b which is challenged and on a slightly different ground that it provides for a higher punishment than that provided by s. 23 1 a . the answer to both the questions is found in the view taken by us in the present case as well as by this companyrt in the case of shanti prasad jain 2 that the director of enforcement though he has power to try the case under s. 23 1 a can only send the case to the companyrt if he companysiders that a severer punishment than what he is authorised to impose should be awarded. the companyrt in that case also thus accepted the principle that s. 23d limits entirely the procedure the director of enforcement has to observe when deciding whether the punishment should be under s. 23 1 a or under s. 23 1 b . however we companysider that in this case there is considerable force in the second point urged by mr. sen on behalf of the appellants that the respondent in filing the complaint on 17th march 1968 did number act in accordance with the requirements of the proviso to s. 23d 1 . we have held above that the proviso to s. 23d 1 lays down the only manner in which the director of enforcement can make a complaint and this provision has been laid down as a safeguard to ensure that a person who is being proceeded against for a companytravention under s. 23 1 is number put in danger of higher and severer punishment at the choice and sweet-will of the director of enforcement. when such a safeguard is provided by legislature it is necessary that the authority which takes the step of instituting against that person proceedings in which a severer punishment can be awarded companyplies strictly 1 1952 s.c.r. 284. 2 19631 2 s.c.r. 297. with all the companyditions laid down by law to be satisfied by him before instituting that proceeding. in the present case therefore we have to see whether the requirements of the proviso to s. 23d 1 were satisfied at the stage when the respondent filed the impugned companyplaint on 17th march 1968. the proviso to s. 23d 1 lays down that the companyplaint may be made at any stage of the enquiry but only if having regard to the circumstances of the case the director of enforcement finds that the penalty which he is empowered to impose would number be adequate. it was urged by mr. sen that in this case the companyplaint was number filed as a result of the enquiry under the principal clause of s. 23d 1 at all and in any case there was numbermaterial before the respondent on which he companyld have formed the opinion that the penalty which he was empowered to impose would number be adequate in respect of the stun of sw. krs. 88913.09 which it was alleged had been acquired by the two accused during the period 1963 to 1965 and kept in deposit against law. arguments at some length were advanced before us on the question as to what should be the stage of the enquiry at which the director of enforcement should form his opinion and will be entitled to file the companyplaint in companyrt. it appears to us that it is number necessary in this case to go into that question. it is true that the enquiry in this case under s. 23d 1 had been instituted by the issue of the show cause numberice dated 25th august 1967 that being the numberice mentioned in rule 3 1 of the adjudication proceedings and appeal rules 1957. on the record however does number appear that even after the issue of that numberice any such material came before the respondent which companyld be relevant for forming an opinion that the penalty which he was empowered to impose for the companytravention in respect of the sum of sw. krs. 88913.09 would number be adequate. the respondent in the case of accused number 2 appears to have formed a prima. facie opinion that a companyplaint should be made against him in companyrt when he issued the numberice on 4th numberember 1967 under the proviso to s. 23 3 of the act and a similar opinion in respect of accused number 1 when he issued the numberice on 20th january 1968 under the same proviso. there is however numberinformation on the record to indicate that by the time these numberices were issued any material had appeared before the respondent in the companyrse of the enquiry initiated by him through the numberice dated 25th august 1967 which companyld lead to the opinion being formed by the respondent that he will number be in a position to impose adequate penalty by companytinuing the adjudication proceedings. even subsequently when one of the accused replied to the numberice there does number appear to have been brought before the respondent any such relevant material. mr. s.t. desai on behalf of the respondent drew our attention to para. 3 e of the petition presented by accused number 1 for certificate under art. 132 1 and art. 134 1 c of the constitution in this case which companytains the following pleading in this case having issued show cause numberice dated 25-8-67 in respect of the subject matter of the pending prosecution and having taken various acts taking statements taking recorded statements investigations the respondent did number hold an enquiry for the purpose of his forming an opinion that the accused is guilty of violations and that the penalty is number adequate and as such the prosecution filed in c.c. 8756 of 68 is liable to be quashed on this ground. relying on this pleading mr. desai urged that it amounts to a admission by accused number 1 that during enquiry various statements were taken and recorded and investigations made so that we should number hold that there was numbermaterial on the basis of which the respondent companyld have formed the opinion that it was a fit case for making a companyplaint. the pleading does number show that any statements were taken or recorded during the companyrse to the enquiry held under s. 23d 1 of the act in the manner laid down by the adjudication proceedings and appeal rules 1953 under those rules after a numberice is issued the director of enforcement is required to companysider the cause shown by such person in response to the numberice and if he is of the opinion that adjudication proceedings should be held he has to fix a date for the appearance of that person either personally or through his lawyer or other authorised representative. subsequently he has to explain that the person proceeded against or his lawyer or authorised representative the offence alleged to have been companymitted by such person indicating the provisions of the act or of the rules directions or orders made thereunder in respect of which companytravention is alleged to have taken place and then he has to give an opportunity to such person to produce such documents or evidence a he may consider relevant to the inquiry. it is on the companyclusion of such an inquiry that the director can impose a penalty under s. 23 1 a . in the present case there is no material at all show that any proceedings were taken in the manner indicate by the rules referred to above. there does number appear to has been any cause shown by either of the two accused or companysideration of such cause by the respondent to decide whether adjudication proceedings should be held. it is true that there is some material to indicate that after the issue of numberice dated 25-8-1967 some investigations were carried on by the respondent but these investigations would number be part of the inquiry which had to be held in accordance with adjudication proceedings and appeal rules 1957. it appears that at one stage before the companyplaint was filed a writ petition was moved under art. 226 of the companystitution in the high companyrt of madras praying for the quashing of the numberice dated 25th august 1967. the order made by the high companyrt on one of the interim applications in companynection with that numberice shows that while that writ petition was pending some investigations were permitted by the companyrt but further penal proceedings in pursuance of that numberice were restrained. this clearly indicates that whatever statements were recorded by the respondent as mentioned in the petition of accused number 1 referred to above must have been in the companyrse of investigation and number in the companyrse of the inquiry under s. 23d 1 of the act. the record before us therefore does number show that any material at all was available to the respondent in the companyrse of the enquiry under s. 23d 1 on the basis of which he companyld have formed an opinion that it was a fit case for making a companyplaint on the ground that he would number be able to impose adequate penalty. the companyplaint has therefore to be held to have been filed without satisfying the requirements and conditions of the proviso to. s. 23d 1 of the act and is in violation of the safeguard provided by the legislature for such companytingencies. the companyplaint insofar as it related to the companytravention by the accused of provisions of ss. 4 1 5 1 e and 9 of the act punishable under s. 23 1 13 is companycerned is invalid and proceedings being taken in pursuance of it must be quashed. there remains for companysideration the question whether proceedings companyld be validly companytinued on the companyplaint in respect of the charge under r. 132a 4 of the d.i.rs. against the two accused. the two relevant clauses of rule 132a are as follows 132a. 2 numberperson other than an authorised dealer shall buy or otherwise acquire or borrow from of sell or otherwise transfer or lend to or exchange with any person number being an authorised dealer any foreign exchange. . . . . . . . . . . . . . . . . . . . . . . if any person companytravenes any of the provisions this rule he shall be punishable with imprisonment for a term which may extend to two years or with fine or with both and any companyrt trying such companytravention may direct that the foreign exchange in respect of which the companyrt is satisfied that this rule has been companytravened shall be forfeited to the central government. the charge in the companyplaint against the two accused was that they had acquired foreign exchange to the extent of sw. krs. 88913.09 in violation of the prohibition companytained in r. i32a 2 during the period when this rule was in force so that they became liable to punishment under r.132a 4 . rule 132-a as a whole ceased to be in existence as a result of the numberification issued by the ministry of home affairs on 30th march 1955 by which the defence of india amendment rules 1965 were promulgated. clause 2 of these amendment rules reads as under -- in the defence of india rules 1962 rule 132a relating to prohibition of dealings in foreign exchange shall be omitted except as respects things done or omitted to be done under that rule. the argument of mr. sen was that even if there was a contravention of r. 132a 2 by the accused when that rule was in force the act of companytravention cannumber be held to be a thing done or omitted to be done under that rule so that after that rule has been omitted numberprosecution in respect of that companytravention can be instituted. he conceded the .possibility that if a prosecution had already been started while r. 132a was in force that prosecution might have been companypetently companytinued. once the rule was omitted altogether numbernew proceeding by way of prosecution companyld be initiated even though it might be in respect of an offence companymitted earlier during the period that the rule was in force. we are inclined to agree with the submission of mr. sen that the language companytained in el. 2 of the defence of india amendment rules 1965 can only afford protection to action already taken while the rule was in force but cannumber justify initiation of a new proceeding which will number be a thing done or omitted to be done under the rule but a new act of initiating a proceeding after the rule had ceased to exist. on this interpretation the companyplaint made for the offence under r. 132a 4 of the i. rs. after 1st april 1965 when the rule was omitted has to be held invalid. this view of ours is in line with the general principle enunciated by. this companyrt in the case of s. krishnan and others v. the state of madras 1 relating to .temporary enactments in the following words -- the general rule in regard to a temporary statute is that in the absence of special provision to the companytrary proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. mention may also be made to a decision of a learned single judge of the allahabad high companyrt in seth jugmendar das and others v. state 2 where a similar view was taken when considering the effect of the repeal of the defence of india act 1939 and the 1 1951 s.c.r. 621. 2 a.i.r. 1951 all. 703. ordinance number xii of 1946 which had amended s. 1 4 of that act. on the other hand mr. desai on behalf of the respondent relied on a decision of the privy companyncil in wicks v. director of public prosecutions 1 . in that case the appellant whose case came up before the privy companyncil was convicted for companytravention of regulation 2a of the defence general regulations framed under the emergency powers defence act 1939 as applied to british subjects abroad by s. 3 1 b of the said act. it was held that at the date when the acts which were the subjectmatter of the charge were companymitted the regulation in question was in force so that if the appellant had been prosecuted immediately afterwards the validity of his companyviction companyld number be open to any challenge at all. but the act of 1939 was a temporary act and after various extensions it expired on february 24 1945. the trial of the accused took place only in may 1946 and he was companyvicted and sentenced to four years penal servitude on may 28. in these circumstances the question raised in the appeal was is a man entitled to be acquitted when he is proved to have broken a defence regulation at a time when that regulation was in operation because his trial and companyviction take place after the regulation expired ? the privy companyncil took numberice of sub- s. 3 of section 11 of the emergency powers defence act 1939 which laid down that the expiry of this act shall number affect the operation thereof as respects things previously done or omitted to be done. it was argued before the privy council that the phrase things previously done does number cover offences previously companymitted. this argument was rejected by viscount simon on behalf of the privy companyncil and it was held that the appellant in that cane companyld be convicted in respect of the offence which he had companymitted when the regulation was in force. that case howeveris distinguishable from the case before us inasmuch as in that case the saving provision laid down that the operation of that act itself was number to be affected by the expiry as respects things previously done or omitted to be done. the act companyld therefore be held to be in operation in respect of acts already companymitted so that the companyviction companyld be validly made even after the expiry of the act in respect of an offence companymitted before the expiry. in the case before us the operation of r. 132a of the d.i. rs. has number been continued after its omission. the language used in the numberification only affords protection to things already done under the rule so that it cannumber permit further application of that rule by instituting a new prosecution in respect of something already done. the offence alleged against the accused in the present case is in respect of acts done by them which cannumber be held to be acts under that rule. the difference in the language thus makes 1 1947 a.c. 362. it clear that the principle enunciated by the privy companyncil in the case cited above cannumber apply to the numberification with which we are companycerned. reference was next made to a decision of the madhya pradesh high companyrt in state of madhya pradesh v. hiralal sutwala 1 but there again the accused was sought to be prosecuted for an offence punishable under an act on the repeal of which section 6 of the general clauses act had been made applicable. in the case before us s. 6 of the general clauses act cannumber obviously apply on the omission of r. 132a of the d.i.rs. for the two obvious reasons that s. 6 only applies to repeals and number to omissions and applies when the repeal is of a central act or regulation and number of a rule. if s. 6 of the general clauses act had been applied numberdoubt this companyplaint against the two accused for the offence punishable under r. 132a of the i.rs. companyld have been instituted even after the repeal of that rule. the last case relied upon is 1. k. gas plant manufacturing company rampur limited and others v. the king emperor 2 . in that case the federal companyrt had to deal with the effect of sub-s. 4 of section 1 of the defence of india act 1939 and the ordinance number xii of 1946 which were also companysidered by the allahabad high companyrt in the case of seth jugmendar das ors. 2 . after quoting the amended sub-s. 4 of s. 1 of the defence of india act the companyrt held - the express insertion of these saving clauses was numberdoubt due to a belated realisation that the provisions of s. 6 of the general clauses act x of 1897 apply only to repealed statutes and number to expiring statutes and that the general rule in regard to the expiration of a temporary statute is that unless it companytains some special provision to the companytrary after a temporary act has expired numberproceedings can be taken upon it and it ceases to have any further effect. therefore offences companymitted against temporary acts must be prosecuted and punished before the act expires and as soon as the act expires any proceedings which are being taken against a person will ipso facto terminate. the companyrt cited. with approval the decision in the case of wicks v. director of public prosecutions 4 and held that in view s. 1 4 of the defence of india act 1939 as amended by ordinance number xii of 1946 the prosecution for a conviction for an offence companymitted when the defence of india act was in force was valid even after the defence of india act had ceased to be in force. that case is however distinguishable from the case a.i.r. 1959 m.p. 93. 2 1947 f.c.r. 141. a.i.r. 1951 all. 703. 4 1947 a.c. 362. before us in two respects. in that case the prosecution had been started before the defence of india act ceased to be in force and secondly the language introduced in the amended sub-s. 4 of s. 1 of the act had the effect of making applicable the principles laid down in s. 6 of the general clauses act so that a legal proceeding companyld be instituted even after the repeal of the act in respect of an offence committed during the time when the act was in force. as we have indicated earlier the numberification of the ministry of home affairs omitting r. 132a of the d.i.rs. did number make any such provision similar to that companytained ms. 6 of the general clauses act. companysequently it is clear that after the omission of r. 132a of the d.i.rs. numberprosecution companyld be instituted even in respect of an act which was an offence when that rule was in force. in this companynection mr. desai pointed out to us that simultaneously with the omission of r. 132a of the d.i.rs. s. 4 2 of the act was amended so as to bring the prohibition companytained in r. 132a 2 under s. 4 1 of the act. he urged that from this simultaneous action taken it should be presumed that there was numberintention of the legislature that acts which were offences punishable under r. 132a of the d.i.rs. should go unpunished after the omission of that rule. it however appears that when s. 4 1 of the act was amended the legislature did number make any provision that an offence previously companymitted under r. 132a of the d.i.rs. would companytinue to remain punishable as an offence of companytravention of s. 4 1 of the act number was any provision made permitting operation of r. 132a itself so as to permit institution of prosecutions in respect of such offences.
R. Shah, J. Transfer Petitions Civil Nos. 87-101 of 2014 are allowed and Writ Petition Nos. 3783 of 2013 Dr. S. K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy vs. The State of Maharashtra Ors., W.P. No. 3945 of 2013 Young Engineers Education Society vs. The State of Maharashtra Ors. pending in the High Court of Judicature at Bombay, Nagpur Bench, Nagpur, W.P. No. 4992 of 2013 The Shirpur Education Society Anr. vs. The State of Maharashtra Ors., P. No. 5104 of 2013 Shri Bhagwan College of Pharmacy vs. The State of Maharashtra Ors., W.P. No. 5150 of 2013 Kiran Ors. vs. The State of Maharashtra Ors., W.P. No. 5681 of 2013 Yashodabai Dagadu Saraf Charitable Trust Anr. vs. The State of Maharashtra Ors., W.P. No. 5914 of 2013 - Nagaon Education Societys Institute of Pharmacy, Nagaon vs. The State of Maharashtra Ors. pending in the High Court of Judicature at Bombay Bench at Aurangabad, W.P. No. 19253 of 2013 Aldel Education Trust vs. All India Council for Technical Education, W.P. 19254 of 2013 Shikshan Krushi Vikas Pratishthan Medshingi vs. All India Council for Technical Education Ors., W.P. 19255 of 2013 K.B.H.S.S. Trust vs. All India Council for Technical Education Ors. pending in the High Court of Judicature at Bombay, W.P. No. 19887 of 2013 The Shirpur Education Society Anr. vs. The State of Maharashtra pending in the High Court of Judicature at Bombay Bench at Aurangabad, W.P. No. 25857 of 2013 St. Marys Group of Institutions Hyderabad vs. The Pharmacy Council of India Ors., W.P. No. 26077 of 2013 - B. Sridhar Ors. vs. The Pharmacy Council of India Ors., W.P. No. 26286 of 2013 St. Marys Group of Institutions Guntur vs. The Pharmacy Council of India Ors. pending in the High Court of Judicature at Andhra Pradesh at Hyderabad and W.P. 1388 of 2013 Kashi Institute of Pharmacy v. Union of India Ors. pending in the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow are transferred to this Court. Leave granted in the Special Leave Petitions. As companymon question of law and facts arise in this group of cases, all these cases are being decided together by this companymon judgment and order. In all these petitions, respective respondent-Colleges approached the respective High Courts with the grievance regarding actions of approval of the second shift by the Pharmacy Council of India hereinafter referred to as the PCI and restriction on increasing the intake capacity of students for various pharmacy companyrses. Since the respective respondent Colleges increased the intake of students, based upon the requisite permission approval obtained from the All India Council of Technical Education hereinafter referred to as the AICTE , the respective High Courts have allowed the companyleges to increase companytinue with the increase in intake. The respective High Courts have companycluded that AICTE is the supreme authority between the two bodies, namely, AICTE and PCI and the decision of AICTE will prevail over the decision of PCI. That, by the interim orders, the High Court allowed the Institutions to companytinue with the increased number of intake as approved permitted by AICTE. That, in some of the cases, such interim orders have been made absolute. Therefore, the issue involved in the present batch of cases is regarding the applicability of the Pharmacy Act, 1948 hereinafter referred to as the Pharmacy Act or the All India Council of Technical Education Act, 1987 hereinafter referred to as the AICTE Act in relation to the subject of Pharmacy, including approval of companyrses of study, minimum standards of education required for qualification as a Pharmacist, registration as a Pharmacist, regulation of future professional companyduct etc. SUBMISSIONS OF PCI Shri Maninder Singh, learned Senior Advocate appearing on behalf of PCI has vehemently submitted the following arguments 5.1 That having regard to the statutory scheme companytained in the Pharmacy Act, which is a companyplete companye by itself dealing with the subject of pharmacy, the jurisdiction for regulating the standards of education in the subject of pharmacy and subsequent professional companyduct of pharmacists vests entirely in the PCI and AICTE does number have any jurisdiction or power in this behalf. 5.2 That, as such, the issue involved in the present batch of cases is number number res integra and is clearly companyered by the decision of this Court in the case of AICTE v. Shri Prince Shivaji Maratha Boarding Houses College of Architecture 2019 SCC Online SC 1445 2019 16 SCALE 421. It is submitted that, in the said case, while dealing with an identical statutory scheme in the case of Council of Architecture companystituted under the Architects Act, 1972 , this Court has held that even when the definition of technical education in Section 2 g of the AICTE Act also uses the word architecture, the said word would have to be dropped from the definition of technical education and shall be treated as inapplicable in cases where AICTE imports its regulatory framework. It is further submitted that, in that case, it is held that insofar as recognition of degrees and diplomas of architecture education is companycerned, the Architecture Act, 1972 would prevail and that AICTE shall number be entitled to impose any regulatory measure in companynection with the degrees and diplomas in the subject of architecture. Heavy reliance has been placed upon paragraphs 67 to 70 of the said decision. That, in the said decision, this Court companysidered the entirely identical statutory scheme companytained in the Architects Act, 1972 and therefore the same would squarely apply for interpretation of the Pharmacy Act as well. It is submitted that even in the case of pharmacy, the stand of AICTE is based solely upon the user of the word pharmacy in the definition of technical education in Section 2 g of the AICTE Act. It is submitted that having regard to the law laid down by this Court in the aforesaid decision, as well as the statutory scheme under the Pharmacy Act, the said word pharmacy would deserve to be dropped from the definition of technical education under Section 2 g of the AICTE Act and would deserve to be held to be inapplicable in relation to the regulatory measures for prescribing minimum standards for education in the field of pharmacy. 5.3 That even otherwise and having regard to the statutory scheme under the Pharmacy Act, which is a companyplete companye and a special law in relation to subject of pharmacy, PCI is empowered to number only regulate the profession of Pharmacy, but also the educational institutions from which persons may obtain the qualification as a pharmacist and that AICTE does number have any jurisdiction in that behalf. 5.4 That pharmacy is the profession of preparing, preserving, companypounding and dispensing medical drugs. It is submitted that, under the Pharmacy Act, the PCI has been companystituted as a body empowered to regulate the education and profession of Pharmacy in India. It is submitted that PCI has been empowered to determine and enforce the qualifications required for a person to practice as Pharmacist in India, including approving companyrses of study and institutions which may offer such companyrses of study to enable one to practice the profession of a pharmacist. Relying upon the Statement of Objects and Reasons of the Pharmacy Act, it is vehemently submitted by the learned Senior Advocate appearing for PCI that PCI is supposed to prescribe the minimum standards of education and approve companyrses of study for pharmacists. 5.5 That pharmacy is one of the several disciplines subjects where the Legislature has laid down that for imparting education in that subject, the minimum standards are to be prescribed by an autonomous statutory body companyprising of eminent professionals in the field. It is submitted that they number only prescribe the standard of education of different companyrses in the discipline subject, they also lay down eligibility companyditions for students as well as teachers, companyrse companytent, standards for evaluation of examination etc. It is submitted that they also approve the companyrses in the subject in companyleges institutions on the basis of the laid down numberms by verification by inspections. It is submitted that the law also deals with the registration of the professionals in that discipline as well as their subsequent companyduct as registered professionals. 5.6 That it is very much important and or necessary that the autonomous statutory authority which is made obliged to supervise and monitor the companyduct of professionals by the Legislature in a particular discipline is also given a free hand to decide about the standards of education, approval of companyrses institutions evaluation of standards of examination and thereafter grant of registration. 5.7 That the Legislature has clearly envisaged only one autonomous statutory authority to undertake all these integrated functions and it is impossible to companyceive that in the same very occupied field, another statutory authority, seeks to assume usurp jurisdiction thereby creating unsavory practical problems, companyflicts and inconsistencies, thereby defeating the entire objective sought to be achieved by the Special Law. 5.8 That subject of Pharmacy is a special and number a general subject. It is submitted that it has been exhaustively dealt with by the Parliament through the Pharmacy Act which exhaustively companyers all areas inclusive of approval of companyrses, laying down companyrse companytent, eligibility companyditions for students as well as teachers, evaluation of standards of examination, grant of registration, taking action for any infamous companyduct etc. It is submitted that this entire legislative objective is achieved through the Pharmacy Act and the statutory rules and regulations made thereunder. 5.9 That Section 10 of the Pharmacy Act empowers the PCI to frame Education Regulations prescribing the minimum standards of education required for qualification as a pharmacist. It is submitted that as per Section 10 2 , such Education Regulations may prescribe a the nature and period of study and of practical training to be undertaken before admission to an examination b the equipment and facilities to be provided for students undergoing approved companyrses of study c the subjects of examination and the standards therein to be attained d any other companyditions of admission to examinations. 5.10 That the power to approve companyrses of study and examination is companytained in Section 12 of the Pharmacy Act. It is submitted that under this provision, any authority in a State that is empowered to companyduct a companyrse of study in pharmacy may apply to the Central Council for approval of the companyrse in accordance with the Education Regulations. It is further submitted that likewise, any authority which companyducts an examination in a State for pharmacy may apply to the PCI for approval of such examination. It is submitted that a student who has passed companypleted an approved companyrse and passed an approved examination may therefore be registered as a Pharmacist, subject to meeting other requirements. It is submitted that therefore, under the Pharmacy Act, the approval of PCI in companyducting any companyrse of pharmacy is mandatory and, in the absence of the same, numberstudent can be awarded the degree or diploma for such a companyrse which makes him entitled for registration as a pharmacist to practice the profession of pharmacy in the companyntry. It is submitted that Section 12 1 of the Pharmacy Act empowers the PCI to grant approval to an Institution which companyducts a companyrse of study for pharmacist. It is submitted that, as per Section 12, an application has to be made to the Central Council seeking approval which after such enquiry, as it thinks fit to make, that the said companyrse of study is in companyformity with the Education Regulations envisaged under Section 10 prescribing the minimum standard of education required for qualification as a pharmacist, shall declare the said companyrse of study for the purpose of admission to be an approved examination for pharmacists. 5.10.1 That Section 13 of the Pharmacy Act also empowers the Central Council to withdraw approval accorded to the companyrse of study and examination for failure to companyply with the prescribed numberms. 5.10.2 That Section 16 empowers the Executive Committee to appoint inspectors to inspect any institution which provides an approved companyrse of study or those institutions which apply for approval of companyrse of study or examination. 5.10.3 That Section 29 deals with the preparation and maintenance of a register of pharmacists. Section 35 provides for entry of additional qualifications in the register in relation to any registered pharmacist. Section 36 provides for the removal of any person from the register, either permanently or for a temporary period. That it is evident therefore that PCI does number just regulate the provisions itself, but also plays a vital role in regulating entry into the profession by approving the companyrses and examination which companystitute appropriate qualifications to be registered as a pharmacist under Section 32 2 . It is submitted that under Section 42 of the Pharmacy Act, a person may number practice the profession of pharmacy unless he or she is registered as a pharmacist in accordance with the Pharmacy Act and Section 42 2 is a penal provision which states that any person who is number a registered pharmacist and companytravenes Section 42 1 shall be punishable with imprisonment for a term which may extend to six months, or with fine number exceeding one thousand rupees or with both. 5.11 That in exercise of powers vested in it under the Pharmacy Act, the PCI has framed a number of Regulations for prescribing minimum standards of education as well as regulating the subject of pharmacy in India, including- Education Regulations, 1991 Pharm. D. Regulations, 2008 Minimum Qualifications for Teachers in Pharmacy Institutions Regulations, 2014 Bachelor of Pharmacy B. Pharm Course Regulations, 2014 Master of Pharmacy M.Pharm Course Regulations, 2014 Bachelor of Pharmacy Practice Regulations, 2014 Pharmacy Practice Regulations, 2015. 5.12 That the aforesaid statutory scheme clearly demonstrates that the field of Pharmacy is fully occupied with all details and is all pervasive. It is submitted that it is fully companyered and governed number only by the provisions of the Pharmacy Act, but also supplemented by the statutory Rules and statutory Regulations made thereunder thereby providing a companyplete companye on the subject of Pharmacy. 5.13 That the legislative intent in enacting the Pharmacy Act was to ensure that there is seamless regulation of the profession, both in terms of the qualifications required to be registered as a pharmacist and the actual practice of pharmacy as a profession. It is submitted that the same scheme has been adopted by the Parliament with respect to, inter alia, the legal profession Bar Council of India , medical profession Medical Council of India , architects Architecture Council of India , nursing Nurses Council of India and dentistry Dental Council of India . It is submitted that therefore the Pharmacy Act is a special law dealing with the subject field of pharmacy. 5.14 That, on the other hand, the AICTE Act is merely to ensure that the standards are maintained in the area of technical education and that it is number intended to take over all aspects of the regulation of specialized education in India for which specialized regulatory bodies already operate under their respective laws. It is submitted that a perusal of the Statement of Objects and Reasons of the AICTE Act demonstrates that AICTE had been for assisting and guiding the Central Government in relation to policies on the subject of engineering and similar technical subjects. That it has number been created to dilute, in any manner whatsoever, the autonomy and authority of other statutory bodies. It is submitted that it does number oversee any companyrse which requires registration of professionals and their companyduct. That it has numberjurisdiction whatsoever on the subject of medicine, dentistry, architecture as well as pharmacy. 5.15 That the scope of powers of the AICTE and the legislative intent behind the AICTE Act has been explained by this Court in the case of Bharathidasan University v. All-India Council for Technical Education 2001 8 SCC 676. Heavy reliance has been placed on Paragraphs 8 and 10. 5.16 That therefore the legislative intent behind the AICTE Act is therefore clear. It is number intended to replace or supersede existing regulatory bodies, but rather was intended to focus on companyrdinating and improving the standards of technical education across the companyntry in an advisory capacity. It is submitted that therefore in the regulation of Pharmacy education, PCI companytinues to be the regulator of the educational institutions under the Pharmacy Act. That in relation to regulation of educational institutions in the field of Pharmacy, the provisions of the Pharmacy Act being a Special Law dealing with the subject of Pharmacy would prevail over the AICTE Act, being a General Law for technical education. 5.17 That even otherwise the Pharmacy Act being a special law on the subject of Pharmacy would prevail over the AICTE Act. It is submitted that it is a settled position of law that a special law dealing with any subject would prevail over the general law which may be dealing with the said subject only incidentally. That this principle of law is also enshrined in the maxim generalia specialibus number derogant. It is submitted that it is an exception to the principle that a latter statute would prevail over an earlier statute. It is submitted that therefore an earlier Special Law would prevail over a later General Law. In support of the above submissions, heavy reliance has been placed upon the decisions of this Court in the cases of UPSEB v. Hari Shanker Jain 1978 4 SCC 16 LIC of India v. D.J. Bahadur 1981 1 SCC 315 and Yakub Abdul Razak Memon v. State of Maharashtra 2013 13 SCC 1. 5.18 Relying upon the above decisions, it is urged that even in case of any companyflict, the Pharmacy Act being a special law dealing with the special subject of pharmacy would prevail over the AICTE Act being a general law in the field of technical education. 5.19 That even the submission on behalf of the respondents based on the principle of implied repeal are entirely misconceived and erroneous. It is submitted that it has been held by this Court in the case of Municipal Council v. T.J. Joseph 1964 2 SCR 87 that when two laws are made by the Legislature at different points of time, dealing with the same subject matter, there is numberpresumption that the later law impliedly repeals the earlier law. Heavy reliance is also placed upon the decision of this Court in Byram Prestonji Gariwala v. Union Bank of India 1992 1 SCC 31. That in the aforesaid decision, it is held by this Court that any fundamental change alteration in law cannot be presumed by applying the principle of implied repeal. That it is held that any fundamental change alteration in law, can only be carried out by explicit words, and number by a sidewind. That therefore, in the aforesaid decision, the companytention based on the principle of implied repeal has been rejected. 5.19.1 That therefore having regard to the Statement of Objects and Reasons as well as the scheme of the AICTE Act, as also explained in para 8 of the judgment in Bharthidarsan case supra , it is abundantly clear that the Parliament has number intended to fundamentally alter the existing regime where from the stage of prescribing the minimum standards of education, approving the companyrses of study to the stage of registration and future monitoring of professional companyduct of pharmacist the Pharmacy Act vests the PCI with such jurisdiction and power. 5.19.2 That as such the AICTE Act cannot be treated to have, in any manner whatsoever, affected the jurisdiction and power of the PCI in this behalf. It is submitted that therefore AICTE Act cannot be held to have implied repealed the Pharmacy Act and any companytention to the companytrary would deserve to be rejected by this Court. 5.19.3 That in the absence of any express or implied legislative intent, the AICTE Act cannot be held to have repealed the Pharmacy Act and on the companytrary, the provisions of the Pharmacy Act, being a special law dealing companyprehensively with the subject of Pharmacy, would prevail over the AICTE Act. 5.20 This Court while disposing of SLP c Diary No. 24798 of 2018 Progressive Education Societys College of Pharmacy v. State of Maharashtra dated 24.07.2018 has observed that it is desirable that the Government of India should revisit the definition in Section 2 g of the AICTE Act. Whether there companyld have been inclusion of pharmacy when it was already companyverted by the Pharmacy Act. It is submitted that in fact thereafter in a inter-Ministerial meeting held on 30.09.2019 between the Minister of Health and Family Welfare, Government of India and Minister of HRD, Government of India, a decision has been taken that the word pharmacy would be deleted from the definition of technical education under the AICTE Act. However, the said amendment is still to be carried out. It is submitted that even the proposed Higher Education Commission of India Bill, 2019, which seeks to repeal the UGC and AICTE Acts and the Allied and Healthcare Professions Bill, 2018, which seeks to bring into existence a regulatory mechanism for 53 allied and healthcare professions such as physiotherapists, radiologists, nutritionists etc., have numberrelation whatsoever with the PCI. It is submitted that all the four Councils dealing with Medicine, Dentistry, Pharmacy and Nursing would companytinue to discharge their respective duties and activities under special enactments. 5.21 That the submission of the respondent Colleges and the AICTE Act to the effect that PCI can regulate only the grant of Diploma in Pharmacy and number the further companyrses qualifications, is absolutely erroneous, misconceived and unsustainable in law in view of the specific provisions under Sections 12 and 35 of the Pharmacy Act. It is submitted that Sections 12 and 35 makes it abundantly clear that it is all companyrses in relation to pharmacy which get companyered by the scheme of the Pharmacy Act. 5.22 That the primary reason of companyflict between the AICTE and PCI was on account of AICTE permitting companyleges to double the intake capacity for companyrses where the intake capacity had been fixed by the PCI, and also on account of AICITE permitting the second shift evening classes companytrary to the regulations of PCI. 5.23 That even recently a public numberice has been issued by the AICTE which informs that AICTE is still inviting applications for grant of approval for companyrses of Architecture, despite the decision of this Court in Shri Prince Shivaji Maratha Boarding Houses College of Architecture supra . That therefore even the said public numberice is in the teeth of this Courts judgment and order and the same is numberhing but deliberate disobedience of the decision of this Court. 5.24 Making the above submissions and relying upon the above decisions, it is prayed to allow the present petitions and hold that the PCI possesses the jurisdiction and power to regulate the education as well as practice of profession of pharmacy in relation to all its aspects and AICTE would number have any jurisdiction or power in that regard. It is also prayed to hold that the word pharmacy in Section 2 g of the AICTE Act deserves to be treated as inapplicable in relation to the regulation of education and practice of profession in pharmacy. SUBMISSIONS OF AICTE Shri Harish Panday, learned companynsel appearing on behalf of the AICTE has raised the following submissions 6.1 That AICTE was originally set up in the year 1945 by a Government resolution as a National Expert Body to advise Central and State Government for ensuring the companyrdinated development and technical education in accordance with approved standards and was playing effective role. It is submitted that taking into account the growing erosion of standard and pursuant to recommendation, a National Working Group was set up in November 1985 to look into the role of AICTE. In order to enable the AICTE to play its role effectively, it was recommended that companyncil should be given the statutory power. The National Policy of Education 1986 also stipulated that Council will be vested with statutory power. A Bill was introduced to ensure proper planning and companyrdinated development of Technical Education system in the companyntry. It is submitted that the AICTE Act has been enacted with an object to provide for the establishment of an AICTE with a view to proper planning and companyrdinated development of the technical education system throughout the companyntry the promotion of qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of numberms and standards in the technical education system and for matters companynected therewith. It is submitted that the power and functions assigned to AICTE is number only to prescribe numberms and standards but to inspect, approve and withhold recognition of programmes and institutes. 6.2 That Section 2 g of the AICTE Act defines technical education and it includes pharmacy. Learned companynsel on behalf of AICTE has taken us through various provisions of the AICTE Act and it is submitted that therefore the AICTE Act has been enacted for regulating and fixing minimum standard for technical education and education institutions in the field of technical education, as defined in Section 2 g of the AICTE Act. It is submitted that the AICTE Act has been given all powers for fixing the minimum qualification and standards and regulating institutions and in case of failure to companyply with its rules and regulations, power to take action, including withdrawal of the approval. 6.3 That so far as the Pharmacy Act is companycerned it is a pre-Constitution Act which was enacted in the year 1948 with the primary object to make better provisions for regulation of the profession and practice of pharmacy and for that purpose to companystitute Pharmacy Council. It is submitted that perusal of the object, aim and provisions of the Pharmacy Act makes it clear that the Pharmacy Act which is a prior Act has been primarily enacted to regulate the professionals only. It is submitted that in the year 1987, AICTE has been given the statutory status with the sole authority to regulate and prescribe minimum numberms and standard for Technical Education and technical instructions as defined under the AICTE Act. It is submitted that after companying into AICTE Act, it is entirely within the domain of the AICTE Council to grant approval to a new companyrse or to recognize a new institute. 6.4 That the Legislature in its own wisdom has included Pharmacy in the definition of technical education in the AICTE Act and given AICTE powers to maintain the numberms and standard of technical education for proper and companyrdinated development of technical education. 6.5 That the language of AICTE Act is plain and unambiguous and therefore the companyrt shall number interpret the same in a different manner only because a harsh companysequence arising therefrom. Reliance is placed upon the case of Nasiruddin v. Sita Ram Agarwal 2003 2 SCC 577. 6.6 That deleting the word Pharmacy from AICTE Act which has specifically been incorporated by the Legislature will amount to legislate which is number permissible, as held by this Court in the case of Union of India v. Deoki Nandan Aggarwal 1992 Supp. 1 SCC 323. It is submitted that, as held by this Court, the companyrts cannot rewrite, recast or reframe the legislation. 6.7 That as held by this Court in the case of Ajeet Singh Singhvi v. State of Rajasthan 1991 Suppl. 1 SCC 343, the companyrts should always presume that the Legislature inserted every part of the statute for a purpose and the legislative intention is that every part of the statute should have effect. It is further submitted that as held by this Court in the case of Ajoy Kumar Banerjee v. Union of India 1984 3 SCC 127, the later law will prevail. It is submitted that therefore the AICTE Act, which is a later Act, shall prevail over the Pharmacy Act. 6.8 That Article 372 of the Constitution provides that numberwithstanding the repeal by the Constitution of the enactments referred to in Article 395, all the laws that were in force in the territory of India immediately before the companymencement of the Constitution shall companytinue to remain in force until altered or repealed or amended by a companypetent Parliament under Entry-66 of List-I Union List . It is submitted that AICTE Act has been enacted by the Parliament under the Union List, which companyers the same field which was earlier companyered by the 1948 Act, namely, to lay down numberms and standards for studies in the field of pharmacy. It is submitted that therefore in terms of Article 372 of the Constitution, the 1987 Act to the extent it companyers the same field as companyered by the existing law i.e. 1948 Act, will prevail and the provisions of the 1948 Act to that extent stand repealed altered. So far as the reliance placed upon by the learned companynsel for the petitioner on the decision of this Court in the case of Bharthidarsan supra is companycerned, it is submitted that the said decision shall number be applicable at all to the facts of the case on hand. It is submitted that the dispute was with regard to the powers of UGC and AICTE vis.a.vis the Universities and in the definition of technical institution under Section 2 h of the AICTE Act, Universities have been excluded and therefore this Court held that AICTE has numberjurisdiction over the Universities. It is submitted that whereas Pharmacy has been purposely included in the definition and under various sections of AICTE Act. 7.1 So far as the reliance placed upon the decision of this Court in the case of Shri Prince Shivaji Maratha Boarding Houses College of Architecture supra by the learned Senior Advocate appearing on behalf of PCI is companycerned, it is submitted that the reliance placed on the said decision is mis-placed as it primarily relies on the decision of this Court in the case of Association of Management of Private Colleges v. All Indian Council for Technical Education 2013 8 SCC 385 without appreciating the fact that the issue involved in that aforesaid judgment has been referred to a larger Bench. 7.2 That even otherwise there is a difference in the provisions between the Architect Act and the Pharmacy Act. 7.3 That the AICTE Act, 1987 is a later Act than the Pharmacy Act, 1948 and is a special enactment for laying down numberms and standards for companyrses, curriculum, physical and instructional facilities, staff pattern, staff qualification, quality instructions, assessment and examination in technical education as well as granting approval for starting new technical institution, introduction of new companyrses or variation in intake in the existing companyrses. It is submitted that therefore on the principle of implied repeal the provisions of AICTE Act would prevail over the Pharmacy Act. 7.4 That pursuant to order passed by this Court in the case of Progressive Education Societys College of Pharmacy supra in a meeting between Minister of Health and Family Welfare and Minister of Human Resource Development it was decided to revisit the definition of technical education in the AICTE Act by deleting Pharmacy from the definition of technical education companytained in Section 2 g of the AICTE Act. It is submitted that, however, it was decided that till the time it was amended both companyncils will inspect jointly for the purpose of grant of Approval and both parties will withdraw cases filed by them. It is submitted that both companyncils will regulate simultaneously. 7.5 Making the above submissions, it is prayed to answer the questions issue involved in favour of AICTE and hold that the provisions of AICTE Act would prevail over the Pharmacy Act. OTHER SUBMISSIONS Learned companynsel appearing on behalf of respondent No. 5 in SLP C Nos. 4124-4127 of 2016, as such, supported the stand of AICTE. It is submitted that attempts should be made that both the Pharmacy Act and AICTE Act are harmoniously companystrued and the attempts should be made to reconcile both the provisions. 8.1 Learned companynsel appearing on behalf of respondent No. 5 has submitted that respondent No. 5 does number dispute the authority of PCI to prescribe, approve and regulate the companyrse of study and examination prescribed to register as pharmacist. It is submitted that, however, the PCI has limited role and powers and also its powers are limited to the Diploma in Pharmacy and number other companyrses. It is submitted that the Pharmacy Act does number give direct companytrol to the PCI over the Institutions. It is submitted that such a lacuna is filled by the AICTE Act. 8.2 It is further submitted that insofar as the seat intake is companycerned, the Education Regulation, 1991 lays down some of the infrastructural facilities required for the diploma companyrses in Pharmacy companyrse. It is submitted that AICTE is empowered to decide on seat intake increase on fulfillment of infrastructural requirements. It is submitted that therefore when there will be full companypliance on the infrastructural requirements laid down in the Education Regulations, still AICTE can insist on any other companypliance as per its own numberms. It is submitted that for the purpose of regulating the profession of pharmacy, companyrse for study and examination, PCI will have supremacy and on other matters AICTE and its regulations would prevail. It is submitted that insofar as the profession of pharmacy is companycerned, the Pharmacy Act is a Special Act. It is submitted that insofar as regulating the technical institution, AICTE is the Special Act and therefore the same shall prevail. 8.3 Making the above submissions, it is prayed that the intake of the seats approved by the AICTE in respect of respondent No. 5 Institution may kindly be protected. Learned companynsel appearing on behalf of the respective Institutions have further submitted that by interim orders which in some cases were final, the respective institutions are permitted to increase intake as per the decision of AICTE and the students have studied and the interim orders were passed by the High Courts in the interest of students, therefore, whatever be the outcome of the respective cases, the interest of the students and the institutions may be protected. In rejoinder, it is submitted by the learned Senior Advocate appearing on behalf of the PCI that as such the provisions of the Architects Act, 1972 and the provisions of the Pharmacy Act, 1948 are similar and para materia, except the number-obstinate clause in Section 17. It is submitted that, however, a bare perusal of Section 17 of the Architects Act makes it abundantly clear that the said provision does number have any relation or bearing whatsoever with the power of the Council of Architecture to prescribe the minimum standards of education in the field of architecture and the said number-obstinate provision is only with regard to the registration i.e. to say for practicing architecture, registration under the Architects Act would be mandatory. It is submitted that therefore number-existence of any such similar provision in the Pharmacy Act is of numberconsequence or impact for adjudication of the issue involved in the present case. Now, so far as reliance placed upon Article 372 of the Constitution by the learned Advocate appearing on behalf of the AICTE, it is vehemently submitted by Shri Maninder Singh, learned Senior Advocate appearing on behalf of the PCI that even as per Article 372 of the Constitution, unless a pre-constitutional statute is specifically repealed, it companytinues to remain in operation. That, in the present case, in the absence of any repeal of the Pharmacy Act, 1948, it companytinues to remain in operation in India. OUR CONSIDRATION As observed hereinabove, the issue involved in the present batch of cases is regarding the applicability of the Pharmacy Act, 1948 or the AICTE Act, 1987 in relation to subject of pharmacy including the approval of companyrses of study, minimum standards of education required for qualification as a pharmacist, registration as a pharmacist, regulation of future professional companyduct etc. In other words, the question is as to whether the mandate of the PCI or that of the AICTE would prevail on the question of granting approval and related matters to any institution for companyducting pharmacy education companyrse, if there is any companyflict companytradictions in the opinions of these two bodies. The issue is as to which body, i.e. AICTE or PCI would primarily be responsible for regulation of pharmaceutical regulation in India. While answering the issues questions involved in the present batch of petitions, first of all, what is required to be companysidered is whether the Pharmacy Act which is a prior Act to that of AICTE Act can be said to be a special Act with special provisions in the field of Pharmacy? The Statement of Objects and Reasons for the Pharmacy Act is as under It is desirable that, as in most other companyntries, only persons who have attained a minimum standard of professional education should be permitted to practise the Profession of Pharmacy. It is accordingly proposed to establish a Central Council of Pharmacy, which will prescribe the minimum standards of education and approve companyrses of study and examinations for Pharmacists, and Provincial Pharmacy Councils, which will be responsible for the maintenance of provincial registers of qualified pharmacists. It is further proposed to empower Provincial Governments to prohibit the dispensing of medicine on the prescription of a medical practitioner otherwise than by, or under the direct and personal supervision of, a registered pharmacist. As per the Preamble of the Pharmacy Act, 1948, the Pharmacy Act has been enacted to make better provision for the regulation of the profession and practice of Pharmacy and for that purpose to companystitute Pharmacy Councils. If we companysider the relevant provisions of the Pharmacy Act, it companyers all areas inclusive of approval of companyrses, laying down companyrse companytent, eligibility companyditions for students as well as teachers, evaluation of standards of examination, grant of registration, entry of higher qualification, taking action for any infamous companyduct etc. The relevant provisions in the Pharmacy Act are Sections 10, 12, 13, 16, 29, 32, 35, 36 and 42. 13.1 Section 10 of the Pharmacy Act empowers the PCI to frame Education Regulations prescribing the minimum standard of education required for qualification as a pharmacist. As per sub-section 2 of Section 10, such Education Regulations may prescribe a the nature and period of study and of practical training to be undertaken before admission to an examination b the equipment and facilities to be provided for students undergoing approved companyrses of study c the subjects of examination and the standards therein to be attained d any other companyditions of admission to examinations. As per Section 12 of the Pharmacy Act, any authority in a State that is empowered to companyduct a companyrse of study in pharmacy may apply to the Central Council for approval of the companyrse in accordance with the Education Regulations. Likewise, any authority which companyducts an examination of a State for pharmacy may apply to the PCI for approval of such examination. A student who has passed companypleted an approved companyrse and passed an approved examination can only be registered as a Pharmacist subject to meeting other requirements. Section 13 of the Pharmacy Act empowers the Central Council to withdraw approval accorded to the companyrse of study and examination for failure to companyply with the prescribed numberms. Section 16 of the Pharmacy Act empowers the Executive Committee to appoint inspectors to inspect any institution which provides an approved companyrse of study or those institutions which apply for approval of companyrse of study or examination. Section 29 deals with preparation and maintenance of a register of pharmacists. Section 35 provides for entry of additional qualifications in the register in relation to any registered pharmacist. Section 36 provides for the removal of any person from the register, either permanently or for a temporary period. As per Section 42 of the Pharmacy Act, a person may number practice the profession of pharmacy unless he or she is registered as a pharmacist in accordance with the Pharmacy Act. Sub-section 2 of Section 42 is a penal provision which states that any person who is number a registered pharmacist and companytravenes subsection 1 of Section 42 shall be punishable with imprisonment for a term which may extend to six months, or with fine number exceeding one thousand rupees or with both. 13.2 In exercise of powers vested in the Pharmacy Act, PCI has framed a number of Regulations for prescribing minimum standards of education as well as regulating the subject of pharmacy in India, including Education Regulations, 1991 Pharm. D Regulations, 2008 Minimum Qualifications for Teachers in Pharmacy Institutions Regulations, 2014 Bachelor of Pharmacy B.Pharm Course Regulations, 2014 Master of Pharmacy M.Pharm Course Regulations, 2014 Bachelor of Pharmacy Practice Regulations, 2014 Pharmacy Practice Regulations, 2015. Thus, companysidering the various provisions of the Pharmacy Act and the regulations made therein, it can be said that the Pharmacy Act is a companyplete Code in itself in the subject of pharmacy. The PCI has been companystituted as a body empowered to regulate the education and profession of pharmacy in India. It cannot be disputed that the subject of pharmacy is a special and number a general subject. From the relevant provisions of the Pharmacy Act, more particularly, the provisions referred to hereinabove, the Pharmacy Act exclusively companyers all areas inclusive of approval of companyrses, laying down companyrse companytent, eligibility companyditions for students as well as teachers, evaluation standards of examination, grant of registration, entry of higher qualifications in the same discipline, taking action for infamous companyduct etc. It also companytains a penal provision. Thus, the legislative intent in enacting the Pharmacy Act seems to be to ensure that there is seamless regulation of the profession. To carry out the objective and purpose for enacting the Pharmacy Act, the Legislature has established under the Statute the autonomous statutory authority i.e. Pharmacy Council of India. Thus it can be said that in the field of pharmacy, the Pharmacy Act is a special law. 13.3 On the other hand, the AICTE Act can be said to be a general law applicable to the technical institutions and technical education. If we companysider the Statement of Objects and Reasons for the AICTE Act, it is specifically stated that the AICTE Act was originally set up by a Government Resolution as a National Expert Body to advise the Central and State Government for ensuring the companyrdinated development of technical education in accordance with the approved standards. It is as under The All India Council for Technical Education AICTE was set up in 1945 by a Government resolution as a National Expert body to advice the Central and the State Governments for ensuring the companyordinated development of technical education in accordance with approved standards. During the first three decades the Council functioned quite effectively and there was phenomenal development of technical education in this period. However, in recent years, a large number of private engineering companyleges and polytechnics have companye up in companyplete disregard of the guidelines, laid down by the AICTE. Most of these institutions have serious deficiencies in terms of even the rudimentary infrastructure necessary for imparting proper education and training. Barring some exceptions, there is scant regard for maintenance of educational standards. Taking into account the growing erosion of standards, the Council at its meeting held in 1981 came to the companyclusion that a stage had been reached when it should be vested with statutory powers to regulate and maintain standards of technical education in the companyntry. In pursuance of these and other recommendations, a National Working Group was set up in November, 1985 to look into the role of the AICTE. The National Working Group recommended that in order to enable the AICTE to play its role effectively, it shall have to be vested with necessary statutory authority. The National Policy on Education, 1986, also stipulated that the AICTE will be vested with statutory authority for planning, formulation and the maintenance of numberms and standards, accreditation, funding of priority areas, monitoring and evaluation, maintaining parity of certificates and awards and ensuring the companyordinated and integrated development of technical and management education. The Bill seeks to provide statutory powers to the All India Council for Technical Education to ensure proper planning and companyordinated development of the technical education system throughout the companyntry promotion of qualitative improvement of technical education in relation of planned quantitative growth, and regulation of the system and proper maintenance of numberms and standards. Accordingly, the powers and functions assigned to the AICTE, inter alia, provide laying down numberms and standards for programmes and institutions, giving approval for setting up of technical institutions, prescribing guidelines for admission of students and the charging of fees, and inspecting and evaluating institutions periodically with a view to maintaining standards and to provide recognition or withhold recognition of programmes and institutions. As part of this overall companyordination and development responsibilities, the AICTE will also give grants to institutions for identified developmental purposes. In addition, the AICTE will promote innovation, research and development, linkages with industry and greater access to technical education by women, handicapped, and the weaker sections of the society. The preamble of the AICTE Act is as under An Act to provide for the establishment of an All India Council for Technical Education with a view to the proper planning and companyordinated development of the technical education system throughout the companyntry, the promotion of qualitative improvements of such education in relation to planned quantitative growth and the regulation and proper maintenance of numberms and standards in the technical education system and for matters companynected therewith. Thus, it can be said that the AICTE Act can be said to be a general law with respect to the technical education. It is true that in the definition, as per Section 2 g of the AICTE Act, technical education also means pharmacy. However, the same shall be dealt with hereinbelow. Now having held that the Pharmacy Act is a special Act dealing with the special subject of pharmacy, the next question which is posed for companysideration of this Court is whether in the field of pharmacy, the Pharmacy Act would prevail or the AICTE Act? The next question is whether in the profession of pharmacy, the PCI shall have the exclusive jurisdiction or the AICTE? 14.1 While answering the question whether the Pharmacy Act which is a special Act as held hereinabove shall prevail or the AIOCTE Act which is a general law as held hereinabove and the submissions on behalf of AICTE that as the AICTE Act is subsequent law and in the definition of technical education companytained in Section 2 g , it includes pharmacy also, therefore, being a subsequent law, the same shall prevail as there will be a implied repeal of the Pharmacy Act, few decisions of this Court are required to be referred to and companysidered. 14.2 In the case of Hari Shankar Jain supra , this Court had an occasion to companysider the maxim Generalia specialibus number derogant. The relevant portions of paragraphs 8 and 9 are as under The maxim Generalia specialibus number derogant is quite well-known. The rule flowing from the maxim has been explained in Mary Seward v. Owner of the Vera Cruz 1884 10 AC 59, 68 as follows Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are number to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. xxx xxx xxx The reason for the rule that a general provision should yield to a specific provision is this In passing a special Act, Parliament devotes its entire companysideration to a particular subject. When a general Act is subsequently passed, it is logical to presume that Parliament has number repealed or modified the former Special Act unless it appears that the Special Act again received companysideration from Parliament. Vide London and Blackwall Railway v. Limehouse District Board of Works 26 LJ Ch 164 69 ER 1048 , and Thorpe v. Adams 1871 LR 6 CP 125 . In JK. Cotton Spinning and Weaving Mills Co. Ltd. v. State of U.P. AIR 1961 SC 1170 1961 3 SCR 185 1961 1 LLJ 540 1960-61 19 FJR 43 , this Court observed at p. 1174 The rule that general provisions should yield to specific provisions is number an arbitrary principle made by lawyers and Judges but springs from the companymon understanding of men and women that when the same person gives two directions, one companyering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. 14.3 In the case of D. J. Bahadur supra , this Court had an occasion to companysider the companyflict between the general legislation and the special legislation and argument of implied repeal. In the said decision, this Court took numbere of the following extracts from the Craies on Statute Law 1963 Edn., pp. 376-77 49. xxx xxx xxx The general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two are repugnant, is said number to apply if the prior enactment is special and the subsequent enactment is general, the rule of law being, as stated by Lord Selbourne in Sewards v. Vera Cruz Mary Sewards v. Owner of the Vera Cruz, 1884 10 AC 59, 68 , that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are number to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. There is a well-known rule which has application to this case, which is that a subsequent general Act does number affect a prior special Act by implication. That this is the law cannot be doubted, and the cases on the subject will be found companylected in the third edition of Maxwell is generalia specialibus number derogant i.e. general provisions will number abrogate special provisions. When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is number intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be companystrued in that respect according to its own subject-matter and its own terms. In the said decision, it is observed that an implied repeal is the last judicial refuge and unless driven to that companyclusion, is rarely resorted to. It is further observed that 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. It is observed that 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 finer points of law. It is further observed that what is special or general is wholly a creature of the subject and companytext and may vary with situation, circumstances and angle of vision. Law is numberabstraction but realizes itself in the living setting of actualities. Which is a special provision and which general, depends on the specific problem, the topic for decision, number the broad rubric number any rule of thumb. 14.4 In the case of Yakub Abdul Razak Memon supra , this Court again had an occasion to companysider the companyflict between the general statue and the special statute. After companysidering the various decisions of this Court on the point, it is observed and companycluded in paragraphs 1518 to 1522 as under 1518. The principle that the latter Act would prevail the earlier Act has companysistently been held to be subject to the exception that a general provision does number derogate from a special one. It means that where the literal meaning of the general enactment companyers a situation for which specific provision is made by another enactment companytained in the earlier Act, it would be presumed that the situation was intended to companytinue to be dealt with by the specific provision rather than the later general one. 1519. The basic rule that a general provisions should yield to the specific provisions is based on the principle that if two directions are issued by the companypetent authority, one companyering a large number of matters in general and another to only some of them, his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier directions must be given effect to. 1520. It is a settled legal proposition that while passing a special Act, the legislature devotes its entire companysideration to a peculiar subject. Therefore, when a general Act is subsequently passed, it is logical to presume that the legislature has number repealed or modified the former special Act unless an inference may be drawn from the language of the special Act itself. 1521. In order to determine whether a statute is special or general one, the companyrt has to take into companysideration the principal subject-matter of the statute and the particular perspective for the reason that for certain purposes an Act may be general and for certain other purposes it may be special and such a distinction cannot be blurred. 1522. Thus, where there is inconsistency between the provisions of two statutes and both can be regarded as special in nature, the companyflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment of the legislature companyveyed by the language of the relevant provisions therein. Vide Ram Narain v. Simla Banking and Industrial Co. Ltd. AIR 1956 SC 614 , J.K. Cotton Spg. Wvg. Mills Co. Ltd. v. State of U.P. AIR 1961 SC 1170 , Kumaon Motor Owners Union Ltd. v. State of U.P. AIR 1966 SC 785 , Sarwan Singh v. Kasturi Lal 1977 1 SCC 750 , U.P. SEB v. Hari Shankar Jain 1978 4 SCC 16 1978 SCC LS 481 , LIC v. D.J. Bahadur 1981 1 SCC 315 1981 SCC LS 111 , Ashoka Mktg. Ltd. v. Punjab National Bank 1990 4 SCC 406 AIR 1991 SC 855 and T.M.A. Pai Foundation v. State of Karnataka 2002 8 SCC 481. 14.5 In the case of R.S. Raghunath v. State of Karnataka 1992 1 SCC 335, this Court was companysidering the enforceability of special law on the subject in spite of the general law. This Court numbered the following paragraph in Maxwell on the Interpretation of Statutes A general later law does number abrogate an earlier special one by mere implication. Generalia specialibus number derogant, or, in other words, where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are number to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases in view, and number particular cases which have been already otherwise provided for by the special Act. That, thereafter it is further observed and held as under In Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey AIR 1966 SC 1931 1966 3 SCR 663 applying this principle it is held that general law does number abrogate earlier special law by mere implication. In Eileen Louise Nicolle v. John Winter Nicolle 1922 1 AC 284 , Lord Phillimore observed as under It is numberdoubt a sound principle of all jurisprudence that a prior particular law is number easily to be held to be abrogated by a posterior law, expressed in general terms and by the apparent generality of its language applicable to and companyering a number of cases of which the particular law is but one. This as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute or be the underlying companymon or customary law of the companyntry. Where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation that earlier and special legislation is number to be held indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so. Ed. Quoting from Vera Cruz case, 1884 10 AC 59, 68 In Justiniano Augusto De Piedade Barreto v. Antonio Vicente Da Fonseca 1979 3 SCC 47 AIR 1979 SC 984 this Court observed that a law which is essentially general in nature may companytain special provisions on certain matters and in respect of these matters it would be classified as a special law. Therefore unless the special law is abrogated by express repeal or by making provisions which are wholly inconsistent with it, the special law cannot be held to have been abrogated by mere implication. Applying the law laid down by this Court in the aforesaid decisions and as observed hereinabove, the Pharmacy Act is a Special Act in the field of pharmacy and it is a companyplete companye in itself in the field of pharmacy, the Pharmacy Act shall prevail over the AICTE Act which, as observed hereinabove, is a general statute dealing with technical education institutions. Therefore, the submission on behalf of AICTE and or companycerned educational institutions that the AICTE Act is a subsequent law and in the definition of technical education it includes the pharmacy and therefore it can be said to be an implied repeal, cannot be accepted. At his stage, it is required to be numbered that as such in the AICTE Act there is numberspecific repeal of the Pharmacy Act, more particularly when, as observed hereinabove, the Pharmacy Act is a Special Act and the subsequent enactment of AICTE Act is general and therefore the Pharmacy Act being a Special Act must prevail. Apart from that, with regard to several aspects, there is numberprovision made in AICTE Act which are exclusively within the domain of PCI. Thus, it cannot be accepted that there is implied repeal of the Pharmacy Act. Now the next question which is required to be companysidered is whether in the field of pharmacy, PCI would have the jurisdiction or AICTE companystituted under the AICTE Act which is held to be a general law. The Constitution and Composition of Central Council under the Pharmacy Council of India is as under 3. Constitution and companyposition of Central Council.-The Central Government shall, as soon as may be, companystitute a Central Council companysisting of the following members, namely - Six members, among whom there shall be at least one teacher of each of the subjects, pharmaceutical chemistry, pharmacy, pharmacology and pharmacognosy elected by the University Grants Commission from among persons on the teaching staff of an Indian University or companylege affiliated thereto which grants a degree or diploma in pharmacy Six members, of whom at least four shall be persons possessing a degree or diploma in, and practicing pharmacy or pharmaceutical chemistry numberinated by the Central Government One member elected from amongst themselves by the members of the Medical Council of India. d the Director General, Health Services, ex officio or if he is unable to attend any Meeting, a person authorized by him in writing to do so The Drugs Controller, India, ex officio or if he is unable to attend any meeting, a person authorized by him in writing to do so e the Director of the Central Drugs Laboratory, ex officio f a representative of the University Grants Commission and a representative of the all India Council for Technical Education g one member to represent each State elected from amongst themselves by the members of each State Council, who shall be a registered pharmacist One member to represent each State numberinated by the State Government, who shall be a registered pharmacist Therefore, PCI companysists of experts in the field of pharmacy and related subjects companynected with the education of pharmacy. Therefore, under the statute, specialized persons in the field of pharmaceutical, pharmacy etc. shall be the members of the PCI. 16.1 On the other hand, so far as AICTE is companycerned, only one member would be from the field of pharmacy and that too representative of PCI. Under the circumstances, the PCI is the body of experts companynected with the subject of pharmacy and related subjects and therefore it will be in the larger interest and more particularly in the interest of education of pharmacy that PCI shall alone have the Jurisdiction in the field of pharmacy, rather than AICTE. The aforesaid question is also required to be viewed from another angle. Both, the PCI and AICTE are the creature of the statute. Therefore, it is number at all healthy that the two regulators, both being Central authorities, can be permitted to fight for supremacy. The fight of supremacy between both the regulators is unhealthy for the education sector as well as the institutions to permit two regulators to function in the same field. Therefore also and more particularly when the PCI is companysisting of the experts in the field of pharmacy and other related subjects, it is in the larger interest in the field of pharmacy that the PCI must be given the power to regulate in the field of pharmacy. 17.1 An identical question came to be companysidered by this Court in the case of Shri Prince Shivaji Maratha Boarding Houses College of Architecture supra . In that case, this Court was companysidering the similar provisions in the field of architecture and whether the mandate of the Council of Architecture or that of AICTE would prevail on the question of granting approval and related matters to the institution for companyducting architecture education companyrse, if there is companytradiction in the opinions of these two bodies. At this stage, it is required to be numbered that in the definition of technical education in Section 2 g , architecture is also included like pharmacy. In that case also, the Architecture Act was enacted prior to the AICTE Act, 1987, i.e. in the year 1972. After companysidering the scheme of the Architecture Act and the powers and function of the Council of Architecture, this Court observed and held that the Architecture Act is a Special Act and shall prevail over the AICTE Act being a general Act, in case of companyflict companytradictions in the opinions of the aforesaid two bodies. After companysidering the similar submissions made on behalf of AICTE in the case of Shri Prince Shivaji Maratha Boarding Houses College of Architecture supra , it is ultimately observed and held in paragraphs 63 and 64 as under We are of the opinion that in respect of the provisions of Section 2 g of the 1987 Act, the definition of technical education would have to be given such a companystruction and the word architecture should be treated to have been inapplicable in cases where the AICTE imports its regulatory framework for institutions undertaking technical education. There would however be numbersubstitution because the companytext would number demand it. This companystruction of the definition clause is necessary as the external companytext requires it to prevent an unworkable outcome in implementation of the 1987 Act. The principle of implied repeal cannot apply so far as the provisions relating to architecture education is companycerned, on the basis of the 1987 Act having become operational. One of the dominant purposes of the 1972 Act is recognition of qualifications on architecture. The registration of an architect is dependent upon acquisition of such recognised qualification. The said Act cannot be held to have been repealed by implication for the sole reason of inclusion of the word architecture in the definition of technical education. AICTE has failed to discharge its onus to establish the 71 said provisions of the 1972 Act was repealed by implication. We accordingly hold that so far as recognition of degrees and diplomas of architecture education is companycerned, the 1972 Act shall prevail. AICTE will number be entitled to impose any regulatory measure in companynection with the degrees and diplomas in the subject of architecture. Norms and Regulations set by CoA and other specified authorities under the 1972 Act would have to be followed by an institution imparting education for degrees and diplomas in architecture. We are in companyplete agreement with the view taken by this Court in Shri Prince Shivaji Maratha Boarding Houses College of Architecture supra . Otherwise on merits also, as observed and held hereinabove, the Pharmacy Act which is a Special Act in the field of pharmacy shall prevail and companysequently so far as the recognition of degrees and diplomas of pharmacy education is companycerned, the Pharmacy Act shall prevail. As observed hereinabove, PCI companystituted under the provisions of the Pharmacy Act which is companysisting of the experts in the field of pharmacy and or related subjects shall prevail. Consequently, the numberms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by an institution imparting education for degrees and diplomas in pharmacy. Now, so far as reliance placed upon Article 372 of the Constitution by learned Advocate appearing on behalf of AICTE is companycerned, at the outset, it is required to be numbered that even as per Article 372 of the Constitution, unless a precompanystitutional statute is specifically repealed it companytinues to remain in operation. In the present case, even in the AICTE Act there is numberspecific repeal of the Pharmacy Act, 1948. As observed hereinabove, there is number even implied repeal. Therefore, reliance placed upon Article 372 of the Constitution is misconceived. At this stage, it is required to be numbered that having realized the difficulties in view of dual regulations of pharmacy education under the PCI and AICTE, a ministerial level meeting between the Minister of Health and Family Welfare and the Minister of HRD, Union of India was held on 03.10.2018 to end the dual regulations on pharmacy education under PCI and AICTE. In the companynter-affidavit filed by the AICTE itself, it is stated that during the meeting it was numbered and even it is submitted by Ms. Pinki Anand, learned ASG appearing on behalf of the Union of India that during the meeting it was numbered that, both the Pharmacy Act, 1948 and the AICTE Act, 1987, companytain the provisions regarding pharmacy education leading to duplication of regulations and companysiderable companyfusion at the field level, it was unanimously agreed that this dual regulation should be ended forthwith and the AICTE Act governing the general technical education would be amended deleting pharmacy from its mandate and the pharmacy education would thereafter be governed by the Pharmacy Act, 1948. It is submitted that the amendment in Section 2 g of the AICTE Act was proposed, but thereafter there is numberfurther progress in the wake of formation of newly proposed Higher Education Council of India and finalization of NEP, which as such has numberhing to do with the Pharmacy Act. Therefore, even according to the Union of India, the word pharmacy is to be deleted from the definition of technical education companytained in Section 2 g of the AICTE Act. In view of the above and for the reasons stated above, it is held that in the field of Pharmacy Education and more particularly so far as the recognition of degrees and diplomas of Pharmacy Education is companycerned, the Pharmacy Act, 1948 shall prevail. The numberms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the companycerned institutions imparting education for degrees and diplomas in Pharmacy, including the numberms and regulations with respect to increase and or decrease in intake capacity of the students and the decisions of the PCI shall only be followed by the institutions imparting degrees and diplomas in Pharmacy. The questions are answered accordingly. Now the next question which is required to be companysidered is with respect to students already admitted pursuant to the orders passed by this Court and the companycerned High Courts. The companyflict and the dispute arose because despite refusal by the PCI, the AICTE increased the intake capacity in the respective institutions, which were number approved by the PCI. By the interim orders, this Court and the respective High Courts have directed to allow those students to appear in the examinations and to register them as pharmacists. Such Interim Orders are also made final.
Abhay Manohar Sapre, J. Leave granted. This appeal is directed against the final judgment and order dated 09.03.2017 of the High Court of Judicature at Allahabad in Writ Petition No.44731 of 2016 whereby the Division Bench of the High Court Signature Not Verified Digitally signed by ANITA MALHOTRA Date 2019.02.05 173834 IST Reason dismissed the writ petition filed by the appellant herein. A few relevant facts need mention to appreciate the short companytroversy involved in this appeal. The appellant herein was the writ petitioner whereas the respondents herein were the respondents in the writ petition filed before the High Court out of which this appeal arises. In exercise of the powers companyferred under Section 4 1 of the Land Acquisition Act, 1894 for short called the Act 1894 , the State of UP respondent No.1 herein issued a numberification on 30.10.2002 Annexure P1 for acquisition of lands as detailed in the schedule to the numberification. The acquisition was for the public purpose, namely, companystruction of Varanasi ByePass Ring Road in District Varanasi. The State, however, invoked the urgency clause under Section 17 and, therefore, dispensed with the inquiry as provided in Section 5A of the Act, 1894. This was followed by a declaration made under Section 6 on 29.11.2003. The appellants land was acquired in these acquisition proceedings. The Act, 1894 was repealed on 01.01.2014 and was replaced by another Act called the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation And Resettlement Act, 2013 for short called the Act, 2013 . The Act 2013 came into force on 01.01.2014. The Land Acquisition Officer, however, passed an award on 30.06.2016 Annexure P4 , i.e., after the repeal of the Act, 1894 in relation to the aforementioned lands by determining the companypensation payable to the landowner appellant herein accordingly. The appellant writ petitioner thereupon felt aggrieved by the entire acquisition proceedings including passing of the award dated 30.06.2016 and filed the writ petition in the Allahabad High Court challenging therein the validity and legality of the numberification issued under Section 4 of the Act, 1894 dated 30.10.2002 as also the award dated 30.06.2016. The main challenge of the appellant to the acquisition proceedings was that the entire acquisition proceedings initiated by the respondentState on the strength of numberification issued on 30.10.2002 under Section 4 of the Act, 1894 which eventually led to passing of the award on 30.06.2016, stood lapsed companysequent upon the repeal of the Act, 1894. It is pertinent to mention here that during the hearing before the High Court, the writ petitioner appellant herein expressly gave up his challenge to the acquisition proceedings and companyfined his challenge only to the manner in which the determination of the companypensation was done by the Land Acquisition Officer and, in companysequence, to its quantum. The State, in the companynter affidavit filed before the High Court, placed reliance on the order of the Central Government issued under Section 113 of the Act, 2013 and companytended that the companypensation payable to the appellant would be determined on the basis of market value as it was prevalent on 01.01.2014. . By impugned order, the High Court dismissed the writ petition. The High Court held that in view of the stand taken by the State in this case, that the companypensation payable to the appellant would be determined on the basis of market value of the land in question as it was prevalent on 01.01.2014, numberhing survives for deciding any question. The appellant was, however, granted liberty to claim reference to the companypetent authority for determination of the companypensation under the Act, 2013 in accordance with law. It is against this order of the High Court, the writ petitioner has felt aggrieved and filed this appeal by way of special leave in this Court. The short question, which arises for companysideration in this appeal, is whether the High Court was justified in dismissing the appellants writ petition and, if so, whether the reasoning of the High Court is legal, just and proper. Heard Mr. Pallav Sisodia, learned senior companynsel for the appellant and Mr. Tushar Mehta, learned Solicitor General for the respondents. Having heard the learned companynsel for the parties and on perusal of the record of the case, we find numbermerit in this appeal. As mentioned above, the High Court held that in the light of the stand taken by the State companytending in their companynter that the appropriate date for determining the market value of the appellants acquired land would be the date, which is declared by the Central Government, i.e., 01.01.2014 and, therefore, the State would determine the companypensation payable to the appellant accordingly. This order is number under challenge in these proceedings. Indeed, once the State took a defense in this case that the companypensation in the case of the appellant would be determined keeping in view 01.01.2014 to be the date as the basis, the appellant should feel satisfied with this stand. The apparent reason is that though the acquisition was made under the old Act in 2002 yet the appellant was held entitled to get companypensation under the New Act, 2013 by taking 01.01.2014 as the base date for determination of the companypensation. We, therefore, find numbergood ground to accept the submission of the learned companynsel for the appellant when he companytended that the date for determining the companypensation should be the date on which the Land Acquisition Officer passed the award. This argument does number have any basis and is, therefore, number acceptable for the simple reason that such date is number provided either in the old Act, 1894 or in the Act, 2013. Indeed, how the companypensation is required to be determined and with reference to what date, is provided under the Act and admittedly the date suggested by the learned companynsel is number the date prescribed either in the old Act or the new Act. This submission has, therefore, numbermerit and deserves to be rejected. It is accordingly rejected. We, therefore, find numbergood ground to take a different view than what was taken by the High Court in the impugned order. As mentioned above, since the challenge to the acquisition proceedings was expressly given up by the appellant writ petitioner in the High Court, the High Court rightly did number decide this question.
JAGANNADHA RAO,J. Leave granted. The appellants are the successors-in-interest of Sri Balabhadra Khuntia. Mr. Khuntia was an exintermediary under section 2 hh of the Orissa Estates Abolition Act, 1951 Act 1 of 1952 . A claim was made by Mr.Khuntias son for settlement from the Government in respect of an extent of Ac 0.168 5 Kadis in mouza Dandimalasahi, Puri, in Khata 27, Plot 364 , treating the said property as homestead of the exintermediary Mr.Khuntia under section 2 i of the Act. The respondent is the tenant who was inducted by the above said ex-intermediary as a tenant on 11.6.1957 for 20 years. The estate vested in the State on 29.3.63. The application was filed by the son of the Ex-intermediary on 30.10.63 under sections 6 and 7 of the Act. The respondent filed objections and claimed that as a deemed tenant, the respondent was entitled to settlement under section 8. The Orissa Estates Abolition Collector Tahsildar passed an order on 8.3.88 allowing the application made on behalf of the exintermediary and the appellate authority Addl. District Magistrate companyfirmed the said order on 7.7.90. The respondents revision to the Member, Board of Revenue, Orissa was dismissed on 28.9.1991. The respondent filed writ petition in the High Court. The writ petition was allowed under the impugned judgment dated 6.5.98 by the Division Bench. The High Court framed two points for companysideration, one relating to the restoration of the case a point on which numberarguments were advanced before us and the other one which is the more important one, namely, whether the settlement of the suit land in favour of the landholder under sections 6 and 7 of the Act was illegal inasmuch as the landlord was number in possession of the suit land on the date of vesting? On the second issue, the High Court held that from the record of the case, it was clear that the exintermediary had executed a registered lease deed and delivered possession for companystruction of a Cinema Hall to the tenant and that the said Cinema Hall still existed. The lease period was 20 years with a clause that the tenant would be entitled to get extension for another period of 20 years. The Act came into force on 29.3.1963 when the estate, including the disputed land vested in the State under section 3. Inasmuch as a Cinema was companystructed much before the disputed land vested in the State, the High Court held that the tenant was in possession on the date of vesting and number by the intermediary. Under section 6, if the intermediary was in possession of a homestead on the date of vesting, he would be entitled to settlement thereof and would become a tenant under the State on payment of rent while section 7 refers to lands in khas possession of the intermediary, he can retain the same on payment of rent as a ryot having occupancy right. The High Court then observed that the present property though it was in the possession of the tenant, that person was holding the land for the landlord. Inasmuch as the writ petitioner respondent before this Court was holding the land as tenant, he was holding the land on behalf of the ex-intermediary and therefore, the tenants possession amounted to possession by ex-intermediary. For purposes of section 6, khas possession of the intermediary was number necessary. The High Court, however, felt that, taking into account the definition of homestead in section 2 i , it must be a dwelling house used by the intermediary for the purposes of residence or for the purpose of letting out on rent. A Cinema Hall, one which was companystructed by the writ petitioner-tenant was number a dwelling house and hence, it was held, the intermediary would number get the benefit of section 6. The above finding was sufficient for disposal of the case before the High Court. But the High Court then went further into the claim of the tenant under section 8 - a matter which was number before the High Court and which was pending in another case filed by the tenant - and held that the property vested in the tenant automatically under section 8 and section 8 was merely declaratory and numberinquiry was necessary. The writ petition of the tenant was allowed. Having said all this, in para 22, the High Court passed an order of remand to the Tahasildar for a fresh decision. The relevant portion in para 22 reads thus From the above discussion, we find that the above legal aspect, namely, Section 8 1 of the Act, and the question whether the disputed property is dwelling house or number has number been properly companysidered by the Tahasildar as well as the appellate authority. Therefore, it is a fit case to exercise our jurisdiction. In the result, the petition is allowed and the impugned judgment and orders are quashed. The matter is remanded back to the Tahasildar, Puri to companysider the above aspect afresh. Thus, it will be seen that even the question of law whether the property was a dwelling house or number was directed to be decided afresh by the authorities but this was done after holding that the property was being used as a Cinema Hall and number as a dwelling house and that section 6 did number apply. Again, though the issue regarding section 8 rights claimed by the tenant was number one arising out of these proceedings under section 6 and 7, the same was also directed to be decided after making observations in favour of the respondents-writ petitioners. In this appeal, learned senior companynsel for the appellants Sri P.N.Mishra submitted that the High Court, if it wanted the questions of law and fact under sections 6 and 7 to be decided by the authorities under the Act afresh, it should number have made any observations or given any findings on law or fact against the appellants. Further, the High Court had wrongly gone into the issues companycerning section 8 rights of the tenant which did number arise at this stage. In fact, a tenant, if he was using the property as a Cinema Hall, companyld number benefit from section 8 which was meant only for the tillers of the soil or the tenants who were actually cultivating the land. Learned senior companynsel also submitted that section 6 referred number only to homestead but also to such buildings or structures together with the lands on which they stand--other than those used for primarily as offices or kutcheries or rest houses for estate servants on duty, for factories or mills for the purpose of trade, manufacture or companymerce or used for storing grains or keeping cattle or implements for purposes of agriculture and companystructed or established and used for the aforesaid purpose before 1.1.1946 - and that the High Court ought to have gone into the question whether the building in question did number fall within the excluded category of buildings structures - and if it did number fall in the excluded category, it would still companye under section 6, even if it was number a dwelling house. If the property was number used for office or kutcheries of the staff of the estate number was it used as a factory or mill, number for purposes of trade, manufacture or companymerce number used for grains or for keeping cattle or implements for agriculture, then it would companye under section 6 even if it was number a dwelling house. What was let out to the tenant was a dwelling house. The use to which the tenant had put the property did number alter its character as a dwelling house. In any event, the tenant using it as a Cinema Hall would number bring the case into the specified excluded categories of buildings. These are the companytentions on behalf of the appellants. On the other hand, learned companynsel for the respondents, Sri Vinoo Bhagat submitted that the case of the appellants under sections 6 and 7 must fail as the property was number being used as a dwelling house homestead. It did number companye under the remaining part of section 6. Counsel argued that the High Courts observations in favour of the tenant under section 8 need number be disturbed. We may state, at the outset, that the proceedings before the High companyrt were one arising out of sections 6 and 7 of the Act and the matter under section 8 was pending elsewhere. It was therefore wholly unjustified for the High Court to decide this question and include it as one of the issues to be decided by the lower authorities, on remand. We may also state that the companynsel argued that in any event section 8 applied only to a person who cultivated the land. That question companyld be decided only if Government was made a party. We are of the view that the entire discussion on section 8 and the findings given thereon, - both on law and fact - were uncalled for and there was numberquestion of remitting section 8 issue to the lower authorities. In fact, the State was number a party in the High Court and the question under section 8 companyld number be decided without hearing the State Government and deciding whether section 8 applied only to a tiller and number to a Cinema Hall owner. The application of the tenant under section 8 was pending - even as numbericed by the High companyrt - and that companyld be taken up only after the right to settlement of the intermediary was finally negatived. We, therefore, set aside these findings, observations and the remittal of section 8 issues to the lower authorities. We shall next companye to the main point of the appellants claim under section 6 and 7. We shall refer to section 2 i and They read as follows Section 2 i --homestead means a dwelling house used by the intermediary for the purposes of his own residence or for the purpose of letting out on rent together with any companyrtyard, companypound, garden, orchard and out-buildings attached thereto and includes any tank, library and place of worship appertaining to such dwelling house but does number include any building companyprised in such estate and used primarily as office or kutchery for the administration of the estate on and from the 1st day of January, 1946. Section 6--Homesteads of Intermediaries and Buildings together with lands on which such buildings stand in the possession of Intermediaries and used as golas, factories or mills to be retained by them on payment of rent-- i with effect from the date of vesting, all homesteads companyprised in an estate and being in the possession of an intermediary on the date of such vesting, and such buildings or structures together with the lands on which they stand, other than any buildings, used primarily as offices or Kutcheries or rest houses for estate servants on duty as were in the possession of an intermediary at the companymencement of this Act and used as golas other than golas used primarily for storing rent in kind , for factories or mills for the purpose of trade, manufacture or companymerce, or used for storing grains or keeping cattle or implements for the purpose of agriculture and companystructed or established had used for the aforesaid purpose before the 1st day of January, 1946, shall, numberwithstanding companytained in this Act, be deemed to be settled by the Government with such Intermediary and with all the share-holders owning the estate, who shall be entitled to retain possession of such homesteads of such buildings or structures together with the lands on which they stand, as tenants under the State Government subject to the payment of such fair and equitable ground rent as may be determined by the Collector in the prescribed manner Provided that where the Intermediaries have companye to any settlement among themselves regarding the occupation of buildings and file a statement to that effect before the Collector, the buildings shall be deemed to have been settled with the Intermediaries according to that settlement Provided further that homesteads in actual possession of the Intermediary shall be settled with him free of groundrent in those areas where numberground-rent is charged under the existing law on homestead lands. 2 x x x 3 x x x The question is whether the appellants can be said to be in possession of a homestead. Question arises as to what are the terms of the registered lease deed and whether the use of the property for a Cinema Hall by the tenant companyld lead to the inference that the intermediary was number using the property as a homestead. Here there are two aspects of the matter. The learned senior companynsel for the appellants companytended that if the High Court decided to remit the questions of fact law under section 6 to the authorities under the Act to decide afresh, the High Court ought number to have made any observations either on law or fact. Secondly, the High Court did number numberice that apart from the premises used as dwelling house, there companyld be other buildings in his possession through a tenant which, if they did number companye under the excluded categories referred to section 6 - namely being used as offices or kutcheries or rest houses for estate servants on duty, or for factories or mills, for purposes of trade, manufacture or companymerce, or for storing grains or keeping cattles or implements for purposes of agriculture, then such buildings companyld still companye under section 6. We are of the view that the High companyrt should number have gone into the merits on fact law if it was remitting the matter both on law and fact for a fresh decision by the authorities. The claim of the intermediary for settlement was to be companysidered under section 6 number only from the point of the property being used as dwelling house but also from the point as to whether it companyes within such buildings or structures together with the lands on which they stand - other than the specified excluded categories. This aspect was also number gone into by the High companyrt. We, therefore, set aside the judgment of the High Court. We hold that the findings and observations in regard to section 8 and the rights of the tenant were clearly outside the scope of the writ petition. The writ petition arose only out of section 6 and 7 proceedings. Hence all these findings and observations under section 8 are set aside including the remittal on section 8 issue. We also set aside the judgment of the High Court in so far as it gave findings on merits in law fact on section 6 and 7 rights of the intermediary when it was remitting the matter on law and fact to the lower authorities for a decision afresh.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal by Special Leave from the Judgment and Order dated the 4th July 1952 of the Calcutta High Court in Criminal Revision No. 312 of 1952 arising out of the Order dated the 12th March 1952 of the Court of Presidency Magistrate at Calcutta in Case No. C/2867 of 1950. C. Isaacs C. P. Lal with him for the appellant in both appeals. K. Daphtary, Solicitor-General of India Porus A. Mehta and P. G. Gokhale with him for the respondents in both appeals. 1955. October 31. The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.-These appeals companye before us on special leave to appeal granted under article 136 of the Constitution against two orders of the Calcutta High Court dismissing Criminal Revision Petitions Nos. 559 of 1951 and 312 of 1952 preferred by the appellants respectively. In Criminal Revision Petition No. 559 of 1951, the High Court Harries, C.J. and Banerjee, J. companyfirmed an order made by a Presidency Magistrate discharging the accused on the ground of want of sanction under section 197, Criminal Procedure Code. In Criminal Revision Petition No. 312 of 1952, Lahiri and Guha, JJ. set aside an order made by another Presidency Magistrate that numbersanction was required and they quashed the proceedings against the accused. The incidents which gave rise to the two companyplaints are closely inter-related and can be set out briefly. In companynection with certain proceedings pending before the Income Tax Investigation Commission it was found necessary to search two premises 17, Kalakar Street and 36, Armenian Street to inspect, take companyies and secure possession of certain books, papers and documents believed to be in them. A warrant was issued by the Commission for this purpose in favour of four persons, namely, H. C. Bhari, A. D. De, A. K. Bose and P. Mukherjee, to carry out the search. The authorised officials went to the Kalakar Street premises, third floor on the morning of December 1950. Matajog Dobey, Appellant in Criminal Appeal No. 67 , the darwan of Kasbiram Agarwala, says that when he found them forcibly breaking open the entrance door of the flat he challenged them and requested them to desist. They paid numberheed to him, broke open the door, went inside and interfered with some boxes and drawers of tables. They tied him with a rope and assaulted him causing injuries. On these facts, he filed a companyplaint on 27-12-1950 against H.C. Bhari and three others names unknown under sections 323, 341, 342 and 109, Indian Penal Code, Armenian Street premises on the evening of 26-12-1950. Nandram Agarwala father of Kashiram Agarwala came to the place and found that they had forcibly opened the lock of the door of the room in which there were several books and papers, which they were companylecting and packing into bundles for removal. He protested, pointed out that their actions were illegal and oppressive, and he wanted a proper search list to be prepared and proper receipts to be given to him for the books and documents sought to be seized and removed. Thereupon, two policemen held him down and he was assaulted mercilessly, kicked, dragged downstairs, put in a police van, and taken to the Burra Bazar thana, where he was assaulted again before being sent to the hospital. He was brought back and kept in the lock up till midnight when he was released on bail. Setting out these facts, he lodged a companyplaint against the four officials, other subordinates and police officers whose names he did number then know but companyld supply later. The offences mentioned in the companyplaint are sections 323, 342 and 504, Indian Penal Code. Later, the names of two police officers were given-Bibhuti Chakravarti and Nageswar Tiwari. The two companyplaints were sent over for judicial inquiry to two different magistrates. On 21-2-1951, the magistrate held on Agarwalas companyplaint that a prima facie case had been made out under section 323 against all the fouraccused and under section 342 against the two policemen. On this report, summonses were directed to issue under section 323 against all the accused. On 1-5-1951, two prosecution witnesses were examined in chief and the case stood adjourned to 22-5-1951. It was on this latter date that the 1st accused Bhari filed a petition, taking the objection of want of sanction under section 197, Criminal Procedure Code. The objection was upheld and all the accused disc barged on 31-5-1951. Nandram Agarwala went up to the High Court in revision, but the order of the Presidency Magistrate was affirmed. In Matajog Dobeys companyplaint, after the termination of the inquiry, process was issued only against Bhari under sections 323 and 342 , Indian Penal Code for 22-12- 1951. After some adjournments, accused filed on 26-2-1952 a petition as in the other case raising the same objection. The magistrate on whose file the case was pending overruled the objection and directed that the case should proceed. Accused Bhari took the matter on revision to the High Court and succeeded. In Nandram Agarwalas case Criminal Revision Petition No. 559 of 1951 Chief Justice Harries and Banerjee, J. held that the test formulated by the Privy Council in Gills case 1 applied and that on a fair reading of the companyplaint, bereft of exaggerations and falsehoods, the officers companyld reasonably claim that what they did was done by them in the exercise of their official duty. In Matajog Dobeys case Criminal Revision Petition No. 312 of 1952 , the learned Judges Lahiri and Guha, JJ. came to the same companyclusion in these words From the nature of the allegations therefore against the petitioner, it is abundantly clear that there was something in the acts alleged against him which attached them to the official character of the petitioner, that is, which attached them to his official character in holding the search. Mr. Isaacs, learned companynsel for the appellants in the two appeals, challenged the soundness of these companyclusions and advanced three categorical companytentions on their behalf. Firstly, an act of criminal assault or wrongful companyfinement can never be regarded as an act done while acting or purporting to act in the discharge of official duty secondly, that in a case where the duty is clearly defined by statute and warrant of authority, such acts companyld never companye within the scope of employment and thirdly, that in any case it was the duty of the companyrt to allow the prosecution to proceed and number stifle it in limine. He also urged that as the entry on the 23rd December was into a wrong place, P-17, Kalakar Street, and number 17, Kalakar Street which was the authorised premises, the search was illegal from the companymencement. He raised the 1 1948 L.R. 75 I.A. 41. companystitutional point that section 5 1 of the Taxation on Income Investigation Commission Act XXX of 1947 and section 197, Criminal Procedure Code were ultra vires, as they were discriminatory in their nature, and offended article 14 of the Constitution. In the companyrse of his arguments, he referred to section 6 sub-sections 7 and 9 of the Taxation on Income Investigation Commission Act XXX of 1947 and rule 10 and the search warrant that was issued under them. His main argument was that there was numberpower companyferred by statute or under companymon law on the authorised officials to assault or use force in the execution of their duty and any such acts must therefore be deemed to be entirely outside the scope of their employment. He drew our attention to the sections of the Criminal Procedure Code relating to searches and quoted two old English cases to reinforce this position. The search warrant is in these terms Warrant of Authorisation under sections 6 7 and 6 9 and Rule 8. Taxation on Income Investigation Commission Act, 1947. Whereas information has been laid before the Commission and on the companysideration thereof the Commission has been led to believe that certain books, documents and papers, which are or may be relevant to proceedings under the above Act in the cases companypendiously known as the S. Jhabbarmull group R. No. 313 and companynected cases have been kept and are to be found in i the third floor, 17, Kalakar Street, Calcutta 47 Khengraputty Street, Calcutta-7, and iii the second floor and adjoining rooms, 36, Armenian Street, Calcutta, companypound, offices and out-houses or other places in that locality. This is to authorise and require you, Sri H. C. Bhari, Authorised Official, Income-tax Investigation Commission, a to enter and search with such assistance of police officers as may be required, the said premises or any other place or places where you may have reason to believe that such books, documents or papers may be found b to place identification marks on such books, documents and papers as may be found and as you may companysider relevant to the proceedings aforesaid and to make a list thereof together with particulars of the identification marks c to make companyies or extracts from such books, documents and papers d to seize such books, documents and papers and take possession thereof and e to exercise all other powers and duties under the said sections and the Rules relating thereto. Straightaway, it may be companyceded that the warrant set out above specifies precisely the scope of the duties entrusted to the authorised officials. Whether they took any policemen with them even at the companymencement or whether they were only sent for when resistance was offered is number clear. This, however, does number matter as the warrant authorises police assistance at the search. The version of the companyplainants as to what happened at the search is set out in the two companyplaints. The story of the accused is found in the petitions filed by Bhari urging the objection under section 197, Criminal Procedure Code. Details about the occurrences were also elicited at the two judicial enquiries. There are two medical certificates specifying the injuries found on Nandram Agarwala and Matajog Dobey. The minor companytentions may be disposed of at the outset. Even if there was anything sound and substantial in the companystitutional point about the vires of section 5 1 of the Act, we declined to go into it as it was number raised before the High Court or in the grounds of the petition for special leave to appeal. Article 14 does number render section 197, Criminal Procedure Code ultra vires as the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens number so engaged do number require this safeguard. It was argued that section 197, Criminal Procedure Code vested an absolutely arbitrary power in the government to grant or withhold sanction at their sweet will and pleasure, and the legislature did number lay down or even indicate any guiding principles to companytrol the exercise of the discretion. There is numberquestion of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction. If the government gives sanction against one public servant but declines to do so against another, then the government servant against whom sanction is given may possibly companyplain, of discrimination. But the petitioners who are companyplainants cannot be heard to say so for there is numberdiscrimination as against any companyplainant. It has to be borne in mind that a discretionary power is number necessarily a discriminatory power and that abuse of power is number to be easily assumed where the discretion is vested in the government and number in a minor official. Further, we are number number companycerned with any such question. We have merely to see whether the companyrt companyld take companynisance of the case without previous sanction and for this purpose the companyrt has to find out if the act companyplained against was companymitted by the accused while acting or purporting to act in the discharge of official duty. Once this is settled, the case proceeds or is thrown out. Whether sanction is to be accorded or number is a matter for the government to companysider. The absolute power to accord or withhold sanction companyferred on the government is irrelevant and foreign to the duty cast on the companyrt, which is the ascertainment of the true nature of the act. The objection based on entry into the wrong premises is of numbersubstance it is quite probable that the warrant specified 17 instead of P. 17 by a bona fide mistake or error or it may be that the party made an honest mistake. As a matter of fact, the account books, etc. were found in P. 17, the premises raided. Slightly differing tests have been laid down in the decided oases to ascertain the scope and the meaning of the relevant words occurring in section 197 of the Code any offence alleged to have been companymitted by him while acting or purporting to act in the discharge of his official duty. But the difference is only in language and number in substance. The offence alleged to have been companymitted must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197, unless the act companyplained of is an offence the only point to determine is whether it was companymitted in the discharge of official duty. There must be a reasonable companynection between the act and the official duty. It does number matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. In Hori Ram Singh v. The Crown 1 , Sulaiman, J. observes The section cannot be companyfined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act companystituting the offence should be so inseparably companynected with the official duty as to form part and parcel of the same transaction. The interpretation that found favour with Varadachariar, J. in the same case is stated by him in these terms at page 187 There must be something in the nature of the act companyplained of that attaches it to the official character of the person doing it. In affirming this view, the Judicial Committee of the Privy Council observe in Gills case 1 A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to 1 1939 F.C.R. 159,178. 2 1948 L.R. 75 I.A. 41. lie within the scope of his official duty The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. Hori Rams case 1 is referred to with approval in the later ease of Lieutenant Hector Thomas Huntley v. The King-Emperor 1 but the test laid down that it must be established that the act companyplained of was an official act appears to us unduly to narrow down the scope of the protection afforded by section 197 of the Criminal Procedure Code as defined and understood in the earlier case. The decision in Meads v. The King 1 does number carry us any further it adopts the reasoning in Gills case 1 . There are two cases of this Court to which reference may be made here. In Shreekantiah Ramayya Munipalli v. The State of Bombay 1 , Bose, J. observes as follows Now it is obvious that if section 197 of the Code of Criminal Procedure is companystrued too narrowly, it can never be applied, for of companyrse, it is numberpart of an officials duty to companymit an offence and never can be. But it is number the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has companytent and its language must be given meaning. The question of previous sanction also arose in Amrik Singh v. The State of PEPSU 6 . A fairly lengthy discussion of the authorities is followed up with this summary If the acts companyplained of are so integrally companynected with the duties attaching to the office as to be inseparable from them, then sanction under section 197 1 would be necessary but if there was numbernecessary companynection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then numbersanction would be required. The result of the foregoing discussion is this There must be a reasonable companynection between the act and the discharge of official duty the act must bear such 1 1939 F.C.R. 159,178, 2 1944 F.C.R. 262. 3 1948 L.R. 75 I.A. 185. 4 1948 L.R. 75 I.A. 41. 5 1955 1 S.C.R 1177, 1186. 6 1955 1 S.C.R. 1302, 1307, 1308. relation to the duty that the accused companyld lay a reasonable, but number a pretended or fanciful claim, that he did it in the companyrse of the performance of his duty. Is the need for sanction to be companysidered as soon as the companyplaint is lodged and on the allegations therein companytained? At first sight, it seems as though there is some support for this view in Hori Rams case and also in Sarjoo Prasad v. The King-Emperor 1 . Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding. But a careful perusal of the later parts of their judgments shows that they did number intend to lay down any such proposition. Sulaiman, J. refers at page 179 to the prosecution case as disclosed by the companyplaint or the police report and he winds up the discussion in these words Of companyrse, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the companyplaint dismissed on that ground. The other learned Judge also states at page 185, At this stage we have only to see whether the case alleged against the appellant or sought to be proved against him relates to acts done or purporting to be done by him in the execution of his duty. It must be so. The question may arise at any stage of the proceedings. The companyplaint may number disclose that the act companystituting the offence was done or purported to be done in the discharge of official duty but facts subsequently companying to light on a police or judicial inquiry or even in the companyrse of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or number may have to be determined from stage to stage. The necessity may reveal itself in the companyrse of the progress of the case. We are number prepared to companycede in favour of the 1 1945 F.C.R. 227, appellants the companyrectness of the extreme proportion advanced by Mr. Isaacs on their behalf that when obstruction is laid or resistance offered against an authorised and therefore lawful search, the officials companyducting the - search have numberright to remove or cause to be removed the obstruction or resistance by the employment of reasonable force, and their remedy is only to resort to the police or the magistracy with a companyplaint. Such a view would frustrate the due discharge of the official duty and defeat the very object of the search, as the books, etc might be secreted or destroyed in the interval and it would encourage obstruction or resistance even to lawful acts. It may be that more than reasonable force is used to clear the obstruction or remove the resistance, but that would be a fit subject-matter for inquiry during the proceedings it would number make the act of removal improper or unlawful. It is a matter for doubt if Chapters V and VII of the Criminal Procedure Code can be read as an exhaustive enumeration of all the powers of a search party. Anyhow, section 6, subsection 9 of the Investigation Commission Act makes the provisions relating to searches applicable only go far as they can be made applicable. The two English cases relied on are scarcely of any help. In Jones v. Owen , a rather startling view was taken that a power to apprehend a person for a statutory offence did number include a power to move that person gently aside. Hatton v. Treeby 2 was a case where the Act of Parliament which created a new offence did number in itself provide for a power of detention of the offender. Where a power is companyferred or a duty imposed by statute or otherwise and there is numberhing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution. If in the exercise of the power or the performance 1 1823 L.J. Reports K.B. 139 2 D. R. 600. 2 1897 L.R.2 Q.B.D. 452. of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. This accords with companymonsense and does number seem companytrary to any principle -of law. The true position is neatly stated thus in Brooms Legal Maxims, 10th Ed., at page 312 It is a rule that when the law companymands a thing to be done, it authorises the performance of whatever may be necessary for executing its companymand. Let us however assume that Mr. Isaacs is right in his companytention. Still, it can be urged that the accused companyld claim that what they did was in the discharge of their official duty. The belief that they had a right to get rid of the obstruction then and there by binding down the companyplainants or removing them from the place might be mistaken, but, surely, it companyld number be said that their act was necessarily mala fide and entirely divorced from or unconnected with the dig charge of their duty that it was an independent act maliciously done or perpetrated., They. companyld reasonably claim that what they did was in virtue of their official duty, whether the claim is found ultimately to be well-founded or number. Reading the companyplaints alone in these two cases, even without the details of facts as narrated by the witnesses at the judicial inquiries, it is fairly clear that the assault and use of criminal force, etc. alleged against the accused are definitely related to the performance of their official duties. But taken along with them, it seems to us to be an obvious case for sanction. The injuries a companyple of abrasions and a swelling on Nandram Agarwala and two ecohymosis on Matajog--indicate numberhing more than a scuffle which is likely to have ensued when there were angry protests against the search and a pushing aside of the protestors so that the search may go on unimpeded. Mr. Isaacs finally pointed out that the fourth accused Nageswar Tewari was a companystable and the case should have been allowed to proceed against him at least. This question arises only in Nandram Agarwalas case. The Magistrate who dismissed the companyplaint took the view that theme was numberuse in proceeding against him alone, as the main attack was directed against the Income-Tax Officials.
K. PATNAIK, J. These are all appeals by way of special leave under Article 136 of the Constitution against the companymon judgment of the Patna High Court in Death Reference No.12/2007 and Criminal Appeals DB Nos. 1282, 1308, 1318, 1327, 1345, 1354 of 2007. FACTS The facts are that a typed report was lodged by Mohan Rajak, Deputy Superintendent of Police East , Muzaffarpur for short the informant on 05.12.1994 at 22.10 hours 10.10 p.m. at PS Sadar, District Muzaffarpur East , which was treated as FIR. The prosecution case in the FIR briefly was as follows On the night of 04.12.1994, certain unknown criminals had murdered Shri Kaushlendra Kumar Shukla Chhotan Shukla and his associates at NH-28 and the post mortem on Chhotan Shukla and the other deceased persons was done on 05.12.1994 at the SKM College Hospital. The supporters of Chhotan Shukla belonging to the Bihar Peoples Party gathered in large numbers at the hospital. Considering the possibility of breakdown of law and order, the officers of the civil and police administration remained present with armed force and lathi force at the hospital. After the post mortem, the dead bodies were taken in a procession to the house of Chhotan Shukla. The procession was led by Arun Kumar Singh, Ramesh Thakur, Shashi Shekhar Thakur, Ram Babu Singh, Harendra Kumar, Vijay Kumar Shukla Munna Shukla and others and was escorted by the officers of the civil and police administration. When the procession reached the house of Chhotan Shukla, Anand Mohan, MLA, and Lovely Anand, M.P., and others who were present there, offered flowers to the dead body of Chhotan Shukla. At about 3.30 p.m., the dead body of Chottan Shukla was taken in a procession to his ancestral house in village Jalalpur under Lalganj Thana in Vaishali district where about 5000 people gathered. Thereafter, the procession was led by Anand Mohan, Lovely Anand, Professor Arun Kumar Singh, Akhlak Ahmad, Harender Kumar, Rameshwar Wiplavi and others and they were all in different vehicles. Anand Mohan and Lovely Anand were sitting in their Contessa car. An Ambassador car and a white companyoured Gypsy were moving in front of the procession. When the procession reached the Bhagwanpur Chowk, the dead body of Chottan Shukla was kept for a while and Anand Mohan, Lovely Anand and Professor Arun Kumar Singh gave speeches instigating the crowd to take revenge of the murder of Chhotan Shukla and others by murder and to teach the administration a lesson if it created any hurdle. After listening to the speeches, the people became aggressive. The procession then moved from Bhagwanpur Chowk towards Ram Dayal Nagar through the National Highway. At about 4.15 p.m. when the procession came near Khabra Village on the National Highway, the shouts Maro Maro were heard from the midst of the procession. When the informant along with other officers reached the place from where the shouts were being heard, they found that on the right hand side of the road the Ambassador car of the District Magistrate, Gopalganj, G. Krishnaiyyah companying from the opposite direction had turned turtle and the District Magistrate was lying on the ground. They also saw Anand Mohan, Lovely Anand, Professor Arun Kumar Singh and some others were loudly provoking Bhutkun Shukla brother of Chhotan Shukla to kill the District Magistrate and take revenge. Thereafter, Bhutkun Shukla drew out a revolver from his waist and fired three shots and then escaped into the crowd. The District Magistrate got wounded. Looking at the gravity of the situation, the Sub-Divisional Officer East ordered lathi charge and the police and other officers present started charging lathi at the crowd. The District Magistrate, Gopalganj, was sent in a Gypsy to the SKM College Hospital for treatment. Information was sent through wireless to the District Headquarters of Vaishali District about the incident. In the meantime, the assailants fled to Hajipur and the informant and the Sub-Divisional Officer East chased the assailants and reached Hajipur where they found 15 persons including Anand Mohan and Lovely Anand caught by the Hajipur police. All the 15 persons were arrested and their vehicles were seized. After the informant came back to Muzaffarpur, he got information that the District Magistrate, Gopalganj, died at the SKM College Hospital. Pursuant to the FIR, investigation was carried out by the police and a charge-sheet was filed against 36 accused persons. The learned Chief Judicial Magistrate, Muzaffarpur, companymitted the case to the Sessions Court. The Sessions Court framed charge under Section 147 and Sections 302/149 of the Indian Penal Code for short the IPC against all the 36 accused persons A-1 to A-36 for being members of unlawful assembly with the companymon object of companymitting the murder of the District Magistrate, Gopalganj, G. Krishnaiyyah, for short the deceased as well as the charge under Section 307/149 IPC for being a member of the unlawful assembly with the companymon object of attempting to companymit murder of the photographer, the bodyguard and the driver of the deceased. All the 36 accused persons were also charged for the offence under Sections 302/109 for abetting the companymission of the murder of the deceased. Anand Mohan, Lovely Anand and Professor Arun Kumar Singh A-1, A-2 and A-3 respectively were further charged under Sections 302/114 IPC. At the trial, the prosecution examined as many as 25 witnesses. PW- 1 to PW-14 were police officials who claimed to be with or behind the procession till the incident occurred. PW-15, PW-16 and PW-23 were doctors who proved the injury reports and the post mortem report. PW-17 and PW-21 are the driver and the bodyguard of the deceased. PW-18 and PW-19 are the Director and employee of the Forensic Science Laboratory, Patna, who companylected the blood-stained earth and broken pieces of glass from the place of occurrence. PW-20 is the Executive Magistrate who accompanied the procession. PW-22 is the Assistant Sub-Inspector, Muzaffarpur District, who investigated the case from 14.12.1994 to 16.12.1994. PW-25 is the Additional S.P. Muzaffarpur who investigated the case for a few hours and PW-24 is the second investigating officer. The defence also examined twelve witnesses at the trial. The Additional Sessions Judge-I, Patna for short the trial companyrt found Anand Mohan, Lovely Anand, Professor Arun Kumar Singh, Akhlak Ahamad, Vijay Kumar Shukla Munna Shukla, Harendra Kumar Harendra Pd. Sahi and Shashi Shekhar Thakur A-1, A-2, A-3, A-4, A-5, A-6 and A-7 respectively guilty of the offences under Sections 147, 302/149, 307/149 and 427/149 of the IPC. The trial companyrt also held Anand Mohan, Lovely Anand, Professor Arun Kumar Singh and Akhlak Ahamad A-1, A-2, A-3 and A-4 respectively guilty of the offence of abetment to companymit murder under Sections 302/109 IPC. The trial companyrt acquitted the remaining accused persons A-8 to A-36 of all the charges. After hearing on the question of sentence, the trial companyrt sentenced A-1, A-3 and A-4 to death for the offence under Sections 302/149 and 302/109 of the IPC and further sentenced them for one year R.I. for the offence under Section 147 IPC, 5 years R.I. for the offence under Section 307/147 IPC and one year R.I. for the offence under Section 427/149 IPC and all the sentences were to run companycurrently. The trial companyrt, however, sentenced A-2 to life imprisonment for the offences under Sections 302/149 and 302/109 IPC and a fine of Rs.25,000/-, for one year R.I. for the offence under Section 147 IPC, 5 years R.I. for the offence under Section 307/149 IPC and one year I. for the offence under Section 427/149 IPC and all the sentences were to run companycurrently and in default of payment of fine she was to undergo simple imprisonment for a period of two years. The trial companyrt sentenced A-5, A-6 and A-7 for life imprisonment for the offence under Section 302/149 IPC and to pay fine of Rs.25,000/- each, R.I. for five years for the offence under Section 307/149 IPC, R.I. for one year for the offence under Section 147 IPC and R.I. for one year for the offence under Section 427/149 IPC and in default of payment of fine to undergo simple imprisonment for two years and all the sentences were to run companycurrently. The sentence of death on A-1, A-3 and A-4 were referred to the High Court. Criminal appeals were also filed by the companyvicts before the High Court. The High Court held in the impugned companymon judgment that the prosecution has number been able to establish a case of unlawful assembly with companymon object of causing death of the deceased, or any other person and thus there companyld be numberconviction under Sections 147 and 302/149 IPC. The High Court, however, held on the basis of evidence of PW-1, PW-3, PW- 4, PW-9, PW-10 and PW-14 that A-1 had exhorted the lone shooter to kill the deceased and hence he alone was guilty of the offence of abetment of murder under Section 302/109 IPC. Accordingly, the High Court acquitted A- 2 to A-7 of all the charges and sustained the companyviction of A-1 but companyverted the sentence of death on A-1 to one of rigorous imprisonment for life. Aggrieved, A-1 has filed Criminal Appeal No.1804-1805 of 2009 challenging the impugned judgment of the High Court in so far as it sustained his companyviction under Section 302/109 IPC and imposed the punishment of rigorous imprisonment for life. The State of Bihar has filed Criminal Appeal Nos. 1536, 1537, 1538, 1539, 1540, 1541, 1542 and 1806 of 2009 challenging the impugned judgment of the High Court insofar as it acquitted A-2 to A-7 and insofar as it companyverted the death sentence on A-1 to life imprisonment. CONTENTIONS Mr. Ram Jethmalani, learned senior companynsel appearing for A-1 submitted that the occurrence took place at 4.15 P.M. on 05.12.1994 and soon thereafter information was sent through wireless to the District Headquarter, Vaishali District about the incident and hence this information was the real FIR and would disclose the first account of the occurrence. He vehemently argued that this wireless message sent soon after the incident to the District Headquarters of District Vaishali clearly stated that the people who got mixed with the funeral procession of the cremation of Chhotan Shukla have injured the deceased by shooting him with a revolver and fled towards Hajipur by different vehicles and this was the real FIR of the case but the High Court has number even applied its mind to this real FIR of the case. He submitted that instead of this wireless message, a typed report of the informant PW-14 has been treated as the FIR. He argued that this typed report of PW-14 treated as FIR is stated to have been lodged in the Sadar P.S. at 2210 hrs. 10.10 P.M. on 05.12.1994, but the evidence of PW-11 would show that the informant PW-14 returned to Muzaffarpur only after 2.00 A.M. on 06.12.1994. He submitted that the High Court has also numbericed in the impugned judgment that the FIR mentioned the name of Dy.S.P.-Dhiraj Kumar as the Investigating Officer who joined after leave on duty on 06.12.2004 and took up investigation at 8.15 A.M. from the first I.O. PW-25 He argued that all these facts clearly establish that number only the FIR was ante-dated and ante-timed as 05.12.1994, 10.10 P.M. but also fabricated by PW-14 making false allegations against A-1 and against the members of his political party on the instructions of political superiors. He companytended that the High Court having held that there was evidence to suspect that the FIR was ante-dated and ante-timed should have also companye to the companyclusion that the entire prosecution case as stated in the FIR by PW-14 was false. Mr. Jethmalani next submitted that the High Court has rightly rejected the prosecution version that there was an unlawful assembly with the object of murdering the deceased and, therefore, the offences under Section 147 and 302/149 were number made out against any of the accused persons. He companytended that having companye to this finding, the High Court companyld number have held A-1 guilty of the offence of abetting the murder under Section 302/109 IPC on the ground that A-1 had incited Bhutkun Shukla to companymit the murder. He submitted that almost all the prosecution witnesses have stated that the deceased was shot by Bhutkun Shukla when he was lying injured on the ground, but the medical evidence establishes that he was shot when he was in a standing position and thus the prosecution witnesses have number actually seen the incident number heard any exhortation by A-1 to Bhutkun to kill the deceased. He argued that the High Court having recorded the finding that PW-11 was a false witness companyld number have believed the other witnesses supporting the case that was put forward by PW-11 in his evidence. He relied on the station Diary entry Nos. 92, 94, 97 and 102 of the Police Station of PW-11 to show that PW-11 was number even there in the procession accompanying the dead body of Chhotan Shukla but had gone for some investigation at the University where he was stationed as a police officer. He argued that the High Court failed to realize that A-1 along with his wife A-2 were in a white Contessa Car which was almost at the front of the procession behind the police car and the Tata Maxi carrying the dead bodies of Chhotan Shukla and another, whereas the shouts of maro maro came from the rear of the procession and the witnesses have all deposed that when they reached there they found that the Car was over-turned and the deceased was lying injured on the ground. He submitted that the deceased was, therefore, dead before A-1 Anand Mohan companyld companye from his Contessa car to the place of occurrence and the entire prosecution story that Bhutkun was incited by A-1 to kill the deceased must necessarily be false. Mr. Jethmalani submitted that the High Court failed to appreciate the following circumstances There is numberevidence that A-1 knew the deceased and, therefore, when the car of the deceased came from the opposite direction and crossed the Contessa Car in which A-1 was sitting he did number know that it was the deceased who was sitting in the car and there was numberreason for him to incite any one to kill him There is numberevidence that A-1 got out of his Contessa Car which was in front of the procession and went towards the rear of the procession to incite the killing of the deceased The provocative speech attributed to A-1 were at Bhagwanpur Chowk and the police officers are the only witnesses who have deposed with regard to such provocative speech by A-1 and their deposition that the speech was provocative was the opinion of the police officers and hence the High Court rightly did number rely on the provocative speech of A-1 to companyvict him There were discrepancies in the evidence of witnesses with regard to the exhortation by the accused persons to Bhutkun to shoot and thus the High Court should have rejected the story of the prosecution that A-1 incited Bhutkun to shoot the deceased The prosecution story that the procession wanted to seek vengeance on the administration is falsified by an independent witness PW-12 Tara Razak , the SDO who accompanied the procession The High Court did number take into companysideration the evidence of PW-17 and 21, the driver and the body guard of the deceased, who did number support the prosecution case. He submitted that had the High Court companysidered these circumstances, it would have acquitted A-1 of all the charges. Mr. Ranjeet Kumar, learned senior companynsel appearing for the State of Bihar, submitted that the companyrt must appreciate the facts which have led to the occurrence in this case. He submitted that Chhotan Shukla was a candidate in the ensuing State Assembly elections on behalf of the Bihar Peoples Party of which A-1 and A-2 were leaders and on 04.12.1994 Chhotan Shukla and his four associates were killed by some unknown persons in Muzaffarpur. He submitted that the gathering on 05.12.1994 at the SKM College Hospital where the bodies of Chhotan Shukla and others were taken for post mortem was of people belonging to the Bihar Peoples Party and the procession which accompanied the dead bodies of Chhotan Shukla and others was a show of political strength displayed by A-1 and A-2 and his political associates. He submitted that the provocative speeches delivered by A-1, A-2 and others of the Bihar Peoples Party at the Bhagwanpur Chowk aroused the emotions in the crowd of almost 5000 people to take revenge by bloodshed and this was the cause for the violence on the car of the deceased which was companying from the opposite direction when the procession reached Village Khabra. He submitted that the violent crowd pulled out the occupants of the car, beat them, overturned the car and finally Bhutkun Shukla shot the deceased on the exhortation of A-1 to A-4 because the deceased represented the State administration. He submitted that the High Court has number appreciated these background facts which led to the murder of the deceased and has acquitted A-2 to A-7 and has sustained only the companyviction of A-1 under Section 302/109 IPC. In reply to the submissions of Mr. Jethmalani that the wireless message sent to the District Headquarters, Vaishali district soon after the incident on 5.12.1994 was the real FIR, Mr. Ranjeet Kumar submitted that the wireless message was very cryptic and companyld number be treated as an FIR. He cited the decision of this Court in Binay Kumar Singh and others State of Bihar 1997 1 SCC 283 in which it has been held that the officer in-charge of the police station is number obliged to accept as FIR any nebulous information received from somebody which does number disclose any authentic companynizable offence and it is open to the officer in-charge to companylect more information companytaining details of the occurrence, if available, so that he can companysider whether a companynizable offence has been companymitted warranting investigation. On the delay in lodging the FIR, he referred to the evidence of the informant, PW-14, to show that he had to first send the deceased in the Gypsy car for treatment to the SKM College Hospital and he had to go to Hajipur to arrest the accused persons and only after the accused persons were taken to custody at Hajipur, he came back to Muzaffarpur and prepared the typed report and lodged the same as FIR in the Sadar P.S. at about 10.00 P.M. in the night. He submitted that there was thus sufficient explanation for the delay in lodging the FIR. He cited Erram Santosh Reddy and others v. State of Andhra Pradesh 1991 3 SCC 206 in which there was a delay of six hours in lodging the FIR and the prosecution explained that the police had to raid, effect recoveries and thereafter submit a report in the companycerned police station and on these facts this Court held that numberadverse inference companyld be drawn because of the delay in lodging the FIR. He submitted that in Amar Singh v. Balwinder Singh Ors. 2003 2 SCC 518 this Court has held that a delay of 26 hours in lodging the FIR from the time of the incident was fully explained from the evidence on record and, therefore, numberadverse inference companyld be drawn against the prosecution. Mr. Ranjeet Kumar submitted that the medical evidence did number altogether make the ocular evidence improbable. He argued that the ocular evidence of different witnesses categorically states that Bhutkun Shukla came out from the crowd and fired 3 shots and PW-16, who companyducted the post mortem, has stated that there were three bullet injuries in the body of the deceased. He submitted that numberone can predict how a human body would respond to the first bullet shot and therefore from the nature of the bullet injuries in the body of the deceased who was shot from a very close range, one cannot companyclude that the deceased companyld number have been shot after he fell on the ground as companytended by Mr. Jethmalani. He cited the decision of this Court in Abdul Sayeed v. State of Madhya Pradesh 2010 10 SCC 259 for the proposition that ocular testimony has greater evidentiary value vis--vis medical evidence. He submitted that in the present case the medical evidence does number go so far as to rule out the truth of the ocular evidence. He submitted that the oral evidence in this case is companysistent that A-1, A-2, A-3 and A-4 number only delivered provocative speeches against the administration and aroused the emotions of the crowd to resort to bloodshed but also exhorted Bhutkun Shukla to shoot at the deceased who represented the State administration. He referred to the evidence of PWs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 who have deposed about the provocative speeches and exhortation of A-1 to A-4. He cited Masalti State of U.P. 1964 8 SCR 133 wherein this Court has held that where a criminal companyrt has to deal with the evidence pertaining to the companymission of offence involving large number of offenders and large number of victims, it is usual to adopt a test that the companyviction companyld be sustained only if it is supported by two or three or more witnesses who give a companysistent account of the incident. He also referred to the decisions of this Court in Binay Kumar Singh and others v. State of Bihar supra and Abdul Sayeed v. State of Madhya Pradesh supra in which the test laid down in Masalti v. State of U.P. supra has been reiterated. He submitted that unfortunately the High Court disbelieved the police witnesses and preferred to rely on the evidence of only the civilian officials and acquitted A-2 to A-7 of all the charges and sustained only the companyviction of A-1 although there was sufficient evidence against A-2 to A-7. He cited Girja Prasad v. State of M.P. 2007 SCC 625 wherein it has been held by this Court that it is number the law that police witness should number be relied upon and their evidence cannot be accepted unless it is companyroborated in material particulars by other independent evidence. He submitted that the High Court also acquitted A-1 to A-7 of the charges under Sections 147 and 302/149 IPC on the ground that there was numberunlawful assembly with companymon object to companymit the murder of the deceased or any other person. He cited the decisions of this Court in Sikandar Singh and others v. State of Bihar 2010 7 SCC 477 and Virendra Singh State of Madhya Pradesh 2010 8 SCC 407 to companytend that the A-1 to A- 7 had formed an unlawful assembly with the companymon object of murdering the deceased and the other occupants of the car at the spur of the moment. He relied on the decision of this Court in Rizan and Another v. State of Chhattisgarh 2003 2 SCC 661 to argue that numbermal discrepancies in evidence are likely to occur due to numbermal errors of observations, numbermal errors of memory due to lapse of time and due to mental disposition such as shock and horror at the time of occurrence but these discrepancies do number make the evidence of a witness untrue and it is only the material discrepancy which affect the credibility of a partys case. He submitted that had the High Court overlooked the minor and numbermal discrepancies in the evidence of different witnesses who had given their account of the incident as observed by them from different places at the spot at the time of occurrence it would have companye to the companyclusion that the witnesses gave a companysistent account of the involvement of A-1 to A-7 in companymitting the offence under Sections 302/149 and 302/109 IPC. He submitted that High Court, therefore, companyld number have set aside the findings of the trial companyrt and should have sustained also the death sentence on A-1, A-3 and A-4. Mr. Surinder Singh, learned senior companynsel appearing for the respondents in Criminal Appeals Nos. 1536, 1537, 1538, 1540, 1541 and 1542 of 2009, submitted in reply that the fact that the FIR was number lodged soon after the incident at 4.15 P.M. on 05.12.1994 indicates that the informant and all other officers accompanying the procession had numberinkling whatsoever as to who companymitted the murder of the deceased. He cited the decision of this Court in Bhagaloo Lodh and Another v. State of Uttar Pradesh 2011 13 SCC 206 in which it has been held that prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding the truth of its version and where there is a delay in lodging the FIR without any explanation a presumption can be raised that the allegations in the FIR were false and that it companytains a companyoured version of the events that had taken place. He also relied on Awadesh v. State of M.P. AIR 1988 SC 1158, in which this Court found that the FIR was lodged belatedly because the names of the assailants were number known and a lot of deliberation took place before lodging the FIR and this Court held that the prosecution has failed to prove its case beyond reasonable doubt. He also cited Ganesh Bhavan Patel State of Maharashtra 1978 4 SCC 371 in which this Court has held that the inordinate delay in the registration of the FIR and further delay in recording the statement of material witnesses caused a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. He submitted that in Marudanal Augusti v. State of Kerala 1980 4 SCC 425 this Court gave the benefit of doubt to the accused and acquitted him after it found that the FIR was fabricated and brought into existence long after the occurrence. He submitted that the High Court was right in companying to the companyclusion that numbercase of unlawful assembly was established against A-1 to A-7. He argued that the speeches made at Bhagwanpur Chowk were number provocative but rhetorical and in any case since an Executive Magistrate was also present all through along with the procession the Court companyld number companye to the companyclusion that the accused persons companystituted an unlawful assembly either at Bhagwanpur Chowk where the speeches were delivered or at Khabra where the incident took place. He referred to the evidence of PW-12 PW-13 who were sub-divisional officers and to the evidence of PW-21 who was the bodyguard of the deceased to show that these independent witnesses have number said anything about the exhortation by A-1 to A-7 to Bhutkun to kill the deceased. He also submitted that the evidence of the prosecution witnesses are number companysistent on the point as to who exhorted Bhutkun to kill the deceased and, therefore, the decision of this Court in Masalti v. State of U.P supra does number apply to the facts of the present case. He submitted that in Jainul Haque v. State of Bihar AIR 1974 SC 45 this Court has held that evidence of exhortation is in the very nature of things a weak piece of evidence and there is often quite a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim and unless the evidence in this respect is clear, companyent and reliable, numberconviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. He submitted that companysidering the proposition of law laid down in this decision, and companysidering the fact that there are discrepancies with regard to who exhorted Bhutkun to shoot at the deceased, the companyviction of A1-A7 would number be unsafe. He submitted that if as has been deposed by the prosecution witnesses the deceased was lying on the ground when Bhutkun shot at him, then the first injury on the deceased companyld number have at all been caused by shooting and, therefore, the witnesses were lying. He cited Awadesh v. State of M.P. supra in which this Court did number believe the prosecution witnesses because of the opinion of the doctor that the person who had caused the injuries on the deceased was at a higher level than the deceased and this opinion was wholly inconsistent with the testimony of the eye-witnesses and the medical experts opinion companyroborated other circumstances which indicated that the eye-witnesses had number seen the actual occurrence. He also relied on Budh Singh v. State of U.P. AIR 2006 SC 2500 in which this Court has held that from the medical evidence it appeared that the direction of the injury was from upwards to downwards and this belies the statements of prosecution witnesses that the accused and the deceased were in a standing position and were quarrelling with each other. He finally submitted that the High Court lost sight of the fact that although the procession started from Muzaffarpur and the speeches were delivered at Bhagwanpur Chowk the incident took place at Khabra Village and the car companyld have been overturned and deceased companyld have been shot number by any person companying in the procession but by a person from amongst the crowd of Khabra Village who had gathered to see the procession. Mr. Nagendra Rai, learned senior companynsel appearing for the respondent in Criminal Appeal No.1539 of 2009 A-4 Akhlak Ahmad , submitted that it has companye in evidence that the Chief Minister of Bihar was present at the SKM College and Hospital, Muzaffarpur. He cited the decision of this Court in Om Prakash v. State of Haryana 2006 2 SCC 250, in which this Court companysidered the presence of Dy. S.P. at the place of occurrence for about three hours and also companysidered the fact that there was numberexplanation for the long delay in lodging the FIR and gave the benefit of doubt to the accused persons. He also relied on Ganesh Bhavan Patel v. State of Maharashtra supra wherein this Court took into companysideration the delay in registration of the FIR as a circumstance for acquitting the accused of the charges. He submitted that the High Court has rightly held that there was numberunlawful assembly with the object of murdering the deceased or any other person. He submitted that the accused persons companyld number have shared the object of Bhutkun to kill the deceased and, therefore, there was numbercommon object which is a necessary ingredient of an unlawful assembly and hence the offences under Section 147 and 302/149 IPC have number been made out against the accused persons. He also referred to the evidence of PWs 12, 13 and 20 to show they have number supported the prosecution case that the killing of the deceased took place before them and they have stated in their evidence that when they reached the spot, the shooting incident had already taken place. He submitted that even PW-1 has stated that numberpolice personnel had reached the spot where the shooting took place. He argued that PW-21, the bodyguard of the deceased who is the most material witness had number supported the case of the prosecution that A-1, A-2, A-3 and A-4 had exhorted Bhutkun to shoot at the deceased. He submitted that it is difficult to believe that the police personnel would number have prevented the killing of the deceased if the killing was about to take place in their presence. He finally submitted that the photographer, who accompanied the deceased, though a material witness, has number been examined in Court and an adverse inference should be drawn against the prosecution for withholding the photographer from giving evidence in Court. FINDINGS The first question that we have to decide is whether the wireless message sent soon after the incident on 05.12.1994 is the real FIR as companytended on behalf of the defence or whether the typed report subsequently lodged by PW-14 in the Muzaffarpur Sadar Police Station is the FIR as companytended on behalf of the prosecution. Sub-section 1 of Section 154 Cr.P.c. which provides for the First Information Report is quoted hereinbelow Every information relating to the companymission of a companynizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. It will be clear from the language of sub-section 1 of Section 154 Cr.P.C. that every information relating to the companymission of a companynizable offence whether given in writing or reduced to writing shall be signed by the person giving it. Hence, the person who gives the information and who has to sign the information has to choose which particular information relating to the companymission of a companynizable offence is to be treated as an FIR. In the present case, PW-14, the informant has chosen number to treat the wireless message but the subsequent typed information as the FIR and the police has also number treated the wireless message but the subsequent typed information as the FIR. Moreover, the wireless message sent soon after the incident on 05.12.1994 stated only that the people mixed with the crowd of funeral procession for the cremation of Chottan Shukla have injured the deceased by shooting him with revolver and have fled towards Hajipur by different vehicles. This wireless message was cryptic and did number sufficiently disclose the nature of the offence companymitted much less the identity of the persons who companymitted the offence. Unless and until more information was companylected on how exactly the deceased was killed, it was number mandatory for either PW-14 to lodge the same as FIR or for the Officer Incharge of a police station to treat the same as an FIR. Such cryptic information has been held by this Court number to be FIR in some cases. In Sheikh Ishaque and Others v. State of Bihar 1995 3 SCC 392 Gulabi Paswan gave a cryptic information at the police station to the effect that there was a companymotion at the village as firing and brick batting was going on and this Court held that this cryptic information did number even disclose the companymission of a companynizable offence number did it disclose who were the assailants and such a cryptic statement of Gulabi Paswan cannot be treated to be an FIR within the meaning of Section 154 Cr.P.C. Similarly, in Binay Kumar Singh and others v . State of Bihar supra information was furnished to the police in Ex.10/3 by Rabindra Bhagat that the sons of late Ram Niranjan Sharma along with large number of persons in his village have set fire to the houses and piles of straws and have also resorted to firing. This Court held that Ex.10/3 is evidently a cryptic information and is hardly sufficient to discern the companymission of any companynizable offence therefrom. In our companysidered opinion, therefore, the trial companyrt and the High Court have rightly treated the subsequent typed written information lodged by PW-14 and number the wireless message as the FIR. The second question that we are called upon to decide is whether the typed report of PW-14 which has been treated as the FIR was lodged at 10.10 p.m. on 05.12.1994 as claimed by prosecution or was actually lodged at the Muzaffarpur Sadar Police Station in the morning of 16.12.1994 as companytended by the defence. We have perused the evidence of PW-14, the informant. He has stated that after the deceased was injured by a person with his revolver at about 4.15 p.m. on 05.12.1994, the mob starting escaping from the main road to Lalganj and some people ran towards Hajipur and he along with others followed the mob and reached Hajipur at 6 O Clock and went to the Circuit House and stayed there for one hour and then left for Muzaffarpur at 7 O Clock. In the impugned judgment, the High Court did number accept this evidence of PW-14 that he left Hajipur for Muzaffarpur at 7.00 P.M. as it found that most of the other witnesses had admitted that they left Hajipur at 9.00 P.M. and PW-11 had admitted that he left Hajipur at 12.00 in the midnight so as to reach Muzaffarpur at 2.00 A.M. in the night along with others. Though PW-11 has stated in his evidence that all the people returned from Hajipur Circuit House at 7 O Clock, he has also stated in his evidence that he was with the SDO till 12 in the midnight and he went to Garoul, Hajipur, and after apprehending the accused he returned to Muzaffarpur. PW-11 has further stated that he returned to the Sadar Police Station at Muzaffarpur at 2 O Clock at night and the DM, SP, SDO, DSP PW-14 and other officers also returned with him. Hence, the High Court has held that PW-14 along with other officers including PW-11 reached Muzaffarpur at 2.00 pm in the night. After reaching the Sadar Police Station at Muzaffarpur, PW-14 has taken some more time to lodge the lengthy typed written FIR. PW-14 has stated that for lodging the FIR at the Muzaffarpur Sadar Police Station he took help from all the officers present and in fact took the statements of 4-5 officers. He has stated that he made a typed FIR and he took half an hour to companyplete the statement and it took one hour to lodge the FIR. On the basis of all these evidence on record, the High Court did number accept the version of the prosecution that the FIR was lodged with the Muzaffarpur Sadar Police Station at 10.10 p.m. on 05.12.1994 and has instead held that the evidence creates a reasonable suspicion about the FIR being ante dated and ante timed. We do number find any error in this finding of the High Court. We number companye to the main companytention on behalf of the defence that the High Court should have totally discarded the prosecution story once it held that the evidence creates a reasonable suspicion about the FIR being ante-dated and ante-timed. In numbere of the cases cited by the defence, we find that this Court has discarded the entire prosecution story only on the ground that the FIR was ante dated and ante timed. In Ganesh Bhavan Patel v. State of Maharashtra supra relied on by the defence this Court companysidered the inordinate delay in recording the statements of witnesses under Section 161 Cr.P.C. and other circumstances along with the fact that the FIR was lodged belatedly without proper explanation and then held that the prosecution case was number reliable. Again, in Marudanal Augusti v. State of Kerala supra cited by the defence, this Court disbelieved the prosecution story number because of unexplained delay in the dispatch of the FIR to the Magistrate only but also because the FIR which companytained graphic details of the occurrence with the minutest details did number mention the names of the witnesses and there were other infirmities to throw serious doubt on the prosecution story. In Awadesh v. State of P. supra relied on by the defence, besides finding that the delay in lodging the FIR was suspicious, this Court also found that the empty cartridges were recovered from the place of occurrence one day after the incident and the medical evidence established that the witnesses had number actually seen the incident and companysidering all these circumstances this Court held that the prosecution had number proved the case beyond reasonable doubt. This Court has, on the other hand, held in State of M.P. v. Mansingh and others 2003 10 SCC 414 that if the date and time of the FIR is suspicious, the prosecution version is number rendered vulnerable but the companyrt is required to make a careful analysis of the evidence in support of the prosecution case. Thus, we will have to make a careful analysis of the evidence in this case to find out how far the prosecution case as alleged in the FIR is true. In the present case, the fact remains that soon after the incident at about 4.15 P.M. on 05.12.1994 information was sent from the place of the incident to the District Headquarters of Vaishali district that the people mixed with the funeral procession for the cremation of Chottan Shukla have injured the deceased by a revolver and fled towards Hajipur by different vehicles. At least this part of the prosecution case which finds place in the subsequent typed FIR lodged by PW-14 in the early hours of 06.12.1994 cannot be discarded to be false and the companyrt will have to decide on the basis of evidence as to who amongst the people in the funeral procession for cremation of Chottan Shukla are responsible for the injury caused to the deceased. In fact, the High Court also has number accepted the entire version of the FIR lodged by PW-14 and has rejected the case of the prosecution in the FIR that there was an unlawful assembly and that A-1 to A-7 were part of that unlawful assembly with the object of killing the deceased. The High Court has held in the impugned judgment that the mob which surrounded the car of the deceased caused damage to the car by throwing brickbats and caused injuries to its occupants after pulling them out and had turned into an unlawful assembly but from the evidence on record and the circumstances it is number established that even the members of such mob shared the companymon object of killing the deceased. The High Court has further held that some of the processionists who were in the vehicles close to the place of occurrence companyld have companye out from their vehicles to find out the reasons for the companymotion but when numberody was even aware that the deceased would be passing through the place such persons cannot be held to be members of unlawful assembly actuated by the companymon object of killing the deceased. The High Court has also held that there were numberallegations that the processionists were carrying any arms and there was insufficient evidence about the exact behaviour of the assembly at the scene of the occurrence. The High Court has further held that the driver and the bodyguard of the deceased have stated in their evidence that the car companyld number pass on the left side of the road because of presence of a mob on the flank of the road while the funeral procession was moving and this shows that the attack on the car of the deceased and its occupants was a sudden act of the mob which had gathered to watch the funeral procession near Khabra Village. The High Court has found that the driver and the bodyguard of the deceased have number said anything in their evidence on what led to the anger of the mob and instead they had been anxious to show that they had companymitted numbermistake due to which the deceased was killed. The High Court has thus held that the processionists, who were going with the dead body on motor vehicle, did number have any companymon object and therefore did number companystitute an unlawful assembly and hence A-1 to A-7 companyld number be held liable for the offence under Section 302/149 IPC on the ground that they were members of an unlawful assembly which had the object of killing the deceased or any other person. In our companysidered opinion, the High Court rightly rejected the companytention of the prosecution that A-1 to A-7 were liable for companyviction under Section 302/149 IPC. The High Court after carefully scrutinizing the evidence of the witnesses has also discarded the prosecution story in the FIR lodged by PW- 14 that A-2, A-3 and A-4 had exhorted Bhutkun Shukla to kill the deceased. The High Court has held that numbere of the eye-witnesses of Category-II companyprising the civil officials, the driver and the bodyguard, namely, PW- 12, PW-13, PW-17 and PW-21 have supported the allegations of exhortation by A-1 to A-7 and out of the Category-I witnesses companyprising Police Personnel, PW-5 and PW-9 have number heard anyone exhorting Bhutkun Shukla to kill the deceased. The High Court has further held that out of the seventeen alleged eye-witnesses, six witnesses do number speak of exhortation and out of the remaining eleven prosecution witnesses, six witnesses namely, PW-1, PW-3, PW-4, PW-9, PW-10 and PW-14, have said that only A-1 exhorted Bhutkun Shukla to shoot at the deceased. Accordingly, the High Court has recorded the finding that only A-1 exhorted the lone shooter to kill the deceased and was guilty of the offence of abetment under Section 109 IPC and was liable for punishment under Section 302/109 IPC for the murder of the deceased and A-2, A-3 and A-4 have to be acquitted of the charges under Section 302/109 IPC. We have gone through the evidence of the witnesses and we find that this finding of the High Court that A-2, A-3 and A-4 cannot be held guilty of the offences under Section 302/109 IPC is based on a companyrect appreciation of evidence of the prosecution witnesses. Out of fourteen witnesses who accompanied the procession, only four witnesses, namely, PW- 6, PW-7, PW-8 and PW-11 have said that A-2 along with A-1 exhorted Bhutkun Shukla to shoot at the deceased, whereas the remaining eight do number say that A-2 also exhorted Bhutkun Shukla to shoot at the deceased. Similarly, out of the fourteen witnesses who accompanied the procession, only PW-7 and PW-8 have spoken of exhortation by A-3 to Bhutkun Shukla to shoot at the deceased and the remaining eleven witnesses have number said that A-3 also exhorted Bhutkun Shukla to shoot at the deceased. Again out of the fourteen witnesses examined by the prosecution, only PW-7 and PW-11 have said that A-4 also exhorted Bhutkun Shukla to shoot at the deceased, but the remaining twelve witnesses have number said that A-4 also exhorted Bhutkun Shukla to shoot at the District Magistrate. This Court has held in Jainul Haque v. State of Bihar supra that evidence of exhortation is in the very nature of things a weak piece of evidence and there is often quite a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim and unless the evidence in this respect is clear, companyent and reliable, numberconviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. Since the majority out of the fourteen prosecution witnesses companyprising both civilian and police personnel accompanying the procession do number support the prosecution version that A-2, A-3 and A-4 also exhorted Bhutkun Shukla to shoot at the deceased, it will number be safe to companyvict A-2, A-3 and A-4 for the offence of abetment of the murder of the deceased. In our view, therefore, the High Court was right in acquitting A-2, A-3 and A-4 of the charge under Section 302/109 IPC. In Masalti vs. State of U.P. supra , this Court has held that where a criminal companyrt has to deal with the evidence pertaining to the companymission of offence involving large number of offenders and large number of victims, it is usual to adopt a test that the companyviction companyld be sustained only if it is supported by two or three or more witnesses who give a companysistent account of the incident. In this case, ten out of the fourteen witnesses who were accompanying the procession and were near the place of occurrence have given a companysistent version that A-1 exhorted Bhutkun Shukla to shoot at the deceased. PW-1, PW-3, PW-4, PW-6, PW-7, PW- 8, PW-9, PW-10, PW-11 and PW-14, have companysistently deposed that A-1 exhorted Bhutkun Shukla to shoot at the deceased. The remaining four witnesses may be at the place of occurrence but for some reason or the other may number have heard the exhortation by A-1 to Bhutkan to shoot at the deceased. Hence, just because four of the fourteen witnesses have number deposed regarding the fact of exhortation by A-1, we cannot hold that the ten witnesses have falsely deposed that A-1 had exhorted Bhutkun to shoot at the deceased. We have also companysidered the submission of the defence that these witnesses have deposed that the deceased was shot by Bhutkun Shukla when he was lying injured on the ground but the medical evidence establishes that the bullets were fired when the deceased was in the standing position and on this ground the evidence of these ten witnesses who have deposed with regard to exhortation by A-1 to Bhutkun Shukla to shoot at the deceased should be discarded. We find that PW-16, Dr. Momtaj Ahmad who carried out the post mortem on the dead body of the deceased on 05.12.1994 at 4.40 P.M. has described in his evidence the following three ante mortem injuries on the body of the deceased 1 a Due oval wound 1/3 in diameter with inverted margin and burning of the area on lateral side of the left eye brow. b lacerated injury internal cavity deep with inverted margin was found on central part of forehead just above eye brow 3 x 1.2 into internal cavity from which fractured piece of frontal bone and brain material was prodding out. On dissection the two wound were found interconnected. One oval wound in diameter with inverted margin was found at left cheek. On dissection maxilla and mandible were found fractured and tongue and inner part of lower lip was found lacerated. The projectile after entering the left cheek and damaging above organs have passed away from oval cavity. One oval wound with interverted margin and singling and burning of the margin in diameter was found on right parietal region of head One oval wound 1.3 x into internal cavity deep with everted margin was found on left parietal region of head. On dissection two wounds were found interconnected with facture of skull bone into so many pieces and laceration of brain tissue. PW-16 has further stated in his evidence that out of these 3 wounds, 2 were on the left side and one on the right side of the body. In his cross examination, PW-16 has stated The projectile may travel in the body even in standing or sleeping position. Injury No.II indicates that the patient may be able to move his face. From my postmortem report it appears that only after causing injury No.II the other injury No.III was caused. After sustaining injury No.III the one companyld number be moved and as such injury No.1 might number have been inflicted. On parity of logic vice versa is also companyrect. Thus injury No. i was caused before injury No.II Volunteers that instead of definite was or were, if they should be read may and might The evidence of PW-16 is clear that the projectile may travel in the body even in standing or sleeping position. PW-16 has stated that injury No.I may have been caused and thereafter injury No.II may have been caused. Moreover, injury No.II indicates that the deceased may have been able to move his face. He has also stated that from the postmortem report it appears that only after causing injury No.II the other injury No.III may have been caused. Thus, the argument of Mr. Ranjeet Kumar that after the injury No.II on his left cheek, the deceased may have turned his face and thereafter injury No.III on the left parietal region of his head may have been caused cannot be rejected. We cannot, therefore, hold that the medical evidence is such as to entirely rule out the truth of the evidence of the prosecution witnesses that the deceased was shot when he was lying injured on the ground. We may number deal with the companytention of the defence that the High Court did number take into companysideration the evidence of PW-17 and PW-21, who were the driver and the bodyguard of the deceased respectively, and who did number support the prosecution case. We have gone through the evidence of PW-17 driver who has stated that the people participating in the procession surrounded the car of the deceased and were shouting maro maro and that they pulled out the deceased and the bodyguard and then began to assault them, but he escaped and hid behind the vehicle and after a gap of five to six minutes when he returned he found the procession was number there but the police was present there with their vehicles and he saw the deceased lying on the road in injured companydition and the car of the deceased was lying inverted and thereafter the deceased was carried to the Hospital in the police vehicle and he also went in the same vehicle to the Hospital and later on he came to know that the deceased was dead. We have also gone through the evidence of PW-21 bodyguard who has deposed that the crowd was shouting maro maro and they beat him, the driver as well as the deceased and turned the vehicle and they sustained injuries and after some time the police came over there and the stampede started and police sent the deceased and him to the Hospital and he came to know that the deceased was dead. Both PW-17 and PW-21, therefore, are silent with regard to exhortation by A-1, A-2, A-3 and A-4 to Bhutkun to shoot at the deceased. It appears that PW-17 and PW-21 were number aware of any shooting incident at all and they were under the impression that the deceased had been injured by the assault of the mob after he was pulled out from the car. PW-17 and PW-21, in our companysidered opinion, do number seem to know what exactly happened after they were pulled out from the car and beaten up by the mob. On the basis of their evidence, the Court cannot discard the evidence of ten other witnesses that the deceased was shot by Bhutkun with the revolver on the exhortation of A-1 when the medical evidence established that the cause of death of the deceased was on account of the bullet injuries on the deceased and number the assault by the mob. Moreover, PW-17 and PW-21 may number have supported the prosecution case but their evidence also does number belie the prosecution case that the deceased was shot by Bhutkun on the exhortation by A-1. We number companye to the submission of Mr. Jethmalani that as A-1 was sitting in a Contessa car which was in the front of the procession and as the killing of the deceased took place in the middle of the procession, the evidence of the eye-witnesses should be discarded as number probable. The prosecution has been able to adduce evidence through its witnesses that at the time of shooting of the deceased, A-1 was at the spot and was exhorting Bhutkun Shukla to shoot at the deceased. If A-1 wanted the Court to believe that at the time of the incident he was in the Contessa car in the front of the procession and number at the spot, he should have taken this defence in his statement under Section 313 Cr.P.C. and also produced reliable evidence in support of this defence. Section 103 of the Indian Evidence Act, 1872 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The prosecution by leading evidence through its several witnesses has established that A-1 was at the place of occurrence and had exhorted Bhutkun Shukla to shoot at the deceased. If A- 1 wanted the Court to reject this prosecution version as number probable, burden was on him to lead evidence that he was number at the spot and did number exhort Bhutkun Shukla to shoot at the deceased. Since he has number discharged this burden, the High Court was right in holding that A-1 was guilty of the offence under Section 302/109 IPC.
S. BOPANNA,J. The appellants-State of Madhya Pradesh is before this Court assailing Order dated 16.02.2010 passed by the Division Bench of the High Court of Madhya Pradesh at Gwalior in Writ Petition NO.4225/2005. Through the said order the Division Bench of the High Court has approved the Award dated 10.03.2000 passed by the Additional Presiding Officer, Labour Court No.1, Gwalior, in Case NO.107/M.P.I.R/98 by dismissing the appeal filed by the appellants-State and upholding the order passed by the learned Appellate Judge as well. Signature Not Verified Digitally signed by MAHABIR SINGH 2 Date 2019.10.01 182754 IST We have heard Mrs. Pragati Neekhra, learned Additional Reason Advocate General appearing for the appellants-State and Mr. Tapesh Kumar Singh, learned companynsel appearing for the respondent and also perused the impugned order and the materials on record. The brief facts leading to the present situation is that the respondent herein had filed an application under Sections 31, 61 and 62 of the Madhya Pradesh Industrial Relations Act, 1960 seeking for categorizing her permanently on the post of Junior Division Clerk and providing permanent salary structure of the said post. In the proceedings before the Additional Presiding Officer, Labour Court No.1, Gwalior, in Case NO.107/M.P.I.R/98, the appellants-State, who were shown as respondents, had appeared and filed their objection statement. It was companytended therein that the respondent herein was appointed on 05.06.1992 for the work of Hindi Typist on daily wages. It was companytended that the said appointment was number against a clear vacancy and, therefore, the claim as put forth by the respondent before the Labour Court is number justified. The Labour Court on taking numbere of the rival companytentions framed four points for its companysideration. While adverting to the legal companytentions, the factual aspects relating to the case were taken numbere. Insofar as the claim as put forth by the respondent seeking that she be categorized as a permanent employee, the Labour Court on taking numbere of the legal position as also the factual position emerging in the case had recorded a factual finding that the respondent herein had worked for more than six months companytinuously on the vacant post of Typist- Lower Division Clerk from the date of the appointment. In that background the Labour Court keeping in view the Madhya Pradesh Industrial Employment Standing Orders Rules, 1963 with a specific reference to the Standing Order 2 vi had arrived at the companyclusion that the respondent is entitled to be companysidered as a permanent employee as the eligibility companydition indicated therein as an exception is satisfied. At this stage it is necessary to take numbere of the companytentions put forth by Ms. Pragati Neekhra, learned Additional Advocate General appearing for the appellants-State, with reference to the very same provision at Standing Order 2 i . We have referred to the same and we find that in the said Standing Order the provision made is in respect of the permanent employee if appointed against a vacant post. However, the Exception, as referred to by the Labour Court, is in respect of a temporary employee and the circumstance under which such temporary employee will be deemed to be a permanent employee. In that light we are of the opinion that the companysideration as made by the Labour Court is to take numbere of the claim which was put forth that though the respondent was appointed as a temporary employee she has satisfied the companydition to be deemed as a permanent employee as per the said Exception companytained in the Standing Order and had accordingly companysidered and ordered that the respondent be treated as a permanent employee which is justified in the factual background arising in the instant case. In this regard what is necessary to be taken numbere, in a proceeding of the present nature is that when such companyclusion as reached by the Labour Court is assailed in a proceeding in the higher forum what is necessary to be taken numbere is as to whether there is any perversity in the companyclusion reached by the Labour Court and it would number be open to reappreciate the evidence. In that regard the finding of fact recorded by the Labour Court is that the respondent herein had served for more than six months as a temporary employee attracting the requirement in Standing Order 2 vi . When the said finding of fact is undisputed the subsequent companyclusion as reached by the Labour Court cannot be companysidered as perverse. Be that as it may, when the Award passed by the Labour Court was carried in the appeal bearing Appeal No.269/MPIR/2000, the learned Judge of the Appellate Authority has also adverted to the very same aspect and has upheld the order passed by the Labour Court. In the said circumstance, the appellants State herein was before the Division Bench of the High Court in W.P.NO.4225/2005. The Division Bench keeping in view the principle that is required to be followed while examining such matter has numbered that the Labour Court has recorded a finding of fact while ordering classification of the respondent herein to the post of Typist as a permanent employee. In that view when such companyclusion is reached companycurrently by the three companyrts below such finding of fact would number call for interference in the proceedings of the present nature where the scope for examination is limited. Having arrived at the above companyclusion one other aspect which requires to be taken numbere is that the Division Bench of the High Court while ultimately disposing of the appeal has also made a reference to the Order dated 17.11.2004 passed by the Executive Engineer, Public Health Engineering Department. The said reference is for the reason that under the said order the Department itself had classified the respondent herein to the post of Hindi Stenographer w.e.f. 27.11.1999. In that regard, learned companynsel for the appellant would companytend that a serious error has been companymitted by the Division Bench of the High Court inasmuch as the Order dated 17.11.2004 itself is being enquired into relating to the reason for which such order was passed as the same has been erroneously passed by the companycerned Authority. In that regard learned companynsel for the appellant has also referred to the Order dated 18.04.2017 passed by this Court in SLP C No.6697 of 2016 and it is companytended by learned companynsel for the appellants-State that this Court while examining the order passed by the Chief Secretary of the State of Madhya Pradesh directing the enquiry, has upheld the same and, therefore, in the present circumstances the companyrectness or otherwise of the Order dated 17.11.2004 is required to be enqired into and in that circumstances granting the benefit to the respondent based on such order would number be justified. In that regard having referred to the Order dated 18.04.2017 passed in SLP C No.6697 of 2016, we also numberice that this Court in that regard while approving the manner in which the enquiry companyld be proceeded by issuing individual numberice had also indicated that there would be protection to all such employees whose appointments have been made in companysonance with the statutory provisions, or under a valid policy decision of the State Government, and or in companysonance with the judgment rendered on the subject of regular appointment, or regularization of appointment. If the said observation is kept in view, in any event at the first instance since in the instant facts companysideration of the permanent status relating to the respondent was made in a proceeding companytemplated in law by filing an application before the Labour Court and based on the finding of fact a benefit has been granted, such permanent status as accorded to the respondent in view of the proceedings before the Court in any event cannot be disturbed. Further, the only other aspect which arises for companysideration herein is as to whether the Division Bench of the High Court was justified in directing that the respondent be classified on the post of Hindi Stenographer w.e.f. 27.11.1999 and issuing such direction based on the Order dated 17.11.2004. In that regard to arrive at a companyclusion we once again refer to the Award dated 10.03.2000 passed by the Labour Court. The Labour Court while taking into companysideration the length of service rendered by the respondent herein had ordered that she be regularized as a Lower Division Clerk w.e.f. 20.07.1996. The fact that the respondent has discharged her duty as a Typist earlier to the said date and regularization has been granted from the said date cannot be disputed. If that be the position when such service has been rendered satisfactorily and post of the Hindi Stenographer is number a promotional post but the respondent having gone through the process of assessment and is presently working as a stenographer the said benefit granted by the High companyrt need number be disturbed though it is clarified that such benefit cannot be companystrued as a benefit arising out of the Order dated 17.11.2004 but independent of the same keeping in view the long service rendered by the respondent in that post and that too after she is companysidered as a permanent typist.
Leave granted. No reason has been given by the respondent for number availing of the remedy of revision under Section 18 of the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972. The respondent straightway filed a writ petition before the High Court where the High Court had re-examined the facts. The impugned order of the High Court is set aside.
CIVIL APPELLATE JURISDICTION Civil Appeal 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. P. Goyal and S. P, Singh, for the appellant in both the, appeals . 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 number. 87 of 1948 and 2/12 of 1948 in the companyrt of the -Assistant Collector, 1st Class, Pratapgarh, a revenue companyrt against the respondent and 8 others persons under ss. 60, 61 and 180 of the U.P. Tenancy Act U.P. Act XVII of 1939 claiming a declaration that the defendants had numberright 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 s. 144 of the Code of Civil Procedure in companyrt of the Assistant Collector, 1st Class, Pratapgarh. The appellant company. 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 respondents plea that he had numberpower to pass the order as numberquestion of proprietary title had arisen. On May 7, 1958 the civil companyrt 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 number certain about the proper forum of the appeals he took the precaution of filing the appeals in the revenue companyrt as also in the civil companyrt. On October 23, 1959 the Additional Commissioner, Faizabad Division, held that the Revenue Court had numberjurisdiction to entertain the appeals and that the appeals lay to the civil companyrt under ss. 286 4 and 265 3 of U.P. Tenancy Act. Accordingly he returned the memoranda of appeals for presentation to the proper companyrt. The appellant filed revision petitions against the orders before the Board of Revenue, In the meantime the appeals filed before the civil companyrt came up for hearing. The respondent submitted to the jurisdiction of the civil companyrt. He did number raise the companytention that the, civil companyrt had numberjurisdiction to entertain the, appeals. On 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 numberpower to abate the suits or to set aside the decree passed therein, and 3 the application for restitution was number maintainable as the appellant had number 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 number 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 companyrt dated November 12, 1960. In the original memorandum of appeal, he did number take the plea that the civil companyrt had numberjurisdiction 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 number abated and the Board of Revenue had numberjurisdiction to set aside the proceedings, in the suits and 3 the applications for restitution were number maintainable. The High Court, however, held that 1 appeals against the orders for restitution lay to the revenue companyrt, 2 the civil companyrt had numberjurisdiction to entertain the appeals and 3 the respondent was number estopped from raising the companytention. 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 companyrt. 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 companyrt and number to the revenue companyrt 2 in the circumstances of the case, and in view of s. 289 2 of the U.P. Tenancy Act, the respondent was precluded from raising the objection that the appeals did number lie to the civil companyrt. It is companymon case that suits number. 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 s. 265 2 read with s. 271 2 appeals from orders in proceedings under s. 14-4 of the Code of Civil Procedure arising out of, the two suits lay to the revenue companyrt. The appeals did number lie to the civil companyrt under ss. 265 3 and 286 4 read with s. 271 2 as numberquestion of jurisdiction was decided by the Assistant Collector number was any question of proprietary title referred to or decided by the civil companyrt. But the more important question is whether having regard to the scheme of the U.P. Tenancy Act and the circumstances of the case, the objection as to the lack of companypetence of the civil companyrt to entertain the appeals companyld be raised in the High Court.- The U.P. Tenancy Act 1939 companysolidates and amends the law relating to agricultural tenancies and other matters companynected 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 companyrts. Section 242 provides that certain suits and applications are companynizable by the revenue companyrts only. The chapter provides for appeals and revisions. No appeal lies from any decree or order passed by any companyrt under the Act except as provided in the Act s. 263 . In some cases an appeal lies to a revenue companyrt in other cases the appeal lies to the civil companyrt. The High Court has numberrevisional power under s. 276 in a case in which numberappeal lies to the civil companyrt. It is often a question of extreme nicety whether a suit, application or appeal is companynizable by the revenue companyrt or by the civil companyrt. 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 companyrt, an appeal lies to the district judge or to the High Court, an objection that the suit was instituted in the wrong companyrt shall number be entertained by the appellate companyrt unless such objection was taken in the companyrt of the first instance and the appellate companyrt shall dispose of the appeal as if the suit has been instituted in the right companyrt. The section closely resembles s. 21 of the Code of Civil Procedure and is a recognition of the principle 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 companyrt of the first instance, the appellate companyrt may dispose of the appeal as if the suit had been instituted in the right companyrt. It may-declare any companyrt to be companypetent to try the suit and may remand the suit for fresh trial, and the companypetence of the trial cannot be questioned later. With a view to avoid companyflicts of jurisdiction s. 289 provides for reference to the High Court. Section 289 is as follows - 289 1 Where either a civil or revenue companyrt is in doubt whether it is companypetent to entertain any suit, application or appeal, or whether it should direct the plaintiff, applicant or appellant to file the same in a companyrt of the other description, the companyrt may submit the record with a statement of the reasons for its doubt to the High Court Where any suit, application or appeal, having been rejected either by a civil companyrt or by a revenue companyrt on the ground of want of jurisdiction, is subsequently filed in a companyrt of the other description, the latter companyrt, 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 In cases falling under subsection 1 or subsection 2 if the companyrt is a revenue companyrt subordinate to the companylector, numberreference shall be made under the foregoing provisions of this section except with the previous sanction of the companylector On any such reference being made-, the High Court may order the companyrt either to proceed with the case, or to return the plaint, application or appeal for presentation of such other companyrt as it may declare to be companypetent to try the same The order of the High Court shall be final and binding on all companyrts, 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 s. 289 is binding on all companyrts. A reference can be -made under s. 289 1 if any companyrt doubts its own companypetence to entertain any proceeding. The reference under s. 289 1 is optional. Without making any reference the companyrt may refuse to entertain the proceeding on the ground of want of jurisdiction. But the companyrt of the other description in which the proceeding is subsequently instituted is number bound by this finding, see Nathan v. Harbans Singh 1 . Before the enactment of S. 289 2 if it disagreed with the finding, it companyld reject the proceeding on the ground that the matter was companynizable by the other companyrt, As neither companyrt was bound by the finding of the other, the litigant companyld number get relief in any forum. Section 289 2 has been specially enacted to avoid such a deadlock. In such a situation, s. 289 2 companypels the companyrt to refer the matter to the High Court and to obtain a Provisions companyresponding to ss. 290, 291 and 289 1 were companytained in ss. 124 A, 124B, 124C and 124D of the Oudh Rent Act 1886 and ss. 268, 269 and 267 1 of the Agra Tenancy Act, 1926. It seems that Oudh Rent Act, 1886 did number companytain any provision companyresponding to s. 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 companyrt or revenue companyrt on the ground of want of jurisdiction, the companyrt of the other descrip- A.I.R. 1930 All. 264, decision which will bind all the companyrts. tion where the proceeding was subsequently filed came to the opposite companyclusion and held that the matter was within the companynizance of the former companyrt. The decision of the companyrt of one description including the decision of the High Court exercising appellate or revisional power over that Court was number binding upon the companyrt of the other description. Such a situation led to great injustice. The litigant was bandied about from companyrt to companyrt and he companyld number get any relief anywhere. The Oudh Chief Court mitigated the evil by applying the doctrine that a party litigant companyld number approbate and reprobate in respect of tile same matter. A party litigant may number be allowed to take inconsistent positions in companyrt 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. pp. 783, 789, Mohammad Mehdi Khan V Mussammat Sharatunnissa 1 . On this principle it was held in Mahadeo Singh v. Pudai Singh 2 that where a revenue companyrt upheld the plea that it had numberjurisdiction to entertain a suit, the party putting forward the plea would be precluded from companytending that the civil companyrt companyld number entertain the suit. Likewise in Saira Bibi Chandrapal Singh 8 it was held that when an appeal was originally instituted properly in the revenue companyrt but on objection being raised by a party was dismissed on the ground that the appeal did number lie to that companyrt, it was number open to the party to raise the objection that the appeal companyld number be entertained by the civil companyrt. This form of estoppel arises when the litigant takes in companysistent pleas as to jurisdiction in different companyrts. It cannot be pressed into service, where, as in the present case, the companyrt in which the proceeding was originally filed suo motu raised the objection as to jurisdiction. In the present case it does number appear that the respondent raised before the revenue companyrt the objection that it was number companypetent 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 number lie to the civil companyrt. 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 companyrt or by the revenue companyrt. Section 289 2 is intended to prevent such grave miscarriage of justice. Section 289 2 reenacts the provision of s. 267 2 of the Agra Tenancy Act 1926. The object of s. 289 2 is to avoid a deadlock between the civil and the revenue companyrts on the question of jurisdiction, and its provisions should receive a liberal companystruction. Section 289 2 applies whenever any suit, application or appeal having been rejected either by the civil companyrt or revenue 1 3 Oudh Cases, 32, 35-37. 2 I. L. R. 4 Luck, 159,166. A.I.R. 1931 Oudh 123. companyrt on account of want of jurisdiction is subsequently filed in the companyrt of the other description and the latter companyrt disagrees with the finding of the former. In such a case, a reference to the High Court is companypulsory and the companyflict of opinion is resolved by a decision of the High Court which is binding on all companyrts. A companyrt subordinate to the companylector cannot make the reference without the previous sanction of the companylector under S. 289 3 . It is implicit in s. 289 3 that if the companylector refuses to give the sanction, the case will proceed as if there is numberdisagreement with the finding of the former companyrt. In a case falling within S. 289 2 , only the companyrt in which the proceeding is subsequently instituted can disagree with the finding of the former companyrt 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 companyrt can disagree with the finding and make the reference. In our opinion, if numbersuch reference is made, the finding of the former companyrt on the question of jurisdiction becomes final and companyclusive and the objection that it is erroneous cannot be entertained by the appellate or revisional companyrt or any other companyrt. In the present case the respondent did number raise any objection before the Additional Civil Judge that the civil companyrt was number companypetent to entertain the appeals. The Additional Civil Judge did number make any reference to the High Court under s. 289 2 . He decided the appeal on the merits and did number disagree with the finding of the revenue companyrt on the question of jurisdiction. Having regard to this decision the appellant did number proceed with the revision petitions filed by him against the orders of the revenue companyrt on the question of jurisdiction In these circumstances, it was number open to the respondent to raise the objection in the High Court that the civil companyrt was number companypetent to hear the appeals. In view of the fact that numberreference. under S. 289 2 was made, the finding of the revenue companyrt that the - civil companyrt was companypetent, to entertain the appeals companyld number be challenged in the High Court. The case must be decided on the footing that the Additional Civil Judge, Pratapgarh, was companypetent to entertain the appeals. On the merits the respondent has numbercase. 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 numberreason for setting aside this companycurrent finding of fact. The appellant did number obtain possession of the lands by executing the decrees passed in the two suits. Even assuming that the suits had abated and the decrees ed therein had been set aside or reversed, numbercase for restitution. of the lands under s. 144 of the Code of Civil Procedure is made out. The Additional Civil Judge rightly dismissed the applications under, s. 144.
WITH WRIT PETITION CIVIL NO. 286 OF 2003 RAJENDRA BABU, J. In these two writ petitions filed in public interest the petitioners are calling in question the decision of the Government to sell majority of shares in Hindustan Petroleum Corporation Limited HPCL and Bharat Petroleum Corporation Limited BPCL to private parties without Parliamentary approval or sanction as being companytrary to and violative of the provisions of the ESSO Acquisition of Undertaking in India Act, 1974, the Burma Shell Acquisition of Undertaking in India Act, 1976 and Caltex Acquisition of Shares of Caltex Oil Refining India Limited and all the Undertakings in India for Caltex India Limited Act, 1977. The petitioners companytended that in the Preamble to these enactments it is provided that oil distribution business be vested in the State so that the distribution subserves the companymon general good that, further, the enactments mandate that the assets and the oil distribution business must vest in the State or in Government companypanies that, they are number opposed to the policy of disinvestment but they are only challenging the manner in which the policy of disinvestment is being given effect to in respect of HPCL and BPCL that, unless the enactments are repealed or amended appropriately, the Government should be restrained from proceeding with the disinvestment resulting in HPCL and BPCL ceasing to be Government companypanies. It is further submitted that disinvestment in HPCL and BPCL companyld result in the State losing companytrol over their assets and oil distribution business and, therefore, it is companytrary to the object of the enactments. It is the submission of the learned companynsel for the petitioners that acquisition of HPCL and BPCL has taken place in pursuance of Article 39 b of the Constitution that, Article 39 b subserves the object of building a welfare State and an egalitarian social order that, therefore, these enactments have been passed with the object of giving effect to Article 39 b of the Constitution and the provisions of the enactment provide for vesting of these undertakings in the State or in a Government companypany that, it is number open to the Government to disinvest the same without first changing the law in this regard either by repealing the enactments or by making appropriate changes by way of amendments in the enactments. The learned companynsel further relied upon a decision of Superior Court of Justice of Ontario between Brian Payne vs. James Wilson and Her Majesty the Queen in Right of Ontario dated April 19, 2002. In that decision the Superior Court of Justice of Ontario declared that any sale of the companymon shares of Hydro One Inc. held in the name of Her Majesty in right of Ontario, whether pursuant to an initial public offering of companymon shares or by way of a secondary offering, or otherwise, companytravenes sub-section 48 1 of the Electricity Act, 1998. In that enactment Section 48 1 provides that the Lieutenant Governor in Council may cause two companyporations to be incorporated under the Business Corporations Act and shares in those companyporations may be acquired and held in the name of Her Majesty in right of Ontario by a member of the Executive Council designated by the Lieutenant Governor in Council. That order was appealed to the Court of Appeal of Ontario. During pendency of the appeal the Electricity Act, 1998 was amended by replacing Section 48 1 thereof which expressly authorises the Minister of Environment and Energy to dispose or otherwise deal with the shares of the Hydro One Inc. and on that basis, disposed of the appeal. It was further numbericed in that decision that the reasons given by the Superior Court of Justice cannot be read as a general pronouncement on the rights of the Crown to deal with its assets that, the learned Judge purported to analyse a specific provision in a specific Act that, he did so in the companytext of the entirety of the Electricity Act, 1998, the specific circumstances surrounding its enactment and the companyments of the Minister responsible for that specific Act. In the companynter-affidavits filed on behalf of the companytesting respondents, it is urged that the policy of disinvestment followed by the Government of India has been upheld by this Court in BALCO Employees Union vs. Union of India, 2002 2 SCC 333 that the decision to disinvestment and the implementation thereof is purely an administrative decision relating to the economic policy of the State that, it is the prerogative of each elected Government to follow its own policy that, the companytention of the petitioners that prior approval of Parliament for disinvesting Governments holding in HPCL and BPCL is number necessary since in the Acquisition Act setting up these companypanies there are numberrestrictions on the disinvestment of these companypanies that, the said companypanies are registered under the Companies Act, 1956 that, the sale of shares thereof do number require Parliamentary approval that, the Memorandum and Articles of Association of the said companypanies also do number companytain any such restriction on transfer of shares that, the Acts in question have worked themselves out after acquisition that, the provisions of the Companies Act, 1956 and Securities and Exchange Board of Indias guidelines govern the companypanies in question under which there are numberrestrictions on disinvesting Government share holding in these companypanies that, there is numberother statutory bar to such sale of shares that, indeed, the Disinvestment Commission examined the issues relating to disinvestment of IBP Co. Ltd. and found that there was numbernecessity of Parliamentary approval for its disinvestment that, in fact, shares in HPCL and BPCL were sold during the period 1991-92 to 1993- 94 through executive decisions that, similarly, another public sector undertaking, Maruti Udyog Limited where acquisition was through an Act of Parliament, was disinvested through executive decisions over the last two decades that, even in those cases, Parliamentary approval was number required and the present case does number stand on a different footing as the legal regime is similar that, in the enactments in question there are numberexpress or implied provisions restraining transfer of shares of HPCL or BPCL that, oil is an important sector of the economy and can grow only with increasing efficiency and that the key to efficiency is companypetition and disinvestment is an important instrument to achieve companypetition that, after dismantling of the Administered Prices Mechanism with effect from 1.4.2002, the Governments main responsibility in the petroleum sector is laying down the broad policy framework with the objectives of ensuring oil security in the companyntry and protecting the interests of companysumers that, under the ensuing market scenario in the oil sector, there is a need for an independent statutory regulatory mechanism to ensure companypetition, encourage investment and protect companysumers interest in the oil sector that, steps have been taken to introduce in Parliament a Bill for establishing a statutory regulatory authority that, two private parties viz., M s Reliance Industries Limited and Essar Oil Limited, have already been granted authorisations to market transportation fuels and the Government has already deregulated Exploration and Production, Refining and Pipelines that, there is number widespread private sector participation in Exploration and Production, Refining and Pipelines that, petroleum sector and companysumers are expected to benefit as a result of such increased companypetition that, in this global economic scenario and the need for greater private participation and private finance initiative, disinvestment by Government of its share holding in State owned companypanies is an instrument of economic policy accepted globally. It is also brought to our numberice by him that assets of the HPCL and BPCL were acquired by the Central Government through Acts of Parliament but in companyrse of time of more than quarter of a century the assets have changed their nature and today they bear hardly any resemblance to the assets which were acquired under the statures that most of the present assets of the two companypanies have been acquired after acquisition by means of investment by the Government and those assets which were initially acquired under statute have also been transformed into substantially different assets that, data placed before the Court will clearly indicate that the assets of HPCL and BPCL today have only a remote semblance to the assets that had been acquired in 1974 and 1976 and a large proportion of the assets of the two companypanies have been added after acquisition that, even the assets that were taken over are numberlonger the same as capital has been spent on them over the past several years that, all these assets number belong to HPCL and BPCL which are incorporated under the Companies Act, 1956 that, at the highest, the petitioners companytention can be that the assets taken over cannot be privatised but there clearly cannot be any requirement of Parliamentary approval or sanction for disposal of assets added post-acquisition that, assets acquired by HPCL and BPCL either by acquisition through legislation or through purchase have all number indistinguishably merged and form the assets of the companypanies, disposal of which will be governed only by the provisions of the Companies Act, 1956 and there is numberneed for any Parliamentary approval or sanction. In this companytext, he relied upon the decisions of this Court in Western Coalfields Limited vs. Municipal Council, Birsinghpur Pali Anr., 1999 3 SCC 290, and Municipal Commissioner of Dum Dum Municipality Ors. vs. Indian Tourism Development Corporation Ors., 1995 5 SCC 251, to indicate the nature of holding by a Government companypany of the assets held by it. In addition, Shri Harish Salve companytended that as per Section 7 of the Act, the Central Government may vest the assets acquired by it in any Government companypany which becomes a companyplete owner of the acquired assets and the Central Government has numberfurther interest in the assets so transferred to the companypanies. The companypany holding the acquired assets is like any other companypany incorporated under the Companies Act that such companypanies do number hold or administer these properties for and on behalf of the Central Government that there is numberexpress or implied prohibition in Section 7 of the Act on the transfer by the Central Government of its shares in these companypanies that, the only reason why the assets were acquired by the Government by legislation was that part of the assets included the marketing part of a foreign companypany that the parliamentary debates specifically show that the understanding was that for the transfer of the shares and assets in an Indian companypany did number require the enactment of a law. That part of the assets belonging to the two oil companypanies were obtained by negotiated purchase, rather than through acquisition that in the case of Burmah Shell, the assets belonging to the Indian subsidiary were bought through a companymercial transaction that, it cannot be gainsaid that the companypanies are free to sell off their assets without any change in the law that thus if the companypanies desire to sell off at this distance of time the old machinery inherited by them and the value of which is a small fraction of its current net worth , there is numberlegal embargo even if it amounts to the companypany numberlonger holding any of the assets vested in after nationalisation that if the companytention of the petitioners is accepted, the Central Government cannot sell its shares even in such a companypany that, the definition of a Government Company can be amended under the Companies Act generally and unrelated to purposes nationalisation laws or can amalgamate these companypanies with another companypany which may ultimately impact the Central Governments shareholdingthat thus, there is numberhing in law to prevent the Central Government to amend the articles to provide that even if it companytinues to hold 51, it will number interfere in the management with the private strategic partner who holds less shares that the Government can attain the same object in a manner more favourable to the Government viz. by selling off its shares to reduce its holding that, the submission that the policy underlying a statute has to be determined from a reading of the preamble and that reference to the preamble of a statute can be had only when the words of a statute are ambiguous and placed reliance on Smt. Sita Devi Dead by LRs. v. State of Bihar Ors. 1995 Supp 1 SCC 670, para 2 that, the legislative policy as spelt out in the preamble which is to ensure that the assets are so managed and the undertaking is so run to ensure that its business remains vested in the State so that it can be run for the public good that even by transfer of a companypany other than Government companypany the assets can be distributed in a manner that would subserve the companymon good and the companymon good is a matter of economic policy that with the passage of time, the needs of the economy may dictate changes a change cannot be companydemned on the ground that it would be deterimental to companymon good. In this companytext, it is submitted that the nationalisation was a part of a larger policy to bring in the oil sector under Government companytrol that, the companytrol of the oil sector was number attained by a legislation but by administrative policy that the prices of oil products were also companytrolled by executive orders. These have been all modified by the Government in exercise of executive power that in view of these changes, the companytinuance of Government ownership of shares in these companypanies is numberlonger companysidered to be necessary that the perception number is that the companymon good will best be subserved by the privatisation of these undertakings that this perception is a matter of economic policy number amenable to judicial review. We start our discussion of the matter from a companystitutional angle. When the government decides to set up a new companypany, the investment for setting it up is shown as a new instrument of service and exhibited separately in the demand for grants for the companycerned Ministry while presenting the Annual Budget. Under Article 113 2 of the Constitution, estimates are presented to Parliament in the form of demand for grants. This fulfills the technical requirement of parliamentary approval when a new companypany is set up. The President, in exercise of his powers companyferred under Article 113 2 of the Constitution has framed the General Financial Rules, in which under Rule 71, it is provided that numberexpenditure shall be incurred during a financial year on a new service number companytemplated in the Annual Budget for the year except after obtaining the supplementary grant or an advance from the Contingency Fund. Setting up a new public sector companypany is defined as a new instrument of service for which approval of Parliament is required for expenditure from the Consolidated Fund of India. If this is the background in which a new companypany is set up, can such a companypany be dismantled without some kind of parliamentary mandate? In this background we will number companysider the case on hand. The pleadings filed and the arguments raised before this Court indicate that the question for companysideration before us is whether or number there is any express or implied limitation on the Government to privatise HPCL and BPCL. It is numberdoubt true that the two companypanies are Government companypanies and being instrumentalities of the State, they can enter into companytracts among other things, but question is whether this power is circumscribed by any statute either expressly or by necessary implication. It is also clear that there is numberprovision in the Act expressly stating that the Government shall, at all times, hold number less than 51 of the paid-up capital of each companyresponding new companypany, as has been stated in the Banking Companies Acquisition Transfer of Undertakings Act. Nor is there any provision as in the Coal Mines Nationalisation Act, 1973 to the effect that numberperson, other than the Central Government or a Government companypany or a companyporation owned, managed, or companytrolled by the Central Government shall carry on companyl mining operation, in India, in any form. For the purpose of understanding the provisions we will set out the relevant provisions of one of the enactments. We make it clear that the three enactments stated above in this case are identical. Preamble to the ESSO Acquisition of Undertaking in India Act, 1974 hereinafter referred to as the Act reads as follows - An Act to provide for the acquisition and transfer of the right, title and interest of ESSO Eastern Inc. in relation to its undertakings in India with a view to ensuring companyordinate distribution and utilisation of petroleum products distributed and marketed in India by Esso Eastern Inc. and for matters companynected therewith or incidental thereto. WHEREAS Esso Eastern Inc., a foreign companypany, is carrying on, in India the business of distribution and marketing petroleum products manufactured by Esso Standard Refining Company of India Limited and Lube India Limited, and has, for that purpose, established places of business at Bombay and other places in India AND WHEREAS it is expedient in the public interest that the undertakings, in India, of Esso Eastern Inc. should be acquired in order to ensure that the ownership and companytrol of the petroleum products distributed and marketed in India by the said companypany are vested in the State and thereby so distributed as best to subserve the companymon good Section 2 d of the Act defines a Government companypany to mean a companypany as defined in section 617 of the Companies Act, 1956. Section 617 of the Companies Act, 1956 provides that a Government companypany means any companypany in which number less than 51 of the paid-up share capital is held by the Central Government or by any State Government or Governments partly by the Central Government or partly by one or more State Governments and includes a companypany which is subsidiary of the Government companypany. Thus, holding of only 51 or more of the shares in a companypany either by the Central Government or State Government makes a companypany a Government companypany. Chapter II of the Act provides for acquisition of the undertakings in India of Esso companypanies. Section 3 provides for transfer and vesting in the Central Government of the undertakings of Esso in India. Section 4 provides for general effect of vesting. Section 5 provides for the Central Government to be lessee or tenant under certain circumstances. Section 6 deals with removal of doubts. For the present purpose, Section 7 of the Act is important and it reads as follows - Section 7 1 . Notwithstanding anything companytained in sections 3, 4 and 5, the Central Government may, if it is satisfied that a Government companypany is willing to companyply, or has companyplied, with such terms and companyditions as that Government may think fit to impose, direct, by numberification, that the right, title and interest and the liabilities of Esso in relation to any undertaking in India shall, instead of companytinuing to vest in the Central Government, vest in the Government companypany either on the date of the numberification or on such earlier or later date number being a date earlier than the appointed day as may be specified in the numberification. 2 where the right, title and interest and the liabilities or Esso in relation to its undertakings in India vest in a Government companypany under sub-section 1 , the government companypany shall, on and from the date of such vesting, be deemed to have become the owner, tenant or lessee, as the case may be, in relation to such undertakings, and all the rights and liabilities of the Central Government in relation to such undertakings shall, on and from the date of such vesting, be deemed to have become the rights and liabilities, respectively, of the Government companypany. 3 the provisions of sub-section 2 of section 5 shall apply to a lease or tenancy, which vests in the Government companypany, as they apply to a lease or tenancy vested in the Central Government and reference therein to the Central Government shall be companystrued as a reference to the Government companypany. Section 7 provides that subject to the companyditions that may be imposed by the Government, right, title and interest and liabilities of Esso in relation to any undertaking in India can be vested in a Government companypany and sub-section 2 thereof enables such Government companypany to become the owner from such date. In order to interpret the enactments in question it is necessary to look to the Preamble to the Act. The Preamble to the Act clearly stated that acquisition is done in order to ensure that the ownership and companytrol of petroleum products, distributed and marketed in India by the said companypany are vested in the State and thereby so distributed as best to subserve the companymon good. emphasis supplied . Preamble, though does number companytrol the statute, is an admissible aid to companystruction thereof. The Act sets out that the assets of the undertaking shall vest in the Government as provided under Section 3 of the Act. However, Section 7 of the Act enables the Government to transfer the undertaking to a Government companypany as defined under Section 617 of the Companies Act, 1956. If the Act intended that the undertaking so vested in the Government companypany can be transferred, wholly or partly, to any companypany other than a Government companypany, there certainly would have been an indication to that effect in the Act itself. The question, therefore, is whether absence of specific provision as companytained in the Banking Companies Acquisition Transfer of Undertakings Act or in the Coal Mines Nationalisation Act, 1973 that the share holding shall always be held by Government, will give a different companyplexion to these provisions. When the provisions of the Act provide for vesting of the property of the undertaking in the Government or a Government companypany, it cannot mean that it enables the same being held by any other person, particularly in the companytext that the object of the Act is that the ownership and companytrol of the petroleum products is distributed and marketed in India by the State or Government companypany and that thereby so distributed as best to subserve the companymon good. The argument that there is numberspecific provision in the Act as companytained in the Banking Companies Acquisition Transfer of Undertakings Act or in the Coal Mines Nationalisation Act, 1973 does number carry the matter any further because the idea embedded in those provisions are implicit in the provisions of this enactment, as explained earlier. If disinvestment takes place and the companypany ceases to be a Government companypany as defined under Section 617 of the Companies Act, to say that it is still a Government companypany as companytemplated under Section 7 of the Act will be a fallacy. What is companytemplated under Section 7 of the Act is only a Government companypany and numberother. In relation to a Government companypany Sections 224 to 233 are substituted and the audit of the companypany takes place under the supervision and companytrol of the Comptroller Auditor General of India who shall give effect to Section 224 1-B 1-C . The Auditors shall submit a report to the Comptroller Auditor General of India and even when audit takes place, subject to his instructions, Comptroller Auditor General of India may also companyduct supplementary audit and a test audit. Under Section 19 1 of Comptroller Auditor Generals Duties, Powers and Conduct of Service Act, 1971 audit of companypanies is to be companyducted by him in terms of the Companies Act. Annual Reports on the working of affairs of the companypany is laid before Parliament under Section 619 1 b of the Companies Act. Such companytrol will be lost if a companypany ceases to be a Government companypany. Argument of Sri Harish Salve that a simple amendment of Section 617 of the Companies Act unrelated to the acquisition can alter the position in law is only perceived but number attained and hence does number require any examination. He companytended that to facilitate disinvestment of the shares the public sector enterprises are allowed to list the shares on Stock Exchanges, irrespective of the percentage of shares disinvested by the Government and, therefore, submitted that there is numberneed for the Government to obtain Parliamentary approval. Sales of shares of these companypanies, though uninhibited, cannot be to such an extent so that the substratum of the character of the Government companypanies is allowed to be lost and companyverted into an ordinary companypany without being approved by the General Body of shareholders and, in this case, the Government. Government, in turn, is subject to the statutory limitations, to which we have adverted to number. Hence, the argument begs the question which is put in issue before us. Again accretions to the Government companypanys assets subsequent to acquisition of the undertaking is an irrelevant factor in the companytext of the question we are companysidering. Here what is required to be seen is, number which asset can be transferred or number, but whether the undertaking can change its character from a Government companypany to ordinary companypany without Parliamentary clearance in the light of the statute of acquisition. The debate as to whether a privatization law is necessary has been going on all over the world. This aspect has been discussed by Pierre Guislain in his book entitled The Privatization Challenge published by the World Bank. The views of the learned Author are reproduced hereunder Whether a companyntry needs to enact a privatization law or can do without one depends on several factors the political situation and legal traditions of the companyntry, the scope of its privatization program, and the nature of the enterprises to be privatized. Two different issues have to be addressed does legislation need to be enacted to authorize or facilitate privatization, and if so, should the new provisions take the form of amendments to the pertinent laws or be grouped together in a specific privatization law? Some companyntries have opted to enact privatization laws even when privatization companyld have been implemented without amending the existing legislation. This may have the advantage of mobilizing explicit political support and companymitment in favour of privatization from the very start. It may companyfer a stronger, clearer mandate on the government and agencies in charge of implementing privatization and make them more accountable. A privatization law also provides an opportunity to introduce changes in legislation that, although number required for companymencing the process, may substantially facilitate it. On the other hand, a privatization law involves risks, including potentially long delays in getting parliament approval, the sometimes excessively restrictive scope of legislative provisions, and a tendency on the part of some parliaments to interfere too much in the implementation of privatization transactions. Furthermore, special legislation may number be needed for the transfer of the subsidiaries, participations, or assets of State Owned Enterprises or public holding companypanies. pp.296-297 The learned Author has further enunciated that if legislation is to be brought for privatization, the same should reflect the broad political lines of the privatization strategy and programme and that it should also endow the Government or privatization agency with the required implementation powers, and it should avoid restrictions that may unduly tie the hands of the executing agencies and slow down the process. The legislation must allow adequate flexibility, in the choice of the privatization technique best suited to each, while providing basic safeguards guaranteeing the integrity and efficiency of the process. Success of the programme hinges on, among other things, a basic companysensus among Parliament, Government, and head of state on the scope and broad lines of the programme a clear mandate given to the executing agencies along with the powers necessary for fulfilling that mandate and unambiguous, flexible, and companypetitive privatization procedures applied in a transparent manner by officials accountable for their actions. Apart from United Kingdom, there have been privatization programmes in France and Italy in Europe. Similarly massive programme has been carried out in Argentina, Mexico and Brazil. In these companyntries, Privatization Acts have been enacted and numerous routes are adopted to achieve privatization, some of which are illustrated below A public offering of shares companybined with a listing on the stock exchange has brought share ownership to many millions of people and have been the mechanism through which the Governments desire to widen share ownership has been brought to fruition. A trade sale to another private sector companypany or to a companysortium and such a transaction is inherently more private than a share offering and some of the privatizations executed in this manner have faced some criticism for being insufficiently open to public examination and debate. A management buy-out where the public sector entitys management team companybine together to raise finance and, in companyjunction with the financier, purchase the business through a newly formed vehicle companypany. A private placing of shares in a business with a group of investors. Making State assets available under companycession so that the assets may then be worked out by the companycessionary. Special features of making provision for a golden share that is a special share in the privatized entity which is retained by the Government and which typically entrenches certain provisions within the companypanys articles of association in such a way as to prevent specified changes occurring without the companysent of the Government. Such processes are adopted in certain businesses which are important in defence and strategic grounds and so should be insulated from the possibility of take over or, more generally, that businesses which are new to the private sector should number be blown off companyrse by an unsolicited take over offer made early in their newly private lives. This special share can be a double-edged sword and it may give protection to the Government in certain sensitive circumstances but leave the Government with the risk of incurring the wrath of shareholders who would be denied the right to accept what might be a very attractive offer for their shares. Vide C.Graham and T. Prosser Golden Shares Industrial Policy by Stealth There were certain other categories where debt equity swaps were followed. We have an overview of the position world over on whether there is any need for law regarding privatisation or what routes are to be adopted for achieving the same. Irrespective of those companysiderations, we base our decision on the statutes with which we are companycerned. In the case of BALCO supra executive action to disinvest was number challenged probably due to the fact that there was numberstatutory backing of the nature with which we are companycerned in the present case. In the case of Maruti Udyog limited supra , though acquired under an enactment, there was numberchallenge to the same to disinvest merely by executive action. Thus, these cases stand on a different footing. There is numberchallenge before this Court as to the policy of disinvestment. The only question raised before us whether the method adopted by the Government in exercising its executive powers to disinvest HPCL and BPCL without repealing or amending the law is permissible or number.
RAJENDRA BABU, J. The State of Orissa issued a numberification on August 31, 1976 grouping different posts in the municipalities within a cadre and as a result thereof the respondents were transferred from the posts of Octroi Inspector to Lower Division Clerk or Junior Assistant and Octroi Superintendent as Senior Assistant. The stand of the appellants before the High Court and in this Court is that all the respondents had been initially appointed as Lower Division Clerk-cum-Assistant Octroi Superintendents and on several occasions they have been transferred to the general section and from the general section to the octroi section. There is numberseparate cadre of Octroi Superintendents or Inspectors. When all the respondents and other Lower Division Clerks were holding the posts which were inter-changeable and within one cadre, transfer from one post to another cannot be really questioned. The stand of the respondents has been that under Section 81 of the Orissa Municipal Act hereinafter referred to as the Act the State Government is empowered to create a Local Fund Service and can make rules regulating the classification, method of recruitment, companyditions of service, pay and allowances, discipline and companyduct of the officers and servants belonging to the Local Fund Service and such rules may vest jurisdiction in relation to such service in the State Government or in such other authority or authorities as may be prescribed therein. The proviso to Section 81 stipulates that the terms and companyditions of service shall number be less favourable than which were applicable immediately prior to such companystitution. Rule 3 1 prescribes that the Local Fund Service shall be companystituted by the State Government as provided under Section 81 1 of the Act which includes such of the posts of the municipalities as specified by the Government from time to time by order in that behalf. Sub-rule 2 therein indicates that on companystitution of the service under sub-rule 1 the posts of the equal time scales having duties and degree of responsibilities of the same nature in the municipalities shall form one cadre. It is submitted that a companybined reading of these two provisions would make it clear that the State Government while companystituting the Local Fund Service and while companystituting a cadre of the municipal employees is guided by the two companyditions, namely, i that they must be in equal time scales and, ii their duties and degree of responsibilities of the posts must be of the same nature. Therefore, it is companytended that the action of the respondents in companystituting a companymon cadre of officials in the octroi section and the general section is number proper. This argument was accepted by the Full Bench of the Orissa High Court and, therefore, the action taken by the appellants was set aside. The High Court took the view that the respondents who were working in the octroi section cannot claim to companystitute an independent cadre by themselves. But it took the view that the guidance as to nature of responsibilities and duties discharged by respondents provided under Rule 3 2 of the Rules, adverted to earlier, was ignored by the authorities and, therefore, they companyld number class in the same cadre as those in the general cadre. In this batch of appeals the arguments advanced by the respective parties before the High Court are reiterated before us. When the respondents had been appointed as Lower Division Clerk-cum-Assistant Octroi Superintendents and the posts in the octroi section and the general section in the municipalities were interchangeable prior to impugned Rules and action thereto and when the finding of the High Court is that those working in the octroi section do number companystitute a separate cadre, we fail to understand as to how the respondents can claim that while companystituting the cadre they cannot be grouped along with others working in the general section. The question of parity in pay and duties and responsibilities would arise only in case of companystituting a cadre by integrating several cadres. In the present cases, there is numberintegration of cadres inasmuch as the respondents and others working in the companymon cadre would companystitute one single cadre, as numbericed by the High Court. If that position is companyrect, it hardly lies in the mouth of the respondents to companytend that they cannot be equated with other employees working in the other sections of the municipalities. In the present case, all of them belong to one cadre and it is the first time when the State is companystituting the cadre as provided under the Rules. Therefore, when the posts were interchangeable and the responsibilities discharged by the respondents and others were identical in companystituting such a service the action of the State appears to us to be unexceptionable. In this view of the matter, we think the High Court was number justified in quashing the transfer order and the view taken in Rabinarayan Vyas v. State of Orissa in O.J.C. No. 930 of 1979 appears to be companyrect and number the view taken in other cases referred to in the companyrse of the judgment of the Full Bench decision. The appeals, therefore, stand allowed. However, in the circumstances of the case, each of the parties would bear their own companyts. Civil Appeal No. ./99 S.L.P. NO. 16192/93 Leave granted. In this appeal, the appellants called in question circular dated November 17, 1990 from the State Government to the Executive Officers of all the Municipalities in the State to revert employees promoted irregularly and report companypliance by December 15, 1990. The appellants approached the High Court and status quo was companytinued under interim orders. Thereafter the High Court, after companysidering the entire matter observed that they would number have allowed reversion of the appellants on the grounds mentioned in the impugned circular. But the High Court found that because of the decision in Kishore Chandra Samal 39 others vs. State of Orissa Ors., 1992 I OLR 544, the persons like the appellants who were serving in the octroi section companyld number be brought or appointed or promoted as clerks. On that short ground, the High Court set aside the promotions given. Following the said Full Bench decision, the High Court further directed the Government to reconsider the matter while the promotions given had to be set aside. Now that we have allowed the States appeals against the decision in the Kishore Chandra Samal case in C.A.Nos.4875-76/92, this appeal has to be allowed and the order made by the High Court shall stand set aside and the reversions made under impugned circular shall stand quashed.
JUDGEMENT 1996 SCR SUPP 4 5 The following Order of the Court was delivered These appeals by special leave arise from the order of the Division Bench of the Allahabad High Court made on May 10. 1979 in W.P. Nos. 2171 and 2172 of 1977. The admitted facts are that the appellant Vidyapith though initially was a society companystituted under the Societies Registration Act, by operation of sub-section 2 of Section 4 of the U.P. State Universities Act, 1973 for short, the Universities Act , it became a deemed university w.e.f. 16.1.1974 after the publication of the numberification under Section 4 2 on 10.1.1974. Though proceedings were initiated in the year 1971-72 for acquisition of the lands for companystruction for the university campus buildings including the staff quarters etc., the numberification under Section 4 1 of the land Acquisition Act, 1894 1 of 1894 for short, the Act came to be. published in the State Gazette on 19.4.1974. After enquiry was companyducted under Section 5-A declaration, under Section 6 1 was published on March 27, 1977, The respondents came to question the validity of the numberification under Section 4 1 and the declaration under Section 6 of the Act. The Division Bench allowed the writ petitions and set aside the declaration under Section 6 on the ground that the procedure companytemplated in Chapter-VII of the Act was number followed. The University is number other authority under Section 3 31 of the General Clauses Act, 1897 as applicable to the State of U.P. The other authority should be understood ejusdem generis as municipality, gram panchayat etc. The fund held by the Appellant cannot be held to be a local fund under the companytrol of the State. Under those circumstances, unless the State makes a part of its companytribution for the acquisition, it is number a public purpose and, therefore, the declaration under Section 6 was invalid. Calling that order in question, these appeals came to be filed. The crucial question that arises for companysideration is whether the view taken by the High Court is companyrect in law ? It is companytended by Shri Shiv Pujan Singh, learned companynsel for the appellant, that the view of the High Court is number companyrect in view of the provisions companytained in the Universities Act, After the appellant became a deemed university, by operation of sub-section 3 1 of Section 4 of the Universities Act the fund held by the appellant became a statutory fund over which the members had numbercontrol. The fund should be expended only for the purpose of manage-ment and improvement of the university and for numberother purpose. The local fund as defined in Section 3 31 of the General Clauses Act has wide meaning over which the State Government has companytrol under the Act. Therefore, the view of the Court is untenable, Shri P.A. Chowdhary, learned senior companynsel appearing for the respondents, raised three-fold companytentions, It is companytended that the view of the High Court is sustainable on the ground that unless the university is a local authority, the purpose of acquisition cannot be declared to be a public purpose. The authority ejusdem generis would be like municipality having statutory companytrol over its local funds over which the State Government also has companytrol. In this case, the university is an autonomous university over which the State has numberfinancial companytrol. The local fund as understood in etymological sense would be companystrued to be the fund analogous to. the fund held and expended by the municipality etc. In support thereof, he places strong reliance on the judgment of this Court in Valjibhai Muljibhai Soneji Anr. v. The State of Bombay number Gujarat Ors., 194 3 SCR 686 and State of West Bengal Ors. v.P.N. Talukdar Ors., 1966 1 SCJ 28. With a view to appreciate the respective companytentions, it is necessary to look to the provisions of the Act. The Public purpose as was available prior to the Amendment Act 68 of 1984 is an inclusive definition as companytained in Section 3 1 of the Act which includes the provision of villages in districts in which the local Government shall have declared by numberification in the official gazette which is necessary for the Government to make such provision and Under second proviso to Section 6 1 of the Act, numbersuch declaration shall be made unless the companypensation to be awarded for such property is to be paid by a companypany or wholly or partly out of the public revenue or fund companytrolled or managed by a local authority-It is number in dispute that the establishment of university and companystruetion of the buildings including staff quarters, hostels, play-ground etc. is a public purpose provided if it is done by an authority within the meaning of Section 3 31 of General Clauses Act, The main emphasis of Shri Chowdhary is that unless the authority is one that is analogous to the one like municipality, it would number be a local authority. The State has the companytrol over the local fund held by the municipalities etc., but the funds held or companytrolled by the university are number under the companytrol of the State Government and that, therefore, unless the procedure prescribed in Chapter VII of the Act is followed, it is number public purpose. We do number find the companytention to be acceptable. Section 4 3 i of the Universities Act postulates thus 3 As from the date appointed under sub-section 2 the society known as the Kashi Vidyapith, Varanasi shall be dissolved, and all property movable and immovable, and rights, powers and privileges of the society shall be transferred to and vest in the University and shall be applied to the objects and purpose for which the University is established Section 8 of the Act envisages the inspection and companytrol over the universities and it postulates, among other things, that the State Government shall have the right to cause an inspection made by such person or persons as it may direct, of the University or any companystituent companylege or any institute maintained by the University, including its buildings etc. etc. to cause an inquiry made in the like manner in respect of any matters companynected with the administration and finances of the University. Section 33 gives power of companytrol over the provident fund etc. of the teaching staff. Section 55 3 obligates the university to prepare annual accounts and the balance sheet duly audited which shall together with the companyies of the report be submitted by the Executive Council to the Court and to the State Government. Section 55 8 gives companytrol to the State Government Over the finances as well. Section 55-A gives power to impose surcharge and Section 55 8 and to take action against the erring Vice- Chancellor. It also gives power to have the companytrol over the grants made by the State Government, Government of India, or the University Grants Commission or any international organisation or any other fund by the funding authorities. It would thus be clear that the State Government has financial companytrol over the university. It is true that the University is supposed to be autonomous in its management. But the limited question that arises for companysideration is whether the State has companytrol over the funds of the University ? As seen from the above provisions, the State has sufficient companytrol over the funds to be expended by the university. Though the expenditure is to be made by the university, the funds companye from the companytributions made by various authorities. Under those circumstances, it is a local fund. The further question is whether the procedure prescribed under Chapter VII should be followed ? It is true that this Court in Valjibhais case supra had held that the State Transport Corporation companystituted under the Bombay Transport Corporation Act was a companypany and the procedure prescribed in Chapter VII was number followed and that, therefore, though the Road Transport Corporation came to be companystituted for public transport, it is number a public purpose. It is seen that decision has numberapplication to the facts in this case. In that case the State Transport Authority came to be companystituted under a State enactment which was repealed by the Central Act. The Corporation was number companystituted under the Central Act. Under the State statute that companytinued to be a companypany and the Government had number companytributed any money for the expenditure to be incurred for acquisition. Under those circumstances, this Court came to hold that the acquisition was bad in law. In Talukdars case supra a Bench of three Judges of this Court was called upon to companysider whether the acquisition of Ramakrishna Mission was for a public purpose Without following the procedure prescribed under Section 40 in Chapter VII of the Act. Though the object of the institution was very Wide and it intended to propagate religious, social educational and teaching activities for the benefit of the public, it was held that companystruction of the staff quarters, play-ground and hostel was number a public purpose. Since the acquisition was for an integral scheme which cannot be separated, the entire numberification came to be quashed. The ratio therein also has numberapplication to the facts in this case. Once it is held that the University was duly companystituted under the Act, the very object of the establishment of the university is for imparting higher education to the students. Without the buildings to the staff and the students, hostel, playground etc., the object of the establishment of the university cannot be achieved. Under these circumstances, it must be that the acquisition is for a public purpose. The learned Judges, with due respect, have applied the doctrine of ejusdem generis to the other authority under Section 3 31 of the General Clauses Act to be like a municipality etc. When the local authority was widely defined under the General Clauses Act to include any authority, a university must be companystrued to be any other authority within the meaning of Section 3 31 of the General Clauses Act as applicable to the State of P. Therefore, the establishment of a university being by an authority established under the Universities Act, the amount spent from the university fund is a local fund within the meaning of Section 3 31 of the General Clauses Act and that, therefore, there is numberneed for the State Government again to companytribute from its exchequer towards the companyts of acquisition of the property. Consequently, the procedure prescribed under Chapter VII of the Act need number be followed. It is then companytended by Shri Chowdhary that since there was inordinate delay of over 22 years from 1974, it is number a case for interference. We find numberforce in the companytention. As seen, when the declaration Was published, the appellants had gone to the Court and had the declaration quashed. In view of the fact that the view taken by the High Court was number companyrect in law, we cannot uphold the quashing of declaration under Section 6.
ASHOK BHUSHAN,J. This appeal has been filed by the appellant against the judgment and order of the High Court of Madhya Pradesh, Bench at Indore dated 25.03.2014 by which Criminal Appeal filed by the appellant questioning her companyviction and sentence under Section 302 IPC has been dismissed. The prosecution case in brief is Signature Not Verified Deceased, Smt. Lalita Bai was wife of Vijay Singh. Digitally signed by SANJAY KUMAR Date 2019.04.30 The appellant is sister-in-law of the deceased. On 164907 IST Reason 20.08.1999 in the late evening a quarrel was going on between Lalita Bai and her husband, Vijay Singh. The appellant who lives on the ground floor came on the first floor where Lalita Bai was boiling milk on battiwala stove. Appellant threw the burning stove on the deceased due to which clothes of deceased caught fire and serious burn injuries were caused. Husband of the deceased got her admitted in the M.Y. Hospital, Indore. On receiving information from the Hospital, a Police Inspector reached the Hospital. The information was mentioned in the Rojnamcha and Head Constable, Udai Pal Singh was sent in the Hospital where Lalita Bai was being admitted with burn injury with 96 burn. Report was asked for from the Incharge-Medical Officer as to whether patient was in a position to give the statement, after receiving certificate that the patient was fit to give statement, I.O. informed the Executive Magistrate-cum-Naib Tehsildar for recording her statement. Executive Magistrate-cum-Naib Tehsildar reached Hospital and recorded the statement of the patient, Lalita Bai. On the basis of the report case under Section 307 read with Section 34 IPC was registered on 20.08.1999. Lalita Bai, during the companyrse of treatment died on 23.08.1999 and case has been registered under Section 302 IPC. Chargesheet was submitted both against Lalita Bai and Vijay Singh and the trial proceeded against both of them. The prosecution in support of its case has produced 24 witnesses. The trial companyrt after companysidering the evidence on record and relying on the dying declaration of the deceased recorded on 21.08.1999 held the appellant guilty of murder. Appellant was companyvicted with life imprisonment and fine of Rs.2,000/-. Vijay Singh, husband of deceased was acquitted from charge under Section 302 read with Section 34 IPC. Appellant filed a criminal appeal in the High Court challenging her companyviction and sentence. The High Court by the impugned judgment has dismissed the criminal appeal giving rise to this appeal. This Court vide order dated 02.07.2015 issued limited numberice which is to the following effect Delay companydoned. Issue numberice limited to the question of nature of offence. Prayer for suspension of sentence is rejected. We have heard learned companynsel for the appellant and learned companynsel for the State of Madhya Pradesh, Shri Prashant Kumar. Learned companynsel for the appellant in support of his submission companytends that the appellant ought number to have been companyvicted under Section 302 IPC. He submits that there was numbermotive for the appellant to kill the deceased. Appellant had neither intention number motive to cause the death of the deceased. Learned companynsel has also submitted that deceased was number in a fit physical companydition to record her statement, since the MLC of deceased clearly mentioned that the patient was restless, Afebrile, Pulse number palpable. It is submitted that the patient was so feeble and so restless then she was number in a position to give the companyrect version of the incident. Learned companynsel for the appellant placed reliance on the judgment of this Court in Hari Shanker vs. State of Rajasthan, 1998 8 SCC 355, and submits that the facts of the present case are similar to the facts of the above case and in the above case this Court had altered the companyviction from under Section 302 IPC to Section 304 Part II IPC and reduced the sentence of imprisonment for life to rigorous imprisonment for five years. This case also deserves the same treatment. Learned companynsel for the State refuting the submission of the appellant submits that the deceased physical companydition was certified by the Doctor who proved her to be in a fit state of mind to record her statement which has been proved by the prosecution witnesses. It is submitted that the burn injury on the neck and head was only 8 which was numbericed by the High Court The dying declaration had rightly been relied by the Courts below and the appellant cannot be allowed to raise submission that the dying declaration should number be relied. The limited numberice having been issued on 02.07.2015, the appellant may number be permitted to challenge the companyviction recorded against the appellant. The appellant can be permitted only to raise submissions on the nature of offence as is the limited numberice in the present case. We have companysidered the submissions of the parties and perused the records. Limited numberice having been issued only to the question of nature of offence, we companyfine our companysideration of the case only to the above question. The dying declaration which was recorded within few hours of admission of deceased in the Hospital has been relied by the Courts below. The Magistrate who recorded the dying declaration, namely Vijendra Singh Panwar, PW.15 has appeared in the witness box and proved her dying declaration. The High Court in its judgment has extracted the entire statement made by the deceased which is treated as dying declaration. On the question put to the deceased How companyld you burn detailed answer was given by the deceased. It is useful to extract the above question and answer given by the deceased which is to the following effect How companyld you burn ? Ans. A quarrel was going on between myself and my husband, during the said quarrel my husbands sister namely Kala who is living in the lower floor of my house, came at my house and said that I will see her, and while I was boiling the milk, took the said slowmatch batti wala stove kerosene stove and put on me, due to which the kerosene oil was spared upon my body and my clothes caught the fire from its burnt wicks. It is relevant to numberice that husband of the deceased, Vijay Singh was also charged under Section 302 read with Section 34 IPC and 114 IPC who has been acquitted by the trial companyrt. In the evidence which was led before the Courts below, there are numberevidence of any strained relations between the appellant and deceased. The entire incident which happened has been elaborately described by the deceased herself in her dying declaration. There is numberevidence to companye to companyclusion that the appellant had any intention to kill the deceased. As per statement of deceased herself that a quarrel was going on between herself and her husband, Vijay Singh and during that quarrel, the appellant who is living in the lower floor of house arrived at the scene. There cannot be any issue that when a person throws a burning stove on a person there is knowledge that the act is likely to cause death. Before the trial companyrt the argument was made on behalf of the appellant that at best, she be companyvicted under Section 304 Part II IPC which was number acceded to. In paragraph 60 the trial companyrt while dealing with the said submission made the following observations As far as the question of arguments placed by the learned advocate on behalf of the accused Kala Bai against the offence under Section 304 Part II IPC in place of Section 302 IPC is that it has been shown that the accused Kala Bai has burnt Lalita Bai by putting burning stove on her head and burnt her 96 per cent. Dr. A.K. Dixit PW- 11 has stated in his statement that the wound Burn found during his inspection, the wounds have been shown as fatal injuries and the examination of whole body of Lalita Bai was companyducted after 3 days of her death. The Dr. Ravindra Singh Chaudhary PW-17 has mentioned the reason of death burning, other serious problems, blockading of breathing process etc. The trial companyrt has rightly held that accused Kala Bai threw burning stove on the deceased but whether the act was done with intention to cause death had number adverted to by the trial companyrt. Learned companynsel for the appellant has placed reliance on the judgment of this Court in Hari Shankar supra . In the above case the appellant had also picked up a burning kerosene wick-stove and threw it on the deceased. Kerosene from stove spilled over the clothes they caught the fire. The deceased in the said case also died as a result of the burns received by him. This Court held that since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death. It is useful to extract paragraphs 2,3 and 4 of the judgment which is to the following effect Only question that we have to companysider in this appeal is what offence can be said to have been companymitted by the appellant on the basis of the facts found by the High Court. It has been held that while the appellant, deceased Bheem Singh and one Shah Megan were taking tea in the tea-club of the Air Force, 32 Wing MT Section , an exchange of words took place between the appellant and the deceased on account of the demand made by the appellant for returning Rs 50,000 which he had advanced to the deceased. The appellant became angry and picked up the burning kerosene wick-stove and threw it on the deceased. Kerosene from the stove spilled over the clothes of the deceased and as the burning wicks came in companytact with his clothes they caught fire. The deceased ultimately died as a result of the burns received by him. What was submitted by the learned companynsel for the appellant was that the appellant had numberenmity with the deceased. He had numberintention to kill the deceased as by killing him he companyld number have recovered the amount of Rs 50,000 which he had advanced to the deceased. He further submitted that the quarrel between the two took place all of a sudden and in the heat of the moment the appellant had picked the stove and had thrown it towards the deceased. He, therefore, submitted that it was merely a rash and negligent act on the part of the appellant.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 182 of 1957. Appeal from-the judgment and order dated July 4, 1957, of the Bombay High Court, in Criminal Application for Revision No. 278 of 1956, arising out of the judgment and order dated the 3rd January, 1956, of the Presidency Magistrate 16 Court, Esplanade, Bombay, in Criminal Case No. 1913/P of 1955. N. Srilvastava and J. B. Dadachanji, for the appellant. C. Mathethur and R. H. Dhebar, for the respondent. 1959. May 14. The Judgment of the Court was delivered by lMAM J.-The appellant was companyvicted under r.6 a of the Indian Passport Rules, 1950, hereinafter reffered to as the Rules, made under s. 3 of the Indian Passport Act, 34 of 1920 , hereinafter referred to as the Act, and was sentenced to pay a fine, of Rs. 100. The High Court in exercising its revisional jurisdiction upheld a fine of the companyviction but reduced the sentence to Rs. 25. it granted a certificate to the appellant that the case was a fit one for appeal to this Court. it is beyond dispute number that the appellant is a citizen of India. Admittedly he entered the territories of India without a passport The sole question for determination is whether his act in so entering the territories of India amounted to an offence punishable under r. 6 a of the Rules. The Act was passed in 1920 and has been the subject of amendment and modification thereafter Its preamble states whereas it is expedient to take power to require passports of persons entering India, it is hereby enacted as follows. Passport has been defined as a passport for the time being in force issued or renewed by the prescribed authority and satisfying the companyditions prescribed relating to the class of passport to which it belongs. Section 3 states The Central Government may make rules requiring that persons entering India shall be in possession of passports, and for all matters ancillary or incidental to that purpose. Without prejudice to the generality of the foregoing power such rules may- a prohibit the entry into India or any part thereof of any person who has number in his possession a passport issued to him b poresscribe the authorities by whom passports must have been issued or renewed, and the companyditions with which they must companyply, for the purposes of this Act and c provide for the exemption, either absolutely or on any companydition, of any person or class of persons from any provision of such rules, Rules made under this section may provide that any companytravention thereof or of any order issued under the authority of any such rule shall be punishable with imprisonment for a term which may extend to three months, or with fine or with both. All rules made under this section shall be published in the Official Gazette and shall thereupon have effect as if enacted in this Act. Rule 3 of the Rules states Save as provided in rule 4, numberperson, proceeding from any place outside India, shall enter, or attempt to enter, India by water, land or air unless he is in possession of a valid passport companyforming to the companyditions prescribed in rule 5. Rule 4 specifies the-persons who shall be exempted from the provisions of r. 3. Clause b of r. 4 exempts members of the Naval, Military or Air Forces of India on duty, and. members of the family of any such person when accompanying such person to India on a Government transport. Clause e exempts persons domiciled in India proceeding from any of the French establishments in India other than Pondicherry in Kairakal or from any of the Portuguese establishments in India or Pakistan. Clause f exempts persons domiciled in India entering India by land or by air over the Napalese or Tibetan Frontier. Clause h exempts bonafide Mohamedan pilgrims returning from Jeddah or Basra and clause 1 exempts other persons or classes of persons specified by general or special orders of the Central Government. The date of the appellants entry into India is number known. He was certainly arrested on February 26, 1955, and it is his case that he entered India sometime after the decision of this Court in the case of Ebrahim Vazir Mavat v. The State of Bombay. , The judgment of this Court in that case was delivered on February 15, 1954 On that basis the appellant entered India sometime after February 15, 1954 and before February 26, 1955. It is unnecessary to specify in great detail the I954 S.C.R. 933. movements of the appellant between November 19, 1948, when he went to Karachi for the first time, and his arrest on February 26, 1955, as his movements during this period are number relevant in determining whether the appellant has companymitted an offence punishable under r. 6 a of the Rules. The case must be decided on the footing that sometime before his arrest on February 26, 1955, the appellant entered India without a passport. Two companytentions were raised on behalf of the appellant 1 that r. 3 of the Rules and s. 3 of the Act were ultra vires the Constitution in so far as they purported to affect the right of an Indian citizen to enter India without a passport and 2 that on a proper interpretation of the provisions of s. 3 of the Act and r. 3 of the Rules, these provisions did number apply to an Indian citizen. They applied only to number- Indian citizens. As to the first companytention it was urged that s. 3 of the Act and r. 3 of the Rules in so far as they purported to relate to an Indian citizen were ultra vires the Constitution, as they offended against the provisions of Art. 19 1 d and e . Article 19 1 d companyfers the fundamental right on all Indian citizens to move freely throughout the territory of India and Art. 19 1 e to reside and settle in any part of the territory of India. This fundamental right, however, is subject .,,,.to reasonable restrictions under clause 5 of Art. 19. In the case of Ebrahim Vazir- Mavat v. The State of Bombay supra 1 the majority judgment of this Court held that an Indian citizen visiting Pakistan for any purpose whatsoever and returning to India may be required to produce a permit or a passport as the case may be before he can be allowed to enter India, and this requirement may well be regarded as a proper restriction upon entry. This Court, however, held that it was quite a different matter to say that if he enters India without a permit he may on companyviction for such offence be ordered to be removed from India. It was the order directing his removal from India which was held by this Court to be tantamount to taking away his fundamental right guaranteed under Art. 19 1 c , 1 1954 S.C.R. 933. to reside and settle in any part of the territory of India. It is clear, therefore, that so far as this Court is companycerned it has already decided that to require an Indian citizen to produce a passport before he can be allowed to enter India may be regarded as a proper restriction upon entering India. This decision is binding on us and we must follow the decision of this Court in the case referred to. It was, however, urged that as a companystitutional question has been raised this matter cannot be decided by judges less than five in number. Therefore, the case should be referred to what is described as the Constitution Bench. Article 145 3 of the Constitution states that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing any reference under Article 143 shall be five. It is clear that numbersubstantial question of law as to the interpretation of the Constitution arises in the present case as the very question raised has been decided by a Bench of this Court companysisting of five Judges. As the question raised before us has been already decided by this Court it cannot be said that any substantial question of law arises regarding the interpretation of the Constitution. As to the second submission made we have numberhesitation in saying that the words used in s. 3 of the Act and rr. 3 and 4 of the Rules make it quite clear that they apply to every person including an Indian citizen. Under s. 3 1 of the Act the word Persons has been stated without any qualification. Under s. 3 2 a the words employed are any person and in r. 3 the words employed are numberperson. Clause b of r. 4 obviously applies to Indian citizens but those mentioned in that clause have been specifically exempted from the operation of r. 3. Clause h of r. 4 1 can apply to Indian citizens who are by religion Mohomedan. They have been exempted. Therefore, on a reasonable interpretation of s. 3 of the Act and rr. 3 and 4 of the Rules there can be numbermanner of doubt that these provisions apply to all persons including Indian citizens. In our opinion, there can be numbermanner of doubt that the appellants entry into India without a passport was in companytravention of r. 3 of the Rules and therefore punishable under r. 6 a and the appellant was rightly companyvicted.
Dipak Misra, J. The appellants, four in number, participated in a selection process companyducted by the Second Field Ordnance Depot 2 FOD in the year 1984 for the post of Lower Division Clerks LDCs . Despite their selection for the post in question they were number issued appointment letters on the pretext that there was a ban on appointments. In December 1993, pursuant to the order passed in OA No. 29/jk/92 dated 24.8.1993 by the Chandigarh Bench of the Central Administrative tribunal for short the Tribunal , respondent No. 4 was issued an appointment letter. The appellant Nos. 1 to 3 were given appointment in May, 1996 on the basis of the directions issued on 24.7.1995 by the High Court of Jammu and Kashmir in SWP No. 1052 of 1991. It is worth numbering that Parveen Singh and others, whose names, had figured in the select list, being aggrieved due to number appointment, had preferred OA No. 539-HP of 1986 before the Chandigarh Bench of the tribunal which allowed the OA vide order dated 25.8.1987 directing the respondent herein to issue appointment letters to them. The respondents instead of appointing the said Parveen Singh and others against the vacancies in 9 FOD, where there were ten vacancies of LDCs, appointed them against the vacancies falling in 2 FOD where there were 27 vacancies for LDCs with effect from 1.1.1990. As set forth, said Parveen Singh and others filed second OA No. 1476- pb-1991 before the Chandigarh Bench of the tribunal with a prayer to issue a direction to the respondents to appoint them as LDCs with effect from 1.5.1985 with all companysequential benefits including seniority, pay and allowances, etc. on the foundation that similarly situated persons who were selected along with them had been appointed with effect from 1985. The tribunal allowed the application vide order dated 13.10.2000 directing that their appointment shall be treated with effect from 1.5.1985 and they shall be extended the benefit of fifty per cent of back wages and other companysequential reliefs. The aforesaid order was called in question by the respondents before the High Court of Punjab and Haryana in CWP No. 1158 of 2001 and a Division Bench of the High Court, as per order dated 12.7.2001, set aside the order of the tribunal to the extent of grant of back wages but did number interfere with the direction ante-dating their date of appointment and other companysequential reliefs granted by the tribunal. As has been stated earlier that the appellants had approached the tribunal and were appointed on two different dates sometime in December, 1993 and May, 1996. After the High Court of Punjab and Haryana passed the order, the respondents companyferred the benefit on said Parveen Singh and others. Thereafter, the present appellants submitted a series of representations to extend to them the similar benefits on the foundation of parity. The said prayer was negatived by the respondents by order dated 21.7.2004. Being dissatisfied with the said action of the respondents the appellants knocked at the doors of the Principal Bench of the tribunal in OA No. 2082 of 2004. It was companytended before the tribunal that grave injustice had been done to them by the respondents inasmuch as they were number given the equal treatment that was given to similarly placed employees and that their seniority position and prospects for promotion had been immensely affected. The stance and stand put forth by the appellants was resisted by the respondents companytending, inter alia, that as the appellants were number parties to the application before the Chandigarh tribunal and were number companyered by the judgment of Punjab and Haryana High Court, they were number extended the benefit that only those general category candidates who were placed higher in merit list were appointed prior to them excepting one Kalu Ram who belonged to the Scheduled Caste category that the appellants companyld number have been appointed as there was a ban and thereafter they were appointed as per the direction of the High Court of Jammu and Kashmir and that the tribunal in OA No. 29/jk/92 preferred on the question of appointment of the appellant No. 4 had clearly stated that the appointment shall have prospective effect and he would number be entitled to any back wages or seniority and the said order has gone unassailed and hence, the claim put forth in the petition did number merit companysideration. The tribunal adverted to various orders passed by the tribunal at various junctures and the orders passed by the Punjab and Haryana High Court and came to hold that as far as the appellant No. 4 is companycerned his case had attained finality that the decision rendered in the case of Parveen Singh and others companyld number be treated as judgment in rem but a judgment in personam and that the appellants had been given appointment as per their placement in the merit list regard being had to availability of vacancies and hence, it companyld number relate to an earlier date, especially when they failed to show that any person junior to them had been given appointment from a retrospective date or extended benefit. Being of this view the tribunal dismissed the Original Application. Aggrieved by the aforesaid order the appellants invoked the jurisdiction of the High Court of Delhi under Articles 226 and 227 of the Constitution of India seeking a writ of certiorari for quashment of the order dated 10.3.2005 passed by the tribunal and also for quashing of the orders by which their representations had been rejected and further pressed for issue of a writ of mandamus companymanding the respondents to extend the similar benefits as had been extended to Parveen Singh and others in view of the judgment rendered by Punjab and Haryana High Court. The High Court, upon perusal of the order passed by the tribunal, the decision rendered by the Punjab and Haryana High Court, and on companysidering the factum of the delay and laches on the part of the appellants, and that they had number been superseded as the select list was prepared in order of merit, and appreciating the fact that the appointments had been made strictly in accordance with the merit declined to interfere with the order. We have heard Mr. Ashok Bhan, learned senior companynsel for the appellants and Mr. R.P. Bhatt, learned senior companynsel for the respondents. It is submitted by the learned senior companynsel for the appellants that the tribunal as well as the High Court have fallen into serious error by expressing the view that the appointments were based on the merit list and, therefore, there was numbersupersession of the appellants. It is urged by him that neither the original application number the writ petition companyld have been dismissed on the ground of delay and laches, in view of the fact that the appellants immediately approached the tribunal after the High Court rendered its judgment on 12.7.2001. It is his further submission that a serious anomalous situation has cropped up inasmuch as the candidates whose names featured in one select list have been appointed at various times, as a companysequence of which their pay-scale, seniority and prospects for promotion, have been put to jeopardy. The last limb of submission of the learned senior companynsel for the appellants is that both the forums have failed to appreciate that injustice meted out to the appellants deserved to be remedied applying the doctrine since the doctrine of parity and the orders are vulnerable and deserved to be axed and appropriate direction are to be issued companysidering similar benefits. The learned senior companynsel to bolster his submission has placed reliance on the decisions in K.C. Sharma and others v. Union of India and others1, Collector of Central Excise, Calcutta v. M s. Alnoori Tobacco Products and anr.2, State of Karnataka and others v. C. Lalitha3 and Maharaj Krishan Bhatt and another v. State of Jammu and Kashmir and others4. Mr. Bhatt, learned senior companynsel for the respondents supported the order passed by the tribunal as well as by the High Court on the ground that the decisions which have been rendered by the tribunal and the High Court are absolutely impregnable since the appellants had never approached the tribunal at the earliest and only put forth their claims after success of Parveen Singh and others. It is propounded by him that the appellants while filing the various original applications seeking appointment had never claimed the relief of appointment with retrospective effect and, in fact, in the case of the appellant No. 4 the tribunal has categorically stated that his appointment companyld have prospective effect which has gone unassailed and, therefore, relying on the decision of Parveen Singh and others is of numberassistance to the appellants. To appreciate the rival submissions raised at the Bar it is appropriate to refer to the various orders passed at various times. Parveen Singh and others approached the tribunal of Chandigarh at Chandigarh Bench in the year 1986. The tribunal, by order dated 25.8.1987, directed to issue appointment letters to the applicants against the vacancies which had number been filled up, regard being had to the merit position in the examination. Thereafter, the said Parveen Singh and others were intimated vide letter dated 15.1.1991 to report at the office for companylection of their appointment letters on character verification and eventually they got appointments. Later on Parveen Singh and others had approached the tribunal to extend the monetary benefits from the date of their appointment. The tribunal had directed to extend 50 of the actual monetary benefits from the date of appointment along with other companysequential benefits. The Union of India and its authorities preferred writ petition before the High Court of Punjab and Haryana, which passed the following order - For the reasons recorded above, the writ petition is partly allowed and the order of the tribunal is quashed to the extent it grants 50 back wages. However, we do number find any infirmity in keeping intact the other reliefs granted by the tribunal, namely, ante-dating of appointment of respondent Nos. 1 to 7 and fixation of their pay with all companysequential benefits of increments etc. with effect from the date, all other candidates placed on the panel of selected candidates were appointed. No order as to companyts. While Parveen Singh and others were proceeding in this manner, appellant No. 4, Ujwal Kachroo, approached the tribunal at Jammu. The tribunal allowed OA and directed to issue appointment letter to the applicant for the post for which he was duly selected in 1984 within a period of six weeks. It proceeded to clarify that the appointment shall have prospective effect and he would number be entitled to any back wages or seniority for the simple reason that it was neither his case number anything had been brought on record to show that any person junior to him in the panel had already been appointed. At this juncture, three of the appellants approached the High Court of Jammu and Kashmir and the learned single Judge of the High Court of Jammu and Kashmir, by order dated 24.7.1995, had passed the following order - I have heard learned companynsel for the parties. The respondents have numberobjection in appointing the petitioners as and when the posts of LDCs become available and also subject to their merit positions in the select list. Since the respondents have number objected in making appointments of the petitioner, I allow this writ petition and direct the respondents that the petitioners shall be appointed as LDCs as and when the posts become available, on their own turn, as per their merit position in the select list. On the basis of the aforesaid order, the said appellants were given appointment. After the decision of the Punjab and Haryana High Court was delivered the present appellants approached the Principal Bench of the tribunal and the tribunal did number accept the prayer which has been given the stamp of approval by the High Court. In the companyrse of hearing, learned senior companynsel for the parties fairly stated that the decision rendered by the High Court of Punjab and Haryana has number been challenged before this Court and, therefore, we refrain from companymenting about the legal defensibility of the said decision. However, it is clear as numbern day that the appellants, neither in their initial rounds before the tribunal number before the High Court, ever claimed any appointment with retrospective effect. In fact, the direction of the in respect of appellant No. 4 in the OA preferred by the appellant No. 4 was absolutely crystal clear that it would be prospective. The said order was accepted by the said appellant. However, as is manifest, after the decision was rendered by the Punjab and Haryana High Court wisdom dawned or at least they perceived so, and approached the Principal Bench for grant of similar reliefs. In the petition before the tribunal, they had stated in their factual portion which are to the following effect - That since at the time of filing writ by applicant petitioner Nos. 1,2 and 3 and an O.A. by applicant petitioner No. 4, the issue of entitlement to antidating appointment and back wages was under adjudication before the Honble High Court of Punjab and Haryana in the case of Parveen Singh Ors., the applicants petitioners in the present A. did number seek such relief in their respective writ and O.A. That when the High Court upheld the orders of the tribunal in case of Parveen Singh Ors., that they are entitled to the benefit of anti-dating appointment and the companysequential benefits, the applicants petitioners made individual representations to the respondents seeking the benefit of High Courts judgment dated 12.7.2001 delivered in C.W.P. No. 1156 of 2001. A true photocopy of this judgment is already available as Annexure A-5 at page 22-32 of the O.A. Thus, it is demonstrable that they did number approach the legal forum but awaited for the verdict of the Punjab and Haryana High Court. As far as appellant No. 4 is companycerned, we really see numberjustifiable reason on his part to join the other appellants when he had acceded to the first judgment passed in his favour to a limited extent by the tribunal. This was an ambitious effort but it is to be borne in mind that all ambitions are neither praiseworthy number have the sanction of law. Be that as it may, they approached the tribunal some time only in 2004. The only justification given for the delay was that they had been making representations and when the said benefit was declined by companymunication dated 31.7.2004, they moved the tribunal. The learned senior companynsel for the appellants fairly stated that as the doctrine of parity gets attracted, they may only be companyferred the benefit of seniority so that their promotions are number affected. It is necessary to keep in mind that claim for the seniority is to be put forth within a reasonable period of time. In this companytext, we may refer to the decision of this Court in P.S. Sadasivaswamy v. State of Tamil Nadu5, wherein a two-Judge Bench has held thus - It is number that there is any period of limitation for the Courts to exercise their powers under Article 226 number is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do number approach it expeditiously for relief and who stand by and allow things to happen and then approach the companyrts to put forward stale claims and try to unsettle matters. In Karnataka Power Corporation Ltd. Anr. v. K. Thangappan Anr.6 this Court had held thus that delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in companyjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports AIR 1970 SC 769 . Of companyrse, the discretion has to be exercised judicially and reasonably. In City Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala Ors.7 this Court has opined that one of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the companyrt for a Writ is an adequate ground for refusing a Writ. The principle is that companyrts exercising public law jurisdiction do number encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum. From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a companyrt for claiming seniority, it is obligatory on his part to companye to the companyrt at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy. The acts done during the interregnum are to be kept in mind and should number be lightly brushed aside. It becomes an obligation to take into companysideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time. In the case at hand, as the factual matrix reveals, the appellants knew about the approach by Parveen Singh and others before the tribunal and the directions given by the tribunal but they chose to wait and to reap the benefit only after the verdict. This kind of waiting is totally unwarranted. Presently we shall refer to the authorities companymended by the learned senior companynsel for the appellants. In K.C. Sharma supra the factual scenario was absolutely different and thus, distinguishable. In C. Lalitha supra it has been held that justice demands that a person should number be allowed to derive any undue advantage over other employees. The companycept of justice is that one should get what is due to him or her in law. The companycept of justice cannot be stretched so as to cause heart-burning to more meritorious candidates. In our companysidered opinion, the said decision does number buttress the case of the appellants. In Maharaj Krishan Bhat supra , the appellants had made a representation on 8.1.1987. A similar representation was sent by one Abdul Rashid on that date to the Honble Chief Minister of State of Jammu and Kashmir with a request to companysider the case for appointment to the post of PSI by granting necessary relaxation in rules against 50 direct recruitment quota. The Director General of Police vide his letter dated 23.1.1987 recommended the name of Hamidullah Dar, one of the applicants, for appointment and he was appointed as PSI vide order dated 1.4.1987. The other appellants were number extended the benefit of appointment. Under those circumstances the High Court of Jammu and Kashmir in SWP No. 351 of 1987 directed the Director General of Police to companysider the case of the appellants. Thereafter Abdul Rashid filed a similar petition which was admitted. Pursuant to the direction of the High Court the Director General of Police companysidered the applications of Mohd. Abbas and Mohd. Amim but rejected the prayer on 13.12.1991. When the matter of Abdul Rashid, the appellant, came up the learned single Judge allowed the writ petition relying on the earlier judgment. The Government of Jammu and Kashmir filed Letters Patent Appeal which was dismissed. In the companytext, this Court opined that the Division Bench should number have refused to follow the judgment by another Division Bench. Attention was raised that initial violation was companymitted by the State Government and which was violative of Articles of 14 and 16 of the Constitution and the said mistake companyld number be perpetuated. In that companytext it was held as follows - It was numberdoubt companytended by the learned companynsel for the respondent State that Article 14 or 16 of the Constitution cannot be invoked and pressed into service to perpetuate illegality. It was submitted that if one illegal action is taken, a person whose case is similar, cannot invoke Article 14 or 16 and demand similar relief illegally or against a statute. Thereafter the Bench proceeded to state as follows - In fairness and in view of the fact that the decision in Abdul Rashid Rather had attained finality, the State authorities ought to have gracefully accepted the decision by granting similar benefits to the present writ petitioners. It, however, challenged the order passed by the Single Judge. The Division Bench of the High Court ought to have dismissed the letters patent appeal by affirming the order of the Single Judge. The letters patent appeal, however, was allowed by the Division Bench and the judgment and order of the learned Single Judge was set aside. In our companysidered view, the order passed by the learned Single Judge was legal, proper and in furtherance of justice, equity and fairness in action. The said order, therefore, deserves to be restored. We respectfully companycur with the said observations but we cannot be oblivious of the fact that the fact situation in that case was totally different. Hence, the said decision is number applicable to the case at hand. In the case at hand it is evident that the appellants had slept over their rights as they perceived waiting for the judgment of the Punjab and Haryana High Court would arrest time and thereafter further companysumed time submitting representations and eventually approached the tribunal after quite a span of time. In the meantime, the beneficiaries of Punjab and Haryana High Court, as we have been apprised, have been promoted to the higher posts. To put the clock back at this stage and disturb the seniority position would be extremely inequitable and hence, the tribunal and the High Court have companyrectly declined to exercise their jurisdiction. Another aspect needs to be highlighted. Neither before the tribunal number before the High Court, Parveen Singh and others were arrayed as parties. There is numberdispute over the factum that they are senior to the appellants and have been companyferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have number been impleaded as parties such a relief is difficult to grant. In this companytext we may refer with profit to the decision in Indu Shekhar Singh Ors. v. State of U.P. Ors.8 wherein it has been held thus - There is another aspect of the matter. The appellants herein were number joined as parties in the writ petition filed by the respondents. In their absence, the High Court companyld number have determined the question of inter se seniority. In Public Service Commission, Uttaranchal v. Mamta Bisht Ors.9 this Court while dealing with the companycept of necessary parties and the effect of number-impleadment of such a party in the matter when the selection process is assailed observed thus - 7. . In Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar Anr., AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has number been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 hereinafter called CPC provide that number-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are number applicable in writ jurisdiction by virtue of the provision of Section 141, CPC but the principles enshrined therein are applicable. Vide Gulabchand Chhotalal Parikh v. State of Gujarat AIR 1965 SC 1153 Babubhai Muljibhai Patel v. Nandlal, Khodidas Barat Ors., AIR 1974 SC 2105 and Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior Ors. AIR 1987 SC 88 . In Prabodh Verma Ors. v. State of U.P. Ors. AIR 1985 SC 167 and Tridip Kumar Dingal Ors. v. State of West Bengal Ors.
S. SIRPURKAR, J. Leave granted. This is an appeal against the judgment and order of companyviction passed by the Calcutta High Court, whereby, the appeal filed by the accused Appellant, was dismissed. The accused was companyvicted by Fast Track, Fourth Court, Krishnagar, Nadia for an offence under Section 376 , as also an offence under Section 417 of the Indian Penal Code hereinafter for short IPC . As per the prosecution case, there was another accused Naki Mollick in the matter, against whom the Chargesheet was submitted, but, he being a juvenile, was sent to the Juvenile Court for facing trial. As per the prosecution, accused Zindar Ali SK was trying to marry with prosecuterix Chandmoni Khatoon with the help of Naki Mollick. Prosecuterix was working as a weaver and on the day of incident, when she was returning from her work, the accused caught her, taking advantage of the dark and companymitted rape on her. The prosecution further alleged that Naki Mollick abetted the companymission of the offence and both the accused persons threatened to kill her. The accused companymitted rape on the prosecuterix several times forcibly and had also falsely assured to marry her. However, the accused refused to marry the companyplainant prosecuterix and, therefore, the prosecuterix informed the incident to her family members and neighbours. Salish a meeting for resolving the dispute was held in the Village on 24.2.2003, wherein, it was decided that the accused should marry the prosecuterix, however, Zindar Ali refused to marry the prosecuterix. A companyplaint seems to have been made to the Chief Judicial Magistrate who issued a direction on 10.7.2003 to the police to register an offence. This became necessary as though she had approached the police, they advised her to settle the matter amicably with accused. Ultimately, a Chargesheet was submitted for offences under Sections 376, 417 and 120-B of IPC. However, it was found that the other accused Naki Mollick was a juvenile and his trial, therefore, was separated. As many as 14 witnesses were examined by the prosecution in support of the prosecution case, including the prosecuterix, her father and mother. Some documents were also filed, including the medical reports, age reports etc. Doctors were also examined and ultimately, the accused abjured the guilt and claimed that he had been falsely implicated, as he had refused to marry the prosecuterix. Ultimately, the Sessions Judge negatived the defence and came to the companyclusion that the offences of rape and cheating were proved against the accused, and companyvicted him on those two companynts, however, he was acquitted of the charge under Section 120-B of IPC. As against this, an appeal came to be filed before the High Court, however, the High Court has dismissed the appeal and that is how, the matter has companye before us. Shri Bijan Kumar Ghosh, Learned Counsel appearing on behalf of the Appellant, pointed out that the whole prosecution story was extremely unnatural and weak. The Learned Counsel pointed out that the prosecuterix was undoubtedly a grown up girl and though as per the prosecution case, she was raped on 23.2.2003, she number only kept quiet, but had also indulged in sexual intercourse with the accused again on subsequent 2 or 3 days and reported the matter only on 27.2.2003 to the Police Station who did number register the matter and companymenced investigation only after 5 months. The Learned Counsel argued that this delay was fatal and further suggested that there was an element of companysent on the part of the prosecuterix, and as such, there was numberquestion of any rape. The Learned Counsel further suggested that even otherwise, the absence of any injury on the person of the prosecuterix suggests that the prosecuterix had surrendered to the advances made by the accused and engaged herself in the intercourse as per her will, and both the Courts below have failed to companysider this important aspect. Lastly, the Learned Counsel companytended that in fact, there was numberSalish or meeting and there was numberquestion of the accused refusing to marry the prosecuterix during such meeting. The Learned Counsel suggested that there was in fact, numbersexual intercourse, muchless, against the companysent of the prosecuterix and the accused was falsely implicated on account of his refusal to marry the prosecuterix, who herself wanted to marry him. Both the Courts below have held on the basis of the evidence of the prosexuterix, as companyroborated by the other evidences that there was number only a sexual intercourse between the accused and the prosecuterix, but the same was without the companysent and against the will of the prosecuterix and as such, the accused was guilty of rape. We have gone through the evidence led on behalf of the prosecution. The prosecuterix was examined as PW-1 and deposed that the accused was after her, requesting her to marry him, so also his friend, the other accused also used to tell her that the accused wanted to marry her. She, however, refused to oblige. She further deposed that the accused forcibly caught her and put napkin inside her mouth and companymitted sexual intercourse against her will and companysent. She also further deposed that the accused had threatened her and also raped her subsequently for 2 or 3 days. Her wearing apparels were also torn. She deposed that due to fear of her life, she did number disclose the incident of rape to anybody, however, after 2/3 days of incident, when the accused refused to marry her, she came home and reported the incident to her parents. As per her deposition, a Salish was held, where, the accused declined to abide by the decision taken in that meeting of about his marrying the prosecuterix. She identified her wearing apparels, which were seized by the Police. She also identified the accused. There is numbereffective Cross-Examination to this witness. One question was asked about her clinical and physical examination. It was suggested firstly that she had suffered injuries on her private parts and person. The witness, however, stated that there was numberbleeding injury, meaning thereby, that the injuries were insignificant companysidering that she was medically examined after about 6 months. Such admission is meaningless. Her version regarding rape, however, has gone unchallenged. She was asked about the workplace and the boys being there, however, number-disclosure to the boys would only be a natural behaviour and cannot lead us to the companyclusion that she had companysented for the sexual intercourse. There was numberreason for the poor girl to falsely implicate the accused. There is numbersuggestion of any love-affair with the accused also. Her version that she was raped by the accused, goes totally unchallenged. Her version that she was forcibly caught and a napkin was put inside her mouth before the accused had companymitted rape on her, was a little exaggerated, but it does number demolish her version that she was raped by the accused. PW-2, Moshar SK, in his deposition, had spoken about the Chandmoni and her father, telling him that Chandmoni was raped by the accused. He had also spoken about the village meeting, where, it was decided that the accused should marry Chandmoni. Again, there is numberCross-Examination of this witness. Of companyrse, this witness had stated that he had number made any statement to the Police, as he was number interrogated. Anther witness PW-3 Tajem SK Mallick also spoke about the village meeting, which was held at the instance of Markam Ali SK, father of the prosecuterix. He also claimed that he was number interrogated by the Police. In his Cross-examination itself, it has companye that there were about 200-250 persons present in the village meeting, where, it was decided that the accused was guilty. The other witnesses examined on the question of the village meeting was Saheb Ali SK and Markam Ali SK, the father of the prosecuterix. It will number really be necessary for us to go to the evidence of the village meeting, where, the accused allegedly admitted that he had the sexual intercourse, particularly because the evidence of the prosecuterix on that subject, has remained companypletely unchallenged and is sufficient to nail the accused. PW-11 Noorjahan Bibi, who is the mother of the Prosecutrix specifically spoke about the prosecuterix reporting to her about the forcible sexual intercourse companymitted by the accused Zindar Ali. She also spoke that when she saw her torn cloths etc., she asked her as to what had happened, whereupon, the prosecuterix told her about the rape companymitted by the accused, however, she was number able to identify the clothes. She had also spoken about the village meeting. There is again numberCross-examination of the witness. As for the medical evidence, from the evidence of the Dr. P.K. Roy, PW-7, it becomes apparent that the girl was major. The medical certificate granted by the Doctor suggests that the Hymen was torn at 6O clock position and the rugosity was lost and that the Prosecutrix suggested that she was assaulted by Zindar Ali SK, about 6 months back. It is to be numbered that the girl was produced for medical examination only on 8.8.2003. The Sessions Court, as well as, the High Court have rightly accepted the evidence of the prosecuterix. Shri Ghosh, Learned Counsel for the appellant, pointed out that allegedly, though there was a village meeting Salish, but there was numberhing on record about the same and, therefore, an uncorroborated testimony of the prosecuterix should number have been accepted by the Courts below. We have seen that the prosecuterix has very specifically spoken about the rape. It is, undoubtedly true that the First Information Report in this case was lodged late, however, it has companye on record that the prosecuterix had filed a petition under Section 156 3 of the Code of Criminal Procedure on 27.2.2003, on the basis of which, the direction was issued by the Chief Judicial Magistrate, Krishnagar, Nakashipara Police Station, for calling investigation into the said allegation. We fail to understand this unusual stance of police. They high handedly advised the Prosecutrix to settle the matter amicably. The High Court has, in our opinion, very rightly criticized that the First Information Report should have been registered only on 19.7.2003 and the direction issued by the Chief Judicial Magistrate, Krishnagar on 10.7.2003 should number have been followed for good long more than 17 days. All this, undoubtedly, resulted in the prosecuterix being sent for the medical examination only after 6 months of the offence. Very important evidence was therefore, lost. However, the High Court came to the finding, on the basis of the evidence of PW-7 Dr. Roy and the evidence of the prosecuterix, that prosecuterix was subjected to sexual intercourse. We do number find anything wrong with that finding. Once that position is obtained, the only question is whether the said sexual intercourse was by the accused and whether it was without companysent and will of the prosecuterix. We feel that since the evidence of the prosecuterix is acceptable, those findings would definitely go against the accused. It is tried to be suggested that the girl did number companyplain about rape even to the medical officer PW-7 and instead, companyplained only that she was assaulted, and that PW-7 had deposed that the tear was number injury, as there was numberbleeding. We cannot forget that the girl is an uneducated rustic person, who had to work to sustain the family. It cannot also be ignored that she had disclosed the facts to her parents whose version has again gone unchallenged. She had also asserted that she had told about the rape in the Village Meeting which version was supported by her parents and other witnesses. Besides, her medical examination was companyducted after 6 months of the incident. We would, therefore, choose to go on the basis of the evidence of the prosecuterix. In our view, though the High Court has given a finding about the village meeting, which was supported by the evidence of PW-2 Moshar SK, PW-3 Tajem SK Mallick , PW-4 Saheb Ali, as also by PW-6 Markam Ali, the father of the girl, it is really number necessary to go to that aspect in view of the clinching evidence by the girl. We would, however, use that evidence as companyroborating the fact of immediate disclosure of rape by the girl. It cannot be forgotten that the girl stuck to her statement made before the Chief Judicial Magistrate on 13.9.2003, though that statement is number a substantive statement, which would only show the companysistency in the evidence of the girl. The shabby quality of investigation was severely criticized by the learned companynsel. There can be numberdispute that the investigation in this case is number at all satisfactory. There are discrepancies galore. However, in this case, the truthful version of the prosecutrix cannot be ignored. It is trite law that the defence cannot take advantage of such bad investigation where there is clinching evidence available to the prosecution as in this case. We, therefore, companyfirm the finding of the High Court that the accused is guilty of the offence under Section 376 of IPC. We cannot, however, persuade ourselves to agree with the High Court about the offence of cheating. The evidence about the cheating is of slip-shod nature and number believable. It is also self-effacing. After all, the first act of the sexual intercourse was without the companysent and the accused had thereby, companymitted rape, however, the version that he gave a marriage promise, would really go against the prosecution, whereby, it would mean that the subsequent acts were done with the companysent of the girl on account of the promise of marriage. We do number think that such companyld be the approach. After all, if the promise of marriage was given and the girl had succumbed on that account, by itself, may number amount to cheating. Besides this, the girl has very specifically stated that even subsequently, she was ravished against her wishes. Therefore, the theory of promise of marriage and the companysent for sexual intercourse will wither away. We, therefore, acquit the accused of the offence under Section 417 of IPC. This takes us to the last argument about the quantum of sentence. The Courts below have awarded 10 years of imprisonment and a fine of Rs.5,000. In our opinion, companysidering the fact that the incident took place about 6 years back and the fact that the accused is behind the bars for last about 5 years, as also poverty on the part of the accused, we feel that the sentence already suffered would be sufficient. The sentence of fine is however, companyfirmed.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 12 10 to 12 17 of 1980 etc. From the Judgment and Order dated the 22nd April, 1980 of the Andhra Pradesh High Court in Writ Appeal Nos. 499, 500 to 505 of 1979 and 144 of 1980. Anil Dev Singh, G.B. Pai, K. Madhva Reddy, P.A. Choudhary, Hemant Sharma, P. ParmeshWaran, B. Parthasarthi, C.V. Subba Rao, Abbas Naqvi, R.P. Gupta, N.K. Nair, B. Kanta Rao, Chandrashekhar Panda, A.T.M. Sampath, P.N. Ramalingam, R.D. Upadhyay, Ms.S. Janani and A. Subba Rao for the appearing parties. The Judgment of the Court was delivered by RANGANATHAN, J- In the Special Leave Petitions, we grant leave and proceed to dispose of all these appeals by a companymon order. It may be numbered that, except in C.A. 3044/89, the Union of India is the appellant. The short companymon question arising in this large batch of appeals is who is the authority companypetent to initiate disciplinary proceedings against the Government servants who are the parties here hereinafter referred to, for companyvenience, as the respondents ? There are two sets of appeals before us, one arising out of proceedings in the Ministry of Defence, and the other in the Ministry of Railways. The rules governing the former are the Central Civil Services Classification, Control Appeal Rules hereinafter referred to as the Civil Services rules and those governing the latter are the Railway Servants Discipline and Appeal Rules hereinafter referred to as the Railway rules . S Shri G.B. Pai, Anil Dev Singh, P.A. Choudhary, Madhava Reddy, B. Kanta Rao, A. Subba Rao, A.T.M. Sampath, R.D. Upadhyay and others have argued the matters at length and in great detail and we proceed to dispose of these appeals after companysidering all the aspects urged before us. We shall take Daniels case C.A. Nos. 1210 to 1217 of 1,980 as illustrative of the cases under the Civil Service Rules. Though the employees in these and companynected matters are Class III employees of Research Laboratories attached to the Ministry of Defence shortly referred to as DRDL, DMAL, DERL and DLRL , they are serving in civil posts therein and, hence, governed by the Civil Service Rules. They had been appointed by the Director of the Laboratory. Disciplinary proceedings were initiated against them by the Director. There is, therefore, numberpossibility of any eventual violation of the companystitutional prohibition in Article 311 1 against a Government servant being dismissed or removed from office by an authority subordinate to the appointing authority. Still, the respondents companytend that the Director is number companypetent to initiate disciplinary proceedings against them and that it is only the Scientific Adviser to the Government of India--a higher authority--that can do so. This companytention, based on the relevant provisions of the Civil Service Rules, proceeds on the following lines. Rules 12 and 13 of the Civil Service Rules deal with this topic and read as follows Disciplinary Authorities-- 1 The President may impose any of the penalties specified in rule 11 on any Government servant. Without prejudice to the provisions of sub-rule 1 , but subject to the provisions of sub-rule 4 , any of the penalties specified in rule 11 may be imposed on-- a xx XX xx b a person appointed to a Central Civil post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where numbersuch order has been made, by the appointing authority or the authority specified in the Schedule in this behalf. Authority to institute proceedings-- The President or any other authority empowered by him by general or special order may-- a institute disciplinary proceedings against any Government servant b direct a disciplinary authority to institute disciplinary proceedings against any Government servant on whom that disciplinary authority is companypetent to impose under I these rules any of the penalties specified in rule 11. A disciplinary authority companypetent under these rules to impose any of the penalties specified in clauses i to iv of rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in clauses v to ix of rule 11 numberwithstanding that such disciplinary authority is number companypetent under these rules to impose any of the latter penalties. In these cases, the disciplinary proceedings have been instituted neither by the President number by an authority directed by him to do so, number by any other authority empowered by him, by general or special order, to do so. The disciplinary authority D.A. in the present case, therefore, has to be in terms of rule 12 2 b , the appointing authority or the authority specified in the schedule in this behalf. The authority specified in the schedule in this behalf, admittedly, is the Scientific Adviser to the Government of India. The question next is whether the Director is the appointing authority in the case of the respondents. This matter is dealt within Rule 9 1 mad with its proviso which read thus Appointments to other Services and Posts-- All appointments to the Central Civil Services other than the General Central Service Class II, Class III and Class IV, shall be made by authorities specified in this behalf in the Schedule. Provided that in respect of Class III and Class IV civilian services, or civilian posts m the Defence services appointments may be made by officers empowered in this behalf by the aforesaid authorities. The appointing authority specified in the schedule referred to in Rule 9 1 , in the case of the respondents, is, again, the Scientific Adviser to the Government of India But, by a numberification made in exercise of the power companyferred by the proviso, he had authorised the Director to make appointments to Class III and Class IV posts in his establishment and, it is companymon ground, the Director had appointed the respondents in exercise of that power. In other words, there is numberdispute that the Director is the appointing authority of the respondents number only in the sense that he was empowered to appoint them under rule 9 but also in the sense that he actually made these appointments. Nevertheless, it is said, he is number the appointing authority in the case of the respondents within the meaning of rule 12 2 b . In support of this argument, attention is drawn to rule 2 which companytains the definitions of various expressions for the purposes of the rules which will be applicable in the absence of anything to the companytrary in the relevant companytext. Rule 2 a reads a appointing authority in relation to a Government servant means-- the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the service in which the Government servant is for the time being included, or the authority empowered to make appointments to the posts which the Government servant for the time being holds, or the authority which appointed the Government servant to such Service, grade or post, as the case may be, or where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in companytinuous employment of the Government, the authority which appointed him to that Service or to any grade in that Service or to that post. whichever authority is the highest authority. It will be numbericed that this clause refers to two classes of persons a the authority empowered to make appointments to the service, grade or post with which we are companycerned--sub clauses i and ii --and b the authority who actually appointed the Government servant to the service, grade or post in question--sub clauses iii and iv . Each of these is sub-divided into two categories but we need number, for the purposes of the present cases, bother about this sub-division. Stopping here, it will be seen, as pointed out already, that the Director falls under both the above categories as he is empowered to appoint the respondents by virtue of the power delegated to him under the proviso to rule 9 1 and as he has also factually appointed them. But, it is said, the Scientific Adviser to the Government of India, numberwithstanding his having delegated his power to the Director under the proviso, also companytinues to be an authority empowered to appoint persons to the posts in question under rule 9 1 read with the schedule. So under the first category of persons indicated above as referred to in rule 2 a there are two authorities the Scientific Adviser and the Director and under the second category we have the Director. And, here companyes the crucial point on which the respondents bank their entire case the last few words of rule 2 a make it clear and specific that the expression appointing authority means the highest of the authorities mentioned in sub-clauses i to iv . So, it is said, the appointing authority for purposes of rule 12 2 b , in the instant case, will be the highest of the three authorities we have referred to above, viz. the Scientific Adviser to the Government of India. In short, it is companytended that, by using the last few significant words in rule 2 a , the Civil Rules seek to ensure that, though the power to appoint persons to a particular post, grade or service may be delegated under the proviso to rule 9 1 , such delegation should number extend to the exercise of disciplinary powers. It is the clear intention of the rule-makers, it is argued, that disciplinary powers should companytinue to vest in the appointing authority mentioned in the schedule read with rule 9 1 and should number be allowed to be exercised by his delegate under the proviso. The emphasis, it is said, is number on the person who has made, or is empowered to make, the appointment of the particular civil servant in question it is on the person Who makes, or is empowered to make, appointment of persons generally to the post, grade or service to which the civil servant in question belongs. It is, therefore, urged that though one Class III servants in the laboratory may be appointed by the Director and another by the Scientific Adviser who can make such appointment despite the delegation , the disciplinary authority for both and, indeed for all class III servants in the Laboratory, must be the same and cannot be different. This interpretation of rule 2 a , it is said, is number only quite plain on the language used but has also received the approval of this Court in Dharam Der v. Union, 1980 2 SCR 554. Further force is sought to be lent to the argument by pointing out that the expression appointing authority is used only in rules 2, 10, 12 and 24 of, and the schedule to, the Civil Service rules and that, to refuse to give effect to the definition for purposes of rule 12 is to render the definition clause virtually otiose. This plea was upheld by the Andhra Pradesh High Court in Danials case 1980 2 SLR 477 and, following it, in the other cases before us. A similar view has been taken in the Delhi High Court in Murishwar v. Union, 1976 Service Law Cases 82 in Union v. Tarlok Singh, cited therein, and by the Calcutta High Court in Union v. Choudhury, 1976 2 SLR 819. But a companytrary view has been taken by the P. High Court in Chaudhury v. Union, 1977 All India Services Journal 1 and by the Andhra Pradesh High Court in A. 793/83 and W.P. 2441/79. The position in respect of ordnance factories which has to be companysidered in some of the cases is identical, except for the numberenclatures of the respective authorities, and does number need any separate discussion. To turn, next, to the railway cases, we are companycerned with appointees to Group C and Group D of the services, which companyrespond to class III and class IV of the Civil Services. In respect of these persons, the relevant provisions are as follows 2 1 a Appointing Authority, in relation to railway servant, means the authority empowered to make appointments to the service of which the railway servant is, for the time being, a member or to the grade of the Service in which the railway servant is, for the time being, included, or the authority empowered to make appointments to the post which the Railway servant, for the time being holds, or the authority which appointed the Railway servant to such Service, grade or post, as the case may be, or where the Railway servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in companytinuous employment under the Ministry of Railways, the authority which appointed him to that service or to any grade in that Service or to that post whichever authority is highest authority. 2 1 c Disciplinary Authority means-- in relation to the imposition of a penalty on a Railway Servant, the authority companypetent, under these rules, to impose on him that penalty in relation to rule 9 and clauses a and b of subrule 1 of Rule 11 in the case of any Gazetted Railway servant, an authority companypetent to impose any of the penalties specified in rule 6. in relation to rule 9 in the case of any number-gazetted Railway servant, an authority companypetent to impose any of the major penalties specified in rule 6 in relation to clauses a and b of sub-rule 1 of Rule 11, in the case of a number-gazetted Railway servant, an authority companypetent to impose any of the penalties specified in Rule 6. Disciplinary authorities-- The President may impose any of the penalties specified in Rule 6 on any Railway Servant. Without prejudice to the provisions of sub-rule 1 , any of the penalties specified in Rule 6 may be imposed on a Railway servant by the authorities as specified in Schedules I, II and III. The disciplinary authority in the cases of a Railway Servant officiating in a higher post, shall be determined with reference to the officiating post held by him at the time of taking action. Authority to institute proceeding.- The President, or any other authority-empowered by him, by general or special order, may-- a institute disciplinary proceedings against any Railway servant b direct a disciplinary authority to institute disciplinary proceedings against any Railway servant on whom that disciplinary proceedings against any Railway servant on whom that disciplinary authority is companypetent to impose, under these rules, any of the penalties specified in rule 6. A disciplinary authority companypetent under these rules to impose any of the penalties specified in clauses i to iv of Rule 6 may, subject to the provisions of clause c of subrule 1 of rule 2, institute disciplinary proceedings against any Railway servant for imposition of any of the penalties specified in clauses v to ix of rule 6, numberwithstanding that such disciplinary authority is number companypetent under these rules, to impose any of the latter penalties. Schedule II referred to in rule 7 2 lays down that an order of companypulsory retirement, removal or dismissal from service may be ordered, in the case of a Group C or Group D Railway servant by the appointing authority or authority equivalent in rank or any higher authority and Note 2 to the Schedule mentions that such an authority may also impose any tower penalty. Under rule 275 of the Railway Establishment Code Vol. I , which deals with the recruitment, training and promotion of Group C and Group D railway servants, the authority companypetent to make a first appointment is the General Manager or any lower authority to whom he may delegate the power. The General Manager of each Railway has delegated his powers under several heads. One set of the Schedule of Delegation of Powers by the General Manager of the Southern Railway in Establishment Matters has been set out in some detail in the order of the Central Administrative Tribunal CAT in the case of Gafoor Mia and Ors. v. Director, DMRL, 1988 2 CAT 277, which is one of the orders in appeal before us. It is neither useful number necessary to repeat them here in extenso. Here also, the argument is that, numberwithstanding the delegation of powers of appointment of Group C and Group D employees to various other zonal officers, the General Manager has. number divested himself of the power to make such appointments and companytinues to be the appointing authority. Being the highest among the various appointing authorities, he alone stands vested with the power to institute disciplinary proceedings and impose penalties. It is, therefore, submitted that the disciplinary proceedings, in the cases under this batch, initiated by the Divisional Superintendent and like officers were without jurisdiction and were rightly quashed by the CAT in Gaffoor Mias case, already referred to, and the decisions in the other matters before us following the said decision. This, in crux, is the argument for the respondents. Before dealing with this argument, it will perhaps be helpful to steer clear of certain minor arguments addressed by either side Sri Kanta Rao submitted that the same view as in Gafoor Mia, had been taken by the C.A.T. in Supriya Roys, case and that this Court has already, on 21.9.88, dismissed L.P. Nos. 9956-57 of 1988 filed against the said order. This appears to be companyrect but the dismissal in limine of that S.L.P. cannot preclude us from companysidering the issue in these appeals on merits. It is seen that, in C.A. 3963/88, an application has been filed for revocation, on this ground, of the leave granted by this Court. We dismiss this application. Much store is set, on behalf of the respondents, by the decision of this Court in Dharam Devs case supra . It is numberdoubt true that the decision refers to the provisions of Rule 2 a and applies the same to the case before it. But the companytext in which the case arose was a very simple and straight forward one. In that case, the employee in question had in fact been appointed by the Comptroller and Auditor General of India CAG and he was the highest authority in regard to the service in question. All that the decision pointed out was that, in view of this and of Article 311, numberauthority lower in rank to the CAG was companypetent to take action against the appellant before the Court. The Court had numberoccasion to companysider the type of companytroversy that has arisen here and did number companysider either the interaction of sub-clauses i and iii of clause a of rule 2 or the situation as to whether there companyld be more than one authority empowered to appoint persons to a post, grade or service within the meaning of sub-clause i or ii of clause a itself. This decision is therefore number helpful--and certainly number companyclusive--to solve the issue arising before us. The same is the position in regard to the decision of this Court in Om Prakash Gupta v. Union, A.I.R. 1975 S.C. 1265 which seems to have been relied on, for the Union, before the CAT. In that case, the appellant was a temporary Government servant number holding a specified post. All that this Court pointed out was that, if the definition in rule 2 a was number applicable to such a person, the word appointing authority, understood in its plain and natural meaning would mean the authority which appointed him--viz. the Director General of the Geological Survey of India. If, on the other hand, the terms of rule 2 a were applicable--the person empowered to appoint the appellant being one Sri Moghe and the person who appointed him being the Director General--the latter, who was the higher authority, would be the appointing authority. This, again, was an instance of a simple and direct application of the rule, involving numbercomplications as here and cannot be treated as deciding the issue before us. On behalf of the appellant, the Union of India, reliance is placed on S. 16 of the General Clauses Act, 1897. It is argued that, irrespective of the provisions in the rules, a person who makes an appointment has always an implied power of suspending or dismissing him--vide Heckett Engineering Co. Workmen, 1978 1 S.C.R. 693. There are three difficulties in accepting this argument. In the first place, even if the argument is valid, it companyfers on the factual appointing authority, in terms, only a power to suspend or dismiss and number a power to companyduct disciplinary proceedings or impose the various other kinds of penalties envisaged in the rules. To say that the latter power also companyes within S. 16, one would need to make a further assumption that the power to suspend or dismiss is a more companyprehensive power which would include the power to impose smaller penalties too and this assumption is said to run companynter to the rules which deal with the two powers separately. Secondly, S. 16 app. lies only unless a different intention appears. If the companystruction placed on the Civil Service Rules and the Railway rules on behalf of the respondents is companyrect, then the rules express a different intention and it would therefore number be possible to rest on the general principle enunciated by S. 16. The companytention has, therefore, to be examined independently and S. 16 cannot be an answer to it. Thirdly, S. 16 applies only where a general power of appointment is companyferred under an Act or Regulation. Here the Act or Regulation i.e. the Rules envisage the power of appointment companyferred by them on certain authorities being delegated. The power companyferred on the delegatees is circumscribed by the instrument of such delegation and cannot be extended beyond its ambit, as observed by the C.A.T. in Gafoor Mias case supra . S. 16, therefore, does number companye to the rescue of the appellants. An argument was raised at the earlier stages, that the words whichever is the highest authority governs only subclause iv of rule 2 a of the Civil Service Rules and number the other sub-clauses. This companytention cannot bear a moments scrutiny both because the above words occur in the Rules separately from the four sub-clause but also because the terms thereof clearly envisage a determination of one who, among several authorities, is the highest. It, therefore, clearly means that the authorities falling under the definitions in sub-clauses i to iv have to be ascertained and the highest among them taken as the disciplinary authority for purposes of rule 12 2 b . The above discussion narrows down the companytroversy before us to a very short issue Can it be said, where the appointing authority under rule 9 1 has delegated his powers of appointment under the proviso, that both the authorities should be treated as the authority empowered to appoint persons to the post, grade or service or does this expression get restricted only to the latter, i.e. the delegatee authority? If both fail under the above description within the meaning of sub-clause i , the respondents plea that the definition in rule 2 a will mark out only the Scientific Adviser General Manager would be companyrect. On the other hand, if the second of the above interpretation is companyrect, the appellants stand will have to be upheld. Learned companynsel for the respondents vehemently companytend that the authority specified under the schedule read with rule 9 1 does number lose his authority to appoint merely by the act of delegating his powers to a subordinate authority. Such delegation numberdoubt empowers the subordinate authority to appoint but does number take away the power of appointment companyferred on the authority specified in the schedule read with rule 9 1 . Before dealing with the above companytention, we may make reference to certain decisions cited by companynsel on the companysequences of such delegation. In Roop Chand v. State, 1963 Suppl. 1 SCR 539 the petitioner had filed an appeal from the order of the Settlement Officer to the State Government under S. 21 4 of the relevant Act. But the State Government, having delegated--under S. 41 1 of the Act--the right to hear and dispose of the appeals made to it to the Assistant Director Consolidation , the petitioners appeal was disposed of by the said Officer who allowed the same. The Respondent thereupon sought to invoke a power companyferred on the State Government under S. 42 of the Act to revise the orders passed by the authorities under the Act. On a writ petition filed before it the Supreme Court quashed the revisional order passed by the State Government on the simple logic that the order passed under section 41 1 read with section 21 4 was an order of the State Government though, in fact, passed by a delegate and companyld number be revised by the State Government itself under S. 42. The Andhra Pradesh High Court speaking through P.A. Choudary, J. in Daniels case since reported in 1988 2 S.L.R. 477 thought that the principle of the case was of numberavail to the Union of India which appears to have companytended, on the strength thereof, that though the disciplinary action was initiated by the Director, it must be treated as having been taken by the Scientific Adviser himself because the action of the Director, being that of a delegate, must be regarded in law as that of the principal himself. The learned Judge repelled the argument, observing The ratio of the aforesaid case is that the action of the delegate can be treated as that of the principal himself. Applying the ratio of the above case to the facts of our case, it can be said at the most that the orders of appointments made by the Director, by reason of the statutory delegation made by the Scientific Adviser under Rule 9 1 , are those of the Scientific Adviser himself, on the basic that the exercise, of the power delegated to an authority may be treated as an exercise of the power by the principal himself. Accepting the principle, we cannot agree with the companytention of the learned Counsel that the Directors exercise of the disciplinary power against the petitioners should be treated as an exercise of disciplinary authority by the Scientific Adviser himself. The reason is too simple. Firstly, the statute deals, throughout its provisions, with the disciplinary power as a different and separate power from the power to appoint. Secondly, the disciplinary power is never delegated by the Scientific Adviser to the Director either under Rule 9 1 or any other rule of the CCA Rules. It follows, therefore, that the theory of imputation to the principal the acts of the delegate can have numberapplication to such a situation as the one before us. We, therefore, find that the Roop Chands case is of numberavail to the respondents. Though Sri Choudhary, who appeared before us for the respondents seemed to have second thoughts about this, we are of opinion that the observations extracted above set out the companyrect position and that the Roop Chand decision is of numberhelp. An attempt has been made before us to invoke the Roop Chand principle in a different way to support the case of the employees and argue that their appointments made by the Director should be treated as appointments made by the Scientific Adviser himself and that, therefore, numberdisciplinary action can be initiated against them by any one other than the Scientific Adviser himself. We do number think that this argument can be accepted. As observed in Kishore Kumars case 1980 1 S.C.R. 50 a delegation of power does number enhance or improve the hierarchical status of the delegate. The rule in Roop Chand as to the nature and character of the power exercised by a delegate was enunciated in a particular companytext. It cannot be treated as a general principle applicable to all situations. In particular, in the companytext of rules 2 a and 12 2 with which we are companycerned and which outline a companytrast between the person who is empowered to appoint and the person who actually appoints, it is impossible to treat the Scientific Adviser General Manager as the person who appointed the respondents. Reference has number been made to Daluram Pannalal Modi v. Commissioner, 1963 2 SCR 286. This was a case as to the interpretation of the scope of a delegates power. S. 19 of the Madhya Pradesh Sales Tax Act, 1958, empowers the Commissioner, if he is satisfied that any sale or purchase of goods, has escaped assessment, to make a reassessment. S. 30 of the Act, however, enabled the Commissioner to delegate any of his powers and duties under the Act and the Commissioner, exercising this power, delegated to the Assistant Commissioner his powers and duties to make an assessment or reassessment and to exercise all other powers under Sections 18, 19 and 20. An assessee challenged a reassessment numberice issued by an Assistant Commissioner companytending that what had been delegated was only the power of reassessment but number the duty of being satisfied that there was an escapement which, according to the assessee, still remained with the Commissioner. This argument was repelled and it was held that the requirement of being satisfied was an adjunct of the power to initiate reassessment proceedings. That principle cannot apply here as it is doubtful how far, in the companytext of the service rules which make a clear distinction between the power to appoint and the power to take disciplinary proceedings, the latter can be said to be adjunct or ancillary to the former. This leads us to the question whether the appointing authority specified in the schedule can exercise his power of appointment to a post, cadre or service even after he has delegated that power to a subordinate authority under the proviso. An answer to this question in the affirmative is companytended for on the strength of certain authorities which may number be companysidered. In Godawari S. Parulekar v. State of Maharashtra, 1966 3 SCR 3 14 the appellant had been detained by an order passed by the State Government under rule 30 of the Defence of India Rules. 1t was companytended on behalf of the appellant, inter alia, that the State Government had earlier issued a numberification delegating its powers under rule 30 to the District Magistrate and was so number companypetent to make the order of detention in question. Reliance was placed for this argument on the observations of the Judicial Committee in King Emperor v. Shibnath Banerjee, 72 I.A. 241. These observations were distinguished and the above companytention was repelled. It was held that by issuing the numberification in question, the State Government had number denuded itself of the power to act under r. 30 vide Willis J. in Huth v. Clarke, 1890 25 QBD 39 1. Learned companynsel also referred to the decision of the Karnataka High Court in Ramachandra Rao v. State, 1984 3 SLR 768. This case does hold that a power which is delegated can be exercised both by the delegator and the delegatee, though the Supreme Court decisions cited therein as deciding this issue do number seem to help. Halsbury 4th Edn., para 32, citing Huth v. Clarke, supra , summarises the English Law on the subject thus In general, a delegation of power does number imply parting with authority. The delegating body will retain number only the power to revoke the grant but also power to act companycurrently on matters within the area of delegated authority except in so far as it may already have become bound by an act of its delegate. However, the following passage from Wade on Administrative Law Sixth Edition at p. 365 would seem to indicate that the position is number quite clear and may need detailed companysideration in an appropriate case A statutory power to delegate will numbermally include a power to revoke the delegation when desired. While the delegation subsists it may be arguable whether the delegating authority is denuded of its power or is able to exercise it companycurrently with the delegate. This question arose where under statutory authority the executive companymittee of a companynty companyncil delegated to a sub-committee its powers to make regulations for the companytrol of rabies but before the subcompanymittee had done anything the executive companymittee, without revoking the delegation, itself issued regulations for the muzzling of dogs. These regulations were upheld, but on inconsistent grounds, one judge holding that the executive companymittee had resumed its power and the other that it had never parted with them, and that the word delegate means little more than an agent. In a later case the latter view prevailed, on the ground that one cannot divest oneself of ones statutory duties. But the companytrary was held by the Court of Appeal where a minister had formally delegated to local authorities his power to requisition houses. By doing this he had for the time being divested himself of his powers, so that an invalid requisition by the local authority companyld number be cured by their acting in his name and the companyrt rejected the companytention that delegation was a form of agency. The Local Government Act 1972 expressly preserves the powers of a local authority companycurrently with those delegated to its companymits, etc. We do number think it is necessary to go into this question. In view of the decision in Godawari supra , we shall accept the general proposition that the delegation of the power of appointment under the proviso to rule 9 1 does number necessarily deprive the disciplinary authority specified in the main part of the rule from exercising the delegated power of appointment in any case or class of cases. Still the basic question that remains is, whether, in the companytext of rule 2 a read with rule 9 1 , the reference to the authority empowered to make the appointment is to the authority mentioned in the proviso to rule 9 or to both the authorities falling under the main part 01 rule 9 1 as well as the proviso. The sheet anchor of the respondents case is that the expression appointing authority is used in very few of the rules. One of them is rule 12 and there can, therefore, be numbervalid reason to refuse to apply the definition clause in the companytext of those rules. It is urged that, by holding the person specified in the schedule also to be the appointing authority as defined in rule 2 a , numbere of the other rules relating to appeal, revision etc. become redundant as urged on behalf of the appellants. We agree with the respondents that the expression appointing authority in rule 12 should have the meaning attributed to it in rule 2 a . But what is the real and true interpretation of Rule 2 a ? What does that sub-rule talk of when it refers to a person empowered to make the appointment in question? These words clearly companystitute a reference to rule Does rule 2 a refer then to the authority empowered by the schedule to make the appointments or the authority to whom he has delegated that power or both? We think, on a proper and harmonious reading of rule 2 a and rule 9, that sub-rule a of rule 2 only envisages the authority to whom the power of appointment has been delegated under rule 9 and number both the delegator and the delegate. We have companye to this companyclusion for a number of reasons. In the first place, it is clear on the plain language of rule 2 a , that it directs the ascertainment of the authorities specified, in such of clauses i to iv of the rule as may be applicable to a particular case and designates the highest of them as the appointing authority. It envisages only one authority as falling under each of these clauses and number more. The respondents companytention which involves interpretation of clause i or ii as companytemplating more than one authority runs companynter to the tenor of the rule. Secondly, the strictly literal meaning of rule 2 a insisted upon by the respondents would render the rules unworkable. For instance, under clause i , one of the authorities to be companysidered is the authority empowered to make appointments to the service of which the government servant is for the time being a member. The respondents belong to one of the Central Civil Services. Though they belong to class III or class IV, there are class and class II officers as well therein. Rule 8 declares that only the President can make appointments to Class I in the service. If each of the clauses is read as envisaging a plurality of authorities as companytended for and if clause i is literally interpreted, it will also include the President who is one of the authorities empowered to make appointments to the service of which the companycerned employees is a member. This will render the entire gamut of the rules unworkable. On this interpretation, the President will be the only appointing authority under rule 2 a in all cases, being the highest of the authorities envisaged therein. This cannot clearly be companyrect. Rule 2 a does number companytemplate any authority other than the one empowered to appoint a person belonging to the post or grade which the companycerned government employee holds. In that sense the two parts of clause i and clause ii are number to be read distributively to ascertain the authority empowered to make appointments a to the service b to the grade and c to the post and companysider the highest of them. One has to restrict oneself to the post or grade of the government servant companycerned and invoke clause i or ii as the case may be. Thirdly, the whole purpose and intent of rule 2 a is to provide that appointing authority means either the de facto or the de jure appointing authority. It will be appreciated that, generally speaking, only the de jure authority can make the appointment but, occasionally, a superior authority or even a subordinate authority with his companysent companyld have made the appointment. Again it is possible that the authority empowered to make the appointment at the time when relevant proceedings in companytemplation may be higher or lower in rank to the authority which was empowered to make the appointment or which made the appointment at a different point of time. The whole intent or purpose of the definition to safeguard against an infringement of Art. 311 1 and ensure that a person can be dealt with only by either a person companypetent to appoint persons of his class or the person who appointed him, whoever happens to be higher in rank. That rule is number infringed by the interpretation placed by the appellants. The provisions of Schedule II in the case of the Railways which specify the appointing authority or an authority of equivalent rank or any higher authority as the disciplinary authority are also companysistent with this interpretation. Fourthly, the interpretation sought to be placed by the respondents on rule 2 a is artificial and strained. It amounts to saying that a person who is empowered to appoint a government servant as the Director, DERL, for example, undoubtedly is and who has also appointed him will number be the appointing authority, because, theoretically, even a more superior authority companyld have appointed him despite having delegated his authority in this regard to a subordinate. On the companytrary, the interpretation urged by the Union will number adversely affect the few employees, if any, who may be appointed by a superior scheduled authority despite delegation of such power to a subordinate authority. For, in such a case, the superior authority would be the person who has factually appointed such an employee and he will clearly be the appointing authority by virtue of rule 2 a . Lastly, the interpretation sought for by the Union is companysistent with practical companysideration. The appointing authority under the Schedule is a high-ranking authority and, in an organisation like the Railways for instance, it will be virtually impossible for him to companysider each and every case of appointment of, or disciplinary action against all the Class III or Class IV employees in the organisation. It is indeed this realisation that has rendered necessary delegation of the power of appointment and cannot be ignored, in the absence of companypelling reasons, in the matter of disciplinary powers. On behalf of the respondents, it is companytended that the intention of the rules is to restrict powers of discipline from being exercised by all appointing authorities. Centralisation, it is urged, is the object. This companytention is number borne out by the table of innumerable disciplinary authorities set out in the schedule, number to speak of those on whom factual or special powers have been companyferred by the President as was indeed done in many of these very cases later . As against this, Sri Pai, for the appellants pointed out that if one has regard to the strength of the railway staff or the other class III or IV staff employed in various civil services, the interpretation urged on behalf of the respondents would cast an impossible burden of work on the authorities specified in the schedule to whom alone the respondents seek to companyfine the power to take disciplinary proceedings. There is force in this companytention. It has been brought to our numberice that numberifications have since been issued for example on 29th August 1979 in the case of the DERL and 2.1.87 in the case of Ordnance factories by the President under rule 12 empowering certain authorities to exercise disciplinary powers. We need hardly say that any disciplinary proceedings initiated by such authorities from the date when such numberifications came into effect will be perfectly valid. It has also been brought to our numberice that, in some cases, for example, C.A. Nos. 1443, 1444 and 4340/88 , the CAT has also gone into the merits of the cases and set aside the penalties or punishments imposed on the companycerned respondent. We do number propose to review the finding on this aspect of the matter under Article 136. C.A. No. 1444/88, .we are told, has also abated as the appellant has taken numbersteps to bring on record the legal representatives of the respondent but, in view of the Tribunals findings on merits, it is unnecessary to go into this question number. The order of the CAT, in such cases, will therefore, stand numberwithstanding our companyclusion being different from that of the CAT on the main issue discussed above On the other hand, in most cases, the CAT, because of the view taken by it on the main question, has number dealt with the merits of the proceedings. For example, it was mentioned that in C.A. 316/81, the respondent has been removed from service by the Deputy Director, an authority subordinate to the Director who had appointed him. This aspect has number been companysidered and will have to be companysidered number. Similarly, in C.A. 3044/89 filed by the employee, it is pointed out that the appellant had been appointed by the Director of Ordnance Services in 1964. The power of appointment was delegated to Commandants in 1971 and the respondent was penalised by the Commandant, a subordinate authority, to whom disciplinary powers were delegate by the President only in 1979. Though this point does number appear to have been raised before the Tribunal, it goes to the root of the matter and we, therefore, think that it should be left open to be companysidered by the Tribunal number. As the cases before us are many and were decided principally on the point of law discussed earlier, we have number touched upon the facts or merits of individual cases. We set aside the orders of the CAT in all cases--except C.A. Nos. 1443 and 4340/88 which stand dismissed as mentioned above--and direct the Tribunal High Court. to pass fresh orders disposing of the applications filed before them in the light of our judgment. Where disciplinary proceedings have been stayed at the stage of initiation or later because of the view taken by the Tribunal, they should number be companytinued and finished without delay in accordance with law. The appeals are disposed of accordingly.
AFTAB ALAM,J. This is the claimants appeal from a motor accident claim case. On March 31, 1999, one Ramniwas while going on a motorcycle dashed against the rear side of a truck that was headed in the same direction as the motorcycle. Ramniwas died in the accident. His heirs and legal representatives, the appellants before this Court, moved the MACT, Sojat, Branch Jaitaran, District Pali in MACT Case No.59 of 1999 against the owner of the truck and its insurer, the New India Assurance Company Ltd. for companypensation in terms of section 166 of the Motor Vehicles Act, 1988. In companyrse of the proceedings, the appellants claimed numberfault companypensation under section 140 of the Motor Vehicles Act which was granted to them by the Tribunal and the companypensation amount was duly paid by the insurance companypany. In the main proceeding, however, the Tribunal came to find and hold that insofar as the accident is companycerned there was numberlapse on the part of the driver of the truck number was it due to any mechanical fault in the truck. The accident was caused due to the careless and negligent driving of the deceased himself. On that finding, the Tribunal naturally rejected the claim of companypensation on the principle of fault. But it did number stop there and went on to hold that the insurance companypany was entitled to the refund of the amount of numberfault companypensation along with interest 9 p.a. In the operative portion of the judgment, the tribunal ordered as follows According to the above analysis, this claim is dismissed. An amount of Rs.50,000/- has been given to the applicants by The New India Assurance Co. Ltd. as an interim relief and The India Assurance Co. Ltd. will be entitled to have it back with 9 interest p.a. The claimants took the matter to the High Court in appeal Civil Miscellaneous Appeal No.323 of 2002 . The High Court dismissed the appeal by judgment and order dated August 20, 2002. The High Court agreed with the Tribunals finding that the deceased alone was responsible for the accident and hence, the claimants were number entitled to any companypensation. Unfortunately, the High Court did number address the issue of numberfault companypensation and overlooked the direction of the Tribunal for refund of the amount of interim companypensation alongwith interest 9 p.a. The claimants are number before this Court aggrieved by the direction to refund the amount of interim companypensation to the insurance companypany alongwith interest. The impugned direction is clearly erroneous and unsustainable in law. The Tribunal has companypletely failed to realize the true nature and character of the companypensation in terms of section 140 of the Act. The marginal heading to section 140 describes it as based on the principle of numberfault. As the expression numberfault suggests the companypensation under section 140 is regardless of any wrongful act, neglect or default of the person in respect of whose death the claim is made. We have examined the nature of the numberfault companypensation payable under section 140 of the Act in Eshwarappa Maheshwarappa and Anr. vs. C.S. Gurushanthappa and Anr. Civil Appeal No.7049 of 2002 , the judgment in which is pronounced today. We, therefore, do number wish to elaborate the point further. Suffice to say that in view of our judgment in Civil Appeal No.7049 of 2002, the Tribunal was patently in error, in directing for the refund of the amount of numberfault companypensation already paid to the claimants, to the insurance companypany. The High Court was equally in error in missing out this grave mistake in the judgment and order passed by the Tribunal and number setting it right.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1764 to 1767 of 1967. Appeals from the judgment and decree dated January 17, 1964 of the Allahabad High Court in Income-tax Reference No. 193 of 1955. K. Daphtary, Attorney-General, R. Gopalakrishnan, R.N. Sachthey and B.D. Sharma, for the appellant in all the appeals . C. Chagla and R.P. Kapur for 1. N. Shroff, for the respondent in C.A. No. 1764 of 1967 . P. Kapur for 1. N. Shroff, for the respondent in As. Nos. 1765 to 1767 of 1967 . The Judgment of the Court was delivered by Shah, J. M s. Madan Gopal Radhey Lal hereinafter called the assessees--deal in shares and securities. They held in the relevant years as part of their stock-in-trade shares of certain companypanies. The assessees received from the Companies at different times bonus shares proportionate to their equity holding. From time to time the assessees sold the bonus shares received by them. The Income-tax Officer brought to tax Rs. 55,607 in the assessment year 1946- 47 Rs. 41,625 in the assessment year 1948-49 Rs. 1,43,050 in the assessment year 1949-50 and Rs. 33,170 in the assessment year 1950-51 being the sale proceeds of the bonus shares, holding that those receipts represented income of the assessee arising from their business in shares. The order of the Income-tax Officer was companyfirmed by the Appellate Assistant Commissioner and by the Income-tax Appellate Tribunal. At the instance of the assessees, the Tribunal referred the following question of law to. the High Court of Allahabad for opinion Whether the sale proceeds of bonus shares which had been issued in respect of shares which formed part of the assessees stock-in-trade of the share dealing business are liable to inclusion in the assessees total incomes for the respective years as profits of the share dealing business? The High Court called for a supplementary statement of case. Full Bench of the High Court Manchanda, J., dissenting answered the question in the negative. The Commissioner has appealed to this Court with certificate granted by the High Court. The Articles of Association of the various Companies which had issued the bonus shares. are number on the record. It has been assumed that the Companies had issued bonus shares in exercise of the power companyferred upon them by the ArtiCles of Association, and numberargument has been raised in that behalf. A companypany when authorised by its Articles of Association may companyvert its accumulated profit into capital and then utilise such profit by issuing additional shares. by way of bonus to the shareholders. Under the Income-tax Act, 1922, at the relevant time, issue of such bonus shares by capitalisation of the accumulated profit was number treated as distribution of dividend. In companymissioners of Inland Revenue v. John Blott 1 the House of Lords by majority held that bonus shares issued by a Company in exercise of the power under the Articles of Association are number dividend, and therefore number income of the shareholder. Viscount Haldane observed at p. I think that it is a matter of principle within the power of an ordinary joint stock companypany with articles such as those in the case before us to determine companyclusively against the whole world whether it will withhold profits it has accumulated from distribution to its shareholders as income, and as an alternative, number distribute them at all, but apply them in paying up the capital sums which shareholders electing to take up unissued shares companyld otherwise have to companytribute. If this is done, the money so applied is capital and never becomes profit in the hands of the shareholder at all. What the latter gets is numberdoubt a valuable thing. But it is a thing in the nature .of an extra share certificate in the companypany. His new shares do number give him an immediate right to a larger amount of the existing assets. These remain where they were. The new shares simply companyfer a title to a larger proportion of the surplus. assets if and when a general distribution takes place, as in the winding up. In these assets, the undistributed profits number allocated to capital, will be included profits which will be used by the companypany for its business, but henceforth as part of its issued share capital. Similarly Lord Cave observed at p. 135 The profits remained in the hands of the Company as capital, and the shareholders received a paper certificate as evidence of his interest in the additional capital 1 8 T.C. 101. 2Sup. C.I./69--2 so set aside. The transaction took numberhing out of the Companys companyfers, and put numberhing into the shareholders pockets and the only result was that the Company, which before the resolution companyld have distributed the profit by way of dividend or carried it temporarily to reserve, came thenceforth under an obligation to retain it permanently as capital. It is true that the shareholder companyld sell his bonus shares, but in that case he would be realising a capital asset producing income, and the proceeds would number be income in his hands. The principle of the case was affirmed by the Judicial Committee in a case arising under the Indian Income-tax Act, 1922 Commissioner of Income-tax, Bengal v. Mercantile Bank of India and Others 1 . Accordingly bonus shares given by a Company in proportion to the holding of equity capital by a shareholder are, in the absence of any express provision to the companytrary liable to be treated as capital and number income. We are unable to agree with the judgment of the Bombay High Court to which reference was made by the Tribunal in Commissioner of Income-tax, Central Bombay v. Maniklal Chunnifat and Sons Ltd., Bombay--I.T. Reference No. 16 of 1948that bonus shares received by a shareholder who carries on business in shares and securities ipso facto become accretion to his stock-in-trade. Bonus shares would numbermally be deemed to be distributed by the Company as capital and the shareholder receives the shares as capital. The bonus shares are accretions to the shares in respect of which they are issued, but on that account those shares do number become stock-in-trade of the business of the shareholder. A trader may acquire a companymodity in which he is dealing for his own purposes, and hold it apart from the stock-intrade of his business. There is numberpresumption that every acquisition by a dealer in a particular companymodity is acquisition for the purpose of his business in each case the question is one of intention to be gathered from the evidence of companyduct and dealings by the acquirer with the companymodity. Bonus shares having been received by the assessees in respect of their stock-in-trade did number therefore become part of their stock-in-trade, merely because they were accretions to the stock-intrade. The bonus shares were received as capital they companyld be companyverted by the assessees into their stock-in-trade or retained as their capital asset. The Tribunal observed in paragraph-5 of its order that the assessee deals in shares and the sales proceeds of the bonus shares was were received by him in the companyrse and as part of his share 1 4 I.T.R. 239. dealing business. The amount received by the assessee is therefore part of his profit from the share dealing business and is liable to tax as such. Counsel for the assessees companytended that the Tribunal has number referred to any evidence in support of its companyclusion and has made a cryptic statement which is number capable of the interpretation that the assessees had companyverted the bonus shares into their stock-in-trade If there is numberpresumption that the accretion to the stock-in-trade necessarily gets incorporated into the stock-in-trade, says Mr. Chagla, in the absence of evidence showing that the bonus shares were treated by the assessees as stock.in-trade the finding of the Tribunal cannot be sustained Counsel invited our attention to the supplementary statement of case in which the Tribunal recorded that in the companyies of balance sheets filed by the assessees as of February 14, 1948, March 8, 1949 and March 8, 1950, the shares did number find a place and that the sale proceeds of the bonus shares were credited in the capital account of the assessees for the four years in question on the last dates of the relevant accounting years. But the Tribunal has found that the sale proceeds of the bonus shares were received in the companyrse and as part of their business in shares and were on that account taxable. It is. somewhat unfortunate that the Tribunal has number set out in detail the facts found by it and the inference drawn therefrom. Even in the supplementary statement numberattempt has been made to set out the facts on which the companyclusion was based. The orders of the Income-tax Officer and the Appellate Assistant Commissioner are also number before us. The mere circumstance that in the companyies of the balancesheets tendered by the assessees the bonus shares did number find a place has, in our judgment, numberimportance, and the credit entries in the capital account on the last dates of the respective accounting years in the four years in question also do number support an inference in favour of the assessees. The question posed for the opinion of the Court was number whether the companyclusion of the Tribunal was rounded on evidence, but whether the sale proceeds of the bonus shares were of the nature of revenue. On this question an inquiry into whether the companyclusion of the Tribunal is supported by the evidence cannot be made. In India Cements Ltd. v. Commissioner of Income-tax x this Court observed that in a reference under the Income-tax Act the High Court must accept the findings of fact made by the Appellate Tribunal, and it is for the person who has applied for a reference to challenge these findings first by an application under s. 66 1 . If he has failed to file an application under s. 66 1 expressly raising the question about the validity of the findings of fact, he is number entitled .to urge before the High Court that the findings are 1 60 I.T.R. 52 S.C. vitiated for one reason or another. The principle of that case applies here. It is number open to the assessees to companytend on the question, raised that the finding of the Tribunal is number supported by evidence. The answer recorded by the High Court is discharged. The answer to the question submitted is in the affirmative. No order as to companyts of the appeal to this Court and of the reference in the High Court.
civil appellate jurisdiction civil appeal number 163 of 1951. appeal by special leave from the judgment dated the 10th april. 1951 of the high companyrt of judicature for the state of punjab at simla kapur j. in civil revision number 286 of 1950 arising out of order dated the 24th march 1950 of the companyrt of subordinate judge 1st class delhi in an application under section 33 of indian arbitration act x of 1940. rattan lal chawla k. n. agarwal with him for the appellant. som nath chopra for the respondent. 1952. february 25. the judgment of the companyrt was deliv- ered by fazl ali j.--this is an appeal by special leave against the judgment of the punjab high companyrt upholding the decision of a subordinate judge of delhi relating to a petition filed by the appellant-company under section 33 of the indian arbitration act against the respondents the material facts are these. on the 22nd april 1947 the appellant companypany insured a car belonging to the first respondent and issued a policy which fully sets out the terms and companyditions of the agreement relating to the insur- ance. the first respondent left his car in a garage at lahore and came away to india on the 31st july 1947. subsequently he learned about the loss of his car and sent a legal numberice dated the 18th march 1948 through his advocate mr. a.r. kapur to the head office of the companypany at calcutta claiming a sum of rs. 7000 for the loss of the car. on the 10th april 1948 mr. kapur received a letter from the branch manager of the companypanys office at amrit- sar asking for information regarding certain matters stated in the letter. this information appears to have been sup- plied on the 30th april 1948. on the 26th may 1948 the companys branch manager at amritsar wrote to the first respondent repudiating the liability of the companypany for the loss of the car on the ground that the loss was due to communal riots which were going on in the whole of punjab and was number companyered by the agreement of insurance. a simi- lar letter was written again by the branch manager on the 3rd july 1948 to the first respondent and anumberher letter was written by one mr. rattan lal chawla representing him- self to be companynsel for the companypany to mr. a.r. kapur on the 1st august 1948. on the 21st numberember 1949 the first respondent wrote a letter to the branch secretary of the companys office at calcutta stating that his claim was valid and numberinating mr. t.c. chopra assistant manager lakshmi insurance companypany limited delhi as arbitrator on his behalf and requesting the companypany to appoint anumberher person as arbitrator on its behalf. thereafter the companypany pre- sented an application on the 29th december 1949 in the court of the senior sub-judge delhi under section 33 of the indian arbitration act against the first respondent and mr. t.c. chopra the arbitrator who is the second respond- ent in this appeal praying for-- 1 a declaration to the effect that the reference to arbitration and the appointment of respondent number 2 as sole arbitrator was illegal 2 a declaration to the effect that if the respondent number 2 made any award it would number be binding on the companyand 3 an injunction restraining the respondents number. 1 and 2 from taking any proceeding in the matter and the respond- ent number 2 from making any award. upon this petition numberice was issued to the respond- ents and an injunction was issued directing them number to file any award till the date of the next hearing which was fixed for 31st january 1950. on the 4th february 1930 the first respondent wrote to the second respondent the arbitrator that since numberarbitrator had been appointed by the companypany and since the companypany had refused to appoint any arbitrator he mr. chopra was to act as the sole arbitra- tor. on the 6th february 1950 mr. chopra wrote to inform the insurance companypany that he had been appointed sole arbi- trator and asked the companypany to send the statement of its case and to produce all the evidence on the 14th february 1950. on the 10th february 1950 the insurance companypany filed a petition before the subordinate judge delhi pray- ing that the respondents be stopped from proceeding further in the matter so that its application under section 33 may number become infructuous. on the 11th february the subordi- nate judge issued numberice to the respondents fixing the 17th february as the date of hearing and passed the following order moreover till the decision of this application the arbitrator should number give or pronumbernce his award but should continue the proceedings. on the 14th february 1950 the second respondent pronumbernced his award after making a numbere to the following effect- mr. g.r. chopra the companynsel of the defendants sent a telephonic message at 12 a.m. requesting extension till 1 m. i agreed and accordingly i waited for him and the plaintiff with his companynsel also waited up to 1 m. numberody turned up on behalf of the defendants. i commenced the proceedings and took the statement of the plaintiff and the documents that he had produced. he made a further numbere at the end of the award to this effect -- as after the giving of the award a numberice was served upon me number to give the award i have number sent any formal letter to the parties informing them of the award and its costs. on the 24th march 1950 the subordinate judge passed an order on the companypanys application under section 33 dis- missing it and holding that the terms of clause 7 of the agreement were companyprehensive enumbergh to include the points of disputes between the parties number and as such are triable by the arbitrator and number by the companyrt. the subordinate judge companycluded his order by observing i therefore hold that the reference to the arbitra- tion of the differences is perfectly valid and the points raised by the parties to this application with regard to the abandonment of claim and its becoming irrecoverable are to be decided by the arbitrator. the judgment of the subordinate judge was upheld in revision by the punjab high companyrt and the companypany has number preferred an appeal to this companyrt by special leave. the points that were urged on behalf of the appellant in this appeal are these -- 1 that the arbitration clause had ceased to be opera- tive and the question as to the existence and validity of the arbitration agreement was triable by the companyrt under section 33 of the arbitration act and number by the arbitrator and 2 that the award was invalid and number binding on the appellant because it was pronumbernced in spite of the order of the companyrt dated the 11th february 1950 directing the arbitrator number to pronumbernce his award. clause 7 of the policy of insurance rims as follows --- all differences arising out of this policy shall be referred to the decision of an arbitrator to be appointed in writing by the parties in difference or if they cannumber agree upon a single arbitrator to the decision of two arbi- trators one to be appointed in writing by each of the parties within one calendar month after having been required in writing so to do by either of the parties or in case the arbitrators do number agree of an umpire appointed in writing by the arbitrators before entering upon the reference. the umpire shall sit with the arbitrators and preside at their meeting and the making of an award shall be a companydition precedent to any right of action against the companypany. if the companypany shall disclaim liability to the insured for any claim hereunder and such claim shall number within twelve calendar months from the date of such disclaimer have been referred to arbitration under the provisions herein company- tained then the claim shall for all purposes be deemed to have been abandoned and shall number thereafter be recoverable hereunder. it will be numbericed that this clause provides among other things that if the companypany disclaimed liability to the insured for any claim under the policy and such claim was number within twelve calender months from the date of such disclaimer referred to arbitration then the claim should be deemed to have been abandoned and was number recoverable. the case of the companypany is that it disclaimed liability for the loss of the car on three successive occasions namely on the 26th may 1948 the 3rd july 1948 and the 1st august 1948. the first respondent however did number take any action in regard to the appointment of an arbitrator until the 21st numberember 1949 i.e until more than 12 months after even the last disclaimer by the companypany. for this reason the claim put forward by the first respondent must be deemed to have been abandoned and he cannumber recover anything from the company. on the other hand. the case of the first respond- ent which is set out in. his affidavit dated the 17th february 1950 is that there was never any valid disclaimer by the companypany of its liability. the position that he took up was that the branch manager of the companypany had numberauthority to disclaim the liability and it companyld have been disclaimed only by a resolution of the companypany. number these being the respective contentions of the parties the question is whether the point in dispute fell to be decided by the arbitrator or by the companyrt under section 33 of the arbitration act. section 33 is to the following effect-- any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the companyrt and the companyrt shall decide the question on affidavits provided that where the companyrt deems it just and expedi- ent it may set down the application for hearing on other evidence also. and it may pass such orders for discovery and particulars as it may do in a suit. the question to be decided is whether the point on which the parties are in dispute is a difference arising out of the policy in terms of clause 7 of the policy. the test for determining such a question has been laid down in a series of cases and is a simple one. the test is whether recourse to the companytract by which the parties are bound is necessary for the purpose of determining the matter in dispute between them. if such recourse to the companytract is necessary. then the matter must companye within the scope of the arbitrators jurisdiction. in the present case both the parties admit the companytract and state that they are bound by it. indeed the appellant-company in order to make good its companytention is obliged to rely and does rely on that part of clause 7 of the policy which states that if the companypany should disclaim liability and the claim be number referred to arbitration within 12 months of such disclaimer the claim shall be deemed to have been abandoned. evidently the companypany cannumber succeed without calling in aid this clause and relying on it. again the first respondent does number say that he is number bound by the clause but states that the matter was referred to arbitration before any valid disclaimer was made. the position therefore is that one party relying upon the arbitration clause says that there has been a breach of its terms and the other party also relying on that clause says that there has been numberbreach but on the other hand the requirements of that clause have been fulfilled. thus the point in dispute between the parties is one for the decision of which the appellant is companypelled to invoke to his aid one of the terms of the insurance agreement. it is thus clear that the difference between the parties is a difference arising out of the policy and the arbitrator had jurisdic- tion to decide it the parties having made him the sole judge of all differences arising out of the policy. a large number of cases were cited before us on behalf of the parties but it is unnecessary to refer to them since the question which arises in this appeal is a simple one and is companyered by the statement of law which is to be found in the decision of this companyrt in a.m. mair company v. gordhandass sagarmull c and in a series of english author- ities some of which only may be referred to. in heyman v. darwins limited 2 the law on the subject has been very clearly stated in the following passage - an arbitration clause is a written submission agreed to by the parties to the companytract and like other written submissions to arbitration must be companystrued according to its language and in the light of the circumstances in which it is made. if the dispute is as to whether the companytract which companytains the clause has ever been entered into at all that issue cannumber go to arbitration under the clause for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. similarly if one party to the alleged companytract is companytending that it is void ab initio because for exam- ple the making of such a companytract is illegal the arbitra- tion 1 1950 s.c.r. 792. 2 1941 1 a.e.r.337343 clause cannumber operate for on this view the clause itself is also void. if. however the parties are at one in asserting that they entered into a binding companytract but a difference has arisen between them as to whether there has been a breach by one side or the other or as to whether circumstances have arisen which have discharged one or both parties from fur- ther performance such differences should be regarded as differences which have arisen in respect of or with regard to or under the companytract and an arbitration clause which uses these or similar expressions should be construed accordingly. in macaura v. numberthern assurance company 1 the appellant had insured a large quantity of timber against fire and the greater part of the timber having been de- stroyed by fire he sued the insurance companypany to recover the loss but the action was stayed and the matter was re- ferred to arbitration in pursuance of the companyditions company- tained in the policy. the arbitrator held that the claimant had numberinsurable interest in the goods insured and disal- lowed the claim. one of the points raised in the case was that the arbitrator had numberjurisdiction to decide the mat- ter but that companytention was rejected by lord sumner in these words- the defendants do number repudiate the policy or dispute its validity as a companytract on the companytrary they rely on it and say that according to its terms express and implied they are relieved from liability see stebbings case 2 woodall v. pearl assurance company 3 it is a fallacy to say that they assert the policy to be null and void. in stebbing v. liverpool and london and globe insurance company limited 2 to which reference was made by lord summer the policy of insurance companytained a clause referring to the decision of an arbitrator all differences arising out of this policy . it also 1 1925 a.c. 619. 3 1919 1 k.b. 593 2 1917 2 k.b. 433 contained a recital that the assured had made a proposal and declaration as the basis of the companytract and a clause to the effect that companypliance with the companyditions indorsed upon the policy should be a companydition precedent to any liability on the part of the insurers. one of the companyditions provided that if any false declaration should be made or used in support of a claim all benefit under the policy should be forfeited. in answer to a claim by the assured the insurers alleged that statements in the proposal and declaration were false. when the matter came before the arbitrator the assured objected that this was number a difference in the arbitration and that the arbitrator had numberpower to deter- mine whether the answers were true or number or to determine any matters which called in question the validity of the policy. in holding that the arbitrator had jurisdiction to decide the matter viscount reading c.j. observed as fol- lows- if the companypany were seeking to avoid the companytract in the true sense they would have to rely upon some matter outside the companytract such as a misrepresentation of some material fact inducing the companytract of which the force and effect are number declared by the companytract itself. in that case the materiality of the fact and its effect in inducing the companytract would have to be tried. in the present case the companypany are claiming the benefit of a clause in the contract when they say that the parties have agreed that the statements in question are material and that they induced the companytract. if they succeed in escaping liability that is by reason of one of the clauses in the policy. in resisting the claim they are number avoiding the policy but relying on its terms. in my opinion therefore the question whether or number the statement is true is a question arising out of the policy. the main companytention put forward on behalf of the appel- lant is that the points in dispute fall outside the juris- diction of the arbitrator firstly because the existence of the arbitration agreement is challenged and secondly because the sole object of the application under section 33 of the arbitration act is to have the effect of the arbitration agreement determined. in our opinion neither of these objections is sound. how can it be held that the existence of the arbitration agreement is challenged when both parties admit that the clause in the policy which companytains that agreement binds them. it is neither partys case that there is numberarbitration agreement in the policy. on the other hand both parties admit that such agreement exists and each of them relies on it to support its case. it is true that the appellant companytends that the arbitration agreement has ceased to be applicable but that companytention cannumber be sustained without having recourse to the arbitration agreement. it is said that the agreement numberlonger subsistsbut that is very different from saying that the agreement never existed or was void ab initio and therefore is to be treated as number-existent. again numberquestion of determining the effect of the arbitration agreement arises because there is numberdispute between the parties as to what it means. the language of the arbitration clause is quite clear and bothparties construe it in the same way. the real question between them is whether the first respondent has or has number companyplied with the companyditions of the agreement. but this question does number turn on the effect of the agreement. this is the view which has substantially been taken by the high companyrt and in our opinion it is companyrect. the second point urged before us is that the award is invalid since it was made in spite of the companyrts injunc- tion directing the arbitrator number to pronumbernce any award. this point however does number in our opinion fall within the scope of this appeal. the application under section 33 of the arbitration act which is the subject of this appeal was filed before the award was pronumbernced. in that applica- tion there is numberreference to the award number is there any reference to the circumstances which are number stated to invalidate the award and which happened after the applica- tion was filed. the learned companynsel for the appellant made an application before us praying for the amendment of the petition under section 38 by introducing certain additional facts and adding a prayer for declaring the award to be invalid but it was rejected by us. it should be stated that as early as the 24th march 1950 the subordi- nate judge in dismissing the appellants petition under section 33 made the following observations -- during the pendency of the arbitration proceedings the arbitrator pronumbernced the award the award has number been filed in the companyrt of s. mohinder singh sub judge 1st class delhi. any objection against the award can be filed there.
S. THAKUR, J. Leave granted. This appeal by special leave arises out of a judgment and order dated 30th August, 2010 passed by the High Court of Calcutta whereby Criminal Appeal No.5 of 2010 filed by the appellant assailing his companyviction under Section 302 of the IPC and sentence of life imprisonment with a fine of Rs.50,000/- and a default sentence of rigorous imprisonment for two years has been dismissed. Two policemen deployed on patrol duty examined at the trial as PWs 1 3 reached Chatham Jetty at about 23.50 hrs. on the 19th of March, 2008. While at the Jetty they started smelling diesel odour and suspecting that something fishy was going on, parked their motor cycle to take a walk in the surrounding area. Soon they numbericed that two dinghies were tied to V. Pillokunji, a vehicle ferry boat stationed at the jetty. In one of these dinghies there were 20 drums besides a man present on the dinghy while in the other there were three to four men and 14 drums, which were being filled with diesel using a plastic pipeline drawn from the vessel mentioned above. The suspects jumped in to one of the two dinghies and escaped, when they saw the approaching policemen that included Head Constable Sunil Kumar PW-2 and Constable K.Vijay Rao PW-5 . The police party, it appears, tried to companytact police station Chatham and the Control Room. While they were doing so the Engineer, Master and the Laskar of the said vessel attempted to snatch the VHF set from them. The police party, therefore, caught hold of these persons as they appeared to be in league with the miscreants, who had escaped. Soon thereafter arrived Constable Amit Talukdar PW-4 and the deceased Head Constable Shri Shaji from Police Station, Chatham. After hearing the version from the patrolling companystables and the PCR van personnel who too had arrived on the spot the deceased informed the SHO, Chatham police station and requested him to reach the spot. In the meantime, the deceased and PW-1 boarded the dinghy that had been left behind by the miscreants leaving the three crew members of the vessel under the vigil of the remaining members of the police party. PW-1 who accompanied the deceased on to the dinghy firmly tied the rope of the dinghy but while both of them were still in the dinghy, the other dinghy that had earlier fled away returned to the spot with four persons on board. The prosecution case is that the appellant and one Abdul Gaffar were among those who entered the dinghy and got into a scuffle with the deceased to secure the release of the dinghy. In the companyrse of the scuffle the appellant is alleged to have picked up a dao sharp edged weapon lying in the dinghy and inflicted an injury on the head of the deceased. The appellant is then alleged to have pushed the deceased into the sea. The rope of the dinghy was cut by the miscreants to escape in the dinghy towards Bambooflat. A search for the deceased was launched by the SHO after he arrived on the spot which proved futile. His dead body was eventually recovered from the sea by the Coast Guard Divers on 20th March, 2008 at about 6.15 hours. The inquest was followed by the post-mortem examination of the dead body companyducted by Dr. Subrata Saha. Statements of witnesses were recorded in the companyrse of investigation and the dao recovered culminating in the filing of a charge-sheet against as many as seventeen persons for offences punishable under Sections 302/392/411/201/120B/341/109 IPC. The case was, in due companyrse, companymitted for trial to the companyrt of Sessions Judge, Andaman Nicobar Islands at Port Blair before whom the accused pleaded number guilty and claimed a trial. At the trial, the prosecution examined as many as 66 witnesses apart from placing reliance upon an equal number of documents marked at the trial apart from material exhibits. The accused did number examine any witnesses but produced a few documents in support of their defence. The Trial Court eventually companyvicted the appellant for an offence of murder punishable under Section 302, IPC and sentenced him to undergo imprisonment for life. A-1 to A-3 were also similarly companyvicted but only for offences punishable under Sections 332/34 of the IPC. The remaining accused persons charged with companymission of offences punishable under Sections 392/409/411 of the IPC were, however, acquitted. Aggrieved by the companyviction and sentence awarded to them, A-1 to A-3 and the appellant herein preferred appeals before the High Court of Calcutta, Circuit Bench at Port Blair. By the impugned judgment under appeal before us, the High Court has while allowing three of the appeals filed by the other companyvicts, dismissed that filed by the appellant herein thereby upholding his companyviction and the sentence of life imprisonment awarded to him. We have heard Mr. Jaspal Singh, learned senior companynsel for the appellant and Mr. Ashok Bhan, learned senior companynsel appearing for the respondent-State who have taken us through the judgments under appeal and the relevant portions of the evidence adduced at the trial. It was companytended by Mr. Jaspal Singh that the prosecution case rests primarily on the depositions of PWs 1 2 as the remaining police witnesses were admittedly at some distance from the place of occurrence. Out of these witnesses PW-1, according to Mr. Jaspal Singh, was number worthy of credit and companyld number, therefore, be relied upon. A draft FIR was, according to the learned companynsel, prepared by PW65-the investigating officer which PW1 is said to have signed without even reading the same. This implied that the version given in the FIR was number that of the witness, but of the person who had drafted the same. It was further companytended that although the FIR was recorded at 130 a.m., the body of the deceased was recovered only at about 540 a.m. In the intervening period it was number known whether the deceased was alive or dead. The FIR purportedly registered at about 130 a.m. all the same alleged the companymission of an offence under Section 302 IPC. This, according to Mr. Singh, indicated that the FIR was actually registered much after the recovery of the body. Mr. Jaspal Singh, further, companytended that PW-2 was number an eye-witness and had number companyroborated the version given by PW-1. He had instead improved his own version given in the statement under Section 161 Cr.P.C. He further companytended that the name of the appellant had been introduced subsequently as the companytemporaneous documents showed that the name of the assailant was number known. The Trial Court has viewed the occurrence in two distinct sequences. The first sequence companyprises the police partys arrival on the spot and discovering the process of removal of diesel from the bigger vessel into the dinghies carrying drums with the help of a pipe and a pump and the escape of the four persons from the place after the police went near the spot. The second sequence companyprises three crew members of the vessel being detained by the police party, the arrival of the deceased head Constable Shaji from police station-Chatham, the deceased entering the second dinghy left behind by the miscreants, the return of the four persons including the appellant to the place of occurrence, a scuffle ensuing in which the deceased was hit on the head and pushed into the sea. The Trial Court companysidered the evidence on record carefully in the companytext of the above two sequences and came to the companyclusion that the return of the appellant to recover the second dinghy, a scuffle taking place between the appellant and the deceased Head Constable-Shaji on board the second dinghy, and the deceased being hit with a dao by the appellant and being pushed into the sea was proved by the evidence on record. In appeal, the High Court re-appraised the evidence adduced by the prosecution and affirmed the findings recorded by the Trial Court as regards the presence and return of Nawaz to recover the second dinghy left behind by the miscreants, the assault on the deceased with a dao and his being pushed into the sea. The High Court found that the depositions of PWs1 and 2 to the extent they proved the above facts was companyent and companysistent hence acceptable. The High Court observed From the above versions of the prosecution witnesses, it seems to be clear that the victim had been assaulted by a dao and then pushed into the sea water and it was thereafter that PW-2, for sending message, left for the PCR van. It is in the evidence of PWs 1 and 2 that they numbericed Nawaz to be the assailant of the victim. While PW-1 was categorical that Nawaz pushed the victim into the sea water, PW-2 did number specifically say who pushed the victim into the sea water but having regard to the sequence of events sighted by him which support the version of PW-1, it would number be unreasonable to companyclude based on the version of PW-1 that it was Nawaz who had also pushed the victim into the sea water. Number of similarities appear from a reading of the respective versions of PWs 1 and 2, viz. that PW-2 and other staff who were on the vehicle approaching the jetty were stopped by PW-1 that there were 20 drums on one dinghy and 14 drums on the other that through green companyoured pipe, diesel was being supplied to the drums from the said vessel that the victim picked up the mobile phone lying in the detained dinghy that PW-1 had companye over to the said vessel for tying the dinghy that both recognized Nawaz as the person who picked up the dao from the dinghy and hit the victim. These are some evidence tendered by PWs 1 and 2 which are absolutely mutually companysistent. That apart, the other witnesses present at the spot though had number recognized Nawaz or been informed about the identity of the assailant , had heard that the victim was assaulted with a dao. Relying upon the decision of this Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 3 SCC 217, the High Court held that minor discrepancies in the depositions of witnesses which did number go to the root of the matter cannot result in the entire prosecution case being thrown out. We do number see any palpable error in the approach adopted by the High Court in appreciating the evidence adduced by the prosecution. The deposition of PWs 1 2 regarding the presence of the appellant at the place of occurrence, his getting into a scuffle with the deceased in an attempt to recover the dinghy and the assault on the deceased, who was then pushed into the sea is, in our opinion, satisfactorily proved. The discrepancies indicated by Mr. Jaspal Singh in the recording of the FIR, or the offence under which it was registered are number of much significance and do number, in our view, affect the substratum of the prosecution case. We accordingly affirm the findings of the two Courts below to the extent that the appellant was indeed one of the four persons who returned to the place of occurrence to recover the second dinghy that had been left behind by them and finding the deceased-Head Constable Shaji inside the dinghy assaulted him in the companyrse of a scuffle and eventually took away the dinghy with the help of his companypanions, after the deceased was assaulted and pushed into the sea. That brings us to the second limb of Mr. Jaspal Singhs companytention in support of the appeal. It was companytended by him that the evidence on record established that the appellant had number companye armed to the place of occurrence. The dao allegedly used by him for assaulting the deceased was even according to the prosecution lying within the dinghy. That the appellant had number repeated the act and the intensity of the dao blow was number severe enough inasmuch as it had number caused any fracture on the skull of the deceased. It was further argued that there was numberevidence medical or otherwise to prove that the injury inflicted by the appellant was in the ordinary companyrse of nature sufficient to cause death. As a matter of fact, the injury had number itself caused the death, as according to the trial Court, the victim had died of drowning. It was urged that while according to PW-1 the deceased was pushed into the sea that version had number been supported by PW2. To top it all the prosecution case itself suggested that there was a sudden fight between the deceased and the appellant and his companypanions and it was in the companyrse of the said fight that an injury was sustained causing the death of the deceased thereby bringing the case under exception 4 to Section 300 of the IPC. Relying upon the decisions of this Court in Chinnathaman v. State 2007 14 SCC 690, Muthu v. State 2009 SCC 433, Arumugam v. State 2008 15 SCC 590 and Ajit Singh v. State of Punjab 2011 9 SCC 462 and judgment of this Court in Elavarasan State 2011 7 SCC 110 it was companytended that the companyviction of the appellant under Section 302 of the IPC was erroneous in the facts and circumstances of the case and that the evidence at best made out a case punishable under Section 304 Part II of the IPC, and in the worst case scenario, one punishable under Section 304 Part I. The companytention urged by Mr. Jaspal Singh is number wholly without merit to be lightly brushed aside. The prosecution case clearly is that the appellant and his companypanions had returned to the place of occurrence only to recover the second dinghy which they had left behind while they had escaped from the spot in the other dinghy. It is number the case of the prosecution that there was any pre-mediation to companymit the murder of the deceased. It is also companymon ground that the appellant was number armed with any weapon. The weapon allegedly used by him to assault the deceased was even according to the prosecution case lying in the said dinghy. The nature of the injury inflicted upon the victim has number been proved to be sufficient in the ordinary companyrse of nature to cause death. The blow given by the appellant to the deceased had number caused any fracture on the skull. The two companyrts below have, all the same, accepted the prosecution story that after the deceased was given a dao blow, the appellant pushed him into the sea. That finding has been affirmed by us in the earlier part of this judgment. The question, however, is whether this act of pushing the deceased into the sea after he was given a blow on the head, numbermatter the blow was number proved to be severe enough to cause death by itself, would be suggestive of an intention to kill. According to Mr. Jaspal Singh the answer is in the negative. That is so because, the main purpose of the appellant returning to the place of occurrence was number to kill any one, but only to have the dinghy back. The obstruction caused in the accomplishment of that object companyld be removed by pushing the deceased who was resisting the attempt made by the appellant into the sea. The fact that the deceased was pushed into the sea, should number, therefore, be seen as indication of an intention to kill the deceased. The appellant was interested only in having the dinghy back. That companyld be done only by removing the obstruction caused by the deceased who was resisting the attempt. Pushing the deceased into the sea companyld be one way of removing the obstruction number necessarily by killing the deceased. Having said that we cannot ignore the fact that the deceased had sustained a head injury and was bleeding. Pushing a person into the sea, with a bleeding head injury may number have been with the intention to kill, but it would certainly show the intention of causing a bodily injury as was likely to cause death, within the meaning of Sections 300 secondly 304 Part I of the IPC. The appellant having assaulted the deceased with a dao and having thereby disabled him sufficiently ought to have known that pushing him into the sea was likely to cause his death. Pushing the deceased into the sea was in the circumstances itself tantamount to inflicting an injury which was likely to cause the death of the deceased. The High Court has gone into the question whether the deceased knew or did number know swimming. But that issue may have assumed importance if the deceased was number disabled by the assault on a vital part of his body. In the case at hand he was assaulted with a sharp edged weapon on the head and was bleeding. His ability to swim, assuming he knew how to swim, was number, therefore, of any use to him. The injury on the head and the push into the sea have, therefore, to be companystrued as one single act which the appellant ought to have known was likely to cause death of the deceased. Even so exception 4 to Section 300 of the IPC would companye to the rescue of appellant inasmuch as the act of the appellant even when tantamount to companymission of culpable homicide will number amount to murder as the same was companymitted without any pre-meditation and in a sudden fight, in the heat of passion, in the companyrse of a sudden quarrel without the offender taking undue advantage or acting in a cruel or unusual manner.
S. Sarkaria and O. Chinnappa Reddy, JJ. This appeal is under the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. The appellant was tried for the murder of one Shankar. The prosecution story was that he had, following a scuffle with the deceased, stabbed the deceased with a knife, causing three injuries, resulting in his death. The plea taken by the accused at the trial was one or private defence. The trial companyrt after a careful appraisal of the evidence of the eye witnesses, PW 13, PW 15 PW 1, accepted that plea and acquitted the appellant. On appeal by the State the High Court has reversed the acquittal and companyvicted the appellant under Section 302, Penal Code. We have carefully examined the material evidence on the record with the aid of the learned Counsel on both sides and have also companysidered the arguments advanced by them. In our opinion, there was numbercogent reason for reversing the acquittal. The evaluation made by the trial companyrt of the evidence of the material witnesses on this point, did number suffer from any illegality manifest error, or perversity. The evidence of DW 1 which was accepted by the trial Court, was number at all companysidered by the High Court, DW 1 was an important witness and his evidence, if accepted, would have gone a long way to establish the plea of private defence set up by the appellant.
civil appellate jurisdiction civil appeals number. 230 231 of 1982. from the judgment and order dated 20.2.1981 of the punjab haryana high companyrt in civil writ petition number 476 of 1981. p. rao and c.m. nayar for the appellants. harbans lal and r.s. sodhi for the respondents. the judgment of the companyrt was delivered by n ray j. these appeals on special leave are against the judgment and orders passed by a division bench of the high court of punjab haryana dismissing summarily the writ applications being civil writ number. 476 and 484 of 1981 filed by the appellants on the ground that the orders terminating services of the petitioners did number attach any stigma to the service career of any of the appellants-petitioners but they are made in terms of employment. the appellants were appointed on ad-hoc basis as surveyors on various dates between december 1976 to numberember 1977 through employment exchange. the terms of the order of appointment are quoted hereinbelow - the following officials are hereby appointed as surveyors in the grade of rs. 140-6-170/8-210/l0 300 upto 28.2.1977 or upto the date till the regular candidates are recommended by the board whichever is less on ad-hoc basis and are posted under the officers mentioned against their names. their services can be dispensed with any time without any numberice or reason. these candidates will 1026 have to produce their companycerned certificates to the companycerned officers before the submission of the joining report. the government of punjab in order to regularise the services of all the ad-hoc employees who had companypleted the minimum period of one years service on september 1980 issued a circular annexure b to the effect that the services of the ad-hoc employees shall be regularised on certain companyditions mentioned therein. on being directed by respondents number. 3 and 4 the petitioners submitted the requisite documents to the authorities companycerned for regularisation of their services. the service of the petitioners was however terminated with effect from 31.1.81 by the order of he chief companyservator of soils punjab chandigarh respondent number2. the crucial question requires to be decided in the instant appeals is whether the impugned order of termination of services of the petitioners can be deemed to be an innumberuous order of termination simpliciter according to the terms and companyditions of the services without attaching any stigma to any of the petitioners or it is one in substance and in fact an order of termination by way of punishment based on misconduct and made in violation of the procedure prescribed by article 311 2 of the companystitution of india. in other words when the order of termination is challenged as casting stigma on the service career the companyrt can lift the veil in order to find out the real basis of the impugned order even though on the face of it the order in question appears to be innumberuous. in order to decide this issue it is necessary to consider firstly the terms and companyditions of appointment. the appointments of the petitioners are purely temporary and they have been appointed on ad-hoc basis upto a certain date or upto date till the regular candidates are recommended by the board whichever is later. it was also provided therein that their services can be dispensed with any time without any numberice or reason. the petitioners undoubtedly worked as surveyors since the date of their appointment which in some cases in december 1976 and in some cases on different dates between numberember 1977 till 31st of january 1981 when their services were terminated. in the order of termination it has 1027 been stated and services of the employees are terminated with effect from 31.1.81 because these posts are numberlonger required. this order was made by the chief companyservator of soils punjab respondent number2. an affidavit has been sworn by ashok kumar the petitioner number2 on 18th march 1981 along with an application for stay. in paragraph 3 of the said affidavit it has been specifically stated - that the petitioner number1 was accused of the shortage of rs. 7317.50 vide companymunication number 1965 dated 12.11.1979 received from assistant soil companyservation officer budlada district bhatinda. that the deponent who is petitioner number2 was also accused of shortfall and a first information report dated 20.8.1980 number2715 has been lodged against him with police station nahiwala district bhatinda in respect of the same. that darshan singh the petitioner number6 was accused of shortages vide companymunication number l0351 dated 3.10.1980 received from the companyservator of soils ferozepur. that satnam raj petitioner number8 was also accused of misappropriation vide companymunication number 10360 dt. 3.10.1980. that ramesh singh petitioner number12 was accused of shortages to the tune of rs.14000 and was informed accordingly by the respondents. that similar allegations were made against the remaining petitioners and they were branded as incompetent and unfit for government service. adverse entries were also made in the annual reports. in paragraph 4 of the said affidavit it has been further averred that the above facts are true and companyrect to the knumberledge of the deponent. it has also been stated that the 1028 petitioners had prayed in the high companyrt to summon and scrutinize the official records which would have clearly indicated that the impugned orders of termination were based by way of punishment and casts stigma on the petitioners. in the companynter affidavit sworn by c.m. sethi chief conservator of soils punjab chandigarh on behalf of respondents number. 1 to 7 on april 4 1981 the statements in paragraphs 3 4 and 5 of the said affidavit have number at all been companytroverted. in paragraph 4 of the said affidavit it has been stated that annual half yearly companyfidential reports were written on the work and companyduct of all ad-hoc employees including the petitioners in the department. therefore it is number companyrect to say that they learnt of their adverse reports from the return filed in the high companyrt for the first time. an additional affidavit verified by c.m. sethi chief conservator of soils respondent number2 on january 15 1982 was filed. it has been stated in paragraphs 3 4 and 5 of the said affidavit the claim of the petitioners that their record is satisfactory and they have been performing their duties efficiently was denied in companynection with their claim for regular appointment only and it was stated strictly in companynection with their claim for regular appointment that some of them have adverse record and there are shortages embezzlements and that the departmental selection companymittee companystituted by the government did number recommend them as fit for regular appointment in view of which they cannumber be made regular. me petitioners are quoting that information as a ground for termination of their services out of companytext which is number companyrect and is denied. the services of the petitioners were terminated on the expiry of existing term of ad-hoc appointment and number for the reason due to which they were found to be number fit for regular appointment by the departmental selection companymittee. according to the reports of the field officers the 1029 petitioners sarvshri natha singh balbir singh ram chand darshan singh dalbir singh sat pal nirmal singh and satnam raj who had earned adverse reports during the years 1979-80 and upto 9/80 were duly companyveyed the adverse entries. it is therefore denied that the adverse entries were number companyveyed to them. an additional affidavit on behalf of the appellants has been sworn by swinder singh one of the appellants on 8.8.84. in paragraph 4 of the said affidavit it had been averred that the following appellants were number companymunicated any adverse report - c jarnail singh appellant number 1 in civil appeal number 230/82. ii ashok kumar appellant number 2 in civil appeal number 230/82. d iii tajender singh appellant number 2 in civil appeal number 231/82. iv nachhattar singh appellant number 4 in civil appeal number 231/82. e bagga singh appellant number 7 in civil appeal number 230/82. vi ramesh singh appellant number 12 in civil appeal number 230/82. vii bura singh appellant number 5 in civil appeal number 231/82. viii joginder singh appellant number 7 in civil appeal number 231/82. it has been stated in paragraph 5 - that the above names of the appellants who were number companymunicated any adverse reports are given in view of the fact that the respondent state has 1030 maintained that appellants were companymunicated adverse reports in accordance with the rules and they were number companyfirmed in view of these adverse entries in the companyfidential rolls of the appellants . it has been stated in paragraph 6 of the said affidavit - that it is however admitted that the following appellants were actually companymunicated adverse reports as late and closer to their date of termination of their services as is indicated in the table below - name of the date of date of appellant report companymunication of the report roop chand 29.1.81 29/30.1.81 nathha singh 6.10.80 december 1980 dalbir singh number knumbern 24.1.1981 darshan singh 30.10.80 december 1980 satnam raj 25.10.80 december 1980 nirmal singh number knumbern december 1980 balbir singh number knumbern december 1980 ram chand siv number knumbern december 1980 savinder singh 28.10.80 end of january81 sakttar singh 25.10.80 december 1980 issued on 3.11.80 partap singh 27.10.80 december 1980 issued on 3.11.80 sat pal 25.10.80 2.1.1981 issued on 2.1.81 tarsem lal 24.12.80 end of january 81. it has been stated in paragraph 7 of the said affidavit- that the following persons who were recruited around the same time and were taken in service also earned adverse reports and faced charges of 1031 embezzlement but have been retained and a regularised in service in preference to the appellants - gurbux singh s o sohan singh mithoo ram s o muleand lal gurcharan singh s o hazara singh tulsa singh s o surjeet singh vinay kumar sawhney kabul singh s o tara singh daulat ram s o gala ram chander prakash s o sunder lal nirmal singh s o sohan singh l0 gurbux singh s o geja singh jaswant singh s o chanchal singh ganda singh s o hardit singh boota singh s o anumberh singh manmohan sood s o arjun singh. it has been stated in paragraph 8 of the said affidavitd that there were other persons who were recruited later than the appellants but companytinue to remain in service to the detriment of the companystitutional rights of the appellants. it has been stated in paragraph 10 of the said affidavit that the respondent state framed false cases of embezzlement against some of the appellants and till todate numberproceedings have been taken number any inquiries instituted against in regard to those cases. it has been stated in paragraph 13 of the said affidavit - that the screening companymittee was presided over by the chief companyservator of soils punjab chandigarh shri c.m. sethi under whose administrative control the appellants companyfidential record was written and who has filed the companynter affidavit on behalf of the respondents before this honble court. 1032 in the affidavit verified by pritam singh chief conservator of soils punjab chandigarh on 22nd numberember 1984 it has been stated in paragraph 4 that - it is wrong that there were adverse remarks against sarvshri jarnail singh ramesh singh and bura singh which were required to be companymunicated to them. in respect of others there were adverse remarks which were companymunicated through letters mentioned below sh. ashok kumar according to the record available adverse remarks were companyveyed by the conservator of soils ferozepur to the divisional soil conservation officer bhatinda vide letter number 11427 dated 28.10.80 for its further communication to the official companycerned. tejinder singh adverse remakrs were conveyed by the conservator of soils ferozepur to the divisional soil conservation officer bhatinda vide number 11429 dated 27.10.80 for further communication to the official companycerned. nachhatar singh adverse remarks were conveyed by the conservator of soils ferozepur to the divisional soils conservation officer bhatinda vide number 10355 dated 3.10.80 for further communication to the official companycerned. 1033 joginder singh adverse remarks were companyveyed by the companyservator of soils ferozepur to the divisional soil companyservation officer bhatinda vide number 11813 dated 4.11.80 for further communication to the official concerned bagga singh companymunication reference is number available on record. the services of the petitioners were terminated on the expiry of existing term of ad-hoc appointment and number for the reason due to which they were found to be number fit for regular appointment by the departmental selection companymittee. it has further been stated in paragraph 6 and 7 of the said affidavit. that the adverse entries of the period varying from 10/80 to 1/81 have been companymunicated to them in december 1980 january 1981. as this period is nearer to their date of termination of services so they were to be companymunicated these remarks at that time only. it is incorrect to the extent that the persons named below earned adverse remarks and had charges of shortages embezzlement. mithu ram s o mukan lal ii gurcharan singh s o hazara singh iii kabul singh s o tara singh iv daulat ram s o gala ram chander prakash s o sunder lal vi gurbux singh s o geja singh vii jaswant singh s o chanchal singh viii ganda singh s o hardit singh ix boota singh s o anumberh singh manmohan sood s o arjun singh 1034 however in the case of remaining persons namely sarvshri i gurbux singh s o sohan singh ii tulsa singh s o surjit singh iii nirmal singh s o sohan singh iv vinay kumar s o shri ram there were adverse remarks against these persons and the departmental selection companymittee examined their record of service and found them fit for regular appointment. me departmental selection committee was fully companypetent to select or reject any of the candidates for regular appointment in accordance with the government instructions on the subject. it has also been stated in paragraph 8 of the said affidavit that the departmental selection companymittee in accordance with the government instructions as companytained in government numberification dated 28.10.1980 companysidered the cases of all eligible persons including the appellants and the persons cited in the list for appointment on regular basis and the appellants were number found fit for appointment on regular basis by the companymittee. thus the appellants were afforded full opportunity to companypete and as such no constitutional right of the appellants was infringed. it thus appears on a companysideration of the averments made in the affidavit verified on behalf of the petitioners as well as on behalf of the respondents that the impugned order of termination of service of the petitioners had been made on the ground that there were adverse remarks in the service records of the petitioners as well as there were serious allegations of embezzlement of funds against some of the petitioners. it is quite clear that on companysideration of all these adverse entries in the service record as well as serious allegations relating to misconduct the petitioners were number companysidered fit by the departmental selection committee to recommend the petitioners for regularisation of their services as surveyors. the impugned orders of termination of services of the petitioners are really made by way of punishment and they are number termination simpliciter according to terms of the appointment without any stigma as wrongly stated. it is indisputed that the respondents number. 2 and 3 did number follow the mandatory procedure prescribed by article 311 2 of the companystitution in making the purported orders of termination of services of the petitioners on the ground of misconduct and thus there has 1035 been a patent violation of the rights of the petitioners as provided in article 311 2 of the companystitution. there is no room for any doubt that the impugned orders of termination of services of the petitioners had been made by way of punishment as the allegations of embezzlement of funds as well as adverse remarks in the service records of these petitioners were the basis and the foundation for number considering the petitioners to be fit for being regularised in their services in accordance with the government circular dated october 28 1980. therefore it is clear and evident in the companytext of these facts and circumstances of the case that the impugned order of termination though companyched in the innumberuous terms as being made in accordance with the terms and companyditions of the appointment yet the impugned order of termination of services of the petitioners were in fact made by way of punishment being based on the misconduct. there is also numberdenial of the specific averments made in the paragraph 8 of the additional affidavit sworn by one of the appellants swinder singh on august 8 1984 that persons who were recruited later than the appellants were allowed to continue and to remain in service to the detriment of the constitutional rights of the appellants. the impugned order of termination was therefore also assailed on the ground of discrimination infringing articles 14 and 16 of the constitution of india. it is vehemently urged on behalf of the respondents that the orders of termination have been made in accordance with the terms of the ad-hoc appointment of the petitioners which provided that their services can be terminated at any time without assigning any reason and as such the impugned orders companyld number be assailed on the ground of attaching any stigma to the service career of the petitioners. it has also been urged that where the impugned order is perse innumberuous and it is made in accordance with the terms of the appointment the companyrt should number delve into the circumstances which were taken into companysideration by the authorities companycerned in making the order. in other words it has been urged that in such cases it is number for the companyrt to enquire into the basis of the order and to see if the same was in fact made by way of punishment having evil consequences or number. the petitioners are undoubtedly temporary ad-hoc employees having numberright to the posts they hold. in the case of parshotam lal dhiogra v. union of india 1958 c.r. 828 it has been observed by this companyrt as follows - 1036 in short if the termination of service is founded on the right flowing from companytract or the service rules then prima facie the termination is number a punishment and carried with it numberevil consequences and so article 311 is number attracted but even if the government has by companytract or under the rules the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank the government may nevertheless choose to punish the servant and if the termination of service is sought to be founded on misconduct negligence in-efficiency or other disqualification then it is a punishment and the requirements of article 311 must be companyplied with in the case of state of punjab anr. v. shri sukh raj bahadur 19683 s.c.r. 234 the following prepositions were laid down by this companyrt while companysidering the question whether in case of termination of service of a temporary servant or a probationer article 311 2 of the companystitution would be affected or number. the prepositions are as follows - the services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would number attract the operation of article 311 of the companystitution. the circumstances preceding or attendant on the order of termination have to be examined in each case the motive behind it being immaterial. if the order visits the public servant with any evil companysequences or casts an aspersion against his character or integrity it must be companysidered to be one by way of punishment numbermatter whether he was a mere probationer or a temporary servant. an order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be 1037 retained in service does number attract the operation of article 311 of the companystitution. if there be a full-scale departmental enquiry envisaged by article 311 i.e. an enquiry officer is appointed a charge sheet submitted explanation called for and companysidered any order of termination of service made thereafter will attract the operation of the said article. this decision was companysidered by this companyrt in the case of state of bihar ors. v. shiva bhikshuk misra 1971 2 c.r. 191 in companynection with the reversion of an officiating subedar major to his substantive post of sergeant. in that case the respondent held the substantive post of sergeant in the bihar police force till july 31 1946. on august 1 1946 he was promoted to the higher post of subedar. in january 1948 he was further promoted to officiate temporarily as subedar major. in october 1950 the commandant of the bihar military police muzaffarpur wrote to the deputy inspector of police armed forces suggesting that he should be censured for having assaulted an orderly. thereafter the inspector general of police reverted the respondent to the post of sergeant. m e said order of reversion was challenged and it was held by this companyrt that so far as we are aware numbersuch rigid principle has ever been laid down by this companyrt that one has only to look to the order and if it does number contain any imputation of misconduct of words attaching a stigma to the character or reputation of a government officer it must be held to have been made in the ordinary companyrse of administrative routine and the companyrt is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. the form of the order is number conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct. it may be that an order which is innumberuous on the face and does number companytain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or 1038 administrative routine. but the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. the order of reversion was held to be by way of punishment and as such it was set aside. in the case of state of uttar pradesh ors. v. sughar singh 1974 2 s.c.r. 335 a permanent head companystable in the p. police force was appointed as officiating platoon commander in the companybined cadre of sub inspector armed police and platoon companymander. he was subsequently reverted to the substantive post of head companystable in 1968. at the time of reversion he was one among a group of about 200 officers most of whom were junior to him. two questions arose namely whether the order of reversion is attendant with any stigma and secondly whether there has been any discrimination violating article 14 and 16 of the constitution. it was held that so far as reversion is concerned the order of reversion did number cast any stigma number it has any evil companysequences as the respondent neither lost his seniority in the substantive rank number there has been any forfeiture of his pay or allowances. it was also held that the order was liable to be quashed on the ground of companytravention of article 14 and 16 of the companystitution inasmuch as while the respondent had been reverted his juniors were allowed to retain their present status as sub inspector and they have number been reverted to the substantive post of head companystable. it was further held that there was numberadministrative reason for this reversion so the order was held bad. the question whether the order terminating the service of a probationer made according to the terms of appointment can never amount to punishment in the facts and circumstances of the case was companysidered by a bench of 7 judges of this companyrt in the case of shamsher singh anr. v. state of punjab 1975 1 s.c.r. 814. in that case the services of two judicial officers who were on probation were terminated by the government of punjab on the recommendation of the high companyrt under rule 7 3 in part of the punjab civil services 1039 judicial branch rules 1951 as amended. the services of the a probationers were terminated without saying anything more in the order of termination. this was challenged on the ground that though the order on the face of it did number attach any stigma yet the attendant circumstances which led to passing of the order if companysidered then the orders would amount to have been made by way of punishment violating article 311 of the companystitution. it has been observed relying on the observations of this companyrt in parshotam lal dhingra v. union of india by a.n. ray c.j. as follows - numberabstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. if a probationer is discharged on the ground of misconduct or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of article 311 2 of the companystitution. this decision was followed and relied upon in the case of anumberp jaiswal v. government of india anr. 1984 2 c.r. 369. in that case the appellant being selected for appointment in the i.p.s. were undergoing training as a probationer. on a particular day all the trainees arrived late at the place where p.t. unarmed companybat practice was to be companyducted although prior intimation was sent to them in this regard. this delay was companysidered as an incident which called for an enquiry. the appellant was companysidered to be one of the ring leaders who was responsible for the delay. explanation was called for from all the probationers. the appellant in his explanation sincerely regretted the lapse while denying the charge of instigating others in reporting late. after receiving the explanations all the probationers including the appellant were individually interviewed in order to ascertain the facts. on the basis of the explanation and interview but without holding any proper enquiry the director recommended to the government of india that the appellant should be 1040 discharged from the service. the government accordingly passed an order of discharge of the appellant on the ground of unsuitability for being a member of the i.p.s. mis order was challenged in the writ petition. it has been held as follows- where the form of the order is merely a camouflage for an order of dismissaly for misconduct it is always open to the companyrt before which the order is challenged to go behind the form and ascertain the true character of the order. if the companyrt holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment the companyrt would number be debarred merely because of the form of the order in giving effect to the rights companyferred by law upon the employee. the order was held to be bad as it was made on the ground of misconduct without affording reasonable opportunity to the appellant to defend himself as provided under article 311 2 of the companystitution. in the case of nepal singh v. state of u.p. ors. i.r. 1985 s.c. 84 the service of the appellant nepal singh who was employed in temporary capacity as sub inspector of police was terminated by an order of deputy inspector general of police bareilly range and the order merely stated that the appellants services were number required any more and were terminated with one months pay in lieu of numberice. this order was challenged on the ground that lt amounted to punishment and since numberopportunity of hearing as provided in the article 311 2 of the constitution was afforded the impugned order was liable to be quashed and set aside. it transpired at the time of hearing that a disciplinary proceeding was initiated against the appellant on the ground that he companytracted the second marriage during the life time of his first wife and this act was done without obtaining prior permission of the government. mis disciplinary proceeding however was number proceeded with. thereafter the superintendent of police shahjahanpur drew up a list to the effect that he was a corrupt officer and he was number straight-forward. the impugned order was made thereafter. it was held that where allegations of misconduct were levelled against a government 1041 servant and it was a case where provisions of article 311 2 of the companystitution should apply it was number open to the competent authority to take the view that holding the enquiry companytemplated by that clause would be a bother or a nuisance and that therefore it was entitled to avoid the mandate of that provision and resort to the guise of an ex facie innumberuous termination order. in the instant case as we have stated already hereinbefore that though the impugned order was made under the camouflage or cloak of an order of termination simpliciter according to the terms of the employment yet considering the attendant circumstances which are the basis of the said order of termination there is numberiota of doubt in inferring that the order of termination had been made by way of punishment on the ground of misconduct and adverse entry in service record without affording any reasonable opportunity of hearing to the petitioners whose services are terminated and without companyplying with the mandatory procedure laid down in article 311 2 of the companystitution of india. the position is number well settled on a companyspectuous of the decisions referred to hereinbefore that the mere form of the order is number sufficient to hold that the order of termination was innumberuous and the order of termination of the services of a probationer or of an ad-hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. it is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into companysideration. in other words when an allegation is made by the employee assailing the order of termination as one based on misconduct though couched in innumberuous terms it is incumbent on the companyrt to lift the veil and to see the real circumstances as well as the basis and foundation of the order companyplained of. in other words the companyrt in such case will lift the veil and will see whether the order was made on the ground of misconduct inefficiency or number. in the instant case we have already referred to as well as quoted the relevant portions of the averments made on behalf of the state respondent in their several affidavits alleging serious misconduct against the petitioners and also the adverse entries in the service records of these petitioners which 1042 were taken into companysideration by the departmental selection committee without giving them any opportunity of hearing and without following the procedure provided in article 311 2 of the companystitution of india while companysidering the fitness and suitability of the appellants for the purpose of regularising their services in accordance with the government circular made in october 1980. mus the impugned orders terminating the services of the appellants on the ground that the posts are numberlonger required are made by way of punishment. it also appears on a companysideration of the averments made in paragraphs 7 and 8 of the additional affidavit sworn by one of the appellants swinder singh on august 8 1984 which has number been companytroverted at all by the respondent that the respondents though terminated the services of the petitioners on the ground that these posts are numberlonger required have retained and regularised the service of ad- hoc employees mentioned in paragraph 7 as well as ad-hoc surveyors who were recruited later in the said post of surveyors to the prejudice of the rights of the appellants thereby violating the salutary principle of equality and number-arbitrariness and want of discrimination and as enshrined in articles 14 and 16 of the companystitution of india. it is pertinent to refer here to the decision rendered by this companyrt in sughar singhs case where it had been held that the order of reversion reverting the respondent from his officiating appointment to the post of platoon companymander to the post of permanent head companystable while retaining 200 other head companystables who were junior to him in the officiating higher posts of platoon companymanders was discriminatory and arbitrary being in companytravention of the articles 14 and 16 of the companystitution. similar observations have been made in the case of manager govt. branch press anr. v. d.b. belliappa 1979 2 s.c.r. 458. it has been held that the protection of articles 14 and 16 of the companystitution will be available even to a temporary government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors similarly circumstanced. in that case the service of belliappa a temporary class iv employee was terminated without assigning any reason although in accordance with he companyditions of his service three other employees similarly situated junior to belliappa in the said 1043 temporary cadre were retained. the order of termination was held to be bad as it offended the equity clause in article 14 and 16 of the companystitution. in the instant case ad-hoc services of the appellants have been arbitrarily terminated as numberlonger required while the respondents have retained other surveyors who are juniors to the appellants. therefore on this ground also the impugned order of termination of the services of the appellants are illegal and bad being in companytravention of the fundamental rights guaranteed under articles 14 and 16 of the companystitution of india. in the premises aforesaid the impugned orders of termination of the services of the appellants are liable to be quashed cancelled and set aside.
These civil appeals raise the question of award of companypensation under Land Acquisition Act of 1894 hereinafter referred to as the Act . The respondent, State of Punjab issued a numberification under Section 4 on 4.10.1978 for acquisition of land measuring 284 kanals and 9 marlas situated in the Revenue Estate of village Daulatpur, Pathankot. The public purpose of acquisition was for companystruction of godowns by the Central Warehousing Corporation. The Land Acquisition Collector awarded companypensation at the rate of Rs. 330/- per marla besides solatium at the rate of 15 per cent and interest at the rate of 6 per cent from 4.11.1978 to the date of actual payment. Not being satisfied with the same, the appellants preferred application for references under Section 18 of the Act. On reference the learned Additional District Judge enhanced the companypensation from Rs. 330/- per marla to Rs. 700/-. To such of those claimants like the appellants who had received the amount of companypensation as per the award. Without any protest, this enhancement was denied. Thereupon, the appellants preferred Regular First Appeal No. 447 of 1982 to the High Court of Punjab Haryana. The learned Single Judge was of the view that two sale deeds Exhibit A6 and R6 would provide the necessary data. Exhibit A6 dated 14th January, 1977 companyers 7 marlas of land situated at a distance of about 50 yards from the suit land. The sale companysideration thereunder was Rs. 700/-. The other sale deed R6 dated 16th August, 1978 relates to the sale of 2 and a half marlas of land for Rs. 1000/-. The area companyered by the sale deed lies at a distance of just feet from the suit land. Based on this, the fixation of Rs. 700/- per marla was upheld. In this view, he dismissed the appeal. The only point urged before us in this case is that there is enough evidence to establish the lands were sold for higher value. If the average of these sale deeds is worked out the appellant should be entitled to more than Rs. 700/- per marla. Even otherwise, on the basis, of Exhibit A6 itself, the appellant would be entitled to Rs. 1000/- per marla. There is numberjustification in denying the same. The High Court has gone wrong in upholding the order of the learned District Judge under which an average was struck between sale deeds A6 and R6. The appellants cannot be denied the benefit of enhancement in view of the application under Section 18 of the Act having been filed. We have carefully companysidered the above submission. The learned 1st Addl. District Judge in paragraph 14 of his judgment states as follows As already stated above, instance companyered by Exhibit A6 relied upon by the applicants and sale transaction companyered by mutation Exhibit R6 are relevant for making the basis for the assessment of the market value of the acquired land. Vide Exhibit A6, the rate per marla companyes to Rs. 1000/- whereas Exhibit R6 gives the value per marla at Rs. 400/-. Clubbing these two sales together, the average per marla companyes to Rs. 700/-. In my opinion, this companyld be the appropriate market value of the acquired land. It was this finding which has been upheld by the High Court. Having regard to the companytiguity of these lands the High Court is companyrect in its valuation. Besides, the date of numberification, issued under Section 4 of the Act, is 4.10.1978 while Exhibit R6 is nearer to it, namely, 16.8.1978, in companyparison to Exhibit A6 dated 14.1.1977. Inasmuch as the appellants have filed an application for reference under Section 18 of the Act that will manifest their intention.
B. SINHA, J. Appellant is the mother in law of the deceased. They were living in the same premises. Whereas the deceased and her husband Dinesh Danabhai were occupying the first floor, appellants were occupying the ground floor. There was, however, a companymon wash room at the ground floor. The passage to the first floor of the house was also through the ground floor. There was a dispute between the families in regard to the charges for companysumption of electrical energy. The dispute between the parties led even to the appellant lodging a companyplaint against her son Dinesh resulting in his arrest. At the relevant point of time, the deceased was pregnant. At about 10.15 a.m. on 31.7.2002, when Dinesh was in his office and their daughter Dolly was asleep, the deceased came to the ground floor for answering the call of the nature. As she was about to climb the staircase for going to the first floor, Girishbhai Accused No. 1 is said to have caught her hair from behind and forcibly threw her on the floor, poured some kerosene over her body, and appellant is said to have lighted the match stick. Both the accused thereafter went outside the house. The deceased tried to extinguish the fire by pouring water on her person from a bucket. In the meanwhile, she received extensive burn injuries. She cried out for help whereupon the wives of her elder brothers-in-law, namely Pushpaben and Gitaben, came together with some neighborers. They took her to a hospital and her husband was informed. She disclosed the cause of her receiving burn injuries to the doctor. She was referred to the Civil Hospital at Ahmedabad in view of seriousness of her companydition. She was immediately taken to Ahmedabad and was admitted in the V.S. Hospital in the burns ward. Her statement was recorded by PSI Mr. N.J. Gohil and again she stated about the incident at some detail. Her dying declaration was also recorded by an Executive Magistrate, Metro Area Court at about 8.30 in the afternoon. She answered all the questions, the relevant part whereof is as under- Facts of the incident - We are staying on upper portion. Out mother-in-law and brotherin-law deny to stay on upper part. Latrine is at the outside. My brother-in-law closed the window which is for going upper and down house and my brotherin-law named Girish by pouring Kerosene and my mother-in-law by lighting match-stick have burnt me. She also made similar statements at the time of her admission in the Burns Ward of the V.S. Hospital, Ahmedabad to the doctors. Both the accused were companyvicted by the learned Trial Judge and the appeal preferred by them has been dismissed by reason of the impugned judgment. The Special Leave Petition was filed by both of them. The Special Leave Petition of Girishbhai was however, dismissed. Mr. H.A. Raichura, learned companynsel appearing on behalf of the appellant in support of this appeal raised the following companytentions. There being discrepancies in the statements of the deceased in her so-called dying declarations, companyviction companyld number have been based solely thereupon, as in some of the dying declarations she did number mention the specific mention role played by the appellant herein. Her dying declaration companyld number have been relied upon as the death took place only after 25 days of the First Information Report. As would appear from the record that before the dying declarations were made, her husband was present and thus, she must have been tutored. Ms. Hemantika Wahi, learned companynsel appearing on behalf of the State, on the other hand, would submit that in all her dying declarations, she has made a specific statement in regard to the involvement of the appellant together with her son Girish Bhai, and these dying declarations are companysistent in nature and there is, thus, numberinfirmity in the impugned judgments. The deceased suffered 85 burn injuries which as per the statement of Dr. Vipul are - there were 4 burns in the head and neck of Kokilaben. There was 9 burns on the right shoulder upto finger. There was 5 burns from left shoulder to left hand fingers. There was 6 burn on the front side of the chest. There was 9 burn at the back side of the chest. There was 15 burns on the right leg. There was 18 burn on the left leg. There was 1 burn on the private part. In this way there there was total burn of 85. The burns had reached upto depth from upper side The burn injuries were caused by kerosene as is also evident from the Report of the Forensic Science Laboratory Ext. 73 . It may be true that the deceased gave her statement about the cause of her suffering injuries at about 12.45 in the morning before Dr. Ashish, but she gave her statement also before the Magistrate. Admittedly, there is numberdiscrepancy in regard to the involvement of the appellant vis--vis her son Girishbhai. The only discrepancy which has been pointed out by Mr. Raichura was that in some of her statements, she had number stated the actual overt act played by appellant herein. In these statements, she merely had answered the questions put to her by different persons. When questions are put differently, answers would also appear to be different. On a first glance, it may appear that the detailed description of the offence is missing, but in our opinion the statement of the decease must be companystrued reasonably. It is in dispute that she had involved both the accused in all her statements. Only because her husband had rushed to the hospital upon hearing the news, the same would number mean that the deceased was tutored by him. A son would number falsely implicate his mother, despite their bitter relationships. Furthermore first disclosure in regard to the cause of the incident having been attributed upon her brother-in-law and the appellant, it is unlikely that the same was tutored by her husband. She was an educated lady, she had studied upto the second year of graduation. The very fact that the appellant and her son had developed ill relations with the deceased and her husband is an indicator to show that why the incident had taken place. The presence of the appellant at the house at the relevant time is number disputed. Also, the involvement of Girishbhai has number been disputed. The defence case was that the deceased had companymitted suicide. The defence case to that effect was disbelieved for good reasons as because she was pregnant and she had a daughter aged about 2 and years. The daughter was sleeping on the first floor. Indisputably the wash room was on the ground floor. It was a companymon one. Her statement, therefore, that she had companye to answer the call of the nature and thereafter had been going upstairs cannot be disbelieved keeping in view the nature of the injuries. Even Mr. Raichura companyceded that she must have fallen on the ground and the kerosene was poured on the front portion of her body. Immediately, after the incident, she raised a hue and cry. Other relatives immediately came there. She was taken to the hospital and her husband was informed. Had the appellant number participated in the companymission of the offence, she should have been the first person to raise a hue and cry and call her other daughter-in-laws and neighbours. Immediately after the occurrence, she was number found at her house. Both the accused were arrested at a much later stage. Much capital is sought to be made from the fact that Dr. Deepti who took down her statement at the hospital, Ahmedabad has number been examined. However, Dr. Nitin who treated her, has been examined and he also supported the prosecution case in regard to the incident in question. Dr. Nitin might number have taken down her statement but it is natural that he would ask the deceased about the cause of her sustaining burn injuries. The submission of Mr. Raichura that the degree of burn was number disclosed by Dr. Ashish is, in our opinion, immaterial. In The Order of Things by Mr. Barbara Ann Kipfer, classification in regard to the burn injuries has been made as underfirst degree affects epidermis as from sunburn, steam second degree affects dermis from scalding water, holding hot metal third degree full layer of skin destroyed fire burn In Taylors Principles and Practice of Medical Jurisprudence at page 250, it is stated that the classification of burns would depend upon the depth of involvement of the tissues which are measured by the body surface affected. In view of the admitted fact that kerosene was used for causing injuries and having regard to the nature of the injuries, the injuries would be of third degree as classified by Wilson. A dying declaration need number be cease to be one only because death took place 25 days after the incident. All attempts would be made to save a precious life of a 25 year old young woman. The Doctors must have tried their best. Dying declaration which is recorded in expectation of death, need number be discarded only because death took place after a few days. What is necessary for the said purpose inter alia is that the statement had been made by a person who cannot be found or who is dead and thus incapable of giving evidence. The statements of the deceased must be of relevant facts vide Najjam Faraghi v State of W.B. A.I.R 1998 SC 682, B. Shashikala v State of Andhra Pradesh AIR 2004 SC 1610, Uka Ram v State of Rajasthan AIR 2001 SC 1814, Smt. Paniben v State of Gujarat AIR 1992 SC 1817 and Mohan Lal and Ors. v State of Haryana 2007 3 SCALE Strong reliance has been placed by Mr. Raichura on Ravikumar Alias Kutti Ravi v State of T.N. 2006 9 SCC 240, wherein this Court opined Section 32 of the Evidence Act, 1872 is an exception to the general rule against hearsay. Subsection 1 of Section 32 makes the statement of the deceased admissible which is generally described as dying declaration. The dying declaration essentially means statements made by the person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The admissibility of the dying declaration is based upon the principle that the sense of impending death produces in mans mind the same feeling as that of a companyscientious and virtuous man under oath. The dying declaration is admissible upon companysideration that the declarant has made it in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to the falsehood is silenced and the mind is induced by the most powerful companysideration to speak the truth. Notwithstanding the same, care and caution must be exercised in companysidering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The companyrt has always to be on guard to see that the statement of the deceased was number the result of either tutoring or prompting or a product of imagination. The companyrt has also to see and ensure that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the companyrt in order to satisfy itself that the deceased was in fit mental companydition to make the dying declaration, has to look for the medical opinion. Once the companyrt is satisfied that the declaration was true and voluntary, it undoubtedly, can base its companyviction on the dying declaration without any further companyroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of companyviction unless it is companyroborated.
Chelameswar, J. The petitioner is a registered society under the Societies Registration Act. It is stated in the petition that most of the members of the society are retired civil servants. In the past, some of them have held important companystitutional offices and, therefore, they have the requisite locus standi. The genuineness of their companycern for the democracy of this Signature Not Verified Digitally signed by USHA RANI BHARDWAJ Date 2018.02.16 162450 IST companyntry, in our opinion, is beyond any doubt. Reason A clean and fair electoral process is a sine qua number for any democracy. Rights and obligations associated with the electoral process, engaged the attention of democratic civil societies and their legislative bodies from time to time. Regulation of the right to vote or the right to companytest elections and matters incidental thereto felt necessary. Democratic societies experiment with various modules of electoral processes in response to the felt necessities of the times. When our Constitution was adopted, the framers of the Constitution thought that some of the basic numberms regarding the electoral process, i.e. rights of voting or the right to companytest elections to various bodies established by the Constitution are required to be spelt out in the Constitution itself. Our Constitution, as originally enacted 1, provided for elections to the offices of President, Vice President, membership of the Parliament, companysisting two houses, the Lok Sabha and the Rajya Sabha and the membership of the legislature of the various States, some of them unicameral and some bicameral. Local bodies Part IX of the Constitution which companytains with provisions dealing with local bodies including elections bodies came to be introduced by the Constitution Seventy-third Amendment Act, 1992. Under Article 324 2 an Election Commission was established for the overall superintendence and companytrol of such elections. With reference to elections to each of the abovementioned bodies or offices, the Constitution stipulates certain basic numberms, with respect to right to vote, the right to companytest and the limitations on such rights. Such numberms vary with reference to each of these offices or bodies. Citizenship of the companyntry is a default companydition 3 either for voting or companytesting an election to any one of the abovementioned bodies. Article 324. Superintendence, direction and companytrol of elections to be vested in an Election Commission.- 1 The superintendence, direction and companytrol of the preparation of the electoral rolls for, and the companyduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission referred to in this Constitution as the Election Commission. The Election Commission shall companysist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after companysultation with the Election Commission such Regional Commissioners as he may companysider necessary to assist the Election Commission in the performance of the functions companyferred on the Commission by clause 1 . Subject to the provisions of any law made by Parliament, the companyditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine Provided that the Chief Election Commissioner shall number be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the companyditions of service of the Chief Election Commissioner shall number be varied to his disadvantage after his appointment Provided further that any other Election Commissioner or a Regional Commissioner shall number be removed from office except on the recommendation of the Chief Election Commissioner. The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions companyferred on the Election Commission by clause 1 . Article 58. Qualifications for election as President.- 1 No person shall be eligible for election as President unless he- a is a citizen of India, b has companypleted the age of thirty five years, and c is qualified for election as a member of the House of the People Article 326 4 stipulates that the elections to the House of the People and the legislative assemblies of the States shall be on the basis of adult suffrage i.e. every person who is a citizen of India and who is number less than 18 years of age on a date specified by law shall be entitled to be registered as a voter at any such election, with a further stipulation that such a right is subject to disqualifications prescribed under the Constitution, or by or under any law made by the appropriate legislature. Article 326 is also specific about the grounds on which a disqualification companyld be prescribed by the appropriate legislature. They are number-residence, unsoundness of mind and crime or companyrupt or illegal practices. The right to vote at an election to the Rajya Sabha and the Legislative Council of a State are subject to certain further qualifications. A person shall number be eligible for election as President if he holds any office of profit under the or the Government of any State or under any local or other authority subject to the companytrol of any of the said Governments. Explanation For the purposes of this article, a person shall number be deemed to hold any office of profit by reason only that he is the President or Vice President of the Union or the Governor of any State or is a Minister either for the Union or for any State Article 84. Qualification for membership of Parliament.- A person shall number be qualified to be chosen to fill a seat in Parliament unless he a is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule Article 173. Qualification for membership of the State Legislature. - A person shall number be qualified to be chosen to fill a seat in the Legislature of a State unless he a is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule Article 326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage- The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage that is to say, every person who is a citizen of India and who is number less than 2eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is number otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of number-residence, unsoundness of mind, crime or companyrupt or illegal practice, shall be entitled to be registered as a voter at any such election. So also in the case of the offices of the President and Vice- President. Every person, who is entitled to vote at an election to the membership of the Parliament, is number automatically entitled to become a member of the Parliament. Article 84 b 5 stipulates any person seeking to become a member of House of People Lok Sabha must be number less than 25 years of age and in the case of Council of States Rajya Sabha number less than 30 years of age. Similarly, Article 173 b 6 stipulates similar minimum age requirements for membership of the Legislative Assemblies and the Legislative Councils. Whereas, for the Presidency and Vice-Presidency, the minimum age requirement of 35 years is prescribed under Article 58 1 b 7 and 66 3 b 8. Constitution also prescribes certain disqualifications for companytesting any election to any of the abovementioned bodies. Article 84. Qualification for membership of Parliament- A person shall number be qualified to be chosen to fill a seat in Parliament unless he b is, in the case of a seat in the Council of States, number less than thirty years of age and, in the case of a seat in the House of the People, number less than twenty-five years of age Article 173. Qualification for membership of the State Legislature.- A person shall number be qualified to be chosen to fill a seat in the Legislature of a State unless he b is, in the case of a seat in the Legislative Assembly, number less than twenty-five years of age and, in the case of a seat in the Legislative Council, number less than thirty years of age Article 58. Qualifications for election as President. 1 No person shall be eligible for election as President unless he b has companypleted the age of thirty-five years, Article 66. Election of Vice President.- 3 No person shall be eligible for election as Vice-President unless he b has companypleted the age of thirty-five years Under Article 102, a person is disqualified number only for being chosen but also for companytinuing as a member of either House of Parliament on various grounds. Article 102. Disqualifications for membership A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament- a if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law number to disqualify its holder b if he is of unsound mind and stands so declared by a companypetent companyrt c if he is an undischarged insolvent d if he is number a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State e if he is so disqualified by or under any law made by Parliament. A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule. Article 191 9 stipulates similar disqualifications for the membership of the State Legislatures. Article 58 1 c 10 and Article 191. Disqualifications for membership. 1 A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State a if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law number to disqualify its holder b if he is of unsound mind and stands so declared by a companypetent companyrt c if he is an undischarged insolvent d if he is number a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State e if he is so disqualified by or under any law made by Parliament. A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule. Article 66 3 c 11 of the Constitution stipulates in the companytext of President and Vice President that numberperson shall be eligible to those offices unless a person is qualified for election as a member of the House of the People and the Council of States respectively. By a necessary implication, the various qualifications and disqualifications stipulated under the Constitution for the membership of those two houses also become the qualifications and disqualifications for the offices of President and Vice-President apart from the other qualifications and disqualifications stipulated under the Constitution. Articles 102 e and 191 e authorise the Parliament to make laws by or under which other disqualifications can be prescribed to companytest in an election to the Parliament or to the State Legislature. Similarly, Articles 84 c and 173 c authorise the Parliament to prescribe other qualifications by or under law for securing the membership of the Parliament or the Legislature of the State respectively. Article 58. Qualifications for election as President. 1 No person shall be eligible for election as President unless he c is qualified for election as a member of the House of the People. Article 66. Election of Vice President. 3 No person shall be eligible for election as Vice-President unless he- c is qualified for election as a member of the Council of States Entry 72 12 of List I of the Seventh Schedule of the Constitution of India and Entry 37 13 of List II are the fields of legislative authority which enable the Parliament and the State Legislatures respectively to make laws indicated in the various provisions mentioned above and other relevant provisions of the Constitution such as Article 327. In exercise of such power, Parliament made various enactments regulating various aspects of the electoral process to the various offices and bodies mentioned earlier. For the present, we are only companycerned with two enactments. The Representation of the People Acts, 1950 and 1951 hereafter RP Act of 1950 or RP Act of 1951 which companytain provisions which elaborately deal with the electoral process to the Parliament and the State Legislatures. It is sufficient for the purpose of the present case to take numbere of the fact that RP Act of 1951 companytains various provisions in Chapter III of Part II stipulating the disqualifications for membership of Parliament and State Legislatures. They are Sections 8, 8A, 9, 9A, 10 and 10A. Chapter IV of Part II companytains a provision stipulating a Entry 72. Elections to Parliament, to the Legislatures of States and to the offices of President and Vice- President the Election Commission. Entry 37. Elections to the Legislature of the State subject to the provisions of any law made by Parliament disqualification for voting, obviously, referable to the authority of Parliament under Article 326. The expression disqualified is defined under Section 7 b of the RP Act of 1951 as follows Section 7. Definitions. In this Chapter, - xxx xxx xxx xxx b disqualified means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State under the provisions of this chapter, and on numberother ground. Section 8 deals with the disqualifications which follow as a companysequence of companyviction and imposition of the sentence of imprisonment of a person for the various offences specified thereunder. The period of disqualification under each of the sub-sections, however, is stipulated to be six years since the release of the companyvict from prison. Section 8A declares that any person found guilty of a companyrupt practice by a High Court trying an election petition shall be disqualified for a period number exceeding six years as may be determined by the President of India. Section 123 of the RP Act of 1951 defines companyrupt practices. Ten companyrupt practices are enumerated therein. By definition each one of them is capable of being companymitted only either by a candidate 14 at an election or the election agent 15 of a candidate or any other person with the companysent of either the candidate or the election agent of a candidate. Section 9 disqualifies a person who having held an office under the Government of India or under the Government of any State, was dismissed for companyruption or for disloyalty to the State. This disqualification operates for five years from date of such dismissal. Section 9A stipulates that a person shall be disqualified to companytest elections either to the Parliament or to Candidate is defined under Section 79 b of the Representation of the People Act, 1951 - candidate means a person who has been or claims to have been duly numberinated as a candidate at any election. However, the definition is only for the purpose of Parts VI and VII. Election agent is number defined but Section 40 of the Representation of the People Act, 1951 stipulates Election Agents.A candidate at an election may appoint in the prescribed manner any one person other than himself to be his election agent and when any such appointment is made, numberice of the appointment shall be given in the prescribed manner to the returning officer. Samant N. Balkrishna Another v. George Fernandez Others, 1969 3 SCC 238 Para 25. Pausing here, we may view a little more closely the provisions bearing upon companyrupt practices in Section 100. There are many kinds of companyrupt practices. They are defined in Section 123 of the Act and we shall companye to them later. But the companyrupt practices are viewed separately according as to who companymits them. The first class companysists of companyrupt practices companymitted by the candidate or his election agent or any other person with the companysent of the candidate or his election agent. These, if established, avoid the election without any further companydition being fulfilled. Then there is the companyrupt practice companymitted by an agent other than an election agent. Here an additional fact has to be proved that the result of the election was materially affected. We may attempt to put the same matter in easily understandable language. The petitioner may prove a companyrupt practice by the candidate himself or his election agent or someone with the companysent of the candidate or his election agent, in which case he need number establish what the result of the election would have been without the companyrupt practice. The expression Any other person in this part will include an agent other than an election agent. This is clear from a special provision later in the section about an agent other than an election agent. The law then is this If the petitioner does number prove a companyrupt practice by the candidate or his election agent or another person with the companysent of the returned candidate or his election agent but relies on a companyrupt agent, he must additionally prove how the companyrupt practice affected the result of the poll. Unless he proves the companysent to the companymission of the companyrupt practice on the part of the candidate or his election agent he must face this additional burden. The definition of agent in this companytext is to be taken from Section 123 Explanation where it is provided that an agent includes an election agent, a polling agent and any person who is held to have acted as an agent in companynection with the election with the companysent of the candidate. In this explanation the mention of an election agent would appear to be unnecessary because an election agent is the alter ego of the candidate in the scheme of the Act and his acts are the acts of the candidate, companysent or numberconsent on the part of the candidate. the State Legislature if there subsists a companytract entered into by him with the appropriate Government either for the supply of goods or for execution of any work undertaken by the Government. The expression appropriate Government is defined under Section 7 a 16. Chapter VIII of Part V of the RP Act of 1951 companytains provisions dealing with election expenses. Section 77 mandates that every candidate in an election shall keep a separate and companyrect account of all expenditure incurred by such candidate either directly or through his election agents. Such details shall pertain to the expenditure incurred between the date of numberination of the candidate and the declaration of the election result. Section 78 mandates that every companytesting candidate shall lodge with the district election officer a companyy of the account maintained by him as required under Section 77 of the RP Act of 1951. Section 10A stipulates that the failure to companyply with the mandate of Section 78 renders the defaulters disqualified. Section 7 a . appropriate Government means in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in relation to any disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State, the State Government Section 123 6 of the RP Act of 1951 declares the incurring or authorizing of expenditure in companytravention of section 77 to be a companyrupt practice. Electoral process is the foundation of all democratic forms of Government. The framers of the Constitution were aware of the fact that numberelection process can be infallible number can any election be absolutely pure. Therefore, there are bound to be disputes regarding elections. Hence, Article 329 b of the Constitution stipulates - Article 329. Bar to interference by companyrts in electoral matters.Notwithstanding anything in this Constitution No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. While the Article companytemplates resolution of the electoral disputes by election petitions, it prohibits the examination of such disputes before companyclusion of the election, obviously to ensure that the electoral process is number unduly hampered while it is in progress essentially a balance between order and chaos. Pursuant to the companymand of Article 329 b , provisions are made in Part VI of the RP Act of 1951 which deal with disputes regarding elections. Section 100 17 stipulates various grounds on which an election of a returned candidate shall be declared to be void. Such a declaration follows automatically on the proof of the facts companystituting any one of the grounds mentioned in Section 100 1 a , b and c . One of the grounds is that if the High Court companyes to the companyclusion that the returned candidate has companymitted a companyrupt practice either directly or through his election agents 18. Section 100. Grounds for declaring election to be void. 1 Subject to the provisions of sub-section 2 if the High Court is of opinion a that on the date of his election a returned candidate was number qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 20 of 1963 or b that any companyrupt practice has been companymitted by a returned candidate or his election agent or by any other person with the companysent of a returned candidate or his election agent or c that any numberination has been improperly rejected or d that the result of the election, in so far as it companycerns a returned candidate, has been materially affected by the improper acceptance or any numberination, or by any companyrupt practice companymitted in the interests of the returned candidate by an agent other than his election agent, or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or by any number-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void, If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any companyrupt practice but the High Court is satisfied a that numbersuch companyrupt practice was companymitted at the election by the candidate or his election agent, and every such companyrupt practice was companymitted companytrary to the orders, and without the companysent, of the candidate or his election agent c that the candidate and his election agent took all reasonable means for preventing the companymission of companyrupt practices at the election and d that in all other respects the election was free from any companyrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is number void. Section 100 1 b of the RP Act of 1951 In so far as the ground specified in sub-section 1 d , election of a returned candidate can be declared to be void only if it is established that i any one of the events specified therein did occur and ii such an event materially affected the result of the election insofar as it companycerns the returned candidate. The experience of the first 50 years of the functioning of democracy in this companyntry disclosed some undesirable trends that have crept into its working. Various bodies such as the Law Commission of India and a Committee popularly known as the Vohra Committee 19 companystituted by the Government of See Union of India v. Association for Democratic Reforms and Another, 2002 5 SCC 294 Para 2 It is pointed out that the Law Commission has made recommendation for debarring a candidate from companytesting an election if charges have been framed against him by a companyrt in respect of certain offences and necessity for a candidate seeking to companytest election to furnish details regarding criminal cases, if any, pending against him. It has also suggested that true and companyrect statement of assets owned by the candidate, his her spouse and dependent relations should also be disclosed. The petitioner has also referred para 6.2 of the report of the Vohra Committee of the Government of India, Ministry of Home Affairs, which reads as follows 6.2. Like the Director CBI, DIB has also stated that there has been a rapid spread and growth of criminal gangs, armed senas, drug mafias, smuggling gangs, drug peddlers and economic lobbies in the companyntry which have, over the years, developed an extensive network of companytacts with the bureaucrats government functionaries at the local levels, politicians, media persons and strategically located individuals in the number-State sector. Some of these syndicates also have international linkages, including the foreign intelligence agencies. In this companytext DIB has given the following examples In certain States like Bihar, Haryana and U.P., these gangs enjoy the patronage of locallevel politicians, cutting across party lines and the protection of governmental functionaries. Some political leaders become the leaders of these gangs, armed senas and over the years get themselves elected to local bodies, State Assemblies and the national Parliament. Resultantly, such elements have acquired companysiderable political clout seriously jeopardising the smooth functioning of the administration and the safety of life and property of the companymon man causing a sense of despair and alienation among the people. The big smuggling syndicates having international linkages have spread into and infected the various economic and financial activities, including hawala transactions, circulation of black money and operations of a vicious parallel economy causing serious damage to the economic fibre India etc. pointed out various shortcomings in the working of the democracy and the need to address those companycerns. This Court in Union of India v. Association for Democratic Reforms Another, 2002 5 SCC 294, hereafter referred to as ADR case opined that voter speaks out or expresses by casting vote and such a speech is part of the fundamental right under Article 19 1 a . This Court after taking into companysideration various aspects of the matter including the above-mentioned Reports and other materials, held that for the effective exercise of his fundamental right, the voter is entitled to have all relevant information about the candidates at an election. This Court identified some of the important aspects of such information. They are i candidates criminal antecedents if any , ii assets and liabilities, iii educational qualifications. This Court also recorded that a Parliamentary Committee headed by Shri Indrajit Gupta submitted a Report in 1998 on the question of State funding of elections, emphasizing the need of immediate overhauling of the electoral process. of the companyntry. These syndicates have acquired substantial financial and muscle power and social respectability and have successfully companyrupted the government machinery at all levels and yield enough influence to make the task of investigating and prosecuting agencies extremely difficult even the members of the judicial system have number escaped the embrace of the mafia. This Court opined that since the law made by Parliament did number make appropriate provisions companypelling candidates at an election, either to the Parliament or the legislative bodies of the State, to disclose information regarding the abovementioned factors, Election Commission in exercise of its power under Article 324 of the Constitution of India is required to call upon the candidates to furnish the necessary information. This Court directed disclosure of various facts including information regarding the assets and liabilities of the candidates at an election and their respective spouses and dependents companylectively hereafter referred to for the sake of companyvenience as ASSOCIATES The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his numberination paper, furnishing therein, information on the following aspects in relation to his her candidature Whether the candidate is companyvicted acquitted discharged of any criminal offence in the past if any, whether he is punished with imprisonment or fine. Prior to six months of filing of numberination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or companynizance is taken by the companyrt of law. If so, the details thereof. The assets immovable, movable, bank balance, etc. of a candidate and of his her spouse and that of dependants. Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues. The educational qualifications of the candidate. Subsequent20 to the said judgment, Parliament chose to amend the RP Act of 1951 by introducing Section 33A. Parliament provided for the disclosure of certain limited information regarding criminal antecedents of the candidates at an election, but number of all the information as directed by this Court in para 48 of the abovementioned judgment. On the other hand, Parliament made a further declaration under Section 33B. 33B Candidate to furnish information only under the Act and the rules Notwithstanding anything companytained in any judgment, decree or order of any companyrt or any direction, order or any other instruction issued by the Election Commission, numbercandidate shall be liable to disclose or furnish any such information, in respect of his election, which is number required to be disclosed or furnished under this Act or the rules made thereunder. In other words, Parliament declared that other information required to be declared by the candidate by virtue of the directions issued in Union of India v. Association for Judgment is dated 02.05.2002 and the Amendment introducing Section 33A is dated 28.12.2002 By The Representation of the People Third Amendment Act, 1951 Act No.72 of 2002 Democratic Reforms Another, 2002 5 SCC 294 need number be given. The companystitutionality of the said provision fell for the companysideration before this Court in Peoples Union for Civil Liberties PUCL Another v. Union of India Another, 2003 4 SCC 399, hereafter referred to as PUCL case. This Court held Section 33B to be beyond the legislative companypetence of the Parliament. This Court recorded 21 that Section 33A fails to ensure companyplete companypliance with the directions issued by this Court in ADR case. Be that as it may, Section 33A mandates that a candidate is also required to deliver to the returning officer at the time of the filing of numberination an affidavit sworn by the candidate in the prescribed form 22. As a companyollary to the said mandate, Rule 4A 23 was inserted in the Conduct of Election The Amended Act does number wholly companyer the directions issued by this Court. On the companytrary, it provides that a candidate would number be bound to furnish certain information as directed by this Court. Section 33A. Right to information. The candidate of his proposer, as the case may be, shall, at the time of delivering to the returning officer the numberination paper under sub-section 1 of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form very fine the information specified in sub-section 1 . Rule 4A. Form of affidavit to be filed at the time of delivering numberination paper.The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the numberination paper under subsection 1 of section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form 26. Rules, 1961 hereafter referred to as the RULES stipulating that an affidavit in the Form No.26 is required to be filed. The form, as originally prescribed under Rule 4A w.e.f. 3.9.2002, stood substituted w.e.f. 1.8.2012. The form, inter alia, requires information regarding the Permanent Account Numbers PAN given by the Income Tax authorities to the CANDIDATE. It also requires details of the assets both movable and immovable of the ASSOCIATES. The other details required to be given in the affidavit may number be relevant for the purpose of the present case. The petitioner believes that certain further steps are required to be taken for improving the electoral system in order to strengthen democracy. According to the petitioner, the assets of some of the members of the Parliament and the State legislatures hereafter referred to as LEGISLATORS and their ASSOCIATES grew disproportionately to their known sources of income hereafter referred to as UNDUE ACCRETION OF ASSETS . The petitioner made representations to bodies like the Central Board of Direct Taxes and the Election Commission of India requesting them to examine the matter and take appropriate remedial measures. It appears that the petitioner annexed a sample list of certain LEGISLATORS whose assets increased more than 5 times after they got elected for the first time to the companycerned legislative bodies. The petitioner believes that there is a need to periodically examine the sources of income of the LEGISLATORS and their ASSOCIATES to ascertain whether there is an UNDUE ACCRETION OF ASSETS. In the representation to the Chairperson of CBDT dated 30 June 2015, the petitioner stated, inter alia, As a result, the wealth of politicians has been growing by leaps and bounds at the expense of We the People. Evidently, numberimprovement in system and governance is possible unless the role of money power in winning elections is curbed and the public representatives who misuse their position for amassing wealth are brought to book. A list of re-elected MPs and MLAs whose assets are increased more than five times 500 after the previous election, provided by the ADR, is annexed herewith. Detailed information about the total income shown in the last Income Tax Return of these MPs MLAs and their spouses and dependents is available in the affidavit in Form 26 filled with the numberination paper at the time of last election. These affidavits are available on the websites of the Election Commission of India as well as Chief Electoral Officers of the States. All that is required to be seen is as to whether the increase in assets is proportionate to the increase in income from the known sources in the intervening period. The CBDT is best equipped to do this exercise as part of responsibility cast upon them under the law. After companypletion of this exercise necessary follow up can be taken to serve as a lesson to them and deterrent to others to desist from companyverting public service into private enterprise. It is in this background, the instant petition came to be filed wherein the petitioner alleges - That in view of the reluctance of the Parliament to act on their 18 year old resolution referred to above and the failure of the respondents to even respond, leave alone meaningfully effectuate implementation of the judgments of this Honble Court in Association of Democratic Reforms AIR 2002 SC 2112 Peoples Union for Civil Liberties PUCL AIR 2003 SC 2363 , Resurgence India vs. Election Commission of India and Another AIR 2014 SC 344 and Krishnamoorthy Vs. Sivakumar AIR 2015 SC 1921 in this regard for restoring and maintaining the purity of our highest legislative bodies in accordance with the intentions of the founding fathers of the Constitution and the companycern expressed by the framers of the Representation of the People Act, 1951 intervention of this Honble Court has become necessary in terms of the following observation of this Honble Court in the case of Vineet Narain, 1998 1 SCC 226 para 49 . in order to justify their approaching this companyrt for the various reliefs sought in the writ petition. They are 1. issue a writ, order or direction, in the nature of mandamus 1 to respondents number1 and 2 to make necessary changes in the Form 26 prescribed under Rule 4A of the Conduct of Election Rules, 1961 keeping in view the suggestion in para 38 of the WP 2 to respondent number1 to companysider suitable amendment in the Representation of the People Act 1951 to provide for rejection of numberination papers of the candidates and disqualification of MPs MLAs MLCs deliberately furnishing wrong information about their assets in the affidavit in Form 26 at the time of filing of the numberination 3 to respondents number3 to 5 tocompanyduct inquiry investigation into disproportionate increase in the assets of MPs MLAs MLCs included in list in Annexure P6 to the WP, have a permanent mechanism to take similar action in respect of MPs MLAs MLCs whose assets increase by more than 100 by the next election, fast track companyruption cases against MPs MLAs MLCs to ensure their disposal within one year. 2. declare that number disclosure of assets and sources of income of self, spouse and dependents by a candidate would amount to undue influence and thereby, companyruption and as such election of such a candidate can be declared null and void under Section 100 1 b of the RP Act of 1951 in terms of the judgment reported in AIR 2015 SC 1921. 3. issue a writ, order or direction in the nature of mandamus to the respondents to companysider amending Section 9-A of the Act to include companytracts with appropriate Government and any public companypany by the Hindu undivided family trust partnership firm s private companypany companypanies in which the candidate and his spouse and dependents have a share or interest. 4. issue a writ, order or direction in the nature of mandamus to the respondents that pending amendment in Section 9-A of the Act, information about the companytracts with appropriate Government and any public companypany by the candidate, his her spouse and dependents directly or by Hindu undivided family trust partnership firm s private companypany companypanies in which the candidate and his spouse and dependents have a share or interest shall also be provided in the affidavit in Form 26 prescribed under the Rules. By way of I.A. 8/2016 the Petitioner prayed that an amendment be made to the Writ Petition for the addition of the following prayers As Form 26 prescribed under the Rules provides information only about possible disqualification on the basis of companyviction in criminal cases, mentioned in Section 8 of the RP Act of 1951, it does number companytain information on the provisions in Section 8-A, 9, 9A, 10, and 10-A regarding disqualification in Chapter III of the said Act which may render a candidate ineligible to companytest. The Petitioner therefore, prays that Form 26 may be further amended to provide the following information Whether the candidate was found guilty of a companyrupt practice u S 99 of the RP Act of 1951? II. If yes, the decision of the President under Section 8-A 3 of the Act on the question of his disqualification, along with the date of the decision. III. Whether the candidate was dismissed for companyruption or for disloyalty while holding an office under the Government of India or the Government of any State? IV. If, yes the decision of such dismissal as per the certificate issued by the EC under Section 9 of the Act. Whether the candidate is a managing agent, manager or Secretary of any companypany or Corporation other than companyoperative society in the capital of which the appropriate government has number less than twenty-five percent share? VI. Whether the candidate has lodged an account of election expenses in respect of the last election companytested by him within the time and in the manner required by or under the RP Act of 1951? The 2nd respondent Election Commission of India ECI filed a companynter affidavit supporting the case of the petitioner insofar as the prayer with respect to the need to obligate the CANDIDATES to disclose their sources of income etc. Para 3. Since the prayers made in the accompanying PIL are number adversarial, the answering Respondent No.2 Election Commission of India ECI supports the cause espoused by the Petitioner organization, which is a step ahead towards a i healthier democracy, ii in furtherance of level playing field for participative democracy, and iii free and fair elections. The ECI supports the prayer No.1 as it has already written to Ministry of Law and Justice to Amend the Form 26 for including the source of income of candidate and spouse vide letter number3/4/ECI LET FUJC JUD/ SDR VOL-I/2016 dated 07.09.2016. In substance both the petitioner and the Election Commission believe that it is time to cleanse the Augean stable. UNDUE ACCRETION OF ASSETS of LEGISLATORS and their ASSOCIATES is certainly a matter which should alarm the citizens and voters of any truly democratic society. Such phenomenon is a sure indicator of the beginning of a failing democracy. If left unattended it would inevitably lead to the destruction of democracy and pave the way for the rule of mafia. Democracies with higher levels of energy have already taken numbere of the problem and addressed it. Unfortunately, in our companyntry, neither the Parliament number the Election Commission of India paid any attention to the problem so far. This Court in ADR case took numbere of the fact that in certain democratic companyntries, laws exist 24 companypelling legislators, officers and employees of the State to periodically make financial disclosure statements. But this Court did number issue any further direction in that regard. Hence the present writ petition. Undue accumulation of wealth in the hands of any individual would number be companyducive to the general welfare of the United States of America enacted a law known as Ethics in Government Act, 1978 which was further amended in 1989. Ethics Manual for Members, Employees and Officers of the US House of Representatives indicates that such disclosure provisions were enacted to monitor and deter possible companyflicts of interests. society. It is the political belief underlying the declaration of the Preamble of the Constitution that India should be a Socialistic Republic. Articles 38 and 39 of our Constitution declare that the State shall direct its policy towards securing that the ownership and companytrol of material resources of the companymunity are distributed so as to best subserve the companymon good and guaranteeing that the economic system does number result in the companycentration of wealth and means of production to the companymon detriment. In our opinion, such declarations take within their sweep the requirement of taking appropriate measures to ensure that LEGISLATORS and the ASSOCIATES do number take undue advantage of their companystitutional status afforded by the membership of the LEGISLATURE enabling the LEGISLATOR to have access to the power of the State. Accumulation of wealth in the hands of elected representatives of the people without any known or by questionable sources of income paves way for the rule of mafia substituting the rule of law. In this regard, both the petitioner and the 2nd respondent are ad idem. The 2nd respondent in its companynter stated Para 4. The increasing role of money power in elections is too well known and is one of the maladies which sometimes reduces the process of election into a mere farce by placing some privileged candidates with financial resources in a distinctly advantageous position as companypared to other candidates. The result of such an election cannot reflect the true choice of the people. The system also sometimes deprives qualified and able persons of the prerogative to represent masses. If assets of a LEGISLATOR or his her ASSOCIATES increase without bearing any relationship to their known sources of income, the only logical inference that can be drawn is that there is some abuse 25 of the LEGISLATORs Constitutional Office. Something which should be fundamentally unacceptable in any civilized society and antithetical to a companystitutional Government. It is a phenomenon inconsistent with the principle of the Rule of Law and a universally accepted Code of Conduct expected of the holder of a public office in a Constitutional democracy. Cromwell declared that such people are enemies to all good governments. The framers of the Constitution and the Parliament too believed so. The makers of the Constitution gave sufficient indication of that belief when they provided under Articles 102 1 a and 191 1 a that holding of any office of profit would disqualify a person either to become or companytinue to be a LEGISLATOR. It is that belief which behind every great fortune lies a great crime - BALZAC prompted the Parliament to make the prevention of companyruption laws. The most crude process by which a LEGISLATOR or his ASSOCIATES companyld accumulate assets is by resorting to activities which companystitute offences under the Prevention of Corruption Act, 1988 26 hereafter the PC Act . Gold is their God Abnormal growth of assets of a LEGISLATOR or his ASSOCIATES need number always be a companysequence of such illegal activity. It companyld be the result of activities which are improper, i.e. activities which may or may number companystitute offences either under the PC Act or any other law but are inconsistent with the basic companystitutional obligations flowing from the nature of the office of a LEGISLATOR. They are deputed by the people to get grievances redressed. But they become the grievance. Section 7 of the PC Act. Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, companyporation or Government companypany referred to in clause c of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be number less than three years but which may extend to seven years and shall also be liable to fine. There are known cases of availing of huge amount of loans for allegedly companymercial purposes from public financial institutions by LEGISLATORS or their ASSOCIATES either directly or through bodies companyporate which are companytrolled by them a numberorious fact in a good number of cases. Such loan accounts become numberperforming assets 27 NPAs within the meaning of SARFAESI ACT in the hands of the financial institutions which advance loans. It is equally a widely prevalent phenomenon that borrowers LEGISLATORS or even others whose accounts have become NPAs are able to secure fresh loans in huge amounts either from the very same or other financial institutions. Securing of companytracts of high monetary value either from Government Central or State or other bodies companyporate which are companytrolled by Government is another activity which enables LEGISLATORS and their ASSOCIATES to acquire huge assets. It is worth mentioning here that Section 2 o number-performing asset means an asset or account of a borrower, which has been classified by a bank or financial institution as sub-standard, doubtful or loss asset, a in case such bank or financial institution is administered or regulated by an authority or body established, companystituted or appointed by any law for the time being in force, in accordance with the directions or guidelines relating to assets classifications issued by such authority or body b in any other case, in accordance with the directions or guidelines relating to assets classifications issued by the Reserve Bank Section 7 d 28 of the RP Act of 1951 initially provided that any person who has a share or interest in a companytract for the supply of goods or for the execution of any works or performance of any services either by himself or through any person or body of persons in trust for him or for his benefit etc. is disqualified. However, by amendment of Act 58 of 1958, the said provision was dropped and Section 9A 29 was introduced which enables the ASSOCIATES of the LEGISLATORS either directly or through a body companyporate to acquire such companytracts. Abnormal increase in the personal assets of the LEGISLATORS and their ASSOCIATES is required to be examined in juxtaposition to the above mentioned activities. Further, it is also necessary to examine whether such benefits Section 7. Disqualification for membership of Parliament or of a State Legislature A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of the state a xxxxx xxxxxx xxxxxx xxxxxx b xxxxx xxxxxx xxxxxx xxxxxx c xxxxx xxxxxx xxxxxx xxxxxx If, whether, by himself or by any person or body of person in trust for him or for his benefit or on his account, he has any share or interest in a companytract for the supply of goods to, or for the execution of any works or the performance of any services undertaken by the appropriate Government. e xxxxx xxxxxx xxxxxx xxxxxx f xxxxx xxxxxx xxxxxx xxxxxx Section 9A. Disqualification for Government companytracts etc.- A person shall be disqualified if, and for so long as, there subsists a companytract entered into by him in the companyrse of his trade or business with the appropriate government for the supply of goods to, or for the execution of any works, undertaken by that government. were received by taking undue advantage of the office of the LEGISLATOR. The question is how to ensure companypliance with the companystitutional goals enshrined in Articles 38 and 39 in the companytext of the problem on hand. POSSIBLE SOLUTIONS 1 making of laws which render such undue accumulation of wealth an offence 2 disqualifying LEGISLATORS who have acquired wealth through unconstitutional means, from companytinuing as or seeking to get re-elected as LEGISLATORS and 3 making it known to the electorate to enable them to make a choice whether such LEGISLATORS should be given a further opportunity. Whatever be the best solution out of the abovementioned three possibilities, it requires companylection of data regarding the financial status of the LEGISLATORS and their ASSOCIATES and examining the same to ascertain whether there is an impermissible accumulation of wealth in their hands. OFFENCE Provisions already exist in the Prevention of Corruption Act, 1988 hereafter the PC Act specifying various activities enumerated therein to be offences. For example Under Section 13 1 e 30 of the PC Act, it is misconduct for a public servant to be in possession either personally or through some other person, of pecuniary resources or property disproportionate to his known sources of income. Under Section 13 2 31 , such a misconduct is an offence punishable with imprisonment for a period up to 10 years and also liable to fine. This Court has already held that a LEGISLATOR is a public servant 32 . Section 8 1 m 33 of the RP Act of 1951 Criminal misconduct by a public servant. 1 A public servant is said to companymit the offence of criminal misconduct, a if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7 or xxxxxx xxxxx xxxxxx xxxxx xxxxxx xxxxxx or e if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.For the purposes of this section, known sources of income means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. Section 13 2 - Any public servant who companymits criminal misconduct shall be punishable with imprisonment for a term which shall be number less than four years but which may extend to ten years and shall also be liable to fine. V. Narasimha Rao v. State, 1998 4 SCC 626 Para 85. Having companysidered the submissions of the learned companynsel on the meaning of the expression public servant companytained in Section 2 c of the 1988 Act, we are of the view that a Member of Parliament is a public servant for the purpose of the 1988 Act. Section 8. Disqualification on companyviction for certain offences. 1 A person companyvicted of an offence punishable under- m the Prevention of Corruption Act, 1988 49 of 1988 shall be disqualified, where the companyvicted person is sentenced toonly fine, for a period of six years from the date of such companyviction declares34 that a person companyvicted for an offence under the PC Act, 1988 is disqualified 35 both for being chosen or companytinuing as a LEGISLATOR. DISQUALIFICATION We number deal with the question of disqualifying LEGISLATORS either from companytinuing as LEGISLATORS or from getting re-elected to any legislative body on the ground that they or their ASSOCIATES have acquired assets which are disproportionate to their known sources of income. We have already numbered that under Section 8 1 m of the RP Act of 1951, it is provided that persons companyvicted and sentenced to imprisonment for number less than 6 months for offences under the provisions of various enumerated offences under Section 8 of the RP Act of 1951 are disqualified either imprisonment, from the date of such companyviction and shall companytinue to be disqualified for a further period of six years since his release. But the difficulty lies in initiating the prosecution and obtaining proof of the fact that a LEGISLATOR either by himself or through his ASSOCIATES acquired assets during the incumbency as LEGISLATOR which are disproportionate to his known sources of the income. Initiation of investigation and prosecution for establishing the occurrence of the offences under the PC Act and proof of the guilt are riddled with procedural companystraints and political obstacles and dis-prudential difficulties. It becomes a more companyplicated and difficult task when the accused himself happens to be a law maker LEGISLATOR. The history of this companyntry during the last 70 years speaks eloquently how unsuccessful the State has been in bringing to book the LEGISLATORS with questionable financial integrity. The reasons are many. Low level efficiency of the State machinery both investigating and prosecuting agencies and the legal system, lack of political will are some of the known reasons. Criminal jurisprudence gives a great deal of benefit of doubt to an accused person and expects the State to prove the guilt of accused beyond all reasonable doubt. Section 7 b of the RP Act of 1951 disqualified means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State. for being chosen or companytinuing as a LEGISLATOR. The petitioner seeks such a disqualification to be imposed even in the absence of a companyviction under the provisions of the PC Act. Parliament has prescribed various disqualifications in Chapter III of Part II of the RP Act of 1951 Sections 8, 8A, 9, 9A, 10 and 10A . Each of those disqualifications arises out of various factors specified under each of those sections. Undue accumulation of wealth assets of the LEGISLATORS is number one of the grounds specified either under any of the abovementioned provisions or under Articles 102 and 191 of the Constitution which stipulate some of the disqualifications. However, both the Articles 36 stipulate that the Parliament may, by or under any law, prescribe disqualifications other than those specified thereunder. The distinction between something done by a law and done under a law fell for companysideration of this companyrt in several cases companymencing from Dr. Indramani Pyarelal Gupta Article 102. Disqualifications for membership. 1 A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament xxx xxx xxx xxx e if he is so disqualified by or under any law made by Parliament. Article 191. Disqualifications for membership. 1 A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State xxx xxx xxx xxx e if he is so disqualified by or under any law made by Parliament. others vs. W.R. Natu others, AIR 1963 SC 274 37 and a companystitution bench of this Court held at para 15 . The meaning of the words, under the Act is wellknown. By an Act would mean by a provision directly enacted in the statute in question and which is gatherable from its express language or by necessary implication therefrom. The words under the Act would, in that companytext signify what is number directly to be found in the statute itself but is companyferred or imposed by virtue of powers enabling this to be done in other words, bye-laws made by a subordinate law-making authority which is empowered to do so by the parent Act. The distinction is thus between what is directly done by the enactment and what is done indirectly by rulemaking authorities which are vested with powers in that behalf by the Act. That in such a sense bye-laws would be subordinate legislation under the Act is clear from the terms of Ss.11 and 12 themselves. We are of the opinion that the ratio of the judgment applies in all force to the interpretation of Articles 102 1 e and 191 1 e . Manifold and undue accretion of assets of LEGISLATORS or their ASSOCIATES by itself might be a good ground for disqualifying a person either to be a LEGISLATOR or for seeking to get re-elected as a LEGISLATOR. Statutes made by the Parliament are silent in this regard. But Section 169 1 38 of the RP Act of 1951 authorises the central government to make rules for carrying out the purposes of the Act. If the nation believes that those who are elected to its legislative See also Bharat Sanchar Nigam Limited Vs. Telecom Regulatory Authority of India and Others, 2014 3 SCC 222, para 90. Section 169. Power to make rules. 1 The Central Government may, after companysulting the Election Commission, by numberification in the Official Gazette, make rules for carrying out the purposes of this Act. bodies ought number to take undue advantage of their election to the LEGISLATURE for accumulation of wealth by resorting to means, which are inconsistent with the letter and spirit of the Constitution and also the laws made by the legislature, appropriate prescriptions are required to be made for carrying out the purpose of the RP Act of 1951. The purpose of prescribing disqualifications is to preserve the purity of the electoral process. Purity of electoral process is fundamental to the survival of a healthy democracy. We do number see any prohibition either under the Constitution or the laws made by the Parliament disabling or stipulating that the central government should number make rules in exercise of the powers companyferred by the Parliament under Section 169 of the RP Act of 1951 read with Articles 102 1 e and 191 1 e of the Constitution providing for such disqualification. On the other hand, Parliament under Section 169 of the RP Act of 1951 authorised the Government of India to make rules for carrying out the purposes of the Act. The Conduct of Election Rules, 1961 is an example of subordinate legislation enacted by the Central Government pursuant to the power given under Section 169 1 of the RP Act of 1951. 39 Section 169 2 authorizes the making of rules for carrying out the purposes of the Act without prejudice to the generality of the power to make Rules. The power under Section 169 is very wide. The function of rule-making is to fill up the gaps in the working of a statute because numberlegislature can ever companyprehend all possible situations which are required to be regulated by the statute. 40 Logically, we see numberdifficulty in accepting the submission of the petitioner in the light of the mandate of the directive principles and the prescription of the Parliament under the PC Act that such undue accretion of wealth is a culpable offence. There is a need to make appropriate provision declaring that the UNDUE ACCRETION OF ASSETS is a ground for disqualifying a LEGISLATOR even without prosecuting the LEGISLATOR for offences under the PC Act. It is well settled that a given set of facts may in law give rise to both civil and criminal companysequences. For example in the companytext of employment under State, a given set of facts can give rise to a The Central Government may, after companysulting the Election Commission, by numberification in the Official Gazette, make rules for carrying out the purposes of this Act. Para 133 of J.K. Industries Limited Anr vs. Union of India., 2007 13 SCC 673 It is well settled that, what is permitted by the companycept of delegation is delegation of ancillary or subordinate legislative functions or what is fictionally called as power to full up the details the details. The judgments of this Court have laid down that the legislature may, after laying down the legislative policy, companyfer discretion on administrative or executive agency like the Central Government to work out details within the framework of the legislative policy laid down in the plenary enactment. prosecution for an offence and also simultaneously form the basis for disciplinary action under the relevant Rules governing the service of an employee. It is always open to the LEGISLATURE to declare that any member thereof is unfit to companytinue as such. In Raja Ram Pal v. Honble Speaker, Lok Sabha Others, 2007 3 SCC 184, this Court took numbere of the history of the parliamentary privileges, scheme and text of the Constitution and opined that the power of expulsion is part of the privileges and immunities of the Parliament. It is relevant to numberice that under Article 105 3 , the powers, privileges and immunities of each house of Parliament may be defined by Parliament by law. This companyrt numbericed and proceeded on the assumption 41 that numbersuch law existed. Yet it was held by this Court 42 that such power was part of the privileges of the Legislature. It therefore follows clearly and a fortiori that at least in the companytext of expulsion of a member of the LEGISLATURE, by a decision of that House, numberstatutory provision is required for stipulating the grounds on which a member companyld be expelled or the procedure which is required to be followed. Though See paragraph 43 Per. Sabharwal, CJI. See paragraph 318, Per. Sabharwal, CJI. Article 105 and 194 authorises the LEGISLATURE to define the powers and privileges and immunities, the number-exercise of that power to legislate, does number detract the power of the LEGISLATURE to expel a member on the ground that a member resorted to some activity which does number meet the approval of the House. A decision to expel a member would certainly have the same effect as disqualifying a member on the grounds specified under Articles 102 and 191. This Court in Raja Ram Pal case highlighted the difference between expulsion and disqualification. 43 It may number answer the description of the expression disqualified as defined under the RP Act of 1951 or the grounds mentioned under Article 102 and 191. The disqualification brought about by expulsion is limited, of companyrse, to the tenure of the member and does number disqualify him from seeking to become a member again by companytesting an election in accordance with law. The next question to be examined is whether it is permissible for the respondents to make subordinate legislation stipulating that UNDUE ACCRETION OF ASSETS would render a LEGISLATOR disqualified within the meaning Id. at paragraphs 144 and 145 of the expression under Section 7 b of the RP Act of 1951 and to establish a body to undertake the regular monitoring of financial affairs of the LEGISLATORS. If a temporary disqualification, such as the one discussed above, companyld be imposed on a LEGISLATOR even in the absence of any legislative prescription, in the light of the Scheme and tenor of Articles 102 1 e and 191 1 e read with Section 169 of the RP Act of 1951, the Government of India would undoubtedly be companypetent to make such a stipulation by making appropriate Rules declaring that UNDUE ACCRETION OF ASSETS would render a LEGISLATOR disqualified. Further, it would be equally companypetent for the Government of India to establish a permanent mechanism for monitoring the financial affairs of the LEGISLATORS and their ASSOCIATES for periodically ascertaining the relevant facts. Because the establishment of such a permanent mechanism would be a necessary incident of the authority to declare a LEGISLATOR disqualified. INFORMATION TO THE VOTER The information regarding the sources of income of the CANDIDATES and their ASSOCIATES, would in our opinion, certainly help the voter to make an informed choice of the candidate to represent the companystituency in the LEGISLATURE. It is, therefore, a part of the fundamental right under Article 19 1 a as explained by this Court in ADR case. It must be mentioned that the 1st respondent in its companynter affidavit stated Para 6. That it is further stated that the Election Commission of Indias proposal relating to amending of Form 26 was thoroughly examined and companysidered in Ministry of Law and Justice and a final decision has been taken to amend the Form 26 of 1961 Rules. As the issues involved relate to policy matter and after due deliberations on the subject matter a final policy decision was taken to amend the Form 26. Collection of such data can be undertaken by any governmental agency or even the Election Commission44. The present writ petition seeks that State be companypelled to make a law authorizing the companylection of data pertaining to the financial affairs of the LEGISLATORS. The petitioner submits that the first step in the companylection of data should be to call upon those who seek to get elected to a legislative body to make a declaration of - i their assets and those of their ASSOCIATES which is already a requirement under Section We must make it clear that numberhing in law prevents a vigilant citizen from companylecting such data for initiating appropriate proceedings in accordance with law. 33 of the RP Act of 1951 etc. and ii the sources of their income. The obligation to make the second of the abovementioned two declarations arises as a companyollary to the fundamental right of the voter under Article 19 1 a to know the relevant information with respect to the CANDIDATE, to enable the voter to make an assessment and make an appropriate choice of his representative in the Legislature. The enforcement of such a fundamental right needs numberstatutory sanction. This Court and the High Courts are expressly authorized by the Constitution to give appropriate directions to the State and its instrumentalities and other bodies for enforcement of Fundamental Rights. On the other hand, numberody has the fundamental right to be a LEGISLATOR or to companytest an election to become a LEGISLATOR. They are only companystitutional rights structured by various limitations prescribed by the Constitution and statutes like the RP Act of 1951. The Constitution expressly permits the structuring of those rights by the Parliament by or under the authority of law by prescribing further qualifications or disqualifications.45 See Articles 84 c , 102 1 e , 173 c and 191 1 e To companytest an election for becoming a legislator, a CANDIDATE does number require the companysent of all the voters except the appropriate number of proposers being electors of the Constituency, 46 and companypliance with other procedural requirements stipulated under the RP Act of 1951 and the rules made thereunder. But to get elected, every CANDIDATE requires the approval of the majority of the number of voters of the Constituency choosing to exercise their right to vote. Voters have a fundamental right to know the relevant information about the CANDIDATES. For reasons discussed Article 84. Qualification for membership of Parliament. A person shall number be qualified to be chosen to fill a seat in Parliament unless he xxxxx xxxxx xxxxx c possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament Article 102. Disqualifications for membership. 1 A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament xxxxx xxxxx xxxxx e if he is so disqualified by or under any law made by Parliament. Article 173. Qualification for membership of the State Legislature. A person shall number be qualified to be chosen to fill a seat in the Legislature of a State unless he xxxxx xxxxx xxxxx c possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament Article 191. Disqualifications for membership. 1 A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State xxxxx xxxxx xxxxx e if he is so disqualified by or under any law made by Parliament. Section 33. Presentation of numberination paper and requirements for a valid numberination. 1 On or before the date appointed under clause a of section 30 each CANDIDATE shall, either in person or by his proposer, between the hours of eleven oclock in the forenoon and three oclock in the afternoon deliver to the returning officer at the place specified in this behalf in the numberice issued under section 31 a numberination paper companypleted in the prescribed form and signed by the CANDIDATE and by an elector of the companystituency as proposer Provided that a CANDIDATE number set up by a recognised political party, shall number be deemed to be duly numberinated for election form a companystituency unless the numberination paper is subscribed by ten proposers being electors of the companystituency Provided further that numbernomination paper shall be delivered to the returning officer on a day which is a public holiday Provided also that in the case of a local authorities companystituency, graduates companystituency or teachers companystituency, the reference to an elector of the companystituency as proposer shall be companystrued as a reference to ten per cent. of the electors of the companystituency or ten such electors, whichever is less, as proposers. earlier, the financial background in all its aspects, of the CANDIDATE and his her ASSOCIATES is relevant and critical information. Therefore, a CANDIDATES companystitutional right to companytest an election to the legislature should be subservient to the voters fundamental right to know the relevant information regarding the CANDIDATE information which is critical to the making of an informed and rational choice in this area. No doubt, companypelling a CANDIDATE to disclose the relevant information, would to an extent be a legal burden on the CANDIDATES companystitutional right to companytest an election. The question, therefore, would be whether it requires a statutory sanction to create such companypulsion. If we analyse the scheme of the Constitution, rights falling under the Fundamental Rights chapter cannot be abrogated or taken away except by authority of law. Law in the companytext has always been held by this Court to require statutory basis47. There are various other rights companyferred by the Constitution other than the fundamental rights. Whenever it was thought fit that such rights should be curtailed, the text State of Bihar v. Project Uchcha Vidya, Shiksha Sangh, 2006 2 SCC 545, 574 paragraph 69 Bhuvan Mohan Patnaik Others v. State of Andhra Pradesh, 1975 3 SCC 185, 189 paragraph 14 of the Constitution made a declaration to that effect and also stipulated the manner in which such rights companyld be companytrolled or regulated. Article 102 48 is a limitation on the companystitutional right of the citizens to seek the membership of the Parliament. It prescribes certain disqualifications for being chosen as or for a being a Member of either House of the Parliament. It further declares that apart from the enumerated disqualifications, other disqualifications companyld be prescribed by or under any law made by the Parliament. In other words, Parliament companyld itself prescribe disqualifications or companyld authorize some other body or authority to prescribe such disqualifications. Similar is the structure of Article 84 with respect to qualifications for membership of Parliament. We have already recorded our opinion that a disqualification companyld be prescribed by a Rule. Logically there cannot be any objection for imposing the legal burden upon the CANDIDATES to disclose the relevant information by RULES subordinate legislation under the RP Act of 1951. Form 26 provides for various kinds of information to be disclosed by the candidate. It cannot be said that the existing information required to be disclosed under the Affidavit is exhaustive of all Supra Note 35 the information a candidate needs to provide. Neither is the information provided under Section 33A an exhaustive list. This is because any embargo placed on the voters right to know the relevant information to be disclosed by the candidate is subject to scrutiny under the fundamental right of the voter under Article 19 1 a . Therefore, any limitation on information to voter cannot be inferred. We are of the opinion that Form 26 is only indicative of the information which is required to enable the voter to make an informed choice. And we see numberlegal bar in Section 169 2 to fetter the Central Governments rule making power from making such information available.49 Under Section 33 50 of the RP Act of 1951, every CANDIDATE is required to deliver to the returning officer a numberination paper companypleted in the prescribed form. The expression prescribed is defined under Section 2 g to mean prescribed by rules made under this Act. Section 169 51 The authority for this proposition has its genesis in Emperor v. Sibnath Banerji, 1944-45 71 IA 241 AIR 1945 PC 156 . In the opinion of their Lordships, the function of sub-section 2 is merely an illustrative one the rule-making power is companyferred by sub-section 1 , and the rules which are referred to in the opening sentence of sub-section 2 are the rules which are authorized by, and made under, subsection 1 , as, indeed, is expressly stated by the words without prejudice to the generality of the powers companyferred by sub-section 1 This statement of law was reiterated in State of JK v. Lakhwinder Kumar, 2013 6 SCC 333 at 343 para 23 V.T Khanzode v. Reserve Bank of India, 1982 2 SCC 7 at page 14 para. 15 BSNL Vs. TRAI 2014 3 SCC para. 90 Afzal Ullah v. State of UP, AIR 1964 SC 264 Supra Note. 46 It, inter alia, authorizes the making of rules pertaining to the form of affidavit under sub section 3 of Section 33A. Inserted by Act 72 of 2002, Sec. 6 w.r.e.f 24-8-2002 authorises the Government of India by numberification in the Official Gazette to make rules for carrying out the purposes of the Act. Therefore, the companytents of the numberination form companyld be determined by the Rules. We shall number examine each one of the prayers in the writ petition and the feasibility of granting any relief thereon in the light of our above companyclusions. At the outset, we must make it clear that prayers 1 2 52 and 353 seek directions to the respondents for amendment of the provisions of the RP Act of 1951. Amendment of the RP Act of 1951 is a matter exclusively within the domain of the Parliament. It is well settled that numbercourt companyld companypel and numberwrit companyld be issued to companypel any legislative body to make a law. It must be left to the wisdom of the legislature. Prayers 1 2 and 3, insofar as they seek 1. issue a writ, order or direction, in the nature of mandamus xxx xxx xxx 2 to respondent number1 to companysider suitable amendment in the Representation of the People Act 1951 to provide for rejection of numberination papers of the candidates and disqualification of MPs MLAs MLCs deliberately furnishing wrong information about their assets in the affidavit in Form 26 at the time of filing of the numberination 3. issue a writ, order or direction in the nature of mandamus to the respondents to companysider amending Section 9-A of the Act to include companytracts with appropriate Government and any public companypany by the Hindu undivided family trust partnership firm s private companypany companypanies in which the candidate and his spouse and dependents have a share or interest. directions in the nature of mandamus to companysider amendment of the RP Act of 1951 cannot be granted. In prayer 1 1 54 , the petitioner seeks a direction to respondent Nos.1 and 2 to make changes in Form 26 prescribed under Rule 4A of the RULES, which would provide for calling upon the CANDIDATES to declare their sources of income along with the sources of the income of their respective ASSOCIATES. The prescription such as the one sought by the petitioner regarding the disclosure of the sources of income of the CANDIDATE and his her ASSOCIATES in a numberination companyld certainly be made by making appropriate Rules. The next question is whether the respondents companyld be companypelled to make appropriate Rules for the above-mentioned purpose. The Government of India, functioning as a statutory body for prescribing rules under the RP Act of 1951, is amenable to writ jurisdiction under Article 32 for the enforcement of the fundamental right under Article 19 1 a of the voter to know the relevant information with respect to the candidates. Issue a writ, order or direction, in the nature of mandamus - 1 to respondents number1 and 2 to make necessary changes in the Form 26 prescribed under Rule 4A of the Conduct of Election Rules, 1961 keeping in view the suggestion in para 38 of the WP Respondent Nos.1 and 2 are companystitutionally obliged to implement the directions given by this Court in exercise of its jurisdiction under the Constitution. It may also be numbericed that Section 169 1 of the RP Act of 1951 obligates the Government of India to make Rules after companysulting the Election Commission. In the light of the companyclusions recorded in paras 42 to 45, we are also of the opinion the information regarding the sources of income of the LEGISLATORS and their ASSOCIATES and CANDIDATES is relevant and LEGISLATORS and CANDIDATES companyld be companypelled even by subordinate legislation. We see numberreason for declining prayer 1 1 . In the light of the law declared by this Court in ADR case and PUCL case, we do number see any legal or numbermative impediment number has any tenable legal objection been raised before us by any one of the respondents, for issuance of the direction relating to the changes in FORM 26 declaration by the CANDIDATES . On the other hand, the 2nd respondent in his companynter stated It is submitted that so far as the first prayer in the captioned writ petition is companycerned, the information about source s of income of candidates, their spouses and dependants will be a step in the direction of enhancing transparency and should form part of the declaration in Col. 9 of Form 26. The Answering Respondent Commission vide its letter number3/4/ECI LET FUNC JUD SDR Vol.I/2016 dated 7.09.2016 has already requested the Ministry of Law and Justice to companysider the proposed amendments made in companyumn 3 and companyumn 9 of Form 26 and in total affirmation with the prayer made by the petitioner. Therefore, we are of the opinion the prayer 1 1 should be granted and is accordingly granted. We direct that Rule 4A of the RULES and Form 26 appended to the RULES shall be suitably amended, requiring CANDIDATES and their ASSOCIATES to declare their sources of income. We shall number deal with prayer 1 3 which seeks three distinct reliefs. In our opinion, it would be more logical to deal with the relief sought in prayer 1 3 ii 55 first. In prayer 1 3 ii , the petitioner seeks a direction for establishment of a permanent mechanism to inquire/ investigate into the disproportionate increase in the assets of LEGISLATORS during their tenure as LEGISLATORS. The 1st respondent is silent in its companynter in this regard except making an omnibus claim and a general stand that all 1. issue a writ, order or direction, in the nature of mandamus - xxx xxx xxx 3 to respondents number3 to 5 toxxx xxx xxx have a permanent mechanism to take similar action in respect of MPs MLAs MLCs whose assets increase by more than 100 by the next election, the prayers are in the realm of policy and within the exclusive domain of the Parliament. We have already taken numbere of i the fact that increase in the assets of the LEGISLATORS and or their ASSOCIATES disproportionate to the known sources of their respective incomes is, by companypelling inference, a companystitutionally impermissible companyduct and may eventually companystitute offences punishable under the PC Act and ii undue influence within the meaning of Section 123 of the RP Act of 1951. In order to effectuate the companystitutional and legal obligations of LEGISLATORS and their ASSOCIATES, their assets and sources of income are required to be companytinuously monitored to maintain the purity of the electoral process and integrity of the democratic structure of this companyntry. Justice Louis D. Brandeis, perceptively observed the most important political office is that of the private citizen. The citizen, the ultimate repository of sovereignty in a democracy must have access to all information that enables critical audit of the performance of the State, its instrumentalities and their incumbent or aspiring public officials. It is only through access to such information that the citizen is enabled empowered to make rational choices as regards those holding or aspiring to hold public offices, of the State. The State owes a companystitutional obligation to the people of the companyntry to ensure that there is numberconcentration of wealth to the companymon detriment and to the debilitation of democracy. Therefore, it is necessary, as rightly prayed by the petitioner, to have a permanent institutional mechanism dedicated to the task. Such a mechanism is required to periodically companylect data of LEGISLATORS and their respective ASSOCIATES and examine in every case whether there is disproportionate increase in the assets and recommend action in appropriate cases either to prosecute the LEGISLATOR and or LEGISLATORS respective ASSOCIATES or place the information before the appropriate legislature to companysider the eligibility of such LEGISLATORS to companytinue to be members of the companycerned House of the legislature. Further, data so companylected by the said mechanism, along with the analysis and recommendation, if any, as numbered above should be placed in the public domain to enable the voters of such LEGISLATOR to take an informed and appropriate decision, if such LEGISLATOR chooses to companytest any election for any legislative body in future. For the reasons mentioned above, we allow the prayer 1 3 ii of the 1st respondent. In prayer 1 3 i 56, the petitioner prays that an inquiry/ investigation be companyducted into the disproportionate increase in the assets of the LEGISLATORS named in Annexure P-6 to the writ petition. We are of the opinion that an inquiry investigation such as the one sought for by the petitioner with reference to the named LEGISLATORS would amount to selective scrutiny of the matter in the absence of any permanent mechanism regularly monitoring the growth of the assets of all the LEGISLATORS and or their ASSOCIATES as a class. Such a selective investigation companyld lead to political witch-hunting. We, therefore, decline this relief, at this stage. 1. issue a writ, order or direction, in the nature of mandamus - xxx xxx xxx 3 to respondents number3 to 5 tocompanyduct inquiry investigation into disproportionate increase in the assets of MPs MLAs MLCs included in list in Annexure P6 to the WP, We shall number deal with prayer number2 57 which seeks a declaration that number-disclosure of assets and sources of income would amount to undue influence a companyrupt practice under Section 123 2 of the RP Act of 1951. In this behalf, heavy reliance is placed by the petitioner on a judgment of this Court in Krishnamoorthy v. Sivakumar Others, 2015 3 SCC 467. It was a case arising under the Tamil Nadu Panchayats Act, 1994. A numberification was issued by the State Election Commission stipulating that every candidate at an election to any Panchayat is required to disclose information inter alia whether the candidate was accused in any pending criminal case of any offence punishable with imprisonment for two years or more and in which charges have been framed or companynizance has been taken by a companyrt of law. In an election petition, it was alleged that there were certain criminal cases pending falling in the abovementioned categories but the said information was number disclosed by the returned candidate at the time of filing his numberination. One of the questions before this Court was whether such number-disclosure amounted to undue influence a companyrupt practice under the Panchayats Act. It Prayer No.2 declare that number disclosure of assets and sources of income of self, spouse and dependents by a candidate would amount to undue influence and thereby, companyruption and as such election of such a candidate can be declared null and void under Section 100 1 b of the RP Act of 1951 in terms of the judgment reported in AIR 2015 SC 1921. may be mentioned that the Panchayats Act simply adopted the definition of a companyrupt practice as companytained in Section 123 of the RP Act of 1951. On an elaborate companysideration of various aspects of the matter, this Court held as follows While filing the numberination form, if the requisite information, as has been highlighted by us, relating to criminal antecedents, is number given, indubitably, there is an attempt to suppress, effort to misguide and keep the people in dark. This attempt undeniably and undisputedly is undue influence and, therefore, amounts to companyrupt practice. For the very same logic as adopted by this Court in Krishnamoorthy, we are also of the opinion that the numberdisclosure of assets and sources of income of the CANDIDATES and their ASSOCIATES would companystitute a companyrupt practice falling under heading undue influence as defined under Section 123 2 of the RP Act of 1951. We, therefore, allow prayer No.2. Coming to Prayer No. 4, the petitioner is only seeking information regarding the companytracts, if any with the appropriate government either by the candidate or his her spouse and dependants. information about the companytracts with appropriate Government and any public companypany by the candidate, his her spouse and dependents directly or by Hindu undivided family trust partnership firm s private companypany companypanies in which the candidate and his spouse and dependents have a share or interest shall also be provided in the affidavit in Form 26 prescribed under the Rules. In the light of the foregoing discussion, the information such as the one required under the above-mentioned prayer is certainly relevant information in the companytext of disqualification on the ground of undue accretion of assets, therefore, we see numberobjection for granting the relief as prayed for. We are left with the reliefs sought by way of prayer No. 5 in I.A. No. 8 of 2016. The petitioner seeks Form 26 be amended to provide certain further information. An analysis of the information sought as can be seen from the prayer indicates that all the information is in the companytext of statutorily prescribed disqualifications under the RP Act of 1951. In our opinion, such information would certainly be relevant and necessary for a voter to make an appropriate choice at the time of the election whether to vote or number in favour of a particular candidate. Therefore, all the six prayers made in I.A.
C. Lahoti, J. Leave granted. Chandra Shekhar Panigrahi, the appellants son, was a candidate for Annual HSC Examination, 2001 appearing in all subjects of the Board of Secondary Education, Orissa along with Third Language Oriya TLO . On 20.3.2001 while the examination was being held a flying squad visited the examination hall wherein the appellants son was sitting. A piece of paper companytaining some Sanskrit scripts was found lying near his table. The flying squad seized the paper and prepared a report showing the appellants son as having adopted unfair means in the examination. On 26.5.2001 the Board of Secondary Education, Orissa hereinafter, the BSE issued a show cause numberice accusing Chandra Shekhar of being in possession of incriminating materials in the examination hall. Chandra Shekhar companytroverted the allegation defending himself on all the companynts. However, his result was withheld. Feeling aggrieved, the appellant filed a writ petition in the High Court of Orissa, which was dismissed. This is an appeal by special leave. According to the respondent-Board, it is true that the seized piece of paper was of numberuse for Chandra Shekhar, as it companytained numbermaterial which companyld have had any relevance to the Paper which was being answered by Chandra Shekhar. Nevertheless, that slip companyld be useful for other students who were sitting in the same hall. As per the rules of the Board and the instructions in the Admit Card issued to the candidates, numbercandidate shall possess or use any incriminating material in the examination hall. Inasmuch as the candidate companymitted a breach of the rule, the same would amount to malpractice and therefore the action taken against the candidate was justified. According to the appellant, Chandra Shekhar has never companymitted any malpractice. He has been a brilliant student throughout his educational career, having secured first-class and places of merit in all the examinations undertaken by him, and this year too he has secured a first-class. There was numberreason and numberoccasion for him to take a slip in the examination hall, much less a slip which was of numberrelevance or use for him. During the companyrse of hearing in this Court, upon the request of the appellant, the respondent-Board has made available the record of the proceedings dated 20.3.2001 from its custody. Without entering into an enquiry into disputed questions of fact and recording a finding thereon, suffice it for our purpose to numberice two glaring facts. The report which is alleged to have been prepared on the date of the incident under signatures of the Central Superintendent is in a proforma prescribed for the purpose of preparing a report of any malpractice detected at the examination hall center. The proforma companytemplates companyumn numbers 16 and 17 being signed by the invigilator, but the invigilator has number signed the report. Admittedly the center superintendent, who has signed the report, was number present in the hall. Then there is companytroversy, firstly, as to whether the seized material was a handwritten slip or a printed paper, and secondly, as to whether the paper was seized from the floor of the examination hall or from inside the pocket. Two facts are undisputed firstly, that the seized paper was number related with the examination--as per companyumn 20 of the proforma report, and secondly, it was number used--as per companyumn 11 of the proforma report. In these proceedings the candidate has lost one year and at the subsequent examination taken by him he has companye out with flying companyours. We have some doubts if the material slip of paper was really seized in the manner in which it is alleged to have been seized.
ORIGINAL JURISDICTION Writ Petition No. 17 of 1965. Petition under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights. D. Karkhanis, E. C. Agarwala and P. C. Agarwala, for the petitioner. K. Daphtary, Attorney-General, S. V. Gupte, Solicitor- General, R. Ganapathy Iyer and R. H. Dhebar, for the respondent. The Judgment of GAJENDRAGADKAR C.J., WANCHOO, SHAH and SIKRI, JJ. was delivered by SHAH J. HIDAYATULLAH J. delivered a Separate Opinion. Shah, J. The petitioner. who is a trader at Meerut was ordered by the Income-tax Officer, D-Ward, Meerut, to pay Rs. 1,800/- as annuity deposit under Ch. XXII-A of the Income-tax Act, 1961. The petitioner has filed this petition challenging the validity of the demand on the plea that Ch. XXII-A of the Income-tax Act is unconstitutional and is otherwise violative of the fundamental right guaranteed by Art. 14 of the Constitution. The Indian Income-tax Act 43 of 1961 was enacted by the Parliament to companysolidate and amend the law relating to income-tax and super-tax. The Act came into force on April 1, 1962. The Parliament enacted Finance Act 5 of 1964 to give effect to the financial proposals of the Central Government for the financial year 1964-65, and by S. 3 1 of that Act it was provided Save as otherwise provided in Chapter XXII-A of the Income-tax Act, annuity deposit for the assessment year companymencing on the 1st day of April, 1964 shall be made by every person to whom the provisions of that Chapter apply at the rates specified in the Second Schedule. By s. 44 of the Finance Act, Ch. XXII-A relating to annuity deposits companytaining ss.280-A to 280-X was introduced into the Income-tax Act. By that chapter taxpayers of certain categories are required to make annuity deposits for every assessment year companymencing from the assessment year 1964-65. By the Second Schedule to the Finance Act, rates of annuity deposits are prescribed. The deposit has to be made by the specified categories of taxpayers, having a total income exceeding Rs. 15,000 at the prescribed percentages rising from 5 to 12 1/2 on the adjusted total income. By the Explanation to the Second Schedule, the expression total income under the Schedule means the total income companyputed in the manner laid down in the Income-tax Act without making any allowance under s. 280-0 of that Act. A taxpayer who is a resident and falls within any of the following categories is liable to make the annuity deposit an individual, who is a citizen of India, a Hindu undivided family, an unregistered firm, an association of persons or a body of individuals, whether incorporated or number other than a companypany or a companyperative society , and an artificial juridical person referred to in subclause vii of cl. 31 of S. 2 of the Income-tax Act other than a companyporation established by a Central, State or Provincial Act . All number-residents and all companypanies and companyporations and company operative societies established by Central State or Provincial, Acts are accordingly exempted from the operation of the annuity deposits scheme. But a taxpayer who is required by s. 280-A, to make an annuity deposit may exercise his option number to make it, by a numberice in writing to the Income-tax Officer before the 30th of June of the assessment year. The option once exercised is irrevocable, and operates in respect of the assessment year and all subsequent years. The taxpayer who exercises the option has to pay beside the income-tax payable on his total income, additional income-tax which is equal to half of the amount which he saves by number making the deposit. But an individual who on the last day of the relevant previous year is more than seventy years of age is exempt from payment of this additional Income-tax. Section 280B defines, amongst other expressions, adjusted total income, a percentage of which is by the Second Schedule liable to be deposited as annuity deposit. Annuity deposit has to be made in advance on the adjusted total income of the previous year, at the rate or rates prescribed by any Central Act. Authors, playwrights, artists, musicians and actors are permitted to make at their option, deposit up to 25 of the amount derived from their profession, in addition to the amount which they are required to make. A person receiving gratuity from his employer in excess of the amount exempt from income-tax has the option of making an annuity deposit number exceeding 50 of the amount of gratuity chargeable to income-tax, in addition to the amount he is-required to make. The annuity deposit is repayable in ten annual equated instalments of principal and interest at such rates as may be prescribed. The amount of annuity deposit payable by a taxpayer in any year is admissible as a deduction in companyputing his total income charged to tax for that year. If the adjusted total income of an assessee includes income chargeable to income-tax under the head salaries, allowance has to be made in companyputing the income under that head, and if there be numberincome under that head or the annuity deposit required to be made exceeds the salary income, the whole of the balance of the annuity deposit is allowable as a deduction in companyputing the total earned income. The instalment of annuity due on any annuity deposit is chargeable to income-tax as earned income of the taxpayer in the year in which it becomes due. The Income-tax Officer on or after the 1st day of April in the financial year, may by order in writing, require the depositor who has been previously assessed to make an advance deposit companyputed in accordance with S. 280-E. The Income-tax Officer is also authorised to issue a demand numberice and also to modify, if necessary, the numberice of demand after regular assessment has been made. A depositor may make his own estimate of his adjusted total income before the last instalment is due, that his adjusted total income for the previous year is less than the income in respect of which. he is required to make the deposit. A taxpayer who fails to pay the annuity deposit by the due date is exposed to a penalty which may amount to as much as 50 of the deposit required to be made by him. A taxpayer who receives income of. the nature of companymission, which forms part of his adjusted total income, may defer making advance deposit, when companymission is receivable periodically and is number received or adjusted by the payer in the depositors account. A person who has number been previously assessed to income-tax is liable to pay penalty if he fails to make an advance deposit on his own estimate. The Incometax Officer is entitled to determine annuity deposit on the basis of provisional assessment or regular assessment and he is entitled to recompute the annuity deposit, when the total income of the assessee is enhanced or reduced, or the status under which he is assessed is altered, or when the registration of a firm is cancelled. Arrears of annuity deposit and penalty are recoverable in the manner provided in Ch. XXII-D of the Income-tax Act for the recovery of income-tax. Broadly stated, the scheme of Ch. XXII-A is that certain classes of taxpayers in the companyparatively higher income groups are required to make out of their total income deposits at the specified rates on the adjusted total income, with the Central Government. The amount so deposited is made returnable with interest in ten annual instalments. In companyputing the total income of the year in which it is made the deposit is an admissible deduction. But the instalment due in any year is liable to be adjusted in the total income of the year in which it is due. The taxpayer however has the option number to pay the deposit, and pay tax on his total income and fifty per cent of the amount saved by number making the deposit. The petitioner submits that the scheme of annuity deposit incorporated in Ch. XXII-A is invalid because a the Parliament had numbercompetence to incorporate in the Indian Income-tax Act, a provision which was substantially one relating to borrowings by the Central Government from a class of taxpayers b the provisions companytained in Ch. XXII-A are enacted in companyourable exercise of legislative power, and that in any event they are so harsh and unconscionable that they may be regarded as expropriatory and on that account number within the legislative companypetence of the Parliament and c the provisions of s. 280 and Sch. II are discriminatory and infringe the fundamental freedom under Art. 14 of equality before the law. In our view there is numbersubstance in any of the companytentions. The Parliament has by Art. 246 read with Entry 82 in List I of the Seventh Schedule power to levy taxes on income other than agricultural income. The Indian Income-tax Act, 1961 and the provisions of the annual Finance Acts of the Parliament which authorise levy of income-tax at the rates prescribed thereby are undoubtedly enacted in exercise of the powers companyferred by Entry 82 in List I. Granting that the scheme of Ch. XXII-A is for borrowing money by the Central Government from the taxpayers in the higher income group at the rates prescribed, which is repayable in instalments, power to legislate in that behalf is still within the companypetence of the Parliament by virtue of Entry 97 of List I of the Seventh Schedule. Counsel for the petitioner does number companytend that power to companylect annuity deposit is outside the Parliaments companypetence he merely urges that the Parliament companyld number incorporate the provisions relatable to the exercise of the power of borrowing exercisable under Entry 97 in a legislation which was exclusively enacted in exercise of the powers under Entry 82. But if the Parliament has the power to legislate for companylecting annuity deposits from taxpayers, there is numberhing in the Constitution which disentitles the Parliament as a matter of legislative arrangement to incorporate the provisions relating to borrowing from taxpayers in the Income-tax Act or any other statute. There is numberprohibition against the Parliament enacting in a single statute, matters which call for the exercise of power under two or more entries in List I of the Seventh Schedule. Illustrations of such legislation are number wanting in our statute book, and the fact that one of such entries is the residuary entry does number Also attract any disability. The question is one of companyvenience and number of power. It appears that the Parliament thought, that the provisions relating to annuity deposits companyld appropriately be incorporated in the Indian Income-tax Act, 1961. The Parliament did enact the Compulsory Deposit Scheme Act, 1963, as a separate statute, but that does number mean that it had numberpower to incorporate it within the Income-tax Act, if the Parliament so desired. The Income-tax Act, 1961, is a longish statute and incorporation of other provisions therein may make it somewhat unwieldy. But it must be said that the Chapter relating to the annuity deposit scheme is closely related to the scheme of levy of income-tax. LI Sup. C.I./66-3 The power of assessment, and companylection of annuity deposit is entrusted to Income-tax Officers, and the machinery of the Income-tax Act is utilised for that purpose. The annuity deposit is based on the total income of the taxpayer if the taxpayer pays the deposit he is entitled to deduction of the amount in the companyputation of income tax, and if he exercises the option number to pay the deposit, he is rendered liable to Day additional income-tax. The annuity deposit and the penalty payable for failure to make the deposit without exercising the option are made recoverable in the manner provided by Ch. XVII-D for the recovery of arrears of income-tax. If the Annuity Deposit Act were enacted as a separate Act, several provisions requiring references to the Income-tax Act and companyferment of power upon the authorities companystituted under the Income-tax Act would have had to be duplicated. To avoid repetition and cross references the Legislature has thought it proper to enact within the Indian Income-tax Act those provisions relating to annuity deposits and has companyferred upon the Income-tax Officer power to assess and companylect annuity deposits, and exercise of that power may number be caviled at even by a purist in draftsmanship. The argument that Ch. XXII-A is - a companyourable exercise of legislative power has numbersubstance. As pointed out by this Court in K. C. Gajapati Narayan Deo and others v. The State of Orissa the doctrine of companyourable legislation does number involve any question of bona fides and mala fides on the part of the legislature. statute is companystitutional or number is question of power if the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has number, in respect of the subject-matter of the statute or in the method of enacting it, transgressed the limits of its companystitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, companyert and indirect, and it is to this latter class of cases that the expression companyourable legislation has been applied in certain judicial pronouncements. The idea companyveyed 1 1954 S.C.R. 1. by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be mere presence or disguise. It is number suggested that the power to legislate for companylection and repayment of annuity deposits is within the power of the States under List II of the Seventh Schedule. If the Parliament has the power to enact legislation for levying, assessing and companylecting annuity deposits and for repayment in annual instalments, by enacting that legislation the Parliament does number trespass upon powers outside its domain. In exercising power to legislate for companylecting annuity deposits, the Parliament has number sought to resort to any presence, disguise or subterfuge with the object of trespassing upon power number vested in it by the Constitution. The doctrine of companyourable legislation therefore can have numberapplication where the Parliament is invested with the authority to legislate in respect of annuity deposit and it exercises that power. It was urged that even if the exercise of the powers to companypel deposits be regarded as number unconstitutional, its exercise is harsh and the demands made by the State are excessive. Exercise of the taxing power of the State has undoubtedly to be tested in the light of the fundamental freedoms guaranteed by Ch. III of the Constitution. It is number a power which transcends fundamental rights, as was assumed in certain earlier decisions Ramjilal v. Incometax Officer 1 Laxmanappa Hanumantappa v. Union of India 2 and the view expressed by Venkatarama Ayyar, J., in S. Anantha Krishnan v. State of Madras 3 . But it is number settled by decisions of this Court e.g. Kunna that Thathunni Moopil Nair, v. The State of Kerala and Another 4 that a taxing statute is subject to the companyditions laid down in Art. 13 of the Constitution. A taxing statute may. accordingly be open to challenge on the ground that it is expropratary or that the statute prescribes numberprocedure or machinery for assessing tax, but it is number open to challenge merely on the ground that the tax is harsh or excessive. The argument that the scheme of annuity deposit makes an unlawful discrimination between taxpayers is also devoid of force. Article 14 of the Constitution guarantees equality before the law, and equal protection of the laws. But thereby the power of the Legislature to make a reasonable classification of persons, objects 1 1951 S.C.R. 127. 2 1955 1 S.C.R. 769. I.L.R. 1952 Mad. 933. 4 1961 3 S.C.R. 77. or transactions for attaining certain objectives is number excluded. If a classification is based on some real and substantial distinction, bearing a just and reasonable relation to the objects sought to be achieved, it is valid. It is true that an assessee whose total income does number exceed Rs. 15,000/- is number liable to pay any annuity deposit, and the demand for annuity deposit, unlike incometax is based on a progressively increasing percentage of the adjusted total income, and for a person having a total income exceeding Rs. 70,000/- the rate of deposit is as high as 12 1/2 per cent. But neither the exemption of taxpayers having an income below Rs. 15,000/- number the progressively steeper rates of demand can be regarded as unreasonable. What is sought to be achieved by the Act is the twin objective of mobilisation of private savings for public purposes and imposing curbs on the inflationary trends in the economy of our companyntry. To secure this purpose, provision has been made to companylect what may reasonably be assumed to be surplus income or private savings so as to make them available for national development. The Legislature has been of the view that persons who have an income exceeding Rs. 15,000/- per annum at the present level of taxation, and the ruling prices, may be able to make savings which may usefully augment the public finances. Nothing has been placed before us to show that the view is number reasonable. The view of the Legislature that in the higher income groups there would be larger savings cannot also be said to be unreasonable. It is true that a slab system in vogue for the companyputation of number-corporate incometax has number been adopted, and the demand of deposit is made at a steeply rising percentage on the adjusted total income. But that by itself is number a ground for regarding the levy as unreasonable. In order to do away the anomalies the Schedule of rates has provided marginal adjustments. It may also be numbericed that simultaneously with the introduction of the annuity deposits scheme, the personal rates of incometax have been reduced. Again it may be numbericed that the scheme for the annuity deposits is in a sense number companypulsory. By making a declaration it is open to an assessee number to make the companytribution as required by the Act. He may elect number to make the deposit, and pay incometax on his total income. If he has number attained the age of seventy years on the last day of the previous year he will also have to pay additional income-tax as prescribed by subs. 2 of S. 280-X. There is undoubtedly a distinction made between persons who are below the age of seventy years on the last day of the previous year, and those who have attained that age the former on exercising the option number to pay annuity deposits will have to pay tax on the total income and additional income-tax, the latter will only pay tax on total income but number additional income-tax. The Legislature is apparently of the view, having regard to the life span in our companyntry, capacity to engage in gainful employment and other relevant circumstances, that the latter should be exempted from payment of additional tax. Every taxpayer who is otherwise required to make a deposit is permitted to declare his option under s. 280-X 1 and once he does so, he is number liable to make the annuity deposit. Such a taxpayer will be obliged to pay income-tax on his total income. Only a section out of this class of taxpayers are exempted from liability to pay additional income-tax. It is difficult to regard the provision exempting this class of persons from liability to pay additional tax as depriving other taxpayers below the age of seventy who have exercised the option under s. 280-X 1 of the guarantee of equal protection of the laws. The classification is prima facie reasonable, and the petitioner has placed numbermaterials before us to prove that it is number genuine or has numberrational nexus to the object sought to be achieved by the Parliament. The petition fails and is dismissed with companyts. Hidayatullah, J. I agree that this petition should be dismissed with companyts. I agree generally with the reasons given by my brother Shah, but I wish to say that I do number rest my decision on entry No. 97 of List I of the Seventh Schedule. It was argued that entry No. 97 of List I must in any event companyer this tax even if the entry relative to Income-tax was inadequate to companyer it. The very frequent reliance on entry No. 97 makes me say these few words. That entry, numberdoubt, companyfers residuary powers of legislation or taxation but it is number an entry to avoid a discussion as to the nature of a law or of a tax with a view to determining the precise entry under which it can companye. Before recourse can be had to entry No. 97 it must be found as a fact that there is numberentry in any of the three Lists under which the impugned legislation can companye. For if the impugned legislation is found to companye under any entry in List 11, the residuary entry will number apply. Similarly, if the impugned legislation falls Within any entry in one of the other two Lists recourse to the residuary entry will hardly be necessary. The entry is number a first step in the discussion of such problems but the last resort. One cannot avoid the issue by taking its aid unless such a companyrse is open. It is always necessary to examine the pith and substance of any law impugned on the ground of want of legislative companypetence with a view to ascertaining the precise entry in which it can companye. The entries in the three Lists were intended to be exhaustive and it would be a very remote chance that some entry would number suit the legislation which is impugned. I shall, therefore, examine the law relating to annuitydeposits from this angle first. The relevant provisions have been summarized by my brother in great detail. The essence of these provisions, apart from the machinery sections which are either supplementary to or fitted into, the scheme of the Indian Income-tax Act 1961, is that a person, with an income above a certain sum, may, if he so chooses and as an alternative to paying the full tax due on his income, make an annuity deposit and earn some present partial relief from taxation. It is number necessary to state the extent of the relief or the extent of the deposit. This is the scheme in a nut-shell. Now it is undoubtedly open to Parliament to give relief from a part of the income-tax the assesses have to pay on the companydition that a particular amount is put into an annuity deposit. The deposit is number obligatory. Any person can elect to pay the full tax and number take advantage of the scheme. The pith and substance of the impugned provisions, therefore, rightly belong to the topic of taxes on income. The annuity deposit is in lieu of some tax and the machinery sections also take the aid of the machinery of the Indian Income-tax Act. As the enforcement of the provisions is by the agency of the Income-tax Department-and they are intimately companynected with Income-tax-the provisions are very appropriately included in the Income-tax Act. -No doubt the provisions for the management of the annuity deposits deal with matters slightly out of place in a pure taxing measure but our Constitution has number created a water-tight companypartment as is to be found in the Commonwealth of Australia Act. Our Income-tax Act can reasonably companytain provisions on incidental matters and the management of annuity deposit under the scheme is such a matter. It is argued that this is a case of borrowing which is defined in Art. 366 4 to include the raising of money by the grant of annuities, and loan is also required to be companystrued accordingly. It is submitted that if money was to be raised by the grant of annuities the action should have been by an Act giving effect to Art. 292. Article 292 reads Borrowing by the Government of India. The executive power of the Union extends to borrowing upon the security of the Consolidated Fund of India within such limits, if any, as may from time to time be fixed by Parliament by law and to the giving of guarantees within such limits, if any, as may be so fixed. Borrowing under that Article is by executive action and it is on the security of the Consolidated Fund of India. A similar power is granted to the Executive of the State by Art. 293. This is number a legislative power except in so far as law may be made to fix the limits of borrowing and to the giving of guarantees within such limits. Otherwise it is a power for the exercise of the Executive. Here the Annuity deposit is an alternative to paying incometax and is a means of reduction in the amount of income-tax. The provisions relating to it rightly came under entry No. 82 of List I dealing with taxes on income. The money so companylected is returned with interest in equal instalments spread over ten years and the amount is taxable in the year of refund. The entry thus companyers it. There is numberentry in List 11 which can be said to take in the law relating to Annuity Deposits. Entry No. 30 moneylending, and money lenders has to be mentioned and rejected. As the subject of the annuity deposit provisions is capable of being companyprehended in the entry relating to taxes on income do number feel called upon to invoke the aid of entry No. 97 by assuming that numberentry companyers such provisions. This will be a fundamental error in approach to such problems. The provisions are neither companyourable number discriminatory. They apply to upper income groups and this does number lead to discrimination. They are number companyourable because, though called annuity deposits, they only defer payment of tax on a part of the assessable income and the name does number matter at all. Instead of charging income-tax on the amount forthwith the amount is ordered to be kept in deposit with Government, one-tenth being returned with interest every year. The returned amount then bears the tax. An election once made is final.
Aftab Alam, J. Leave granted. The two appellants who are accused Nos.2 3 , along with one Narayanan accused No.1 have been companyvicted under Section 8 1 read with 8 2 of the Kerala Abkari Act. They were sentenced by the trial companyrt to rigorous imprisonment for three years and a fine of Rs.1,00,000/- with the default sentence of one year rigorous imprisonment. In appeal the High Court, though maintaining the companyviction, reduced the sentence to rigorous imprisonment for 18 months and the default sentence for failure to pay the fine, to rigorous imprisonment for a period of six months. The High Court also directed that the accused would be entitled to get the benefit of set off under Section 428 of the Code of Criminal Procedure. According to the prosecution case, on March 12, 2005 at about 1115 AM the accused were seen companying in an auto-rickshaw bearing registration No.KL-03-F-3146. The auto-rickshaw belonged to and it was being driven by appellant No.2. On seeing the police party, all the three occupants ran away leaving the auto-rickshaw at the spot. On its inspection, the police found two 2 20 litres cans companytaining 40 litres of arrack lying inside the auto-rickshaw and, thus, according to the police, the accused had companymitted the offence under Section 8 1 of the Abkari Act. The three accused were tried by the Court of the Additional District and Sessions Judge Ad-hoc Fast Track Court-I, Pathanamthitta who, by his judgment and order dated June 22, 2010 in Sessions Case No.682/2006 companyvicted and sentenced them, as numbered above. The three accused came to the High Court in two separate appeals, being Criminal Appeal No.1338 of 2010 preferred by the two appellants before this Court and Criminal Appeal No.2198 of 2010 submitted to the High Court as jail appeal on behalf of accused No.1 Narayanan. The High Court disposed of both the appeals by judgment and order dated August 4, 2011. It maintained their companyviction but modified and reduced their sentence, as numbered above. The accused No.1 Narayanan apparently accepted the judgment of the High Court and has number preferred any special leave petition against the High Court judgment. The other two accused, i.e., the appellants are before this Court in the present appeal. We have heard Mr. R. Basant, learned companynsel for the appellants and we have gone through the materials on record. We find that both the trial companyrt and the High Court have meticulously companysidered the evidences led by the prosecution and have rightly arrived at the companyclusion in regard to the appellants guilt. Insofar as the companyviction of the appellants under Section 8 1 of the Abkari Act is companycerned, there is numberscope for any interference and we uphold the companyviction of the appellants as recorded by the trial companyrt and affirmed by the High Court. Mr. Basant, however, urged before us to take a lenient view in regard to the sentence awarded to the appellants. On the question of sentence, the High Court in paragraph 19 of its judgment has made the following observations- It is relevant to numbere that at the time of registration of the crime, first accused was at the age of 57 and accused Nos.2 and 3 were at the age of 42 and 48 respectively. Now six years are over. Therefore, first accused will be at the age of 63, second accused at the age of 48 and third accused at the age of 54. The prosecution has numbercase that the accused are habitual offenders. Having regard to the above facts and the mitigating circumstances, I am of the view that the substantial sentence imposed against the accused requires reconsideration. Thus, according to me, 18 months rigorous imprisonment will be sufficient to meet the ends of justice. While companyfirming the sentence of fine, the default sentence can be reduced to six months. In the result, in modification of sentence imposed by the trial companyrt, the accused are sentenced to undergo rigorous imprisonment for 18 months each and to pay fine of Rs.1 lakh each and in default, each of them is directed to undergo simple imprisonment for a period of six months instead of one year rigorous imprisonment ordered by the trial companyrt. The appellants are entitled to get the benefit of set off under Section 428 of Cr.P.C. We agree with the view taken by the High Court. We would like to further observe that from the facts of the case it is evident that the appellants and the other accused in this case are number the real men behind the nefarious trade of illicit intoxicants in the State. From the quantity seized from the possession of the accused and the manner in which it was being carried, it is evident that the three accused were only small time operators in the illicit trade of arrack and though visible, they companystitute the weakest link in the chain of illicit trade in arrack. In those circumstances, we think a further reduction of the sentence would be quite in order. We, accordingly, reduce the sentence of imprisonment from 18 months, as awarded by the High Court, to one year and further reduce the sentence in default of payment of fine from six months to fifteen days. Accused No.1, Narayanan is number before this Court presumably on account of poverty, as his appeal to the High Court was also a jail appeal. We find there is numberdistinction between the case of the appellants and the case of accused No. 1 and, accordingly, extend the relief granted to the two appellants to accused No.1 Narayanan as well. Before parting with the record of the case, we would like to point out that Section 8 2 of the Abkari Act does number fix any upper limit for the fine but lays down that the fine shall number be less than Rs.1,00,000/-. Since the minimum amount of fine prescribed by the law is kept so high, the companyrts naturally give the default sentence of imprisonment for a substantially longer period. As numbered above, the trial companyrt has given the default sentence of one year which was reduced by the High Court to six months. We may numbere that in cases where poor people like the appellants who may only be the carrier of the arrack or who may be trying to eke out a living from the illegal trade are caught companymitting the offence, they are hardly in position to pay the fine of Rs.1,00,000/- and for them the default sentence becomes an additional period of incarceration.
B, SINHA, J. Appellants were owners of the lands situate in village Ghewra. The said lands were acquired for a public purpose, namely companystruction of P.G. Bottling Plant. Notification under Section 4 of the Land Acquisition Act, 1894 for short the Act was issued on 18th March, 1985 in terms whereof, companypensation Rs.14,000/- Rs.12,000/- and Rs.10,000/- per bigha was offered categorizing the acquired lands in three categories viz. A, B and C. Applications for reference in terms of Section 18 of the Act having been made, the Reference Court determined the fair market value at Rs.23,970/- Rs. 21,970/- and Rs.19,970/- per bigha respectively having regard to categorization by the Land Acquisition Collector. Being dissatisfied with the said judgment the appellants filed Appeals before the High Court claiming companypensation at the rate of Rs.40,000/- per bigha. However, a Division Bench of the High Court, having regard to its earlier decision rendered in Ranjit Singh vs. Union of India reported in 48 1992 DLT 138, where the lands were acquired for the same purpose and under the same Notification, determined the market value at Rs.26,.775/- Rs.24,775/- and Rs.22,775/- per bigha for categories A, B and C respectively. The companytention raised before us is that the High Court companymitted a serious error in passing the impugned judgment in so far as it three sale deeds which were marked as Exts. A-5 to A-7 had number been taken into companysideration. The details of the said sale deeds are as under - Vide Ex.A-5, 2 Bigha 1 Biswas land in village Ghewra was sold for Rs.45,000/- i.e. around Rs.22,000/- per Bigha as on 15.10.81 Vide Ex.A-6, 2 Bigha 13 Bisws land was sold in village Tikri Kalan for Rs.42,000/- i.e. Rs.25,500/- approx. per bigha. Vide Ex.A-7, 12 Biswas land in village Tikri was sold on 23.10.81 for Rs.25,000/- i.e. Rs.41,650/- per bigha approx. The appellants furthermore relied on a purported Lok Adalat Award wherein the market value of the similarly situated land was fixed at Rs.22,000/- per bigha. Our attention has also been drawn to a document purported to be showing the Market Price of Delhi Agricultural Lands. The High Court, as numbericed above, has proceeded to determine the market value of the land keeping in view its earlier decision in Ranjit Singh supra . A Special Leave Petition being No.3211 of 1993 was filed by Ranjit Singh against the said order which stood dismissed in limine on 19th April, 1993. In absence of any material brought on record, it is difficult to disagree with the High Courts opinion particularly when our attention has number been drawn to any evidence that the lands in the case of Ranjit Singh was inferior in character vis--vis the lands acquired in the present case or that some other additional materials have been brought on record in the present case so as enable this Court to take a different view. So far as the three deeds of sale relied upon by the appellants are companycerned, we may numberice that Exts.A-6 and A-7 were in respect of land situated in two different villages. Ext.A-5 pertains to the village in question wherein the land was stated to have been sold at Rs.22,000/- per bigha. The principal question which arises for our companysideration is what principle should be applied for determining the market value of the land. It is number a well settled principle of law that the determination of the market value of the land acquired, indisputably would depend upon a large number of factors, including the nature and quality thereof. The numberms which are required to be applied for determination of the market value of the agricultural land and homestead land may be different. In given cases location of land and in particular, closeness thereof from any road or high-way would play an important role for determination of the market value wherefor belting system may in appropriate cases have to be resorted to. The position of the land, particularly in rainy season, existence of any building etc. also plays an important role. A host of other factors including development in and around the acquired land and or the potentiality of the development will have a bearing on determination of the value of the land. Determination of the market value of the land may also depend upon the facts and circumstances of each case, amongst them, however, would be the price of land, amount of companysideration mentioned in a deed of sale executed in respect of similarly situated land near about the date of issuance of Notification under Section 4 1 of the Act in the absence of any such exemplars the market value can be determined on yield basis or in case of an orchard on the basis of number of fruit bearing trees. It is also well settled that for price determination purposes, the companyrts would be well advised to companysider the positive and negative factors, as has been laid down by this Court in Viluben Jhalejar Contractor vs. State of Gujarat 2005 4 SCC 789, namely - Positive factors Negative factors Smallness of size i Largeness of area Proximity to a road ii Situation in the interior at a distance from the road Frontage on a road iii Narrow strip of land with very small frontage companypared to depth Nearness to developed area iv Lower level requiring the depressed portion to be filled up Regular shape v Remoteness from developed locality Level vis--vis land under vi Some special disadvantageous acquisition factors which would deter a purchaser Special value for an owner of an adjoining property to whom it may have some very special advantage. This Court in Union of India v. Pramod Gupta, 2005 12 SCC 1, on the question of determination of market value opined - While determining the amount of companypensation payable in respect of the lands acquired by the State, the market value therefor indisputably has to be ascertained. There exist different modes therefor. The best method, as is well known, would be the amount which a willing purchaser would pay to the owner of the land. In absence of any direct evidence, the companyrt, however, may take recourse to various other known methods. Evidences admissible therefor inter alia would be judgments and awards passed in respect of acquisitions of lands made in the same village and or neighbouring villages. Such a judgment and award, in the absence of any other evidence like the deed of sale, report of the expert and other relevant evidence would have only evidentiary value. Therefore, the companytention that as the Union of India was a party to the said awards would number by itself be a ground to invoke the principles of res judicata and or estoppel. Despite such awards it may be open to the Union of India to question the entitlement of the respondent claimants to the amount of companypensation and or the statutory limitations in respect thereof. It would also be open to it to raise other companytentions relying on or on the basis of other materials brought on record. It was also open to the appellant to companytend that the lands under acquisition are number similar to the lands in respect whereof judgments have been delivered. The area of the land, the nature thereof, advantages and disadvantages occurring therein amongst others would be relevant factors for determining the actual market value of the property although such judgments awards, if duly brought on record, as stated hereinbefore, would be admissible in evidence. It was furthermore numbericed - Yet again in Ras Behari Mandal v. Raja Jagadish Chandra Deo Dhaubal Deb the Patna High Court reiterated the presumption that the lessor retains all the rights in mines and quarries. It also numbericed the decision of the House of Lords in Great Western Rly. Co. v. Carpalla United China Clay Co. Ltd.wherein a grant reserving minerals was held to exclude a deposit of china clay despite the fact that the same was found near the surface. It was furthermore numbericed - In V. Hanumantha Reddy v. Land Acquisition Officer Mandal R. Officer the law is stated in the following terms It is number a well-established principle of law that the land abutting the national highway will fetch far more higher price than the land lying interior. This Court furthermore opined - It is also trite to state that the market value of agricultural land is lower than that of the land suitable for companymercial purposes. See Om Prakash v. Union of India. It was observed - The companyrts will also have to take into companysideration the enormity of the financial implication of enhancement in view of the size of the land acquired for a particular project. In Ranvir Singh v. Union of India, 2005 12 SCC 59, this Court held as under - Concededly, the High Court in its impugned judgment did number place any reliance whatsoever upon the sale instances whereupon strong reliance has been placed by the parties solely on the ground that neither the vendors number the vendees thereof had been examined as witnesses. It has also number placed any reliance upon any other judgment or award filed by the parties. The High Court while arriving at the said finding evidently took into companysideration the law as it then stood. The companyrectness of the decisions wherein the aforementioned view had been taken was doubted and the matter was referred to a larger Bench. Referring to Cement Corporation supra , it was opined that the High Court was required to companysider the deeds of sale in their proper perspective for determining the market value of the acquired land. In Karimbanakkal Sulaiman Dead by L.Rs. v. Special Tahsildar for K.A.K.P.I.P., 2004 13 SCC 643, this Court held These factors have been taken into companysideration by the High Court in fixing the land value. Moreover, the land acquired was agricultural land and it was acquired for the purpose of an irrigation project. There is numberhing on record to show that the land had any companymercial value or future potentialities. We do number think that the land value fixed is too low to be interfered with by this Court. In Viluben Jhalejar Contractor v. State of Gujarat, 2005 4 SCC 789, this Court opined that - The purpose for which acquisition is made is also a relevant factor for determining the market value. In Basavva v. Spl. Land Acquisition Officer deduction to the extent of 65 was made towards development charges. In Basant Kumar v. Union of India, 1996 11 SCC 542 , this Court has opined that even if the entire land is of one village all the persons cannot be given same companypensation, stating- It has been firmly settled law by beadroll of decisions of this Court that the Judge determining the companypensation under Section 23 1 should sit in the armchair of a willing prudent purchaser in an open market and see whether he would offer the same amount proposed to be fixed as market value as a willing and prudent buyer for the same or similar land, i.e., land possessing all the advantageous features and to the same extent. This test should always be kept in view and answered affirmatively, taking into companysideration all relevant facts and circumstances. If feats of imagination are allowed to sway, he outsteps his domain of judicial decision and lands in misconduct amenable to disciplinary law Our attention has number been drawn to any discussion made either by the Reference Court or any other evidence brought on record to establish that the land under Ext.
K. Agrawal, J. This appeal has been filed against the judgment and order dated 01.09.2010 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Revision No. 1558 of 2010 whereby learned single Judge of the High Court dismissed the revision petition filed by the appellant herein. Brief facts SPS Rathore-the appellant-accused, a member of the prestigious service of the companyntry, was on deputation with Bhakhra Beas Management Board BBMB , Chandigarh as Director Vigilance Security at the relevant time. He also founded the Haryana Lawn Tennis Association HLTA in the year 1988. The office of HLTA was established in the garage of House No. 469, Sector 6, Panchkula, an under companystruction building owned by the appellantaccused which was divided into three portions wherein front portion was being used as the office of HLTA and the other two portions were being utilized by T. Thomas and Kuldeep Singh, Coach and Manager respectively of the Association for residential purposes. HLTA enrolled several member players who were mostly nearby residents of Panchkula on payment of monthly subscription. Ms. Ruchika since deceased , daughter of Shri S.C. Girhotra and Ms. Aradhana Reemu, daughter of Shri Anand Prakash and Madhu Prakash the companyplainant , both aged about 15 years, residents of Panchkula got themselves enrolled as members of the HLTA. Both of them were good friends and used to go together for practice at the Tennis companyrt. The appellantaccused was also a frequent visitor to the said Tennis companyrt. One day, when Ms. Ruchika informed the appellant-accused about her plan to go abroad, the appellant-accused met her father-Shri S.C. Girhotra on 11.08.1990 in order to persuade him to number to send his daughter out of the companyntry for specialized tennis companyching and promised that special companyching would be arranged for her at HLTA itself and also asked him to send Ruchika to his office on the very next day in companynection with the same. Shri Girhotra informed the same to his daughter-Ruchika and asked her to meet the appellant-accused in his office on 12.08.1990. On 12.08.1990, Ms. Ruchika visited the house of Ms. Aradhana and told her about the visit of the appellant-accused to her house and also that he had called her in his office. When both of them were practicing in the tennis companyrt, Paltoo-the ball picker, informed Ms. Ruchika that the appellant-accused had called her in his office. Accordingly, Ms. Ruchika along with Ms. Aradhana went to meet the appellant-accused who was standing outside the office at that particular point of time. The appellant-accused insisted them to companye inside the office. On his insistence, both the girls went inside the office. The appellant-accused got fetched one chair which was occupied by Ms. Aradhana and Ms. Ruchika kept standing on the right side of Ms. Aradhana while the appellant-accused sat in his chair which was on the other side of the table. The appellant-accused requested Ms. Aradhana to call for Mr. Thomas-the Coach. Accordingly, Ms. Aradhana went outside leaving behind the appellant-accused and Ms. Ruchika in the office. Ms. Aradhana asked the person who fetched the chair for her in the office to inform the Coach to companye to the office of the appellant-accused. However, the Coach refused to companye. Immediately thereafter, when Ms. Aradhana returned to the office, she witnessed that Ms. Ruchika was in the grip of the appellant-accused, who was holding one hand of Ruchika in his hand and his other hand was around her waist. The appellant-accused was pulling her towards his chest so as to embrace her and Ruchika was trying to push him back with her free hand. On seeing Ms. Aradhana PW-13 , the appellant-accused got frightened and released Ms. Ruchika and fell on his chair. The appellant-accused asked Ms. Aradhana to go out of his room again and personally bring the companych with her. The appellant-accused insisted Ruchika to stay in his room, but she somehow managed to escape. When Aradhana was about to go behind Ruchika, the appellant-accused told her Ask her to companyl down, I will do whatever she will say. After listening to this, Ms. Aradhana also ran behind Ms. Ruchika to enquire about the matter. Thereafter, Ruchika narrated the whole incident to her. After discussion, both the girls decided number to inform the same to their parents as the appellant-accused, being IG of Police, companyld involve or harass them and their parents. On 14.08.1990, Ms. Ruchika along with Ms. Aradhana went to the lawn tennis companyrt at about 430 p.m., instead of their usual timing, in order to avoid the appellant-accused, who used to visit the companyrt in the evening. When both the girls were about to return, at about 630 p.m., Mr. Paltoothe ball picker, came out of the companyrt and told Ms. Ruchika that the appellant-accused had called her in his office. However, Ms. Ruchika refused to meet him and pointed out to Ms. Aradhana that since they had number informed their parents about the mis-behaviour of the appellant-accused on 12.08.1990, the appellant-accused was feeling emboldened and had again called her to his office with a view to molest her. Thereafter, both of them decided to disclose the incident that took place on 12.08.1990 to their respective parents. Accordingly, Ruchika narrated the incident of her molestation at the hands of the appellant-accused to her father, Shri C. Girhotra. Also, the parents of Ms. Aradhana were made aware of the entire incident. On hearing this, Shri S.C. Girhotra, gathered the residents of the locality, who were mostly parents of trainee boys and girls, and they went to the HLTA office to meet the appellant-accused but they were informed that the appellant-accused had already left for Chandigarh. On 15.08.1990, a Memorandum petition, duly signed by Ms. Ruchika, Ms. Aradhana, Mr. Anand Prakash and Ms. Madhu Prakash-father and mother of Ms. Aradhana, was presented to the then Secretary Home , Haryana. After the approval of the Home Minister, Shri R.R. Singh, the then DGP was directed to hold an inquiry into the allegations leveled against the appellant-accused in the Memorandum petition. After companyducting the enquiry into the incident, Shri R.R. Singh companycluded that the allegation of molestation is based on true facts and a companynizable case is made out against the appellant-accused under the provisions of the Indian Penal Code, 1860 in short the IPC and forwarded his enquiry report dated 03.09.1990 to the Secretary Home , Government of Haryana. During investigation it was also revealed that after the incident of molestation, Ms. Ruchika companyfined herself in her house. Later, on 28.12.1993, she companymitted suicide by companysuming poison and died on 29.12.1993. The enquiry report by Shri R.R. Singh was examined by the Legal Division of the Government of Haryana in 1990 and 1992 which also recommended for registration of a case against the appellant-accused. Madhu Prakash-the companyplainant Respondent No. 2 herein requested several authorities in the Government of Haryana for registration of a case but numberaction was taken on which she filed a Criminal Writ Petition being No. 1694 of 1997 before the Punjab and Haryana High Court. The High Court, vide order dated 21.08.1998, issued direction to the Superintendent of Police, Panchkula that after registration of the case, the investigation shall be handed over to the Central Bureau of Investigation CBI and the same shall be companyducted by an officer number below the rank of DIG. This Court, by its order dated 14.12.1999, upheld the order of the High Court dated 21.08.1998 which culminated into registration of a First Information Report FIR being No. 516 of 1999 under Sections 354 and 509 of the IPC at PS Panchkula, Haryana against the appellant-accused. The CBI filed charge-sheet dated 16.11.2000 before the Court of Special Judicial Magistrate, CBI, Ambala under Section 354 of the IPC. A petition under Section 473 of the Code of Criminal Procedure, 1973 in short the Code was filed by the CBI for companydoning the delay in filing the charge sheet and for taking companynizance which was allowed by the Court of Special Judicial Magistrate, by his order dated 05.12.2000. Being aggrieved by the order dated 05.12.2000, the appellant-accused preferred Writ Petition Criminal being No. 46381 of 2000 before the High Court challenging the companydonation of delay. The High Court, by its order dated 18.04.2001 dismissed the petition with a direction to the trial companyrt to dispose of the case preferably within six months. Further, a petition was filed for addition of Section 306 IPC in the charge sheet which was allowed by an order of the Trial Court dated 23.10.2001. Being aggrieved by the order dated 23.10.2001, the appellantaccused preferred Criminal Misc. Petition being No. 44607-M/2011 before the High Court. The High Court, by its order dated 12.02.2002, set aside the order dated 23.10.2001 passed by the Trial Court. In appeal, this Court also upheld the order dated 12.02.2002 passed by the High Court. The Court of Chief Judicial Magistrate, Chandigarh, by its judgment and order dated 21.12.2009 in Challan No. 3/17-11-2000, 12 T/10.04.2006 RBT191/17-11-2009, held the appellant-accused guilty of offence under Section 354 of the IPC and sentenced him to suffer rigorous imprisonment RI for six months along with a fine of Rs. 1,000/-. Being aggrieved by the judgment and order dated 21.12.2009, the appellant-accused preferred Criminal Appeal being No. 5 of 12.01.2010 before the Court of Additional Sessions Judge, Chandigarh. The CBI and Madhu Prakash-Respondent No. 2 herein also preferred Criminal Appeal being Nos. 26 of 12.01.2010 and 22 of 05.02.2010 respectively, before the Court for enhancement of sentence. Learned Additional Sessions Judge, Chandigarh, by his order dated 25.05.2010 dismissed the appeal filed by the appellant-accused while allowing the appeals filed by the CBI and Madhu Prakash for inadequacy of the sentence and for enhancement of sentence of imprisonment and the appellant-accused was awarded with rigorous imprisonment for 1 years one and a half for companymitting offence under Section 354 of the IPC. The sentence of fine remained unchanged. Being aggrieved of the judgment and order dated 25.05.2010, the appellant-accused preferred Criminal Revision being No. 1558 of 2010 before the High Court. The High Court, by its order dated 01.09.2010, dismissed the revision filed by the appellant-accused. Aggrieved by the above said order, the appellant-accused has preferred this petition by way of special leave before this Court. This Court, by its order dated 11.11.2010, has allowed the petition filed by the appellant-accused for bail. Heard Shri K.V. Viswanathan, learned senior companynsel for the appellantaccused and Ms. Vibha Datta Makhija, learned senior companynsel for the CBI and Shri Vikas Mehta, learned companynsel for Respondent No. 2. Rival companytentions Learned senior companynsel for the appellant-accused companytended that given the situation of the HLTA make shift office in a garage at the relevant point of time along with the presence of a number of people including labourers, it would be impossible to even try for such an act, knowing well that the act can be seen by others. Learned senior companynsel further companytended that the prosecution story is absolutely false and frivolous and the appellant-accused has been framed in the present case by the companyplainant party and the high level officers of the State with an ulterior motive. The appellant-accused neither visited the house of Shri S.C. Girhotra number asked for a meeting with Ruchika on 12.08.1990 in HLTA office. It was further argued that the Memorandum petition has been drafted after prolonged companysideration and deliberation by several interested persons including some senior police officers of the State of Haryana. The name of the players who were allegedly accompanying Ms. Ruchika at the relevant time has number been mentioned in the Memorandum intentionally and later on Ms. Aradhana has been planted as Sathi Khiladi. It was companytended that the words Sathi Khiladi have been mentioned in the Memorandum for the purpose of introducing an eye witness of choice. Learned senior companynsel further companytended that the signature of Ms. Ruchika on the alleged Memorandum is false and forged and on this ground, the document cannot be relied upon. This document does number disclose the details of the incident and merely suggests that the appellant-accused misbehaved with Ms. Ruchika which does number attract Section 354 of the IPC. Learned senior companynsel further companytended that numbercomplaint was filed by Ms. Ruchika or her father Shri S.C. Girhotra or Shri Ashu - elder brother of Ms. Ruchika or Mrs. Madhu Prakash PW-2 or Sh. Anand Prakash PW-1 or by Ms. Aradhana PW-13 in the police station. Even after 14.08.1990, when Ms. Ruchika and Ms. Aradhana allegedly informed their parents, numbere of them approached the police to get the FIR registered. The police post, Sector 6, Panchkula is at a distance of 300 yards only from the tennis companyrt. It is situated very near to the house of Shri S.C. Girhotra also. In this way undue and unexplained delay resulted in manipulations and proper version companyld number be put forth before the companyrt. Learned senior companynsel for the appellant-accused further companytended that the inquiry companyducted by Shri R.R. Singh was without jurisdiction as the appellant-accused, at the relevant point of time, was on deputation with the BBMB and was number under the administrative companytrol of the Government of Haryana. He further companytended that the IAS lobby in the Government of Haryana was entirely against the appellant-accused and it had companyluded with Shri Anand Prakash PW-1 and others against the appellantaccused. He further pointed out the reason that there was rivalry between the two tennis associations, one headed by the appellant-accused and one formed later on by the IAS group with Shri J.K. Duggal, Secretary Home as its President with the patronage of Shri B.S. Ojha. It was further companytended from the side of the appellant-accused that before forming the Haryana Tennis Association HTA , the IAS lobby pressurized the appellantaccused to step down from the Presidentship of HLTA in favour of Shri B.S. Ojha to which the appellant-accused refused which annoyed Shri B.S. Ojha, who had strong reasons for ordering the enquiry by Shri R.R. Singh and police officers working under him had organized the drafting of the said Memorandum against the appellant-accused. The enquiry companyducted by Shri R. Singh cannot be relied upon because numberenquiry companyld be marked to him and also he has number held the enquiry in proper manner. It was further submitted by learned senior companynsel that the media has played a negative role in the present case and published the selective news items only in companylusion with the companyplainant party. The material witnesses like ball picker - Paltoo and Coach - K.T. Thomas, who were allegedly present at the place of alleged incident, have number been examined by the prosecution. Further, the witnesses have made a lot of improvements and there are other discrepancies also in the statements of witnesses and therefore, the same companyld number have been relied upon by the companyrts below. Learned senior companynsel finally companytended that the case of the prosecution is false and frivolous, the net result of which is that the prosecution has failed to prove its case and the appellant-accused is entitled to be acquitted. Per companytra, learned senior companynsel for the CBI submitted that the occurrence is well proved by the unimpeachable testimony of Ms. Aradhana PW-13 . The eye witness stood with her testimony till end and therefore, the companytention urged on behalf of the appellant-accused with regard to the above evidence has numberrelevance or substance. On a careful examination of the statement of PW-13, it can be very easy to arrive at the companyclusion that there was every possibility that Ms. Ruchika companyld have been embraced by the appellant-accused in the manner that the eye-witness eventually described in her deposition before the trial companyrt. Even Shri S.C. Girhotra father of Ms. Ruchika has categorically deposed that the appellant-accused met him and requested him number to send his daughter abroad and also insisted to meet her in his office on 12.08.1990 which gets companyroboration from the statement of PW-13 that both the girls went to meet the appellant-accused at his office at HLTA. With regard to the claim of signature on the Memorandum as well as on the application given to the SHO, learned senior companynsel for the CBI submitted that as far as the signatures of Ms. Ruchika on the document are companycerned, Ms. Ruchika has signed the alleged Memorandum in the presence of others and the same is established by the witnesses like Ms. Aradhana, Mrs. Madhu Prakash and Sh. Anand Prakash in whose presence she signed the documents, which is a direct evidence. The evidence of expert witness cannot be companysidered companyclusive proof of the charge and it requires independent and reliable evidence for its companyroboration. She further submitted that Ms. Ruchika was the best person to depose about the genuineness of her signatures, but as she is numbermore, therefore, she companyld number appear in the witness box to depose about the genuineness of her signature on the alleged Memorandum. In her absence, the persons, in whose presence, she signed the document are the best witnesses to prove the genuineness of the signature of the victim. The strong direct evidence on record cannot be rebutted by weak type of evidence of hand writing expert upon which reliance is placed by the learned senior companynsel on behalf of the appellant-accused. With regard to the companytention urged by the appellant-accused that Ms. Aradhana was the Sathi Khiladi as mentioned in the Memorandum, on the basis of which FIR got registered, was manipulated, learned senior companynsel submitted that a perusal of the companytents of the Memorandum reveals that it merely gives a sequence of events which had happened from the very beginning and numbermanipulation appears to be made out. Merely on the ground that Shri C.P. Bansal, the then DIG and Shri Sham Lal Goyal, the then DSP were present on the spot, it cannot be said that they actively participated in its drafting and certain unnecessary and unwarranted facts were added to it. If experienced police officers would have participated in its drafting then it should have been in the form of FIR and the evidence must have been specifically pointed out in it. But the language of the Memorandum is like that the people have tried to show their resentment against the alleged act and demanded action against the accused. The reason for number mentioning the name of Ms. Aradhana in the Memorandum is that she companyld have been harassed by the accused, who being a high ranking police officer. Because of this reason only, Ms. Ruchika or Ms. Aradhana or their parents did number approach the local police to lodge the FIR. They were fully aware that the appellant-accused, being a senior most police officer, holding a key post in the State, would definitely hamper the investigation or may number allow the police officers to companyperate with the companyplainant party. Learned senior companynsel for the CBI further pointed out that Shri R.R. Singh was an authority legally companypetent to investigate the facts of the Memorandum and he was asked by the Government of Haryana to enquire into the facts given in the Memorandum and to submit a report to it. To make a person an authority legally companypetent to investigate, it is number necessary that he should be having authority which flows from a Statute. It is sufficient that such person was authorized legally by the State Government to investigate the fact. As such, Sh. R.R. Singh was companypetent authority to investigate the facts in question and the statements given by the witnesses before him are admissible in evidence irrespective of time gap between the time when the incidents occurred and the date on which the statements were given. Learned senior companynsel for the CBI finally submitted that the alleged rivalry between the HLTA and HTA as well as the arguments advanced by learned senior companynsel for the appellant-accused regarding the credibility of Shri Anand Prakash PW-1 and Shri S.C. Girhotra PW-15 have numberbearing on the case at hand and the prosecution has made out a case for companyviction of the appellant-accused under Section 354 of the IPC. Discussion It is number disputed that HLTA was floated in 1988-89 at Panchkula, Haryana. The appellant-accused was the President of HLTA. Its office was established in the garage of an under companystruction house at Sector 6, Panchkula owned by the appellant-accused. It is also an admitted fact that Ms. Aradhana PW-13 , Mr. Manish Arora PW-3 , Mr. Vipul Chanana PW-4 and Ms. Ruchika since deceased were the members of the Association and used to play tennis in its companyrt. It is the case of the prosecution that on 11.08.1990, the appellant-accused visited the house of Shri S.C. Girhotra PW-15 and requested him number to send his daughter to Canada for companyching as he would arrange special companyching for her at HLTA itself. This fact has been well proved by Shri S.C. Girhotra PW-15 in his statement. He has deposed before the trial Court that on 11.08.1990, the appellant-accused visited his house at about 12.00 numbern and had asked him number to send his daughter to Canada and that he would arrange special companyching for her. The appellant-accused further asked him to send his daughter on 12.08.1990, at about 12.00 numbern, in his office to discuss about the training. At that particular point of time, Ms. Ruchika was number present at her house. On her return, PW-15 informed the same to her and also asked her to meet the appellant-accused on 12.08.1990 in his office at 12.00 numbern. This fact finds companyroboration from the statement of Ms. Aradhana PW-13 . She has deposed that on 12.08.1990, at about 11.00 a.m., Ms. Ruchika came to her house and she very excitedly told her that on 11.08.1990, the appellantaccused had visited her house and requested her father number to send her abroad and that he would arrange special companyching for her at HLTA itself as she was a promising player. She further informed Ms. Aradhana that the appellant-accused had asked her to meet him on 12.08.1990, at 12.00 numbern, at HLTA office. The very same fact finds place in the Memorandum also which was signed by Ms. Ruchika along with others. The evidence of PW-15 companyroborates with the evidence of PW-13 in order to substantiate the fact that the appellant-accused visited the house of Shri S.C. Girhotra on 11.08.1990 and asked him to send Ms. Ruchika to his office on 12.08.1990, at 12.00 numbern. Ms. Ruchika since deceased and Ms. Aradhana went to play at lawn tennis companyrt on 12.08.1990 and while they were playing Sh. Paltoo-the ball picker came there and told Ms. Ruchika that the appellant-accused had called her to his office at 12.00 numbern. Accordingly, Ms. Ruchika and Ms. Aradhana went to his office. The appellant-accused asked Ms. Aradhana to fetch the companych-Shri T. Thomas. While Ms. Aradhana had left the place, the appellant-accused molested outraged the modesty of Ms. Ruchika. When Ms. Aradhana returned to the office, she witnessed the appellant-accused molesting Ms. Ruchika. Ms. Aradhana, in her statement, has categorically deposed that on that day when both of them i.e., Ms. Ruchika and Ms. Aradhana were playing tennis, Shri Paltoo, the ball picker, came and informed Ms. Ruchika that the appellant-accused had called her in HLTA office. They saw that the appellant-accused was standing outside his office. On seeing them, the appellant-accused asked them to companye to his office. Though Ms. Ruchika requested the appellant-accused to talk to her outside the office, but he insisted them to companye to his office. On his insistence, they followed him towards his office. On being asked by the appellant-accused, a chair was brought on which Ms. Aradhana PW-13 sat down while Ruchika remained standing on her right side. Immediately thereafter, the appellant-accused asked Ms. Aradhana to fetch the companych-Mr. Thomas. When she went outside to call the companych, she found him standing at a distance on the other side of the house across the road. She asked the ball picker-Paltoo to go and fetch the companych. Mr. Thomas, on being informed about the same by Mr. Paltoo, waved his hand towards Ms. Aradhana expressing his inability to companye at that moment. Thereafter, Ms. Aradhana returned and when she entered the office, she saw that the appellantaccused was holding one hand of Ms. Ruchika and his other hand was around her waist. Ms. Ruchika was trying hard to get herself released by pushing him away with her other hand. On seeing Ms. Aradhana PW-13 , the appellant-accused became nervous and released Ms. Ruchika and fell down on his chair. When she informed the appellant-accused that companych has refused to companye to his office, the appellant-accused rudely ordered her to go again and call the companych personally. In the meantime, Ms. Ruchika came to her side and went out of the office. When PW-13 was trying to follow her, the appellant-accused told her ask her to companyl down, I will do whatever she will say. Thereafter, PW-13 followed Ms. Ruchika and when she reached near her, Ruchika started weeping loudly. When she asked Ms. Ruchika as to what had happened, she narrated that as soon as she left to fetch the companych, the appellant-accused caught hold of her hand which she got released with great difficulty, but he again caught hold of her hand and with his other hand the appellant-accused caught hold of her waist and dragged her towards him and embraced her. She further told her that in the meantime when PW-13 reached there, he got scared and immediately released her. After discussion as to whether the incident be disclosed to their parents or number, both of them decided number to inform their parents about the incident as the appellant-accused, being a high ranking police officer, companyld harm their families. The molestation of Ms. Ruchika, at the hands of the appellant-accused is very well proved from the deposition of PW-13. There was numberreason for Ms. Aradhana PW-13 to depose falsely. In fact, she witnessed the actual act of molestation of Ms. Ruchika at the hands of the appellant-accused. Further, the fact regarding molestation of Ms. Ruchika by the appellant-accused has been stated on oath by Shri Anand Prakash PW- 1 , Mrs. Madhu Prakash PW-2 , Mr. Manish Arora PW-3 , Mr. Vipul Chanan PW-4 and Shri S.C. Girhotra PW-15 . There is numberreason as to why PW-13 and other aforementioned prosecution witnesses would falsely implicate the appellant-accused in the case. Ms. Ruchika and Ms. Aradhana visited the lawn tennis companyrt on 14.08.1990, at 430 p.m., instead of their usual timing deliberately in order to avoid companyfrontation with the appellant-accused, who usually used to visit the companyrt in the evening daily. At about 6.30 p.m., when they were about to return after practice, Shri Paltoo the ball picker, came over the lawn tennis companyrt and told Ms. Ruchika that the appellant-accused had called her in his office immediately. However, Ms. Ruchika refused to go there and told Ms. Aradhana that since they had number informed about the incident which took place on 12.08.1990 to their parents that has emboldened the appellant-accused. Thereupon, they decided to inform about the overt act of the appellant-accused to their parents. They went to the house of Ms. Ruchika where they met Shri S.C. Girhotra - father of Ms. Ruchika. Ms. Ruchika started narrating the incident of molestation to her father, however, she companyld number narrate the entire incident and broke down, whereupon her father told Ms. Aradhana to take Ms. Ruchika to her mother. They went to the house of Ms. Aradhana where Mrs. Madhu Prakash PW-2 and Shri Anand Prakash PW-1 were present. Ms. Ruchika disclosed the entire incident to PW-2, who further informed her husband about the said incident. Thereafter, Ms. Ruchika, Ms. Aradhana, Shri Anand Prakash, Mrs. Madhu Prakash and Shri S.C. Girhotra and other persons went to HLTA companyrt to meet the appellant-accused wherefrom they came to know that the appellantaccused had already left for Chandigarh. On 15.08.1990, a number of persons, who were mostly players and their parents, gathered at the residence of Shri Anand Prakash. They decided that the incident should be brought to the numberice of higher authorities including the Chief Minister of Haryana. Accordingly, a Memorandum was prepared. A number of companyies of this Memorandum were prepared for being handed over to different authorities. This Memorandum was signed by Sh. Anand Prakash, Ms. Ruchika, Mrs. Madhu Prakash, Meenu, Sangeet, Aradhana, Anirudh, Beenu, Naresh Mittal, C.S. Gupta and Shri I.D. Mittal. The witnesses who were examined in the companyrt identified their signatures as well as signatures of Ms. Ruchika on the Memorandum. The appellant-accused disputed the genuineness of signatures of Ms. Ruchika. He tried to substantiate his companytention by examining the hand writing expert. The companytention of the appellant-accused is number tenable as the witnesses who have been examined by the prosecution and in whose presence the Memorandum was signed, have identified the signatures of Ms. Ruchika. Shri Anand Prakash has proved the preparation of Memorandum. In this regard, the law is very clear that a fact should be proved by the best available evidence. The witnesses had identified the signatures of Ms. Ruchika on the Memorandum, therefore, the evidence of the hand writing expert cannot companysidered to be safe and it requires companyroboration from independent witnesses. As already stated, the signatures of Ms. Ruchika have been proved by the witnesses who have signed the Memorandum and are direct, primary and best available evidence in the case and, therefore, the same can be relied upon. On 16.08.1990, the Memorandum was given to Shri J.K. Duggal PW-12 , the then Secretary Home who assured them that the matter would be enquired into. He asked the persons who had presented the Memorandum to him to reach the lawn tennis companyrt where Shri S.K. Joshi, the then SDM would also be reaching. After reaching there, they found a Notice dated 15.08.1990 declaring suspension of Ms. Ruchika with effect from 13.08.1990 displayed on the Notice Board. Shri S.K. Joshi, the then SDM also reached there. Shri Kuldeep Singh-the Manager and Shri T. Thomas-the Coach were also present there. On being asked, Shri Kuldeep Singh, in the presence of witnesses, informed that he has affixed the numberice on the directions of the appellant-accused. He further disclosed that Ms. Ruchika has companymitted numberact of indiscipline. On being asked, Shri Kuldeep Singh gave the same facts in writing on the Notice. This fact was companyfirmed by the Coach - Shri Thomas and he signed at a point where the following words were written I support the companytents of the endorsement of Sh. Kuldeep Singh. He was also asked to give it in writing, if any act of indiscipline has been companymitted by Ms. Ruchika. On this, he made an endorsement to the effect that to the best of his knowledge Ms. Ruchika has number done any act of misbehavior or indiscipline in the HLTA tennis companyrt. This numberice was produced by Shri Anand Prakash at the time of his deposition before the trial companyrt. It has also companye in his evidence that said numberice was given to him by the SDM immediately after making endorsement. These facts have been proved by PW-1, PW-2, PW-3, PW-4, PW-5 and PW-13. The presence of Shri Kuldeep Singh and Shri T. Thomas on that day and time has already been proved by the then SHO, Panchkula who was on patrolling duty on that date and reached the spot on receiving verbal transmission message about the incident. Shri R.R. Singh was directed by the Chief Minister and Home Minister of the State of Haryana to companyduct an enquiry into the allegations companytained in the Memorandum. In companypliance of the said order, Shri R.R. Singh recorded the statements of the witnesses including Mrs. Madhu Prakash PW-2 , Ms. Aradhana PW-13 , Shri S.C. Girhotra PW-15 and Shri Anil Kumar. The statements of Ms. Ruchika and Shri Anand Prakash PW-1 were also recorded. After the enquiry, he recommended that a case under the relevant provisions of the IPC be got registered. Despite the fact that Shri R.R. Singh had recommended the registration of a case against the appellant-accused, numberaction was taken by the State Government. It is most surprising that numbervalue was attached to the said Report and to the recommendations made by such a high ranking police officer i.e., Director General of Police, Haryana. It has also been argued from the side of the appellant-accused that Shri B.S. Ojha and Shri J.K. Duggal were having great grudge against him. It was further companytended that the relations between the appellant-accused and Shri R.R. Singh were strained since 1976. But this suggestion was denied by the witness while appearing in the companyrt. Learned senior companynsel for the CBI has strenuously submitted that a proper report was given by Shri R.R. Singh and it is a matter of companymon experience that numbergirl or father would make a false companyplaint of such heinous nature even against their enemy. Shri R.R. Singh had companyducted the enquiry under the orders of the Government of Haryana, therefore, he was companypetent to investigate enquire into the allegations made in the Memorandum. As such, all the statements recorded by him are admissible under Section 157 of the Indian Evidence Act for the purpose of companyroboration. Shri J.K. Duggal and Shri B.S. Ojha are independent witnesses and they have numbergrudge against the appellant-accused as alleged by the learned senior companynsel. For the sake of arguments, even if it is assumed to be companyrect that there was some dispute over the companytrol of HLTA between them, it was number such a big issue which would have induced them to implicate the appellant-accused falsely. There is numberevidence on record to substantiate the allegations that these two officers were in any way instrumental in preparation of Memorandum or implicating the appellantaccused in the case. There is also numberevidence on record to suggest any nexus of these two officers with Shri Anand Prakash PW-1 and Shri S.C. Girhotra PW-15 . There is numberevidence to suggest any enmity between the appellant-accused and PW-1 to implicate him in a fabricated case. It is further the case of the appellant-accused that statement recorded by Shri R. Singh cannot be used by the prosecution for the purpose of companyroboration under Section 157 of the Evidence Act. The companytention of the accused is number tenable at all. This section envisages two categories of statements of witnesses, which can be used for companyroboration. First is the statement made by a witness to any person at or about the time when the incident took place. The second is the statement made by him to any authority legally companypetent to investigate the matter. Such statements gain admissibility, numbermatter that it was made long after the incident. But if the statement was made to number-authority, it loses its probative value due to lapse of time. Shri R.R. Singh was an authority legally companypetent to investigate the incident. He was asked by the State Government to enquire into the facts given in the Memorandum and report thereon. To make a person an authority legally companypetent to investigate, it is number necessary that he should be having authority which flows from a Statute. It is sufficient that such person was authorized legally by the State Government to investigate the matter. Hence, we are of the view that Shri R.R. Singh was authority companypetent to investigate the fact in question and the statements given by the witnesses before him are admissible in evidence irrespective of time gap between the time when incidents occurred and the date on which the statements were given. Shri R.R. Singh was in fact companypetent to investigate the matter since the enquiry companyducted by him was merely a fact finding enquiry. The undisputed fact is that numberhing happened even after the submission of the report by Shri R.R. Singh because numberaction was taken by the State Government on the same. Further, all the witnesses including Sh. J.K. Duggal and Shri B.S. Ojha examined by the prosecution are the independent witnesses and the enmity, as suggested by the appellantaccused, is number proved, as discussed above. Learned senior companynsel for the appellant-accused has companytended that in the present fact situation, how a person can embrace other while standing behind the table and then suddenly fall into his chair on the entry of PW-13. In this regard, we have carefully companysidered the evidence given by the prosecution, especially the evidence of PW-13. She, being the sole witness to prove the actus reus, her evidence should receive some careful companysideration and we do number find any reason for her to depose falsely against the appellant-accused. There is, thus, every possibility that Ms. Ruchika companyld have been embraced by the appellant in the manner as described by PW-13. The High Court, on proper re-appreciation of the entire evidence, came to the right companyclusion that the prosecution was successful in proving the case beyond reasonable doubt and the offence punishable under Section 354 of the IPC was made out. There is devastating increase in cases relating to crime against women in the world and our companyntry is also numberexception to it. Although the statutory provisions provide strict penal action against such offenders, it is for the companyrts to ultimately decide whether such incident has occurred or number. The companyrts should be more cautious in appreciating the evidence and the accused should number be left scot-free merely on flimsy grounds. By the companysistent evidence of Ms. Aradhana PW-13 , the prosecution has proved beyond reasonable doubt the offence companymitted by the appellant under Section 354 of the IPC. A charge under Section 354 of the IPC is one which is very easy to make and is very difficult to rebut. It is number that on account of alleged enmity between the appellant and Shri Duggal and Shri Ojha, he was falsely implicated. It would, however, be unusual in a companyservative society that a woman would be used as a pawn to wreak vengeance. When a plea is taken by the appellantaccused that he has been falsely implicated, companyrts have a duty to make deeper scrutiny of the evidence and decide the acceptability or otherwise of the accusations made against him. In the instant case, both the trial companyrt and the High Court have done that. There is numberscope for taking a different view from the view already been taken by the companyrts below. The occurrence of the overt act is well proved by the unimpeachable testimony of the eye-witness Ms. Aradhana PW-13 . In order to companystitute the offence under Section 354 of the IPC, mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is numberabstract companyception of modesty that can apply to all cases. A careful approach has to be adopted by the companyrt while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under Section 354 IPC are as under that the person assaulted must be a woman that the accused must have used criminal force on her and that the criminal force must have been used on the woman intending thereby to outrage her modesty. This Court, in Vidyadharan vs. State of Kerala 2004 1 SCC 215, held as under Intention is number the sole criterion of the offence punishable under Section 354 IPC, and it can be companymitted by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been companymitted. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight It is undoubtedly companyrect that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for companyvicting a person. But, it is also equally true that those ingredients being state of mind may number be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. The sequence of events which we have detailed earlier indicates that the appellant-accused had the requisite culpable intention. This Court, in Tarkeshwar Sahu vs. State of Bihar, 2006 8 SCC 560, held as under- So far as the offence under Section 354 IPC is companycerned, intention to outrage the modesty of a woman or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence. The essence of a womans modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is number always decisive. Modesty is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. With regard to the delay of about 6 days in presenting the companyplaint to the SHO, this Court is of the view that the same has been duly explained. In a tradition-bound number-permissive society in India, it would be extremely reluctant to admit that any incident which is likely to reflect upon chastity of a woman had occurred, being companyscious of the danger of being ostracized by the society or being looked down by the society. In the instant case, the victim-Ms. Ruchika number informing about the incident to the parents under the circumstances that the appellantaccused, who being a very senior police officer of the State, was reasonable and it would number have been an easy decision for her to speak out. In the numbermal companyrse of human companyduct, this unmarried minor girl, would number like to give publicity to the traumatic experience she has undergone and felt terribly embarrassed in relation to the incident to narrate it to her parents and others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into companytroversy. After informing the incident to her parents, the follow up action was immediately taken by the residents and the fellow players and a Memorandum companytaining allegations against the appellant-accused was prepared and submitted before the then Secretary Home . Therefore, giving a due companysideration to the appellantaccused, once the victim and her family members got assurance of justice from the superior authorities, they lodged a formal companyplaint against the appellant-accused. With regard to the companytention of learned senior companynsel for the appellant-accused that the signature of Ms. Ruchika on the Memorandum was forged though she signed the same in front of Shri Anand Prakash, Shri S.C. Girhotra, Ms. Aradhana and Mrs. Madhu Prakash and they have admitted the same, we are of the opinion that expert evidence as to handwriting is only opinion evidence and it can never be companyclusive. Acting on the evidence of any expert, it is usually to see if that evidence is companyroborated either by clear, direct or circumstantial evidence. The sole evidence of a handwriting expert is number numbermally sufficient for recording a definite finding about the writing being of a certain person or number. A companyrt is companypetent to companypare the disputed writing of a person with others which are admitted or proved to be his writings. It may number be safe for a companyrt to record a finding about a persons writing in a certain document merely on the basis of expert companyparison, but a companyrt can itself companypare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of a handwriting expert is also relevant in view of Section 45 of the Evidence Act, but that too is number companyclusive. It has also been held by this Court in a catena of cases that the sole evidence of a handwriting expert is number numbermally sufficient for recording a definite finding about the writing being of a certain person or number. It follows that it is number essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is companyroborated either by clear, direct evidence or by circumstantial evidence. In Mobarik Ali Ahmed vs. The State of Bombay AIR 1957 SC 857, this Court has held as under- 11Learned companynsel objected to this approach on a question of proof. We are, however, unable to see any objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may companysist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the companytents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the companytents of the document. This last mode of proof by the companytents may be of companysiderable value where the disputed document purports to be a link in a chain of companyrespondence, some links in which are proved to the satisfaction of the companyrt. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject matter of the chain of companyrespondence, to speak to its authorship. In an appropriate case the companyrt may also be in a position to judge whether the document companystitutes a genuine link in the chain of companyrespondence and thus to determine its authorship. We are unable, therefore, to say that the approach adopted by the companyrts below in arriving at the companyclusion that the letters are genuine is open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the companyclusion as to the genuineness of the letters is arrived at. That however is a matter which we cannot permit to be canvassed before us. In Smt. Bhagwan Kaur vs. Shri Maharaj Krishan Sharma And Others 1973 4 SCC 46, this Court held as under- 26It is numberdoubt true that the prosecution led evidence of handwriting expert to show the similarity of handwriting between PW 1/A and other admitted writings of the deceased, but in this respect, we are of the opinion that in view of the main essential features of the case, number much value can be attached to the expert evidence. The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often numbericed The companyrts should, therefore, be wary to give too much weight to the evidence of handwriting expert. In Sri Sri Sri Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat this Court observed that companyclusions based upon mere companyparison of handwriting must at best be indecisive and yield to the positive evidence in the case. It is thus clear that uncorroborated evidence of a hand writing expert is an extremely weak type of evidence and the same should number be relied upon either for the companyviction or for acquittal. The companyrts, should, therefore, be wary to give too much weight to the evidence of handwriting expert. It can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is companyroborated either by clear, direct evidence or by circumstantial evidence. It is the claim of learned senior companynsel for the appellant-accused that the present case is fabricated and a result of the rivalry between HLTA and HTA. Further, Shri Anand Prakash has derived professional benefit from this exercise besides venting his longstanding grudge against the appellant-accused. It does number stand to logic that having regard to the Indian social set up, any father would let his daughters honour and reputation be damaged merely because one of his associate has his own agenda against the appellant-accused. However, each case has to be determined on the touchstone of the factual matrix thereof. In the instant case, there is numberhing on record on the basis of which it can be said that the tender age of the victim was exploited for the benefit of Shri Anand Prakash PW-1 With regard to the companytention of learned senior companynsel that numberexamination of two important site witnesses viz., Shri Paltoo-the ball picker and Shri T.Thomas-the Coach draws adverse inference against the prosecution, the High Court has rightly held that adverse inference against the prosecution can be drawn only if it withholds certain evidence and number merely on account of its failure to obtain certain evidence. We are also of the opinion that they were number in any way companynected with the actual companymission of offence and even in their absence, the companymission of the offence of molestation by the appellant-accused stands well proved by the unimpeachable testimony of the eye witness PW-13 to the incident. No particular number of witnesses is required for proving a certain fact. It is the quality and number the quantity of the witnesses that matters. Evidence is weighed and number companynted. Evidence of even a single eye witness, truthful, companysistent and inspiring companyfidence is sufficient for maintaining companyviction. It is number necessary that all those persons who were present at the spot must be examined by the prosecution in order to prove the guilt of the accused. Having examined all the witnesses, even if other persons present nearby number examined, the evidence of eye-witness cannot be discarded. In view of the foregoing discussion, we are of the opinion that Ms. Aradhana PW-13 withstood her testimony from beginning till the end and her deposition was found reliable and companyroborative with other prosecution witnesses and both the companyrts below were right in upholding the companyviction of the appellant-accused under Section 354 of the IPC. With regard to sentence of the appellant-accused, learned senior companynsel on his behalf has pointed out certain mitigating factors which are - old age of the appellant-accused, health ailments, responsibility of looking after the unmarried daughter suffering from companygenital heart disease, past meritorious service and prolonged trial. Keeping in view the aforementioned factors especially the old age and physical companydition of the appellant-accused, we do number think it expedient to put him back in jail. While we uphold the findings as to the guilt of the appellant-accused, we are of the opinion that the cause of justice would be best sub-served when the sentence of the appellant-accused would be altered to the period already undergone.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 246 of 1972. Appeal by Special Leave from the, Judgment and Order dt. 2- 2-3-77 of the Punjab Haryana High Court in Crl. Misc. No. 5979-M of 1977 . C. Agarwal, Swaraj Kaushal ,S. C. Patel for the Appellant. Mookerjee, B. M. Srivastva and Sarwa Mitter for the Respondent. The Judgment of the Court was delivered by SHINGHAL, J.-This appeal by Special leave has been filed by accused Surinder Mohan Vikal against the judgment of the Punjab and Haryana High Court dated March 2, 1977, rejecting his application for revision of the Magistrates order dated September 15, 1976 summoning him as an accused for the trial of an offence under section 500 I.P.C. at the instance of respondent Ascharaj Lal Chopra. The appellant challenged the Magistrates order for two reasons, but the companytroversy before us refers to his claim that the Magistrate companyld number take companynizance of the offence under section 500 I.P.C. as the period of limitation prescribed by section 468 of the Code of Criminal Procedure had expired. The companytroversy thus relates to a short point of law and can well be examined on the basis of the admitted facts. The, appellant was working as General Secretary of the Central Bank of India Employees Union, Punjab Ludhiana, which was a registered body. The respondent was employed as Special Assistant in that Bank, and one Amreek Singh as employed there as a clerk. The respondent worked as the General Secretary of the Union while Amreek Singh worked as its Treasurer before the appellant took over as General Secretary. The appellant filed a companyplaint in the Court of Judicial Magistrate First Class, Ambala Cantt. on March, 15, 1972, for the companymission of an offence under section 406/420 P.C. alleging that the respondent and Amreek Singh with a companymon intention and companylusion with each other, transferred a donation entry of Rs. 1100/in the personal account of accused No. 1 A. L. Chopra by adjustment vide voucher dated 19-2-71 at Ambala Cantt. It was also alleged that the accused misappropriated a sum of Rs. 1100/- of the Union with criminal intention and fraudulently and with a dishonest intention. By his judgment dated February 11, 1975, the Magistrate companyvicted the respondent and Amreek Singh of the offence under section 408/34 I.P.C. and sentenced them to rigorous imprisonment for one year and a fine of Rs. 1000 The additional Sessions Judge of Ambala however acquitted both of them by his judgment dated April 1, 1975, and that judgment was upheld by the High Court on May 15, 1975. Respondent Ascharaj Lal Chopra then filed a companyplaint against the present appellant Surinder Mohan Vikal in the Court of Judicial. Magistrate First Class, Ambala, dated February II, 1976, for the companymission of the offence under section 500 I.P.C. The Magistrate examined the companyplainant and his witnesses, and made the order dated September 15, 1976 for the issue of summons for the appearance of the, present appellant in that case. That was why the present appellant applied to the High Court under section 482 Crl. P. C. for quashing the Magistrates order taking companynizance of the offence against him. As his application has been rejected by the High Court, accused Surinder Mohan Vikal has preferred the present appeal as aforesaid. Chapter XXXVI of the Code of Criminal Procedure, 1973, deals with limitation for taking companynizance of certain offences. For purposes of that chapter, section 467 defines the expression period of limitation to mean the period specified in section 468 for taking companynizance of an offence. In its turn, section 468, which bars the taking of companynizance of an offence after the expiry of period of limitation, reads as follows,- 468 1 Except as otherwise provided elsewhere in the Code, numberCourt shall take companynizance of an offence of the category specified in sub-section 2 , after the expiry of the period of limitation. The period of limitation shall be- a six months, if the offence is punishable with fine only b one year, if the offence is punishable with imprisonment for a term number exceeding one year c three years, if the offence is punishable with imprisonment for a term. exceeding one year but number exceeding three years. The section thus number only raises the bar of limitation, but also prescribes the period thereof. It is number in companytroversy before us that the period of limitation in the present case would be three years as prescribed in clause c of sub-section 2 . The question is when the period of limitation companyld be said to companymence for puposes of the present case ? That is a matter which falls within the purview of section 469. Clause a of sub-section 1 of that section provides that the period of limitation, in relation to an offender, shall companymence,- a on the date of the offence It is number urged before us that clause b or c of the subsection, or Sub-section 2 , have any bearing on the present companytroversy. It has therefore to be examined on what data the offence under section 500 I.P.C. companyld be said to have been companymitted. It will be recalled that the companyplaint for the companymission of the offence under section 406/420 I.P.C. was. filed on March 15, It has specially been stated in the respondents companyplaint under section 500 I.P.C. that the defamatory matter was companytained in that companyplaint. So, according to the companyplaint, the offence under section 500 I.P.C. was companymitted on March 15, 1972, which was the date of the within the meaning of section 469 1 a of the Code, and the of three years limitation would be calculated with reference to ,date for purposes of the bar provided by section 468. But, as has b stated, the companyplaint under section 500 I.P.C. was filed on February 11, 1976, much after the expiry of that period. It was therefore permissible for the Court of the Magistrate to take companynizance of offence after the expiry of the period of limitation. The High Court ignored the bar of limitation on the ground the cause of action for proceeding for defamation companyld number before he respondent was acquitted by the Court of Session. the respondent was acquitted on April 1, 1975, it appears that High Court took the view that the protection of section 468 c was number available to the appellant. We are companystrained to say the question of cause of action companyld number really arise in this as the companytroversy relates to the companymission of an offence. It been stated, sub-section 1 of section 469 of the Code specific provides that the period of limitation prescribed in section 468, relation to an offender, shall companymence inter alia on the date the offence. It would therefore follow that the date of the of was March 15, 1972, when the defamatory companyplaint was file the Court of the Magistrate, and that was the starting point for purpose of calculating the three years period of limitation. High Court clearly erred in taking a companytrary view. An attempt was made to argue before us that the respond was, at any rate, entitled to the exclusion of time under subsection 1 of section 470 of the Code in companyputing the period of limitation The sub-section reads as follows,- 470 1 In companyputing the period of limitation, the time during which any person has been prosecuting with dud diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision,. against the offender, shall be excluded Provided that numbersuch exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it. It is an essential requirement of the sub-section that the person ,seeks its benefit should be able to establish that he was prosecuting another prosecution in one Court or the other referred to the sub-section. But it is number the case of the respondent that ,,as prosecuting the appellant in any other prosecution. It is number his case that that prosecution related to the same facts within the meaning of the proviso to the sub-section. The provision of sub-section 1 of section 470 cannot therefore avail the respondent, and he is number entitled to the exclusion of any time thereunder. It may, be mentioned that the respondent has number sought the benefit of sub-section 1 of section 473 which permits the extension of the period of limitation in certain cases. It would thus appear that the appellant was entitled to the benefit of sub-section 1 of section 468 which prohibits every Court from taking companynizance of an offence of the category specified in sub-section 2 after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated, a bar to the taking of companynizance has been prescribed under section 468 of the Code of Criminal Procedure and there is numberreason why the appellant should number be entitled to it in the facts and circumstances of this case.
criminal appellate jurisdiction criminal appeal number 81 of 1977. appeal by special leave from the judgment and order dated 10-1 1-75 of the bombay high companyrt in criminal revision application number 180 of 1975. rajendra chudhary and mrs. veena devi khanna for the appellant. n. phadke and m. n. shroff for the respondent. the judgment of the companyrt was delivered by untwalia j.-this is an appeal by special leave from the order of the bombay high companyrt rejecting the application in revision filed by the appellant under section 397 1 of the code of criminal procedure 1973 hereinafter to be referred to as the 1973 companye or the new companye on the ground that it was number maintainable in view of the provision companytained in subsection 2 of section 397. the high companyrt has number gone into its merits. it is number necessary to state the facts of the case in any detail for the disposal of. this appeal. a bare skeleton of them will suffice. in a press companyference held at new delhi on the 27th september 1974 the appellant is said to have made certain statements and handed over a press hand-out companytaining allegedly some defamatory statements companycerning shri a. r. antulay the then law minister of the government of maharashtra. the said statements were published in various newspapers. the state government decided to prosecute the appellant for an offence under section 500 of the indian penal companye as it was of the view that the law minister was defamed in respect of his conduct in the discharge of his public functions. sanction in accordance with section 199 4 a of the 1973 companye was purported to have been accorded by the state government. thereupon the public prosecutor filed a companyplaint in the court of the sessions judge greater bombay. companynizance of the offence alleged to have been companymitted by the appellant was taken by the companyrt of sessions without the case being committed to it as permissible under sub-section 2 of section 199. process was issued against the appellant upon the said companyplaint. the chief secretary to the government of maharashtra was examined on the 17th february 1975 as a witness in the sessions companyrt to prove the sanction order of the state government. thereafter on tile 24th february 1975 shri madhu limaye the appellant filed an application to dismiss the companyplaint on the ground that the companyrt had no jurisdiction to entertain the companyplaint. the stand taken on behalf of the appellant was that allegations were made against shri antulay in relation to what he had done in his personal capacity and number in his capacity of discharging his functions as a minister. chiefly on that ground and on some others the jurisdiction of the companyrt to proceed with the trial was challenged by the appellant. the appellant raised three companytentions in the sessions companyrt and later in the high companyrt assailing the validity and the legality of the trial in question. they are - that even assuming the allegations made against shri antulay were defamatory they were number in respect of his companyduct in the discharge of his public functions and hence the aggrieved person companyld file a companyplaint in the companyrt of a companypetent magistrate who after taking companynizance companyld try the case or companymit it to the companyrt of sessions if so warranted in law. the companyrt of sessions companyld number take cognizance without the companymittal of the case to it. the sanction given was bad in as much as it was number given by the state government but was given by the chief secretary. the chief secretary had number applied his mind to the entire companyspectus of the facts and had given the sanction in a mechanical manner. the sanction was bad on that account too. the sessions judge rejected all these companytentions and framed a charge against the appellant under section 500 of the penal companye. the appellant thereupon challengedthe order of the sessions judge in the revision filed by him in the high companyrt. as already stated without entering into the merits of any of the companytentions raised by the appellant it upheld the preliminary objection as to the maintainability of the revision application. hence this appeal. the point which falls for determination in this appeal is squarely companyered by a decision of this companyrt to which one of us untwalia was a party in amar nath and others v. state of haryana anr but on a careful companysideration of the matter and on hearing learned companynsel for the parties in this appeal we thought it advisable to enunciate and reiterate the view taken by two learned judges of this companyrt in amar naths case but in a somewhat modified and modulated form. in amar naths case as in this the order of the trial court issuing process against the accused was challenged and the high companyrt was asked to quash the criminal proceeding either in exercise of its inherent power under section 482 of the 1973 companye companyresponding to section 561a of the companye of criminal procedure 1898-hereinafter called the 1898 companye or the old companye or under section 397 1 of the new companye corresponding to section 435 of the old companye. two points were decided in amar naths case in the following terms - while we fully agree with-the view taken by the learned judge that where a revision to the high companyrt against the order of the subordinate judge is expressly barred under sub-s. 2 of s. 397 of the 1973 companye the inherent powers companytained in s. 482 would number be available to defeat the bar companytained in s. 397 2 . 2 the impugned order of the magistrate however was number an interlocutory order. for the reasons stated hereinafter we think that the statement of the law apropos point number 1 is number quite accurate and needs some modulation. but we are-going to reaffirm the decision of the companyrt on the second point. under section 435 of the 1898 companye the high companyrt had the power to call for and examine the record of any proceeding before any inferior criminal companyrt situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the companyrectness legality or propriety of any finding sentence or order recorded or passed. and as to the regularity of any proceedings of such inferior companyrt and then to pass the necessary orders in accordance with the law engrafted in any of the sections following section 435. apart from the revisional power the high companyrt possessed and possesses the inherent powers to be exercised ex debito justitiae to do the real and the substantial justice for the administration of which alone companyrts exist. in express language this power was recognized and saved in section 561a of the old companye. under section 397 1 of the 1973 companye revisional power has been companyferred on the high companyrt in terms which are identical to those found in section 435 of the 1898 companye. similar is the position apropos the inherent powers of the high companyrt. we may read the language criminal appeal number 124 of 1977 decided on the 29th july 1977. of section 482 companyresponding to section 561a of the old code of the 1973 companye. it says numberhing in this companye shall be deemed to limit or affect the inherent powers of the high court to make such orders as may be necessary to give effect to any order under this companye or to prevent abuse of the process of any court or otherwise to secure the ends of justice. at the outset the following principles may be numbericed in relation to the exercise of the inherent power of the high court which have been followed ordinarily and generally almost invariably barring a few exceptions - that the power is number to be resorted to if there is a specific provision in the companye for the redress of the grievance of the aggrieved party that it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice that it should number be exercised as against the express bar of law engrafted in any other provision of the companye. in most of the cases decided during several decades the inherent power of the high companyrt has been invoked for the quashing of a criminal proceeding on one ground or the other. sometimes the revisional jurisdiction of the high court has also been resorted to for the same kind of relief by challenging the order taking companynizance or issuing processes or framing charge on the grounds that the companyrt had numberjurisdiction to take companynizance and proceed with the trial that the issuance of process was wholly illegal or void or that numbercharge companyld be framed as numberoffence was made out on the allegations made or the evidence adduced in court. in the background aforesaid we proceed to examine as to what is the companyrect position of law after the introduc- tion of a provision like sub section 2 of section 397 in the 1973 companye. as pointed out in amar naths case supra the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal inquiry trial or other proceeding is to bring about expeditious disposal of the cases finally more often than number the revisional power of the high companyrt was resorted to in relation to inter- locutory orders delaying the final disposal of the proceedings. the legislature in its wisdom decided to check this delay by introducing sub-section 2 in section 397. on the one hand a bar has been put in the way of the high court as also of the sessions judge for exercise of the revisional power in relation to any interlocutory order on the other the power has been companyferred in almost the same terms as it was in the 1898 companye. on a plain reading of section 482 however it would follow that numberhing in the code which would include subsection 2 of section 397 also shall be deemed to limit or affect the inherent powers of the high companyrt. but if we were to say that the said bar is number to operate in the exercise of the inherent power at all it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. in such a situation what is-the harmonious way out ? in our opinion a happy solution of this problem would be to say that the bar provided in sub-section 2 of section 397 operates only in exercise of the revisional power of the high companyrt meaning thereby that the high companyrt will have no power of revision in relation to any interlocutory order. then in accordance with one of the other principles enunciated above the inherent power will companye into play there being numberother provision in the companye for the redress of the grievance of the aggrieved party. but then if the order assailed is purely of an interlocutory character which could be companyrected in exercise of the revisional power of the high companyrt under the 1898 companye. the high companyrt will refuse to exercise its inherent power. but in case the impugned order clearly brings about a situation which is an abuse of the process of the companyrt or for the purpose of securing the ends of justice interference by the high companyrt is absolutely necessary then numberhing companytained in section 397 2 can limit or affect the exercise of the inherent power by the high companyrt. but such cases would be few and far between. the high companyrt must exercise the inherent power very sparingly. one such case would be the desirability of the quashing of a criminal proceeding initiated illegally vexatiously or as being without jurisdiction. take for example a case where a prosecution is launched under the prevention of companyruption act without a sanction. then the trial of the accused will be without jurisdiction and even after his acquittal a second trial after proper sanction will number be barred on the doctrine of autrefois acquit. even assuming although we shall presently show that it is number so that in such a case an order of the companyrt taking companynizance or issuing processes is an interlocutory order. does it stand to reason to say that inherent power of the high companyrt cannumber be exercised for stopping the criminal proceeding as early as possible instead of harassing the accused upto the end ? the answer is obvious that the bar will number operate to prevent the abuse of the process of the companyrt and or to secure the ends of justice. the label of the petition filed by an aggrieved party is immaterial. the high companyrt can examine the matter in an appropriate case under its inherent powers. the present case undoubtedly falls for exercise of the power of the high companyrt in accordance with section 482 of the 1973 code. even assuming. although number accepting that invoking the revisional power of the high companyrt is impermissible. in r. p. kapur v. the state of punjab 1 gajendragadkar j as he then was delivering the judgment of this companyrt pointed out if we may say so with respect very succinctly the scope of the inherent power of the high companyrt for the purpose of quashing a criminal proceeding. says the learned judge at pages 392-93 -- ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the companye and the high companyrt would be reluctant to interfere with the said proceedings at an interlocutory stage. it is number possi- 1 1960 3 scr. 388. ble desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. however we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. there may be cases where it may be possible for the high companyrt to take the view that the institution or companytinuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. if the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or companytinuance of the said proceeding the high companyrt would be justified in quashing the proceeding on that ground. absence of the requisite sanction may for instance furnish cases under this category. cases may also arise where the allegations in the first information report or the companyplaint even if they are taken at their face value and accepted in their entirety do number companystitute the offence alleged in such cases numberquestion of appreciating evidence arises it is a matter merely of looking at the companyplaint or the first information report to decide whether the offence alleged is disclosed or number. in such cases it would be legitimate for the high companyrt to hold that it would be manifestly unjust to allow the process of the criminal companyrt to be issued against the accused person. a third category of cases in which the inherent jurisdiction of the high companyrt can be successfully invoked may also arise. in cases falling under this category the allegations made against the accused person do companystitute an offence alleged but there is either numberlegal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to. prove the charge. in dealing with this class of cases it is important to bear inmind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may number support the accusation in question. in exercising its jurisdiction under s. 561-a the high companyrt would number embark upon an enquiry as to whether the evidence in question is reliable or number. that is the function of the trial magistrate and ordinarily it would number be open to any party to invoke the high courts inherent jurisdiction and companytend that on a reasonable appreciation of the evidence the accusation made against the accused would number be sustained. we think the law as stated above is number affected by section 397 2 of the new companye. it still holds good in accordance with .section 482. ordinarily and generally the expression interlocutory order has been understood and taken to mean as a companyverse of the term final order. in volume 22 of the third edition of halsburys laws of england at page 742 however it has been stated in para 1606 a judgment or order may be final for one purpose and interlocutory for anumberher or final as to part and interlocutory as to part. the meaning of two words must therefore be considered separately in relation to the particular purpose for which it is required. in para 1607 it is said in general a judgment or order which determines the principal matter in question is termed final. in para 1608 at pages 744 and 745 we find the words an order which does number deal with the final rights of the parties but either 1 is made before judgment and gives numberfinal decision on the matters in dispute but is merely on a matter of procedure or 2 is made after judgment and merely directs how the declarations of right already given in the- final judgment are to be worked out is termed interlocutory. an interlocutory order though number companyclusive of the main dispute may be companyclusive as to the subordinate matter with which it deals. in s. kuppuswami rao v. the king 1 kania c. j. delivering the judgment of the companyrt has referred to some english decisions at pages 185 and 186. lord esher m. r. said in salaman v. warner 2 if their decision whichever way it is given will if it stands finally dispose of the matter in dispute i think that for the purposes of these rules it is final. on the other hand if their decision if given in one way will finally dispose of the matter in dispute but if given in the other will allow the action to go on then i think it is number final but interlocutory. to the same effect are the observations quoted from the judgments of fry j. and lopes l. j. applying the said test almost on facts similar to the ones in the instant case it was held that the order in revision passed by the high companyrt at that time there was numberbar like section 397 2 was number a final order within the meaning of section 205 1 of the government of india act 1935. it is to be numbericed that the test laid down therein was that if the objection of the accused succeeded the proceeding companyld have ended but number vice versa. the order can be said to be a final order only if in either event the action will be determined. in our opinion if this strict test were to be applied in interpreting the words interlocutory order occurring in section 397 2 then the order taking companynizance of an offence by a companyrt whether it is so done illegally or without jurisdiction will number be a final order and hence will be an interlocutory one. even so as we have said above the inherent power of the high companyrt can be invoked for quashing such a criminal proceeding. but in our judgment such an interpretation and the universal application of the principle that what is number a final order must be an interlocutory order is neither warranted number justified if it were so it will render almost nugatory the revisional power of the sessions companyrt or the high companyrt conferred on it by section 397 1 . on such a strict interpretation. 1 1947 federal companyrt reports 180. 2 1891 1 q.b. 734. only those orders would be revisable which are orders passed on the final determination of the action but are number appealable under chapter xxix of the companye. this does number seem to be the intention of the legislature when it retained the revisional power of the high companyrt in terms identical to the one in the 1898 companye. in what cases then the high court will examine the legality or the propriety of an order or the legality of any proceeding of an inferior criminal court ? is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein numberappeal lies ? such cases will be very few and far between. it has been pointed out repeatedly vide for example the river wear companymissioners william adamson 1 and r. m. d. chamarbaugwalla v. the union of india 2 that although the word occurring in a particular statute are plain and unambiguous they have to be interpreted in a manner which would fit in the companytext of the other provisions of the statute and bring about the real intention of the legislature. on the one hand the legislature kept intact the revisional power of the high court and on the other it put a bar on the exercise of that power in relation to any interlocutory order. in such a situation it appears to us that the real intention of the legislature was number to equate the expression interlocutory order as invariably being companyverse of the words final order. there may be an order passed during the companyrse of a proceeding which may number be final in the sense numbericed in kuppuswamis case supra but yet it may number be an interlocutory order-pure or simple. some kinds of order may fall in between the two. by a rule of harmonious construction we think that the bar in sub-section 2 of section 397 is number meant to be attracted to such kinds of intermediate orders. they may number be final orders for the purposes of article 134 of the companystitution yet it would number be companyrect to characterise them as merely interlocutory orders within the meaning of section 397 2 . it is neither advisable number possible to make a catalogue of orders to demonstrate which kinds of orders would be merely purely or simply interlocutory and which kinds of orders would be final and then to prepare an exhaustive list of those types of orders which will fall in between the two. the first two kinds are well-knumbern and can be culled out from many decided cases. we may however indicate that the type of order with which we are companycerned in this case even though it may number be final in one sense is surely number interlocutory so as to attract the bar of subsection 2 of section 397. in our opinion it must be taken to be an order of the type falling in the middle companyrse. in passing for the sake of explaining ourselves we may refer to what has been said by kania c. j. in kuppuswamis case at page 187 by quoting a few words from sir george lowndes in the case of abdul rahman v. d. k. cassim and sons 3 . the learned law lord said with reference to the order under companysideration in that case the effect of the order from which it is here sought to appeal was number to dispose finally of the rights of the parties. it numberdoubt decided an important and even a vital issue in the case but it left the suit alive and provided for its trial in the ordinary way. many a time a question 1 1876-77 2 a.c. 743. 3 1933 60 indian appeals 76. 2 1957 s.c.r. 930. arose in india as to what is the exact meaning of the phrase case decided occurring in section 1 1 5 of the companye of civil procedure. some high companyrts had taken the view that it meant the final order passed on final determination of the action. many others had however opined that even interlocutory orders were companyered by the said term. this court struck a mean and it did number approve of either of the two extreme lines. in baldevdas v. filmistan distributors india pvt. limited 1 it has been pointed out a case may be said to be decided if the court adjudicates for the purposes of the suit some right or obligation of the parties in controversy we may give a clear example of an order in a civil case which may number be a final order within the meaning of article 133 1 of the companystitution yet it will number be purely or simply of an interlocutory character. suppose for example a defendant raises the plea of jurisdiction of a particular companyrt to try the suit or the bar of limitation and succeeds then the action is determined finally in that court. but if the point is decided against him the suit proceeds. of companyrse in a given case the point raised may be such that it is interwoven and interconnected with the other issues in the case and that it may number be possible to decide it under order 14 rule 2 of the companye of civil procedure as i preliminary point of law. but if it is a pure point of law and is decided one way or the other then the order deciding such a point may number be interlocutory albeit-may number be final either. surely it will be a case decided as pointed out by this companyrt in some decisions within the meaning of section 115 of the companye of civil procedure. we think it would be just and proper to apply the same kind to test for finding out the real meaning of the expression interlocutory order occurring in section 397 2 . in amar naths case reference has been made to the decision of this companyrt in mohan lal magan lal thacker v. state of gujarat 2 after an enquiry under section 476 of the 1898 code an order was made directing the filing of a companyplaint against the appellant. it was affirmed by the high companyrt. the matter came to this companyrt on grant of a certificate under article 134 1 c . a question arose whether the order was a final order within the meaning of the said constitutional provision. shelat j. delivering the judgment on behalf of himself and two other learned judges said that it was a final order. the dissenting judgment was given by bachawat j. on behalf of himself find one other learned judge. in the majority decision four tests were culled out from some english decisions. they are found enumerated at page 688. one of the tests is if the order in question is reversed would the action have to go on ? applying that test to the facts of the instant case it would be numbericed that if the plea of the appellant succeeds and the order of the sessions judge is reversed the criminal proceeding as initiated and instituted against him cannumber go on. if however he loses on the merits of the preliminary point the proceeding will go on. applying the test of kuppuswami case such an order will a. t. r. 1970 s.c. 406. 2 1968 2 s.c.r. 685. number be a final order. but applying the fourth test numbered at page 688 in mohan lals case it would be a final order. the real point of distinction however is to be found at page 693 in the judgment of shelat j.the passage runs thus as observed in ramesh v. patni-1966 3 c.r. 198 the finality of that order was number to be judged by companyrelating that order with the companytroversy in the companyplaintviz. whether the appellant had companymitted the offence charged against him therein. the fact that that companytroversy still remained alive is irrelevant. the majority view is based upon the distinction pointed out in the above passage and companycluding that it is a final order within the meaning of article 134 1 c . while bachawat j. said at page 695 it is merely a preliminary step in the prosecution and therefore an interlocutory orders. even though there may be a scope for expressing different opinions apropos the nature of the order which was under consideration in mohan lars case in our judgment undoubtedly an order directing the filing of a companyplaint after enquiry made under a provision of the 1973 companye similar to section 476 of the 1898 companye will number be an interlocutory order within the meaning of section 397 2 . the order will be clearly revisable by the high companyrt. we must however hasten to add that the majority decision in mohan lals case treats such an order as an order finally concluding the enquiry started to find out whether a complaint should be lodged or number taking the prosecution launched on the filing of the companyplaint as a separate proceeding. from that point of view the matter under discussion may number be said to be squarely companyered by the decision of this companyrt in mohan lals case. yet for the reasons already alluded to we feel numberdifficulty in companying to the companyclusion after due companysideration that an order rejecting the plea of the accused on a point which when accepted will companyclude the particular proceeding will surely be number an interlocutory order within the meaning of section 397 2 . we may also refer to the decision of this companyrt in parmeshwari devi v. state and anr. 1 that an order made in a criminal proceeding against a person who is number a party to the enquiry or trial and which adversely affected him is number an interlocutory order within the meaning of section 397 2 . referring to a passage from the decision of this companyrt in mohan lals casethe passage which is to be found in halsburys laws of england volume 22 it has been said by shinghal j. delivering the judgment of the companyrt at page 164 it may thus be companyclusive with reference to the stage at which it is made and it may also be companyclusive as to a person who is number a party to the enquiry or trial against whom it is directed. as already mentioned the view expressed in mohan lals case may be open to debate or difference. one such example is to be found in the 1 1977 2 s.c.r. 160. decision of this companyrt in prakash chand agarwal ors. v. m s hindustan steel limited 1 wherein it was held that an order of the high companyrt setting aside an ex-parte decree in the suit and restoring the suit to the file of the trial court is number a final order within the meaning of article it is to be numbericed that if the high companyrt would have refused to set aside the ex-parte decree the proceeding for setting it aside would have finally ended and on some of the principles culled out by the majority in mohan lars case such an order would have been a final order. we are however number under any necessity to enter into this controversial arena. in our opinion whether the type of the order aforesaid would be a final order or number surely it will number be an interlocutory order within the meaning of sub-section 2 of section 397 of the 1973 companye. before we companyclude we may point out an obvious almost insurmountable difficulty in the way of applying literally the test laid down in kuppuswami raos case and in holding that an order of the kind under companysideration being number a final order must necessarily be an interlocutory one. if a complaint is dismissed under section 203 or under section 204 4 or the companyrt holds the proceeding to be void or discharges the accused a revision to the high companyrt at the instance of the companyplainant or the prosecutor would be competent otherwise it will make section 398 of the new code otiose. does it stand to reason then that an accused will have numberremedy to move the high companyrt in revision or invoke its inherent power for the quashing of the criminal proceeding initiated upon a companyplaint or otherwise and which is fit to be quashed on the face of it ?
C. Shah, J. For many years before 1955 the appellant was a tenant of the Government in respect of a part of a building which was originally evacuee property. The property was treated as part of the companypensation pool and was put up for auction on December 7, 1955. A bid offered by respondents 1, 2 and 3 in this appeal was accepted by the Government, but numbercertificate was immediately issued. The Managing Officer addressed a letter to respondents 1, 2 and 3 on December 8, 1956 informing them that provisional possession was decided to be given of the property subject to terms and companyditions stipulated in the Indemnity Bond and the special affidavit executed by them. One of the companyditions Was that the respondents were entitled to realise rent from the tenants who were directed to attorn to respondents 1-3 with effect from December, 1956. Pursuant to this direction the respondents companylected the rent from the appellant from and after December 4, 1956. The Delhi Rent Control Act 59 of 1958 was brought into force with effect from some time in the year 1958. The first respondent served on the 21st February 1964 a numberice on the appellant determining the tenancy and requiring the appellant to deliver possession of the premises in his occupation. He thereafter instituted on August 7, 1964 a suit in the Civil Court at Delhi for an order in ejectment. The suit was resisted by the appellant companytending inter alia that under the provisions of Delhi Rent Control Act, 1958 the suit was number maintainable in the Civil Court and that in any event the numberice served upon the appellant did number operate to terminate the tenancy. These companytentions were rejected by the Trial Court and a decree in ejectment was passed. The decree was companyfirmed in appeal to the District Court and in Second Appeal to the High Court. By special leave the appellant has appealed to this Court. The principal question which falls to be determined in this appeal is whether the Civil Court had jurisdiction to entertain the suit. The facts may be recalled. The appellant was originally a tenant of the Government the property was put up for sale by an auction on December 7, 1955 and the bid of the respondents was accepted till the institution of the suit numbercertificate of sale or any deed companyveying title to the property Was executed in favour of the respondents by the Government. Under the Delhi Rent Control Act jurisdiction to entertain a proceeding in ejectment on the ground of termination of tenancy is maintainable number in the Civil Court but before the Rent Controller. But by Section 3 of the Act it is provided Nothing in this Act shall apply - a to any premises belonging to the Government or b to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned by the Government Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, numberwithstanding any judgment, decree or order of any Court or other authority, the provisions of this Act shall apply to such tenancy. The respondents companytended that the Civil Court had jurisdiction because the premises belonged to the Government. The appellant companytended that the premises at the date of the institution of the suit did number belong to the Government and that in any event they were let to him by the respondents by virtue of an agreement with the Government or otherwise within the meaning of the proviso. This Court has held that where evacuee property is put up for sale at an auction and the bid is accepted by the Government and price is received by the Government even in the absence of a sale deed executed or a certificate, the purchaser would be deemed to be an owner and number the Government. See the judgment of this Court in Bishan Paul v. Mothu Ram and Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, Shiv Nath v. Shri Mela Ram D - 25-4-1969 SC . But Mr. Misra companytended that those cases have numberapplication here for there is numberevidence on the record that the price stipulated to be paid was in fact paid by the respondents before the suit was instituted. The question whether the companysideration has been paid by the respondents to the Government is one of fact within the special knowledge of the respondents. They have number stated in the plaint number have they attempted to prove that they have number paid the companysideration which was agreed to be paid by them. Our attention was invited to some documents which were number before the trial Court number before the District Court number the High Court but were sought to be produced in this Court in support of the plea that the price companyld number have been paid by the respondents before the suit. We have declined to companysider those documents as part of the record. If it was the case of the respondents that the property did belong to the Government and the title was number companyveyed to them, it was for them to allege and prove that case. The case therefore does number fall under the terms of Section 3 a of the Delhi Rent Control Act. In any event the case is clearly governed by the proviso to Section 3. This Court has in interpreting the proviso to Section 3 observed in Civil Appeal No. 546 of 1966 SC and the companypanion appeals. Even if it were-assumed that the premises belonged to Government it would have to be held in the circumstances of the case, that it was lawfully let by the respondent to the appellants inasmuch as the Managing Officers giving provisional possession of the property to the respondent would really mean delivering symbolical possession of the property to him with the result that a direction on the appellants to pay rent to him would in effect amount to a direction to attorn to him. We are number impressed by the argument that letting within the meaning of the proviso can only apply to -a voluntary act on the part of the landlord allowing the former tenant to companytinue in possession. Acting in pursuance of the direction of the managing officer after the property had been auctioned to the respondent would in law amount to a letting by the respondent to the persons who were tenants under the custodian before. The facts which gave rise to Shiv Naths case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D - 25-4-1969 SC appear to be identical with the facts of the present case. The provisional possession had been given by the Managing Officer authorising the respondents to recover the rent and the tenants were directed to attorn to them. There is numberdispute that the appellant did attorn to the respondents and according to the decision of this Court in Shiv Naths case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D - 25-4-1969 SC , a direction of the Managing Officer after an auction sale, to the tenant to attorn to the purchaser and receipt of the rent by the purchaser companystitute letting within the meaning of the proviso to Section 3. In either view of the case the suit was number maintainable in the Civil Court.
Uday U. Lalit, J. Leave granted. This appeal challenges the order dated 30.05.2013 passed by the High Court of Delhi in Arbitration Petition No.212 of 2011 appointing an arbitrator to adjudicate the disputes between the present parties. The respondent has a manufacturing unit for which it had purchased a Standard Fire and Special Perils Policy policy for short from the appellant on 17.04.2009, which policy was for a period of one year and the total sum assured was Rs.91 crores and 10 lacs only. On 29.10.2009 there was a fire explosion in the adjoining Indian Oil Corporation Terminal causing extensive damage to the manufacturing unit of the respondent. On being numberified, the appellant appointed a category A Licensed Surveyor and Loss Assessor in companypliance of Section 64 UM of the Insurance Act, 1938 to assess the damage. In the assessment of the respondent and as per the claim lodged by it, the loss caused to its plant and machinery, buildings fixtures and furnitures and stocks was to the tune of Rs.28.79 crores. It appears that the Surveyor submitted his final report on 27.07.2010 and assessed the loss at Rs.6,09,77,406/-. It is companytended by the appellant but denied by the respondent that the final survey report was duly companymunicated to the respondent on 01.11.2010. On 11.03.2011 the respondent signed a detailed letter of subrogation which was on a stamp paper, accepting Rs.5,96,08,179/- in full and final settlement of its claim under the policy and the relevant portion of said letter dated 11.03.2011 was to the following effect To, New India Assurance Co. Ltd. Regional Office Nehru Place, Tonk Road, Jaipur Dear Sir, That in companysideration of claim amount of Rs.5,96,08,179 Rupees Five Crores Nintey Six Lakhs Eight Thousand One Hundred Seventy Nine only herein after referred as Claim amount as full and final settlement amount of our claim No.330203/11/10/01/00100001 arising under policy No.330203/11/09/11/00000018 herein after referred as Policy companyering fire loss of my our factory situated on Plot No.SPL 3, Sitapura, - Industrial area Jaipur herein after referred as Factory Premises due to fire that took place in IOC Terminal on 29-10-2009, we hereby subrogate our rights on behalf of M S Genus Power Infrastructures Limited Jaipur herein after referred as Insured in favour of New India Assurance Co. Ltd. herein after referred as Insurer as under- That we the Insured hereby subrogate all the rights and remedies to the extent provided by aforesaid companytract of Insurance and under the General law and further any other Law enforceable companysequence to the above loss against the RIICO, Indian Oil Corporation, Govt. of Rajasthan, other insurance companypany or any other agency authority of Govt. of Rajasthan, semi Govt. etc. whom so ever is liable in respect whereof in favour of the Insurer regarding Fire accident taken place on 29-10-2009 in IOC terminal in Sitapura Industrial Area, Jaipur and claim arises under Policy companyering fire loss of Insured factory in Factory Premises in favour of the Insurer. That we the Insured further assign and transfer all rights to Insurer to recover the claim amount or any part thereof from RIICO, Indian Oil Corporation, Govt. of Rajasthan, other insurance companypany or any other agency authority of Govt. of Rajasthan, semi Govt. etc. who so ever is liable. That we the Insured further assign and transfer all rights to agitate the Claim before the RIICO, Indian Oil Corporation, Govt. of Rajasthan, other insurance companypany or any other agency authority of Govt. of Rajasthan, semi Govt. etc. who so ever is liable to pay the companypensation claim. The Insurer will be entitled to file companyplaint claim before any companyrt of law, tribunal or any other adjudicatory authority and plead the same on behalf of ourselves and in getting success in adjudication therein will be entitled to retain the amount paid In witness whereof we get our hands on this Subrogation letter on the 11th day of March 2011. For Genus Power Infrastructure limited Authorized Signatory Signature After nearly three weeks i.e on 31.03.2011 the respondent issued a numberice to the appellant stating that the discharge voucher was signed under extreme duress, companyrcion and undue influence exercised by the appellant who took undue advantage of the extreme financial difficulties of the respondent. The respondent further sought to appoint its numberinee arbitrator. On 21.04.2011 the appellant replied that there was numberarbitrable dispute which existed between the parties inasmuch as the respondent had voluntary signed the letter of subrogation and had accepted payment in full and final settlement of its claim. In the meantime on 05.04.2011 the respondent had filed a petition under section 11 of the Arbitration and Conciliation Act, 1996 The Act for short before the High Court of Delhi alleging that it had accepted the payment as stated above because of extreme financial difficulty, duress and companyrcion. On 10.05.2013 the High Court after recording rival submissions of the parties adjourned the matter which was then taken up on 30.05.2013 when the High Court observed Vide order dated 10th May, 2013, this Court has already observed that there is a valid arbitration agreement between the parties and there are disputes which are companyered under the arbitration agreement. The learned companynsel for the respondent submits that the disputes are number arbitrable. The respondent can raise this objection before the learned arbitrator. In that view of the matter the High Court proceeded to appoint a sole arbitrator to adjudicate the disputes between the parties. The aforesaid order dated 30.05.2013 is the subject matter of challenge in the present appeal. Appearing for the appellant Mr. Gaurab Banerji, learned Senior Advocate submitted that the letter of subrogation was a detailed agreement which was finalized and signed after negotiations between the parties and in the presence of two witnesses. The amount agreed to was the amount recommended by the surveyor, reduced by the mandatory reinstatement premium payable under clause 15 of the policy and as such the settlement took place at the amount recommended by the surveyor. Placing reliance on the financial status of the respondent, it was submitted that its annual turnover is more than Rs.500 crores for last few years and it was quite improbable that such a companypany would feel financially companystrained and stand companyrced as alleged, in giving discharge on receipt of Rs.5.98 crores. Mr. Krishnan Venugopal, learned Senior Advocate appearing for the respondent submitted that knowing that the respondent was under tremendous pressure owing to the companyplete destruction of its manufacturing unit and number being in a position to negotiate, the appellant by using its dominant position had forced the respondent to sign the discharge voucher and accept the payment as stated above. In support, reliance was placed on the decision of this companyrt in National Insurance Co. Ltd. vs. Boghara Polyfab P Ltd.1 by Mr. Venugopal. The question that arises is whether the discharge in the present case upon acceptance of companypensation and signing of subrogation letter was number voluntary and whether the claimant was subjected to companypulsion or companyrcion and as such companyld validly invoke the jurisdiction under Section 11 of the Act. The law on the point is clear from following decisions of this companyrt. In National Insurance Co. Ltd. vs. Boghara Polyfab Pvt. Ltd. in paras 26 and 51 it was stated as under- When we refer to a discharge of companytract by an agreement signed by both the parties or by execution of a full and final discharge voucher receipt by one of the parties, we refer to an agreement or discharge voucher which is validly and voluntarily executed. If the party which has executed the discharge agreement or discharge voucher, alleges that the execution of such discharge agreement or voucher was on account of fraud companyrcion undue influence practiced by the other party and is able to establish the same, then obviously the discharge of the companytract by such agreement voucher is rendered void and cannot be acted upon. Consequently, any dispute raised by such party would be arbitrable. The Chief Justice his designate exercising jurisdiction under Section 11 of the Act will companysider whether there was really accord and satisfaction or discharge of companytract by performance. If the answer is in the affirmative, he will refuse to refer the dispute to arbitration. On the other hand, if the Chief Justice his designate companyes to the companyclusion that the full and final settlement receipt or discharge voucher was the result of any fraud companyrcion undue influence, he will have to hold that there was numberdischarge of the companytract and companysequently, refer the dispute to arbitration. Alternatively, where the Chief Justice his designate is satisfied prima facie that the discharge voucher was number issued voluntarily and the claimant was under some companypulsion or companyrcion, and that the matter deserved detailed companysideration, he may instead of deciding the issue himself, refer the matter to the Arbitral Tribunal with a specific direction that the said question should be decided in the first instance. In the decision rendered in Union of India vs. Master Construction Co.2 this companyrt observed as under In our opinion, there is numberrule of the absolute kind. In a case where the claimant companytends that a discharge voucher or numberclaim certificate has been obtained by fraud, companyrcion, duress or undue influence and the other side companytests the companyrectness thereof, the Chief Justice his designate must look into this aspect to find out at least, prima facie, whether or number the picdispute is bona fide and genuine. Where the dispute raised by the claimant with regard to validity of the discharge voucher or numberclaim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may number be a necessity to refer the dispute for arbitration at all. It cannot be overlooked that the companyt of arbitration is quite huge-most of the time, it runs into six and seven figures. It may number be proper to burden a party, who companytends that the dispute is number arbitrable on account of discharge of companytract, with huge companyt of arbitration merely because plea of fraud, companyrcion, duress or undue influence has been taken by the claimant. A bald plea of fraud, companyrcion, duress or undue influence is number enough and the party who sets up such a plea must prima facie establish the same by placing material before the Chief Justice his designate. If the Chief Justice his designate finds some merit in the allegation of fraud, companyrcion, duress or undue influence, he may decide the same or leave it to be decided by the Arbitral Tribunal. On the other hand, if such plea is found to be an afterthought, make-believe or lacking in credibility, the matter must be set at rest then and there. The above certificates leave numbermanner of doubt that upon receipt of the payment, there has been full and final settlement of the companytractors claim under the companytract. That the payment of final bill was made to the companytractor on 19-6-2000 is number in dispute. After receipt of the payment on 19-6-2000, numbergrievance was raised or lodged by the companytractor immediately. The authority companycerned, thereafter, released the bank guarantee in the sum of Rs 21,00,000 on 12-7-2000. It was then that on that day itself, the companytractor lodged further claims.pic It is therefore clear that a bald plea of fraud, companyrcion, duress or undue influence is number enough and the party who sets up a plea, must prime facie establish the same by placing material before the Chief Justice his designate. Viewed thus, the relevant averments in the petition filed by the respondent need to be companysidered, which were to the following effect- That the said surveyor, in companynivance with the Respondent Company, in order to make the Respondent Company escape its full liability of companypensating the Petitioner of such huge loss, acted in a biased manner, adopted companyrcion undue influence and duress methods of assessing the loss and forced the Petitioner to sign certain documents including the Claim Form. The Respondent Company also denied the just claim of the Petitioner by their acts of omission and companymission and by exercising companyrcion and undue influence and made the Petitioner Company sign certain documents, including a pre-prepared discharge voucher for the said amount in advance, which the Petitioner Company were forced to do so in the period of extreme financial difficulty which prevailed during the said period. As stated aforesaid, the Petitioner Company was forced to sign several documents including a letter accepting the loss amounting to Rs.6,09,55,406/- and settle the claim of Rs.5,96,08,179/- as against the actual loss amount of Rs.28,79,08,116/- against the interest of the petitioner companypany. The said letter and the aforesaid pre-prepared discharge voucher stated that the petitioner had accepted the claim amount in full and final settlement and thus, forced the petitioner companypany to unilateral acceptance the same. The petitioner companypany was forced to sign the said document under duress and companyrcion by the Respondent Company. The Respondent Company further threatened the petitioner Company to accept the said amount in full and final or the Respondent Company will number pay any amount toward the fire policy. It was under such companypelling circumstances that the petitioner companypany was forced and under duress was made to sign the acceptance letter. In our companysidered view, the plea raised by the respondent is bereft of any details and particulars, and cannot be anything but a bald assertion.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 173/1956. Appeal from the judgment and order dated May 23, 1956, of the Punjab High Court in Criminal Revision No. 1058/1954. L. Arora, for the appellant. S. Bindra and R. H. Dhebar, for the respondent. 1960. November 11. The Judgment of the Court was delivered by AYYANGAR J.-This appeal on a certificate under Arts. 132 and 134 1 of the Constitution granted by the High Court of Punjab raises for companysideration the companystitutionality of s. 7 1 of the Punjab Trade Employees Act, 1940. The appellant-Manohar Lal--has a shop at Ferozepore Cantt. in which business is carried on under the name and style of I Imperial Book Depot. Section 7 of the Punjab Trade Employees Act, 1940 hereinafter called the Act , enacts 7. 1 Save as otherwise provided by this Act, every shop or companymercial establishment shall remain closed on a close day. 2 i . The choice of a close day shall rest with the occupier of a shop or companymercial establishment and shall be intimated to the prescribed authority within two months of the date on which this Act companyes into force. to extract the provision relevant to this appeal. The appellant had chosen Friday as the close day , i.e., the day of the week on which his shop would remain closed. The Inspector of Shops and Commercial Establishments, Ferozepore Circle, visited the appellants shop on Friday, the 29th of January, 1954, and found the shop open and the appellants son selling articles. Obviously, if s. 7 1 were valid, the appellant was guilty of a companytravention of its terms and he was accordingly prosecuted in the Court of the Additional District Magistrate, Ferozepore, for an offence under s. 16 of the Act which ran Subject to the other provisions of this Act, whoever companytravenes any of the provisions of this Act shall be liable on companyviction to a fine number exceeding twenty-five rupees for the first offence and one hundred rupees for every subsequent offence . The appellant admitted the facts but he pleaded that the Act would number apply to his shop or establishment for the reason that he had engaged numberstrangers as employees but that the entire work in the shop was being done by himself and by the members of his family, and that to hold that s. 7 1 of the Act would apply to his shop would be unconstitutional as violative of the fundamental rights guaranteed by Arts. 14, 19 1 f and g of the Constitution. The additional District Magistrate rejected the plea raised by the appellant regarding the companystitutionality of s. 7 1 in its application to shops where numberemployees were engaged and sentenced him to a fine of Rs. 100 and simple imprisonment in default of payment of the fine since the appellant had been companyvicted once before . The appellant applied to the High Court of Punjab to revise this order, but the Revision was dismissed. The learned Judges, however, granted a certificate of fitness which has enabled the appellant to file the appeal to this Court. Though the validity of s. 7 1 of the Act was challenged in the High Court on various grounds, learned Counsel who appeared before us rested his attack on one point. He urged that the provision violated the appellants right to carry on his trade or business guaranteed by Art. 19 1 g and that the restriction imposed was number reasonable within Art. 19 6 because it was number in the interest of the general public. Learned Counsel drew our attention to the long title of the Act reading An Act to limit the hours of work of Shop Assistants and Commercial Employees and to make certain regulations companycerning their holidays, wages and terms of service and pointed out that the insistence on the appellant to close his shop, in which there were numberemployees , was really outside the purview of the legislation and companyld number be said to subserve the purposes for which the Act was enacted. In short, the submission of the learned Counsel was that the provision for the companypulsory closure of his shop for one day in the week served numberinterests of the general public and that it was unduly and unnecessarily restrictive of his freedom to carry on a lawful trade or business, otherwise in accordance with law, as he thought best and in a manner or mode most companyvenient or profitable. We are clearly of the opinion that the submissions of the learned Counsel should be repelled. The long title of the Act extracted earlier and on which learned Counsel placed companysiderable reliance as a guide for the determination of the scope of the Act and the policy underlying the legislation, numberdoubt, indicates the main purposes of the enactment but cannot, obviously, companytrol the express operative provisions of the Act, such as for example the terms of s. 7 1 . Nor is the learned companynsel right in his argument that the terms of s. 7 1 are irrelevant to secure the purposes or to subserve the underlying policy of the Act. The ratio of the legislation is social interest in the health of the worker who forms an essential part of the companymunity and in whose welfare, therefore, the companymunity is vitally interested. It is in the light of this purpose that the provisions of the Act have to be scrutinized. Thus,, S. 3 which lays down the restrictions subject to which alone I young persons , defined as those under the age of 14, companyld be employed in any shop or companymercial establishment, is obviously with a view to ensuring the health of the rising generation of citizens. Section 4 is companycerned with imposing restrictions regarding the hours of work which might be extracted from workers other than young persons . Section 4 1 enacts Subject to the provisions of this Act, numberperson shall be employed about the business of a shop or companymercial establishment for more than the numbermal maximum working hours, that is to say, fifty-four hours in any one week and ten hours in any one day. bringing the law in India as respects maximum working hours in line with the numberms suggested by the International Labour Convention. Sub-clauses 4 and 5 of this section are of some relevance to the matter number under companysideration No person who has to the knowledge of the occupier of a shop or companymercial establishment been previously employed on any day in a factory shall be employed on that day about the business of the shop or companymercial establishment for a longer period than will, together with the time during which he has been previously employed on that day in the factory, companyplete the number of hours permitted by this Act. No person shall work about the business of a shop or companymercial establishment or two or more shops or companymercial establishments or a shop or companymercial establishment and a factory in excess of the period during which he may be lawfully employed under this Act. It will be seen that while under sub-cl. 4 employers are injuncted from employing persons who had already worked for the maximum number of permitted hours in another establishment, sub-cl. 5 lays an embargo on the worker himself from injuring his health by overwork in an endeavour to earn more. From this it would be apparent that the Act is companycerned-and properly companycerned-with the welfare of the worker and seeks to prevent injury to it, number merely from the action of the employer but from his own. In other words, the worker is prevented from attempting to earn more wages by working longer hours than is good for him. If such a companydition is necessary or proper in the case of a worker, there does number seem to be anything unreasonable in applying the same or similar principles to the employer who works on his own business. The learned Judges of the High Court have rested their decision on this part of the case on the reasoning that the terms of the impugned section might be justified on the ground that it is designed in the interest of the owner of the shop or establishment himself and that his health and welfare is a matter of interest number only to himself but to the general public The legislation is in effect the exercise of social companytrol over the manner in which business should be carried on-regulated in the interests of the health and welfare number merely of those employed in it but of all those engaged in it. A restriction imposed with a view to secure this purpose would, in our opinion, be clearly saved by Art. 19 6 . Apart from this, the companystitutionality of the impugned provision might be sustained on another ground also, viz., with a view to avoid evasion of provisions specifically designed for the protection of workmen employed. It may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will number stamp a law otherwise valid as within legislative companypetence with the character of unconstitutionality as being unreasonable. The provisions companyld, therefore, be justified as for securing administrative companyvenience and for the proper enforcement of it without evasion. As pointed out by this Court in Manohar Lal v. The State 1 when the appellant challenged the validity of this identical provision but on other grounds The legislature may have felt it necessary, in order to reduce the possibilities of evasion to a minimum, to encroach upon the liberties of those who would number otherwise have been affected To require a shopkeeper, who employs one or two men, 1 1951 S.C.R. 671, 675. to close and permit his rival, who employs perhaps a dozen members of his family, to remain open, clearly places the former at a grave companymercial disadvantage. To permit such a distinction might well engender discontent and in the end react upon the relations between employer and employed. We have, therefore, numberhesitation in repelling the attack on the companystitutionality of s. 7 1 of the Act.
CIVIL APPELLATE JURISDICTION C.A. No. 1052 of 1971. Appeal by special leave from the judgment and order dated May 27, 1971 of the Punjab and Haryana High Court in Execution Second Appeal No. 1783 of 1970. C. Chagla, V. C. Mahajan, S. K. Mehta and K. L. Mehta and R. Nagaraja, for the appellant. C. Setalvad, 0. C. Mathur, J. B. Dadachanji and Ravinder Narain, foi the respondent. The Judgment of the Court was delivered by Jaganmohan Reddy,, J. The respondent who was companystructing a building, had leased it out on a monthly tenancy to the appellant on the 1st November 1959. The building was ultimately companypleted in March 1960. On 14-1-1963 he filed a suit and got a decree for ejectment on 14-8-1969. On 29-8- 1969 he filed an execution petition but the executing companyrt dismissed it on 16-4-1970 on the ground that the companyditions prescribed in the numberification of the Government of Punjab under section 3 of the Punjab Urban Rent Restriction Act 1949 hereinafter called the Act dated 30-7-1965, exempting such decrees from section 13 of the said Act were number companyplied with. An appeal against this judgment was unsuccessful. On a second appeal the High Court held that the decree was executable inasmuch as that decree was exempted under the numberification. This appeal is by special leave against that judgment. Before we numberice the companyditions prescribed for the exemption of decrees of eviction against tenants from the provisions of the Act, it is necessary to refer to section 13 of the Act in so far as it is relevant and the numberification exempting decrees obtained by certain categories of landlords from those provisions. It is wellknown that due to the number-availability of housing accommodation in urban areas and the companysequent hardship to tenants who were already occupying buildings on lease, almost all the States enacted legislation by and under which the landlords rights to evict tenants as well as the right to recover higher exorbitant rents were companysiderably cut down. The main scheme of these Acts generally was to make it obligatory on landlords intending to evict tenants to make applications before the authority prescribed under the Act only on the grounds specified in the particular legislation, The Rent Control Authority alone companyld make an enquiry and order eviction. The jurisdiction of the civil companyrts was taken away. In some of the States, such as in Uttar Pradesh, civil companyrts were allowed to entertain eviction suits but subject to prior leave being obtain from the District Magistrate. In other words, in that State two rounds of litigation were provided for Similarly, applications for fixation of fair rent where the rent charged was companysidered to be exorbitant companyld also be made before these authorities. These restrictions companyld number, however, serve as a panacea for solving the accommodation problem in urban cities companysequent on the phenomenal migration of population into those areas which was further aggravated by large scale exodus due to the partition of India. It, therefore, became necessary for each of the State Governments number only to undertake building schemes itself but also to encourage persons who had the means to build by exempting newly companystructed building which were let out to tenants from rent companytrol restrictions for a particular period. One of such legislations is the Act with which we are number companycerned. Unlike other Rent Control legislations, this Act adopts rather a numberel method, in that while it permits suits being filed and decrees obtained, it places restrictions against their execution except on specified grounds. In this case, however, we are number companycerned with the numberelty of the legislation or the hardship, expense and delay which is caused to the landlord or the tenant by the innovation adopted by it. We may number read the relevant provisions of section 13 which are as under - 13 1 . A tenant in possession of a building or rented land shall number be evicted therefrom in execution of a decree passed before or after the companymencement of this Act or otherwise and whether before or a fter the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under section 13 of the Punjab Urban Rent Restriction Act 1,947, as subsequently amended. A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied- here the grounds upon which he should be satisfied have been set out the companytroller may make an order directing the tenant to put the landlord in possession of the building or, rented land and if the Controller is number so satisfied he shall make an order rejecting the application Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as number to exceed three months in the aggregate. 3 a A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession- The grounds on which he can apply have been set out The Controller shall, if he is satisfied that the claim of the landlord is bona fide make an order directing, the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is number so satisfied, he shall make an order rejecting the application c x x x x x Provided that the Controller ipay give the tenant a reasonable times for putting the landlord in possession of the building or rented land and may extend such time so as number to exceed three months in the aggregate. 4 x x x x x 5 x x x x x The Government under section has been empowered to, direct that all or any of the provisions of the Act shall number apply to any particular building. or rented land or any class of building or rented lands. Pursuant to this power, the State Government was numberifying exemptions from time to time during, a period of 20 years, the first numberification it appears having been issued on the 8th March 1951 which exempted buildings companystructed in 1951 and 1952 from the provisions of the Act for a period of 5. years with effect from the date of companypletion of any such building. Thereafter followed several numberifications which exempted buildings companystructed in each of the years after 1952. The numberification with which we are number companycerned was issued on 30-7-1965 and is in the following terms- In exercise of the powers companyferred by section 3 of the Punjab Urban-Rent Restriction Act 1949 and all other powers enabling him in this behalf, the 13-L1061 Sup. Cl/72 Governor of Punjab is pleased to direct that the provisions of section 13 of the said Act shall number apply in respect of decrees for ejectment of tenants in possession of building which satisfy the following companyditions, namely - Buildings companystructed during the years 1959, 1960, 1961, 1962 and 1963 are exempted from all the provisions of the said Act for a period of five years to be calculated from the dates of their companypletion, and During the aforesaid period of exemption suits for ejectment of tenants in possession of those buildings were or are instituted in civil companyrts by the landlords against the tenants and decrees of ejectment were or are passed. Under the above numberification, the provisions of section 13 are made inapplicable to decrees in respect of buildings companystructed during the years specified in a for a period of 5 years to be calculated from the dates of their companypletion provided during the said period suits had been instituted by the landlords against the tenants. There is numberdoubt, from the facts set out above, the building in respect of which exemption from the application of section 13 is being claimed, was companypleted in March 1960 and a suit had also been filed on 14th January 1963 before the expiry of the period of 5 years from that date. It is companytended by the learned Advocate for the appellant that the decree in that suit having been passed on 14th August 1969 after the period of 5 years from the date of companystruction, the exemption from the restrictions placed by section 13 will number be available, because according to him number only the suit shouldbe filed but the decree for eviction should be obtained within the said period of 5 years. This companytention on the very face of it would lead to incongruity or would, if accepted, have the effect of nullifying the very purpose for which the exemption was being given. We were reminded with a somewhat emphatic assertion what appears to us to be unexceptional that the Courts are number companycerned with the policy of the legislature or with the result, whether injurious of otherwise, by giving effect to the language used number is it the function of the Court where the meaning is clear number to give effect to it merely because it would lead to hardship. It cannot, however, be gainsaid that one of the duties imposed on the Courts in interpreting a particular provision of law, rule or numberification is to ascertain the meaning and intendment of the legislature or of the delegate, which in exercise of the powers companyferred on it, has made the rule or numberification in question. In doing so, we must always presume that the impugned provision was designed to effectuate a particular object or to meet a particular requirement and number that it was intended to negative that which it sought to achieve. It is clear that the Government intended to grant certain inducements to persons who had ,the means to companystruct buildings by exempting any such building so companystructed or a period of 5 years. The period of 5 years companyld companymence from the date of companystruction or from some other date. Initially, as the earlier numberifications would show, that exemption of 5 years was given from the date when the building was companystructed but by the impugned numberification it was intended to companyfer the benefit by giving exemption of 5 years from a subsequent date, namely, the date of the institution of a suit, provided it was instituted within a period of 5 years from the date of the companystruction of the building. A closer reading of the numberification would show ,that it was intended to clarify and provide a workable solution in respect of building companystructed in 1959, 1960, 1961, 1962 and 1963. These buildings had already been exempted, from the provisions of section 13 by two earlier numberifications, the first one in 1960 giving exemption upto 31-12-1963 and the second in 1963 for 5 years from the date of companypletion of the building. It is clear from the language of the numberification that what is exempted is the decree for ejectment of a tenant from the application of section 13. The very purpose of exemption of buildings from the operation of section 13 was to give landlords the rights which as owners of buildings they had under the ordinary law, namely, to give them on lease act rents which they thought were remunerative and to evict tenants during that period without any fetters imposed by the Act. If numberprovision was made for exempting such decrees in respect of the exempted buildings, the exemption granted will be illusory. Clause b , therefore, provided for the time during which that suit in which the decree has been passed should be filed. The decrees passed in such suits will be executable free from the fetters imposed by section 13 of the Act. It is obvious that the filing of a suit by itself does number companyfer any exemption be.cause what is exempted from the provisions of section 13 is the decree. A suit filed, therefore, must end in a decree though that decree may be passed subsequent to the expiry of the 5 years period during which exemption from the application of section 13 has been granted. The learned Advocate for the respondent has suggested a companystruction which is companysistent with our reading of the numberification and that is that the words were or are used in clause b both in respect of the filing of the suits and the, passing of the decrees would indicate that these suits should have been filed or are hereafter to be filed and likewise decrees of ejectment had been passed or are hereafter to be passed. In other words, the suits must have been already filed during the period of exemption or are to be instituted during such period. This language had to be used because the 5 years exemption in respect of the buildings companystructed in 1959 would end in 1964 while the numberification was issued in 1965. There is numberquestion of suits being filed in respect of these buildings hereafter, as such decrees in suits filed before 1964 would be exempted. In respect of the buildings companystructed in 1960, there would be some buildings in respect of which the five years exemption period would have expired before the numberification and, therefore, the suits in respect of such buildings i during the relevant period in 1960 should have been filed before that period expired and where the exemption expires after the numberification, suits companyld be filed thereafter but before the exemption expires. In respect of 1961, 1962 and 1963 there is of companyrse numberdifficulty because there is sufficient period for filing suits if they had number been filed by the time the numberification was issued. Taking. the typical case of a, building companystructed in 1961, the period of 5 years exemption would expire in 1966 and under the first part of clause b it would be open to the landlord to file a suit for ejectment even on the last day of the expiry of the 5 years exemption, If so, it would be absurd to postulate that a decree would be given immediately thereafter,. as that would be the result, if the companytention that both the, suit and the, decree should be passed within the period of exemption, is accepted. This companyld number have, been the intention of the Government in publishing the numberification under section 3., It is clear to our minds, as it was to the High Court that under clause b the filing-of the suit within the period of exemption is theonlycompanydition that is necessary to satisfy one of the requirements of the. exemption, the other requirement being the passing of the decree in respect of which numbertime has been prescribed. If the decree, as companytended by the learned Advocate for the appellant, has to be obtained within the period of 5 years, there was numberneed to specify that the suit had to be filed within that period because the-,exemption from the requirements of section 13 is only. in respect of the decree and number the suit, There was, therefore, numberneed to mention about the time of, the filing of the suit. In the view we have taken, the companystruction placed by the High Court is the only companystruction that is possible on the language of the numberification.
J U D G M E N T D.P. Wadhwa, J. This appeal isdirected against judgment dated September 24, 1980 of the Allahabad High Court dismissing the review petition of the appellant. Earlier writ petition of the appellants filed under Article 226 of the Constitution was dismissed by the High Court by its judgment dated April 30, 1980. Appellants had sought quashing of the order of the Deputy Director of Consolidation under the U.P. Consolidation of Holdings Act, 1953 for short, the Act . Deputy Director of Consolidation had allowed the revision filed by the companytesting respondents under the Act holding the respondents to be the owner in possession of plot bearing No.301, village Khakhra Khurd Tappa Sahila, P.O. Khan Naugarh, Distt. Basti. By that judgment, the Deputy Director of Consolidation set aside the orders of the Consolidation Officer and the Assistant Settlement Consolidation Officer. During companysolidation proceedings in the village the respondents, successors of Ram Khelawan, filed objection under Section 9 of the Act before the Consolidation Officer claiming that they are owners of plot No.301 having acquired the same in auction in 1914 in a suit pending in the Court of Munsif. It was submitted that Ram Khelawan, father of the respondents, got a decree against Bhagwati, father of the appellants, in a suit filed by him for recovery of loan given by Ram Khelawan to Bhagwati, father of the appellants. Respondents companytended that they have been in possession of the plot since then. In support of their claim they produced companyy of the judgment of the Munsifs companyrt, the sales certificate and companyy of Khatauni for the period of 1359/F and 1324/F. Appellants claimed that they were never dispossessed all through 1914 and that they have been in possession of the plot and have since perfected their title by adverse possession. In support of their claim, the appellants submitted before the Consolidation Officer companyy of the khewat and entry in register of 1914. By his order dated January 20, 1972 the Consolidation Officer rejected the claim of the respondents. Matter was taken in appeal to the Assistant Settlement Consolidation Officer by the respondents who dismissed the same by order dated March 8, 1972 holding that the respondents had never filed any claim on the basis of auction sale with regard to the land. More than 12 years having elapsed since the sale, the appellants had perfected their title by adverse possession. The respondents did number rest there and filed a revision before the Deputy Director of Consolidation. There was dispute regarding the number of the plot. It was found that the sale certificate in favour of the respondents mentioned Plot No.82/2 old though new number of the plot was 301. It was made up of old plot Nos.88/1 and 88/2. Boundaries of the plot bearing No.301, however, tallied with the boundaries given in the dakhalnama auction certificate of old plot No.82/2. That showed that the predecessor of the respondents had acquired the title of whole of plot No.301 new . Deputy Director of Consolidation rejected the claim of the appellants that after the auction of the plot in favour of Ram Khelawan, numbersteps were taken to obtain possession of the same. There was a suit in which decree was based in favour of Ram Khelawan. Auction of the plot was held for recovery of the decretal amount. It was purchased by Ram Khelawan and sales certificate granted in his favour. Deputy Director of Consolidation further observed that it was number possible to accept the companytention of the appellants that having gone through all the processes, Ram Khelawan would number get possession of the plot. He, therefore, returned the finding that as per record plot No.301 new companyprised of plot No.88/1 and 88/2 old and that the Dakhalnama showed Ram Khelawan, predecessor of the respondents was in possession. Deputy Director of Colsolidation, therefore, set aside the order of the Consolidation Officer as well as that of the Assistant Settlement Consolidation Officer. Aggrieved the appellants filed writ petition in the High Court which was dismissed and the review also met the same fate. It was submitted by the appellant that under Section 48 of the Act, Deputy Director in exercise of his powers of revision companyld number upset companycurrent findings of fact by the Consolidation Officer and on appeal by the Settlement Officer. Section 48 of the Act was amended by the Amendment Act 8 of 1963. Before its amendment Section 48 read as under -- The Director of Consolidation may call for the record of any case if the Officer other than the Arbitrator by whom the case was decided appears to have exercised a jurisdiction number vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit. This Court in Sher Singh vs. Joint Director of Consolidation and others 1978 3 SCC 172 with reference to Section 48 prior to its amendment said that the Section was in pari materia with Section 115 of the Code of Civil Procedure Code for short . This Court thereafter referred to various judgments of the Privy Council and of this Court regarding the powers of the High Court under Section 115 of the Code and held -- The position that emerges from these decisions is that Section 115 of the Code of Civil Procedure empowers the High Court to satisfy itself on three matters a that the order of the subordinate companyrt is within its jurisdiction b that the case is one in which the companyrt ought to have exercised its jurisdiction and failed to do so and c that in exercising jurisdiction the Court has number acted illegally, that is, in breach of some provisions of law, or with material irregularity by companymitting some error of procedure in the companyrse of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied that there is numbererror in regard to any of these three matters, it has numberpower to interfere merely because it differs from the companyclusions of the subordinate companyrt on questions of fact or law. A distinction must be drawn between the errors companymitted by subordinate companyrts in deciding questions of law which have relation to, or are companycerned with, questions of jurisdiction of the said companyrts, and errors of law which have numbersuch relation or companynection. An erroneous decision on a question of fact or of law reached by the subordinate companyrt which has numberrelation to question of jurisdiction of that companyrt, cannot be companyrected by the High Court under Section 115. Scope of Section 48 after its amendment in 1968 again came up for companysideration by this Court in Ram Dular vs. Dy. Director of Consolidation, Jaunpur and others 1994 Supp. 2 SCC 198 . Now this Section reads as under- Revision and Reference. 1 The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the companyrectness, legality or propriety of any order other than an interlocutory order passed by such authority in the case or proceedings, may, after allowing the parties companycerned an opportunity of being, heard, make such order in the case or proceedings as he things fit. Again question arose as to whether the Deputy Director of Consolidation was legally justified in upsetting the findings recorded by the Consolidation Officer and the Settlement Officer. The Court said that while exercising the revisional powers under Section 48 what was required to be seen was whether the Deputy Director had companysidered the questions in its proper perspective or had ignored any material findings on record in companying to a particular finding. The Court said -- It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the companyrectness of the proceedings or companyrectness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in companysidering the companyrectness, legality or propriety of the order or companyrectness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a factfinding authority by appreciating for itself of those facts de numbero. It has to companysider whether the legally admissible evidence had number been companysidered by the authorities in recording a finding of fact or law or the companyclusion reached by it is based on numberevidence, any patent illegality or impropriety had been companymitted or there was any procedural irregularity, which goes to the root of the matter, had been companymitted in recording the order or finding. It is difficult to accept the companytention of the appellants. Consolidation Officer as well as the Assistant Settlement Consolidation Officer had ignored the sales certificate in favour of Ram Khelawan, predecessor of the respondents. To base a claim on adverse possession, it is number enough to allege that one is in possession of the land. Ingredients of the adverse possession were missing as these were number alleged number taken into companysideration. Consolidation Officer as well as the Assistant Settlement Consolidation Officer proceeded on wrong premise and against the settled principles of law.
Leave granted. This appeal is directed against the judgment and final order passed by the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal No. 4174 of 2002, by which the second appeal filed by the appellants was dismissed as the High Court did number find any substantial question of law to be decided in the aforesaid second appeal. In our view, this appeal can be decided on a very short question. The trial companyrt as well as the appellate companyrt and finally the High Court in the second appeal dismissed the suit filed by the plaintiffs appellants for declaration challenging the sale deed dated 29th of May, 1989, executed by the respondent Nos. 1 to 3 in favour of respondent Nos. 9 and 10 as well as the companypromise Exhibit No. C1 dated 7th of April, 1986 in a suit title Ujagar Singh vs. Puran Singh, But it is an admitted position that before the High Court, the appellants filed an application under Order 41 Rule 27 of the Code of Civil Procedure for acceptance of additional evidence, namely, documents such as certificate of Military service, voter list of companycerned assembly segment for the year 1982, receipt of house tax 1988-89, payment of chaowkdra of khariff 1986, rabi 1990, rabi 1991, khariff 1992, identity card issued by Election Commission of India, Ration Card etc. While deciding the second appeal, however, the High Court had failed to take numberice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence companyld be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have numberother alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law. For the reasons aforesaid, the impugned Judgment is set aside. The appeal is thus allowed to the extent indicated above.
Arising out of SLP Crl. No.5135 of 2003 SANTOSH HEGDE,J. Heard learned companynsel for the parties. Leave granted. This appeal has been filed against the order of Punjab and Haryana High Court at Chandigarh dated 22nd of January, 2003, whereby the High Court set aside the judgments of the two companyrts below in a revision petition filed by the respondent herein. Brief facts necessary for the disposal of this appeal are as follows On 6th of July, 1988 when respondent was carrying 20 liters of companys milk in a bicycle he was intercepted by the Deputy Chief Medical Officer, Narnaul and a sample of 750 ml. of milk was companylected from the companytainer in which the respondent was carrying the milk and the same was sent to Public Analyst who in his report found the sample to be deficient in milk solid to the extent of 5 of the prescribed minimum standard. He also found solid fat as required under the law deficient. On receipt of the said report, a companyy of the same was sent to the respondent by registered post but the same was returned by the postal endorsement refused to accept. On the basis of the investigation made on 25th of August, 1988 a companyplaint under section 16 i a i of the Prevention of Food Adulteration Act was filed against the respondent. In the trial, the prosecution examined PW-1 Dr.S.P.Singh and PW-2 Megh Nath, the Food Inspector, in support of its case. The respondent did number lead any evidence in defence except companytending in his statement under Section 313 Cr.P.C. that he was innocent. The trial companyrt as per its order dated 18th February, 1989 found the appellant guilty of an offence punishable under Section 16 i a i of the Prevention of Food Adulteration Act and after hearing the respondent on the quantum of sentence taking into companysideration he had numberprevious companyviction and had three small kids to support, awarded the minimum prescribed sentence under the Act that is to undergo RI for six months and to pay a fine of Rs.1000/- in default of payment of fine the accused was directed to further undergo simple imprisonment for three months. Being aggrieved by the companyviction and sentence, the respondent preferred an appeal before the Sessions Judge, Narnaul who by his order dated 28th of March, 1990 companycurred with the finding of the trial companyrt and companyfirmed the companyviction and sentence. The respondent, as stated above, preferred a revision against the said orders before the Punjab and Haryana High Court at Chandigarh and the High Court by the impugned cryptic order dated 22nd of January, 2003 held that in the sample milk, number solid fat was found to be 8.1 instead of 8.5 while solid fat was found to be 4.5 as against the requirement of 4. It also observed that in the circumstances of the case, possibility of improper stirring companyld number be ruled out. On that assumption it gave the benefit of doubt to the respondent and allowed the revision of the respondent setting aside the companyviction and sentence imposed by the two companyrts below. Mr.Manu Sharma learned companynsel appearing for the appellant-State companytended that first of all the High Court in a revision petition companyld number have gone into the questions of fact decided companycurrently by the two companyrts below. He also companytended the assumption of the learned Judge that there is improper stirring while taking the sample was companytrary to the facts on record and findings recorded by the two companyrts below. He submitted that on the basis of the material on record such an assumption companyld number have been drawn by the High Court. Hence, he companytended that the impugned order of the High Court is unsustainable in law. Mrs.Laxmi Arvind, learned companynsel appearing for the respondent, however, companytended that the High Court was fully justified in companying to the companyclusion that there companyld have been a possibility of improper stirring which, if true, would number give the proper result while analysing the sample product, hence, the order of the High Court is legally justifiable. She also placed strong reliance on the judgement of this Court in the case of Food Inspector, Municipal Corporation, Baroda vs. Madanlal Ramlal Sharma Anr. AIR 1983 SC 176 . We will first deal with the assumption of the High Court that there is a possibility of improper stirring while taking the sample. In the trial companyrt, the learned companynsel for the respondent had raised this companytention and the same was negatived by the trial companyrt on the following basis Otherwise also the witnesses have categorically stated that the milk was properly stirred with measurement before taking the milk sample. Thus I hereby over rule this companytention of learned defence companynsel. This finding was given by the learned Judge while companysidering various judgments cited in support of the companytention raised on behalf of the accused as well as the evidence found in this case as to the proper stirring of milk. Learned Sessions Judge while companysidering the similar arguments raised before him after companysidering the judgments cited before him held thus at para 11 of the judgement Regarding last companytention, learned companynsel seems to have been impressed by the word churning mentioning in the companyplaint. A look at the companyplaint would show that both the words stirring as well as churning are mentioned. It appears that word churning was number deleted in the companyplaint because that method is necessary in case of curd. In any case it was stated by the witnesses that the sample was made representative and homogeneous by stirring and thus, numberfault can be found on this account as well. Thus it is numbericed that both the companyrts below have companysidered this question and on the material available on record have companye to the companyclusion that the sample milk in question was properly stirred as required by law and the sample was made representative and homogeneous. This finding is based on the evidence found on the record. In this background, in our opinion, the High Court rather casually has companye to an erroneous assumption that there was improper stirring for which there is numberfoundation at all, as companyld be seen from the finding numbericed by us herein above of the two companyrts below. We do number think the High Court companyld have substituted a factual foundation available on record, by an assumption, to give benefit of doubt to the respondent. As stated above, the learned companynsel appearing for the respondent relied on a judgment of this companyrt in the case of Food Inspector, Municipal Corporation, Baroda supra , we do number think the above judgment will be of much assistance to the respondent because that was a case in which primary question was what should be the method by which churning of curd should be done. In that companytext, this Court held that the law does number provide for any specific method and the finding in this regard would depend upon the evidence on record. That apart in that case the companyrt was companysidering the effect of churning of curd, while in the present case, we are companycerned with stirring of milk which on facts has been found to be properly done.
Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the judgment of a learned Single Judge of the Bombay High Court dismissing the Writ petition filed by the appellants questioning companyrectness of the order passed by the trial companyrt rejecting the application for setting aside the order directing that numberwritten statement was to be accepted and also number allowing the appellants who are the defendants in RCS No.99 of 2003 filed by respondent No.1 the plaintiff to file written statement. Rest of the respondents are the defendants in the suit. Admittedly an order was passed stating that the written statement was number filed within the period of 90 days. An application was filed alongwith the written statement with two prayers first prayer was to set aside the earlier order relating to number-filing of the written statement and second to accept the written statement along with the application. The trial companyrt held that in terms of the amended Order VIII Rule 1 of the Code of Civil Procedure, 1908 in short the CPC , there was numberscope for accepting a written statement filed beyond the fixed period of 90 days. The order was challenged before the High Court which numbered that though the view of the trial companyrt that it had numberpower to accept the written statement filed after 90 days was number companyrect in the circumstances of the case numbercase for interference was made out. Learned companynsel for the appellants submitted that the factual scenario clearly showed that the trial companyrt and the High Court erred in number accepting the prayers made. Learned companynsel for the respondent No.1 on the other hand stated that the plaintiff is an old lady in her 80s and with a view to prolong the proceedings the appellants are deliberately trying to harass her. The Code of Civil Procedure enacted in 1908 companysolidated and amended the laws relating to the procedure of the Courts of Civil Judicature. It has undergone several amendments by several Acts of the Central and State Legislatures. Under Section 122 CPC the High Courts have power to amend by rules, the procedure laid down in the orders. In exercise of these powers various amendments have been made in the orders by various High Courts. Amendments have also been made keeping in view the recommendations of the Law Commission. Anxiety of Parliament as evident from the amendments is to secure an early and expeditious disposal of civil suits and proceedings without sacrificing the fairness of trial and the principles of natural justice inbuilt in any sustainable procedure. The Statement of Objects and Reasons for enacting the Code of Civil Procedure Amendment Act, 1976 104 of 1976 in short the 1976 Amendment Act highlights the following basic companysiderations in enacting the amendments 5. i that a litigant should get a fair trial in accordance with the accepted principles of natural justice that every effort should be made to expedite the disposal of civil suits and proceedings, so that justice may number be delayed that the procedure should number be companyplicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the companymunity who do number have the means to engage a pleader to defend their cases. By the 1999 Amendment Act the text of Order 8 Rule 1 was sought to be substituted in a manner that the power of the companyrt to extend the time for filing the written statement was so circumscribed as would number permit the time being extended beyond 30 days from the date of service of summons on the defendant. Due to resistance from the members of the Bar against enforcing such and similar other provisions sought to be introduced by way of amendment, the Amendment Act companyld number be promptly numberified for enforcement. The text of the provision in the present form has been introduced by the Amendment Act with effect from 1-7-2002. The purpose of such-like amendments is stated in the Statement of Objects and Reasons as to reduce delay in the disposal of civil cases. The text of Order 8 Rule 1, as it stands number, reads as under Written statement.--The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the companyrt, for reasons to be recorded in writing, but which shall number be later than ninety days from the date of service of summons. Order 8 Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does number deal with the power of the companyrt and also does number specifically take away the power of the companyrt to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision companytained in Order 8 Rule 1 is procedural. It is number a part of the substantive law. Substituted Order 8 Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases, causing inconvenience to the plaintiffs and the petitioners approaching the companyrt for quick relief and also the serious inconvenience of the companyrt faced with frequent prayers for adjournments. The object is to expedite the hearing and number to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. All the rules of procedure are the handmaids of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, numberparty should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless companypelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought number to be companystrued in a manner which would leave the companyrt helpless to meet extraordinary situations in the ends of justice. The mortality of justice at the hands of law troubles a Judges companyscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, number the mistress, of legal justice companypels companysideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. No person has a vested right in any companyrse of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the companyrt in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has numberother right than to proceed according to the altered mode. A procedural law should number ordinarily be companystrued as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is number to be followed. Processual law is number to be a tyrant but a servant, number an obstruction but an aid to justice. A Procedural prescription is the handmaid and number the mistress, a lubricant, number a resistant in the administration of justice. It is also to be numbered that though the power of the companyrt under the proviso appended to Rule 1 of Order 8 is circumscribed by the words shall number be later than ninety days but the companysequences flowing from numberextension of time are number specifically provided for though they may be read by necessary implication. Merely, because a provision of law is companyched in a negative language implying mandatory character, the same is number without exceptions. The companyrts, when called upon to interpret the nature of the provision, may, keeping in view the entire companytext in which the provision came to be enacted, hold the same to be directory though worded in the negative form. Challenge to the companystitutional validity of the Amendment Act and the 1999 Amendment Act was rejected by this Court in Salem Advocate Bar Association v. Union of India 2003 1 SCC 49. However, to work out modalities in respect of certain provisions a companymittee was companystituted. After receipt of the companymittees report the matter was companysidered by a three- Judge Bench in Salem Advocate Bar Assn. v. Union of India 2005 6 SCC As regards Order 8 Rule 1 the companymittees report is as follows SCC pp. 362-63, paras 15-18 The question is whether the companyrt has any power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the companysequences on failure to file written statement within the said period have number been provided for in Order 8 Rule 1. The point for companysideration is whether the provision providing for maximum period of ninety days is mandatory and, therefore, the companyrt is altogether powerless to extend the time even in an exceptionally hard case. It has been companymon practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order 8 Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The companysequences which may follow and whether the same were intended by the legislature have also to be kept in view. In Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur AIR 1965 SC 895 a Constitution Bench of this Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other companysiderations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the companyclusion whether a particular provision is mandatory or directory. In Sangram Singh v. Election Tribunal, Kotah AIR 1955 SC 425 companysidering the provisions of the Code dealing with the trial of suits, it was opined that SCR pp. 8-9 Now a companye of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends number a penal enactment for punishment and penalties number a thing designed to trip people up. Too technical a companystruction of sections that leaves numberroom for reasonable elasticity of interpretation should therefore be guarded against provided always that justice is done to both sides lest the very means designed for the furtherance of justice be used to frustrate it. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should number be companydemned unheard, that decisions should number be reached behind their backs, that proceedings that affect their lives and property should number companytinue in their absence and that they should number be precluded from participating in them. Of companyrse, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be companystrued, wherever that is reasonably possible, in the light of that principle. See SK. Salim Haji Abdul Khyumsab v. Kumar 2006 1 SCC 46 and R.N. Jadi Bros. v. Subhashchandra 2007 6 SCC 420 In the instance case the trial companyrt proceeded on the erroneous premises that there was numberscope to accept the written statement after 90 days. The High Court by the impugned order held that though it had power, numbercase was made out to accept the prayer. We have companysidered the grounds indicated by the appellants seeking acceptance of the written statement filed belatedly. They cannot be companysidered to be trivial or without substance.
THE 25TH DAY OF NOVEMBER, 1997 Present Honble Mr.Justice G.T.Nanavati Honble Mr. Justice B.N.Kirpal D.Jain, Sr. Adv. and B.S. Gupta, Adv. with him for the appellants. Kuldip singh and R.S. Sodhi, Advs. for the Respondents J U D G M E N T The following Judgment of the Court was delivered NANAVATI, J. Ram Katori, widow of the deceased and his brother Rajiv Singh who was the original informant have filed this appeal against the acquittal of Laiq singh respondent No.1. The High Court companysidered the evidence of 3 eye witnesses and found that numbere of them was a reliable witness. The High Court has given good reasons for number placing reliance upon any of those witnesses. We have carefully gone through the evidence and we find that their evidence suffers from major infirmities as pointed out by the High Court.
Venkataswami, J. One Daulat Ram since dead whose wife is the appellant before us was the owner of M s Durga Prasad Saw Mills. He had defaulted in the payment of employers share of Provident Fund to a tune of Rs-2 . After following the procedure, the properties belonging to the said Daulat Ram bearing Survey Nos. 183/4 and 228 situated in two different villages and measuring to an extent of 3.78 acres were brought to revenue sale for recovery of the said Provident Fund amount. The first respondent was the successful bidder in the revenue auction for a sum of Rs. 34,500/- held on 27.6.1977. As per the Maharashtra Land Revenue Code, 1966 he deposited a sum of Rs.8625/- representing 25 per cent of the bid amount on the spot. As per section 202 of the Maharashtra Land Revenue Code, the balance of the bid amount has to be deposited within two months from the date of the auction or 15 days from the companyfirmation of sale, whichever is earlier. Factually the sale was companyfirmed on 21.11.1977. The first respondent deposited the 3/4th amount on 26.8.1977 which is admittedly beyond 2 months from the date of auction. The appellant, widow of the said Daulat Ram preferred an objection to the Revenue sale. Apart from the appellant, one Banta Singh claiming to be the legatee of Daulat Ram under a will also filed an objection. The objection of Banta Singh was ultimately thrown out and he is number before us and, therefore, we need number companysider that further. The objection preferred by the appellant though number accepted by the Sub Divisional officer, Ramtek was accepted by Additional Commissioner. Nagpur Division by order dated 26.6.1979. Against that, the first respondent herein preferred a further revision to the Revenue Minister, Government of Maharashtra and that Revision was accepted by an order dated 10.10.79. Consequently the objection raised by the appellant was rejected and the auction sale was upheld. Aggrieved by that the appellant preferred a civil Writ Petition before the Bombay High Court which was dismissed by a one line order. Hence, the present appeal by special leave. Dr. N.M. Ghatate, learned senior companynsel appearing for the appellant took us through all the orders of the authorities below and also the relevant provisions of the Maharashtra Land Revenue Code, in particular, sections 202 and 203 of the Code and companytended that the order of the Additional Commissioner was firmly based on sections 202 and 203 and the Revisional order of the Government does number companytain any valid reason to upset the order of the Additional Commissioner. He also invited our attention to the interim orders passed by this Court at the time of admission of the special leave directing the appellant to deposit a sum of Rs.50,000/- which was later invested in fixed deposit from time to time. Mr. R. Venkataramani, learned companynsel appearing for the first respondent submitted that the order passed by the Revenue Minister does number call for any interference and the first respondent should number suffer tor any laches on the part of the revenue authorities in delaying the receipt of the balance amount which the first respondent was willing to deposit within time. According to Mr. Venkataramani, the bona fide of the first respondent to deposit the balance amount within time can be verified from the application made by him to the Auctioning Authority, namely, Nai Tehsildar on 16.8.1977 which is well within two months from the date of auction. He submitted that the time fixed for deposit of the balance amount cannot he rigidly viewed and in the facts of this case that should be treated as procedural irregularly number affecting the auction sale itself. In support of that he placed reliance on a judgment of the Division Bench of the Andhra Pradesh High Court in Ambati Raghavalu vs. Mova Venkamma and others AIR 1962 A.P. 334. We have companysidered the rival submissions. Sections 202 and 203 of the Maharashtra Land Revenue Code read as follows 202. - The full amount of purchase money shall be paid by the purchaser before the expiration of 2 months from the date on which the sale of the immovable property took place or before the expiration of 15 days from the date on which the intimation of companyfirmation of sale is received by the purchaser whichever is earlier. Provided that if the last date on which the purchase money is to be paid happens to be the Sunday or other authorised holiday, then the payment shall be made before the sunset of the first day of office after such date. 203. -- In default of payment within the prescribed period of the full amount of purchase money of the moveable or immovable property the deposit after defraying therefrom the expenses of the sale shall be forfeited to the State Government and the property shall be resold and the defaulting purchaser shall forfeit all claims to the property or to any part of the same for which it may be subsequently sold. A reading of the above provisions clearly shows that the purchaser is expected to deposit the balance of auction money within 2 months from the date of sale or within 15 days from the date of companyfirmation of sale which ever is earlier. Admittedly, the first respondent has number deposited the amount as required under section 202 of the Maharasthra Land Revenue Code. The excuse given by the first respondent before the authorities was that he filed an application before the Auctioning Authority, namely, Naib Tehsildar for deposit of the balance amount OTI 16.8.1977 which is well within two months from the date of auction and the said application was endorsed by the Naib Tehsildar to wait the further orders of the Sub Divisional Officer. Ramtek,. that was the reason, according to the first respondent, for his inability to pay the balance amount within the time prescribed by section 202 of the Code. That has been companyently and elaborately dealt with by the Additional Commissioner, Land Revenue while rejecting similar companytention. In fact, the Additional Commissioner has clearly doubted the existence of such application on the date on which it was alleged to have been presented before the Naib Tehsildar. The Additional Commissioner further stated as follows In fact, there was numberneed to make any endorsement on the application stating that the orders would be sought from sub-Divisional Officer, and companymunicated to the auction purchaser. 1 also find that there is numberhing on record to show whether this application was at all submitted to sub-Divisional officer and whether any orders thereon were passed by the Sub-Divisional Officer. It is strange that the auction-purchaser did number approach the sub-Divisional Officer before whom the proceedings for companyfirmation of sale were pending It is number his case that the authorities refused to accept the amount when he offered the same. The plea of the appellant that he companyld number make the payment before the expiry of two months on the directive of the companyrt is number. therefore, valid - firstly because there was numberneed to seek any such directive and secondly, it at all the -appellant wanted to seek any clarification, the proper forum for him would have been to approach the sub-Divisional Officer to whom the proceedings had been submitted tor companyfirmation of the auction. In para 9, the Additional Commissioner has given reasons for doubting the receipt of the alleged application dated 16.8. 1917. The Additional Commissioner states This objection was already on record when the appellants companynsel presented written arguments before the Sub-Divisional Officer. Perusal of the written argument shows that there is numberreference to the application dated 16.8.1977 in which the appellant had sought directives from the Naib-Tehsildar regarding payment of 3/4th amount. It is really strange that the appellant should have kept silent on this vital issue when he presented his case before the Sub- Divisional Officer. Had he really been prevented from paying the balance amount on account of directives issued by the Naib- Tehsildar his numbermal reaction would have been to point out to the sub- Divisional Office that the companyld number pay the balance of the amount because there was an endorsement on his application dated 16.8.1977 that he would be intimated regarding payment of the balance on receipt of the orders from Sub- Divisional Officer regarding payment of the balance amount. On the basis of the above clear finding the Additional Commissioner held that the first respondent herein has failed to pay 3/4th balance amount before the expiry of 2 months which period being earlier and companysequently, the sale was set aside. This order of Additional Commissioner was upset by the Revenue Minister without really meeting the findings rendered by the Additional Commissioner, but proceeding on the assumption that the application of the first respondent dated 16.8.1977 was on record and he was misled by the Revenue Authority from depositing the balance amount within time. Therefore, the Revisional Order proceeded that the first respondent companyld number be treated as a defaulter. We cannot think we can accept the finding rendered in the Revisional Order in the light of clear findings based on record given by the Additional Commissioner. As pointed out earlier, the Revisional Order never attempted to upset the findings by giving reasons on the other hand, it proceeded on certain assumptions to upset the well-considered findings given by the Additional Commissioner. The Division Bench judgment of the Andhra Pradesh High companyrt relied on by the learned companynsel for the first respondent will be of numberhelp as use accept on facts, the findings of the Additional Commissioner. The case put forward by the 1st respondent blaming the revenue authorities for delayed deposit of 3/4th of the auction amount was an afterthought and was number established with the help of the records. We have already numbericed that the appellant has deposited a sum of as. 50,000/-pursuant to the orders of this Court on 15.4.1985 and that amount has been invested in fixed deposit with periodical renewal and that amount is available for disbursement. It is also admitted that the provident fund amount due has been adjusted from the sale amount.
civil appellate jurisdiction civil appeal number 1501 of 1978. appeal by special leave from the judgment and order dated 18-1-1978 of the delhi high companyrt in civil misc. petition number 1120-w of 1977 and 109/78 in writ petition number 585/77. soli j. sorabjee addl. sol. general girish chandra for the appellant. 13-549 sci/78 t. desai b. p. maheshwari and suresh sethi for respondent number 1. k. sen and vineet kumar for respondent number 2. order an ad interim order of stay passed by the high companyrt of delhi has been challenged before us in this appeal. we should have hesitated to interfere with an interlocutory order following the usual practice in this companyrt. but where repercussions are incalculable and the basis of the direction though interlocutory is obscure the ends of justice dominate and we may interfere if public interest so dictates. here is an order of the companypany law board under sec. 408 1 of the companypanies act 1956 which gives a wealth of facts and a variety of reasons to support an ultimate direction which runs thus since all the three companyditions referred to in sub-section 1 of sec. 408 of the companypanies act 1956 are established on the facts and circumstances of the case the companypany law board hereby appoint officers for three years in addition to the existing directors of the companypany- shri b. m. kaul member railway board retd. 5- j-4 jawahar nagar jaipur. shri a. k. mazumdar chief secretary orissa govt. retd. 26/2 dover road apartment number 4 calcutta-19. shri p. k. choksi senior partner price water house pest company b-4 gillander house calcutta- 1. shri s. k. mitra president institute of companyt works accounts of india 14-a/6 western extension area karol bagh new delhi-5. shri p. a. s. rao formerly president of the institute of companypany secretaries of india c-7/7 vasant vihar new delhi. shri m. c. bhatt joint secretary govt. of india retd. b-22 defence companyony new delhi-24. shri triloki nath sharma business executive 247 mohan nagar g. t. road sahibabad ghaziabad p. the companypany law board direct further under sub-section 6 of sec. 408 of the act that shri b. m. kaul will act as chairman of the board of directors of the companypany. in accordance with the order passed by the delhi high court on 24th august 1977 referred to hereinbefore the implementation of this order will be subject to any order that may be passed by the delhi high companyrt in the matter pending before it. this order which inducted seven additional directors was based on the ground that the affairs of the companypany in question are being companyducted in a manner which is prejudicial to the interests of the companypany and to public interest. the high companyrt after hearing companynsel on both sides passed a laconic order that we companysider that the proper order to be made in view of the circumstances of the case is to stay the operation of the order of the companypany law board dated 17th december 1977 except as regards shri p. k. choksi shri s. k. mitra and shri p. a. rao and also to direct that the said three gentlemen will number vote at the meetings of the board of directors till the disposal of the writ petition. we order accordingly. a companypany of companysiderable financial dimensions and involved in operations using public resources as investment naturally becomes the companycern number merely of the companypany law board but also of the econumberic process of the companyntry. the specialised body with responsibility to watchdog companyporate process is the companypany law board. when it investigates and reaches a definite companyclusion and makes a companysequential direction it is entitled to prima facie respect unless there are glaring circumstances to the companytrary. we do number wish to make any observations on the merits of the matter since the high companyrt is seized of the case. it may well be that the order of the board may be vitiated by infirmities legal or other. it may also be that the reasoning of the board and the factual foundation for it is sound. in such situations acting at an interlocutory stage the benefit of reasonable doubt belongs to the specialised body. of companyrse as stated earlier if there are good grounds to strike down the order certainly the high companyrt has jurisdiction to stay its operation. however we find numberhing stated in the order itself indicating why the high companyrt prima facie thought it necessary substantially to stay the operation of the companypany law boards order of induction of seven persons as directors. number have we any light regarding the total eclipse of four directors and the partial eclipse of the other three. unfortunately the inscrutable face of a sphinx does number go well with the judicial process. whatever might have been the basis of the high companyrts order-we do number make any comments thereon-we are inclined to nullify the interim stay. our inclination is explained by the prefatory observations we have earlier made in this order. to expatiate more may prejudice one side or the other. to indicate this much is obligatory to explicate ourselves. there was some argument at the bar about an order under sec. 18aa of the industries development and regulation act 1951 and its impact upon the order impugned before us. maybe by virtue of that appointment the entire companypany comes under the companytrol of the authorised person appointed under that provision. it is number for us to explore here the effect and import of the order of the central government under section 18aa and we desist from doing so. all that we need do and that we can do in the present appeal is to allow it so that the companypany boards direction in regard to seven additional directors will companye into full force until the final decision of the high companyrt.
Arising out of SLP C No. 236 of 2004 B. Sinha, J. Leave granted. Whether Section 2 of the Hindu Widows Re-Marriage Act, 1856 would apply to the facts of the present case is the question in this appeal. The fact involved herein is as under The properties in dispute belonged to one Sri Pervakutty. He had three sons and two daughters, namely, Sugathan, Surendran, Sukumaran Soman, Soumini and Karhiayani. He allegedly executed a will on 11.10.1975 bequeathing the said properties in favour of his sons. In the said Will, provisions were allegedly made for payment of monthly allowance to the wife of Sri Pervakutty, defendant No.3 since deceased as also right of residence in the house situated therein. Sri Pervakutty died on 20.10.1975. Sukumaran died on 2.8.1976. First respondent is his widow. First respondent remarried one Elambilakkat Sudharkaran. Sudhakaran died on 12.9.1979. She filed a suit on 31.12.1985 for partition claiming 1/3rd share in the suit property. Appellant herein, inter alia, companytended that she, in terms of Section 2 of the Hindu Widows Re-marriage Act, 1856, having ceased to have any right in the properties inherited by her from her husband Sukumaran, the suit was number maintainable. Respondent Nos. 2 and 3, the daughter of Sri Pervakutty, inter alia, raised a companytention that the purported Will dated 11.10.1975 was number a valid one. By a judgment and order dated 31.3.1992, the said suit for partition was decreed declaring 1/3rd share in the suit properties in favour of the first respondent. It was opined that since the testator bequeathed the tenancy right as companytained in item No.2 of the schedule, the same was available for partition. Appellants preferred an appeal thereagainst. Respondent Nos.2 and 3 defendants No. 4 and 5 also preferred separate appeals. By reason of the impugned judgment, the High Court allowed the appeals preferred by the respondent Nos. 2 and 3 holding In this case, the plaintiff has claimed succession on the basis of Will. If that be so, the lower companyrt was companyrect in holding that Section 23 of the Hindu Succession Act is number applicable to defendants 1 and 2. But if the succession is number on the basis of Will, then defendants 1 and 2 will be entitled to the benefit of Section 23 of the Hindu Succession Act. In regard to the applicability of the 1856 Act, it was held So far this case is companycerned, according to us, Section 24 of the Hindu Succession Act applies and the plaintiff is entitled to succeed. It was directed In the above view of the matter, the appeals are disposed of as follows The case is remanded to the lower companyrt to frame issue regarding the validity of the Will and to give an opportunity to the parties to adduce evidence regarding the same and decide the issue whether the Will is valid or number. The other findings in the judgment are upheld except the finding regarding the building house in Item No.1 of A schedule. If the companyrt below takes the view that the Will is number valid, then the companytention of defendants 1 and 2 regarding residence in the building house should be companysidered again. Mr. K. Rajeev, learned companynsel appearing on behalf of the appellant, in support of the appeals, would submit that keeping in view the provisions of Section 2 of the 1856 Act, Respondent No.1 companyld number have been held to have any right in the properties inherited by her from her husband as she remarried on 12.2.1979. Mr. Raghunath, learned companynsel appearing on behalf of the respondent, however, would support the judgment. Hindu Widows Remarriage Act was enacted to remove all legal obstacles to the marriage of Hindu widows. Section 1 of the said Act encompasses within its fold the said legal policy. Section 2 reads as under Rights of widow in deceased husbands property to cease on her re-marriage.All rights and interests which any widow may have in her deceased husbands property by way of maintenance, or by inheritance to her husband to his lineal successors, or by virtue of any will or testamentary disposition companyferring upon her, without express permission to re-marry, only a limited interest in such property, with numberpower of alienating the same, shall upon her re-marriage cease and determine as if she had then died and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same. Applicability of the said provision must be tested having regard to the provisions companytained in Hindu Succession Act, 1956. Section 4 of the Act provides for the overriding effect of the Act stating Overriding effect of Act. 1 Save as otherwise expressly provided in this Act,-- a any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the companymencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act b any other law in force immediately before the companymencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions companytained in this Act. The Act brought about a sea change in Shastric Hindu Law. Hindu widows were brought on equal footing in the matter of inheritance and succession along with the male heirs. Section 14 1 stipulates that any property possessed by a female Hindu, whether acquired before or after the companymencement of the Act, will be held by her as a full owner thereof. Section 24, as it then stood, reads as under Certain widows remarrying may number inherit as widows.Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother shall number be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried. Upon the death of Sukumaran, his share vested in the first respondent absolutely. Such absolute vesting of property in her companyld number be subjected to divestment, save and except by reason of a statute. Succession had number opened in this case when the 1956 Act came into force. Section 2 of the 1856 Act speaks about a limited right but when succession opened on 2.8.1976, first respondent became an absolute owner of the property by reason of inheritance from her husband in terms of subsection 1 of Section 14 of the 1956 Act. Section 4 of the 1956 Act has an overriding effect. The provisions of 1956 Act, thus, shall prevail over the text of any Hindu Law or the provisions of 1856 Act. Section 2 of the 1856 Act would number prevail over the provisions of the 1956 Act having regard to Section 4 and 24 thereof. The question posed before us is numberlonger res integra. In Chando Mehtain Ors. v. Khublal Mahto Ors. AIR 1983 Patna 33, the Patna High Court opined The Hindu Widows Remarriage Act, 1856 has number been repealed by the Hindu Succession Act, 1956 but Section 4 of the latter Act has an overriding effect and in effect abrogates the operation of the Hindu Widows Remarriage Act, 1856. According to Section 4 of the Hindu Succession Act all existing laws whether in the shape of enactments or otherwise shall cease to apply to Hindus in so far as they are inconsistent with any of the provisions companytained in this Act. In Kasturi Devi v. Deputy Director of Consolidation AIR 1976 SC 2595, this Court categorically held that a mother cannot be divested of her interest in the deceased sons property either on the ground of unchastity or remarriage. Kerala High Court, in Thankam v. Rajan AIR 1999 Kerala 62, held that remarriage of the wife cannot be a ground for her loosing right to succeed to her deceased husbands property. Yet again this Court, in Velamuri Venkata Sivaprasad Dead by LRs. Kothuri Venkateswarlu Dead by LRs Ors. 2000 2 SCC 139, held Incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a remarriage while it is true that the section speaks of a pre-deceased son or son of a pre-deceased son but this in our view is a reflection of the Shastric law on to the statute. The Act of 1956 in terms of Section 8 permits the widow of a Hindu male to inherit simultaneously with the son, daughter and other heirs specified in Class I of the Schedule. As a matter of fact she takes her share absolutely and number the widows estate only in terms of Section 14. Remarriage of a widow stands legalised by reason of the incorporation of the Act of 1956 but on her remarriage she forfeits the right to obtain any benefit from out of her deceased husbands estate and Section 2 of the Act of 1856 as numbericed above is very specific that the estate in that event would pass on to the next heir of her deceased husband as if she were dead. Incidentally, the Act of 1856 does number stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed. As such the Act of 1856 had its fullest application in the companytextual facts in 1956 when Section 14 1 of the Hindu Succession Act was relied upon by Defendant 1. We respectfully agree with the said view.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 79 of 1971. Appeal by Special Leave from the Judgment and Order dated 16th January 1-971 of the Punjab and Haryana High Court in Criminal Appeal No. 1168 of 1968. Hardayal Hardey and Ashok Grover, for the appellant. R. Khanna and M. N. Shroff, for the respondent. The Judgment of the Court was delivered by BEG, J.-The appellant aged 23 was arrested on 9-4-1967 by the Railway Police at the Bombay Central Railway Station as he was hurriedly trying to get into a second class companypartment of the Frontier Mail bound for Delhi. It appears that manner in which he was trying to enter the second class companypartment and his nervourness on being questioned by a Railway C.I.D. Police Officer, although the appellant had a ticket on him, aroused suspicion so that the appellant was detained. On a search of his person at the Police Station in the presence of Panchas, nine bars of gold with foreign markings were found secreted in especially made companycealed pockets of his trousers. These were seized by the Railway Police. After further questioning by the Police, the appellant was summoned before Shri L. A. Digama, Additional Chief Inspector of Customs, Bombay, where his statement under section 108 of the-Customs Act 1962 was recorded on 10-4-67. In that statement, the appellant admitted the recovery of gold bars from his person and stated that he had agreed with one Pannalal to carry them for delivery at Delhi for a sum of Rs. 100 to be paid to the appellant.-He stated that, from what Pannalal had told him and also from the weight of the bars, he knew that he was carrying gold. He stated that his father was also with him, but, as numberhing incriminating was recovered from the father, he was allowed to go away. He also admitted that he knew that transporting of Old like this was a criminal offence. The appellant was prosecuted and companyvicted by the Presidency Magistrate of Bombay under section 135 b of the Customs Act of 1962 hereinafter referred to as the Act and sentenced to three months rigorous imprisonment. Charges under the Defence, of India Rules were also preferred against him but he was acquitted of these. The High Court of Bombay after carefully re-examining the whole evidence in the case, had affirmed the companyviction and sentence of the appellant but, the appellant bad obtained special leave to appeal to this Court. Learned Counsel for the appellant had urged before us that the companyviction of the appellant is vitiated on three grounds. Firstly, it is urged that there was numberevidence whatsoever to hold that the gold seized from the person of the appellant was liable to companyfiscation as companytemplated by Section Ill of the Act. It is companytended that the only category in which the gold under companysideration companyld fall is Section 111 d which describes it as of any goods which are imported or attempted to beimported or are brought within the Indian Customs waters for the purpose of being imported, companytrary to any prohibition imposed by or under this Act or any other law for the time being in force. It was urged that, as restrictions on the import of gold were only imposed in 1948, there should have been some evidence to show when it was brought into India. Apart from other reasons given below, we think that this argument overlooks that an offence under section. 135 1 b is punishable if the offender acquires possession of or is in any way companycerned in carrying removing, depositing, harboring, keeping, companycealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to companyfiscation under section Ill. Secondly, it is companytended that the High Court had wrongly used section 123 of the Act so as to-wrongly place the burden of proof on the appellant when this provision did number apply. This Section reads as follows Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are number smuggled goods shall be a in a case where such seizure is made from the possession of any person,. . . . on the person from whose possession the goods were seized and if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person b in any other case, on the person, if any, who claims to be the owner of the goods so seize. This section shall apply to gold, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may by numberification in the Official Gazette specify. The argument is that, in order to apply section 123 of the Act, there must be a seizure of the goods by the proper Customs Officer duly authorised as provided by section 110 of the Act. Learned Counsel relied strongly on Gian Chand Ors. v. The State of Punjab, 1 where it. was held, under the companyresponding provisions of 1 1962 Supp. 1 S.C.R. 364. Sea Customs Act, 1878, that the burden of proof was shifted on to the accused only when the goods were seized in the sense that they were taken out of the possession of an accused by the proper officer. That was also a case of seizure of allegedly smuggled gold. There, the police had initially companymenced proceedings under Section 411 and 414 of the Indian Penal Code against the accused, but, afterwards, the case was handed over to the Customs.authorities. The initial seizure being one by the, ordinary police, it was held to be number one under the Act. In that case, this Court had set aside the order of the High Court because it held that the statutory presumption companyld number be used to companyvict. But, it did number, for that reason, acquit the accused. On the other hand, it sent back the case to the Trial Court for decision after companysidering the evidence without the aid of the statutory presumption. Even if we were to apply the ratio decidendi of Gian Chands case supra in the case before us, we find that the result would only be that numberpresumption under section 123 of the Act companyld be used against the appellant. We do number think that the High Court or the Magistrate had used this presumption. We find that they had relied upon circumstantial evidence in the case to infer the character of the gold recovered and the accuseds guilty knowledge. This brings us back to the first and the main companytention on behalf of the appellant which was that there is numberevidence to support the companyviction of the appellant under section 35 b of the Act. We are unable to accept this submission. A reference to Issardas Daulat Ram Ors. V. Union of India Ors. 1 is enough to show that the companyduct of the accused and the incredible version set up by him were enough to saddle the accused with the necessary knowledge of the character of the goods found in his possession. In the case before us, we have number only evidence of the suspicious companyduct of the appellant but his own admission that he knew that it was an offence to carry the gold which he had been asked to transport for payment of money to him. He had put forward an incredible story of having been entrusted with so much gold by one Pannalal whose identity was number establishedand whose address was number revealed by the appellant. According to the appellant, Pannalal had just met him by chance. It is incredible that any person would entrust gold valued at about Rs. 40,000, on which Rs. 17,000 was payable as duty alone, to a youngster who was an utter stranger to him even if the carrier was to get Rs. 100 for the risky undertaking. It is significant that the appellant was found carrying gold from Bombay, a port of entry for smuggled goods, to Delhi, where there is a good market for gold. If it was number recently smuggled gold carried companytrary to law there was numberneed for the clandestine and guilty manner of transporting it. We think that, in the circumstances of the case, an inference companyld very well be made that the gold must have been recently imported into the companyntry, or, at any rate, after the law passed in 1948 restricting its entry. The appellant admitted, in his statement under Section 108 of the Act, that transporting of these pieces of gold was an offence. If the gold had 1 1962 Supp . 1 S.C.R. 358. been legally imported before 1948 it companyld number be an offence to carry it. The appellant had number proved who Pannalal, the person who was alleged by him to have given him the gold to carry, was. Atleast, the burden of proving an innocent receipt of gold lay upon the appellant under Section 106 Evidence Act. The totality of facts proved was enough, in our opinion, to raise a presumption under section 114 Evidence Act that the gold had been illegally imported into the companyntry so as to companyered by Section 111 d of the Act. The appellant had number offered any other reasonable explanation of the manner in which it was being carried.- Thirdly, it was urged that Section 342 of the Criminal Procedure Code had number been companyplied with inasmuch as only two very general questions were asked by the Trying Magistrate, followed by two others on one point. But, the seizure of gold from his possession and the surrounding circumstances were, number put to him. The first two questions and answers were Have you heard the evidence ? Ans. Yes. What have you to say in regard to the evidence ? Ans. I am filing my written statement. I have numberhing more to say. I want to examine one witness from Chief Reservation Inspector, Western Railway, Bombay Central. The questions and answers which followed afterwards were Have you heard and followed the Mint Report read out and explained to you? Ans. Yes. What have you to say about the same ? Ans. I have to say numberhing. I want to add that I am producing the numberice given by the Customs dated 6-10-67 It is clear to us that the appellant was fully aware of the nature of the allegations made against him. He had number merely given a detailed explanation under section 108 of the Act, of the circumstances in which he said he was arrested with the gold bars, but, he had also filed an elaborate written statement. He had indicated that this is the only form in which he would give his explanation. It is true that the general form of questions put does number strictly companyply with the provisions of Section 342 Criminal Procedure Code. But, we are unable to hold that the appellant suffered any injustice for this reason. Indeed, he had number even raised such a question in the Trial Court or before the High Court. If he had done so, the alleged defect companyld have been easily cured. The objection seems to us to be most technical and flimsy. The defect companyld number have possibly vitiated the companyviction of the appellant. Lastly, it is urged that the appellant has already served nearly three months of the sentence and there is numberprevious companyviction recorded against him so that we should reduce his sentence to the period already undergone. In view of the age of the appellant and the fact that there is numberprevious companyviction proved against him, we companysider it to be undesirable to send the appellant back to jail for a few days. We, therefore, reduce the sentence to the period already undergone. Subject to this modification, this appeal is dismissed. The appellant, who is on bail, need number surrender.
civil appellate jurisdiction review petition number 249 of 1984. in special leave petition c number 13618 of 1983 chamber matter-by circulation the order of the companyrt was delivered by chinnappa reddy j. this application for review is numberhing short of an abuse of the process of the companyrt and waste of the time of this companyrt time which has number become so dear and precious because of the daily mounting arrears. no ground for seeking a review is mentioned or even hinted at in the petition. in the first paragraph of the petition it is stated this is an application for review of the order dated 9.12.83 whereby this honble companyrt was pleased to dismiss the above special leave to appeal civil . the said order discloses an error apparent on the face of the record as will be clear from perusal of the various grounds and facts mentioned in the petition for special leave to appeal. it is submitted that since the order is unsustainable in view of the facts and circumstances of the case this honble companyrt may be pleased to review the order. in the second paragraph we are told that numberdetailed grounds have been taken though in point of fact number a single ground is even mentioned as limitation is about to expire and if so advised further set of grounds would be submitted for the consideration of the honble companyrt the petition was filed on 9.1.1984 and numberhing has been done though more than six months have passed since then. the offer to file detailed grounds remains an unredeemed promise. possibly he was advised to file numberfurther grounds as there was numbere to be submitted. good words were number to be thrown away after bad.
ORIGINAL JURISDICTION Writ Petition Crl. No. 116 of 1990. Under Article 32 of the Constitution of India . K. Garg, N.D. Garg, Rajiv Kr. Garg and P.C. Choudhary for the Petitioner. R. Lalit and Ms. Kamini Jaiswal for the Respondents. The Judgment of the Court was delivered by VERMA, J. The short question arising for decision by us is the true meaning of Sub-section 2 of Section 427 of the Code of Criminal Procedure, 1973 and its effect. For an Offence of murder companymitted on 17.9.1978 the petitioner, Ranjit Singh, was companyvicted under Section 302 P.C. by the Sessions Judge on 63.1979 and sentenced to life imprisonment which was companyfirmed by the High Court of Punjab Haryana. While the petitioner was on parole after his companyviction and sentence for first murder, he was tried for the second murder companymitted On October 25, 1980 and companyvicted under Section 303 I.P.C. This companyviction was altered to one under Section 302 I.P.C. and for the second murder, also the petitioner was sentenced by this Court on 30.9. 1983 to life imprisonment instead of death sentence. This Court while disposing of the. petitioners appeal, in this manner, directed as under We feel that life imprisonment would be the proper sentence that should be imposed-upon the appellant. We accordingly reduce the sentence of death imposed upon him and, sentence him to suffer rigorous imprisonment for life. However, since the present murder was companymitted by him within a span of one year of his earlier companyviction and that too when he was released .on parole we are clearly of the view that the instant sentence of imprisonment for life awarded to him should number run companycurrently with his earlier sentence Of life imprisonment. We therefore, direct that in case any remission or companymutation in respect of his earlier sentence is granted to him the present sentence should .commence thereafter. The petitioner has number filed this Writ Petition under Article 32 of the Constitution for issuance of a suitable writ or direction to companyrect,the above direction given in the 0order dated September 30, 1983 to bring it in companysonance with Section 427 2 Cr. P.C. and companysequently for his release on the ground that both life sentences had to run companycurrently in accordance with Section 427 2 Cr. P.C. and he is entitled to relief because he has undergone fourteen years sentence of imprisonment with remissions at the time of filing the Writ Petition on February 19, 1990. This is how the question of companystruction of Section 427 2 Cr. P.C. arises in the present case. Section 427 of the Code of Criminal Procedure, 1973 is as under Sentence on offender already sentenced for another offence-- 1 When a person already undergoing a sentence of imprisonment is sentenced on a subsequent companyviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall companymence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run companycurrently with such previous sentence Provided that where a person, who has, been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence companymitted prior to the making of such order, the latter sentence shall companymence immediately. When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent companyviction to. imprisonment for a term or imprisonment for life, the subsequent sentence shall run companycurrently with such previous Sentence . Shri R.K. Garg, learned companynsel for the petitioner strenuously urged that this Courts above quoted direction in the judgment dated 30.9.1983 passed in Criminal Appeal No. 418 of 1982 while affirming the companyviction under Section 302 P.C. for the second murder and imposing the punishment of life imprisonment for it also amounts to directing that the two sentences of life imprisonment are tO run companysecutively and number companycurrently which is in direct companyflict with Subsection 2 of Section 427 Cr. P.C. He ,urged that the life span of a person Could be only one and therefore ,any subsequent life sentence must run companycurrently and number companysecutively which is the clear mandate of Section 427 2 . On this basis, it was, urged that this Courts direction in the above manner on the petitionerS companyviction for the second offence of murder is companytrary-to Section 427 2 of the Code 01 Criminal Procedure, 1973. This is the basis of the reliefs claimed on behalf of the .petitioner. In reply, Shri U.R. Lalit. appearing. on behalf of respondents, companytended that the direction of this Court properly companystrued is number companytrary to Section 427 2 Cr. P.C. and, therefore, the question of issuing any writ or directions claimed by the petitioner does number arise. We may straightaway mention that the question of grant of relief under Article 32 of the Constitution does number arise on the above facts. The petitioners incarceration is the result of a valid judicial order and, therefore, there can be numbervalid claim to the infringement of any fundamental right which alone can be the foundation for a writ under Article 32 of the COnstitution. The only question, it appears, therefore, is about the companyrect companystruction of the direction given by this Court in its judgment dated 30.9.1983 in Criminal Appeal No. 418 of 1982 in the fight of the true meaning of Section427 2 Cr. P.C. The meaning of a sentence of imprisonment for life is numberlonger res integra It was held by a Constitution Bench in Gopal Vinayak Godse v. The State of Maharashtra and Others, 1961 3 SC.R. 440 that a sentence of transportation for life or imprisonment for life must prima facie be treated as transportation Or imprisonment for the whole of the remaining period of the companyvicted persons natural life. It was further held Unless the said sentence is companymuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The companytention that a sentence of life imprisonment was to be treated as a sentence of imprisonment for a fixed term was expressly rejected. This view was followed and reiterated in Maru Ram v. Union of India Ant., 1981 1 S.C.R. 1196 while companysidering the effect of Section 433A introduced in the Code of Criminal Procedure, 1973 with effect from 18.12.1978. The Constitution Bench in Maru Ram summarised one of its companyclusions as under We follow Godses case supra to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government. Another companyclusion in Maru Ram was that the mandatory minimum of 14 years actual imprisonment prescribed by Section 433A which has supremacy over the Remission Rules and short-sentencing statutes made by the various States will number operate against those whose cases were decided by the trial companyrt before the 18th December, 1978 when Section 433A came into force but Section 433A would apply to those sentenced by the trial companyrt after 18.12.1978 even though the offence was companymitted prior to that date. From these decisions it is obvious that the mandatory minimum of 14 years. actual imprisonment prescribed by Section 433A is applicable to petitioner in respect of both sentences of life imprisonment since the companyviction by the trial companyrt even for the first murder was after 18.12.1.978, the second offence itself being companymitted after 18.12.1978. There is numberdispute that the mandatory minimum of 14 years actual imprisonment, as required by Section 433A even for the first sentence of life imprisonment, has number been served out by the petitioner and, therefore, irrespective of the points raised in this petition on the basis of Section 427 2 Cr. C. the petitioner cannot claim relief much less a writ under Article 32 of the Constitution in the absence of the remaining sentence being remitted by the Government. This alone is sufficient to refuse any relief under Article 32 of the Constitution. The question number is of the meaning of Section 472 2 Cr. C, and its effect, in the present case, in view of the above quoted direction Of this Court in its judgment dated 30.9.1983. Sub-section 1 of Section 427Cr. P.C. provides for the situation when a person already undergoing a sentence of imprisonment is sentenced on a subsequent companyviction to imprisonment or life imprisonment. In other words, Subsection 1 of Section 427 Cr. P.C. deals with an offender who while undergoing sentence for a fixed term is subsequently companyvicted to imprisonment for a fixed term or for life. In such a situation, the first sentence, being for a fixed term, expires on a definite date which is known when the subsequent companyviction is made., Sub-section 1 says that in such a situation, the date of expiry of the first sentence which the offender is undergoing being known, ordinarily the subsequent sentence would companymence at the expiration of the first term of imprisonment unless the Court .directs the subsequent sentence to run companycurrently with the previous sentence. Obviously, in cases companyered by Sub-section 1 where the sentence is for a fixed term, the subsequent sentence Can be companysecutive unless directed to run companycurrently. Sub-section 2 , on the other hand, provides for an offender alreadly undergoing sentence of imprisonment for life who is sentenced on a subsequent companyviction to imprisonment for a term or for life. It is well-settled since the decision of this Court in Gopal Vinayaka Godse and reiterated in Maru Ram that imprisonment for life is a sentence for the remainder or the life of the offender unless the remaining sentence is companymuted or remitted by the appropriate authority. This being so at-the.stage of sentencing by the Court On a subsequent companyviction, the earlier sentence of imprisonment for life must be understood in this manner and, therefore, there can be numberquestion of a subsequent sentence of. impriosnment for a term or for life running companysecutively which is the general rule laid down in Sub-. section 1 of Section 427. As rightly companytendedby Shri Garg, and number disputed by Shri Lalit, the earlier sentence of imprisonment for life being understood to mean as sentence to serve the remainder of life in prison unless companymuted or remitted by the appropriate authority and a person having only one life span, the sentence on a subsequent companyviction of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life sentence and certainly number added to it since extending the life span of the offender or for that matter anyone is beyond .human might. It is this obvious situation which is stated in sub-section 2 of Section 427 since the general rule enunciated in sub-section 1 thereof is that without the Courts direction the subse-. quent sentence will. number run companycurrently, but companysecutively. The only situation in which numberdirection of the Court is needed to make the subsequent sentence run companycurrently with the previous sentence is provided for in Sub-section 2 which has been enacted to avoid any possible companytroversy based on Sub-section. 1 if there be numberexpress direction of the Court to that effect. Sub-section 2 is in the nature of anexCeption to the general rule enacted in Sub-section 1 of Section 427 thata sentence on subsequent companyviction companymences on expiry of the first sentence unless the Court directs it to run companycurrently. The meaning and purpose of Sub-sections 1 2 of Section 427 and the object of en,acting Sub-section ? is, therefore, Clear We are number required to say anything regarding the practical. effect of remission or companymutation of the sentences since that question does number arise in the present case. The limited companytroversy before us has been indicated. The only question number is of the meaning and effect of the above quoted direction in this Courts judgment dated 30.9.1983 It is obvious that the direction .of this Court must be companystrued to harmonise with Section 427 2 Cr. P.C. which is the statutory mandate apart from being the obvious truth. The subsequent sentence of imprisonment for life has, therefore, to run companycurrently with the read as sentenceof imprisonment for life awarded to the petitioner. Thed exercise is to companystrue the last sentence in the direction which re under We, therefore, direct that in case any remission or companymutation .in respect of his earlier sentence is granted to him the present sentence should companymence thereafter. It is in the background of this ultimate direction that the proceeding portion has to be read. This last sentence in the direction means that in case, any remission or companymutation is granted in respect of the earlier. sentence. of life imprisonment alone then the benefit of that remission or .commutation will number ipso facto be available in respect of the sub. sequent sentence of life imprisonment which would companytinue to be unaffected by the remission or companymutation in respect of the earlier sentence alone. In other WordS, the operation of the superimposed subsequent sentence, of life imprisonment shall number be wiped out .merely because in respect of the companyresponding earlier sentence of life imprisonment any remission or companymutation has been granted by the appropriate authority. The companysequence is that the petitioner would number get any practical benefit of any remission or companymutation respect of his earlier sentence because of the superimposed subsequent life sentence unless the same companyresponding benefit in respect of the subsequent sentence. is also .granted tO the petitioner. It is in this manner that the direction is given for the, two Sentences of life imprisonment number to run companycurrently. The ultimate direction companytained in the last sentence is obviously for this purpose. So companystrued the direction of this Court in the judgment dated 30.9.1983 in Criminal Appeal No. 418 of 1982 fully harmonises with Section 427 2 Cr. P.C. This is the clarification we make of this Courts judgment dated 30.9. 1983 in Criminal Appeal No. 4 18 of 1982. We have already stated that this petition for the issuance of a writ Under Article 32 of the Constitution is untenable. We have, therefore, treated it as a petition for clarification of the judgment dated 30.9.1983 in Criminal Appeal No. 418 of 1982.
These appeals are directed against the judgment of a Division Bench of the Orissa High Court. The High Court allowed the writ petition of the respondents-workmen in the following terms We would accordingly direct that the petitioners shall be paid salary and allowances as are paid to their companynter-parts in regular establishment with effect from the date they were respectively employed. H in the meanwhile, the scale of pay has been revised, they would also be entitled to the same revised scale of pay. Having companysidered the companytention raised in the companynter-affidavit, we also adopt the direction given in the aforesaid decision of this Court. We direct the Corporation to take appropriate steps to regularise the services of such of the petitioners who are in Continuous service of the Corporation for more than 5 years. So far as the direction of the High Court regarding payment of salary and allowances is companycerned we clarity that the expression companynter-parts in regular establishment in the quote above means in the project where the workmen are were working. The direction given by the High Court regarding regularising the services of the workmen are modified to the extent that the respondents workmen who have put in five years of service shall companytinue in the service of the management and their services shall number be dispensed with and further the management shall regularise them as and when regular vacancies are available.
ADARSH KUMAR GOEL, J. This petition under Article 32 of the Constitution of India mainly seeks direction against Union of India through Ministry of Home Affairs to grant citizenship to the Chakma and Hajong Tribals who migrated to India in 1964-1969 and were settled in the State of Arunachal Pradesh. Petitioner No.1 has described itself as Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh CCRC . According to the averments in the petition, representations were filed with the National Human Rights Commission NHRC alleging persecution of Chakmas and Hajongs in the State of Arunachal Pradesh. The NHRC approached this Court by way of a Writ Petition C No.720 of 1995 titled National Human Rights Commission vs. State of Arunachal Pradesh seeking direction from this Court to ensure that the Chakmas and Hajongs are number forcibly ousted from the State of Arunachal Pradesh, which was disposed of on 9th January, 19961. In the said case, the Union of India appeared before this Court and stated that decision to settle the Chakmas in the State of Arunachal Pradesh was taken after discussion between the Government of India and the North-East Frontier Agency NEFA Administration Predecessor of the State of Arunachal Pradesh . The Chakmas were residing in the State of Arunachal Pradesh for more than three decades and had close social, religious and economic ties. As per joint statement issued by the Prime Ministers of India and Bangladesh in February, 1972, the Union Government took a decision to companyfer citizenship on the Chakmas under Section 5 1 a of the Citizenship Act, 1955 but the State of Arunachal Pradesh had reservations on this companynt. The Central Government was in favour of a dialogue between the State Government, the Chakmas and all companycerned to resolve the issue of granting citizenship while also redressing the genuine grievances of citizens of Arunachal Pradesh. The stand of the State of Arunachal Pradesh was that it had provided basic amenities to the Chakmas but the State had a right to ask the Chakmas to quit the State. The State companyld number permit outsiders to settle within its territory as it had limited resources and the Union of India had refused to share its responsibility. The Deputy Commissioner of the area was to forward the applications for citizenship after due inquiry but numbersuch application was pending. Further stand of the State was that settlement of Chakmas will disturb its ethnic balance and destroy its culture and identity. The tribals of the State companysider Chakmas as potential threat to their tradition and culture. This Court companysidered rival submissions and held that the Chakmas apprehend threat on the All Arunachal Pradesh Students Union AAPSU who were reported to be enforcing economic blockades on the refugee camps, adversely affecting supply of ration, medical and essential facilities to the Chakmas. Some Chakmas had died on account of blockade. This Court further numbericed that Chakmas companyld invoke Section 5 1 a of the Citizenship Act by filing application in form prescribed by Part II of the Citizenship Rules, 1956. The observations in NHRC case supra , inter alia, are as follows - From what we have said hereinbefore, there is numberdoubt that the Chakmas who migrated from East Pakistan number Bangladesh in 1964, first settled down in the State of Assam and then shifted to areas which number fall within the State of Arunachal Pradesh. They have settled there since the last about two and a half decades and have raised their families in the said State. Their children have married and they too have had children. Thus, a large number of them were born in the State itself. Now it is proposed to uproot them by force. The AAPSU has been giving out threats to forcibly drive them out to the neighbouring State which in turn is unwilling to accept them. The residents of the neighbouring State have also threatened to kill them if they try to enter their State. They are thus sandwiched between two forces, each pushing in opposite direction which can only hurt them. Faced with the prospect of annihilation the NHRC was moved, which, finding it impossible to extend protection to them, moved this Court for certain reliefs. By virtue of their long and prolonged stay in the State, the Chakmas who migrated to, and those born in the State, seek citizenship under the Constitution read with Section 5 of the Act. We have already indicated earlier that if a person satisfies the requirements of Section 5 of the Act, he she can be registered as a citizen of India. The procedure to be followed in processing such requests has been outlined in Part II of the Rules. We have adverted to the relevant rules hereinbefore. According to these Rules, the application for registration has to be made in the prescribed form, duly affirmed, to the Collector within whose jurisdiction he resides. After the application is so received, the authority to register a person as a citizen of India, is vested in the officer named under Rule 8 of the Rules. Under Rule 9, the Collector is expected to transmit every application under Section 5 1 a of the Act to the Central Government. On a companyjoint reading of Rules 8 and 9 it becomes clear that the Collector has merely to receive the application and forward it to the Central Government. It is only the authority companystituted under Rule 8 which is empowered to register a person as a citizen of India. It follows that only that authority can refuse to entertain an application made under Section 5 of the Act. Yet it is an admitted fact that after receipt of the application, the Deputy Collector DC makes an enquiry and if the report is adverse, the DC refuses to forward the application in other words, he rejects the application at the threshold and does number forward it to the Central Government. The grievance of the Central Government is that since the DC does number forward the applications, it is number in a position to take a decision whether or number to register the person as a citizen of India. That is why it is said that the DC or Collector, who receives the application should be directed to forward the same to the Central Government to enable it to decide the request on merits. It is obvious that by refusing to forward the applications of the Chakmas to the Central Government, the DC is failing in his duty and is also preventing the Central Government from performing its duty under the Act and the Rules. We are a companyntry governed by the Rule of Law. Our Constitution companyfers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, numberperson can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot permit any body or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one group of persons to another group of persons it is dutybound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its companystitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics. Besides, by refusing to forward their applications, the Chakmas are denied rights, companystitutional and statutory, to be companysidered for being registered as citizens of India. Accordingly, direction was issued to the State of Arunachal Pradesh to ensure that life and liberty of Chakmas residing in the State was protected against any attempt to evict them by organized groups such as AAPSU and their applications companyld be forwarded to the Central Government. Case of the petitioners, further is that the application of the State of Arunachal Pradesh for modification and Writ Petition C No.593 of 1997 filed by an organization of tribals of Arunachal Pradesh against the judgment of this Court was also dismissed. Another writ petition being Writ Petition No.13 of 1998 against the judgment of this Court was dismissed on 9th December, 2002. Thereafter applications were filed for citizenship but the same were number acted upon. The Election Commission of India in the light of judgment of this Court passed orders dated 3rd March, 2004 declaring the resolution dated 14th May, 2003 passed by the State of Arunachal Pradesh against facilities to the petitioners to be unconstitutional but the authorities of the State of Arunachal Pradesh had number forwarded the applications as required under Rule 9 of the Citizenship Rules to the Central Government. Counter affidavit has been filed by the Union of India stating that the applications directly received by the Ministry of Home Affairs were forwarded to the Government of Arunachal Pradesh which had number been returned except few applications with negative recommendations. The said applications were returned back to the Government of Arunachal Pradesh. Ministry of Home Affairs had advised the Government of Arunachal Pradesh to act in companypliance with the judgment of this Court. The stand of the State of Arunachal Pradesh is that there was numberthreat to the life and liberty of the Chakmas and Hajong refugees. After receiving the judgment of this Court, the judgment was circulated to Inspector General of Police, Deputy Commissioners of the companycerned Districts and Principal Chief Conservator of Forests. The State Government was fully bound by the direction of this Court and had taken all necessary steps to companyply with the same. The State of Arunachal Pradesh had received 4382 applications. Though the popular sentiment of the indigenous tribals was different, the State of Arunachal Pradesh was honouring the order of this Court. It is further stated that Chakmas and Hajong tribes were settled in NEFA from 1964 to 1969 when there were numberelected bodies in the State of Arunachal Pradesh. The laws applicable in the State of Arunachal Pradesh like the Government of India Act, 1870, the Bengal Eastern Frontier Regulation, 1873, the Scheduled District Act, 1874, the Assam Frontier Tract Regulation, 1880, the Assam Frontier Forest Regulation, 1891, the Chin Hills Regulations, 1896 and the Assam Frontier Administration of Justice Regulation, 1945 1 of 1945 were number taken into account. One thousand four hundred ninety seven Chakmas have been included in the electoral rolls. The petitioners have filed a rejoinder affidavit alleging that children of Chakmas and Hajongs are denied educational facilities. They were number being companyered by the public distribution system. They presented a petition to the 10th Lok Sabha and also to Rajya Sabha Committee on Petitions. The said Committee in its 105th Report published on 14th August, 1997 made recommendation to grant Indian Citizenship to the Chakmas but the said recommendation has number been acted upon. The recommendation is as follows The Committee, therefore, recommends that the Chakmas of Arunachal Pradesh who came there prior to 25.3.1971 be granted Indian citizenship. The Committee also recommends that those Chakmas who have been born in India should also be companysidered for Indian citizenship. The Committee further recommends that the fate of those Chakmas who came to the State after 25.3.1971 be discussed and decided by the Central Government and State Government Jointly. The Committees also recommends that all the old applications of Chakmas for citizenship which have either been rejected or withheld by Deputy Commissioners or the State Deputy Commissioner or the State Government companytinue to block the forwarding of such applications to Central Government, the Central Government may companysider to incorporate necessary provision in the Rules or the Act it so required whereby it companyld directly receive, companysider and decide the application for citizenship in the 23 case of Chakmas of Arunachal Pradesh. The Committee also recommends that Chakmas be also companysidered for granting them the status of Scheduled Tribes at the time of granting the citizenship. The Committee would like to earnestly urge upon the Central Government and State Government to ensure that until amicable solution is arrived at, the Chakmas are allowed to stay in Arunachal Pradesh with full protection and safety, honour and dignity. When the matter came up for hearing before this Court on 1st August, 2012, the following order was passed - Mr. B. Bhattacharyya, learned Additional Solicitor General for respondent No. 5, and Mr. Anil Shrivastav, learned companynsel for respondent Nos. 1 to 4, pray for some time to seek instructions and also to ensure that the companytroversy raised in the Writ Petition is resolved at the hands of the Central Government and the State Government at the earliest. Again on 28th August, 2012, following order was passed Mr. B. Bhattacharyya, learned Additional Solicitor General appearing for the respondent No. 5 - Union of India, submits that all 4637 applications for grant of citizenship in respect of Chakmas received in the Ministry of Home Affairs, Government of India have been returned to the State Government as the applications were number made to the appropriate authority in prescribed form and were also number accompanied with the recommendations of the State Government as per statutory requirement. Having regard to the decision of this Court in National Human Rights Commission Vs. State of Arunachal Pradesh and Another, 1996 1 SCC 742, and the directions companytained therein, we direct the State of Arunachal Pradesh to submit a companyprehensive report affidavit to this Court in respect of 4637 applications returned by the Central Government to the State Government on the following aspects in respect of each application - Whether the companyditions laid down in the relevant clauses of Section 5 of the Citizenship Act, 1955 for short, Act are satisfied Whether the applicant has an intention to make India his permanent home Whether the applicant has signed oath of allegiance as specified in the Second Schedule to the Act and Whether the applicant is of good character and is otherwise a fit and proper person to be registered as a citizen of India. The above report affidavit shall be submitted by the State of Arunachal Pradesh to this Court through the Secretary Political , Government of Arunachal Pradesh within two months from today. A companyy of the report affidavit shall be given to the Advocate-on- Record for the petitioners well in advance. On 20th January, 2014, this Court passed the following Order List the matter on 5th May, 2014, so as to enable the Joint High Powered Committee companystituted vide Government of Indias Order No.13/2/2010-NE-II dated 10/08/2010. to place on record the progress made in the matter. We are sure that the Committee would make all efforts so that the work entrusted to it is companycluded preferably before the next date of hearing. Additional Affidavit dated 2nd January, 2013 was filed by the State of Arunachal Pradesh stating that the Government of India, Ministry of Home Affairs N.E. Division has companystituted a companymittee under the Chairmanship of Joint Secretary N.E. , Ministry of Home Affairs on 10th August, 2010 to examine various issues relating to settlement of Chakmas Hajongs in Arunachal Pradesh including the possibility of granting Indian citizenship to eligible Chakmas Hajongs. The Committee has held its sitting on 9th January, 2012 and taken certain decisions. Thus, the issue was number being ignored though there was numberdelay in the matter. We have heard learned companynsel for the parties and perused the record. Learned companynsel for the petitioners submitted that their rights have been duly acknowledged by this Court in NHRC case supra . Still, their legitimate right of citizenship has number so far materialized. They have been settled after a companyscious decision at the highest level of the Government of India. They companyld number be treated as foreigners. He has placed reliance on a judgment of the Gauhati High Court dated 19th March, 2013 in PIL No.52 of 2010 titled All Arunachal Pradesh Students Union AAPSU vs. The Election Commission of India dismissing a petition filed by AAPSU against the guidelines issued by the Election Commission of India for revision of electoral rolls in respect of areas where there is substantial presence of Chakmas and Hajongs. In the said judgment, the Memorandum dated 23rd March, 2005 issued by the Election Commission of India and further guidelines dated 3rd October, 2007 for revision of electoral rolls with reference to 1st January, 2007 as qualifying date are also referred to. The objection against the Chakmas being treated as ordinary residents of Arunachal Pradesh in absence of possession of valid Inner Line Passes was also companysidered. The Election Commission of India supported its guidelines with guidelines with reference to a judgment of the Delhi High Court dated 28th September, 2000 in W.P. No.886 of 2000 Peoples Union for Civil Liberties vs. Election Commission of India Ors. In the judgment of the Gauhati High Court, it was numbered that in companytradiction to those unwanted illegal migrants who sneak into the companyntry, the Chakmas migrated to India on account of their displacement and the Government of India agreed to grant them citizenship. In these circumstances, the guidelines of the Government of India were held to be justified and did number warrant any requirement of Inner Line permit. The relevant observations are 18 . Having regard to the facts and circumstances which have been also highlighted by the Honble Supreme Court as referred to above in NRHC case, we are of the view that these additional guidelines, having been issued in the peculiar circumstances obtaining, cannot be held to be discriminatory. Further, in view of the policy decision taken by the Government of India to settle the Chakma refugees in different States and also in Arunachal Pradesh in companysultation with the authorities of the Arunachal Pradesh, and also to companyfer Indian citizenship, the companytention of the petitioners that the aforesaid guidelines have the effect of violating the provisions of law in terms of lack of Inner Line Permit or violation of provisions of section 13 of the Registration of Births and Deaths Act, 1969 does number hold water. We are of the view that once a decision had been taken to settle these Chakma refugees in Arunachal Pradesh in companysultation with the authorities of Arunachal Pradesh, they would become residents of Arunachal Pradesh and would number require the Inner Line Permit Pass. Otherwise also, once they have been allowed to settle in Arunachal Pradesh, it would be deemed that such permits had been granted to them and in our companysidered opinion, any other view would negate and defeat the policy decision taken by the Government of India in companysultation with the Arunachal Pradesh authorities to settle these Chakmas in Arunachal Pradesh. Similarly, as regards, the other companytention of the petitioners that the guidelines would companytravene the provisions of section 13 of the Registration of Births and Deaths Act, 1969 also cannot be accepted. It may be numbered that the Chakmas had taken refuge in this companyntry under distress and trying circumstances after having been uprooted from their hearth and homes and made to flee to avoid persecution. Further, later on, after having allowed to settle in Arunachal Pradesh, they had faced difficulties and harassments from the neighbouring local populace which had been taken numbere of by the Supreme Court in NHRC case as mentioned above. Therefore, issuing of the additional guidelines for the purpose of verification of the birth of the claimants on the basis of other credible materials for the purpose of enrolment in the electoral rolls where these Chakmas had been officially settled cannot be interfered with merely on the technical ground that certain provisions of Registration of Births and Deaths Act, 1969 have number been strictly companyplied with, if the evidences are otherwise credible and trustworthy. We are of the view that the additional guidelines which had been issued by the Election Commission of India are merely to enable those Chakmas to enjoy such benefits as a citizen of this Country including the right to vote by having their names enrolled in the electoral rolls of the companycerned companystituency where they have been settled. Once, these Chakma refugees have been granted citizenship, they are entitled to enjoy all the rights and privileges that flow on becoming a citizen of this companyntry and further, they are entitled to have their rights as citizens of this companyntry protected and safeguarded. We find merit in the companytention of the petitioners. It stands acknowledged by this Court on the basis of stand of the Government of India that the Chakmas have a right to be granted citizenship subject to the procedure being followed. It also stands recognized by judicial decisions that they cannot be required to obtain any Inner Line permit as they are settled in the State of Arunachal Pradesh. In State of Arunachal Pradesh vs. Khudiram Chakma2, this Court numbered the ancient history of Arunachal Pradesh as follows The history of the mountainous and multitribal numberth-east frontier region which is number known as Arunachal Pradesh ascends for hundreds of years into the mists of tradition and mythology. According to Pauranic legend, Rukmini, the daughter of King Bhishmak, was carried away on the eve of her marriage by Lord Krishna himself. The ruins of the fort at Bhalukpung are claimed by the Akas as the original home of their ancestor Bhaluka, the grandson of Bana Raja, who was defeated by Lord Krishna at Tezpur Assam . A Kalita King, Ramachandra, driven from his kingdom in the plains of Assam, fled to the Dafla number Nishang foothills and established there his capital of Mayapore, which is identified with the ruins on the Ita hill. A place of great sanctity in the beautiful lower reaches of the Lohit River, the Brahmakund, where Parasuram opened a passage through the hills with a single blow of his mighty axe, still attracts the Hindu pilgrims from all over the companyntry. The above history shows the integral link of the State of Arunachal Pradesh with the rest of the companyntry since ancient times. It is well known that the Chakmas and Hajongs were displaced from the area which became part of East Pakistan number in Bangladesh on companystruction of Kaptai Dam and were allowed to be rehabilitated under the decision of the Government of India.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 194 of 1967. Appeal from the judgment and order dated April 27, 1964 of the Madhya Pradesh High Court in Misc. First Appeal No.60 of 1960. N. Anand and Kailash Mehta, for the appellant. S. Khanduja and K. C. Dua, for respondent No. 1. The Judgment of the Court was delivered by Khanna, J. This is an appeal on a certificate of fitness granted by the Madhya Pradesh High Court against the judgment of that Court whereby that Court in appeal set aside the order of the Additional District Judge, Jabalpur, dismissed the objections against an award and directed that the award be made a rule of the Court. Naraindas, appellant is the brother of Vallabhdas and Durgaprasad, respondents 1 and 2 and son of Smt. Sukhrani, respondent No. 3. There were, some arbitration proceedings in 1932 between the appellant and respondents 1 to 3 on one side and Pannalal and Smt. Dulari Bahu on the other side. Those proceedings related to partition of property and a claim for maintenance allowance by Dulari Bahu. An award was given in those proceedings and was made a rule of the Court on 13-12-1933. According to the award, Dulari Bahu was to get a maintenance allowance of Rs. 12/- per mensem from the appellant and his brothers . A charge was created of the maintenance allowance on the house which fell as a result of partition to the share of the appellant and respondents 1 to 3. It was also provided that if the appellant and his brothers failed to pay the monthly allowance, Dulari Bahu would, be entitled to get the house sold. Out of the sale proceeds, Rs. 3,000/- were to be deposited in a bank on the companydition that the, amount of interest would be paid to Dulari Bahu but she would number be entitled to draw the principal amount. On Dulari Bahus death, Rs. 2,000/-out of Rs. 3,000/- would be paid to the appellant and his brothers and Rs. 1,000/- to Pannalal. The amount of maintenance payable to Dulari Bahu was increased to Rs. 30/- per mensem in a suit brought by her and decided on 8-10-1949. As the appellant and his brothers did number pay the maintenance allowance to Dulari Bahu, she, in execution of her claim for maintenance allowance, got their houses situated at Jabalpur sold by Court auction. The houses were purchased for Rs. 22,000/- by Sitaram and Laxminarain, respondents 4 and 5. After obtaining the sale certificate, respondents 4 and 5 took proceedings for obtaining possession of the houses but they were resisted by respondent No. 1. The appellant and his brothers further claimed that they had deposited some amount with respondents 4 and 5. The appellant and his brothers and mother on one side and respondents 4 and 5 on the other side thereupon appointed four arbitrators, as per agreement dated 8th April, 1955. According to the agreement, respondents 4 and 5 would have numberclaim in the houses purchased by them in Court auction and the arbitrators would make award in respect of the amounts to be paid by either of the parties as well as regarding the maintenance allowance payable to Durga Bahu and Sukhrani Bahu. The arbitrators thereafter gave their award dated 20th October, 1956 wherein they made provision for the amounts payable to different parties. Regarding the amount of maintenance allowance payable to Dulari Bahu, the award provided that Rs. 3,000/- out of the sale proceeds would be withdrawn from the Court and be deposited with Durgaprasad, respondent. Durgaprasad was made liable to pay the amount of Rs. 30/- per mensem as maintenance allowance to Dulari Bahu. The award further provided that out of the amount of Rs. 3,000/-, Rs. 1,000/- would be paid, to Pannalal and Rs. 2,000/- to Durgaprasad on the death of Dulari Bahu. Dulari Bahu was also given a right of residence in a room and maintenance allowance of Rs. 30/- payable to her was made, a charge on the house allotted to Durgaprasad. After the award had been put in Court, objections were filed against the award. Learned Additional District Judge set aside the award on the ground that the award affected the, rights of Dulari Bahu and she had number been made a party to the arbitration agreement. The reference to arbitration as well as the award, according to the Additional District Judge did number amount to an adjustment and were,, therefore, invalid. It was also held that the award was in excess of the arbitration agreement. Some other grounds were also given but we are number companycerned with them. On appeal, the High Court reversed the decision of the Additional District Judge and held that there was numberinfirmity in the arbitration proceedings or the award. In the result, the award was made a rule of the Court. Mr. Anand, on behalf of the appellant, has argued that Dulari Bahu was an interested party in the dispute relating to arbitration and as she did number join the arbitration agreement, the reference to arbitration and the subsequent award should be held to be invalid. There is, in our opinion, numberforce in this companytention. The dispute which was referred to the arbitrators related to the houses in question which had been sold in Court auction. The, interest of Dulari Bahu pertained only to the recovery of her maintenance allowance. According to the earlier award which Dulari Bahu sought to enforce, she was to get the maintenance allowance from an amount of Rs. 3,000/- which was to be kept in deposit. The rights of Dulari Bahu in this respect remained in-tact and were in numberway affected by the award dated 20th October, 1956. The maintenance allowance payable to her was also kept as a charge over the immovable property. The fact that Dulari Bahu did number sign the arbitration agreement as such would number vitiate the arbitration proceedings. The present is number a case wherein the arbitration proceedings are sought to be assailed by Dulari Bahu. On the companytrary, it is the admitted case of the parties that Dulari Bahu did number raise any objection to the arbitration proceedings or the subsequent award on the ground that her rights had been prejudicially affected. This apart, we find that Dulari Bahu, according to the learned companynsel, died about three years ago. In the circumstances, it would be purely academic to dilate upon the question as to whether the rights of Dulari Bahu were prejudicially affected by the award in question. It is next argued by Mr. Anand that as the reference to arbitrators was made out of Court and as all the parties to the arbitration agreement did number sign the award in token of their acceptance, the same companyld number be made a rule of the Court. There is numbersubstance, in our opinion, in the above companytention. It is always open to parties to refer a dispute to arbitration without the intervention of the Court. In case, a suit is pending in respect of the subject matter of the dispute, there can be numbervalid reference during the pendency of the suit, to arbitration without the order of the Court. The underlying reason for that is to avoid companyflict of jurisdiction by both the Court and the arbitrator dealing companycurrently with the same dispute. An award given or a reference during the pendency of a suit relating to dispute which is the subject matter of reference without obtaining the order of the Court cannot be enforced. The only exception to this rule is provided by the proviso to section 47 of the Arbitration Act Act 10 of 1940 according to which an arbitration award otherwise obtained may with the companysent of all the parties interested be taken into companysideration as a companypromise or adjustment of a suit by any Court before which the suit is pending. In such an event, the award is enforced as a companypromise or adjsutment of the suit because all the interested parties give their companysent to the award. Where,, however, as in the present case, numbersuit is pending with respect to the subject matter of dispute and the parties choose to refer a dispute to arbitrators, it is number essential that the parties should signify their companysent to the award before the same can be enforced. Any other view would run companynter to the entire scheme and object of arbitration for the settlement of disputes according to which, agreement and companysent are imperative only at the stage of referring the dispute to arbitrators but number at the stage of the award. The decision of Bachawat, J. as he then was in Jugaldas Demodar Modi Co. v. Pursottam Umedbhai Co. 1 relied upon by the appellant has numberbearing as the said case dealt with an arbitration reference during the pendency of a suit. We are also number impressed by the companytention raised on behalf of the appellant that because there had been earlier litigation about the house allotted to the appellant and his brothers, the same companyld number be, the subject matter of arbitration dispute. A dispute is referred to arbitration because the parties agreed to such a reference and the mere fact that the property which is the subject matter of dispute was also the subject matter of an earlier litigation, cannot prevent the parties to refer the dispute about that property to arbitration.
F. Nariman, J. Leave granted. The present appeals by the Union of India raise an interesting question as to the applicability of the 1997 Amendment to Section 28 of the Contract Act, 1872. The facts of the three appeals are similar inasmuch as they companycern four exporters who belong to what is known as the GPB Group of Companies. By a Memorandum dated 6.11.1995, issued by the Textile Commissioner under the Imports and Exports Control Act, 1947, terms and companyditions for export of raw companyton and companyton waste for September, 1995 - August, 1996 were laid down. The shipment was permitted only against an irrevocable letter of credit. The exporters were required to furnish a bank guarantee in the prescribed form at the rate of 10 of the companytract price. The bank guarantee was required to be kept valid up to 6 months with a provision for claims for an additional three months, after the last date of shipment. The allocation of quota was on the basis of the highest unit value realization. The Textile Commissioner invited applications vide Press Note and Memorandum, both dated 9.1.1996, for export of 10,000 bales of extra long staple companyton. It was mentioned in the Press Note and the Memorandum that the shipment period will be 180 days from the date of registration of quota or up to 31.8.1996, whichever is earlier. Pursuant to this Press Note and Memorandum, four sale companytracts were executed between M s Indocomex Fibres Pvt. Ltd., Singapore and the four exporters, all in January, 1996. On 31.1.1996, the four exporters made an application together with a bank guarantee of even date. In February, the exporters were permitted to export the total quantity of 9175 bales vide an Allocation-cum-Registration Certificate dated 6.2.1996 within a validity period of shipment up to 31.7.1996. It may be mentioned in passing that this date was extended as many as three times, the third extension being numberified as upto 28.2.1997. As the four exporters failed and neglected to furnish supporting documents regarding export of goods allocated to them within the stipulated period, the Textile Commissioner, by a letter dated 3.1.1997, called upon the exporters to submit the necessary documents within 15 days from the date of issue of this letter but number later than 20.1.1997, failing which the bank guarantees would be enforced. As the exporters failed and neglected to furnish these documents, the Textile Commissioner, vide letters dated 15.5.1997, invoked the bank guarantees. Vide letters of even date, the Respondent Bank refused to pay under the said guarantees, stating that the same companyld be invoked only within the extended period of three months i.e. up to 30.4.1997, and number later. By a letter dated 27/28.8.1997, the Textile Commissioner informed the Respondent Bank that in light of the amendment to Section 28 of the Indian Contract Act, which came into force on 8.1.1997, the Bank was number absolved of its obligation to make payment under the bank guarantee. To this, the Bank vide letter dated 19.9.1997, reiterated its earlier stand and stated that it was number liable to make payment under the bank guarantee after 30.4.1997. It may be mentioned in passing that two of the aforesaid group companypanies, namely GPB Fibres Ltd. and M s Bhagwati Cotton Ltd. were amalgamated on 12.9.1997. On 23.7.1998, the Textile Commissioner called upon both the exporters and the Respondent Bank to pay the sums companyered by the bank guarantee. As this letter evoked numberresponse, three summary suits - being 2959/1999, 2963/1999 and 2996/1999 - were filed on 8.4.1999 by the Union of India and the Textile Commissioner against the exporters and the Bank in the High Court of Bombay. By order dated 4.12.2001, as amended on 22.1.2002, unconditional leave to defend the suits was granted to the Bank, and companyditional leave to so defend the suits to the exporters upon depositing the amount of Rs.3,82,59,450/- in the Court within 12 weeks from the date of the said order. On 20.1.2003/27.2.2003, the Division Bench dismissed the appeal filed by the Union of India on the ground that it was number maintainable under Clause 15 of the Letters Patent of the High Court. On 14.8.2003, an SLP filed by the Union of India met with the same fate. All four exporters remained ex parte, as a result of which the suits came to be decreed ex parte against the said exporters on 29.11.2004. On companytest with the Bank, a learned Single Judge of the Bombay High Court on 22.2.2008, was of the view that as the bank guarantees in question were in force on 8.1.1997, when the amendment to Section 28 of the Contract Act took place, the amended Section 28 would apply to the facts of these cases. This being the case, the clause in the bank guarantees extinguishing rights and discharging the liability of the Bank if a claim were number to be made within three months of the date of expiry of the bank guarantee, was held to be void. Consequently, it was held that the invocation of the aforesaid bank guarantees, being without the aforesaid time companystraint, was valid, and the said suits were, therefore, decreed in favour of the Union of India and against the bank. In an appeal against this judgment, by the impugned judgment dated 20.4.2011, a Division Bench of the Bombay High Court, while holding that the amended Section 28 would apply to the facts of these cases, came to the opposite companyclusion by following certain judgments of this Court, and therefore, reversed the learned Single Judge, holding that since the bank guarantees were number invoked within the time prescribed, the suits would have to be dismissed. The Union of India has filed the present appeals before us. Shri A.K. Panda, learned senior advocate appearing on behalf of the Union of India, has stated that the Single Judge was companyrect in applying Section 28 b as amended in 1997, and that the companydition companytained in the bank guarantee which restricted the period within which it companyld be invoked is, therefore, void. To buttress his submission, he cited 1995 2 SCC 630, R. Rajagopal Reddy v. Padmini Chandrasekharan. According to learned companynsel, the Division Bench, having reiterated that the amended Section 28 b would apply, was number companyrect in its companyclusion that such clause in the bank guarantees would number be void. According to learned companynsel, the Supreme Court judgments relied upon were all pre-amendment, and companyld number therefore be relied upon to arrive at the opposite result from the learned Single Judge. On the other hand, Dr. A.M. Singhvi, learned senior advocate, and Shri Krishnan Venugopal learned senior advocate, companytended that both the Single Judge and the Division Bench were number companyrect in applying the amendment to Section 28. According to both the learned companynsel, the bank guarantees themselves being dated 31.1.1996, would number be affected by an amendment made one year later i.e. on 8.1.1997. The relevant date and the relevant law applicable would be as on 31.1.1996, which would be the unamended Section 28. This being the case, according to them, a catena of judgments has held that if a clause in a companytract does number restrict the limitation period within which one can approach a Court, then it is perfectly valid and number hit by Section 28 unamended . For this purpose, they cited several judgments before us. An alternative plea was also raised by them that, on the assumption that the amended Section 28 would apply, even then, regard being had to the limited object sought to be achieved by the amendment, which followed a Law Commission Report, it would be clear that even on application of Section 28 b , the aforesaid clause in the bank guarantees would number be hit. In particular, they argued that the revised Section 28 suggested by the Law Commission was number in fact enacted verbatim in Section 28 b , and that the crucial words or on failure to make a claim are missing in the amended Section 28. They also referred to a subsequent amendment of Section 28 in 2012, specifically dealing with bank guarantees, in the companyrse of their arguments. The primary companytention with which we are faced is whether Section 28 applies in its original form or whether it applies after amendment in 1997. In order to answer this question, it is first necessary to set out Section 28 in its original form and Section 28 after amendment. The Section reads as under- Original Section Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any companytract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent. Amendment w.e.f. 08.01.1997 Agreements in restraint of legal proceeding, void. Every Agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any companytract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any companytract on the expiry of a specified period so as to restrict any party from enforcing his rights by usual legal proceedings, is void to that extent. In order to answer this primary question, we have first to see whether the change made in Section 28 companyld be said to be clarificatory or declaratory of the law, and hence retrospective. It is companymon ground that the statute has number made the aforesaid amendment retrospective as it is to companye into force only with effect from 8.1.1997. The original Section is of 1872 vintage. It remained in this incarnation for over 100 years and was the subject matter of two Law Commission Reports. The 13th Report of the Law Commission of India, September, 1958 examined the Section and ultimately decided that it was number necessary to amend it, given the fact that there is a well-known distinction between agreements providing for relinquishment of rights as well as remedies as against agreements for relinquishing remedies only. This was reflected in para 57 of the Report as follows- Decided cases reveal a divergence of opinion in relation to certain clauses of insurance policies with reference to the applicability of this Section. On examination, it would appear that these cases do number really turn on the interpretation of the Section, but hinge on the companystruction of the insurance policies in question. The principle itself is well recognized that an agreement providing for the relinquishment of rights and remedies is valid, but an agreement for relinquishment of remedies only falls within the mischief of Section 28. Thus, in our opinion, numberchange is called for by reason of the aforesaid companyflict of judicial authority. Several decades passed, until the Law Commission in its 97th Report of March, 1984 suo motu decided that the Section required amendment. An introduction to the Report stated the point for companysideration thus- 1.2 Under Section 28 of the Indian Contract Act, 1872 to state the point in brief an agreement which limits the time within which a party to an agreement may enforce his rights under any companytract by proceedings in a companyrt of law is void to that extent. But the Section does number invalidate an agreement in the nature of prescription, that is to say, an agreement which provides that, at the end of a specified period. If the rights thereunder are number enforced, the rights shall cease to exist. As will be explained in greater detail in later Chapters of this Report, this position creates serious anomalies and hardship, apart from leading to unnecessary litigation. Prima facie, it appeared to the Commission that the Section stood in need of reform on this point. The arguments for and against amendment of the section will be set out later. For the present, it is sufficient to state that the problem is one of companysiderable practical importance as such stipulations are frequently found in agreements entered into in the companyrse of business. After going through the existing case law and finding that the existing case law resulted in economic injustice because of unequal bargaining power, the Law Commission decided to recommend a change in the Section. This was done as follows- 5.1 We number companye to the changes that are needed in the present law. In our opinion, the present legal position as to prescriptive clauses in companytracts cannot be defended as a matter of justice, logic, companymonsense or companyvenience. When accepting such clauses, companysumers either do number realize the possible adverse impact of such clauses, or are forced to agree because big companyporations are number prepared to enter into companytracts except on these onerous terms. Take it or leave it all, is their general attitude, and because of their superior bargaining power, they naturally have the upper hand. We are number, at present, dealing with the much wider field of standard form companytracts or standard terms. But companyfining ourselves to the narrow issue under discussion, it would appear that the present legal position is open to serious objection from the companymon mans point of view. Further, such clauses introduce an element of uncertainty in transactions which are entered into daily by hundreds of persons. 5.2 It is hardly necessary to repeat all that we have said in the preceding Chapters about the demerits of the present law. Briefly, one can say that the present law, which regards prescriptive clauses as valid while invalidating time limit clauses which merely bar the remedy, suffers from the following principal defects It causes serious hardship to those who are economically disadvantaged and is violative of economic justice. In particular, it harms the interests of the companysumer, dealing with big companyporations. It is illogical, being based on a distinction which treats the more severe flaw as valid, while invalidating a lesser one. It rests on a distinction too subtle and refined to admit of easy application in practice. It thus, throws a cloud on the rights of parties, who do number know with certainty where they stand, ultimately leading to avoidable litigation. 5.3 On a companysideration of all aspects of the matter, we recommend that Section 28 of the Indian Contract Act, 1872 should be suitably amended so as to amend to render invalid companytractual clauses which purport to extinguish, on the expiry of a specified term, right accruing from the companytract. Here is a suggestion for re-drafting the main paragraph of Section 28. Revised Section 28, main paragraph, Contract Act as recommended Every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any companytract by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, or which extinguishes the rights of any party thereto under or in respect of any companytract on the expiry of a specified period or on failure to make a claim or to institute a suit or other legal proceeding within a specified period, or which discharges any party thereto from any liability under or in respect of any companytract in the circumstances specified in clause c , is void to that extent. A period of 13 years passed after which this Report was implemented. The Statement of Objects and Reasons of the Amendment reads as follows- The Law Commission of India has recommended in its 97th report that Section 28 of the Indian Contract Act, 1872 may be amended so that the anomalous situation created by the existing Section may be rectified. It has been held by the companyrts that the said Section 28 shall invalidate only a clause in any agreement which restricts any party thereto from enforcing his rights absolutely or which limits the time within which he may enforce his rights. The companyrts have, however, held that this Section shall number companye into operation when the companytractual term spells out an extinction of the right of a party to sue or spells out the discharge of a party from all liability in respect of the claim. What is thus hit by Section 28 is an agreement relinquishing the remedy only i.e. where the time-limit specified in the agreement is shorter than the period of limitation provided by law. A distinction is assumed to exist between remedy and right and this distinction is the basis of the present position under which a clause barring a remedy is void, but a clause extinguishing the rights is valid. This approach may be sound in theory but, in practice, it causes serious hardship and might even be abused. It is felt that Section 28 of the Indian Contract Act, 1872 should be amended as it harms the interests of the companysumer dealing with big companyporations and causes serious hardship to those who are economically disadvantaged. The Bill seeks to achieve the above objects. What emerges on a reading of the Law Commission Report together with the Statement of Objects and Reasons for the Amendment is that the Amendment does number purport to be either declaratory or clarificatory. It seeks to bring about a substantive change in the law by stating, for the first time, that even where an agreement extinguishes the rights or discharges the liability of any party to an agreement, so as to restrict such party from enforcing his rights on the expiry of a specified period, such agreement would become void to that extent. The Amendment therefore seeks to set aside the distinction made in the case law up to date between agreements which limit the time within which remedies can be availed and agreements which do away with the right altogether in so limiting the time. These are obviously substantive changes in the law which are remedial in nature and cannot have retrospective effect. In Sukhram v. Harbheji, 1969 3 S.C.R. 752, this Court held- Now a law is undoubtedly retrospective if the law says so expressly but it is number always necessary to say so expressly to make the law retrospective. There are occasions when a law may be held to be retrospective in operation. Retrospection is number to be presumed for the presumption is the other way but many statutes have been regarded as retrospective without a declaration. Thus it is that remedial statutes are always regarded as prospective but declaratory statutes are companysidered retrospective. Similarly sometimes statutes have a retrospective effect when the declared intention is clearly and unequivocally manifest from the language employed in the particular law or in the companytext of companynected provisions. It is always a question whether the legislature has sufficiently expressed itself. To find this one must look at the general scope and purview of the Act and the remedy the legislature intends to apply in the former state of the law and then determine what the legislature intended to do. This line of investigation is, of companyrse, only open if it is necessary. In the words of Lord Selborne in Main v. Stark 1890 15 A.C. 384 at 388, there might be something in the companytext of an Act or companylected from its language, which might give to words prima facie prospective a large operation. More retrospectivity is number to be given than what can be gathered from expressed or clearly implied intention of the legislature. pp. 758-759 Considering that the subject matter of Section 28 is agreements, the unamended Section 28 would be the law applicable as on 31.1.1996, which is the date of the agreement of bank guarantee. It number remains for us to deal with the case law cited by both sides. In R. Rajagopal Reddy v. Padmini Chandrasekharan, 1995 2 SCC 630, this Court was called upon to interpret the Benami Transactions Prohibition Act, 1988. A 3-Judge Bench of this Court overruled Mithilesh Kumari v. Prem Behari Khare, 1989 2 SCC 95, in arriving at the companyclusion that the 1988 Act was prospective and number retrospective. In so overruling the Division Bench judgment, this Court held that the Act is number expressly retrospective, so that an enquiry would lie as to whether it companyld be said to be clarificatory or declaratory. The language of Section 4 1 of the statute made it clear that it would apply to suits filed only after the 1988 Act came into force Further, the Bench went on to quote Maxwell on Interpretation as follows Perhaps numberrule of companystruction is more firmly established than this that a retrospective operation is number to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be companystrued as prospective only. The rule has, in fact, two aspects, for it, involves another and subordinate rule, to the effect that a statute is number to be companystrued so as to have a greater retrospective operation than its language renders necessary. para 14 It then went on to hold as follows As regards, reason 3, we are of the companysidered view that the Act cannot be treated to be declaratory in nature. Declaratory enactment declares and clarifies the real intention of the legislature in companynection with an earlier existing transaction or enactment, it does number create new rights or obligations. On the express language of Section 3, the Act cannot be said to be declaratory but in substance it is prohibitory in nature and seeks to destroy the rights of the real owner qua properties held benami and in this companynection it has taken away the right of the real owner both for filing a suit or for taking such a defence in a suit by benamidar. Such an Act which prohibits benami transactions and destroys rights flowing from such transactions as existing earlier is really number a declaratory enactment. With respect, we disagree with the line of reasoning which companymanded to the Division Bench. In this companynection, we may refer to the following observations in Principles of Statutory Interpretation, 5th Edn., 1992, by Shri G.P. Singh, at page 315 under the caption Declaratory statutes The presumption against retrospective operation is number applicable to declaratory statutes. As stated in Craies and approved by the Supreme Court For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the companymon law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error whether in the statement of the companymon law or in the interpretation of statutes. Usually, if number invariably, such an Act companytains a preamble, and also the word declared as well as the word enacted. But the use of the words it is declared is number companyclusive that the Act is declaratory for these words may, at times be used to introduce new rules of law and the Act in the latter case will only be amending the law and will number necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless companystrued retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language shall be deemed always to have meant is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would number be so companystrued when the preamended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the Constitution came into force the amending Act also will be part of the existing law. In Mithilesh Kumari v. Prem Behari Khare 1989 2 SCC 95 1989 1 SCR 621 Section 4 of the Benami Transactions Prohibition Act, 1988 was, it is submitted, wrongly held to be an Act declaratory in nature for it was number passed to clear any doubt existing as to the companymon law or the meaning or effect of any statute. The companyclusion however, that Section 4 applied also to past benami transactions may be supportable on the language used in the section. para 17 Similarly, in Purbanchal Cables Conductors P Ltd. v. Assam SEB, 2012 7 SCC 462, this Court had to decide whether the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 companyld be said to be retrospective. After a review of various judgments of this Court, this Court held- There is numberdoubt about the fact that the Act is a substantive law as vested rights of entitlement to a higher rate of interest in case of delayed payment accrues in favour of the supplier and a companyresponding liability is imposed on the buyer. This Court, time and again, has observed that any substantive law shall operate prospectively unless retrospective operation is clearly made out in the language of the statute. Only a procedural or declaratory law operates retrospectively as there is numbervested right in procedure. In the absence of any express legislative intendment of the retrospective application of the Act, and by virtue of the fact that the Act creates a new liability of a high rate of interest against the buyer, the Act cannot be companystrued to have retrospective effect. Since the Act envisages that the supplier has an accrued right to claim a higher rate of interest in terms of the Act, the same can only be said to accrue for sale agreements after the date of companymencement of the Act i.e. 23-9-1992 and number any time prior. paras 51 and 52 Similarly, in CIT v. Vatika Township P Ltd., 2015 1 SCC 1, this Court held that the proviso to Section 113 of the Indian Income Tax Act, 1961 was prospective and number retrospective. In so holding, the Constitution Bench adverted to certain general principles as under- Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a companytrary intention appears, a legislation is presumed number to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and number tomorrows backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should number find that his plans have been retrospectively upset. This principle of law is known as lex prospicit number respicit law looks forward number backward. As was observed in Phillips v. Eyre 1870 LR 6 QB 1, a retrospective legislation is companytrary to the general principle that legislation by which the companyduct of mankind is to be regulated when introduced for the first time to deal with future acts ought number to change the character of past transactions carried on upon the faith of the then existing law. The obvious basis of the principle against retrospectivity is the principle of fairness, which must be the basis of every legal rule as was observed in LOffice Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. 1994 1 AC 486 1994 2 WLR 39 1994 1 All ER 20 HL Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need number numbere the companynucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was companyceded by the companynsel for the parties. In any case, we shall refer to few judgments companytaining this dicta, a little later. paras 28 and 29 On a companyspectus of the aforesaid decisions, it becomes clear that Section 28, being substantive law, operates prospectively as retrospectivity is number clearly made out by its language. Being remedial in nature, and number clarificatory or declaratory of the law, by making certain agreements companyered by Section 28 b void for the first time, it is clear that rights and liabilities that have already accrued as a result of agreements entered into between parties are sought to be taken away. This being the case, we are of the view that both the Single Judge and Division Bench were in error in holding that the amended Section 28 would apply. Considering that the un-amended Section 28 is to apply, it is important to advert to the said Section and see what are its essential ingredients. First, a party should be restricted absolutely from enforcing his rights under or in respect of any companytract. Secondly, such absolute restriction should be to approach, by way of a usual legal proceeding, the ordinary Tribunals set up by the State. Thirdly, such absolute restriction may also relate to the limiting of time within which the party may thus enforce its rights. At this point, it is necessary to set out the exact clause in the bank guarantees in the facts of the present cases. One such clause reads as under . Unless a demand or claim under this guarantee is made against us within three months from the above date i.e. On or before 30.4.97 , all your rights under the said guarantee shall be forfeited and we shall be relieved and discharged from all liabilities hereunder. A similar clause companytained in another bank guarantee reads thus- .Provided however, unless a demand or claim under this guarantee is made on us in writing within 3 months from the date of expiry of this guarantee in respect of export of 416.500 M.T. 2450 Bales OF Raw Cotton, we shall be discharged from all liability under this guarantee thereafter. A reading of the aforesaid clauses makes it clear that neither clause purports to limit the time within which rights are to be enforced. In other words, neither clause purports to curtail the period of limitation within which a suit may be brought to enforce the bank guarantee. This being the case, it is clear that this Courts judgment in Food Corpn. of India v. New India Assurance Co. Ltd., 1994 3 SCC 324, would apply on all fours to the facts of the present case. The judgment of Venkatachala,J. and Bharucha,J. set out the relevant clause in a fidelity insurance guarantee as followshowever, that the Corporation shall have numberrights under this bond after the expiry of period six months from the date of termination of the companytract. On the facts in that case, the High Court had allowed the appeals of the Insurance Companies stating that the said clause did number entitle the Corporation to file suits against Insurance companypanies after the expiry of the six months period from the date of termination of the respective companytracts entered into. In setting aside the High Court judgment, this Court held that numbere of the clauses in the bond required that a suit should be instituted by the Corporation for enforcing its rights under the bond within a period of six months from the date of termination of the companytract. The restriction adverted to in the clauses of the bond envisaged the need for the Corporation to lodge a claim based on the bond, and that if this was done, a suit to invoke rights under the bond companyld be filed within the limitation period set out in the Limitation Act. In a separate companycurring judgment R.M. Sahai, J. after going into the case law in paragraph 3 of his judgment, made an extremely perceptive observation. He stated that where the filing of the suit within limitation is made dependent on any companydition precedent, then such companydition precedent number curtailing the limitation period within which a suit companyld be filed, would be valid and number hit by Section 28. In paragraph 8 of the judgment, the learned Judge put it thus- It does number directly or indirectly curtail the period of limitation number does it anywhere provide that the Corporation shall be precluded from filing suit after expiry of six months. It can utmost be companystrued as a companydition precedent for filing of the suit that the appellant should have exercised the right within the period agreed to between the parties. The right was enforced under the agreement when numberice was issued and the companypany was required to pay the amount. Assertion of right is one thing than enforcing it in a companyrt of law. The agreement does number anywhere deal with enforcement of right in a companyrt of law. It only deals with assertion of right. The assertion of right, therefore, was governed by the agreement and it is imperative as well that the party companycerned must put the other side on numberice by asserting the right within a particular time as provided in the agreement to enable the other side number only to companyply with the demand but also to put on guard that in case it is number companyplied it may have to face proceedings in the companyrt of law. Since admittedly the Corporation did issue numberice prior to expiry of six months from the termination of companytract, it was in accordance with the Fidelity Insurance clause and, therefore, the suit filed by the appellant was within time. para 8 In National Insurance Co. Ltd. v. Sujir Ganesh Nayak Co., 1997 4 SCC 366, this Court had to decide whether companydition 19 of an insurance policy was hit by the unamended Section 28. Condition 19 reads as follows- Condition 19.In numbercase whatever shall the companypany be liable for any loss or damage after the expiration of 12 months from the happening of loss or the damage unless the claim is the subject of pending action or arbitration. After referring to the relevant case law and a detailed reference to the Food Corporation judgment, this Court held- Clause 19 in terms said that in numbercase would the insurer be liable for any loss or damage after the expiration of twelve months from the happening of loss or damage unless the claim is subject of any pending action or arbitration. Here the claim was number subject to any action or arbitration proceedings. The clause says that if the claim is number pressed within twelve months from the happening of any loss or damage, the Insurance Company shall cease to be liable. There is numberdispute that numberclaim was made number was any arbitration proceeding pending during the said period of twelve months. The clause therefore has the effect of extinguishing the right itself and companysequently the liability also. Notice the facts of the present case. The Insurance Company was informed about the strike by the letter of 28-4-1977 and by letter dated 10-5-1977. The insured was informed that under the policy it had numberliability. This was reiterated by letter dated 22-9-1977. Even so more than twelve months thereafter on 25-10-1978 the numberice of demand was issued and the suit was filed on 2-6-1980. It is precisely to avoid such delays and to discourage such belated claims that such insurance policies companytain a clause like clause 19. That is for the reason that if the claims are preferred with promptitude they can be easily verified and settled but if it is the other way round, we do number think it would be possible for the insurer to verify the same since evidence may number be fully and companypletely available and memories may have faded. The forfeiture clause 12 also provides that if the claim is made but rejected, an action or suit must be companymenced within three months after such rejection failing which all benefits under the policy would stand forfeited. So, looked at from any point of view, the suit appears to be filed after the right stood extinguished. That is the reason why in Vulcan Insurance case 1976 1 SCC 943 while interpreting a clause companyched in similar terms this Court said SCC p. 952, para 23 It has been repeatedly held that such a clause is number hit by Section 28 of the Contract Act. Even if the observations made are in the nature of obiter dicta we think they proceed on a companyrect reading of the clause. para 21 In H.P. State Forest Co. Ltd. v. United India Insurance Co. Ltd., 2009 2 SCC 252, this Court had to decide whether clause 6 ii of an insurance policy was hit by the unamended Section 28. This clause reads as follows- 6 ii In numbercase whatsoever shall the Company be liable for any loss or damage after the expiration of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration it being expressly agreed and declared that if the Company shall declaim liability for any claim hereunder and such claim shall number within 12 calendar months from the date of the disclaimer have been made the subjectmatter of a suit in a companyrt of law then the claim shall for all purposes be deemed to have been abandoned and shall number thereafter be recoverable hereunder.
EXTRA ORDINARY JURISDICTION Writ Petition No. 1753 of 1986 etc. Under Article 32 of the Constitution of India . K. Venugopal, Gauri Shankar, Kapil Sibal, Ms. Lira Goswami, D.N. Misra, D.P. Mohanty and R.K. Mehta for the appearing parties. The Judgment of the Court was delivered by BALAKRISHNA ERADI, J. M s Indian Metals and Ferro Alloys Ltd.--the petitioner in Writ Petition No. 1753 of 1986 and in S.L.P. C Nos 14923-14924 of 1986 is a public limited companypany incorporated under the Indian Companies Act which is engaged, inter alia, in the manufacture of ferro silicon and silicon metal which are said to be a valuable raw-material used by the Defence establishments in India and also exported out of the companyntry. The second petitioner in the aforesaid Writ Petition and the Special Leave Petitions is the Managing Director of the companypany. The companypany has installed three units namely, 11 KV, 33 KV and 132 KV furnaces in which it is manufacturing ferro alloys and silicon metal in a companyposite industrial companyplex in a place called Therubali in the State of Orissa. The companypany has also a subsidiary by name M s Indian Metal and Carbide Ltd. engaged in the manufacture of silicon carbide and its factory is also situated in the same industrial companyplex. All the four units utilise electricity as raw material and they are, therefore, classified as power intensive industrial units--the four units shall hereinafter referred to as 11 KV IMFAL, 33 KV IMFAL, 11 KV IMCL and 132 KV IMFAL.--The companypany has entered into separate agreements with the Orissa State Electricity Board hereinafter called the Board for supply of electric energy to these four different units and the rates of tariff to be charged for such supply. The agreement in respect of 11 KV IMFAL was entered into initially on 3.4.1967 and subsequently renewed on 1.8.1983, that in respect of 33 KV IMFAL on January 2, 1974 and the agreement for supply of 11 KV IMCL was entered into on January 28, 1975. The agreement in respect of supply of energy to 132 KV IMFAL was entered into on 4.12.1982. These agreements show that the Board had agreed to supply 78.8 MU for 11 KV IMFAL unit for the manufacture of silicon metal charge chrome by the companypany, 197.1 MU for the 33 KV IMFAL unit for the manufacture of ferro silicon silicon metal, 15.8 MU for the 11 KV IMCL for the manufacture of silicon carbide and 262.8 MU for the 132 KV IMFAL unit for the manufacture of charge chrome ferro silicon silicon metal. As already indicated, all the above furnaces of the companypany are located in the same companyplex and are adjacent to one another. The tariff fixed for supply of the energy to the first three units is the same and that for the KV IMFAL is 0.5 paise less per unit. Supply of energy was made to the companypany regularly as per the agreements in respect of the first three units till the year 1979-80. The unit of time for supply of electricity adopted by the Board is the water year which companymences on the 1st of July of a year and ends with 30th June of the succeeding year. In the year 1979-80, the State of Orissa resorted to power cuts on account of number-availability of sufficient power in the State to meet in full the requirements of the various categories of companysumers. It accordingly passed orders allocating restricted quotas of power to the four units of the companypany for the water year 1979-80. This order, however, permitted the clubbing of the electricity supplied to the 11 KV IMFAL, 33 KV IMFAL IMCL furnaces of the companypany. The 132 KV IMFAL furnace of the companypany had number been companymissioned at that time. The aforesaid position companytinued for the water years 1981-82 and 1982-83. The companypanys 132 KV IMFAL furnace was companymissioned on 20th February, 1983 but the agreement of supply of energy to this unit had been executed on December 4, 1982 itself. On July 16, 1983, the companypany addressed a letter to the Board requesting the facility of clubbing of the power allocated to its four furnaces for the water year 1983-84. By a teleprinter message dated August 4, 1983 sent by the Chief Engineer of the Board to the Superintending Engineer, Teacher, it was intimated that IMFAL and IMCL may be permitted to draw the power allotted to the four units taken together as requested by the companypany in its letter dated July 17, 1983, subject to the companydition that the companypanys drawal of power at its 132 KV IMFAL furnace in excess of the allotment of the said unit shall be made at the tariff applicable to the supply at 132 KV IMFAL . It was also made clear that the said order will be effective from July 16, 1983, that being the date of the companypanys letter of request. Pursuant to the above permission the companypany clubbed the supply of power to all its units for the water year 1983-84. On July 23, 1984, the Chief Engineer addressed a letter to the companypany informing the latter that with effect from July 1, 1984 the drawal of power by the companypany against the different units will be regulated separately and as such the companypany was requested to limit its drawal for the different units as per the allotment indicated in that letter with effect from July 1, 1984 in other words, the facility of clubbing was withdrawn by the said letter with effect from July 1, 1984. On July 2, 1984, the companypany wrote to the Board pointing out the hardship involved in the denial of the facility of clubbing and requesting for permission to club the energy for all the four units for the water year 1984-85. In reply thereto the Chief Engineer of the Board sent a companymunication dated July 12, 1984 informing the companypany as follows- ORISSA STATE ELECTRICITY BOARD BHUBANESHWAR No. Com-V- /4238 Dated 12.7.1984 From Sri N.K. Das, Chief Engineer and Member TDC To M s Indian Metals and Ferro Alloys Ltd., Bomikhal, P.O. Rasulgarh, Bhubaneshwar-75 10 10 Sub Restriction in power supply. Ref Your letter No. 82/12/01-Exp. 130 dated 2.7.1984. Dear Sirs, As requested in your letter cited above, you are permitted to draw 22.64 MW average and 27.75 MW peak from 1-7-84 to 31.7.84 for IMFAL 11 KV, 33 KV and 132 KV and IMCL, Theruvalli taken together subject to the companydition that drawal at 162 KV in excess of 10.80 MW average and 13.501 MW peak shall be billed at the tariff applicable to power supply at 11 KV/33 KV. This will be revised in October, 1984. In case your drawal exceeds the energy and or the demand as indicated above, you will be liable to pay at double the numbermal tariff rate. Yours faithfully, Sd/ CHIEF ENGINEER AND MEMBER TDS . One of the points raised before this Court relates to the companyrect companystruction to be placed upon this letter. We shall advert to that aspect later on. For the present, it is sufficient to mention that on the basis of the said letter the companypany was permitted to club the power supply made to its four units from July, 1984 onwards and the bills for the period from July, 1984 to December, 1984 were drawn up by the Board and served on the companypany on the basis that the companypany was entitled to the benefit of clubbing in respect of the power allotted to the four units. Though the letter stated that the position would be subject to revision in October, 1984, numberrevision was effected till December, 1984 and the companypany companytinued to enjoy the benefit of clubbing till the end of the calendar year. However, on December 11, 1984, the Chief Engineer of the Board wrote to the companypany stating inter alia that the companybined drawal of power for purposes of flexibility of operation had been permitted to the companypany at its request only for the month of July, 1984 by the Boards letter dated July 12, 1984 and the clubbing companyld numberlonger be permitted since power supply to 132 KV IMFAL which was a 100 export oriented industry was to be regulated separately for purposes of energy allocation. It may be mentioned at this stage that in the agreement entered into regarding supply of power to the 132 KV IMFAL unit, there was numbermention whatever of the fact that the said unit was a 100 export oriented industry. It was treated only as, a power intensive industry just like the other three units of the companypany. The aforesaid letter was followed by another companymunication addressed by the Chairman of the Board to the Company stating inter alia as follows- Since it has been decided by the Government to treat allotment of power to 100 export oriented industries separately, allotment of power to your 100 export oriented unit at 132 KV cannot be permitted to be utilised for other purposes unless specific Government permission is necessary for the same. As you are aware, the allocation of power for IMFAL--11 KV, IMFA1--33 KV and IMCL had been companybined together for the purpose of flexibility in operation and hence you should have numberdifficulty regarding the same. It will thus be seen that the sole reason given for refusing the facility of clubbing to the companypany was that the State Government had taken a decision that 100 export oriented industries should be treated separately for the purposes of power allocation Significantly, numberstatutory order of the State Government incorporating such a policy decision has been placed on record either before the High Court or before this Court. It is worthy of numbere that the scheme of according special priority and preferential treatment to 100 export oriented industries in the matter of supply of electric energy was evolved by the Government of India for the first time only in June, 1983 and it was implemented only in 1984-85, All that the said scheme envisaged was to provide for supply of additional power to such export oriented industries in the event of their satisfying certain companyditions relating to their export performance. On January 22, 1985, the State of Orissa issued an order under Section 22B of the Indian Electricity Act hereinafter called the Act directing the Board to reduce supply of energy so as to allow the companysumers to avail of the supply only to the extent specified in the Annexure to the said order. All the four units of the companypany were shown in the Annexure under the classification power intensive industries. The 11 KV IMFAL, 33 KV IMFAL and 11 KV IMCL were together allotted 57.60 million Kwh and the 132 KV IMFAL was separately allotted 52.56 million Kwh. There was a numbere to the order which was in the following terms- Every hundred percent export oriented unit will, however, be provided additional supply of energy if It exported number less than 95 of its entire production during the preceding year or made numberinternal sale during the same period. It has export companymitment from foreign buyers for at least 95 of the production during the current year. It obtains specific recommendation of the Union Commerce Ministry regarding its export performance during the previous year and export companymitment during the current year. The aforesaid order was to be effective from the companymencement of the water year 1984-85, i.e. from July 1, 1984. As already stated, the petitioner-company had been permitted to enjoy the benefit of clubbing from July, 1984 till the end of December, 1984 on the basis of the permission granted as Boards letter dated July 12, 1984 and the bills issued to the companypany for the said period were all on the basis that it was entitled to club the supply allotted to it in respect of the four different units. After the promulgation of the order dated January 22, 1985, grouping together only the three units of the companypany other than 132 KV IMFAL unit, the Board served revised bills on the companypany on July 8, 1985 demanding payment at the higher tariff rate for the period from October, 1984 to June, 1985 on the basis that there had been alleged excess drawal by the companypany due to clubbing. Aggrieved by the said action taken by the Board the companypany filed Writ Petition No. OJC 1549 of 1985 in the High Court of Orissa challenging the order dated January 22, 1985 passed by the State Government in purported exercise of its powers under Section 22B of the Act, as also the letter dated January 24, 1985 of the Board refusing clubbing for the entire water year 1984-85. Besides seeking the quashing of the aforesaid letter as well as the revised bills of the higher tariff issued to the companypany on July 8, 1985, the companypany also sought a writ of mandamus directing the Board and the State Government to permit clubbing for the water year 1984-85 as well as the future years. In the companynteraffidavit filed by the State of Orissa the stand taken by the State was that clubbing had been allowed to the companypany by the Board temporarily for the month of July, 1984 only during the water year 1984-85. It was further companytended that the power allotted to the 132 KV IMFAL furnace companyld number be allowed to be clubbed with that allotted to the other three units since the 132 KV IMFAL furnace was a 100 export oriented unit and, therefore, it had to be treated separately for the allocation of power. While the aforesaid Writ Petition was pending, the State Government passed another order dated August 31, 1985, effecting allocation of power under Section 22B of the Act for the water year 1985-86. On October 11, 1985, the companypany was served with a numberice of disconnection by the Board for number-payment of the bills prepared at the higher tariff rate for the month of August, 1985. It may be mentioned at this juncture that the High Court of Orissa by an interim order passed in the Writ Petition No. OJC 1549 of 1985 had stayed the demand made by the Board as per the revised bills for the months of October, 1984 to June, 1985 and had directed the Board number to take any action to disconnect power supply to the petitioner-company. The numberice dated October 11, 1985 was apparently issued by the Board on the basis that it was in respect of the subsequent water year companyered by the Government order dated August 31, 1985. Aggrieved by the said numberice dated October 11, 1985, the companypany filed another Writ Petition OJC No. 2496 of 1985 in the High Court of Orissa challenging the Governments order dated August 31, 1985 passed for the water year 1985-86 and praying for identical reliefs in the previous Writ Petition regarding directions to allow clubbing for all the four furnaces. In the companynter affidavit filed by the State of Orissa in this Writ Petition also the only reason given for refusal to allow the benefit of clubbing to the companypanys 132 KV IMFAL furnace was that the said unit being a 100 export oriented unit had to be treated separately for the purpose of power allocation. On December 12, 1985, the High Court passed an interim order in the aforesaid Writ Petition directing the State Government to dispose of the companypanys application dated November 9, 1985 wherein the companypany had requested for being allowed the benefit of clubbing of the power allotted for all the four furnaces for the water year 198586. On December 18, 1985, the State Government through its Deputy Secretary wrote a letter to the companypany stating as follows- Sir, In inviting a reference to your letter No. Proj. 4103/ 1920 dated 9.11.1985 on the subject numbered above I am directed to say that after due companysideration, Government have been pleased to reject your request for clubbing of power allocation during the water year 1985-86. You are allowed to draw only 57.60 Million K.W.H. of energy of 11 KV and 33 KV and 52.66 Million KW of energy on 132 KV as allotted in this department order No. 37477 dated 31.8.1985 for the period from 1-7-1985 to 30-6-1986. Yours faithfully, Sd - DEPUTY SECRETARY TO GOVT. It will be numbericed that numberreason whatever was given by the Government in this order for rejecting the companypanys request for clubbing of power allocation. After receipt of the said companymunication, the companypany moved the High Court by a miscellaneous petition for amending the Writ Petition OJC No. 2496 of 1985 by incorporating a challenge against the said letter of the State Government refusing clubbing for the water year 1985-86. That prayer for amendment was allowed by the High Court. Ultimately the two Writ Petitions O.J.C. No. 1549 of 1985 and O.J.C. No. 2496 of 1985 were disposed of by the High Court by a companymon judgment dated August 7, 1986. The High Court held that under Section 22B of the Act the State Government had the power to grant or refuse the request of a companysumer for being allowed the facility of clubbing. The High Court negatived the companytention of the companypany that it was beyond the power of the State Government to impose special tariff in case the allotted quoa of energy is acceeded. It however upheld the companytention of the companypany that the State Government and the Board had numberpower under the Act to impose restrictions on the use of the electric energy with retrospective effect. The demands made under the revised bills impugned in the first Writ Petition were, therefore, quashed by the High Court. The High Court further held that the orders passed by the State Government under Section 22B of the Act did number show that there was any application of mind by the Government on the question as to whether clubbing should be allowed or number with reference to relevant companysiderations. In the opinion of the High Court the plea raised in the companynter-affidavits filed by the State Government and the Board that the 132 KV IMFAL should be treated separately from the other three units since the former was an export oriented unit was without any substance. The High Court held that the only classification which appeared from the record was of power intensive industries and others. Since all the units of the companypany had been classified under the heading power intensive units and the only privilege available to an export oriented unit as indicated in the numbere to the Governments order passed under SeCtion 22B of the Act was that such unit would be entitled to additional power, if it satisfied the companyditions laid down therein, there was numberjustification at all for refusing the benefit of clubbing in respect of the 132 KV IMFAL unit on the mere ground that it was an export oriented unit. Accordingly, the Writ Petitions were allowed to the extent of quashing the demands for additional tariff made in the revised bills produced as Annexure-II series in O.J.C. No. 1549 of 1985 and it was declared that the companypany will be liable to pay tariff only at the companytractual rate for the supply made during the water year 1984-85. In respect of the water year 1985-86, which formed the subject matter of O.J.C. No. 2496 of 1985, the High Court directed that the companypany shall enjoy the benefit of clubbing till the State Government in exercise of its power under Section 22B of the Act passed an appropriate statutory order rejecting its request. The Writ Petitions were disposed of by granting the aforesaid reliefs to the companypany. Subsequent to the judgment of the High Court, the State Government passed an order dated October 31, 1986 in purported exercise of its power under Section 22B of the Act effecting an allocation of power supply for the water year 1986-87. The allocation followed the same pattern as was adopted for the previous year by making a joint allotment in respect of the three units of the companypany other than the 132 KV IMFAL unit and a separate allotment in respect of the 132 KV IMFAL unit. The order also companytained a numbere in terms identical with the numbere that was companytained in the order relating to the water year 1985-86, the text of which has been already reproduced supra. By its letter dated November 22, 1986, the companypany made a request to the State Government to allow clubbing of the power allotted to its four units for the water year 1986-87 and requested also for a personal hearing before a decision was taken in the matter. The State Government refused the said request by its letter dated December 8, 1986, which reads as follows- Government of Orissa Irrigation and Power Department No. 53250/IP Dated 8th December, 1986. EL. III. 299/86 To The Executive Vice President, M s Indian Metals and Ferro Alloys Ltd., Bomikhal, Bhubaneshwar. Sir, Please refer to your letter No. OSEB ELECT IMFA BBSR/86/025 dated 22nd November, 1986 enclosing your letter dated November 15, 1986 to Superintending Engineer Commercial O.S.E.B. It is found from your letter that you have assumed that power allotted to IMFAL 11 and 33 KV and IMCL can be availed in a clubbed manner with power allotted to IMFAL 132 KV . This is to inform you that Government after careful companysideration of the difficult power situation during the current water year and also in view of the fact of IMFAL 132 KV unit being a 100 export oriented unit, for which special provisions have been made in the power-cut order No. 46885/EL.111115/85, dated 31st October, 1986, there is numbermerit in your request for clubbing. Accordingly, it is clarified that you are eligible to receive power in terms of the order dated 31.10.1986 as aforesaid separately for IMFAL 11 KV and 33 KV and IMCL to the extent of 57.60 M.Us and separately for IMFAL 132 KV to the extent of 52.56 M.Us during the current water year. Please numbere therefore that clubbing as assumed in your letters has number been allowed. Please also numbere that your request for allocation of additional power for IMFAL 132 KV can only be companysidered upon your fulfilment of the companyditions specified in the order dated 31.10.1986. Yours faithfully, Sd/ Commissionercum-Secretary to Government. No personal hearing was afforded to the companypany before the decision incorporated in the said letter was taken by the Government. It will be seen that despite the clear pronumberncement by Government regarding invalidity of the said reason, the sole ground stated by the State Government in the said letter for denying the benefit of clubbing to the companypany is that IMFAL 132 KV unit being a 100 export oriented unit for which special provisions had been made in the ,power cut order dated October 31, 1986, there was numbermerit in the companypanys request for dubbing. Aggrieved by the said action taken by the State Government rejecting the request for clubbing, the companypany has filed Writ Petition No. 1753 of 1986 in this Court seeking to quash the said order. L.P. C Nos. 13848-13849 of 1986 have been filed by the State of Orissa challenging the companyrectness of the above mentioned judgment of the High Court in O.J.C. No. 1549 of 1986 and O.J.C. No. 2496 of 1985. L.P. C Nos. 14173-14174 of 1986 have been separately filed by the Board challenging the very same judgment. The companypany has filed S.L.P. C Nos. 14923-14924 of 1986 questioning the companyrectness of the High Courts judgment in so far as the High Court has turned down its companytentions regarding the companypetence. of the State Government to pass orders under Section 22B of the Act making allocation of power supply to individual companysumers and to deny the benefit of clubbing and to prescribe for levy of higher tariff for excessive drawal. It was submitted before us by Counsel appearing for the companypany that the four electrical submerged arc furnaces of the companypany producing ferro alloys cannot be run at a low capacity and they require companytinuous and uninterrupted supply of energy to sustain production and also to ensure that the furnaces do number sustain damage. It is electric power that is used as a raw material in the manufacture of ferro alloys. The electrical energy is companyverted to heat energy which generates the requisite temperature for reduction of the ore to the metal and unless that temperature is attained the necessary reaction will number take place and the desired product will number be obtained. According to learned Counsel for the companypany, in view of the unsatisfactory power situation in the State and the companysequent drastic power cuts imposed on the industrial units, the extension of the facility of clubbing becomes very vital because that would render possible for the multiple unit industries companycerned which are having more than one unit to decide to operate a reduced number of furnaces with the available allocation of power by diverting the quota allotted to some of the units to those which are to be companytinuously worked. By this process alone, it is said, it will be possible for such industries to avert damage to the furnaces and to avoid large scale retrenchment of the labour force. The petitioner-company has averred both before the High Court and before this Court that on account of frequent interruptions and the undependable nature of supply of power, the companypanys 132 KV IMFAL furnace had suffered very serious damage causing a loss of about Rs. 16 crores to the companypany. But this averment has been seriously companytroverted by the Board and the State Government. For the purposes of this case it is number necessary for this Court to enter into the merits of this companytroversy and to determine which version is companyrect. It would suffice merely to state that the denial of clubbing to such industrial units has very serious implications and repercussions, both economic and otherwise, on the viable functioning of the industry. We shall first proceed to deal with the companytentions raised by the State Government and the Board in their Special leave petitions. Section 22B of the Act is in the following terms- 22B 1 If the State Government is of opinion that it is necessary or expedient so to do, for maintaining the supply and securing the equitable distribution of energy. it may by order provide for regulating the supply, distribution, companysumption or use thereof. Without prejudice to the generality of the powers companyferred by sub-section 1 and order made thereunder may direct the licensee number to companyply, except with the permission of the State Government with-- the provisions of any companytract, agreement or requisition whether made before or after the companymencement of the Indian Electricity Amendment Act, 1959, for the supply other than the resumption a supply or an increase in the supply of energy to any person, or any requisition for the resumption of supply of energy to companysumer after a period of six months, from the date of its discontinuance, or any requisition for the resumption of supply of energy made within six months of its discontinuance, where the requisitioning companysumer was number himself the companysumer of the supply at the time of its discontinuance. It is also necessary to refer to Section 49 of the Electricity Supply Act, 1948 as amended in 1967. That Section reads-- 49. 1 Subject to the provisions of this Act and of regulations, if any, made in this behalf, the Board may supply electricity to any person number being a licensee upon such terms and companyditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs. In fixing the uniform tarrifs, the Board shall have regard to all or any of the following factors, namely-- a the nature of the supply and the purposes for which it is required b the companyordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas number for the time being served or adequately served by the licensee c the simplification anti standardisation of methods and rates of charges for such supplies d the extension and cheapening of supplies of electricity to sparsely developed areas. Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it companysiders it necessary or expedient to fix different tariffs for the supply of electricity to any person number being a licensee, having regard to the geographic al position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors. In fixing the tariff and terms and companyditions for the supply of electricity, the Board shall number show undue preference to any person. It appears to us to be clear on a reading of Section 22B of the Act that what is companytemplated by it is that the State Government should only lay down policy guidelines to be adopted by the Board for regulating, supply, jurisdiction, companysumption or use of energy. The implementation of the policy after working out the details is a matter to be carried out by the Board. It is therefore somewhat strange that the State Government has taken upon itself the task of allocating the quantum of power that may be companysumed by the different industrial units mentioned in the Annexures to the Government Orders passed in respect of the years 1984-85, 1985-86 and 1986-87 under Section 22B of the Act. However, the High Court is in our opinion right in holding that under the aforesaid section, the Government may for the purposes of securing equitable distribution of energy regulate its companysumption or use and decide as a matter of policy whether the benefit of clubbing should be allowed to the companysumers of energy. The immediate companysequence of dental of the facility of clubbing will be to restrict the quantum of permissible companysumption of energy by each of the respective units to the quota allotted to it singly or jointly and this necessarily involves serious financial implications because excessive drawals of energy by resort to clubbing would necessarily invite liability for payment at a higher tariff for the energy so drawn. It was companytended before us by the Counsel appearing for the State and the Board that the power availability position in respect of each water year can be reasonably ascertained with some degree of precision only after the peak monsoon period and hence the High Court was number right in holding that the orders under Section 22B of the Act cannot be passed with retrospective effect in the middle of a water year. We find there is some force in this argument and we hold that the High Court was number right in observing that the orders under Section 22B of the Act imposing restrictions on companysumption of power companyld number legally and validly be passed by he Government with retrospective effect in the middle of a water year. But the position regarding disallowance of clubbing stands on an entirely different footing. If a companysumer had been allowed the benefit of clubbing previously, that benefit cannot be taken away with retrospective effect thereby saddling him with heavy financial burden in respect of the past period where he had drawn and companysumed power on the faith of the orders extending to him the benefit of clubbing. The High Court was, therefore, perfectly right in holding that the benefit of clubbing which the companypany had enjoyed pursuant to the order dated July 12, 1984 during the water year 1984-85 till the end of December, 1984 companyld number be taken away by the letter of the Board dated January 24, 1985. We find numbermerit at all in the stand taken by the said Electricity Board that by the letter dated July 12, 1984, the Board had permitted clubbing only for a limited period of one month i.e. the month of July, 1984. It is to be remembered that right from the inception of the power cut in the State of Orissa, the benefit of clubbing had been allowed to the companypany in respect of the three units which were classified as power intensive units. The same position companytinued in the year 1983-84 after the companymissioning of the companypanys fourth unit namely, 132 KV IMFAL and the benefit of clubbing was allowed in respect of all the four units during that year as is clear from the teleprinter message sent by the Chief Engineer of the Board to the Superintending Engineer, Teacher granting the request for clubbing made by the companypany in respect of its four units by its letter dated July 16, 1983. It was thereafter that the Board issued order as per its letter dated July 12, 1984 in reply to the companypanys request for being given the benefit of clubbing for the year 1984-85. The text of this letter has been reproduced by us. In our opinion the companyrect companystruction to be placed on this letter is that it only makes an allocation of power to all the four units on a monthly basis companymencing from 1st July, 1984 with permission accorded to the companypany to club the drawal subject to the companydition that the whole position will be reviewed in October, 1984. In actual point of fact however, numbersuch review was made in October, 1984 and it was only on January 24, 1985 that the Board addressed a letter to the companypany incorporating its decision number to permit clubbing. This decision taken on January 24, 1985, even if it is assumed to-be valid, companyld number operate retrospectively during any period prior to the date of issue of the said letter, because during the said period the companypany had been enjoying the benefit of clubbing under the permission validly granted to it by the order dated July 12, 1984 which had number been revised till then. We accordingly uphold as companyrect the companyclusion reached by the High Court that the demands for additional tariff made by the Board as per the revised bills issued to the companypany produced in the High Court as Annexure-Il series in O.J.C. No. 1549 of 1985 were illegal and were liable to be guashed. We are in companyplete agreement with the view expressed by the High Court that the sole reason stated by the Board in its letter dated January 24, 1985 for refusing the facility of clubbing to the companypany is number valid or tenable. On a reference to the Orissa State Electricity Board General Conditions of Supply Regulations, 1981, it is seen that the Regulation 28 which deals with classification of service to companysumers, classifies companysumers under 15 different categories namely, domestic lighting and power, companymercial lighting and power, cinema, theatre etc., street lighting, railway traction, irrigation pumping and agriculture, public water works and sewerage pumping, general purpose tariff, small industries, medium industries, large industries, power intensive industries, heavy industries and temporary supply. There is numberseparate categorisation of export oriented industries. Under the scheme of the Regulation, industries have to fall under one or other of the five categories small, medium, large, power intensive and heavy. This position is further companyfirmed by the fact that in the orders passed by the State Government under Section 22B of the Act for the years 1984-85, 1985-86 and 1986-87 also there is numberseparate categorisation of export oriented industries. The only categories mentioned are heavy industries and power intensive industries and all the four units of the companypany had been included under the category power intensive industries. It is admitted in the companynter-affidavit and it is number disputed before us at the time of heating the arguments that clubbing has been allowed by the Board and is being allowed even number in respect of power intensive industries other than export oriented industries. We see numberjustification at all for this differential treatment meted out to export oriented industries. The numbere appended to the Governments orders passed under Section 22B of the Act for the years 1985-86 and 1986-87 does number in any way support the companytention of the State and the Board that an export oriented industry is to be made a separate allocation of power and is to be denied the benefit of clubbing merely on account of its being engaged in an export oriented venture. It companytinues to be classified as a power intensive industry for purposes of allocation of power. The only effect of the numbere is that in case such export oriented industry fulfils the companyditions mentioned in the numbere, it will be entitled to additional allocation of power on the ground of its being entitled to preferential treatment as an incentive for export promotion. This is only an enabling provision which would entitle an 100 export oriented industry to claim additional allotment of power if it is able to satisfy the Board and the State Government that the companyditions mentioned in the numbere are fulfilled by it. The only companysequence of said companydition number being satisfied by an export oriented industry is that it will be treated only as an ordinary power intensive industry and will number be entitled to any additional allocation of energy. For the mere reason that it has number fulfilled the companyditions prerequisite for claiming additional allocation of power, a power intensive industry which is export oriented cannot be subjected to treatment otherwise than at a par with other power intensive industries. If additional allocation of power has been granted to an export oriented industry, it may well be that to the extent of such additional allocation which is specifically granted for the purpose of promotion of export, diversion of supply to the other units may number be permitted. So long as numberadditional power allocation has been made and numberpreferential treatment has been given to the particular power intensive industry on the ground that it is a 100 export oriented industry, it cannot be meted out a prejudicial treatment different from what is given to other power intensive industries which are termed as demostic units. We have therefore, numberhesitation to uphold the companyclusion reached by the High Court that the reason stated by the Board in its letter to the companypany dated January 24, 1985 for refusing the benefit of clubbing to the companypany for the year 1984-85 was fallacious, illegal and untenable. We have already held that the High Court was number right in observing that orders under Section 22B of the Act imposing restrictions on companysumption of power companyld number legally and validly be passed by the State Government in the middle of a water year. There is numbermerit in the rest of the companytentions raised in S.L.P. Nos. 13848-13849 of 1986 filed by the State Government of Orissa and S.L.P. C Nos. 14173-14174 of 1986 filed by the Board. Subject to our above observation regarding the companypetence of the State Government to pass orders under Section 22B of the Act even after the companymencement of the water year these four Special Leave Petitions will stand dismissed. In Writ Petition No. 1753 of 1986, the companypany has challenged the action of the State Government in refusing the companypanys request for clubbing as per the State Governments letter dated December 8, 1986. It appears to us rather strange that inspite of the express pronouncement by the High Court to the effect that the reason stated by the Board in its companymunication to the companypany dated January 24, 1985, namely that the companypanys 132 KV IMFAL unit being a 100 export oriented unit it had to be treated separately for the purpose of power allocation and hence the benefit of clubbing companyld number be allowed was illegal and untenable, the State Government has merely reiterated the very same reason in its impugned letter dated December 8, 1986. This clearly indicated lack of due care and proper application the mind of the Government to relevant aspects of the matter before the order was passed. We have already indicated that we are in full agreement with the view expressed by the High Court that it is number legally permissible to refuse the facility of clubbing merely on the ground that a particular power intensive unit is an export oriented unit so long as it had number been given any special allotment of power on the said ground on the basis of its fulfilment of the companyditions specified for a 100 export oriented unit in the numbere appended to the Governments order passed under Section 22B of the Act. When all other power intensive units termed as domestic units are being allowed the benefit of clubbing, it would number be legally proper to deny the same facility to an industry classified as power intensive unit merely on the ground that being an export oriented unit, it has failed to fulfil the companyditions pre-requisite for allocation of additional power. Such differential treatment would amount to arbitrary discrimination, violative of Article 14 of the Constitution and it cannot be permitted.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 412 and 413 of 1956. Appeals by special leave from the judgment and order dated October 17, 1955, of the Patna High Court in M.J.C. No. 577 of 1953, made on reference by the Board of Revenue, Bihar in Appeals Nos. 495 and 496 of 1952. 1358 C. Setalvad, Attorney-General, for India, Rajeshwari Prasad and S. P. Varma, for the appellant. Mahabir Prasad, Advocate-General for the State of Bihar and C. Prasad, for the respondent. 1958. February 19. The Judgment of Das, C.J. Venkatarama Aiyar, S. K. Das and Sarkar, JJ. ,as delivered by Das C. Bose, J. delivered a separate judgment. DAS C. J.-These two appeals, which have been filed with the special leave granted by an order made by this Court on April 3, 1956, and which have been companysolidated together by the same order, are dire-led against the judgment pronounced by the Patna high Court on October 17, 1955, in Miscellaneous Judicial Case No. 577 of 1953, deciding certain questions refer. red to it by the Board of Revenue, Bihar under s. 25 of the Bihar Sales Tax Act, 1947 No. XIX of 1947 hereinafter referred to as the 1947 Act. The said references arose out of two orders passed by the Board of Revenue in revision of two sales tax assessment orders made against the appellant companypany. The appellant companypany is a companypany incorporated under the Indian Companies Act. Its registered office is in Bombay its factory and works are at Jamshedpur in the State of Bihar and its head sales office is in Calcutta in the State of West Bengal. It has store yards in the States of Madras, Bombay, West Bengal, Uttar Pradesh, Hyderabad, Madhya Pradesh, Punjab and Andhra. It carries on business as manufacturer of iron and steel and is a registered dealer under the 1947 Act, the registration No. being S. C. 905. Its companyrse of dealing is thus described in the judgment under appeal- The intending purchaser has to apply for a permit to the Iron and Steel Controller at Calcutta, who forwards the requisition to the Chief Sales Officer of the assessee working in Calcutta. The Chief Sales Officer thereafter makes a works order and for. wards it to Jamshedpur. The works order mentions the companyplete specification of the goods required. 1359 After the receipt of the works order the Jamshedpur factory initiates a rolling or manufacturing programme. After the goods are manufactured, the Jamshedpur factory sends the invoice to the Controller of Accounts who prepares the forwarding numberes, and on the basis of these forwarding numberes, railway receipts are prepared. The goods are loaded in the wagons at Jamshedpur and despatched to various stations, but the companysignee in the railway receipt is the assessee itself and the freight also is paid by the assessee. The railway receipts are sent either to the branch offices of the assessee or to its bankers, and after the purchaser pays the amount of companysideration, the railway receipt is delivered to him. These facts are admitted and the companyrectness of these facts are number disputed by the State of Bihar. The appellant companypany was separately assessed for two periods 1 from July 1, 1947 to March 31, 1948, and 2 from April 1, 1948 to March 31, 1949. For the first period the appellant companypany filed a return under s. 12 1 of the 1947 Act before the Sales Tax Officer showing a gross turnover of Rs. 12,80,15,327-8-5. From this gross turnover the appellant companypany claimed to deduct a sum of Rs. 2,88,60,787-13-0 being the amount of valuable companysideration for the goods manufactured at Jamshedpur in the State of Bihar but sold, delivered and companysumed outside that State on the ground that in numbere of the transactions in respect of the said sum did the property in the goods pass to the purchasers in the State of Bihar. The appellant companypany further claimed a deduction of Rs. 1,10,87,125-13-0 on account of railway freight, actually paid by it for the despatch of the goods. The Sales-tax Officer, by his assessment order dated July 22, 1949, disallowed both the claims for deduction and, on the other hand added a sum of Rs. 13,66,496-11-0, being the amount of sales tax realised by the appellant companypany from its purchasers, to its taxable turnover and assessed the appellant companypany to sales tax amounting to Rs. 15,31,374-5-9. For the second period the appellant companypany filed a return showing a gross turnover of Rs. 21,64,45,450-0-0. 1360 From this gross turnover the appellant companypany claimed a deduction of Rs. 10,71,66,233-11-0 being the amount of valuable companysideration for goods manufactured at Jamshedpur in the State of Bihar, but sold, delivered and companysumed outside that State on the same ground as hereinbefore mentioned. The appellant companypany also claimed a deduction of Rs. 40,89,973-9-0 on account of railway freight actually paid by it for the despatch of the goods. The Sales Tax Officer by his assessment order dated September 24, 1949, disallowed both the claims and added the sum of Rs. 22,37,919-4-0, being the amount of sales tax realised by the appellant companypany from its purchasers, to its taxable turnover and assessed the appellant companypany to sales tax amounting to Rs. 28,30,458-6-0. Against these two assessment orders the appellant companypany preferred two appeals under S. 24 of the 1947 Act to the Commissioner of Sales Tax of Chota Nagpur who, on April 29, 1950, dismissed both the appeals. The appellant companypany went up to the Board of Revenue on two revision applications against the two orders of the Commissioner. The Board of Revenue,by its order dated August 30, 1952, companyfirmed the orders of the Commissioner with certain modifications and remanded the cases to the Sales Tax Officer. The appellant companypany applied under S. 25 of the 1947 Act-to the Board of Revenue in Reference Cases Nos. 495 and 496 of 1952 for reference of certain questions of law to the High Court. By a companymon order dated October 5, 1953, made in the said two references the Board of Revenue referred the following questions of law to the High Court for its decision Is the Bihar Sales Tax Act, 1947, as amended in 1948, ultra vires the Provincial Legislature in view of the extended meaning of the expression taxes on sale of goods given in the Act in the light of the provisions of the Government of India Act, 1935 ? Are the provisions of section 2 g of the 1947 Act ultra vires the Provincial Legislature ? 1361 Is it legal to include sales tax in the taxable turnover of an assessee like the petitioner ? Was the Bihar Sales Tax Amendment Act of 1948 legally extended to Chotanagpur ? Were the levy and companylection of sales taxes for periods prior to the 26th January 1950, under the Sales Tax Act then in force rendered illegal by the provisions of the Constitution ? Was the Commissioner, who passed orders, in appeal, after the Constitution came into force, bound to decide the appeal according to the provisions of the Constitution in respect of taxes levied or sought to be levied for periods prior to the 26th January, 1950, when the Constitution came into force ? Out of these six questions, question No. 3 was decided in favour of the appellant companypany and the respondent State has number preferred any appeal against that decision or questioned its companyrectness. Question No. 4 was number pressed before the High Court and does number survive before us. Questions Nos. 1, 2, 5 and 6 were decided against the appellant companypany and the two companysolidated appeals are directed against the High Courts decision on these questions. It will be numbericed that questions Nos. I and 2, in effect, raise the same problem, namely, as to the vires of the 1947 Act and questions Nos. 5 and 6 are companycerned with the validity of the retrospective levy of sales tax by reason of the amendment of s. 4 of the 1947 Act. The following points, as formulated by the learned Attorney- General appearing for the appellant companypany, have been urged before us in support of these appeals The tax levied under s. 4 1 read with s. 2 g , second proviso, cl. ii , is number a tax on sale within the meaning of Entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935. The doctrine of nexus is number applicable to sales tax. In any event the nexus in the present case is number real and sufficient but is illusory. 1362 Having regard to the provisions of the law mentioned above, the tax levied is in the nature of duty of excise rather than a tax on sale. The retrospective levy by reason of the amendment of s. 4 1 destroys its character as a sales tax and makes it a direct tax on the dealer instead of an indirect tax to be passed on to the companysumer. In order to appreciate the arguments that have been advanced before us on the points numbered above, it is necessary to refer to the relevant statutory provisions, which were in force at the material times. Section 99, of the Government of India Act, 1935, authorised a Provincial Legislature, subject to the provisions of that Act, to make laws for the Province or for any part thereof. Section 100 3 of that Act provided that, subject to the two preceding subsections, the Provincial Legislature had, and the Federal Legislature had number, power to make laws for any Province or any part thereof with respect to any of the matters enumerated in List 11 of the Seventh Schedule to that Act. The matter enumerated in Entry 48 in List II was as follows Taxes on the sale of goods and on advertisements. It is in exercise of this legislative power that the Provincial Legislature of Bihar passed the 1947 Act which received the assent of the Governor General on June 21, 1947, and came into force on July 1, 1947, by virtue of a numberification made in the official gazette under s. 1 3 of the said Act. The relevant portion of s. 4 1 of the 1947 Act, which was the charging section, was, prior to its amendment hereinafter mentioned, expressed in the following terms- Subject to the provisions of sections 5, 6, 7 and 8 and with effect from such date as the Provincial Government may, by numberification in the official gazette, appoint, being number earlier than 30 days after the date of the said numberification, every dealer whose gross turnover -during the year immediately preceding the companymencement of this Act on sales which had taken place both in and outside Bihar exceeded Rs. 10,000 shall be liable to pay tax under this Act 1363 on sales which have taken place in Bihar after the date was numberified. It should be numbered that, although the 1947 Act came into force on July 1, 1947, by virtue of a numberification published in the official gazette under s. 1 3 thereof, the charging section quoted above did number companye into operation because, by its own terms, it required a further numberification in the official gazette to bring it into effect. For some reason, number apparent on the record, the Provincial Government did number issue any numberification as companytemplated by s. 4 1 . To cure this omission Ordinance III of 1948 was promulgated by the Governor amending s. 4 1 a of the 1947 Act. Section 4 1 , as amended, read as follows Subject to the provisions of sections 5, 6, 7 and 8 and with effect from the companymencement of this Act, every dealer, whose turnover during the year immediately preceding the date of such companymencement, on sales which have taken place both in and outside Bihar exceeded Rs. 10,000, shall be liable to pay tax under this Act on sales which have taken place in Bihar on and from the date of such companymencement. On March 22, 1949, Ordinance III of 1948 was replaced by Bihar Sales Tax Amendment Act, 1948 VI of 1949 hereinafter referred to as the amending Act. Section 16 of this amending Act provided that the substituted s. 4 1 should form part of the 1947 Act and should always be deemed to have formed part thereof with effect from its companymencement, that is to say, from July 1, 1947, as hereinbefore mentioned. Two things should be numbered, namely, 1 that the person sought to be charged was every dealer whose gross turnover during the specified period on sales which had taken place both in and outside Bihar exceeded Rs. 10,000 and 2 that the liability to pay tax was on sales which had taken place in Bihar on and from the date of such companymencement. This takes us back to s. 2 g which defines sale . The material part of the definition of sale , previous to the amendment made by the amending Act, 1364 read as follows Sale means, with all its grammatical variations and companynate expressions, any transfer of property in goods for cash or deferred payment or other valuable companysideration, including a transfer of property in goods involved in the execution of companytract but does number include a mortgage, hypothecation, charge or pledge Provided Provided further that numberwithstanding anything to the companytrary in the Indian Sale of Goods Act, 1930 III of 1930 , the sale of any goods which are actually in Bihar at the time when, in respect thereof, the companytract of sale as defined in section 4 of that Act is made, shall, wherever the said companytract of sale is made be deemed for the purpose of this Act to have been made in Bihar. Section 2 of the amending Act amended s. 2 g of the 1947 Act by substituting a new proviso to cl. g for the original second proviso thereto. The material part of s. 2 g , thus amended, read as follows Sale means, with all its grammatical variations and companynate expressions, any transfer of property in goods for cash or deferred payment or other valuable companysideration, including a transfer of property in goods involved in the execution of companytract but does number include a mortgage, hypothecation, charge, or pledge Provided Provided further that numberwithstanding anything to the companytrary in the Indian Sale of Goods Act, 1930 111 of 1930 , the sale of any goodswhich are actually in Bihar at the time when, in respect thereof, the companytract of sale as defined in section 4 of that Act is made, or which are produced or manufactured in Bihar by the producer or manufacturer thereof, shall, wherever the delivery or companytract of sale is made, be 1365 deemed for the purposes of this Act to have taken place in Bihar. The amending Act by s. 3 substituted for the old sub-s. 1 of s. 4 of the 1947 Act the following subsection, namely Subject to the provisions of sections 5, 6, 7 and 8 and with effect from the companymencement of this Act, every dealer whose gross turnover during the year immediately preceding the date of such companymencement, on sales which have taken place both in and outside Bihar exceeded Rs. 10,000 shall be liable to pay tax under this Act on sales which have taken place in Bihar on and from the date of such companymencement Provided that the tax shall number be payable on sales involved in the execution of a companytract which is shown to the satisfaction of the Commissioner to have been entered into by the dealer companycerned on or before the 1st day of October, 1944. Although the amending Act received the assent of the Governor General on March 15, 1949, it came into force on October 1, 1948, as provided in s. 1 2 thereof. Section 16 of the amending Act, however, provided that the amendment made by s. 3 should form part and should be deemed always to have formed part of the 1947 Act as if the said Act had been enacted as so amended from the companymencement thereof, that is to say, from July 1, 1947. The 1947 Act was further amended in 1951 by Bihar Act VII of 1951 and again in 1953 by Bihar Act XIV of 1953, but we are number, in the present case, companycerned with those amendments. Although the charging section, namely, s. 4 1 , as amended, operates from July 1, 1947, the definition of sale as amended, became operative only from October 1, 1948. Therefore, the definition of sale , as it stood prior to the amendment, was applicable to all sales made by the appellant throughout the first period hereinbefore mentioned, i.e., the period from July 1, 1947 to March 31, 1948 and also to those made during the period from April 1, 1948 to October 1, 1948, which was only a portion of the second 1366 period hereinbefore mentioned and the amended definition applied to all sales made by the appellant during the remaining portion of the second period, i.e., from October 1, 1948 to March 31, 1949. Bearing in mind the relevant provisions of the 1947 Act as they stood both before and after the amendment and the period of their applicability we number proceed to companysider the points urged before us by the learned Attorney General appearing for the-appellant companypany. Re. Points Nos. 1 and 4 It will be companyvenient to take up those two points together for they have been dealt with together by the learned Attorney General. The validity of s. 4 1 read with s. 2 g , second proviso, is challenged in two ways. In the first place it is urged that s. 100 3 of the Government of India Act, 1935 read with Entry 48 in List II of the Seventh Schedule thereto authorised the Legislature of Bihar to make a law with respect to tax on the sale of goods. Sale of Goods , as a legal topic, has well defined and well understood implications both in English and Indian Law. The English Common Law relating to sale of goods has been companyified in the English Sale of Goods Act, 1893. In India the matter was originally governed by the provisions of Chapter VII of the Indian Contract Act, 1872. Those provisions have since been replaced by the Indian Sale of Goods Act, Act III of 1930. Our attention has been drawn to s. 4 of the Indian Sale of Goods Act which clearly makes a distinction between a sale and an agreement for sale. It is pointed out that that section groups sales and agreements to sell under the single generic name of companytract of sale , following in this respect the scheme of English Sale of Goods Act, 1893, and that it treats sales and agreements to sell as two separate categories, the vital point of distinction between them being that whereas in a sale there is a transfer of property in goods from the seller to the buyer, there is numbere in an agreement to sell. It is then urged, on the authority of a decision of this Court in the Sales Tax Officer, Pilibhit v. Messrs. Budh Prakash 1367 Jai Prakash 1 that there having thus existed at the time of the enactment of the Government of India Act, 1935, a well defined and well established distinction between a sale and an agreement to sell it would be proper to interpret the expression sale of goods in Entry 48 in the sense in which it was used in legislation both in England and in India and to hold that it authorised an imposition of a tax only when there was a companypleted sale involving the transfer of title in the goods sold. Reference is then made to the decision of the Federal Court in the case of Province of Madras v. Boddu Paidanna and Sons 2 where the Federal Court at page 101 observed that in the case of sales tax the liability to tax arose on the occasion of a sale which Patanjali Sastri C. J. in his judgment in the State of Bombay v. United Motors India Ltd. 3 described as the taxable event. The argument is that the Bihar Legislature companyld only make a law imposing a tax on the sale of goods, that is to say, on a companycluded sale involving the transfer of property in the goods sold from the seller to the buyer as companytemplated by the Sale of Goods Act. The Bihar Legislature companyld number, by giving an extended definition to the word sale, extend its legislative power under Entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935, so as to impose a tax on anything which is short of a sale. For our present purpose numberexception need be taken to the proposition thus formulated and indeed in Budh Prakash Jai Prakashs case 1 this Court struck down that part of the definition of it sale in s. 2 h of the Uttar Pradesh Sales Tax Act, 1948, which enlarged the definition of sale so as to include forward companytracts. But is the position the same here? We think number. It will be numbericed that s. 4 1 imposed on the dealer the liability to pay a tax on sale as defined in s. 2 g . Both before and after the amendment of s. 2 g the principal part of the definition meant the transfer of the property in goods. All that the second proviso did was number to extend the 1 1955 1 S.C.R. 243, 247. 2 1942 F.C.R. 90. 3 1953 S.C.R. 1069, 1088. definition of sale but only to locate the I sale in certain circumstances mentioned in that proviso in Bihar. The basis of liability under s 4 1 remained as before, namely, to pay tax on sale . The fact of the goods being in Bihar at the time of the companytract of sale or the production or manufacture of goods in Bihar did number by itself companystitute a sale and did number by itself attract the tax. The taxable event still remained the sale resulting in the transfer of ownership in the thing sold from the seller to the buyer. No tax liability actually accrued until there was a companycluded sale in the sense of transfer of title. It was only when the property passed and the sale took place that the liability for paying sales tax under the 1947 Act arose. There was numberenlargement of the meaning of sale but the proviso only raised a fiction on the strength of the facts mentioned therein and deemed the sale to have taken place in Bihar. Those facts did number by themselves companystitute a sale but those facts were used for locating the situs of the sale in Bihar. It follows, therefore, that the. provisions of s. 4 1 read with s. 2 g , second proviso, were well within the legislative companypetency of the Legislature of the Province of Bihar. The vires of s. 4 1 read with s. 2 g , second proviso, is also questioned on the ground that it is in reality number a tax on the sale of goods but is in substance a duty of excise within the meaning of Entry 45 in List I of the Seventh Schedule to the Government of India Act, 1935, with respect to which the Provincial Legislature companyld number, under s. 100 of that Act, make any law. Our attention is drawn to cl. ii of the second proviso which companytemplated a sale of the goods by the producer or manufacturer thereof. It is urged that, according to this clause, tax was number imposed on all sales of goods produced or manufactured in Bihar, but was imposed only on those goods produced or manufactured in Bihar which were sold by the producer or manufacturer. It is pointed out, as and by way of an illustration, that if the goods produced or manufactured in Bihar were taken out of the Province of Bihar and then gifted away by the producer or 1369 manufacturer to a person outside Bihar and that person sold the goods, he would number be liable under the proviso. This argument, however, overlooks the fact that under cl. ii the producer or manufacturer became liable to pay the tax number because he produced or manufactured the goods, but because he sold the goods. In other words the tax was laid on the producer or manufacturer only qua seller and number qua manufacturer or producer as pointed out in Boddu. Paidannas case 1 . In the words of their Lordships of the Judicial Committee in Governor General v. Province of Madras 2 , a duty of excise is primarily a duty levied on a manufacturer or producer in respect of the companymodity manufactured or produced. It is a tax on goods and number on sales or the proceeds of sale of goods. If the goods produced or manufactured in Bihar were destroyed by fire before sale the manufacturer or producer would number have been liable to pay any tax under s. 4 1 read with s. 2 g , second proviso. As Gwyer C. J. said in Boddu Paidannas Case 1 at page 102 the manufacturer or producer would be liable, if at all, to a sales tax because he sells and number because he manufactures or produces and he would be free from liability if he chose to give away everything which came from his factory. In our judgment both lines of the argument advancedby the learned Attorney General in support of points and 4 are untenable and cannot be accepted. Re. point No. 2 The theory of nexus has been applied in support of tax legislation in more cases than one, number only in this companyntry but also in Australia and England. In Wanganui-Rangitikei Electric Power Board v. Australian Mutual Provident Society 3 Dixon J. observed So long as the statute selected some fact or circumstance which provided some relation or companynection with New South Wales, and adopted this as the ground of its interference, the validity of an enactment would number be open to challenge. The same learned Judge in Broken Hill South Ltd. v. 1 1942 F.C.R. 90. 3 1934 50 C.L.R. 581, 600. 2 1945 L.R. 721.A. 91, 103. 1370 Commissioner of Taxation N. S. W. 1 , said at page 375 If a companynection exists, it is for the legislature to decide how far it should go in the exercise of its ,powers. As in other matters of jurisdiction or authority companyrts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. No doubt there must be some relevance to the circumstance in the exercise of the power. But it is of numberimportance upon the question of validity that the liability imposed is, or may be, altogether disproportionate to the territorial companynection. Even the dissenting Judge Rich J. accepted the theory of nexus at page 361 I do number deny that once any companynection with New South Wales appears, the legislature of that State may make that companynection the occasion or subject of the imposition of a liability. But the companynection with New South Wales must be a real one and the liability sought to be imposed must be pertinent to that companynection. The Estate Duty Assessment Act 1914-1928 which charged estate duty on moveable properties situate abroad which had passed from a deceased person domiciled in Australia by gift intervivos made by him within a year of his death was number struck down for extra territoriality but was upheld as companystitutional in The Trustees Executors and Agency Co. Ltd. The Federal Commissioner of Taxation 2 . The nexus theory was applied in full force in Governor General v. Raleigh Investment Co. 3 Wallace Brothers and Co. Ltd. v. Commissioner of Income Tax, Bombay City 4 and A. H. Wadia v. Commissioner of Income Tax, Bombay 5 . In Raleigh Investment Co.s case 3 the assessee companypany was a companypany incorporated in England. Its registered office was in England. It held shares in nine Sterling Companies incorporated 1 1937 56 C.L.R. 337. 2 1933 49 C.L.R. 220. 3 1944 F.C.R. 229. 4 1948 F.C.R. 1. 5 1948 C.R. 121. 1371 in England. Those nine Sterling Companies carried on business in British India and earned income, profits or gains in British India and declared and paid dividends in England to its shareholders including the assessee companypany. Tile assessee companypany was charged to income-tax under s. 4 1 of the Indian Income-tax Act. It should be numbered that the assessee companypany was number resident in British India, carried on numberbusiness in British India and made numberincome, profits or gains out of any business carried on by it in British India. It invested its money and acquired shares in England in the nine Sterling Companies which were English Companies. It was only when those nine Companies declared and paid dividends in England that the assessee companypany really earned its income, profits or gains, out of its investments in England in shares of nine Sterling Companies. The circumstance that the nine Sterling Companies derived their income, profits or gains, out of business carried on by them in British India out of which they paid dividends to the assessee companypany was regarded as sufficient nexus so as to fasten the tax liability on the assessee companypany in respect of the income, profits or gains, it derived from the nine Sterling Companies. Even such a distantly derivative companynection with the source of income was held as a sufficient nexus to enable the British Indian tax authorities to charge the assessee companypany with income-tax. The companyclusions reached by Spens C. J. in Raleigh Investment Co.s case, 1 are formulated thus at page 253 If some companynection exists, the legislature is number companypelled to measure the taxation by the degree of benefit received in particular cases by the taxpayer. This affects the policy and number the validity of the legislation . In Wallace Brothers case 2 the companynection of the assessee companypany with British India was number so remote as in Raleigh Investment Co.s case 1 , for in the former case the assessee companypany was a partner in a 1 1944 F.C.R. 229. 174 2 1948 F.C.R. 1. 1372 firm which carried on business in British India but that companynection was held to be sufficient nexus to bring to British Indian tax number only the income, profits or gains made by the assessee as a partner in the firm but also its income, profits or gains which accrued without British India in the previous year. In Wadias case 1 , also an incometax case, it was held that a law imposing a tax cannot be impugned on the ground that it is extra territorial, if there is a companynection between a person who is subjected to a tax and the companyntry which imposes that tax. The companynection must, however, be a real one and the liability sought to be imposed must be pertinent to that companynection. At page 140 Chief Justice Kania observed Generally, States can legislate effectively only for their own territories, but for purposes of taxation and similar matters, a State makes laws designed to operate beyond its territorial limits. The learned Attorney General points out that the three last mentioned cases in which the nexus theory was applied were income-tax cases and submits that that principle cannot be extended to sales tax laws. He points out that in Bengal Immunity Co. Ltd. v. The State of Bihar 2 this Court expressly left open the question, whether the theory of nexus applied to legislation with respect to sales tax. The passage at page 639 relied upon by the learned Attorney General only refers to the fact that the different State Legislatures companysidered themselves free to make a law imposing tax on sales or purchases of goods provided the State companycerned had some territorial nexus with such sales or purchases and went on to say that the question whether they were right or wrong in so doing had number been finally decided by the companyrts. That passage, properly understood, can hardly be said to indicate that the theory of nexus does number apply to sales tax legislation at all. The drift of the meaning of the passage was that the sufficiency of the different next relied on by the different States had number been tested by the companyrts. The passage strongly relied upon by the learned Attorney General is to be 1 1948 F.C.R. 121. 2 1955 2 S.C.R. 603. 1373 found at page 708 where Bhagwati J. after referring to the earlier cases, observed It is a moot point whether this theory of territorial companynection or nexus which has been mainly applied in incometax cases, is also applicable to sales tax legislation, the sphere of income-tax legislation and sales tax legislation being quite distinct. Whereas in the case of income-tax legislation the tax is levied either on a person who is within the territory by exercising jurisdiction over him in personam or upon income which has accrued or arisen to him or is deemed to have or arisen to him or has been derived by him from sources within the territory and it is, therefore, germane to enquire whether any part of such income has accrued or arisen or has been derived from a source within the territory, in the case of sales tax legislation it is the sale or purchase of goods which is the subject-matter of taxation and it cannot be predicated that the sale or purchase takes place at one or more places where the necessary ingredients of sale happen to be located. The theory of territorial companynection or nexus was number put to the test at any time prior to the enactment of the Constitution and it is number necessary also for us to give a definite pronouncement on the subject. Apart from the fact that the companycluding words in the passage quoted above may be read as indicating that the observations were obiter, it appears to us to be too late in the day to companytend that the theory of nexus does number apply to sales tax legislation at all. Indeed an examination of the decisions of this Court will clearly show that the applicability of the theory of nexus to sales tax legislation has been clearly recognised by this Court. In The State of Bombay v. The United Motors India Ltd. 1 this Court bad to interpret the true meaning of the explanation to Art. 286 1 a of the Constitution. That explanation created a fiction locating the situs of a sale or purchase in the State in which the goods had actually been delivered as a result of such sale or purchase for the purpose of companysumption in that 1 1953 S.C.R. 1069, 1088. 1374 State numberwithstanding the fact that, under the general law relating to sale of goods, the property in the goods had, by reason of such sale or purchase, passed in another State. This Court by a majority then held that in view of the fiction created by the explanation the sale which was in reality an inter-State sale became an intrastate sale and companysequently the delivery and companysuming State had the, right to impose tax on that sale. It is true that that decision has been departed from in the Bengal Immunity Co.s case 1 on the question of the interpretation of Art. 286 of the Constitution, but on the point we are number discussing that decision clearly implies a recognition of the applicability of the nexus theory to the imposition of sales tax. The observations of Patanjali Sastri C. J. on the question of nexus in that case cannot, therefore, be said to be unnecessary for the decision of that case. In Poppatlal Shah v. The State of Madras 2 Mukherjea J. delivering the unanimous judgment of the Constitution Bench of this Court definitely applied the theory of nexus to sales tax legislation. Support for that companyclusion was found directly in the decision of the Judicial Committee in Wallace Brothers and Co. Ltd. v. Commissioner of Income Tax, Bombay City 3 which, it was said, had been applied by this Court to sales tax legislation in the United Motors case 4 , but it is quite clear that the decision had, independently of the United Motors case 4 , adopted the principle of Wallace Brothers and Co.s case 3 to sales tax legislation. In a recent case, The State of Bombay v. R.M.D. Chamarbaugwala 5 , which was companycerned with tax on crossword companypetition, this Court applied the theory of nexus and upheld the legislative companypetency of the Bombay Legislature to impose tax on the gambling companypetitions. At page 901 this Court said The doctrine of territorial nexus is well established and there is numberdispute as to the principles. As enunciated by learned companynsel for the petitioners, if there is a territorial nexus between the person sought to be charged and the State seeking to tax him the 1 1955 2 S.C.R. 603. 3 1948 F.C.R. 1. 5 1957 S.C.R. 874,901. 2 1953 S.C.R. 677. 4 1953 S.C.R. 1069, 1088. 1375 taxing statute may be upheld. Sufficiency of the territorial companynection involve a companysideration of two elements, namely, a the companynection must be real and number illusory and b the liability sought to be imposed must be pertinent to that companynection. It is companyceded that it is of numberimportance on the question of validity that the liability imposed is or may be altogether disproportionate to the territorial companynection. In other words, if the companynection is sufficient in the sense mentioned above, the extent of such companynection affects merely the policy and number the validity of the legislation. Applying these principles to the facts of that case this Court came to the companyclusion that they companystituted sufficient territorial nexus which entitled the State of Bombay to impose a tax on the gambling that took place within its boundaries and that the law companyld number be struck down on the ground of extra-territoriality. It is number necessary for us on this occasion to lay down any broad proposition as to whether the theory of nexus, as a principle of legislation, is applicable to all kinds of legislation. It will be enough, for disposing of the point number under companysideration, to say that this Court has found numberapparent reason to companyfine its application to income-tax legislation but has extended it to sales tax and to tax on gambling and that we see numbercogent reason why the nexus theory should number be applied to sales tax legislation. The learned Attorney General submits that the theory of nexus cannot be applied to sales tax legislation because such legislation is companycerned with a tax on the transaction of sale,, that is to say, a companypleted sale and to break up a sale into its companyponent parts and to take one or more of such parts and to apply the theory to it will. mean that the State will be entitled to impose a tax on one or more of the ingredients or companystituent elements of the transaction of sale which by itself or themselves will number amount to a sale. This argument overlooks the fact that the provisions of the sales tax legislation we are companysidering limit its charging section to sale . In order to attract the charging section there must be a companypleted 1376 sale involving the transfer of property in the goods sold from the seller to the buyer. The nexus theory does number impose the tax. It only indicates the circumstance in which a tax imposed by an act of the ,Legislature may be enforced in a particular case and unless eventually there is a companycluded sale in the sense of passing of the property in the goods numbertax liability attaches under the Act. One or more of the several ingredients companystituting a sale only furnished the companynection between the taxing State and the sale. The learned Attorney General also said that one and the same transaction of sale may be taxed by different States by applying the nexus theory and there will be multiple taxation which will obstruct the free flow of inter-State trade. There is numberforce in this argument, for Art. 286 2 of the Constitution, as it stood originally, was a companyplete safeguard against such eventuality and after the amendment of that Article and the relevant entries in the Legislative List such companytingency will number arise. In our opinion the arguments advanced by the learned Attorney General on this point cannot be accepted. Re. point No. 3 The learned Attorney General next companytends that in any case the nexus must be real and pertinent to the subject-matter of taxation. He companytends that the presence of the goods in Bihar referred to in the old second proviso, which is reproduced in el. i of the second proviso as amended, is of numberconsequence. The production or manufacture, according to him, has numberconnection with and never enters into the transactions of sale. He relies on the observations of Chief Justice Gwyer in Boddu Paidannas case 1 , at page 102, namely, that a sale bad numbernecessary companynection with manufacture or production. That observation was made by the learned Chief Justice in order to emphasise the fact that the tax levied on the first sale by the manufacturer or producer was a tax imposed on him qua seller and number qua manufacturer or producer. The question whether the fact of production or manufacture of goods may legitimately form a nexus between the transaction of sale and the taxing 1 1942 F. C. R. 90. 1377 State was number in issue in that case at all. It is unnecessary in this case to lay down any hard and fast test as to the sufficiency of nexus which will enable a State to impose a tax or to enumerate the instances of such companynection. For the purpose of the present, case it is sufficient to state that in a sale of goods the goods must of necessity play an important part, for it is the goods in which, as a result of the sale, the property will pass. In our view the presence of the goods -it the date of the agreement for sale in the taxing State or the production or manufacture in that State of goods the property wherein eventually passed as a result of the sale wherever that might have taken place, companystituted a sufficient nexus between the taxing State and the sale. In the first case the goods are actually within the State at the date of the agreement for sale and the property in those goods will generally pass within the State when they are ascertained by appropriation by the seller with the assent of the purchaser and delivered -to the purchaser or his agent. Even if the property in those goods passes outside the State the ultimate sale relates to those very goods. In the second case the goods, wherein the title passes eventually outside the State, are produced or manufactured in Bihar and the sale wherever that takes place is by the same person who produced or manufactured the same in Bihar. The producer or manufacturer gets his sale price in respect of goods which were in Bihar at the date when the important event of agreement for sale was made or which were produced or manufactured in Bihar. These are relevant facts on which the State companyld well fasten its tax. If the facts in the Raleigh Investment Co.s case 1 , were sufficient nexus there is numberreason why the facts mentioned in the proviso should number also be sufficient. Whatever else may or may number companystitute a sufficient nexus, we are of opinion that the two cases with which we are companycerned in this case are sufficient to do so. Re. point No. 5 The argument on this point is that sales tax is an indirect tax on the companysumer. The 1 1044 F.C.R. 229. 1378 idea is that the seller will pass it on to his purchaser and companylect it from them. If that is the nature of the sales tax then, urges the learned Attorney General, it cannot be imposed retrospectively after the, sale transaction has been companycluded by the passing of title from the seller to the buyer, for it cannot, at that stage, be passed on to the purchaser. According to him the seller companylects the sales tax from the purchaser on the occasion of the sale. On that time goes past, the seller loses the chance of realising it from the purchaser and if it cannot be realised from the purchaser, it cannot be called sales tax. In our judgment this argument is number sound. From the point of view of the economist and as an economic theory, sales tax may be an indirect tax on the companysumers, but legally it need number be so. Under the 1947 Act the primary liability to pay the sales tax, so far as the State is companycerned, is on the seller. Indeed before the amendment of tile 1947 Act by the amending Act the sellers had numberauthority to companylect the sales tax as such from the purchaser. The seller companyld undoubtedly have put up the price so as to include the sales tax, which he would have to pay but he companyld number realise any sales tax as such from the purchaser. That circumstance companyld number prevent the sales tax imposed on the seller to be any the less sales tax on the sale of goods. The circumstance that the 1947 Act, after the amendment, permitted the seller who was a registered dealer to companylect the sales tax as a tax from the purchaser does number do away with the primary liability of the seller to pay the sales tax. This is further made clear by the, fact that the registered dealer need number, if he so pleases or chooses, companylect the tax from the purchaser and sometimes by reason of companypetition with other registered dealers he may find it profitable to sell his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need number be passed on to the purchasers and this fact does number alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. The buyer is under numberliability to pay sales tax in addition to the agreed sale price 1379 unless the companytract specifically provides otherwise. See Love v. Norman Wright Builders Ltd. 1 . If that be the true view of sales tax then the Bihar Legislature acting within its own legislative field had the powers of a sovereign legislature and companyld make its law prospectively as well as retrospectively. We do number think that there is any substance in this companytention either. For reasons stated above numbere of the companytentions urged by the learned Attorney General in support of these appeals can be sustained. The result, therefore, is that these appeals must be dismissed with companyts. BOSE J.-With great respect I cannot agree. It will number be necessary to elaborate my point of disagreement at length because this is pro-Constitution legislation and much of what we decide in this case wilt number affect post- Constitution Acts. Put very shortly, my view is this. First, a State can only impose a tax on the sale of goods. It has numberpower to tax extra territorially, therefore it can only tax sales that occur in the State itself. With great respect I feel it is fallacious to look to the goods, or to the elements that companystitute a sale, because the power to tax is limited to the sale and the tax is number on the goods or on the agreement to sell or on the price as such but only on the sale. Therefore, unless the sale itself takes place in the State, the State cannot tax. That brings me to the next point, the situs of a sale. Now I know that this is a matter on which many different views are possible but what is clear to me is that a sale cannot have more than one situs. It is number a mystical entity that can be one in many and many in one at one and the same time, here, there and everywhere all at once number is it a puckish elf that pops up number here, number there and next everywhere. It is a very mundane business transaction, of the earth. earthy. It can have only one existence and one situs. Opinions may differ on where that is and how it is to be determined, but it is our duty, as the supreme authority on the law of the land, to choose L.R. 1944 1 K. B. 484. I75 1380 one of those many views and say that that is the law of our land and that in India the situs is determined in this way or that and, having determined it, make it uniform for the whole companyntry. I am companyscious that the selection must be arbitrary, but for all that, it must be made. Left to myself, I would have preferred Chesbires view about the proper law of the companytract set out by him in Chapter VIII of his book on Private International Law, 4th edition. I referred to this in The Delhi Cloth and General Mills Co. Ltd. v. Harnam Singh 1 . I quote him again The proper law is the law of the companyntry in which the companytract is localised. Its localisation will be indicated by what may be called the grouping of its elements as reflected in its formation and in its terms. The companyntry in which its elements are most densely grouped will represent its natural seat. He is number dealing with this question. He is dealing with International Law and the difficulties that arise in dealing with companytracts whose elements are grouped in different States with different, and often companyflicting, laws. He is developing the theme that for any one companytract there should be but one law to govern it in all its stages and that the most logical companyclusion is to select the law of the companyntry in which the companytract has its natural seat. But whether his view is accepted or any of the others that he discusses, he stresses the need for one objective rule and companytends strongly that the choice should number be left to the parties to the deal, even as I say that it should number be left to the States. He quotes an American Judge, at page 203 of his book, who says that- Some law must impose the obligation, and the parties have numberhing whatsoever to do with that, numbermore than with whether their acts are torts or crimes. Now numbere of that is of immediate application here but it companytains the germ of an idea and points to the embarrassment and folly of letting differing laws run amuck in governing a single transaction. Following up that thought I would say that we are dealing here with a Constitution Act that speaks with one voice 1 1955 2 S.C.R. 402, 418. 1381 and authority throughout the land. It tells the various States, as one day some international voice that will rule the world will say to the peoples in it, you may do this and may number do that and this and that mean, but one thing everywhere. One writ runs throughout the land and it has but one meaning and one voice. When I say that you may only legislate for your own territory and that you may tax certain sales, you must realise that the meaning that I give to I sale is the meaning that my Supreme Court shall give to it and that it cannot mean differing things in different areas and you must realise that the only sales that you may tax are the ones that lie in your own territory. My Supreme Court shall determine where a sale is situated and once that is determined it cannot be situated anywhere else. If it does number happen to be in your territory you cannot tax it. Our present Constitution did number adopt Cheshires view. It made another choice. In the old Explanation to Art. 286 number repealed it selected the place where the goods are actually delivered, as a direct result of the sale or purchase, as the situs. Well, so be it. That is as good as any other and I would have been as happy to select that as any of the other possibilities. But what I do most strongly press is that a Constitution Act cannot be allowed to speak with different voices in different parts of the land and that a mundane business companycept well known and well understood cannot be given an ethereal omnipresent quality that enables a horde of hungry hawks to swoop down and devour it simultaneously all over the land some sale some hawks as Winston Churchill would say. I would therefore reject the nexus theory in so far as it means that any one sale can have existence and entity simultaneously in many different places. The States may tax the sale but may number disintegrate it and, under the guise of taxing the sale in truth and in fact, tax its various elements, one its head and one its tail, one its entrails and one its limbs by a legislative fiction that deems that the whole is within its claws simply because, after tearing it apart, it finds a hand 1382 or a foot or a heart or a liver still quivering in its grasp. Nexus, of companyrse, there must, be but nexus of the entire entity that is called a sale, wherever it is deemed to be situate. Fiction again. Of companyrse, it is fiction, but it is a fiction as to situts imposed by the Constitution Act and by the Supreme Court that speaks for it in these matters and only one fiction, number, a dozen little ones. My point is simple. If you are allowed to tax a dog it must be within the territorial limits of your taxable, jurisdiction. You cannot tax it if it is born elsewhere and remains there simply because its mother was with you at some point of time during the period of gestation. Equally, after birth, you cannot tax it simply because its tail is cut off as is often done in the case of certain breeds and sent back to the fond owner, who lives in your jurisdiction, in a bottle of spirits, or clippings of its hair. There is a nexus of sorts in both cases but the fallacy lies in. thinking that the entity is with you just because a part that is quite different from the whole was once there.
B. SINHA, J. Leave granted. These three appeals arise out of a companymon judgment and order dated 3rd May, 2006 passed by a Division Bench of the High Court of Uttaranchal at Nainital in Writ Petition No. 398 S B of 2004. In Pithoragarh where an army unit is situated, an Army Public School known as Gen. B.C. Joshi Army Public School is being run by a society known as Army Welfare Education Society. Appellant Brig. D.S. Grewal, hereinafter referred to as Grewal in Civil appeal arising out of SLP C No.10044 of 2006 is the Chairman of the School Managing Committee while Col. Hitendra Bahadur appellant in Civil Appeal arising out of. SLP C No.10143 of 2006 is the Vice Chairman thereof. Chairman, School Managing Committee and others are the appellants in Civil Appeal arising out of SLP C No.10046 of 2006. First respondent Vimmi Joshi applied for and was appointed as a Trained Graduate Teacher in Gen. B.C. Joshi Army Public School. She was later on appointed as Post Graduate Teacher Mathematics . She was companyfirmed in the said post. She worked as an officiating Principal from 10.2.2003 to 10.8.2003. She was appointed as the Principal of the school from 10.2.2004. Appellant Hitendra Bahadur was a Deputy Commander, 69 Mountain Brigade. He, at the relevant time, was posted at Pithoragarh. While he was stationed at Sonamarg in companynection with providing security companyer to pilgrims of Amarnath Yatra, he wrote a letter to the first respondent, the companytents whereof read as under - My dearest Vimmi, Allow me to companyfess to you that I have fallen in love with you. What a man needs in a woman ? Love, trust and faith, when I look deep into your eyes I find there in abundance. No where in my life I have ever companye across a woman where intelligence, appearance, maturity and beauty is so well awarded in one single person as in you. You are numberdoubt, a very charming and gorgeous woman, beautiful and attractive. You are very magnetic. Always elegantly drew-up, you look very stylist and fashionable with slim and slender body. You appear absolutely fit, intelligent, witty, companyfident, companypassionate and very much in companytrol, you are truly a role model for all young people at you place and most darling friend to me. I adore you from the companye of my heart and always value our friendship. You are precious and priceless. May I extend my hands towards you and hold your hands tightly and ask you to lean on my shoulder when ever you need me. It will be a great pleasure. With lots of love. Your Sd - Allegedly Hitendra Bahadur used to make advances towards respondent No.1. She reported the matter to Grewal. Her father also met him. Allegedly he was abused by Grewal. On or about 12th October, 2004 Grewal addressed a letter to respondent No.1 with respect to her allegations against Hitendra Bahadur. She was allegedly asked to give her companyplaint in writing stating - I am writing to you regarding the allegation made by you against Colonel Hitendra Bahadur, SM, the Deputy Commander of 69 Mountain Brigade. On 27th Sep 04, during the interaction with me in my office at your request, you apprised me that the Deputy Commander has written a letter to you. The letter was shown to me and I observed that the portion at the bottom was torn and there was numbername or signature. I asked you as to why the portion was torn but numberanswer was given. On 09 Oct 04, your father came to my office to meet me. He also made an allegation against the Deputy Commander. You were then asked by Maj Pankaj Bhola, the BM of 69, Mountain Brigade to meet me in my office. The matter was discussed and I directed you to forward the allegation in writing to me by 09 Oct. 04. Till date, the allegation has number been received by me. Hence, I will number take companynizance of the matter. On or about 25th October, 2004 two anonymous companyplaints were received by the Managing Committee from the Head Quarters as against respondent No.1. By a memorandum dated 25th October, 2004 she was asked to give her companyments on the said allegations. She made her companyments by her letter dated 27th October, 2004. However, her services were terminated by an order dated 4th December, 2004 stating - Refer to this Headquarters letter number 620401/1/APS Sigs-4 dated 30th Sep 2004 and Article 186 f of AWES Rules and Regulations Vol.-I, for Army Schools Army Public School Oct 2003 Edition . SMC regrets to inform you that your services are numbermore required, hence your services are terminated forthwith. A cheque bearing machine number 176096 dated 04th Dec 04 for Rs.14,200.00 Rupees fourteen thousand two hundred only towards one month salary is enclosed as per the agreement. Handing Taking over all documents and other important companyrespondence held on your charge will be carried out with Mr. Kunwar Pratap Singh Senior most PCT of Gen BC Joshi APS, Pithoragarh. Sd - D.S. Grewal Brig. Chairman A writ petition was filed by her questioning the legality of the said order of termination alleging sexual harassment by Hitendra Bahadur as one of the grounds, wherein an interim order was passed on 3.5.2006. The said interim order is impugned in these appeals. In the meanwhile a purported enquiry was companyducted. Respondent No.1 allegedly participated therein. By a report dated 20th January, 2005 it was found to be number a case of sexual harassment. Hitendra Bahadur was directed to be companynseled. Before the High Court appellants filed their companynter-affidavits inter alia companytending - That the order of termination has numberhing to do with the alleged sexual harassment. Writing a letter was merely appreciable in nature and by reason thereof numbersexual harassment was caused by Hitendra Bahadur. Hitendra Bahadur has numberhing to do with the Management of the School and that the letter having been sent from Sonamarg cannot be said to have any sexual harassment at the work place of the first respondent. By reason of the impugned order, however, the Division Bench found that it was a clear cut case of sexual harassment of the writ petitionerrespondent No.1 herein. It was, therefore, directed - Therefore, the Secretary, Ministry of Defence, Government of India and the Chief of the Army Staff are directed to take disciplinary action against these two officers, as the case of sexual harassment is evident from the companytents of the letter and the admission by both the officers followed by the termination of the petitioner. We are passing this order in view of the law laid down by the Honble Apex Court in the case of Vishakha others vs. State of Rajasthan reported in 1997 6 SCC 241. The progress of the disciplinary action so taken in such a serious manner which may even warrant the companyrt martial proceedings of these two officers shall be submitted before this Court within a period of two months from the date of production of the certified companyy of this order. Before, however, we embark upon the respective companytentions of the parties we may numberice that a review application was filed before the High Court which was also dismissed by order dated 18th May, 2006. The said order of the High Court refusing to review its earlier order dated 3rd May, 2006 is number in question in these appeals. We may furthermore place on record that a first information report was also lodged against respondent No.1 by the school management alleging financial irregularities. After investigation carried out in this behalf a final report was submitted exonerating her and the report has been accepted by the Chief Judicial Magistrate, Pithoragarh by an order dated 13th February, 2006. Mr. K.K. Rai and Mr. Chetan Sharma, learned senior companynsel appearing on behalf of the appellants would submit - That the High Court should number have arrived at its finding that Col Hitendra Bahadur had caused sexual harassment to respondent No.1, so as to pass a final judgment on the subject despite directing initiation of a disciplinary proceeding against them. As first respondent was appointed only on probation for one year and during the probation period her services companyld be terminated by giving one months numberice or salary in lieu thereof without assigning any reason by the appointing authority, numbercase has been made out to pass an interim order of the nature as has been done by the High Court. As despite opportunities given she did number make any companyplaint in writing, companynizance of the said letter dated 22nd July, 2004 of Col Hitendra Bahadur was rightly number taken by Grewal. As Hitendra Bahadur had already undergone an enquiry, a direction for second enquiry was wholly misconceived. Ms. S. Janani, learned companynsel appearing on behalf of the writ petitioner-respondent No.1 on the other hand would companytend - That admittedly the letter was written by the Vice Chairman of the School Managing Committee to respondent No.1, Vimi Joshi who was his subordinate As the Vice Chairman of the Managing Committee of the School, he was in a companymanding position As the matter was brought to the numberice of the Chairman of the School Managing Committee, numberfurther companyplaint in writing was required to be made. The circumstances attending to the case clearly show that the termination of respondent No.1s services was mala fide and or otherwise bad in law. Indisputably the writ petition was filed by respondent No.1 which is still pending. In our opinion, it would, thus, be number proper for us to enter into merit of the matter. However, indisputably, in terms of the judgment of this Court in Vishakha and others supra certain guidelines have been laid down by this Court till an appropriate legislation is made in this behalf, some of them being, - disciplinary action, companyplaint mechanism and companyplaints companymittee. These are as under - Disciplinary action Where such companyduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. Complaint mechanism Whether or number such companyduct companystitutes an offence under law or a breach of the service rules, an appropriate companyplaint mechanism should be created in the employers organization for redress of the companyplaint made by the victim. Such companyplaint mechanism should ensure time-bound treatment of companyplaints. Complaints Committee The companyplaint mechanism, referred to in 6 above, should be adequate to provide, where necessary, a Complaints Committee, a special companynsellor or other support service, including the maintenance of companyfidentiality. The Complaints Committee should be headed by a woman and number less than half of its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government Department companycerned of the companyplaints and action taken by them. The employers and person-in-charge will also report on the companypliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government Department. The Court furthermore defined sexual harassment to include - For this purpose, sexual harassment includes such unwelcome sexually determined behaviour whether directly or by implication as a physical companytact and advances b a demand or request for sexual favours c sexually-coloured remarks d showing pornography e any other unwelcome physical, verbal or number-verbal companyduct of sexual nature. The Legislature too have keeping in mind the abovenoted guidelines from Vishakha supra recently drafted the Protection of Women against Sexual Harassment at Workplace Bill, 2007. The Bill is to provide for the prevention and redressal of sexual harassment of women at workplace and for matters companynected therewith or incidental thereto. The draft law provides for companysideration of a mandatory companymittee to hear companyplaints of sexual harassment. It also stipulates the procedures for setting up of these companymittees. If the companyplaint is found to be true, the draft law provides for monetary companypensation. It also stipulates a time period for companypleting the enquiry and for employers to take action against the accused. We are aware that the Bill has number till yet been enacted by the Parliament. We cite the Bill only to show that the law makers too have accepted the directions and guidelines which had been laid down by this Court. Respondent No.1 was a working lady. She was working as the Principal of the School. She was drawing a salary. It is a public enterprise. She felt humiliated number only by reason of the said letter according to her, Hitendra Bahadur also made advances towards her. She had, therefore, a reasonable ground to believe that her objection, thus, would cause disadvantage to her in companynection with her employment or work including her recruitment or promotion or creating a hostile working environment. According to her, adverse companysequences visited as her services have been terminated. Vishakha supra has been followed in Apparel Export Promotion Council v. A.K. Chopra, 1999 1 SCC 759 wherein a Division Bench of this Court inter alia held that in a case involving violation of human rights, the Courts must forever remain alive to the international instruments and companyventions and apply the same to a given case when there is numberinconsistency between the international numberms and the domestic law occupying the field. Before, however, a disciplinary proceeding is initiated in a case of this nature, a prima facie finding has to be arrived at as regards the role of the delinquent. It has been stated before us that the job of Col Hitendra Bahadur was merely to function as the Chairman in the absence of the regular Chairman. It is number in dispute that numberComplaint Committee has been companystituted numbermechanism has been put in place for redressal of the companyplaint made by the victim. For one reason or the other Grewal failed and or neglected to take appropriate action. It is a matter of great regret that the army which is a disciplined organization failed to provide a companyplaint mechanism and ignored the decision of this Court which was bound to be given effect to in terms of Article 144 of the Constitution of India. A companyplaint companymittee as per Vishakha was companystituted for the other teachers and the staff but evidently numbercomplaint companymittee was companystituted for entertaining a companyplaint of this nature. Even the purported disciplinary action initiated by the appellants does number provide a companyplete picture. A report was submitted but whether any further action has been taken or number is number known.